
[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Proposed Rules]
[Pages 62273-62388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24507]



[[Page 62273]]

Vol. 80

Thursday,

No. 199

October 15, 2015

Part III





Securities and Exchange Commission





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17 CFR Parts 210, 270, 274





Open-End Fund Liquidity Risk Management Programs; Swing Pricing; Re-
Opening of Comment Period for Investment Company Reporting 
Modernization Release; Proposed Rule

  Federal Register / Vol. 80 , No. 199 / Thursday, October 15, 2015 / 
Proposed Rules  

[[Page 62274]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 210, 270, 274

[Release Nos. 33-9922; IC-31835; File Nos. S7-16-15; S7-08-15]
RIN 3235-AL61; 3235-AL42


Open-End Fund Liquidity Risk Management Programs; Swing Pricing; 
Re-Opening of Comment Period for Investment Company Reporting 
Modernization Release

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule; re-opening of comment period.

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SUMMARY: The Securities and Exchange Commission is proposing a new rule 
and amendments to its rules and forms designed to promote effective 
liquidity risk management throughout the open-end fund industry, 
thereby reducing the risk that funds will be unable to meet redemption 
obligations and mitigating dilution of the interests of fund 
shareholders in accordance with section 22(e) and rule 22c-1 under the 
Investment Company Act. The proposed amendments also seek to enhance 
disclosure regarding fund liquidity and redemption practices. The 
Commission is proposing new rule 22e-4, which would require each 
registered open-end fund, including open-end exchange-traded funds 
(``ETFs'') but not including money market funds, to establish a 
liquidity risk management program. The Commission also is proposing 
amendments to rule 22c-1 to permit a fund, under certain circumstances, 
to use ``swing pricing,'' the process of adjusting the net asset value 
of a fund's shares to effectively pass on the costs stemming from 
shareholder purchase or redemption activity to the shareholders 
associated with that activity, and amendments to rule 31a-2 to require 
funds to preserve certain records related to swing pricing. With 
respect to reporting and disclosure, the Commission is proposing 
amendments to Form N-1A regarding the disclosure of fund policies 
concerning the redemption of fund shares, and the use of swing pricing. 
The Commission also is proposing amendments to proposed Form N-PORT and 
proposed Form N-CEN that would require disclosure of certain 
information regarding the liquidity of a fund's holdings and the fund's 
liquidity risk management practices. In connection with these proposed 
amendments, the Commission is re-opening the comment period for 
Investment Company Reporting Modernization, Investment Company Act 
Release No. 31610 (May 20, 2015).

DATES: The comment period for the proposed rule published June 12, 2015 
(80 FR 33589) is reopened. Comments on this release (Investment Company 
Act Release No. 31835) and Investment Company Act Release No. 31610 
should be received on or before January 13, 2016.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number S7-16-15 or S7-08-15 on the subject line; or
     Use the Federal Rulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments to Secretary, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number S7-16-15 or S7-08-15. The 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments are also available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. All comments received will be posted without change; 
the Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly.
    Studies, memoranda, or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's Web site. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: Melissa S. Gainor, Senior Special 
Counsel; Naseem Nixon, Senior Counsel; Amanda Hollander Wagner, Senior 
Counsel; Sarah A. Buescher, Branch Chief; or Sarah G. ten Siethoff, 
Assistant Director, Investment Company Rulemaking Office, at (202) 551-
6792, Division of Investment Management, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission (the 
``Commission'') is proposing for public comment amendments to rules 
22c-1 [17 CFR 270.22c-1] and 31a-2 [17 CFR 270.31a-2], and new rule 
22e-4 [17 CFR 270.22e-4], under the Investment Company Act of 1940 [15 
U.S.C. 80a-1 et seq.] (``Investment Company Act'' or ``Act''); 
amendments to Form N-1A [referenced in 17 CFR 274.11A] under the 
Investment Company Act and the Securities Act of 1933 (``Securities 
Act'') [15 U.S.C. 77a et seq.]; amendments to Article 6 [17 CFR 210.6-
01 et seq.] of Regulation S-X [17 CFR 210]; and amendments to proposed 
Form N-PORT [referenced in 17 CFR 274.150] and proposed Form N-CEN 
[referenced in 17 CFR 274.101] under the Investment Company Act.\1\
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    \1\ Unless otherwise noted, all references to statutory sections 
are to the Investment Company Act, and all references to rules under 
the Investment Company Act will be to Title 17, Part 270 of the Code 
of Federal Regulations [17 CFR 270].
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Table of Contents

I. Introduction
II. Background
    A. Open-End Funds
    B. The Role of Liquidity in Open-End Funds
    1. Introduction
    2. Liquidity Management by Open-End Funds
    C. Recent Developments in the Open-End Fund Industry
    1. Fixed Income Funds and Alternative Funds
    2. Evolution of Settlement Periods and Redemption Practices
    D. Current Regulatory Framework
    1. Statutory and Regulatory Requirements
    2. 15% Guideline
    3. Overview of Current Practices
    E. Rulemaking Proposal Overview
III. Discussion
    A. Program Requirements and Scope of Proposed Rule 22e-4
    1. Proposed Program Elements
    2. Scope of Proposed Rule 22e-4 and Related Disclosure and 
Reporting Requirements
    3. Request for Comment
    B. Classifying the Liquidity of a Fund's Portfolio Positions 
Under Proposed Rule 22e-4
    1. Proposed Relative Liquidity Classification Categories
    2. Factors to Consider in Classifying the Liquidity of a 
Portfolio Position

[[Page 62275]]

    3. Ongoing Review of the Liquidity of a Fund's Portfolio 
Positions
    C. Assessing and Managing a Fund's Liquidity Risk
    1. Assessing a Fund's Liquidity Risk
    2. Periodic Review of a Fund's Liquidity Risk
    3. Portfolio Liquidity: Minimum Investments in Three-Day Liquid 
Assets
    4. Portfolio Liquidity: Limitation on Funds' Investments in 15% 
Standard Assets
    5. Policies and Procedures Regarding Redemptions in Kind
    6. Discussion of Additional Liquidity Risk Management Tools
    7. Cross-Trades
    D. Board Approval and Designation of Program Administrative 
Responsibilities
    1. Initial Approval of Liquidity Risk Management Program
    2. Approval of Material Changes to Liquidity Risk Management 
Program and Oversight of the Three-Day Liquid Asset Minimum
    3. Designation of Administrative Responsibilities to Fund 
Investment Adviser or Officers
    4. Request for Comment
    E. Liquidity Risk Management Program Recordkeeping Requirements
    F. Swing Pricing
    1. Proposed Rule 22c-1(a)(3)
    2. Guidance on Operational Considerations Relating to Swing 
Pricing
    3. Master-Feeder Funds
    4. Financial Statement Disclosure Regarding Swing Pricing
    G. Disclosure and Reporting Requirements Regarding Liquidity 
Risk and Liquidity Risk Management
    1. Proposed Amendments to Form N-1A
    2. Proposed Amendments to Proposed Form N-PORT
    3. Proposed Amendments to Proposed Form N-CEN
    H. Compliance Dates
    1. Liquidity Risk Management Program
    2. Swing Pricing
    3. Amendments to Form N-1A
    4. Amendments to Form N-PORT
    5. Amendments to Form N-CEN
    6. Request for Comment
IV. Economic Analysis
    A. Introduction and Primary Goals of Proposed Regulation
    B. Economic Baseline
    1. Funds' Current Practices Regarding Liquidity Risk Management, 
Swing Pricing, and Liquidity Risk Disclosure
    2. Economic Trends Regarding Funds' Liquidity and Liquidity Risk 
Management
    3. Fund Industry Developments Highlighting the Importance of 
Funds' Liquidity Risk Management
    C. Benefits and Costs, and Effects on Efficiency, Competition, 
and Capital Formation
    1. Proposed Rule 22e-4
    2. Swing Pricing
    3. Disclosure and Reporting Requirements Regarding Liquidity 
Risk and Liquidity Risk Management
    D. Request for Comment
V. Paperwork Reduction Act Analysis
    A. Introduction
    B. Rule 22e-4
    C. Rule 22c-1
    D. Rule 31a-2
    E. Form N-PORT
    F. Form N-CEN
    G. Form N-1A
    H. Request for Comments
VI. Initial Regulatory Flexibility Act Analysis
    A. Reasons for and Objectives of the Proposed Actions
    B. Legal Basis
    C. Small Entities Subject to the Proposed Liquidity Regulations
    D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    1. Proposed Rule 22e-4
    2. Swing Pricing
    3. Disclosure and Reporting Requirements Regarding Liquidity 
Risk and Liquidity Risk Management
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    G. General Request for Comment
VII. Consideration of Impact on the Economy
VIII. Statutory Authority and Text of Proposed Amendments
Text of Rules and Forms

I. Introduction

    Daily redeemability is a defining feature of open-end management 
investment companies (``open-end funds'' or ``funds'') such as mutual 
funds.\2\ As millions of Americans have come to rely on open-end funds 
as an investment vehicle of choice, the role of fund liquidity 
management in reducing the risk that a fund will be unable to meet its 
obligations to redeeming shareholders while also minimizing the impact 
of those redemptions on the fund (i.e., mitigating investor dilution) 
is becoming more important than ever. The U.S. fund industry has 
experienced significant growth in the last 20 years,\3\ markets have 
grown more complex, and funds pursue more complex investment 
strategies, including fixed income and alternative investment 
strategies that are focused on less liquid asset classes. Yet, it has 
been over twenty years since we have provided guidance regarding the 
liquidity of open-end funds other than money market funds.\4\
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    \2\ An open-end fund is required by law to redeem its securities 
on demand from shareholders at a price approximating their 
proportionate share of the fund's net asset value at the time of 
redemption. Section 22(d) of the Act prohibits a dealer from selling 
a redeemable security that is being offered to the public by or 
through an underwriter other than at a current public offering price 
described in the fund's prospectus. Rule 22c-1 under the Act 
requires open-end funds, their principal underwriters, and dealers 
in fund shares (and certain others) to sell and redeem fund shares 
at a price determined at least daily based on the current net asset 
value next computed after receipt of an order to buy or redeem. 
Together, these provisions require that fund shareholders be treated 
equitably when buying and selling their fund shares. While a money 
market fund is an open-end management investment company, money 
market funds generally are not subject to the amendments we are 
proposing (except certain amendments to proposed Form N-CEN) and 
thus are not included when we refer to ``funds'' or ``open-end 
funds'' in this release except where specified. The term ``mutual 
fund'' is not defined in the 1940 Act.
    \3\ As of the end of 2014, there were 8,734 open-end funds 
(excluding money market funds, but including ETFs), as compared to 
2,960 at the end of 1992. See Investment Company Institute, 2015 
Investment Company Fact Book (2015), available at http://www.ici.org/pdf/2015_factbook.pdf (``2015 ICI Fact Book''), at 177 
and 184.
    \4\ Revisions of Guidelines to Form N-1A, Investment Company Act 
Release No. 18612 (Mar. 12, 1992) [57 FR 9828 (Mar. 20, 1992)] 
(``Guidelines Release'').
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    We remain committed, as the primary regulator of open-end funds, to 
designing regulatory programs that respond to the risks associated with 
the increasingly complex portfolio composition and operations of the 
asset management industry. Commission staff engaged with large and 
small fund complexes to better understand funds' management of 
liquidity risk. Through these outreach efforts our staff has learned 
that, while some funds and their managers have developed comprehensive 
liquidity risk management programs, others have dedicated significantly 
fewer resources to managing liquidity risk in a formalized way. We 
believe proposing to address these variations in practices is 
appropriate and that it is in the interest of funds and fund investors 
to create a regulatory framework that would reduce the risk that a fund 
will be unable to meet its redemption obligations and minimize dilution 
of shareholder interests by promoting stronger and more effective 
liquidity risk management across open-end funds.
    We are proposing a set of comprehensive reforms that would provide 
for: (i) Liquidity risk management standards that address issues 
arising from modern portfolio construction; (ii) a new pricing method 
that, if funds choose to use it, could better allocate costs to 
shareholders entering or exiting the fund; and (iii) fuller disclosure 
of information regarding the liquidity of fund portfolios and how funds 
manage liquidity risk and redemption obligations. To accomplish this, 
first, we are proposing new rule 22e-4 under the Act, which would 
require funds to establish liquidity risk management programs. Under 
the proposed rule, the principal components of a liquidity risk 
management program would include a fund's classification and monitoring 
of each portfolio asset's level of liquidity, as well as designation of 
a minimum amount of portfolio liquidity, which funds would tailor to 
their particular

[[Page 62276]]

circumstances after consideration of a set of market-related factors 
established by the Commission.
    Second, in order to provide funds with an additional tool to 
mitigate potential dilution and to manage fund liquidity, we are 
proposing amendments to rule 22c-1 under the Act to permit funds 
(except money market funds and ETFs) to use ``swing pricing,'' a 
process of adjusting the net asset value of a fund's shares to pass on 
to purchasing or redeeming shareholders more of the costs associated 
with their trading activity. Lastly, in order to give investors, market 
participants, and Commission staff improved information on fund 
liquidity and redemption practices, we are proposing amendments to our 
disclosure requirements and recently proposed data reporting forms. We 
discuss these proposals as well as why liquidity management is so vital 
to investors in open-end funds and the developments that have led us to 
this proposal further below. Taken together, these reforms are designed 
to provide investors with increased protections regarding how liquidity 
in their open-end funds is managed, thereby reducing the risk that 
funds will be unable to meet redemption obligations and mitigating 
dilution of the interests of fund shareholders. These reforms are also 
intended to give investors better information with which to make 
investment decisions, and to give the Commission better information 
with which to conduct comprehensive monitoring and oversight of an 
ever-evolving fund industry.

II. Background

A. Open-End Funds

    Over the past few decades, investors increasingly have come to rely 
on investments in open-end funds to meet their financial needs and 
access the capital markets. Individuals invest in these funds for a 
variety of reasons, from investing for retirement and their children's 
college education to providing a source of financial security for 
emergencies and other lifetime events. Institutions also invest 
significantly in open-end funds as part of basic or sophisticated 
trading and hedging strategies or to manage cash flows.
    There are currently two kinds of open-end funds: Mutual funds and 
ETFs.\5\ At the end of 2014, 53.2 million households, or 43.3 percent 
of all U.S. households owned mutual funds.\6\ Mutual funds allow 
investors to pool their investments with those of other investors so 
that they may together benefit from fund features such as professional 
investment management, diversification, and liquidity. Fund 
shareholders share the gains and losses of the fund, and also share its 
costs. Investors in mutual funds can redeem their shares on each 
business day and, by law, must receive their pro rata share of the 
fund's net assets (or its cash value) within seven calendar days after 
delivery of a redemption notice.\7\
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    \5\ ETFs registered with the Commission are organized either as 
open-end management investment companies or unit investment trusts. 
See section 4(2) of the Act (defining ``unit investment trust'' as 
an investment company which (i) is organized under a trust 
indenture, contract of custodianship or agency, or similar 
instrument, (ii) does not have a board of directors, and (iii) 
issues only redeemable securities, each of which represents an 
undivided interest in a unit of specified securities, but does not 
include a voting trust). Most ETFs are organized as open-end 
management investment companies and, except where specified, when we 
refer to ETFs in this release, we are referring to ETFs that are 
organized as open-end management investment companies.
    \6\ See 2015 ICI Fact Book, supra note 3, at 114.
    \7\ See section 2(a)(32) of the Act (defining a ``redeemable 
security'' as any security, other than short-term paper, that 
entitles its holder to receive approximately his proportionate share 
of the issuer's current net assets, or the cash equivalent thereof), 
and section 22(e) of the Act (providing, in part, that no open-end 
fund shall suspend the right of redemption, or postpone the date of 
payment upon redemption of any redeemable security in accordance 
with its terms for more than seven days after tender of the security 
absent specified unusual circumstances).
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    ETFs also offer investors an undivided interest in a pool of 
assets. Since 2003, the number of ETFs traded in U.S. markets has 
increased by more than 1,200 funds, and the assets held by ETFs have 
increased from $151 billion at the end of 2003 to $1.9 trillion at the 
end of 2014.\8\ ETF shares, similar to stocks, are bought and sold 
throughout the day by investors on an exchange through a broker-
dealer.\9\ In addition, like mutual funds, ETFs provide redemption 
rights on a daily basis, but, pursuant to exemptive orders, such 
redemption rights may only be exercised by certain large market 
participants--typically broker-dealers--called ``authorized 
participants.'' Authorized participants may purchase and redeem ETF 
shares at the ETF's net asset value per share (``NAV'') from the 
ETF.\10\ When an authorized participant transacts with an ETF to 
purchase and sell ETF shares, these share transactions are structured 
in large blocks called ``creation units.'' Most ETFs are structured so 
that an authorized participant will purchase a creation unit with a 
``portfolio deposit,'' which is a basket of assets (and sometimes cash) 
that generally reflects the composition of the ETF's portfolio.\11\ The 
ETF makes public the contents of the portfolio deposit before the 
beginning of the trading day.\12\ After purchasing a creation unit, an 
authorized participant may hold the ETF shares or sell (or lend) some 
or all of them to investors in the secondary market.
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    \8\ See 2015 ICI Fact Book, supra note 3, at 60.
    \9\ See Exchange-Traded Funds, Investment Company Act Release 
No. 28193 (Mar. 11, 2008) [73 FR 14618 (Mar. 18, 2008)] (``ETF 
Proposing Release'').
    \10\ Authorized participants purchase ETF shares at the ETF's 
NAV through the ETF's underwriter or other service provider.
    \11\ See Request for Comment on Exchange-Traded Products, 
Securities Exchange Act Release No. 75165 (June 12, 2015) [80 FR 
34729 (June 17, 2015)] (``2015 ETP Request for Comment''), at n.19 
and accompanying text.
    \12\ See id. at n.20 and accompanying text.
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    Similarly, for most ETFs, when an authorized participant wishes to 
redeem ETF shares, it presents a creation unit of ETF shares to the ETF 
for redemption and receives in return a ``redemption basket,'' the 
contents of which are made public by the ETF before the beginning of 
the trading day. The redemption basket (which is usually, but not 
always, the same as the portfolio deposit) typically consists of 
securities and a small amount of cash.\13\ In addition, while less 
common, some ETFs represent to the Commission that they ordinarily 
intend to conduct all purchase and redemption transactions with 
authorized participants in cash instead of an in-kind basket of assets, 
and all ETFs reserve the right to transact with authorized participants 
in cash. The ability of these authorized participants to purchase and 
redeem creation units at each day's NAV enables authorized participants 
(or market makers that trade through authorized participants) to 
exercise arbitrage opportunities that are generally expected to have 
the effect of keeping the market price of ETF shares at or close to the 
NAV of the ETF.\14\
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    \13\ See id. at n.21 and accompanying text.
    \14\ For example, if ETF shares begin trading on national 
securities exchanges at a price below the ETF's NAV, authorized 
participants can purchase ETF shares in secondary market 
transactions and, after accumulating enough shares to comprise a 
creation unit, redeem them from the ETF in exchange for the more 
valuable securities in the ETF's redemption basket. Those purchases 
create greater market demand for the ETF shares, and thus tend to 
drive up the market price of the shares to a level closer to NAV. 
Conversely, and again by way of example, if the market price for ETF 
shares exceeds the NAV of the ETF itself, an authorized participant 
can deposit a basket of securities in exchange for the more valuable 
creation unit of ETF shares, and then sell the individual shares in 
the market to realize its profit. These sales would increase the 
supply of ETF shares in the secondary market, and thus tend to drive 
down the price of the ETF shares to a level closer to the NAV of the 
ETF share. In each case, the authorized participant (or its market 
maker customer) may hedge its exposure to cover the risk from the 
time the arbitrage opportunity is exercised through the time it can 
deliver shares or assets to the ETF, at which time it will unwind 
its hedge. See ETF Proposing Release, supra note 9, at nn.25-30 and 
accompanying text; see also 2015 ETP Request for Comment, supra note 
11, at section I.C.2.

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[[Page 62277]]

    Recently, the Commission has also approved exchange-traded managed 
funds (``ETMFs'').\15\ ETMFs are a hybrid between a traditional mutual 
fund and an ETF. Like ETFs, ETMFs would have shares listed and traded 
on a national securities exchange; directly issue and redeem shares in 
creation units only; impose fees on creation units issued and redeemed 
to authorized participants to offset the related costs to the ETMFs; 
and primarily utilize in-kind transfers of portfolio deposits in 
issuing and redeeming creation units. Like mutual funds, ETMFs would be 
bought and sold at prices linked to NAV and would seek to maintain the 
confidentiality of their current portfolio positions. While no ETMF has 
been launched yet, the proposed rule and amendments (except the 
proposed amendments to rule 22c-1) would also apply to ETMFs to the 
same extent as to other open-end funds whose shares are redeemable on a 
daily basis.
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    \15\ See Eaton Vance Management, et al., Investment Company Act 
Release Nos. 31333 (Nov. 6, 2014) (notice) (``ETMF Notice'') and 
31361 (Dec. 2, 2014) (order). For the purposes of the proposed 
amendments to rule 22c-1, the definition of ``exchange-traded fund'' 
shall include ETMFs.
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    Open-end funds are an attractive investment option for many 
different types of investors because they provide diversification, 
economies of scale, and professional management. They also facilitate 
retail investors' access to certain investment strategies or markets 
that might be difficult (if not impossible) or time consuming for 
investors to replicate on their own.\16\ Additionally, open-end funds 
have become a popular investment vehicle because they may provide a 
cost-efficient way for investors to track a benchmark index or 
strategy.\17\
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    \16\ For example, many retail investors would have difficulty 
investing in certain foreign and emerging market securities given 
local requirements for purchasing and holding such securities. In 
addition, some securities may only be sold in large blocks that 
retail investors would be unlikely to be able to purchase. Many 
retail investors also may not have the expertise to construct 
investment strategies followed by, for example, alternative funds on 
their own. See also Notice Seeking Comment on Asset Management 
Products and Activities, Docket No. FSOC-2014-0001 (``FSOC 
Notice''); Comment Letter of the Asset Management Group of SIFMA and 
the Investment Adviser Association on the FSOC Notice (Mar. 25, 
2015) (``SIFMA IAA FSOC Notice Comment Letter''), at 12 (``Pooled 
funds provide many individual investors exposure to asset classes 
that they could not reach without investing collectively.''); 
Comment Letter of the Investment Company Institute on the FSOC 
Notice (Mar. 25, 2015) (``ICI FSOC Notice Comment Letter''), at 11 
(``The vast majority of [mutual fund] investors would be unable to 
replicate such investment exposure by directly holding securities 
themselves.'').
    \17\ See e.g., Rick Ferri, Index Funds Gain Momentum (Part 1 of 
2), FORBES (July 29, 2013), available at http://www.forbes.com/sites/rickferri/2013/07/29/index-funds-gain-momentum-part-1-of-2/ 
(discussing the growth of passively managed index funds and ETFs 
that follow indexes).
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B. The Role of Liquidity in Open-End Funds

1. Introduction
    A hallmark of open-end funds is that they must be able to convert 
some portion of their portfolio holdings into cash on a frequent basis 
because they issue redeemable securities,\18\ and are required by 
section 22(e) of the Investment Company Act to make payment to 
shareholders for securities tendered for redemption within seven days 
of their tender.\19\ As a practical matter, many investors expect to 
receive redemption proceeds in less than seven days as some mutual 
funds disclose in their prospectuses that they will generally pay 
redemption proceeds on a next-business day basis.\20\ Furthermore, 
open-end funds that are redeemed through broker-dealers must meet 
redemption requests within three business days because broker-dealers 
are subject to rule 15c6-1 under the Securities Exchange Act of 1934 
(the ``Exchange Act''), which establishes a three-day (T+3) settlement 
period for security trades effected by a broker or a dealer.\21\ Given 
the statutory and regulatory requirements for meeting redemption 
requests, as well as any disclosure made to investors regarding payment 
of redemption proceeds, a mutual fund must adequately manage the 
liquidity of its portfolio so that redemption requests can be satisfied 
in a timely manner.\22\
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    \18\ See sections 5(a)(1) and 2(a)(32) of the Act. All other 
management companies are closed-end (``closed-end funds''). Closed-
end fund shareholders do not have redemption rights and closed-end 
funds are usually traded on secondary markets, either on exchanges 
or over the counter, at prices that may be at a premium or a 
discount to the fund's NAV.
    \19\ Section 22(e) of the Act provides, in part, that no 
registered investment company shall suspend the right of redemption 
or postpone the date of payment upon redemption of any redeemable 
security in accordance with its terms for more than seven days after 
tender of the security absent specified unusual circumstances.
    \20\ See Comment Letter of Fidelity Investments on the FSOC 
Notice (Mar. 25, 2015) (``Fidelity FSOC Notice Comment Letter''), at 
6 (``mutual funds normally process redemption requests by the next 
business day''); see also ICI FSOC Notice Comment Letter, supra note 
16, at 17 (``For example, a mutual fund has by law up to seven days 
to pay proceeds to redeeming investors, although as a matter of 
practice funds typically pay proceeds within one to two days of a 
redemption request.'').
    \21\ 17 CFR 240.15c6-1. In a 1995 staff no-action letter, the 
Division of Investment Management expressed the view that because 
rule 15c6-1 under the Exchange Act applies to broker-dealers and 
does not apply directly to funds, the implementation of T+3 pursuant 
to rule 15c6-1 did not change the standards for determining 
liquidity, which were based on the requirements of section 22(e) of 
the Investment Company Act. The Division noted, however, that as a 
practical matter, many funds have to meet redemption requests within 
three business days because a broker-dealer is often involved in the 
redemption process. See Letter from Jack W. Murphy, Associate 
Director and Chief Counsel, Division of Investment Management, SEC, 
to Paul Schott Stevens, General Counsel, Investment Company 
Institute (May 26, 1995), available at http://www.sec.gov/divisions/investment/noaction/1995/ici052695.pdf, (``May 1995 Staff No-Action 
Letter''); see also Fidelity FSOC Notice Comment Letter, supra note 
20, at 6 (``As a practical matter, three-day settlement requirements 
under Exchange Act Rule 15c6-1 . . . effectively take most fund 
investments to a T+3 settlement timeline.'').
    \22\ See ICI FSOC Notice Comment Letter, supra note 16, at 6-7 
(``Daily redeemability is a defining feature of mutual funds. This 
means that liquidity management is not only a regulatory compliance 
matter, but also a major element of investment risk management, an 
intrinsic part of portfolio management, and a constant area of focus 
for fund managers.'').
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    Sufficient liquidity of ETF portfolio positions also is important. 
ETFs typically make in-kind redemptions of creation units, which can 
mitigate liquidity concerns for ETFs compared to mutual funds, if the 
in-kind redemptions are of a representative basket of the ETF's 
portfolio assets that do not alter the ETF's liquidity profile.\23\ 
However, transferring illiquid instruments to the redeeming authorized 
participants could result in a liquidity cost to the authorized 
participant or any of its clients, which would then be reflected in the 
bid-ask spread and ultimately impact investors. Moreover, declining 
liquidity in an ETF's basket assets could affect the ability of an 
authorized participant or any of its clients to readily assemble the 
basket for purchases of creation units and to sell securities received 
upon redemption of creation units.\24\
---------------------------------------------------------------------------

    \23\ ETFs have some discretion in determining their basket 
composition. See, e.g., New York Alaska ETF Management LLC, et al., 
Investment Company Act Release Nos. 31667 (June 12, 2015) (notice) 
and 31709 (July 8, 2015) (order).
    \24\ ETF Proposing Release, supra note 9 at section III.A.1. But 
see, e.g., Shelly Antoniewicz, Investment Company Institute, Plenty 
of Players Provide Liquidity for ETFs (Dec. 2, 2014), available at 
http://www.ici.org/viewpoints/view_14_ft_etf_liquidity 
(``Antoniewicz'') (stating that most of the trading activity in bond 
ETF shares is done in the secondary market and not through creations 
and redemptions with authorized participants).
---------------------------------------------------------------------------

    In addition, a significant amount of illiquid securities in an 
ETF's portfolio can make arbitrage opportunities more difficult to 
evaluate because it would be difficult for market makers to price, 
trade, and hedge their exposure to, the

[[Page 62278]]

ETF.\25\ The effective functioning of this arbitrage mechanism has been 
pivotal to the operation of ETFs and to the Commission's approval of 
exemptions that allow their operation.\26\ The liquidity of the ETF's 
portfolio positions is a factor that contributes to the effective 
functioning of the ETF's arbitrage mechanism and the ETF shares trading 
at a price that is at or close to the NAV of the ETF.\27\
---------------------------------------------------------------------------

    \25\ See Comment Letter of the Investment Company Institute on 
Exchange-Traded Funds, File No. S7-07-08 (May 19, 2008) (discussing 
the impact of the inclusion of illiquid assets in an ETF's 
portfolio). See also Comment Letter of The American Stock Exchange 
LLC on the Concept Release: Actively Managed Exchange-Traded Funds, 
File No. S7-20-01 (Mar. 5, 2002) (``Ultimately it is in the interest 
of the sponsor and investment adviser to provide for effective 
arbitrage opportunities. It is unlikely that an . . . ETF sponsor 
would be able to convince the critical market participants such as 
specialists, market makers, arbitragers and other Authorized 
Participants to support a product that contained illiquid securities 
to a degree that would affect the liquidity of the ETF, making it 
difficult to price, trade and hedge, ultimately leading to its 
failure in the marketplace.'').
    \26\ ETFs exist today only through exemptive orders issued by 
the Commission providing relief from a number of provisions of the 
Investment Company Act, including the requirement that they sell and 
redeem their individual shares at NAV.
    \27\ See 2015 ETP Request for Comment, supra note 11, at n.102 
and accompanying text (requesting comment on the trading of 
exchange-traded product securities that invest in less liquid assets 
and the effective functioning of the arbitrage mechanism in these 
products). See, e.g., Comment Letter of BlackRock, Inc. on the 2015 
ETP Request for Comment (Aug. 11, 2015) (discussing the arbitrage 
mechanism with respect to less liquid assets); Comment Letter of KCG 
Holdings, Inc. on the 2015 ETP Request for Comment (Aug. 17, 2015) 
(``While ETF pricing closely tracks NAV for most ETFs, certain types 
of ETFs exhibit less close alignment between ETF prices and NAV. . . 
Price discovery difficulties in the bond market makes it much more 
difficult and expensive to perform arbitrage in bond ETFs, and this 
difficultly may be exacerbated during stressed market 
environments.''); Comment Letter of State Street Global Advisors on 
the 2015 ETP Request for Comment (Aug. 17, 2015) (discussing the 
arbitrage mechanism with respect to fixed-income based ETFs).
---------------------------------------------------------------------------

    If authorized participants are unwilling or unable to trade ETF 
shares in the primary market, and the majority of trading takes place 
among investors in the secondary market, the ETF's shares may trade at 
a significant premium or a discount to the value of the ETF's 
underlying portfolio securities.\28\ As a result, the ETF's arbitrage 
mechanism that keeps the secondary price at or close to NAV would not 
function effectively. In a period of significant decline in market 
liquidity, this could cause the ETF, in effect, to function more like a 
closed-end investment company, potentially frustrating the expectations 
of secondary market investors.\29\ In addition, all ETFs permit 
authorized participants to redeem in cash, rather than in kind, and 
some ETFs ordinarily redeem authorized participants in cash. ETFs that 
elect to redeem authorized participants in cash, like mutual funds, 
would need to ensure that they have adequate portfolio liquidity (in 
conjunction with any other liquidity sources) to meet shareholder 
redemptions.\30\
---------------------------------------------------------------------------

    \28\ See, e.g., Bradley Hope et al., Stock-Market Tumult Exposes 
Flaws in Modern Markets, The Wall Street Journal (Aug. 25, 2015), 
available at http://www.wsj.com/articles/stock-market-tumult-exposes-flaws-in-modern-markets-1440547138 (noting that ``[d]ozens 
of ETFs traded at sharp discounts'' to NAV during a market sell-off, 
``leading to outsize losses for investors who entered sell orders at 
the depth of the panic''). We recognize that not all changes in 
market liquidity can lead to such extreme results. In many cases of 
day-to-day price volatility and fluctuations in liquidity, market 
participants will simply demand greater compensation for purchasing 
less liquid or more volatile assets. However, declining liquidity 
can become so acute that market makers and investors begin to 
refrain from conducting transactions. See, e.g., Carrie Driebusch et 
al., The Problem with ETFs, The Wall Street Journal (Sept. 14, 2015) 
(stating that the ``trading turmoil of Aug. 24 disrupted the 
arbitrage activity in which traders buy and sell ETFs and their 
components to take advantage of price discrepancies.'').
    \29\ See, e.g., Matthew Tucker & Stephen Laipply, ``Fixed Income 
ETFs and the Corporate Bond Liquidity Challenge'' (2014), available 
at http://www.ishares.com/us/literature/brochure/blackrock-ish-fixed-income-etfs-wp-prd-814.pdf, at 9 (``It should be noted that, 
although fixed income ETFs have created an incremental source of 
bond market liquidity for investors, the ETF structure itself 
remains dependent on the liquidity of the underlying bond market. 
ETFs serve as efficient risk transfer vehicles because the value at 
which they trade is reflective of the value of the underlying bonds 
held within the ETF. If a true and actionable value discrepancy 
between the ETF and its underlying bond portfolio develops, market 
participants can trade one versus the other to take advantage of the 
arbitrage opportunity. This mechanism is premised upon a functioning 
OTC bond market that can be accessed to buy and sell the underlying 
securities. Ultimately, if the underlying bond market liquidity 
becomes impaired then the ETF creation/redemption process would 
become impaired as well. In such a scenario the ETF would continue 
to provide price discovery, but would mechanically begin to function 
more like a closed-end fund (which is unable to grow or shrink in 
size in order to balance supply and demand). While ETFs provide 
liquidity enhancement for the bond market, they remain structurally 
dependent upon the same market.'').
     Market stresses have demonstrated how declines in market 
liquidity may cause an ETF's shares to trade at a significant 
premium or discount to the shares of the ETF's underlying portfolio 
assets. See, e.g., Eleanor Laise, Risks Lurk for ETF Investors, The 
Wall Street Journal (Feb. 1, 2010), available at http://www.wsj.com/articles/SB10001424052748703837004575012772071656484 (``A lack of 
liquidity also may cause the ETF to trade at a large premium or 
discount to net asset value. . . . This means an investor buying the 
fund may overpay for that portfolio, or an investor selling could 
get less than that basket of securities is worth.''); Bradley Kay, 
Has the ETF Arbitrage Mechanism Failed?, Morningstar (Mar. 11, 
2009), available at http://news.morningstar.com/articlenet/article.aspx?id=283302 (stating that during periods of market 
stress, market prices for ETFs may deviate significantly from NAV); 
ETF Trends, While Athens Exchange is Closed, the Greece ETF Show 
Goes On (July 6, 2015), available at http://www.etftrends.com/2015/07/while-athens-exchange-is-closed-the-greece-etf-show-goes-on/ 
(reporting that the Global X FTSE Greece 20 ETF was trading at a 
significant discount compared to the net asset value of its 
underlying portfolio assets because of the closure of the Athens 
Stock Exchange); ETF Trends, China A-Shares ETFs Trading at Steep 
Discount to NAV (July 9, 2015), available at http://www.etftrends.com/2015/07/china-a-shares-etfs-trading-at-steep-discount-to-nav/ (reporting that U.S.-listed China A-shares ETFs 
were trading at a steep discount to the underlying market because of 
the fact that a significant number of companies stopped trading on 
China's mainland stock exchanges).
    \30\ When an ETF does permit an authorized participant to redeem 
in cash, it typically requires the authorized participant to pay a 
fee covering the costs of the liquidity it receives. See BlackRock, 
Viewpoint, Fund Structures as Systemic Risk Mitigants (Sept. 2014), 
available at http://www.blackrock.com/corporate/en-us/literature/whitepaper/viewpoint-fund-structures-as-systemic-risk-mitigants-september-2014.pdf (``BlackRock Fund Structures Paper''), at 7.
---------------------------------------------------------------------------

    As noted above, ETMFs have features of both mutual funds and ETFs. 
As ETMFs would redeem their shares on a daily basis from authorized 
participants, the ETMF would need to hold sufficiently liquid assets to 
meet such redemptions to the extent that authorized participants redeem 
in cash. Like ETFs, however, the ETMF's ability to make in-kind 
redemptions could mitigate liquidity concerns.\31\ Further, as ETMF 
market makers would not engage in the same arbitrage as ETF market 
makers,\32\ the liquidity of an ETMF's portfolio might have a limited 
relevance beyond the ETMF's ability to meet redemptions.
---------------------------------------------------------------------------

    \31\ However, an ETMF's transferring illiquid instruments to the 
redeeming authorized participants would likely affect the premium/
discount over NAV at which ETMF shares trade. See ETMF Notice, supra 
note 15, at n.17.
    \32\ ETMF market makers would assume no intraday market risk in 
their ETMF share inventory positions because all trading prices are 
linked to NAV. See id. at paragraphs 13 and 24.
---------------------------------------------------------------------------

2. Liquidity Management by Open-End Funds
    Portfolio managers consider a variety of factors in addition to 
liquidity when constructing a fund's portfolio, including the fund's 
investment strategies, economic and market trends, portfolio asset 
credit quality, and tax considerations. Nevertheless, meeting daily 
redemption obligations is fundamental for open-end funds, and funds 
must manage liquidity in order to meet these obligations.\33\ Several 
factors influence how liquidity management by open-end funds affects 
the equitable treatment of investors in a fund, investor incentives, 
and potentially the orderly operation of the markets when fulfilling 
redemption obligations.
---------------------------------------------------------------------------

    \33\ See supra note 2.

---------------------------------------------------------------------------

[[Page 62279]]

    First, it is important to consider how a mutual fund (or ETF 
redeeming shares by using significant amounts of cash) meets 
redemptions. When a fund receives redemption requests from 
shareholders, and the fund does not have cash on hand to meet those 
redemptions,\34\ the fund has discretion to determine whether to sell 
portfolio assets to generate cash to meet the redemptions and which 
assets will be sold, or to obtain cash by other available means such as 
bank lines of credit.\35\ A fund may choose to sell its most liquid 
assets first. This method of selling is limited to some degree by the 
investment strategies of the fund, and a fund pursuing this method of 
meeting redemptions to any significant degree may in the near term need 
to rebalance its portfolio so that the fund continues to follow its 
investment strategies.\36\ A fund that chooses to sell its most liquid 
assets to meet fund redemptions may minimize the effect of the 
redemptions on short-term fund performance for redeeming and remaining 
shareholders, but may leave remaining shareholders in a potentially 
less liquid and riskier fund until the fund rebalances.\37\ In contrast 
to meeting redemptions by selling its most liquid assets first, a fund 
alternatively could choose to meet redemptions by selling, to the best 
of its ability, a ``strip'' of the fund's portfolio (i.e., a cross-
section or representative selection of the fund's portfolio 
assets).\38\ Funds also could choose to meet redemptions by selling a 
range of assets in between its most liquid, on one end of the spectrum, 
and a perfect pro rata strip of assets, on the other end of the 
spectrum. Additionally, funds could choose to opportunistically pare 
back or eliminate holdings in a particular asset or sector to meet 
redemptions. As discussed further in section IV.B.2, analysis conducted 
by staff in the Division of Economic and Risk Analysis (the ``DERA 
Study'' \39\) suggests that the typical U.S. equity fund appears to 
sell relatively more liquid assets (as opposed to a strip of the fund's 
portfolio) to meet redemptions, and that as a fund's liquidity 
decreases, a fund will become even more likely to sell its relatively 
more liquid assets (rather than a strip of its portfolio) to meet 
redemptions (thus resulting in decreased liquidity in the fund's 
portfolio).
---------------------------------------------------------------------------

    \34\ A fund can have cash on hand to meet redemptions from cash 
held in the fund's portfolio, cash received from investor purchases 
of fund shares, interest payments and dividends on portfolio 
securities, or maturing bonds. See, e.g., Fidelity FSOC Notice 
Comment Letter, supra note 20, at n.17 (``[S]ecurities do not need 
to be sold every time a redemption order is placed. Sale of fund 
assets is necessary only when gross redemptions significantly exceed 
net inflows.'').
    \35\ See, e.g., id., at 21 (``When facing stressed markets and 
shareholder redemptions, a portfolio manager must decide whether to: 
(i) maintain current portfolio composition and sell a cross section 
of holdings; (ii) meet redemptions with cash and/or index futures if 
held, with the result being increased concentrations in non-cash 
positions; or (iii) reposition a portfolio's composition by selling 
a mixture of holdings and cash and/or index futures, thereby 
realigning holdings in response to shifting market prices and 
expectations.'').
     A fund could also use a line of credit to meet redemptions 
instead of selling assets, but using a line of credit leverages the 
fund, and thus many funds only do so infrequently. See infra section 
III.C.5.a (discussing the extent to which drawing on a credit line 
to meet redemptions could result in negative impacts on the fund, 
and providing guidance on borrowing arrangements entered into by 
funds); see also Fidelity FSOC Notice Comment Letter, supra note 20, 
at 21 (``Fully substituting cash liquidation for security sales is a 
very short-term strategy if redemptions are persistent.''); Comment 
Letter of Invesco Ltd. on the FSOC Notice (Mar. 25, 2015) (``Invesco 
FSOC Notice Comment Letter''), at 10 (stating that Invesco portfolio 
managers do not automatically sell the most liquid assets when there 
is a need to raise cash for redemptions or other purposes and that 
they may seek to rebalance portfolios in falling markets in a manner 
that cushions the impact of redemptions). But see infra note 371 
(noting that other funds rely on lines of credit more frequently).
     A fund also may reserve the right to redeem its shares in kind 
instead of in cash. However, there are often logistical issues 
associated with paying in-kind redemptions, which limit the 
availability of in-kind redemptions under many circumstances. See 
infra section III.C.5.c.
    \36\ Some mutual funds disclose that they may temporarily depart 
from their investment strategies in order to take a ``temporary 
defensive position'' to avoid losses in response to adverse market, 
economic, political or other conditions. See Investment Company 
Names, Investment Company Act Release No. 24828 (Jan. 17, 2001) [66 
FR 8509 (Feb. 1, 2001)] (``Investment Company Names Rule Release'').
    \37\ See, e.g., Matt Wirz, Waddell Fund's Sales Leave Investors 
With Riskier Securities, The Wall Street Journal (June 16, 2015), 
available at http://www.wsj.com/articles/waddell-funds-sales-leave-investors-with-riskier-securities-1434482621 (noting that from July 
2014 through June 2015, a high-yield bond fund experienced heavy 
redemptions that caused its net assets to shrink 33% in this period, 
and during this same period, the fund's holdings of bonds rated 
triple-C or below grew to 47% of assets, from 35% before the 
redemptions).
    \38\ There are practical limitations on a fund's ability to sell 
a pro rata slice of its portfolio, such as minimum trade sizes, 
transfer restrictions, illiquid assets, tax complications from 
certain sales, and avoidance of odd lot positions.
    \39\ Paul Hanouna, Jon Novak, Tim Riley, Christof Stahel, 
``Liquidity and Flows of U.S. Mutual Funds,'' Division of Economic 
and Risk Analysis White Paper, September 2015, available at http://wcm.sec.gov/dera/staff-papers/white-papers/liquidity-white-paper-09-2015.pdf.
---------------------------------------------------------------------------

    Second, the effect of redemptions on shareholders is determined by 
how and when those redemptions affect the price of the fund's shares. 
Under rule 22c-1, all investors who redeem from an open-end fund on any 
particular day must receive the NAV next calculated by the fund after 
receipt of such redemption request.\40\ As most funds, with the 
exception of money market funds, only calculate their NAV once a day, 
this means that redemption requests received during the day receive the 
end of day NAV, typically calculated as of 4 p.m. Eastern time.\41\ 
When calculating a fund's NAV, however, rule 2a-4 requires funds to 
reflect changes in holdings of portfolio securities and changes in the 
number of outstanding shares resulting from distributions, redemptions, 
and repurchases no later than the first business day following the 
trade date.\42\ We allow this calculation method to provide funds with 
additional time and flexibility to incorporate last-minute portfolio 
transactions into their NAV calculations on the business day following 
the trade date, rather than the trade date.\43\ As a practical matter, 
this calculation method also gives broker-dealers, retirement plan 
administrators, and other intermediaries additional time to process 
transactions received by 4 p.m. on the trade date, which then may be 
reflected in the fund's NAV on the business day following the trade 
date. Given that under many circumstances reflecting these changes on 
the trade date would not materially affect the fund's price, we have 
allowed and continue to allow such changes to be reflected no later 
than the first business day following the trade date.
---------------------------------------------------------------------------

    \40\ Rule 22c-1(a). See also supra note 2.
    \41\ Commission rules do not require that a fund calculate its 
NAV at a specific time of day. Rule 22c-1 generally requires that 
the purchase and redemption of a redeemable security be effected at 
the current NAV next computed after receipt of a purchase or 
redemption request. See rule 22c-1(a). Current NAV must be computed 
at least once daily, subject to limited exceptions, Monday through 
Friday, at the specific time or times set by the board of directors. 
See rule 22c-1(b)(1).
    \42\ Rule 2a-4(a)(2)-(3).
    \43\ See Adoption of Rule 2a-4 Defining the Term ``Current Net 
Asset Value'' in Reference to Redeemable Securities Issued by a 
Registered Investment Company, Investment Company Act Release No. 
4105 (Dec. 22, 1964) [29 FR 19100 (Dec. 30, 1964)].
---------------------------------------------------------------------------

    Nevertheless, we recognize that trading activity and other changes 
in portfolio holdings associated with meeting redemptions may occur 
over multiple business days following the redemption request. Such 
activities associated with meeting redemptions may include, for 
example, selling assets and, if the fund's most liquid assets are sold 
to meet redemptions, rebalancing the portfolio to avoid departing from 
the fund's investment strategies. If these activities occur (and their 
associated costs are incurred) in days following redemption requests, 
the costs of providing liquidity to redeeming investors could be borne 
at least partially by the remaining investors in the fund, thus 
potentially diluting the

[[Page 62280]]

interests of non-redeeming shareholders.\44\ The less liquid the fund's 
portfolio holdings, the greater these liquidity costs can become.\45\
---------------------------------------------------------------------------

    \44\ See, e.g., Comment Letter of Mutual Fund Directors Forum on 
the FSOC Notice (Mar. 25, 2015), at 5 (stating that ``there could be 
severe outlier situations in which sudden and extensive redemptions 
might impose costs on non-redeeming shareholders, either because of 
increases in transaction costs associated with selling portfolio 
securities in stressful circumstances or because portfolio managers 
are forced to sell securities into falling markets at a price less 
than what they believe the security's fundamental value to be.''). 
We note that ETFs either conduct redemptions with authorized 
participants in kind or, if in cash, typically require the 
authorized participant to pay a fee covering the costs of the 
liquidity it receives. See supra note 30 and accompanying text. 
Accordingly, ETFs do not necessarily create the same dilution 
concerns as mutual funds.
    \45\ See Comment Letter of Nuveen Investments on the FSOC Notice 
(Mar. 25, 2015) (``Nuveen FSOC Notice Comment Letter''), at 10 
(stating that ``to the extent that the prices of portfolio 
securities do not reflect the most current market conditions, which 
is more likely to occur with less liquid asset classes in stressed 
markets, a fund with net redemptions may be paying more to redeeming 
shareholders than it should (giving such redeemers a `first mover 
advantage'), thereby harming remaining shareholders and the long-
term performance of the fund'' but noting that there is no evidence 
that shareholders are actually motivated by this advantage); Comment 
Letter of Occupy the SEC on the FSOC Notice (Mar. 25, 2015) 
(``Occupy the SEC FSOC Notice Comment Letter''), at 13 (stating that 
many funds that hold securities traded over-the-counter cannot 
observe market prices so they base their NAVs on price estimates and 
that these ``estimates are surely lagging, particularly in turbulent 
times'').
---------------------------------------------------------------------------

    Thus, with respect to redemptions, there can be significant adverse 
consequences to remaining investors in a fund when it fails to 
adequately manage liquidity.\46\ For example, portfolio assets held by 
a fund can become increasingly illiquid as its more liquid portfolio 
assets are sold to meet redemptions and thus could have a compounding 
effect of causing the fund's entire portfolio to become increasingly 
illiquid for purposes of meeting future shareholder redemptions, which 
could adversely affect the fund's risk profile.\47\ Furthermore, if a 
fund finds that it can only sell portfolio assets (or portions of a 
position in a particular asset) that are less liquid at prices that 
incorporate a significant discount from fair value, the discounted sale 
price can materially affect the fund's NAV.\48\
---------------------------------------------------------------------------

    \46\ See, e.g., Jason Greene & Charles Hodges, The Dilution 
Impact of Daily Fund Flows on Open-end Mutual Funds, 65 J. of Fin. 
Econ. 131 (2002) (``Greene & Hodges'') (``Active trading of open-end 
funds has a meaningful economic impact on the returns of passive, 
nontrading shareholders, particularly in U.S.-based international 
funds. The overall sample of domestic equity funds shows no dilution 
impact, but we find an annualized negative impact of 0.48% in 
international funds (and nearly 1% for a subsample of funds whose 
daily flows are particularly large).'').
    \47\ See, e.g., In re Heartland Advisors, Inc., et al., 
Investment Company Act Release No. 28136 (Jan. 25, 2008) 
(``Heartland Release'') (settled enforcement action against advisory 
firm alleging that certain high-yield bond funds experienced 
liquidity problems (caused in part by adviser's unwillingness to 
sell bond holdings at prices below which the funds had valued them) 
and, as a result, the funds borrowed heavily against a line of 
credit to meet fund redemption requests, and investors redeemed fund 
shares at prices that benefited redeeming shareholders at the 
expense of remaining and new investors).
    \48\ Id.
---------------------------------------------------------------------------

    These factors in fund redemptions--either individually or in 
combination--can create incentives in times of liquidity stress in the 
markets for early redemptions (or a ``first-mover advantage'').\49\ If 
investor redemptions are motivated by this first-mover advantage,\50\ 
they can lead to increasing levels of redemptions, and as the level of 
outflows from a fund increases, the incentive to redeem also 
increases.\51\ Regardless of whether investor redemptions are motivated 
by a first-mover advantage or other factors, there can be significant 
adverse consequences to remaining investors in a fund when it fails to 
adequately manage liquidity.\52\ This underlines the importance of fund 
liquidity management for advancing investor protection by reducing the 
risk that a fund would be unable to meet redemption obligations without 
materially affecting the fund's NAV.\53\
---------------------------------------------------------------------------

    \49\ See, e.g., Qi Chen, Itay Goldstein & Wei Jiang, Payoff 
Complementarities and Financial Fragility: Evidence from Mutual Fund 
Outflows, 97 J. Fin. Econ. 239 (2010), at 240 (``Because mutual 
funds conduct most of the resulting trades after the day of 
redemption, most of the costs are not reflected in the NAV paid out 
to redeeming investors, but rather are borne by the remaining 
investors. This leads to strategic complementarities--the 
expectation that other investors will withdraw their money reduces 
the expected return for staying in the fund and increases the 
incentive for each individual investor to withdraw as well--and 
amplifies the damage to the fund.''); Comment Letter of State Street 
Corporation on the FSOC Notice (Mar. 25, 2015), at 3 (``Anticipation 
of other investors' activity could be a powerful motivator for 
selling units by a fund holder, particularly if the structure of the 
fund was such that continuing investors were concerned in some way 
of being disadvantaged by earlier generations of exiting 
investors.''). But see Fidelity FSOC Notice Comment Letter, supra 
note 20, at 9-10 (stating that there are several limitations in the 
Chen, Goldstein, & Jiang academic paper, including that its analysis 
excluded retirement shares, analyzed only equity and not bond funds, 
and did not examine recent data (it examined data from 1995 to 
2005); Nuveen FSOC Notice Comment Letter, supra note 45, at 10 
(stating that there is no evidence that shareholders are actually 
motivated by a first-mover advantage). We also note that any first-
mover advantage may be further mitigated in ETFs to the extent that 
they conduct in-kind redemptions of authorized participants or 
charge liquidity fees for cash redemptions. See supra note 30 and 
accompanying text.
    \50\ See, e.g., Comment Letter of BlackRock on the FSOC Notice 
(Mar. 25, 2015) (``BlackRock FSOC Notice Comment Letter''), at 17 
(stating that although incentives to redeem may exist, this does not 
necessarily imply that investors will in fact redeem en masse in 
times of market stress, but also noting that a well-structured fund 
``should seek to avoid features that could create a `first-mover 
advantage' in which one investor has an incentive to leave'' before 
others); Comment Letter of Association of Institutional Investors on 
the FSOC Notice (Mar. 25, 2015) (``AII FSOC Notice Comment 
Letter''), at 10-11 (``The empirical evidence of historical 
redemption activity, even during times of market stress, supports 
the view that either (i) there are not `incentives to redeem' that 
are sufficient to overcome the asset owner's asset allocation 
decision or (ii) that there are disincentives, such as not 
triggering a taxable event, that outweigh the hypothesized 
`incentives to redeem.' ''); Comment Letter of The Capital Group 
Companies on the FSOC Notice (Mar. 25, 2015), at 8 (``We also do not 
believe that the mutualization of fund trading costs creates any 
first mover advantage.''); ICI FSOC Notice Comment Letter, supra 
note 16, at 7 (``Investor behavior provides evidence that any 
mutualized trading costs must not be sufficiently large to drive 
investor flows. We consistently observe that investor outflows are 
modest and investors continue to purchase shares in most funds even 
during periods of market stress.'').
    \51\ See, e.g., Joshua Coval & Erik Stafford, Asset Fire Sales 
(and Purchases) in Equity Markets, 86 J. Fin. Econ. 479 (2007) 
(``Coval & Stafford'') (``Funds experiencing large outflows tend to 
decrease existing positions, which creates price pressure in the 
securities held in common by distressed funds. Similarly, the 
tendency among funds experiencing large inflows to expand existing 
positions creates positive price pressure in overlapping holdings. 
Investors who trade against constrained mutual funds earn 
significant returns for providing liquidity. In addition, future 
flow-driven transactions are predictable, creating an incentive to 
front-run the anticipated forced trades by funds experiencing 
extreme capital flows.''); Teodor Dyakov & Marno Verbeek, Front-
Running of Mutual Fund Fire-Sales, 37 J. of Bank. and Fin. 4931 
(2013) (``Dyakov & Verbeek'') (``We show that a real-time trading 
strategy which front-runs the anticipated forced sales by mutual 
funds experiencing extreme capital outflows generates an alpha of 
0.5% per month during the 1990-2010 period . . . Our results suggest 
that publicly available information of fund flows and holdings 
exposes mutual funds in distress to predatory trading.''). See infra 
notes 805-809 and accompanying text for a discussion of predatory 
trading concerns.
    \52\ See, e.g., Greene & Hodges, supra note 46.
    \53\ See, e.g., Fidelity FSOC Notice Comment Letter, supra note 
20, at 18 (``Managing liquidity levels to fulfill [a fund adviser's] 
fiduciary obligations benefits [redeeming and remaining] 
shareholders as well as the broader financial markets.'').
---------------------------------------------------------------------------

    There also is a potential for adverse effects on the markets when 
open-end funds fail to adequately manage liquidity. For example, if 
liquid asset levels are insufficient to meet redemptions, funds may 
sell less-liquid portfolio assets at discounted or even fire sale 
prices. These sales can produce significant negative price pressure on 
those assets and correlated assets. Accordingly, redemptions and funds' 
liquidity risk management can affect not just the remaining investors 
in the fund, but any other investors holding these assets. Such 
liquidity stress on the assets held in the fund may transmit

[[Page 62281]]

stress to other funds or portions of the market as well.\54\
---------------------------------------------------------------------------

    \54\ See, e.g., Francis A. Longstaff, The Subprime Credit Crisis 
and Contagion in Financial Markets, 97 J. Fin. Econ. No. 3 436 
(2010) (finding that financial contagion during the financial crisis 
from the subprime asset-backed securities market was propagated to 
other markets primarily through liquidity and risk-premium channels, 
rather than through a correlated-information channel); U.S. 
Presidential Task Force on Market Mechanisms & U.S. Dept. of the 
Treasury, Report of the Presidential Task Force on Market Mechanisms 
(Jan. 1988), available at https://archive.org/details/reportofpresiden01unit (``1987 Market Crash Report''), at III-16--
III-26, IV-1--IV-8 (discussing mutual fund selling behavior during 
the October 1987 stock market crash, and in particular the selling 
of three mutual fund companies, whose heavy selling of assets to 
meet significant redemptions ``accounted for approximately one 
quarter of all trading on the NYSE for the first 30 minutes that the 
Exchange was open'' on October 19, 1987 and that such selling had 
``a significant impact on the downward direction of the market'').
---------------------------------------------------------------------------

    In December 2014, the Financial Stability Oversight Council 
(``FSOC'') issued a notice seeking public comment on the potential 
risks to the U.S. financial system that may be posed by asset 
management products and activities in the areas of liquidity and 
redemptions among others.\55\ Although our rulemaking proposal is 
independent of FSOC, several commenters responding to the FSOC notice 
discussed issues concerning liquidity and redemptions, and we have 
considered and cited to the relevant comments throughout the 
release.\56\ As the primary regulator of the U.S. securities markets, 
we are proposing rules today that focus on mitigating the adverse 
effects that liquidity risk in funds can have on investors and the 
fair, efficient and orderly operation of the markets. To the extent 
there are any potential financial stability risks from poor fund 
liquidity management,\57\ our proposal may mitigate those risks as 
well.
---------------------------------------------------------------------------

    \55\ FSOC Notice, supra note 16.
    \56\ Comments submitted in response to the FSOC Notice are 
available at http://www.regulations.gov/#!docketDetail;D=FSOC-2014-
0001.
    \57\ See, e.g., Itay Goldstein, Hao Jiang & David T. Ng, 
Investor Flows and Fragility in Corporate Bond Funds, unpublished 
working paper (June 25, 2015), available at http://
finance.wharton.upenn.edu/~itayg/Files/bondfunds.pdf (finding that 
``corporate bond funds tend to have more concave flow-performance 
relationships when they have more illiquid assets and when the 
overall market illiquidity is high'' and that these results ``point 
to the possibility of fragility'').
---------------------------------------------------------------------------

C. Recent Developments in the Open-End Fund Industry

    Recent industry developments have underlined our focus on the 
importance of liquidity risk management practices in open-end funds. 
These developments include significant growth in assets of, and 
shareholder inflows into, open-end funds with fixed income strategies 
and alternative strategies since 2008 and the evolution of settlement 
periods and redemption practices utilized by open-end funds. While 
mutual funds holding U.S. equities continue to make up the largest 
category of funds in terms of fund assets, their share of the total 
industry assets has declined from 65.2% in 2000 to 44.5% in 2014.\58\ 
Assets of foreign bond and foreign equity funds have grown during the 
same period from 11% to 17.4%,\59\ and there has been significant 
growth in fixed income and alternative strategy funds, as discussed 
below.
---------------------------------------------------------------------------

    \58\ DERA Study, supra note 39, at Table 2.
    \59\ Id.
---------------------------------------------------------------------------

1. Fixed Income Funds and Alternative Funds
    We have observed significant growth in cash flows into, and assets 
of, fixed income mutual funds and fixed income ETFs. Assets in these 
funds grew from $1.5 trillion at the end of 2008 to $3.5 trillion at 
the end of 2014, with net inflows exceeding $1.3 trillion during that 
period.\60\ As growth in fixed income fund assets was occurring, we 
increased our focus on fixed income market structure, holding a 
roundtable focused on the fixed income markets in 2013 and publishing a 
report on the municipal securities markets in 2012.\61\ In addition, 
both Commissioners and Commission staff have spoken about the need to 
focus on potential risks relating to the fixed income markets and their 
underlying liquidity.\62\ Commission staff also has focused on the 
nature of liquidity risk management in fixed income funds, including by 
selecting fixed income funds as an examination priority in 2014 and 
2015.\63\
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    \60\ These figures were obtained from staff analysis of 
Morningstar Direct data, and are based on fund categories defined by 
Morningstar.
    \61\ See Transcript, Roundtable on Fixed Income Markets (Apr. 
16, 2013), available at https://www.sec.gov/spotlight/fixed-income-markets/2013-04-16-fixed-income-markets-transcript.txt (discussing, 
among other topics, liquidity characteristics and risks in the 
municipal bond and corporate bond markets); Report on the Municipal 
Securities Market (July 31, 2012), available at https://www.sec.gov/news/studies/2012/munireport073112.pdf (discussing, among other 
topics, the low liquidity, opacity and fragmentation of the 
municipal securities market).
    \62\ See, e.g., Chair Mary Jo White, Speech, Intermediation in 
the Modern Securities Markets: Putting Technology and Competition to 
Work for Investors, (June 20, 2014), available at http://www.sec.gov/News/Speech/Detail/Speech/1370542122012; Commissioner 
Luis A. Aguilar, Speech, Advocating for Investors Saving for 
Retirement, (Feb. 5, 2015), available at http://www.sec.gov/news/speech/advocating-for-investors-saving-for-retirement.html; 
Commissioner Daniel M. Gallagher, Speech, A Watched Pot Never Boils: 
the Need for SEC Supervision of Fixed Income Liquidity, Market 
Structure, and Pension Accounting, (Mar. 10, 2015), available at 
http://www.sec.gov/news/speech/031015-spch-cdmg.html and Remarks 
Regarding the Fixed Income Markets at the Conference on Financial 
Markets Quality, (Sept. 19, 2012), available at http://www.sec.gov/News/Speech/Detail/Speech/1365171491192; Commissioner Michael S. 
Piwowar, Speech, Remarks at the 2014 Municipal Finance Conference 
presented by The Bond Buyer and Brandeis International Business 
School, (Aug. 1, 2014), available at http://www.sec.gov/News/Speech/Detail/Speech/1370542588006; Commissioner Kara M. Stein, Speech, 
Mutual Funds--The Next 75 Years, (June 15, 2015), available at 
http://www.sec.gov/news/speech/mutual-funds-the-next-75-years-stein.html; Norm Champ, former Director of the Division of 
Investment Management, Speech, Remarks to the ICI 2014 Securities 
Law Developments Conference, (Dec. 10, 2014), available at http://www.sec.gov/News/Speech/Detail/Speech/1370543675348; IM Guidance 
Update No. 2014-01, Risk Management in Changing Fixed Income Market 
Conditions (Jan. 2014), available at http://www.sec.gov/divisions/investment/guidance/im-guidance-2014-1.pdf (``2014 Fixed Income 
Guidance Update'').
    \63\ See, e.g., 2014 Fixed Income Guidance Update, supra note 
62; Office of Compliance Inspections and Examinations, National Exam 
Program 2015 Examination Priorities, available at http://www.sec.gov/about/offices/ocie/national-examination-program-priorities-2015.pdf (``National Exam Program 2015 Examination 
Priorities'') (``With interest rates expected to rise at some point 
in the future, we will review whether mutual funds with significant 
exposure to interest rate increases have implemented compliance 
policies and procedures and investment and trading controls 
sufficient to ensure that their funds' disclosures are not 
misleading and that their investments and liquidity profiles are 
consistent with those disclosures.''); Office of Compliance 
Inspections and Examinations, National Exam Program 2014 Examination 
Priorities, available at http://www.sec.gov/about/offices/ocie/national-examination-program-priorities-2014.pdf (``The staff will 
monitor the risks associated with a changing interest rate 
environment and the impact this may have on bond funds and related 
disclosures of risks to investors.'').
---------------------------------------------------------------------------

    We also have observed recent growth in alternative mutual funds. 
Since 2005, the assets of open-end funds with alternative strategies 
have grown significantly, from approximately $365 million at the end of 
2005 to approximately $334 billion at the end of 2014.\64\ Although the 
assets of open-end funds pursuing alternative strategies accounted for 
a relatively small percentage (approximately 3%) of the mutual fund 
market as of December 2014, the growth of assets in these funds has 
been substantial, with asset growth of approximately 58% each year from

[[Page 62282]]

the end of 2011 to the end of 2014.\65\ While growth in alternative 
mutual funds and ETFs has slowed over the past year, a rising interest 
rate environment could cause inflows to these funds to increase once 
again, as investors look to reduce their interest rate risk and/or 
increase income by investing in alternative strategies.\66\
---------------------------------------------------------------------------

    \64\ DERA Study, supra note 39, at pp. 7-8. While there is no 
clear definition of ``alternative'' in the mutual fund space, an 
alternative mutual fund is generally understood to be a fund whose 
primary investment strategy falls into one or more of the three 
following buckets: (i) non-traditional asset classes (for example, 
currencies or managed futures funds), (ii) non-traditional 
strategies (such as long/short equity, event driven), and/or (iii) 
less liquid assets (such as private debt). Their investment 
strategies often seek to produce positive risk-adjusted returns that 
are not closely correlated to traditional investments or benchmarks, 
in contrast to traditional mutual funds that historically have 
pursued long-only strategies in traditional asset classes.
    \65\ Id.
    \66\ See, e.g., Brian Haskin, Flows to Liquid Alts Drop in 
December, End 2014 Up 10%, DailyAlts.com, (Feb. 16, 2015), available 
at http://dailyalts.com/flows-liquid-alts-drop-december-end-2014-10 
(``Going into 2014, investors held the view that interest rates 
would rise and, thus, they looked to reduce interest rate risk and/
or increase income with the more flexible non-traditional bond 
funds. This all came to a halt as interest rates actually declined 
and flows to the category nearly dried up in the second half. This 
also impacted market neutral strategies which are often used as a 
substitute for fixed income portfolios.'').
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    Unlike alternative mutual funds and ETFs, private funds (such as 
hedge funds and private equity funds) pursuing similar alternative 
strategies can invest in portfolio assets that are relatively illiquid 
without generating the same degree of redemption risk for the fund 
because investor redemption rights are often limited.\67\ In addition, 
investor expectations of private funds' redemption rights differ from 
the redemption expectations of typical retail investors in open-end 
funds. For example, investors in private equity funds typically commit 
their capital for the life of the fund.\68\ Hedge funds often contain 
``lock-up'' provisions (in which an investor only can redeem after a 
specified period of time has elapsed since its initial investment), 
typically impose limitations on the frequency of redemptions (e.g., 
allowing redemptions only once a quarter or once a year), and require 
advance notice periods for redemptions.\69\ They also are often able to 
impose gates, suspensions of redemptions, and side pockets to manage 
liquidity stress. As a result these funds can, and often do, restrict 
investor redemption rights as the liquidity of the funds' portfolio 
assets declines. Data reported on Form PF show that at December 31, 
2014, only 16.5% of qualifying hedge funds allowed investors to 
withdraw any of their investment in seven days or less and for almost 
60% of reporting qualifying hedge funds, the liquidity of the fund's 
portfolio was greater than the withdrawal rights provided to investors 
for all time frames reported on the form.\70\ As of that date, 88% of 
qualifying hedge funds may suspend investor withdrawals and 62% may 
impose gates on investor withdrawals.\71\
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    \67\ A private fund is an issuer that would be an investment 
company, as defined in section 3 of the Investment Company Act, but 
for the exclusion from the definition of ``investment company'' in 
section 3(c)(1) or 3(c)(7) of the Act. Section 202(a)(29) of the 
Investment Advisers Act of 1940 (the ``Investment Advisers Act'').
    \68\ See Comment Letter of Private Equity Growth Capital Council 
on the FSOC Notice (Mar. 25, 2015).
    \69\ See Comment Letter of Managed Funds Association on the FSOC 
Notice (Mar. 25, 2015).
    \70\ Based on data reported in response to questions 32 and 50 
of Form PF. Reports filed on Form PF are submitted by advisers 
registered with the Commission with at least $150 million in private 
fund assets under management. For a definition of which funds are 
treated as ``qualifying hedge funds'' for purposes of Form PF that 
must complete these questions, see General Instructions to Form PF, 
available at http://www.sec.gov/about/forms/formpf.pdf.
    \71\ Based on data reported in response to question 49 of Form 
PF.
---------------------------------------------------------------------------

    In contrast, alternative strategy mutual funds and ETFs have no 
such ability to tailor investor redemption rights based on the 
liquidity profile of the funds' portfolios. Yet some of these funds 
seek to pursue similar investment strategies as hedge funds and other 
private funds, while still being bound by the redemption obligations 
applicable to open-end funds. Accordingly, our staff has been focused 
on the liquidity of alternative strategy mutual funds and ETFs, the 
nature of liquidity and redemption risks faced by investors in these 
funds given their legal right to be paid the proceeds of any redemption 
request within seven days.\72\ The findings in the DERA Study have lent 
further support to our focus on liquidity risk management practices in 
this industry segment, as the study found that alternative strategy 
mutual funds had cash flows that were significantly more volatile than 
other strategies, indicating that these funds may face higher levels of 
redemption risk. Volatility in flows places additional importance on 
liquidity risk management to prevent some of the consequences from a 
failure to adequately manage liquidity discussed in section II.B.2 
above. The proposed rule and rule amendments build off of many of the 
observations we and our staff have made through efforts examining the 
growth in funds and ETFs with fixed income strategies and alternative 
strategies that are discussed below.
---------------------------------------------------------------------------

    \72\ Norm Champ, former Director of the Division of Investment 
Management, Speech, Remarks to the Practicing Law Institute, Private 
Equity Forum, (June 30, 2014), available at http://www.sec.gov/News/Speech/Detail/Speech/1370542253660. (noting that alternative mutual 
funds should consider setting criteria for assessing the liquidity 
of a security and consider including those criteria in written 
policies and procedures for registered fund compliance programs 
under rule 38a-1 under the Act); National Exam Program 2015 
Examination Priorities, supra note 63 (``We will continue to assess 
funds offering alternative investments and using alternative 
investment strategies, with a particular focus on: (i) leverage, 
liquidity, and valuation policies and practices; (ii) factors 
relevant to the adequacy of the funds' internal controls, including 
staffing, funding, and empowerment of boards, compliance personnel, 
and back-offices; and (iii) the manner in which such funds are 
marketed to investors.'').
---------------------------------------------------------------------------

 2. Evolution of Settlement Periods and Redemption Practices
    Practices relating to securities trade settlement periods and the 
timing of the payment of redemption proceeds to investors also have 
evolved considerably over the decades since the Commission last 
addressed liquidity needs in open-end funds.\73\ Prior to the adoption 
of rule 15c6-1 under the Exchange Act in 1993, which established three 
business days (T+3) as the standard settlement timeframe for broker-
dealer trades, there was no federal rule that mandated a specific 
settlement cycle for securities transactions.\74\ Before the adoption 
of rule 15c6-1, trades settled on a T+5 basis based on industry 
practice, and the decline in the securities trading settlement period 
from T+5 to T+3 prompted funds that were sold through broker-dealers to 
satisfy redemption requests within three business days.\75\ In recent 
years, market participants have explored the possibility of further 
reducing this T+3 settlement period.\76\

[[Page 62283]]

We also have observed that some open-end funds disclose in their 
prospectuses that they generally will satisfy redemption requests in 
even shorter periods of time than T+3, including on a next-business-day 
basis.\77\
---------------------------------------------------------------------------

    \73\ See, e.g., Invesco FSOC Notice Comment Letter, supra note 
35, at 14 (noting that it ``was not long ago that equity securities 
settled on a T+7 basis rather than today's T+3 standard and 
initiatives are underway to shorten that time to T+2'').
    \74\ See Securities Transactions Settlement, Exchange Act 
Release No. 33023 (Oct. 6, 1993) [58 FR 52891 (Oct. 13, 1993)] 
(``Securities Transactions Settlement Release'') (adopting rule 
15c6-1 under the Exchange Act).
    \75\ See May 1995 Staff No-Action Letter, supra note 21 (noting 
that funds that are sold through brokers or dealers and that hold 
portfolio securities that do not settle within three business days 
``should assess the mix of their portfolio holdings to determine 
whether, under normal circumstances, they will be able to facilitate 
compliance with the T+3 standard by brokers and dealers,'' taking 
into account the ``percentage of the portfolio that would settle in 
three days or less, the level of cash reserves, and the availability 
of lines of credit or interfund lending facilities.'').
    \76\ See PricewaterhouseCoopers LLP (in conjunction with the 
Depositary Trust Clearing Corporation (``DTCC'') Industry Steering 
Committee), Shortening the Settlement Cycle: The Move to T+2 (2015), 
available at http://www.ust2.com/pdfs/ssc.pdf; DTCC, DTCC Recommends 
Shortening the U.S. Trade Settlement Cycle (Apr. 2014), available at 
http://www.dtcc.com/~/media/Files/Downloads/WhitePapers/T2-
Shortened-Cycle-WP.pdf; see also Recommendation of the Investor 
Advisory Committee: Shortening the Trade Settlement Cycle in U.S. 
Financial Markets (Feb. 12, 2015), available at https://www.sec.gov/spotlight/investor-advisory-committee-2012/settlement-cycle-recommendation-final.pdf. See also Letter from Mary Jo White, Chair, 
SEC, to Kenneth E. Bentsen, Jr., President & CEO, Securities 
Industry and Financial Markets Association, and Paul Schott Stevens, 
President & CEO, Investment Company Institute (Sept. 16, 2015), 
available at http://www.sec.gov/divisions/marketreg/chair-white-letter-to-sifma-ici-t2.pdf; Commissioner Luis A. Aguilar, Public 
Statement, The Benefits of Shortening the Securities Settlement 
Cycle, (July 16, 2015), available at http://www.sec.gov/news/statement/benefits-of-shortening-the-securities-settlement-cycle.html; Commissioner Michael S. Piwowar and Commissioner Kara M. 
Stein, Public Statement, Statement Regarding Proposals to Shorten 
the Trade Settlement Cycle, (June 29, 2015), available at http://www.sec.gov/news/statement/statement-on-proposals-to-shorten-the-trade-settlement-cycle.html.
    \77\ Disclosures by open-end funds are subject to the antifraud 
provisions of the federal securities laws. Therefore there may be 
liability under these provisions if a fund fails to meet redemptions 
within seven days or any shorter time disclosed in the fund's 
prospectus or advertising materials. See section 17(a) of the 
Securities Act, section 10(b) of the Exchange Act and rule 10b-5 
under the Exchange Act, and section 34(b) of the Exchange Act; see 
also Fidelity FSOC Notice Comment Letter, supra note 20, at 6 
(``mutual funds normally process redemption requests by the next 
business day''); Nuveen FSOC Notice Comment Letter, supra note 45, 
at 9 (noting settlement periods for trades of fund portfolio 
securities as a relevant factor in assessing liquidity risk, 
particularly with securities that ``do not trade with enforceable 
settlement rights and tend to settle over longer settlement periods 
than the T+1 or T+3 periods over which mutual fund share redemptions 
themselves settle'').
---------------------------------------------------------------------------

    While standard settlement periods for securities trades in the 
markets have tended to fall significantly over the last several 
decades--and investor expectations that redemption proceeds will be 
paid promptly after redemption requests have risen--settlement periods 
for other securities held in large amounts by certain funds have not 
fallen correspondingly. For example, some bank loan funds (an asset 
class that has grown in recent years) \78\ invest substantial amounts 
of their assets in bank loans and loan participations, which typically 
have long settlement times compared to other investments.\79\ Based on 
our review of fund filings, many funds that invest in these assets do 
not consider most of their portfolio holdings to be illiquid and 
generally represent in their disclosures that they comply with the 
Commission's current guidelines, which state that an open-end fund 
should invest no more than 15% of its net assets in ``illiquid'' 
assets.\80\ However, the settlement periods associated with some bank 
loans and loan participations may extend beyond the period of time the 
fund would be required to meet shareholder redemptions, creating a 
potential mismatch between the timing of the receipt of cash upon sale 
of these assets and the payment of cash for shareholder 
redemptions.\81\
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    \78\ Based on staff analysis of Morningstar Direct Data, net 
assets of bank loan mutual funds and ETFs grew from $14.6 billion in 
December 2008 to $123.5 billion in December 2014.
    \79\ See, e.g., BlackRock, Viewpoint, Who Owns the Assets? A 
Closer Look at Bank Loans, High Yield Bonds and Emerging Markets 
Debt (Sept. 2014) (``BlackRock, Viewpoint, Who Owns the Assets?''), 
available at https://www.blackrock.com/corporate/en-fi/literature/whitepaper/viewpoint-closer-look-selected-asset-classes-sept2014.pdf 
(``[T]he settlement periods for bank loans are longer than the 
settlement periods for fixed income securities such as high yield 
bonds, which typically settle in three days. This delayed settlement 
period may cause a potential liquidity mismatch for mutual funds 
offering daily liquidity, requiring fund managers to ensure that a 
fund has sufficient liquidity over settlement windows to meet 
potential redemptions.''); Comment Letter of OppenheimerFunds on the 
FSOC Notice (Mar. 25, 2015) (``OppenheimerFunds FSOC Notice Comment 
Letter'') at 3-4 (stating that ``loans still take longer to settle 
than other securities. Median settlement times for buy-side loan 
sales are 12 days'' and noting that an ``important tool in managing 
settlement times is the establishment of a credit line dedicated to 
bank loan funds.'').
    \80\ See infra note 92 and accompanying text. Under current 
Commission guidelines, a portfolio security or other asset is 
considered illiquid if it cannot be sold or disposed of (rather than 
settled) in the ordinary course of business within seven days at 
approximately the value at which the fund has valued the investment.
    \81\ Mutual funds and ETFs investing in foreign securities can 
also have such settlement mismatches. See, e.g., Investment Company 
Institute, Understanding Exchange-Traded Funds: How ETFs Work, 
(Sept. 2014), at n.34, available at https://www.ici.org/pdf/per20-05.pdf (noting that internationally focused ETFs generally require 
authorized participants to post collateral ``because the timing of 
clearing and settlement in another country may not coincide with the 
T+3 settlement cycle in the United States''). There has been 
significant growth in emerging market funds since the year 2000. See 
infra note 664 and accompanying text.
---------------------------------------------------------------------------

    Overall, the evolution of the market towards shorter settlement 
periods--and corresponding investor expectations--combined with open-
end funds holding certain securities with longer settlement periods 
have raised concerns for us about whether fund portfolios are 
sufficiently liquid to support a fund's ability to meet its redemption 
obligations.

D. Current Regulatory Framework

1. Statutory and Regulatory Requirements
    Section 22(e) of the Act provides that no open-end fund shall 
suspend the right of redemption or postpone the date of payment of 
redemption proceeds for more than seven days after tender of the 
security absent specified unusual circumstances.\82\ This statutory 
requirement was enacted ``in response to abusive practices of early 
open-end companies that claimed that their securities were redeemable, 
but then instituted barriers to redemption'' to prevent net redemptions 
or to prevent shareholders from switching to other funds.\83\ As 
previously discussed, in addition to the seven-day redemption 
requirement in section 22(e), rule 15c6-1 under the Exchange Act also 
impacts the timing of open-end fund redemptions because the rule 
requires broker-dealers to settle securities transactions, including 
transactions in open-end fund shares, within three business days after 
the trade date. Furthermore, rule 22c-1 under the Act, the ``forward 
pricing'' rule, requires funds, their principal underwriters, and 
dealers to sell and redeem fund shares at a price based on the current 
NAV next computed after receipt of an order to purchase or redeem fund 
shares, even though fund assets may be sold in subsequent days in order 
to meet redemption obligations.\84\ Thus, there

[[Page 62284]]

are a number of statutory and regulatory provisions that must be 
considered in assessing a fund's ability to meet redemptions and 
mitigate potential dilution of shareholders' interests.
---------------------------------------------------------------------------

    \82\ Section 22(e) permits open-end funds to suspend redemptions 
and postpone payment for redemptions already tendered for any period 
during which the New York Stock Exchange (``NYSE'') is closed (other 
than customary weekend and holiday closings) and in three additional 
situations if the Commission has made certain determinations. First, 
a fund may suspend redemptions for any period during which trading 
on the NYSE is restricted, as determined by the Commission. Second, 
a fund may suspend redemptions for any period during which an 
emergency exists, as determined by the Commission, as a result of 
which it is not reasonably practicable for the fund to: (i) 
liquidate its portfolio securities, or (ii) fairly determine the 
value of its net assets. Third, a fund may suspend redemptions for 
such other periods as the Commission may by order permit for the 
protection of fund shareholders. See also Letter from Douglas 
Scheidt, Associate Director and Chief Counsel, Division of 
Investment Management, SEC, to Craig S. Tyle, General Counsel, 
Investment Company Institute (Dec. 8, 1999) available at http://www.sec.gov/divisions/investment/guidance/tyle120899.htm, at n.2 and 
accompanying text. The Commission has rarely issued orders 
permitting the suspension of redemptions for periods of restricted 
trading or emergency circumstances but has done so on a few 
occasions. See, e.g., In the Matter of The Reserve Fund, on behalf 
of two of its series, the Primary Fund and the U.S. Government Fund, 
Investment Company Act Release No. 28386 (Sept. 22, 2008) [73 FR 
55572 (Sept. 25, 2008)]; see also, e.g., In the Matter of Municipal 
Lease Securities Fund, Inc., Investment Company Act Release No. 
17245 (Nov. 29, 1989). Money market funds are able to suspend 
redemptions in certain limited circumstances. See rule 22e-3 under 
the Act; see also infra note 155 and accompanying text.
    \83\ Periodic Repurchases by Closed-End Management Investment 
Companies; Redemptions by Open-End Management Investment Companies 
and Registered Separate Accounts at Periodic Intervals or with 
Extended Payment, Investment Company Act Release No. 18869 (July 28, 
1992) [57 FR 34701 (Aug. 6, 1992)] at nn.16-18 and accompanying text 
(``Interval Fund Proposing Release'') (citing Investment Trusts and 
Investment Companies: Hearings on S. 3580 before a Subcomm. of the 
Senate Comm. on Banking and Currency, 76th Cong., 3d Sess. 291-92 
(1940) (statement of David Schenker, Chief Counsel, SEC Investment 
Trust Study)).
    \84\ See supra notes 41-43 and accompanying text for a 
discussion of why this calculation method is permitted under rule 
22c-1 and rule 2a-4.
---------------------------------------------------------------------------

    With the exception of money market funds subject to rule 2a-7 under 
the Act, the Commission has not promulgated rules requiring open-end 
funds to invest in a minimum level of liquid assets.\85\ The Commission 
historically has taken the position that open-end funds should maintain 
a high degree of portfolio liquidity to ensure that their portfolio 
securities and other assets can be sold and the proceeds used to 
satisfy redemptions in a timely manner in order to comply with section 
22(e).\86\ The Commission also has stated that open-end funds have a 
``general responsibility to maintain a level of portfolio liquidity 
that is appropriate under the circumstances,'' and to engage in ongoing 
portfolio liquidity monitoring to determine whether an adequate level 
of portfolio liquidity is being maintained in light of the fund's 
redemption obligations.\87\ As noted in this guidance, a fund 
experiencing net outflows due to shifts in market sentiment may wish to 
consider reducing its illiquid asset holdings to maintain adequate 
liquidity.\88\ Similarly, a fund may need to determine whether it is 
appropriate to take certain actions when it has determined that a 
previously liquid holding has become illiquid due to changed 
circumstances.\89\
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    \85\ Under rule 2a-7, money market funds must maintain 
sufficient liquidity to meet reasonably foreseeable redemptions, 
generally must invest at least 10% of their portfolios in assets 
that can provide daily liquidity and at least 30% of their 
portfolios in assets that can provide weekly liquidity, and may not 
acquire any illiquid security if, immediately after the acquisition, 
the money market fund would have invested more than 5% of its total 
assets in illiquid securities. Rule 2a-7. Additionally, the 
Commission recently adopted amendments to rule 2a-7 that, among 
other things: (i) give boards of directors of money market funds 
discretion to impose a liquidity fee or temporarily suspend the 
right of redemption if a fund's weekly liquidity level falls below 
the required regulatory threshold; and (ii) require all non-
government money market funds to impose a liquidity fee if the 
fund's weekly liquidity level falls below a designated threshold of 
10%, unless the fund's board determines that imposing such a fee is 
not in the best interests of the fund. Money Market Fund Reform; 
Amendments to Form PF, Investment Company Act Release No. 31166 
(July 23, 2014) [79 FR 47736 (Aug. 14, 2014)] (``2014 Money Market 
Fund Reform Adopting Release'').
    \86\ Statement Regarding ``Restricted Securities,'' Investment 
Company Act Release No. 5847 (Oct. 21, 1969) [35 FR 19989 (Dec. 31, 
1970)] (``Restricted Securities Release'') (``Because open-end 
companies hold themselves out at all times as being prepared to meet 
redemptions within seven days, it is essential that such companies 
maintain a portfolio of investments that enable them to fulfill that 
obligation. This requires a high degree of liquidity in the assets 
of open-end companies because the extent of redemption demands or 
other exigencies are not always predictable.''); Resale of 
Restricted Securities; Changes to Method of Determining Holding 
Period of Restricted Securities Under Rules 144 and 145, Investment 
Company Act Release No. 17452 (Apr. 23, 1990) [55 FR 17933 (Apr. 30, 
1990)] (``Rule 144A Release'') (adopting rule 144A under the 
Securities Act).
    \87\ Guidelines Release, supra note 4, at section I (``[A] 
mutual fund must compute its net asset value each business day and 
give purchase and redemption orders the price next computed after 
receipt of an order. Moreover, most mutual funds allow shareholders 
easily to exchange their fund shares for shares of another mutual 
fund managed by the same investment adviser, in transactions which 
generally can include only nominal costs. Shareholders thus easily 
may move their money among equity, income, and money market funds as 
they choose, increasing the need for liquidity of mutual fund 
assets.''); see also Restricted Securities Release, supra note 86 
(discussing valuation difficulties that may be associated with 
restricted securities).
    \88\ Guidelines Release, supra note 4.
    \89\ Rule 144A Release, supra note 86, at n.61.
---------------------------------------------------------------------------

    Open-end funds also are required by rule 38a-1 under the Act to 
adopt and implement written policies and procedures reasonably designed 
to prevent violations of the federal securities laws. A fund's 
compliance policies and procedures should be appropriately tailored to 
reflect each fund's particular compliance risks.\90\ An open-end fund 
holding a significant portion of its assets in securities with long 
settlement periods or with infrequent trading, for instance, may be 
subject to relatively greater liquidity risks than other open-end 
funds, and should appropriately tailor its policies and procedures to 
comply with its redemption obligations.\91\
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    \90\ In the rule 38a-1 adopting release, the Commission stated 
that funds should adopt policies and procedures regarding the 
pricing of portfolio securities and fund shares. See Compliance 
Programs of Investment Companies and Investment Advisers, Investment 
Company Act Release No. 26299 (Dec. 17, 2003) [68 FR 74714 (Dec. 24, 
2003)] (``Rule 38a-1 Adopting Release'') (``These pricing 
requirements are critical to ensuring fund shares are purchased and 
redeemed at fair prices and that shareholder interests are not 
diluted.''). The Commission also identifies ``portfolio management 
processes'' as an issue that should be covered in the compliance 
policies and procedures of a fund or its adviser and indicates that 
each fund should tailor its policies and procedures to address the 
fund's particular compliance risks. See id., at n.82 (noting that 
the chief compliance officer's annual report should discuss the 
fund's particular compliance risks and any changes that were made to 
the policies and procedures to address newly identified risks).
    \91\ See supra note 81 and accompanying text.
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 2. 15% Guideline
    In addition to the Commission's historical statements regarding the 
importance of adequate liquidity in open-end fund portfolios pursuant 
to section 22(e) of the Act, long-standing Commission guidelines 
generally limit an open-end fund's aggregate holdings of ``illiquid 
assets'' to 15% of the fund's net assets (the ``15% guideline'').\92\ 
Under the 15% guideline, a portfolio security or other asset is 
considered illiquid if it cannot be sold or disposed of in the ordinary 
course of business within seven days at approximately the value at 
which the fund has valued the investment.\93\ The 15% guideline has 
generally caused funds to limit their exposures to particular types of 
securities that cannot be sold within seven days and that the 
Commission and staff have indicated may be illiquid, depending on the 
facts and circumstances, such as private equity securities, securities 
purchased in an initial public offering, and certain other privately 
placed or other restricted securities \94\ as well as certain

[[Page 62285]]

instruments or transactions not maturing in seven days or less, 
including term repurchase agreements.\95\ The Commission has not 
established a set of required factors that must be considered when 
assessing the liquidity of these or other types of securities, but 
rather has provided ``examples of factors that would be reasonable for 
a board of directors to take into account with respect to a rule 144A 
security (but which would not necessarily be determinative).'' \96\ 
These factors include: the frequency of trades and quotations for the 
security; the number of dealers willing to purchase or sell the 
security and the number of other potential purchasers; dealer 
undertakings to make a market in the security; and the nature of the 
security and the nature of the marketplace in which it trades, 
including the time needed to dispose of the security, the method of 
soliciting offers, and the mechanics of transfer.\97\
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    \92\ Guidelines Release, supra note 4, at section III. (``If an 
open-end company holds a material percentage of its assets in 
securities or other assets for which there is no established market, 
there may be a question concerning the ability of the fund to make 
payment within seven days of the date its shares are tendered for 
redemption. The usual limit on aggregate holdings by an open-end 
investment company of illiquid assets is 15% of its net assets. An 
illiquid asset is any asset which may not be sold or disposed of in 
the ordinary course of business within seven days at approximately 
the value at which the mutual fund has valued the investment.''). 
The Guidelines Release modified prior Commission guidance that set a 
10% limit on illiquid assets for open-end funds. See Restricted 
Securities Release, supra note 86.
     While the wording of the Guidelines Release limits holdings of 
illiquid assets above 15% of a fund's net assets, the Guidelines 
Release cites a prior Commission statement regarding the ``prudent 
limit on mutual fund holdings of illiquid securities'' that limits a 
fund from acquiring any illiquid asset if, immediately after such 
acquisition, the fund's holdings of illiquid assets would exceed a 
certain percentage of the fund's net assets. See Guidelines Release, 
supra note 4, at n.8 (citing Restricted Securities Release, supra 
note 86). The latter interpretation (that is, the interpretation 
that the 15% standard is a limit on the acquisition of illiquid 
assets, not a limit on the holdings of illiquid assets) is 
consistent with approaches that Congress and the Commission have 
historically taken in other parts of the Investment Company Act and 
the rules thereunder. See infra note 348.
    \93\ Guidelines Release, supra note 4; see also ETF Proposing 
Release, supra note 9; Valuation of Debt Instruments and Computation 
of Current Price Per Share by Certain Open-End Investment Companies 
(Money Market Funds), Investment Company Act Release No. 13380 (July 
11, 1983) [48 FR 32555 (July 18, 1983)]; Rule 144A Release, supra 
note 86.
    \94\ See Restricted Securities Release, supra note 86. 
Securities offered pursuant to rule 144A under the Securities Act 
may be considered liquid depending on certain factors. See Rule 144A 
Release, supra note 86. The Commission stated that ``determination 
of the liquidity of Rule 144A securities in the portfolio of an 
investment company issuing redeemable securities is a question of 
fact for the board of directors to determine, based upon the trading 
markets for the specific security'' and noted that the board should 
consider the unregistered nature of a rule 144A security as one of 
the factors it evaluates in determining its liquidity. Id. The 
Division of Investment Management has also stated that an open-end 
fund's board of directors may determine that an issue of commercial 
paper in reliance on section 4(a)(2) of the Securities Act is 
liquid, even if it may not be resold under rule 144A in certain 
circumstances. Merrill Lynch Money Markets Inc., SEC Staff No-Action 
Letter (Jan. 14, 1994).
    \95\ See Interval Fund Proposing Release, supra note 83.
    \96\ See Rule 144A Release, supra note 86.
    \97\ Id.
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3. Overview of Current Practices
    Over the last two years, Commission staff has had the occasion to 
observe through a variety of different events the current liquidity 
risk management practices at a cross-section of different fund 
complexes with varied investment strategies. The staff has observed 
that liquidity risk management techniques may vary across funds, 
including funds within the same fund complex, in light of unique fund 
characteristics, including, for example, the nature of a fund's 
investment objectives or strategies, the composition of the fund's 
investor base, and historical fund flows. These observations 
collectively have shown the staff that, even with various unique 
characteristics, many open-end funds and fund complexes have 
implemented procedures for assessing, classifying, and managing the 
liquidity of their portfolio assets.\98\
---------------------------------------------------------------------------

    \98\ There are varying degrees of formality in the adoption and 
implementation of these procedures.
---------------------------------------------------------------------------

    Specifically, some of the funds observed by the staff assess their 
ability to sell particular assets within various time periods 
(typically focusing on one-, three-, and/or seven-day periods).\99\ In 
conducting this analysis, these funds may take into account relevant 
market, trading, and other factors, and monitor whether their initial 
liquidity determination should be changed based on changed market 
conditions. This process helps open-end funds determine their ability 
to meet redemption requests in various market conditions within the 
disclosed period for payment of redemption proceeds.
---------------------------------------------------------------------------

    \99\ See 2014 Fixed Income Guidance Update, supra note 62 
(noting that fund advisers ``generally assess overall fund liquidity 
and funds' ability to meet potential redemptions over a number of 
periods'' and discussing certain steps that fund advisers may 
consider taking given potential fixed income market volatility); see 
also infra note 151 and accompanying text.
---------------------------------------------------------------------------

    Funds observed by the staff that have implemented procedures for 
assessing and classifying the liquidity of their portfolio assets also 
often have developed controls to manage fund portfolio liquidity risk 
and the risk of changing levels of shareholder redemptions, such as 
holding certain amounts of the fund's portfolio in highly liquid 
assets, setting minimum cash reserves, and establishing committed back-
up lines of credit or interfund lending facilities.\100\ A few of the 
funds observed by staff conduct stress testing relating to the 
availability of liquid assets to cover possible levels of 
redemptions.\101\ Some of these funds' advisers also have periodic 
discussions with their boards of directors about how the fund 
approaches liquidity risk management and what emerging risks they are 
observing relating to liquidity risk. We have observed that some of the 
funds with the more thorough liquidity risk management practices have 
appeared to be able to better meet periods of higher than typical 
redemptions without significantly altering the risk profile of the fund 
or materially affecting the fund's performance, and thus with less 
dilutive impacts.
---------------------------------------------------------------------------

    \100\ Press coverage has detailed steps some funds and their 
advisers have taken to manage liquidity in light of changing market 
conditions as well. See, e.g., Jessica Toonkel, Fund Boards, 
Management Go on High Alert Around Bond Liquidity, Reuters (Nov. 24, 
2014), available at http://www.reuters.com/article/2014/11/24/us-funds-bondholders-alert-idUSKCN0J80AD20141124 (reporting that 
investment advisers ``have been testing their funds against various 
market scenarios, building cushions of cash, shorter-duration bonds 
and other liquid securities, and regularly discussing risks with 
their boards''); Katy Burne, Bond Funds Loan Up on Cash, The Wall 
Street Journal (Nov. 30, 2014), available at http://www.wsj.com/articles/bond-funds-load-up-on-cash-1417394534 (discussing cash 
buffers and use of certain derivatives to manage liquidity 
concerns); Cordell Eddings, Bond Liquidity Risk in $3.5 Trillion 
Funds Defused by Cash, Bloomberg (Aug. 18, 2014), available at 
http://www.bloomberg.com/news/articles/2014-08-17/bond-liquidity-risk-in-3-5-trillion-funds-defused-by-cash-pile (discussing cash 
holdings in U.S. fixed income funds that are at historically 
significant levels).
    \101\ See, e.g., Nuveen FSOC Notice Comment Letter, supra note 
45, at 12 (``We stress test a fund's ability to meet redemptions 
over a one-month period in a badly stressed market by hypothetically 
assuming a large increase in net redemptions, cash outflows for 
derivatives cash collateral and cash outlay requirements imposed by 
various leverage structures, and comparing the level of cash needed 
to meet that hypothetical scenario against the amount of cash the 
fund could reasonably expect to raise from various sources 
(including selling assets in a hypothetically stressed market or 
drawing on a credit facility) in that same time frame.''); ICI FSOC 
Notice Comment Letter, supra note 16, at 24 (stating that some asset 
managers conduct forms of stress testing to determine the impact of 
certain changes on portfolio liquidity).
---------------------------------------------------------------------------

    Conversely, the Commission is concerned that some funds employ 
liquidity risk management practices that are substantially less 
rigorous. Some funds observed by the staff do not take different market 
conditions into account when evaluating portfolio asset liquidity, and 
do not conduct any ongoing liquidity monitoring. Some funds do not 
incorporate any independent oversight of fund liquidity risk management 
outside of the portfolio management process.\102\ Staff has observed 
that some of these funds, when faced with higher than normal 
redemptions, experienced particularly poor performance compared with 
their benchmark and some even experienced an adverse change in the 
fund's risk profile, each of which can increase the risk of investor 
dilution.
---------------------------------------------------------------------------

    \102\ See, e.g., BlackRock FSOC Notice Comment Letter, at 6 
(stating that among several overarching principles that provide the 
foundation for a prudent market liquidity risk management framework 
for collective investment vehicles is having ``a risk management 
function that is independent from portfolio management, with direct 
reporting lines to senior leadership and a regular role in 
communication with the asset manager's board of directors'').
---------------------------------------------------------------------------

    Finally, the Commission learned through staff outreach that many 
funds treat their risk management process for assessing the liquidity 
profile of portfolio assets, and the incorporation of market and 
trading information, as entirely separate from their assessment of 
assets under the 15% guideline. The former process is typically 
conducted on an ongoing basis through the fund's risk management 
function, through the fund's portfolio management function, or through 
the fund's trading function (or a combination of the foregoing), while 
assessment of assets under the 15% guideline is more typically 
conducted upon purchase of an asset through the fund's compliance or 
``back-office'' functions, with little indication that information 
generated from the risk management or trading functions informs the 
compliance determinations. This functional divide may be a by-product 
of the limitations of the 15% guideline as a stand-alone method for 
comprehensive liquidity risk management, a situation that our

[[Page 62286]]

proposed framework is meant to address.\103\
---------------------------------------------------------------------------

    \103\ See infra section III.C.4 for a discussion of the 
limitations of the 15% guideline.
---------------------------------------------------------------------------

    Overall, our staff outreach has increased our understanding of some 
of the valuable liquidity risk management practices employed by some 
firms as a matter of prudent risk management. This outreach also has 
shown us the great diversity in liquidity risk management practices 
that raises concerns regarding various funds' ability to meet their 
redemption obligations and minimize the effects of dilution under 
certain conditions. Collectively, these observations have informed our 
understanding of the need for an enhanced minimum baseline requirement 
for fund management of liquidity risk.

E. Rulemaking Proposal Overview

    Against this background, today we are proposing a multi-layered set 
of reforms designed to promote effective liquidity risk management 
throughout the open-end fund industry and thereby reduce the risk that 
funds will not be able to meet redemption obligations and mitigate 
potential dilution of the interests of fund shareholders in accordance 
with section 22(e) of, and rule 22c-1 under, the Investment Company 
Act. The proposed amendments also seek to enhance disclosure regarding 
fund liquidity and redemption practices. In addition, these proposed 
reforms are intended to address the liquidity-related developments in 
the open-end fund industry discussed above and are a part of a broader 
set of initiatives to address the impact of open-end fund investment 
activities on investors and the financial markets, and the risks 
associated with the increasingly complex portfolio composition and 
operations of the asset management industry.\104\
---------------------------------------------------------------------------

    \104\ Such other initiatives include modernizing investment 
company reporting and disclosure, addressing the risks of 
derivatives use, and requiring large investment companies and 
investment advisers to engage in annual stress tests as required by 
section 165(i) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (``Dodd-Frank Act''). See Chair Mary Jo White, 
Speech, Remarks to the New York Times DealBook Opportunities for 
Tomorrow Conference (Dec. 11, 2014), available at http://www.sec.gov/News/Speech/Detail/Speech/1370543677722; Investment 
Company Reporting Modernization, Investment Company Act Release No. 
31610 (May 20, 2015) [80 FR 33590 (June 12, 2015)] (``Investment 
Company Reporting Modernization Release'').
---------------------------------------------------------------------------

    First, we are proposing new rule 22e-4, which would require each 
registered open-end fund, including open-end ETFs but not including 
money market funds, to establish a liquidity risk management program. 
The proposed rule would require a fund's liquidity risk management 
program to incorporate certain specified elements. One primary element 
of this program is a new requirement for funds to classify and monitor 
the liquidity of portfolio assets, reflecting that liquidity may be 
viewed as falling on a spectrum rather than a binary conclusion that an 
asset is either ``liquid'' or ``illiquid.'' Another principal feature 
is a new requirement that funds establish a minimum amount of their 
assets that would be held in cash and assets that the fund believes are 
convertible to cash within three business days at a price that does not 
materially affect the value of that asset immediately prior to the 
sale.\105\ This proposed requirement is aimed at decreasing the 
likelihood that funds would be unable to meet their redemption 
obligations and promote effective liquidity risk management industry-
wide. We also anticipate that the proposed program requirement would 
result in investor protection benefits, as improved liquidity risk 
management could decrease the chance that a fund could meet its 
redemption obligations only with material effects on the fund's NAV or 
changes to the fund's risk profile.
---------------------------------------------------------------------------

    \105\ Proposed rule 22e-4(a)(8) defines ``Three-Day Liquid 
Asset'' to mean ``any cash held by a fund and any position of a fund 
in an asset (or portion of the fund's position in an asset) that the 
fund believes is convertible into cash within three business days at 
a price that does not materially affect the value of that asset 
immediately prior to sale. In determining whether a position or 
portion of a position in an asset is a three-day liquid asset, a 
fund must take into account the factors set forth in paragraph 
(b)(2)(ii) of this section, to the extent applicable.'' Proposed 
rule 22e-4(a)(9) defines ``Three-Day Liquid Asset Minimum'' to mean 
``the percentage of the fund's net assets to be invested in three-
day liquid assets,'' in accordance with rule 22e-4(b)(2)(iv)(A) and 
(C).
---------------------------------------------------------------------------

    Even with improved liquidity risk management, circumstances could 
arise in which shareholder purchase and redemption activity could 
dilute the value of existing shareholders' interests in the fund. For 
this reason, we are also proposing amendments to rule 22c-1 under the 
Act to permit a fund (except a money market fund or ETF) to use ``swing 
pricing,'' the process of adjusting a fund's NAV to effectively pass on 
to purchasing or redeeming shareholders more of the costs stemming from 
their trading activity. Swing pricing could protect existing 
shareholders from dilution associated with such purchase and redemption 
activity and could be another tool to manage liquidity risks. Pooled 
investment vehicles in certain foreign jurisdictions currently use 
various forms of swing pricing to mitigate shareholder dilution 
associated with other shareholders' capital activity, and we believe 
swing pricing could be an effective tool to assist U.S. registered 
funds in mitigating potential shareholder dilution.
    Finally, we are proposing disclosure- and reporting-related 
amendments to provide greater transparency with respect to funds' 
liquidity risks and risk management. Specifically, we are proposing 
amendments to Form N-1A to require disclosure regarding swing pricing, 
if applicable, and to improve disclosure regarding how funds meet 
redemptions of fund shares. We also are proposing amendments to 
proposed Form N-PORT and proposed Form N-CEN to provide detailed 
information, both to the Commission and the public, regarding a fund's 
liquidity-related holdings data and liquidity risk management 
practices. We note that while these disclosure- and reporting-related 
amendments are primarily applicable to mutual funds that are not money 
market funds, as well as ETFs, certain of the proposed amendments are 
applicable to money market funds as well.
    We anticipate that these proposed requirements will facilitate the 
Commission's risk monitoring efforts by providing greater transparency 
regarding the liquidity characteristics of fund portfolio holdings, as 
well as to monitor and assess compliance with rule 22e-4 if adopted. 
While proposed Form N-PORT and proposed Form N-CEN are primarily 
designed to assist the Commission, we believe that the proposed 
requirements also would increase investor understanding of particular 
funds' liquidity-related risks and redemption policies, which in turn 
would assist investors in making investment choices that better match 
their risk tolerances.\106\ We note that many investors, particularly 
institutional investors, as well as academic researchers, financial 
analysts, and economic research firms, could use the information 
regarding a fund's liquidity-related holdings data and liquidity risk 
management practices reported on Form N-PORT to evaluate fund 
portfolios.\107\ Finally, we are

[[Page 62287]]

proposing to require that ETFs report on proposed Form N-CEN 
information regarding any requirement to post collateral by authorized 
participants that are purchasing or redeeming shares. Such collateral 
requirements could affect authorized participants' capacity and 
willingness to serve as authorized participants for ETFs, and, in turn, 
the effective functioning of the ETF's arbitrage mechanism and the ETF 
shares trading at a market price that approximates the NAV of the ETF.
---------------------------------------------------------------------------

    \106\ See, e.g., Comment Letter of Markit on the FSOC Notice 
(Mar. 25, 2015), at 2 (``we believe that liquidity and redemption 
risk contained in asset management products can be mitigated by 
providing risk managers or investors of pooled investment vehicles 
better information about the liquidity risk associated with pool 
investments so that they can price it more accurately. This could be 
done through, among other things, disclosures of the `prudent 
valuation' (accounting for pricing uncertainty) of the fund's 
investments and the implementation of appropriate liquidity risk 
management policies and procedures'').
    \107\ See infra section IV.C.3.
---------------------------------------------------------------------------

III. Discussion

A. Program Requirements and Scope of Proposed Rule 22e-4

    Today we are proposing new rule 22e-4 under the Investment Company 
Act, which would require that each registered open-end management 
investment company, including open-end ETFs but not including money 
market funds,\108\ establish a written liquidity risk management 
program. We expect that the proposed rule 22e-4 program requirements 
would reduce the risk that funds will be unable to timely meet their 
redemption obligations under section 22(e) of the Investment Company 
Act and other statutory and regulatory provisions,\109\ mitigate 
potential investor dilution, and provide for more effective liquidity 
risk management among funds. We believe that this, in turn, would 
result in significant investor protection benefits and enhance the fair 
and orderly operation of the markets.\110\
---------------------------------------------------------------------------

    \108\ Under proposed rule 22e-4(a)(5), ``fund'' means ``an open-
end management investment company that is registered or required to 
register under section 8 of the Act (15 U.S.C. 80a-8) and includes a 
separate series of such an investment company, but does not include 
a registered open-end management investment company that is 
regulated as a money market fund under Sec.  270.2a-7.''
    \109\ In addition to the seven-day redemption requirement in 
section 22(e), rule 15c6-1 under the Exchange Act also impacts the 
timing of open-end fund redemptions because the rule requires 
broker-dealers to settle securities transactions, including 
transactions in open-end fund shares, within three business days 
after the trade date. See supra note 21 and accompanying text. 
Furthermore, funds' redemption obligations are also governed by any 
disclosure to shareholders that a fund has made about the time 
within which it will meet redemption requests, as disclosures by 
open-end funds are subject to the antifraud provisions of the 
federal securities laws. See supra note 77 and accompanying text.
    \110\ See infra section IV.C.1.
---------------------------------------------------------------------------

1. Proposed Program Elements
    Proposed rule 22e-4 would require each fund to adopt and implement 
a written liquidity risk management program that is designed to assess 
and manage the fund's liquidity risk.\111\ Under the proposed rule, 
liquidity risk would be defined as the risk that a fund could not meet 
requests to redeem shares issued by the fund that are expected under 
normal conditions, or are reasonably foreseeable under stressed 
conditions, without materially affecting the fund's net asset 
value.\112\ Proposed rule 22e-4 specifies that a fund's liquidity risk 
management program shall include the following required program 
elements: (i) classification, and ongoing review of the classification, 
of the liquidity of each of the fund's positions in a portfolio asset 
(or portions of a position in a particular asset); (ii) assessment and 
periodic review of the fund's liquidity risk; and (iii) management of 
the fund's liquidity risk, including the investment of a set minimum 
portion of net assets in assets that the fund believes are convertible 
to cash within three business days at a price that does not materially 
affect the value of that asset immediately prior to sale.\113\ Proposed 
rule 22e-4 incorporates specific requirements for each of these program 
elements, and these requirements are discussed in detail below. A fund 
may, as it determines appropriate, expand its liquidity risk management 
procedures and related disclosure concerning liquidity risk beyond the 
required program elements, and should consider doing so whenever it 
would be necessary to ensure effective liquidity management. A fund 
would be required to set and invest a prescribed minimum portion of net 
assets in assets that are cash or that the fund believes are 
convertible to cash within three business days at a price that does not 
materially affect the value of that asset immediately prior to the 
sale, and also would be required to classify the liquidity of the 
fund's portfolio positions. In other respects, the proposed program 
requirements are more principles-based and would permit each fund to 
tailor its liquidity risk management program to the fund's particular 
risks and circumstances.
---------------------------------------------------------------------------

    \111\ Proposed rule 22e-4(b)(1).
    \112\ Proposed rule 22e-4(a)(7). This definition is similar to 
the definition of ``liquidity risk'' that the Commission has used in 
other contexts, modified as appropriate to apply to the specific 
liquidity needs of investment companies. See Financial 
Responsibility Rules for Broker-Dealers, Exchange Act Release No. 
70072 (July 30, 2013) [78 FR 51823 (Aug. 21, 2013)], at n.291 
(``Generally, funding liquidity risk is the risk that a firm will 
not be able to meet cash demands as they become due and asset 
liquidity risk is the risk that an asset will not be able to be sold 
quickly at its market value.'').
     This proposed definition contemplates that a fund consider both 
expected requests to redeem, as well as requests to redeem that may 
not be expected, but are reasonably foreseeable. See infra section 
III.C.
    \113\ Proposed rule 22e-4(b)(1), (2).
---------------------------------------------------------------------------

    The requirements of proposed rule 22e-4, including the liquidity 
risk assessment requirements, are applicable to all open-end funds, 
which term is defined to include each separate series of a registered 
open-end investment company.\114\ Therefore, each series of a fund 
would be responsible for developing a liquidity risk management program 
tailored to its own liquidity risk in order to comply with the proposed 
rule. We anticipate that liquidity risk could differ--sometimes 
significantly--among the series of an investment company, based on 
variations in each of the proposed liquidity risk assessment factors 
required to be considered. Under these circumstances, it would be 
appropriate for each series' liquidity risk management program to 
incorporate risk assessment and risk management elements that are 
distinct from other series' programs. However, to the extent that the 
series of an investment company are substantially similar in terms of 
cash flow patterns, investment strategy, portfolio liquidity, and the 
other factors a fund would be required to consider in assessing its 
liquidity risk,\115\ it may be appropriate for each series to adopt the 
same or a similar liquidity risk management program.
---------------------------------------------------------------------------

    \114\ See proposed rule 22e-4(a)(5).
    \115\ See infra section III.C.1.
---------------------------------------------------------------------------

    Proposed rule 22e-4 includes board oversight provisions related to 
the liquidity risk management program requirement. Specifically, a 
fund's board would be required to approve the fund's liquidity risk 
management program, any material changes to the program, and the fund's 
designation of the fund's investment adviser or officers as responsible 
for administering the fund's liquidity risk management program (which 
cannot be solely portfolio managers of the fund).\116\ A fund also 
would be required to disclose certain information about its liquidity 
risk and risk management in its registration statement,\117\ as well as 
on proposed Forms N-CEN and N-PORT.\118\
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    \116\ Proposed rule 22e-4(b)(3).
    \117\ Proposed Items 11(c)(7)-(8) of Form N-1A.
    \118\ Proposed Items B.7, C.7, and C.13 of proposed Form N-PORT; 
proposed Item 44 of proposed Form N-CEN.
---------------------------------------------------------------------------

2. Scope of Proposed Rule 22e-4 and Related Disclosure and Reporting 
Requirements
    Proposed rule 22e-4, as well as the related disclosure and 
reporting requirements, would apply to all registered open-end funds 
(including

[[Page 62288]]

open-end ETFs) other than money market funds. The liquidity risk 
management program required under proposed rule 22e-4 would reduce the 
risk that funds would be unable to meet shareholder redemptions in 
light of their statutory and regulatory requirements for meeting 
redemption requests, as well as any disclosure made to investors 
regarding payment of redemption proceeds, without materially affecting 
the fund's NAV.\119\
---------------------------------------------------------------------------

    \119\ See supra notes 18-22 and accompanying text (discussing 
funds' redemption obligations under section 22(e) of the Investment 
Company Act (requiring funds to make payment to shareholders for 
securities tendered for redemption within seven days of their 
tender), as well as circumstances in which funds must satisfy 
redemption requests within a period shorter than seven days (because 
they are sold through broker dealers, which are subject to rule 
15c6-1 under the Exchange Act (establishing a three-business day 
(T+3) settlement period for security trades effected by a broker or 
a dealer), and/or because they have disclosed to investors that they 
will meet redemption requests within a period shorter than seven 
days).
---------------------------------------------------------------------------

    Although we recognize that various fund characteristics, such as a 
fund's investment strategy, ownership concentration, redemption 
policies, and other similar factors, could make a fund relatively more 
prone to liquidity risk,\120\ we believe that all registered open-end 
funds (other than money market funds), not only those whose investment 
strategies create greater liquidity risk, should fall within the scope 
of proposed rule 22e-4. While we are not proposing different liquidity 
risk management program requirements for different types of funds, the 
proposed rule is designed to result in robust liquidity risk management 
programs whose scope, and related costs and burdens, are adequately 
tailored to manage the liquidity risk faced by a particular fund. The 
proposed rule requires each fund to assess its liquidity risk 
periodically, after consideration of certain enumerated factors, and to 
adopt policies and procedures for managing its liquidity risk based on 
this assessment.\121\ For example, a fund whose ownership is relatively 
concentrated, and that has an investment strategy requiring it to hold 
a significant portion of unlisted securities that do not trade 
frequently, would likely establish a different liquidity risk 
management program than a fund whose portfolio assets consist mostly of 
exchange-traded securities with a very high average daily trading 
volume.\122\
---------------------------------------------------------------------------

    \120\ See infra section III.C.1.
    \121\ Proposed rule 22e-4(b)(2)(iii)-(iv).
    \122\ See infra section III.C.1.
---------------------------------------------------------------------------

    We are not proposing to exclude any particular subset of open-end 
management investment companies other than money market funds from the 
scope of proposed rule 22e-4, because even funds with investment 
strategies that historically have entailed relatively little liquidity 
risk could experience liquidity stresses in certain environments. For 
example, although most equity securities are generally understood to be 
more liquid than fixed income securities, investments in certain types 
of equities involve some degree of liquidity risk.\123\ Also, 
unexpected market events could cause the liquidity of assets that 
typically are more liquid to decrease.\124\ Furthermore, different 
types of funds within the same broad investment strategy may 
demonstrate different levels of liquidity (and thus, presumably, 
different levels of liquidity risk).\125\ We are also not proposing to 
provide different liquidity requirements for relatively small funds 
because, as discussed in the Economic Analysis section below, smaller 
funds tend to demonstrate relatively high flow volatility (and thus 
possibly greater liquidity risk).\126\
---------------------------------------------------------------------------

    \123\ For example, certain foreign securities (equities as well 
as fixed income securities) may entail very long settlement times 
and trading limitations. See infra note 197. Also, certain equity 
securities, such as microcap equity securities, trade relatively 
infrequently, which in turn could diminish their liquidity. See 
Securities and Exchange Commission, Office of Investor Education and 
Advocacy, ``Microcap Stock: A Guide for Investors'', available at 
http://www.sec.gov/investor/pubs/microcapstock.htm.
    \124\ For example, during the ``Flash Crash'' of October 15, 
2014, one of the most volatile trading days since 2008, yield 
decreases on 10-year Treasuries resulted in certain fixed income 
market participants turning off automatic pricing on electronic 
trading platforms on account of fears that the market was moving too 
quickly for automatic prices to keep up with the market. This, in 
turn, slowed the pace of trading in U.S. Treasuries, temporarily 
decreasing their liquidity. See, e.g., Joint Staff Report: The U.S. 
Treasury Market on October 15, 2014 (July 13, 2015), available at 
http://www.treasury.gov/press-center/press-releases/Documents/Joint_Staff_Report_Treasury_10-15-2015.pdf (``Flash Crash Staff 
Report'') (report of staff findings from the U.S. Department of the 
Treasury, the Board of Governors of the Federal Reserve System, the 
Federal Reserve Bank of New York, the U.S. Securities and Exchange 
Commission, and the U.S. Commodity Futures Trading Commission 
discussing in depth, among other things, the strains in liquidity 
conditions during the events of October 15).
    \125\ See infra note 627 and accompanying text.
    \126\ See infra note 727 and accompanying text.
---------------------------------------------------------------------------

    Like traditional open-end funds, the Commission believes that open-
end ETFs could experience liquidity risk, and thus proposes to include 
open-end ETFs within the scope of rule 22e-4.\127\ As discussed above, 
the liquidity of an ETF's portfolio securities is a factor that 
contributes to the effective functioning of the ETF's arbitrage 
mechanism and the ETF shares trading at a price that is at or close to 
the NAV of the ETF.\128\ In addition, ETFs that permit authorized 
participants to redeem in cash, rather than in kind, and ETFs that 
typically redeem in cash, like traditional mutual funds, would need to 
ensure that they have sufficient portfolio liquidity (in conjunction 
with any other liquidity sources) to meet shareholder redemptions in 
cash.\129\ And especially in times of declining market liquidity, the 
liquidity of an ETF may be limited by the liquidity of the market for 
the ETF's underlying securities.\130\ As discussed below, we believe 
that the liquidity-related concerns relevant to ETFs structured as unit 
investment trusts (``UITs'') are different from those relevant to open-
end ETFs, and thus we are proposing not to include ETFs structured as 
UITs within the scope of proposed rule 22e-4.\131\
---------------------------------------------------------------------------

    \127\ See supra notes 23-30 and accompanying text.
    \128\ See supra notes 25-29 and accompanying text. The 
Commission's 2015 Request for Comment on Exchange-Traded Products 
requests comment on the effectiveness and efficiency of the 
arbitrage mechanism for exchange-traded products (including ETFs) 
whose portfolio securities are relatively less liquid. See 2015 ETP 
Request for Comment, supra note 11, at Question #15.
    \129\ See supra note 30 and accompanying text. Based on the same 
consideration, we propose to include ETMFs within the scope of rule 
22e-4. See supra note 31 and accompanying text.
    \130\ See supra note 24 and accompanying text.
    \131\ See infra note 144 and accompanying paragraph. We note 
that the vast majority of ETFs are organized as open-end funds. See 
ETF Proposing Release, supra note 9.
---------------------------------------------------------------------------

    The scope of proposed rule 22e-4 does not include closed-end 
investment companies (``closed-end funds''). Closed-end funds do not 
issue redeemable securities and are not subject to section 22(e) of the 
Investment Company Act.\132\ Closed-end funds' liquidity needs are 
consequently different from those of open-end funds. This has been 
acknowledged previously by the Commission; for example, the 15% 
guideline is applicable only to open-end funds and not closed-end 
funds.\133\ Closed-end funds that elect to repurchase their shares at 
periodic intervals under Investment Company Act rule 23c-3 (``closed-
end interval funds'') are subject to certain liquidity standards in 
order to ensure that they can complete repurchase offers, and must 
adopt written procedures reasonably designed to ensure that their 
portfolio assets are sufficiently liquid to

[[Page 62289]]

comply with their fundamental policies on repurchases.\134\ However, 
other closed-end funds are subject to no explicit liquidity 
requirements under the 1940 Act.\135\ Because closed-end funds, with 
the exception of closed-end interval funds, are not subject to specific 
statutory or regulatory liquidity requirements, we are not proposing to 
include closed-end funds within the scope of rule 22e-4. Although 
closed-end interval funds do have to comply with certain liquidity 
standards and therefore must manage their liquidity risk, we believe 
that the written liquidity procedures they are required to adopt under 
rule 23c-3(b)(10)(iii) are adequate given these funds' more limited 
liquidity needs. Also, because closed-end interval funds do not permit 
shareholders to redeem their shares each day, they may be better able 
to structure their portfolios to anticipate their liquidity needs than 
open-end funds. For these reasons, we are not including these funds 
within the proposed scope of rule 22e-4.
---------------------------------------------------------------------------

    \132\ See sections 22(e), 2(a)(32) (defining ``redeemable 
security'') and 5(a)(1)-(2) (defining ``open-end company'' and 
``closed-end company'') of the Act.
    \133\ See Guidelines Release, supra note 4; see also Repurchase 
Offers by Closed-End Management Investment Companies, Investment 
Company Act Release No. 19399 (Apr. 7, 1993) [58 FR 19330 (Apr. 14, 
1993)] (``Repurchase Offers Release''), at n.7 and accompanying 
text.
    \134\ Specifically, rule 23c-3 requires that: (i) A specified 
percentage of the investment company's portfolio consists of assets 
that can be sold or disposed of in the ordinary course of business, 
at approximately the price at which the investment company has 
valued the investment, within the period within which the investment 
company pays repurchase proceeds; and (ii) the investment company's 
board of directors adopts written procedures reasonably designed, 
taking into account current market conditions and the company's 
investment objectives, to ensure that the company's portfolio assets 
are sufficiently liquid so that the company can comply with its 
fundamental policy on repurchases. See rule 23c-3(b)(10)(i), (iii).
     Based on staff analysis, there were 26 closed-end interval 
funds, representing approximately $5.7 billion in assets, in 2014.
    \135\ See Interval Fund Proposing Release, supra note 83, at 
text following n.35 (``Closed-end companies are not subject to a 
liquidity standard.'').
---------------------------------------------------------------------------

    UITs, including ETFs structured as UITs, also would not be covered 
within the scope of proposed rule 22e-4. A UIT issues redeemable 
securities, like a traditional open-end fund, which represent undivided 
interests in an essentially fixed portfolio of securities.\136\ As 
units of a UIT series\137\ are redeemable, UITs are subject to the 
requirements of section 22(e).\138\
---------------------------------------------------------------------------

    \136\ Securities and Exchange Commission, Office of Investor 
Education and Advocacy, Unit Investment Trusts (UITs), available at 
http://www.sec.gov/answers/uit.htm (``UIT Answers'').
    \137\ UITs typically consist of a number of consecutive series, 
with each series representing units in a specific, separate 
portfolio of securities. Unlike traditional open-end investment 
companies, UITs have no corporate management structure, and their 
portfolios are not managed.
    \138\ With respect to UITs that are not ETFs, and that do not 
serve as separate account vehicles that are used to fund variable 
annuity and variable life insurance products, sponsors have 
historically maintained a secondary market in UIT units, rather than 
having the series liquidate portfolio securities to meet 
redemptions, because a large number of redemptions could necessitate 
premature termination of the series. See Form N-7 for Registration 
of Unit Investment Trusts under the Securities Act of 1933 and the 
Investment Company Act of 1940, Investment Company Act Release No. 
15612 (Mar. 9, 1987) [52 FR 8268 (Mar. 17, 1987)] (``Form N-7 Re-
Proposing Release''), at text following n.1; see also UIT Answers, 
supra note 136.
     At present, however, the majority of UIT assets are 
attributable to separate account vehicles that are used to fund 
variable annuity and variable life insurance products, and the 
sponsors of these UITs do not typically maintain a secondary market 
in UIT units. See infra note 139 and accompanying text.
---------------------------------------------------------------------------

    We are not proposing to include UITs within the scope of the 
proposed rule for a number of reasons. First, we understand based on 
staff analysis that approximately 75% of the assets held in UITs 
currently serve as separate account vehicles that are used to fund 
variable annuity and variable life insurance products.\139\ These UITs 
essentially function as pass-through vehicles, investing principally in 
securities of one or more open-end investment companies, which as 
discussed above would be subject to the scope of proposed rule 22e-
4.\140\ Thus, we believe that the liquidity risk of these UITs would be 
even more limited if proposed rule 22e-4 were adopted, because their 
underlying holdings are funds that would be required to adopt their own 
liquidity risk management programs under the proposed rule.
---------------------------------------------------------------------------

    \139\ Based on data as of December 2014.
    \140\ Jeffrey K. Dellinger, The Handbook of Variable Income 
Annuities 448-450 (2006).
---------------------------------------------------------------------------

    Second, UITs are not actively managed, and their portfolios are not 
actively traded. A UIT buys a relatively fixed portfolio of securities, 
and generally holds them with little change for the life of the 
UIT.\141\ A UIT does not have a board of directors, corporate officers, 
or an investment adviser to render advice during the life of the 
trust.\142\ Accordingly, the provisions of proposed rule 22e-4, which 
require a fund's board to approve and oversee a liquidity risk 
management program and the fund's adviser or officers to administer the 
program, are thus inapposite to the management structure of a UIT.\143\
---------------------------------------------------------------------------

    \141\ See UIT Answers, supra note 136.
    \142\ See id. Because of this lack of management, some UIT trust 
documents provide that its administrator must redeem a pro rata 
share of the trust's holdings when an investor redeems from a UIT, 
subject to practical constraints such as securities with transfer 
restrictions.
    \143\ See infra section III.D.
---------------------------------------------------------------------------

    Finally, we also are not including UIT ETFs within the scope of 
proposed rule 22e-4 because UIT ETFs generally track established and 
widely recognized indices.\144\ Moreover, they fully replicate their 
underlying indices including with respect to their basket assets. 
Therefore, we do not view a liquidity risk management program as 
necessary or beneficial for UIT ETFs.
---------------------------------------------------------------------------

    \144\ Based on information from Morningstar as of July 22, 2015, 
the following ETFs are structured as UITs, and each ETF tracks the 
index in its name unless otherwise noted: SPDR Dow Jones Industrial 
Average ETF Trust, SPDR S&P 500 ETF Trust, SPDR S&P Midcap 400 ETF 
Trust, Invesco Powershares QQQ Trust Series 1 (which tracks the 
NASDAQ 100 Index), and the Invesco BLDRS Index Funds Trust (which 
has ETFs tracking the BNY Mellon Asia 50 ADR Index, the BNY Mellon 
Developed Markets 100 ADR Index, the BNY Mellon Emerging Markets 50 
ADR Index, and the BNY Mellon Europe Select ADR Index).
---------------------------------------------------------------------------

    We also propose to exclude from the scope of rule 22e-4 all money 
market funds subject to the requirements of rule 2a-7 under the 
Investment Company Act. Money market funds are subject to extensive 
requirements concerning the liquidity of their portfolio assets. As 
described below, these requirements are more stringent than the 
liquidity-related requirements applicable to funds that are not money 
market funds (and that would be applicable to funds that are not money 
market funds under proposed rule 22e-4), on account of the historical 
redemption patterns of money market fund investors and the assets held 
by money market funds.\145\ Rule 2a-7 includes a general portfolio 
liquidity standard, which requires that each money market fund hold 
securities that are sufficiently liquid to meet reasonably foreseeable 
shareholder redemptions in light of its obligations under section 22(e) 
of the Act and any commitments the fund has made to shareholders.\146\ 
Money market funds are also subject to a specific limitation on the 
acquisition of illiquid securities. Namely, a money market fund cannot 
acquire illiquid securities if, immediately after the acquisition, the 
fund would have invested more than 5% of its total assets in illiquid 
securities.\147\ This limit on illiquid asset holdings is more 
stringent than the corollary 15% guideline for open-end funds that are 
not money market funds, which as discussed above, limits a fund's 
aggregate holdings of illiquid assets to 15% of the fund's net 
assets.\148\ In addition to the 5% limit on money market funds' 
illiquid asset holdings, all taxable money market funds must invest at 
least 10% of their total assets in ``daily liquid assets,'' \149\ and 
all money

[[Page 62290]]

market funds must invest at least 30% of their total assets in ``weekly 
liquid assets.'' \150\ There is no current or proposed corollary 
requirement for open-end funds that are not money market funds to 
invest certain portions of their assets in daily liquid assets or 
weekly liquid assets.
---------------------------------------------------------------------------

    \145\ See infra notes 722-725 and accompanying text.
    \146\ Rule 2a-7(d)(4).
    \147\ Rule 2a-7(d)(4)(i).
    \148\ See supra section II.D.2.
    \149\ Rule 2a-7(d)(4)(ii).
    \150\ Rule 2a-7(d)(4)(iii).
---------------------------------------------------------------------------

    Money market funds are also subject to liquidity-related disclosure 
and reporting requirements.\151\ These disclosure and reporting 
requirements do not currently extend to funds that are not money market 
funds, although under the proposed amendments to Form N-PORT, funds 
that are not money market funds would be required to report information 
about each portfolio asset's liquidity classification under rule 22e-4 
and whether it is a 15% standard asset.\152\
---------------------------------------------------------------------------

    \151\ On the compliance date for the disclosure-related money 
market fund reforms adopted in 2014 (Apr. 14, 2016), money market 
funds will be required to disclose each day the percentage of their 
total assets invested in daily liquid assets and weekly liquid 
assets on their Web sites. See rule 2a-7(h)(10)(ii) (a money market 
fund must maintain a schedule, chart, graph, or other depiction on 
its Web site showing historical information about its investments in 
daily liquid assets and weekly liquid assets for the previous six 
months, and must update this historical information each business 
day, as of the end of the preceding business day). As of the 
compliance date, they also will be required to report information 
about the liquidity of their portfolio securities on Form N-MFP. See 
Form N-MFP Items C.21, C.22, and C.23.
    \152\ See infra section III.G.2; proposed Item C.7 of proposed 
Form N-PORT (requiring a fund to disclose whether a portfolio 
investment is a 15% Standard Asset); Form N-MFP Item 44 (requiring a 
money market fund to disclose whether each portfolio security is an 
illiquid security).
---------------------------------------------------------------------------

    Money market funds also have certain tools at their disposal to 
manage heavy redemptions that are not available to other open-end 
funds.\153\ A money market fund is permitted to impose a liquidity fee 
on redemptions or temporarily suspend redemptions if its weekly liquid 
assets fall below 30% of its total assets and the fund's board 
determines that imposing a fee or gate is in the fund's best interests; 
if a fund's weekly liquid asset falls below 10% of total assets, the 
fund is required to impose a liquidity fee on redemptions unless the 
fund's board determines that imposing such a fee would not be in the 
fund's best interests.\154\ Additionally, rule 22e-3 permits a money 
market fund to suspend redemptions and postpone payment of redemption 
proceeds in an orderly liquidation of the fund if, subject to other 
requirements, the fund's board makes certain findings.\155\ Because 
money market funds are required to maintain a liquidity risk management 
program, we propose that these funds be excluded from the scope of rule 
22e-4.
---------------------------------------------------------------------------

    \153\ See infra notes 722-725 and accompanying text for a 
discussion of why we are not proposing a liquidity fee regime 
similar to that for money market funds for other types of open-end 
management investment companies.
    \154\ See rule 2a-7(c)(2); see also 2014 Money Market Fund 
Reform Adopting Release, supra note 85, at section III.A. The 
compliance date for the amendments to rule 2a-7 related to liquidity 
fees and gates is October 14, 2016.
    \155\ See rule 22e-3(a) (permitting a money market fund to 
permanently suspend redemptions and liquidate if the fund's level of 
weekly liquid assets falls below 10% of its total assets or, in the 
case of a fund that is a government money market fund or a retail 
money market fund, the fund's board determines that the deviation 
between the fund's amortized cost price per share and its market-
based NAV may result in material dilution or other unfair results to 
investors or existing shareholders); see also 2014 Money Market Fund 
Reform Adopting Release, supra note 85, at section III.A.4 
(discussing amendments to rule 22e-3 adopted as part of the 2014 
money market fund reforms); Division of Investment Management, 2014 
Money Market Fund Reform Frequently Asked Questions (Aug. 4, 2015), 
available at http://www.sec.gov/divisions/investment/guidance/2014-money-market-fund-reform-frequently-asked-questions.shtml.
---------------------------------------------------------------------------

3. Request for Comment
    While we request detailed comment on each of the specific elements 
of proposed rule 22e-4 below, here we request comment on the general 
program requirement of the proposed rule, as well as the extent to 
which the proposed program requirement would promote effective 
liquidity risk management.
     As proposed, rule 22e-4 would require that a fund's 
liquidity risk management program include certain general elements. Do 
commenters believe that the general elements of the program would 
enhance a fund's ability to assess and manage its liquidity risk? Are 
there any elements that should be excluded from the program 
requirement, or are there any additional elements that should be 
included in the program requirement? Should any of the proposed 
elements be modified? Do commenters believe that the program would 
enhance funds' management of liquidity risk better than they already do 
in practice? Do commenters believe that the program would materially 
strengthen a fund's ability to meet its redemption obligations and 
would materially reduce potential dilution? Should the rule focus not 
just on the liquidity of the fund's assets but also more specifically 
and prominently on its liabilities, such as derivatives obligations, 
that may affect the liquidity of the fund?
     Should the Commission be more prescriptive in requiring a 
fund to adopt certain specific policies and procedures for classifying 
and monitoring the liquidity of portfolio assets, assessing and 
periodically reviewing liquidity risk, and/or managing the fund's 
liquidity risk, beyond the proposed requirements of rule 22e-4? If so, 
what other procedures should the Commission require? Are there 
operational challenges associated with any of the other procedures the 
Commission could require? To what extent do funds currently have 
policies and procedures resembling the proposed program requirements? 
Have funds' current policies and procedures proven effective at 
managing liquidity risk, and how have they evolved in recent years? Are 
these policies and procedures primarily overseen by a fund's chief 
compliance officer, chief risk officer (if any), or someone else?
    We also request comment on the scope of proposed rule 22e-4.
     Do commenters agree that all open-end funds, including 
open-end ETFs but excluding money market funds, should be subject to 
the program requirement of the proposed rule? If not, why not? Do 
commenters agree that the proposed program requirement gives enough 
flexibility for a fund to adopt a program whose scope, and related 
costs and benefits, are adequately tailored for that fund to manage its 
actual and potential liquidity risk?
     Should certain funds or types of funds be excluded from 
the proposed program requirement, or subject to a different or less 
stringent requirement, because their investment strategies, ownership 
concentrations, redemption policies, or some other factor makes them 
less prone to liquidity risk? If so, which funds or types of funds, and 
why? Should smaller funds and smaller fund complexes be excluded from 
the proposed program requirement, or subject to a different or less 
stringent requirement? Why or why not? How should we distinguish 
between funds that should be subject to liquidity risk management 
program requirements and those that should not? Conversely, are there 
particular types of funds (or investment strategies) that are subject 
to heightened liquidity risk and should be subject to more prescriptive 
or stringent requirements under a liquidity risk management program or 
otherwise? If so, what types of funds should be considered to have 
higher liquidity risk and why? Can these types of funds be easily 
categorized or defined? What enhanced liquidity risk management program 
requirements should be considered for such funds and why? Are there any 
types of funds (or investment strategies) with such limited liquidity 
that we should consider limiting their ability to be structured as 
open-end funds?

[[Page 62291]]

     Do commenters agree that open-end ETFs and ETMFs should be 
included? If not, why not? Do commenters believe that ETFs and/or ETMFs 
incur additional liquidity risk if they permit redeeming authorized 
participants to receive cash, rather than an in-kind basket of 
securities, in exchange for redeemed shares?
     Should any of the requirements of the proposed rule be 
modified for ETFs or ETMFs on account of the relief from section 22(e) 
some of these funds receive under their exemptive orders? Should any of 
the requirements apply differently when an ETF or an ETMF is organized 
as a class of an open-end fund or as a feeder fund in a master-feeder 
structure where other classes or feeder funds operate as traditional 
mutual funds?
    Exemptive orders for ETF relief include provisions that govern the 
composition of portfolio deposits and redemption baskets. In general, 
portfolio deposits and redemption baskets must represent pro rata 
slices of the ETF's portfolio and must be the same for all purchasers 
and redeemers that transact with the ETF on the same day. In recent 
years, ETF sponsors have requested increased flexibility in determining 
the composition of portfolio deposits and redemption baskets.\156\
---------------------------------------------------------------------------

    \156\ See, e.g., Comment Letter of Charles Schwab & Co., Inc. on 
the 2015 ETP Request for Comment (Aug. 17, 2015) (``At a minimum, we 
believe it is important that ETF managers have the ability to 
construct non-pro rata baskets, subject to compliance and board 
oversight to help identify and address instances where the use of 
such baskets may conflict with the interests of the ETF and its 
shareholders.'').
---------------------------------------------------------------------------

     We request comments on whether such flexibility would 
result in favorable or unfavorable changes in how ETFs manage the 
liquidity of their holdings. For example, would ETFs benefit from 
reduced cash drag? Would the flexibility enable or encourage ETFs to 
reduce the overall liquidity of their portfolios or to hold a greater 
amount of relatively illiquid assets? Does the existing 15% guideline 
adequately address any concerns regarding liquidity that could result 
from greater basket flexibility? Would the requirements we are 
proposing adequately address any concerns regarding liquidity that 
could result from greater basket flexibility? If not, could other 
requirements adequately address any concerns?
    We request comment on the types of investment products that the 
Commission proposes not to include, or to specifically exclude, from 
the scope of proposed rule 22e-4.
     Do commenters agree that closed-end funds, including 
closed-end interval funds, should not be included within the scope of 
the proposed rule? Should we make any changes to the liquidity 
requirements for closed-end interval funds?
     Do commenters agree that UITs should not be included 
within the proposed rule's scope? Is there any subset of UITs that 
should be considered for inclusion, if only for some aspects of the 
rule? Is there a significant risk that UITs (or a certain subset of 
UITs) may not be able to meet redemption requests? With respect to UITs 
that are not ETFs, and that do not serve as separate account vehicles 
that are used to fund variable annuity and variable life insurance 
products, is it reasonable to expect that UIT sponsors would maintain a 
secondary market in UIT units to the same extent and in the same manner 
as they have historically?
     Alternatively, should we require UITs to meet certain 
minimum liquidity requirements at the time of deposit of the 
securities, such as requiring a UIT to maintain a prescribed minimum 
portion of its net assets in assets that it believes are convertible to 
cash within three business days at a price that does not materially 
affect the value of that asset immediately prior to the sale? Why or 
why not? What specific requirements of proposed rule 22e-4 should be 
modified for UITs to account for the facts that UITs are not actively 
managed, UITs' portfolios are not actively traded, and UITs do not have 
a board of directors, corporate officers, or an investment adviser to 
render advice during the life of the trust?
     Is it appropriate that we include ETFs organized as open-
end funds but not ETFs organized as UITs within the rule? Should we 
exclude from the scope of the rule ETFs organized as open-end funds 
that, similar to UIT ETFs, fully track established and widely 
recognized indices? Why or why not? Do commenters believe that ETFs 
organized as open-end funds would reorganize as UITs in response to the 
rule? Why or why not?
     Do commenters agree that we should specifically exclude 
money market funds from the scope of proposed rule 22e-4? Is there any 
subset of money market funds that should be considered for inclusion, 
if only for some aspects of the rule?

B. Classifying the Liquidity of a Fund's Portfolio Positions Under 
Proposed Rule 22e-4

    We have not updated the liquidity guidelines applicable to funds 
and fund portfolio assets in over two decades, and we believe that 
developments in the fund industry as well as staff observations of 
funds' current liquidity risk management practices warrant proposing 
requirements for classifying the liquidity of funds' portfolio 
positions.\157\ We are aware based on staff experience that many fund 
managers engage in analysis of the liquidity of portfolio assets, 
beyond considering whether the fund's portfolio construction is 
consistent with the 15% guideline, and we believe that all open-end 
funds and their shareholders would benefit from a comprehensive review 
of the liquidity of funds' portfolio positions. Staff outreach has 
shown that funds today employ notably different procedures for 
assessing and classifying the liquidity of their portfolio assets.\158\ 
Some funds have implemented procedures that analyze multiple aspects 
relating to an asset's liquidity, including relevant market, trading, 
and asset-specific factors, and monitor whether their initial liquidity 
determinations should be amended based on changed conditions. While the 
15% guideline requires a binary determination of whether an asset is 
liquid or illiquid, funds with relatively comprehensive liquidity 
classification procedures tend to view the liquidity of their portfolio 
assets in terms of a more-liquid to less-liquid spectrum.\159\ This 
``spectrum''-based approach to liquidity can enhance a fund's ability 
to construct a portfolio whose liquidity profile is calibrated to 
reflect the fund's specific liquidity needs. The staff has observed, 
however, that other funds, including some with relatively less liquid 
strategies, use liquidity classification practices that are 
substantially less thorough, do not take relevant factors into account 
when evaluating portfolio assets' liquidity and do not incorporate 
ongoing liquidity monitoring. To the extent that these practices result 
in a fund holding assets that are insufficiently liquid to meet 
redemptions without materially

[[Page 62292]]

affecting the fund's NAV (assuming that the fund must sell portfolio 
assets to meet redemptions), we believe these practices could adversely 
affect fund investors--either by decreasing the price that redeeming 
shareholders will receive for their shares and the price of the shares 
held by non-redeeming investors, or if the fund sells its most liquid 
assets to meet redemptions, by potentially increasing the liquidity 
risk of the fund shares held by non-redeeming shareholders.
---------------------------------------------------------------------------

    \157\ See supra section II.D.
    \158\ See 2014 Fixed Income Guidance Update, supra note 62; see 
also BlackRock FSOC Notice Comment Letter, supra note 50, at 6 
(stating that among several overarching principles that provide the 
foundation for a prudent market liquidity risk management framework 
for collective investment vehicles is ``[m]easuring or estimating 
(a) levels of liquid assets with recognition of tiers of liquidity, 
(b) liquidation time frames''); Invesco FSOC Notice Comment letter, 
supra note 35, at 11 (stating that their liquidity analysis includes 
classifying certain portfolio holdings in liquidity buckets across a 
liquidity spectrum, utilizing certain quantitative metrics and 
qualitative factors).
    \159\ See, e.g., ICI FSOC Notice Comment Letter, supra note 16, 
at 23 (``While the SEC's 85 percent liquidity test requires binary 
determinations for each portfolio holding . . ., for broader 
liquidity management purposes fund managers think of portfolio 
holdings as falling along a liquidity continuum.'').
---------------------------------------------------------------------------

    Due to the foregoing concerns, we are proposing new requirements 
for classifying and monitoring the liquidity of funds' portfolio 
positions. Under proposed rule 22e-4, a fund would be required to 
classify the liquidity of each of the fund's positions in a portfolio 
asset (or portions of a position in a particular asset) and review the 
liquidity classification of each of the fund's portfolio positions on 
an ongoing basis.\160\ In classifying and reviewing the liquidity of 
portfolio positions, proposed rule 22e-4 would require a fund to 
consider the number of days within which a fund's position in a 
portfolio asset (or portions of a position in a particular asset) would 
be convertible to cash at a price that does not materially affect the 
value of that asset immediately prior to sale.\161\ The proposed rule 
would require a fund to consider certain specified factors in 
classifying the liquidity of its portfolio positions.\162\
---------------------------------------------------------------------------

    \160\ Proposed rule 22e-4(b)(2)(i).
    \161\ Id.; see also infra section III.B.1.a.
    \162\ See proposed rule 22e-4(b)(2)(ii); see also infra sections 
III.B.1.a, III.B.2.
---------------------------------------------------------------------------

    The proposed liquidity categorization process would be in addition 
to the existing 15% guideline (which would be retained, as discussed 
below \163\) and would require a fund to assess the liquidity of its 
portfolio positions individually, as well as the liquidity profile of 
the fund as a whole. A fund would be able to use this assessment, in 
turn, to establish procedures for managing its liquidity risk and to 
determine whether the liquidity of its portfolio reflects its liquidity 
needs for meeting shareholder redemptions, thus reducing potential 
dilution of non-redeeming shareholders.\164\ As described above, we 
understand that, in practice, funds apply the 15% guideline to limit 
the funds' exposures to particular types of securities that generally 
cannot be sold or sold quickly.\165\ Although the 15% guideline 
involves determining whether an asset can be sold or disposed of within 
seven days at approximately its stated value, it does not involve a 
fund considering whether it can actually receive the proceeds of any 
sale within seven days. The 15% guideline also does not involve a fund 
taking into account any market or other factors in considering an 
asset's liquidity,\166\ or assessing whether the fund's position size 
in a particular asset affects the liquidity of that asset. In contrast, 
the proposed liquidity categorization approach incorporates each of 
these aspects, which, as discussed further below, we believe are 
critical to comprehensively assessing the liquidity of a fund's 
position in a particular portfolio asset.\167\ We thus have come to 
consider the 15% guideline alone to be insufficient to limit a fund's 
liquidity risk given the fund's obligations to meet shareholder 
redemptions. We believe the principal benefit of the 15% guideline is 
to limit the ability of certain highly illiquid strategies, such as 
private equity, to operate in an open-end fund form.
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    \163\ See infra section III.C.4.
    \164\ See generally infra section III.C (discussing the proposed 
requirements associated with assessing and managing a fund's 
liquidity risk); see also infra section III.C.1 (discussing the 
factors a fund would be required to consider in assessing its 
liquidity risk, that is, the risk that a fund could not meet 
requests to redeem shares issued by the fund that are expected under 
normal conditions, or are reasonably foreseeable under stressed 
conditions, without materially affecting the fund's net asset 
value).
    \165\ See supra notes 94-97 and accompanying text.
    \166\ The Commission has, however, discussed factors that would 
be reasonable for a board of directors to take into account in 
assessing the liquidity of a rule 144A security (but which would not 
necessarily be determinative). See supra notes 96-97 and 
accompanying text.
    \167\ In section III.C.4 below, we discuss the interplay between 
the 15% guideline as proposed to be codified and the proposed 
requirement for a fund to invest a set minimum portion of its net 
assets in three-day liquid assets.
---------------------------------------------------------------------------

1. Proposed Relative Liquidity Classification Categories
a. Proposed Classification Requirement
    Proposed rule 22e-4(b)(2)(i) would require a fund to classify each 
of the fund's positions in a portfolio asset (or portions of a position 
in a particular asset) based on the relative liquidity of the 
position.\168\ For purposes of proposed rule 22e-4, a fund would assess 
the relative liquidity of each portfolio position based on the number 
of days within which it is determined, using information obtained after 
reasonable inquiry, that the fund's position in an asset (or a portion 
of that asset) would be convertible to cash \169\ at a price that does 
not materially affect the value of that asset immediately prior to 
sale. That is, the person who classifies the liquidity of each 
portfolio position \170\ must determine--using information obtained 
after reasonable inquiry--the time period in which the fund would be 
able to sell the position, at a price that does not materially affect 
the value of that asset immediately prior to sale, and settle the sale 
(i.e., receive cash for the sale of the asset). With respect to this 
determination, the term ``immediately prior to sale'' is meant to 
reflect that the fund must determine whether the sales price the fund 
would receive for the asset is reasonably expected to move the price of 
the asset in the market, independent of other market forces affecting 
the asset's value. The term ``immediately prior to sale'' is not meant 
to require a fund to anticipate and determine in advance the precise 
current market price or fair value of an asset at the moment before the 
fund would sell the asset. As discussed in more detail below, a fund 
would be required to consider certain specified market-based, trading, 
and asset specific factors in determining how long a particular 
portfolio position would take to convert to cash.\171\
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    \168\ As discussed in detail below, proposed rule 22e-4 would 
require a fund to assess and manage its liquidity risk, and these 
risk assessment and risk management requirements would be based in 
part on the proposed liquidity classification requirement set forth 
in proposed rule 22e-4(b)(2)(i) and described in this section. See 
infra sections III.C.1, III.C.3. We are also proposing to require 
that a fund disclose information regarding the liquidity 
classification of each of the fund's portfolio positions, as 
determined pursuant to proposed rule 22e-4(b)(2)(i). See infra 
section III.G.2.
    \169\ See proposed rule 22e-4(a)(3) (defining ``convertible to 
cash'' as ``the ability to be sold, with the sale settled'').
    \170\ See infra section III.D.3 (discussing designation of 
administrative responsibilities for the liquidity risk management 
program to the fund's adviser or officers).
    \171\ These factors are discussed in detail below. See infra 
section III.B.2.
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    In making this assessment, a fund could determine that different 
portions of a position in a particular asset could be converted to cash 
within different times. If a fund were to conclude, based on the 
liquidity classification factors required to be considered, that it 
would take the fund longer to convert its entire position in an asset 
to cash than it would to convert only a portion of that position to 
cash, it could determine, for example, that 50% of the position could 
be converted to cash within 1 day, but the remainder of the position 
could take up to 3 days to convert to cash. Staff outreach has shown 
that some funds currently consider the liquidity character of their 
portfolio holdings--particularly relatively large holdings--to be 
tiered in this manner, with a certain percentage of the holding deemed 
to be more liquid than the remainder of the holding. Proposed rule 22e-
4 would thus specify that a fund would be

[[Page 62293]]

required to adopt policies and procedures for classifying the liquidity 
of each of the fund's positions in a portfolio asset, or portions of 
the fund's position in a particular asset.\172\ In this release, any 
reference to a fund classifying the liquidity of its position in a 
particular portfolio asset should be read to also include circumstances 
in which the fund would classify the liquidity of portions of a 
position in a particular asset.
---------------------------------------------------------------------------

    \172\ See proposed rule 22e-4(b)(2)(i) (emphasis added).
---------------------------------------------------------------------------

    Based on its determination of the number of days within which the 
fund could convert its position in an asset to cash under this 
standard, the fund would be required to classify each of its positions 
in a portfolio asset into one of six liquidity categories:
    [cir] Convertible to cash within 1 business day.
    [cir] Convertible to cash within 2-3 business days.
    [cir] Convertible to cash within 4-7 calendar days.\173\
---------------------------------------------------------------------------

    \173\ See infra text following note 194 (discussing potential 
overlaps between the 2-3 business day and 4-7 calendar day liquidity 
classification categories).
---------------------------------------------------------------------------

    [cir] Convertible to cash within 8-15 calendar days.
    [cir] Convertible to cash within 16-30 calendar days.
    [cir] Convertible to cash in more than 30 calendar days.
    As discussed below, we anticipate that the proposed liquidity 
categorization approach would permit a fund to take a more nuanced 
approach to portfolio construction and liquidity risk management than 
an approach under which a fund would simply designate portfolio assets 
as liquid or illiquid. The proposed approach also would provide the 
framework for detailed reporting and disclosure about the liquidity of 
funds' portfolio assets in a structured data format, as the six 
liquidity categories described above would be incorporated into the 
fund's portfolio holdings reporting on proposed Form N-PORT.\174\ In 
particular, the structured data format would increase the ability of 
Commission staff, investors, and other potential users to aggregate and 
analyze the data in a much less labor-intensive manner. This data, in 
turn, would assist Commission staff in monitoring risks and trends with 
respect to funds' portfolio liquidity (for example, observing whether 
portfolio liquidity increases or decreases in response to market 
events), and would also permit investors to better evaluate the 
liquidity profile of funds' portfolios and better assess the potential 
for returns and risks of a particular fund.\175\ In addition, the 
proposed categorization requirement also would provide the foundation 
for the requirement for a fund to invest a prescribed minimum 
percentage of its net assets in ``three-day liquid assets'' (that is, 
any cash held by a fund and any position in an asset, or portion 
thereof, that the fund believes is convertible to cash within three 
business days at a price that does not materially affect the value of 
that asset immediately prior to sale).\176\
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    \174\ See proposed Item C.13 of proposed Form N-PORT; see also 
infra section III.G.2.
    \175\ See infra section III.G.2.
    \176\ See proposed rule 22e-4(a)(8); proposed rule 22e-
4(b)(2)(iv)(A)-(C); see also infra section III.C.3.
---------------------------------------------------------------------------

    The proposed approach would require a fund to assess the liquidity 
of its entire position in a portfolio asset, or each portion of that 
position, as opposed to the liquidity of the normal trading lot for 
that asset. It has been argued that because a fund will not likely need 
to sell its entire position in a particular asset under normal market 
circumstances, liquidity determinations should be based on the sale of 
a single trading lot for that asset, except in unusual 
circumstances.\177\ We agree that the fact that a fund may not be able 
to convert its entire position in an asset to cash at a price that does 
not materially affect the value of that asset immediately prior to sale 
should not, by itself, be dispositive of a portfolio asset's liquidity. 
Nevertheless, assessing liquidity only on the basis of the ability to 
sell and receive cash for a single trading lot of a portfolio asset 
ignores the fact that a fund needing to sell certain assets in order to 
meet redemptions would almost certainly need to sell greater than one 
trading lot of a particular asset. In addition, a fund may need to 
dispose of an entire position because of deteriorating credit quality 
or other portfolio management factors. Similarly, an index fund may 
need to sell an entire position in an asset if that asset falls out of 
the tracked index. The liquidity of the entire position size thus is 
relevant to the liquidity of the overall portfolio, a fund's ability to 
meet its stated investment strategy, and a fund's portfolio management.
---------------------------------------------------------------------------

    \177\ See Investment Company Institute, Valuation and Liquidity 
Issues for Mutual Funds (Feb. 1997) (``ICI Valuation and Liquidity 
Issues White Paper''), at 42.
---------------------------------------------------------------------------

    The proposed categorization approach also is meant to promote more 
consistent liquidity classification practices within the fund industry. 
Proposed rule 22e-4 would require a fund to consider certain specified 
factors, to the extent applicable, with respect to each position in an 
asset (or similar asset(s), if data concerning a particular portfolio 
asset is not available to the fund). The proposed rule would specify 
that this consideration must include certain specified market, trading, 
and asset-specific factors (each discussed in more detail below), as 
applicable.\178\ We believe that codifying these factors would 
contribute to more consistency in the quality and breadth of funds' 
analyses of their portfolio positions' liquidity, while recognizing 
that funds' portfolios, and the particular assets included within a 
portfolio, are diverse and that not every factor will be relevant to 
each liquidity determination. We recognize, and anticipate, that 
different funds could classify the liquidity of identical portfolio 
positions differently, depending on their analysis of the factors 
required to be considered under the proposed rule. There could be 
multiple appropriate reasons for this, including different information 
available to funds at different times, and fund-specific reasons for 
classifying the liquidity of a position in a particular way that are 
not equally applicable to another fund (for example, in the context of 
an asset used for hedging or risk mitigation purposes \179\).
---------------------------------------------------------------------------

    \178\ See proposed rule 22e-4(b)(2)(ii); see also infra section 
III.B.2.
    \179\ See infra section III.B.2.i.
---------------------------------------------------------------------------

    Proposed rule 22e-4 does not specify that certain asset classes 
fall within particular liquidity categories, because we believe that 
individual funds would be more effective in assessing and reviewing 
their portfolio positions' liquidity based on an evaluation of market 
and asset-specific factors, than the Commission would be in determining 
asset classes' liquidity based on a categorical approach. While we 
recognize that permitting each fund to determine its own portfolio 
positions' liquidity would likely result in less consistency in funds' 
portfolio position liquidity classifications than specifying by rule 
which asset classes fall into certain liquidity categories, we believe 
that the proposed approach is preferable to an approach that involves 
Commission-imposed liquidity classifications of certain asset classes. 
We are concerned that an approach involving Commission-imposed 
liquidity classifications would likely result in certain assets' 
liquidity being overestimated and others' liquidity being 
underestimated, since we believe that a portfolio position's liquidity 
character depends on a range of interrelated factors (as discussed

[[Page 62294]]

below).\180\ Also, we are concerned that Commission-imposed liquidity 
classifications would be overly rigid and would be difficult to adjust 
quickly to reflect changing market conditions.\181\ Thus, we believe 
that this approach would be more likely to provide an inaccurate 
reflection of an asset's liquidity than the proposed classification 
approach.
---------------------------------------------------------------------------

    \180\ See infra section III.B.2.
    \181\ See, e.g., Flash Crash Staff Report, supra note 124 
(noting that, while ``[t]he U.S. Treasury market is the deepest and 
most liquid government securities market in the world,'' liquidity 
conditions in the market for U.S. Treasury securities became 
``significantly strained'' during the October 2015 ``Flash Crash'').
---------------------------------------------------------------------------

    Although we are not proposing an approach that presumes that 
certain asset classes fall within particular liquidity categories, we 
note that if a fund is an outlier with respect to its liquidity 
classifications, Commission staff would be able to identify such 
outlier classifications based on the fund's position-level liquidity 
disclosure on Form N-PORT and determine whether further inquiry is 
appropriate.\182\ If Commission staff does determine to examine a 
fund's liquidity classifications based on the fund's Form N-PORT 
disclosure, it would be able to examine whether the fund considered the 
required factors in classifying the liquidity of its portfolio 
positions. Thus, while the actual liquidity classifications assigned to 
funds' portfolio positions could vary from fund to fund, the proposed 
approach provides a regulatory framework that should promote 
consistency in funds' liquidity classification practices.
---------------------------------------------------------------------------

    \182\ See infra section III.G.2.
---------------------------------------------------------------------------

    The proposed approach to liquidity classification reflects our 
understanding that many funds evaluate assets' liquidity across a 
liquidity spectrum, as opposed to making a binary determination of 
whether an asset is liquid or illiquid. As discussed above, Commission 
staff outreach to funds has shown us that it is common for funds to 
treat portfolio assets as relatively liquid or illiquid compared to 
other portfolio assets, and some funds ``score'' the liquidity of their 
portfolio holdings based on a variety of factors, including the period 
of time it takes to convert the holdings to cash, similar to those that 
we are proposing. We also understand that some third-party service 
providers currently provide data and analyses assessing the relative 
liquidity of a fund's portfolio assets.\183\
---------------------------------------------------------------------------

    \183\ See infra note 205 and accompanying paragraph.
---------------------------------------------------------------------------

    A nuanced liquidity classification approach has practical benefits 
in terms of managing liquidity to meet anticipated redemptions. Because 
we understand based on staff outreach that many funds today consider 
very few, if any, of their portfolio assets to be holdings limited by 
the 15% guideline, we believe that the proposed spectrum-based approach 
to liquidity classification acknowledges the liquidity variation in 
funds' portfolio positions better than the current framework, in which 
a fund could consider its entire portfolio (or a significant portion of 
the portfolio) to be simply ``liquid.'' We believe that this approach 
would permit a fund to better plan how it would meet redemptions 
occurring in a day, a week, or some other period, by categorizing asset 
positions in terms of the respective times in which they could be 
converted to cash and constructing the fund's portfolio in order to 
manage its expected and reasonably foreseeable redemptions during these 
periods. The proposed liquidity classification approach also would 
enhance a fund's ability to adjust its portfolio composition in 
anticipation of, or in reaction to, adverse events, or to comply with 
its investment strategy or mandate.
    The proposed approach would provide the framework for reporting and 
disclosure about the liquidity of funds' portfolio assets that would 
permit our staff to better monitor liquidity trends and funds' 
liquidity risk profiles, and also would help investors and other market 
participants assess funds' relative liquidity. As discussed below, we 
are proposing amendments to proposed Form N-PORT that would require a 
fund to indicate the liquidity classification of each of a fund's 
portfolio positions.\184\ Funds are not currently required to disclose 
information about the liquidity of their portfolio assets, although 
Item C.7 of Form N-PORT, as proposed earlier this year, would require 
that each fund report whether each particular portfolio security is an 
``illiquid asset'' and defines illiquid assets in terms of current 
Commission guidelines.\185\ Requiring a fund to classify the liquidity 
of each portfolio position also would facilitate fulsome reporting of a 
fund's liquidity profile on Form N-PORT. As discussed below, we believe 
that the proposed N-PORT reporting requirements would permit enhanced 
Commission monitoring and oversight of the fund industry and would 
result in investor protection benefits, because we believe the proposed 
requirements would permit investors (particularly institutional 
investors), as well as academic researchers, financial analysts, and 
economic research firms, to use the liquidity-related data reported on 
Form N-PORT to evaluate fund portfolios and related risks.\186\
---------------------------------------------------------------------------

    \184\ See infra section III.G.2.a.
    \185\ See supra note 118 and accompanying text; see also infra 
notes 563-565 and accompanying text.
    \186\ See infra sections III.G.2.a; IV.C.3.b.
---------------------------------------------------------------------------

    The time frames associated with the proposed liquidity categories 
reflect our understanding of some of the relevant periods that some 
funds currently consider in assessing the liquidity of a fund's 
portfolio assets.\187\ There are many ways in which identifying 
portfolio positions that are convertible to cash in one business day or 
two-to-three business days could enhance a fund's ability to calibrate 
its liquidity profile in order to manage its expected and reasonably 
foreseeable redemptions during these periods.\188\ For example, if a 
fund discloses that it will generally pay redemption proceeds within 
one business day after receiving a shareholder's redemption request 
(although it may delay payment for seven calendar days, as permitted by 
section 22(e) of the Investment

[[Page 62295]]

Company Act), it would be required to identify portfolio assets that, 
if needed, could be converted to cash within one day. Many funds that 
do not pay redemption proceeds within a day of receiving a redemption 
request nevertheless may pay redemption proceeds within a time period 
shorter than the seven days required by section 22(e). For example, 
because rule 15c6-1 under the Exchange Act, which became effective in 
1995, established three business days as the standard settlement period 
for securities trades effected by a broker-dealer, this rule 
effectively requires most funds to pay redemption proceeds within three 
business days after receiving a redemption request, because a broker or 
dealer will be involved in the redemption process.\189\ Market 
participants also are exploring further reducing this settlement period 
from T+3 to T+2, and possibly eventually to T+1.\190\ Likewise, even 
funds that do not disclose that they will pay redemption proceeds 
within periods shorter than seven days may find it useful to identify 
portfolio positions that may be converted to cash quickly (i.e., within 
three business days or shorter) in order to meet unexpected or 
unusually high redemption requests, or to rebalance or otherwise adjust 
a portfolio's composition quickly.
---------------------------------------------------------------------------

    \187\ We note that Question 32 on Form PF requests information 
regarding the percentage of the reporting fund's portfolio capable 
of being liquidated within certain time frames. See supra note 70 
for additional information about Form PF. However, the time frames 
associated with the liquidity categories in proposed rule 22e-4 are 
different from those incorporated in Form PF Question 32 on account 
of the different redemption obligations of registered funds versus 
private funds, as well as, relatedly, the different liquidity 
profile of registered funds' portfolio assets (generally) versus 
private funds' portfolio assets.
    \188\ With respect to the one-day and two-to-three-day liquidity 
categories, we are proposing to incorporate a convertible-to-cash 
time period that is based on business days instead of calendar days, 
in order to minimize unnecessary re-classifications of portfolio 
positions that could affect data analyses of a fund's Form N-PORT 
data reporting regarding these positions. If these two liquidity 
categories were based on calendar days instead of business days, a 
portfolio position reported on a Friday might be considered to be 
convertible to cash within three calendar days (because markets 
would not be open over the weekend), but the same portfolio position 
reported on a different weekday would be considered to be 
convertible to cash within one or two calendar days. This could 
cause a fund to have to re-classify portfolio positions based on the 
reporting date, and this re-classification could skew analyses that 
the Commission staff or other parties conduct using Form N-PORT 
data. Because the required classification is the most granular in 
shortest-term liquidity categories, we believe such reporting 
consistency is particularly important. However, after the one-day 
and two-to-three-day liquidity categories, we are proposing to 
switch to a calendar day framework both to tie to the seven calendar 
day requirement for meeting redemptions under section 22(e) of the 
Act and because the longer the timeframe is to convert the asset to 
cash, the more we recognize the timeframe is likely to be a less 
precise estimate and thus the additional precision from the business 
day categorization is less likely to be material to the 
classification.
    \189\ See Securities Transactions Settlement Release, supra note 
74. In 2004, the Commission issued a concept release seeking input 
on, among other things, the benefits and costs associated with 
implementing a settlement cycle for most broker-dealer transactions 
that is shorter than three days. Concept Release: Securities 
Transactions Settlement, Investment Company Act Release No. 26384 
(Mar. 11, 2004) [69 FR 12922 (Mar. 18, 2004)] (``Securities 
Transactions Settlement Concept Release'').
     Several comments from asset managers received in response to 
the FSOC Notice noted that, as a practical matter, the three-
business-day settlement requirements of rule 15c6-1 effectively take 
most fund investments to a T+3 settlement timeline. See, e.g., SIFMA 
IAA FSOC Notice Comment Letter, supra note 16, at n.34; Fidelity 
FSOC Notice Comment Letter, supra note 20, at n.20.
    \190\ See supra note 76 and accompanying text.
---------------------------------------------------------------------------

    Along with identifying positions that may be converted to cash 
within either one business day or two-to-three business days, we 
believe that identifying each ``less liquid asset''--that is, any 
position in an asset (or portion of a position in a particular asset) 
that is not a three-day liquid asset \191\--would enhance a fund's 
ability to determine the portion of the fund's portfolio that the fund 
may not be able to rely on selling to meet redemption requests within 
the three-day period required by rule 15c6-1 under the Exchange Act, or 
within some shorter period.\192\ Among less liquid assets, some may be 
convertible to cash in just over three business days, others may not be 
convertible to cash for a year or more, and still others may fall in 
between these two extremes. To reflect this, we are proposing four 
categories of less liquid assets: Positions convertible to cash within 
four-to-seven calendar days, eight-to-fifteen calendar days, sixteen-
to-thirty calendar days, and over-thirty calendar days.\193\
---------------------------------------------------------------------------

    \191\ See proposed rule 22e-4(a)(6).
    \192\ See infra notes 333-334 and accompanying text (discussing 
common reasons why a fund could be required to meet redemption 
requests within three business days, or within some shorter period).
    \193\ See proposed rule 22e-4(b)(2)(i)(C)-(F).
---------------------------------------------------------------------------

    Determining whether a portfolio position is convertible to cash 
within four-to-seven calendar days would enhance a fund's ability to 
identify those positions that are not immediately or very quickly 
convertible to cash (i.e., those positions convertible to cash within 
one, two, or three business days), but that nevertheless could be 
converted to cash in a time frame that would permit funds to pay 
redeeming shareholders within the seven-day period established by 
section 22(e). For example, for a fund that typically sells its most 
liquid assets to meet redemptions, the four-to-seven day liquidity 
category could assist the fund in constructing a second layer of 
portfolio liquidity to meet redemptions using liquidity within the fund 
even after it has sold or disposed of its most liquid assets.\194\ We 
anticipate that funds could determine that a variety of securities 
within different asset classes could be converted to cash within four-
to-seven calendar days, depending on facts and circumstances.
---------------------------------------------------------------------------

    \194\ See supra text accompanying and following note 37 
(discussing the fact that a fund that sells its most liquid assets 
to meet redemptions minimizes the effect of the redemptions on 
short-term fund performance for redeeming and remaining investors, 
but may leave remaining investors in a potentially less liquid and 
riskier fund until the fund rebalances).
---------------------------------------------------------------------------

    We understand that circumstances could arise in which the 
settlement period for a particular portfolio position could be viewed 
either as two-to-three business days or four-to-seven calendar days. 
For example, if a sale were to occur on a Thursday and be settled on a 
Monday, the settlement period could be viewed either as two business 
days or four calendar days. Because this could cause ambiguity for 
reporting purposes,\195\ in situations in which the settlement period 
could be viewed either as two-to-three business days or four-to-seven 
calendar days, a fund should classify the portfolio position based on 
the shorter settlement period (i.e., two-to-three business days, not 
four-to-seven calendar days).\196\
---------------------------------------------------------------------------

    \195\ See infra section III.G.2 (discussing proposed Form N-PORT 
reporting requirements).
    \196\ See proposed note to proposed rule 22e-4(b)(2)(i); see 
also supra note 188.
---------------------------------------------------------------------------

    We believe that the eight-to-fifteen calendar day and sixteen-to-
thirty calendar day categories of less liquid assets would distinguish 
a position that is convertible to cash in close to seven calendar days 
(i.e., close to the required redemption period established by section 
22(e)) from one that takes significantly longer (i.e., close to a 
month) to convert to cash. For example, if a fund were to enter into a 
period of extended redemptions that it anticipates would last for 
multiple days, it could begin trying to liquidate eight-to-fifteen day 
assets in order to plan to meet redemptions that would occur more than 
a week in the future. The over-thirty calendar day category is meant to 
identify those portfolio positions that are the least liquid, including 
those that may have very extended settlement periods.
    Assets with settlement periods longer than three business days 
would be considered less liquid assets. Assets also should be 
classified under the rule based on typical expected settlement periods 
for transactions in that asset in the particular jurisdiction, and not 
based on the prospect of gaining expedited settlement of the purchase 
or sale upon request. Transactions in certain types of securities have 
historically entailed lengthy settlement periods. For example, 
transactions in certain foreign securities,\197\ agency mortgage-backed 
securities (other than secondary market trades),\198\ and U.S.

[[Page 62296]]

bank loan participations \199\ typically require settlement periods of 
more than three business days. An asset having a shorter settlement 
period could also be considered to be a less liquid asset, however, if 
a fund were to determine, based on the factors required to be assessed 
under the proposed rule, that it could not sell its position in the 
asset and settle the sale (at a price that does not materially affect 
the value of that asset immediately prior to sale) within three 
business days.
---------------------------------------------------------------------------

    \197\ See, e.g., Comment Letter of the Global Foreign Exchange 
Division to the European Commission and the European Securities and 
Markets Authority re: Consistent Regulatory Treatment for Incidental 
Foreign Exchange (FX) Transactions Related to Foreign Securities 
Settlement--``FX Security Conversions'' (Mar. 25, 2014), available 
at http://www.gfma.org/Initiatives/Foreign-Exchange-(FX)/GFMA-
Submits-Comments-to-the-EC-and-the-ESMA-on-Consistent-Regulatory-
Treatment-for-Incidental-Foreign-Exchange-Transactions/ 
(``Typically, the settlement cycle for most non-EUR denominated 
securities is trade date plus three days (`T+3'). Accordingly, the 
bank custodian or broker-dealer would enter into a FX transaction on 
a T+3 basis as well. In some securities markets, for example in 
South Africa, the settlement cycle can take up to seven days 
(T+7).'').
    \198\ See, e.g., James Vickery & Joshua Wright, TBA Trading and 
Liquidity in the Agency MBS Market, 19 FRBNY Econ. Policy Review 1 
(May 2013), available at http://www.newyorkfed.org/research/epr/2013/1212vick.pdf (noting that over ninety percent of agency 
mortgage-backed securities trading occurs in the to-be-announced 
(``TBA'') forward market, and that the trade date of a TBA trade 
will usually precede settlement by between two and sixty days).
    \199\ See, e.g., BlackRock, Viewpoint, Who Owns the Assets, 
supra note 79; Michael Mackenzie & Tracy Alloway, Lengthy US loan 
settlements prompt liquidity fears, Fin. Times (May 1, 2014) 
available at http://www.ft.com/intl/cms/s/0/32181cb6-d096-11e3-9a81-00144feabdc0.html; OppenheimerFunds FSOC Notice Comment Letter, 
supra note 79, at 3-4 (stating that ``loans still take longer to 
settle than other securities. Median settlement times for buy-side 
loan sales are 12 days'' and noting that an ``important tool in 
managing settlement times is the establishment of a credit line 
dedicated to bank loan funds.'').
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b. Request for Comment
    We request comment on the proposed requirements for classifying the 
relative liquidity of a fund's portfolio positions.
     What procedures or practices do funds currently use to 
assess and classify the liquidity of portfolio assets? Have these 
procedures proven effective in the past? If not, under what 
circumstances were they ineffective, and why? Have funds modified their 
procedures for assessing and classifying liquidity in recent years to 
account for changes in market structure and the advent of new types of 
market participants? If so, how? Who at the fund and/or the adviser is 
tasked with assessing the liquidity of the funds' portfolio assets? Are 
any third-party service providers used in assessing portfolio assets' 
liquidity, and if so, how are such service providers used and what are 
the costs associated with their services? Would the proposed 
requirements require funds to make systems modifications and what costs 
would be associated with any potential system modifications? What would 
the associated costs and other burdens be for funds to assess and 
classify the liquidity of portfolio assets?
     Do commenters agree that it would be useful for a fund to 
consider portfolio positions' liquidity in terms of a spectrum instead 
of a binary determination that an asset is liquid or illiquid, and do 
funds currently consider the relative liquidity of portfolio assets by 
classifying assets (either explicitly or informally) into multiple 
liquidity categories? If so, what categories are used, and why? 
Alternatively, should we define the term ``illiquid assets?'' Why or 
why not? If so, how should we define it?
     Do funds currently consider the period in which a fund's 
position in an asset can be converted into cash (that is, sold, with 
the sale settled) in assessing and classifying the liquidity of 
portfolio assets? Do commenters agree that it would be useful for a 
fund to assess the liquidity of its entire position in a portfolio 
asset, or portions of a position in a particular asset, as opposed to 
the liquidity of a single trading lot of a portfolio asset held by the 
fund? Do funds currently consider the ability to sell varying portions 
of a fund's position in a portfolio asset (fractions of the position, 
as well as the entire position) in assessing that asset's liquidity?
     What assumptions, estimations, and judgments would funds 
need to make in order to determine liquidity classifications, and how 
would these assumptions, estimations, and judgments affect the 
comparability of reporting across funds? Are there concerns, such as 
proprietary or liability concerns, associated with reporting liquidity 
classifications based on such assumptions, estimations, and judgments?
     The proposed rule would require a fund to determine, using 
information obtained after reasonable inquiry, the number of days 
within which a fund's position in a portfolio asset (or portion of a 
position in a particular asset) would be convertible to cash at a price 
that does not materially affect the value of that asset immediately 
prior to sale. Do commenters believe that the terms ``information 
obtained using reasonably inquiry,'' ``at a price that does not 
materially affect the value of that asset,'' and ``immediately prior to 
sale'' are sufficiently clear? If not, how could they be made clearer?
     Do the proposed liquidity categories reflect the manner in 
which funds currently assess and categorize the liquidity of their 
portfolio holdings as part of their portfolio and risk management? 
Should we increase or decrease the number of liquidity categories to 
which a fund might assign a portfolio position? For example, should we 
combine the last three liquidity categories (convertible to cash within 
8-15, 16-30, or in more than 30 calendar days) into one liquidity 
classification category (e.g., ``convertible to cash in more than 7 
calendar days'')? Why or why not? Should we add one or more liquidity 
categories outside of the more than 30 calendar day time period (e.g., 
``convertible to cash in more than 90 calendar days'')? Why or why not? 
Should we revise the time periods associated with any of the proposed 
liquidity categories? Alternatively, should we permit a fund to 
classify the liquidity of its portfolio securities based not on 
conversion-to-cash time periods specified by the Commission, but 
instead based on conversion-to-cash time periods that the fund 
determines to be appropriate (taking into account the fund's redemption 
obligations)? Would such an approach diminish comparability in funds' 
reporting of their liquidity assessment on proposed Form N-PORT, 
discussed below?
     Regarding the proposed liquidity categories that would be 
associated with less liquid assets, is there any reason why an asset 
with a settlement period longer than three business days should not be 
deemed to be a less liquid asset? What types of funds would be largely 
composed of assets that would be considered less liquid assets under 
proposed rule 22e-4?
     To what extent do commenters anticipate that assets in the 
eight-to-fifteen calendar days, sixteen-to-thirty calendar days, and 
over-thirty calendar days classification categories under the proposed 
rule overlap with assets that funds currently consider to be limited by 
the 15% guideline?
     Are the proposed liquidity categories appropriate for ETFs 
and ETMFs? Should ETFs and ETMFs that transact primarily in kind be 
permitted to have different liquidity categories? If so, what 
categories and why?
     Should smaller funds or funds pursuing particular types of 
investment strategies be permitted to have different liquidity 
categories? If so, how should we define those subsets of funds?
     Should we use business days or calendar days for all the 
liquidity classification categories, rather than using business days in 
the shorter categories, but calendar days for the longer categories? If 
we used calendar days for all the categories, how could we avoid 
changes in asset classification based on whether the asset was held 
near a weekend? In addition, if we used calendar days, how could we 
obtain information on which assets could be converted to cash within 
the three business day requirement in rule 15c6-1? If we used business 
days for all categories, how could we obtain information on which 
assets could be converted to cash within the seven calendar day (as 
opposed to business day) requirement for payment of redemption proceeds 
under section 22(e) of the Act?
2. Factors To Consider in Classifying the Liquidity of a Portfolio 
Position
    Staff outreach to the fund industry has highlighted certain common 
factors

[[Page 62297]]

that some funds use in evaluating portfolio assets' liquidity. 
Specifically, the most comprehensive liquidity analyses take into 
account relevant market-based, trading, and asset-specific factors in 
assessing a fund's ability to convert a position in a portfolio asset 
(or portions of a position in a particular asset) to cash at 
approximately its stated value during current market conditions. The 
Commission has previously provided examples of factors that would be 
reasonable for a board of directors to consider in assessing the 
liquidity of a rule 144A security,\200\ and outreach has shown that 
certain funds reference these factors when considering the liquidity of 
all portfolio assets (not just rule 144A securities). Other funds, 
however, classify the liquidity of their portfolio assets using 
substantially less thorough practices (e.g., assuming, without 
individualized analysis, that certain asset classes are always liquid 
or always illiquid). As discussed above, we believe that a nuanced 
classification approach may have practical benefits in improving how 
funds manage liquidity to meet anticipated redemptions.\201\
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    \200\ See supra note 96 and accompanying text.
    \201\ See supra paragraphs accompanying note 178 and following 
note 183.
---------------------------------------------------------------------------

    Proposed rule 22e-4(b)(2)(ii) would require a fund to take the 
following factors into account, to the extent applicable, when 
classifying the liquidity of each portfolio position in a particular 
asset:
     Existence of an active market for the asset, including 
whether the asset is listed on an exchange, as well as the number, 
diversity, and quality of market participants;
     Frequency of trades or quotes for the asset and average 
daily trading volume of the asset (regardless of whether the asset is a 
security traded on an exchange);
     Volatility of trading prices for the asset;
     Bid-ask spreads for the asset;
     Whether the asset has a relatively standardized and simple 
structure;
     For fixed income securities, maturity and date of issue;
     Restrictions on trading of the asset and limitations on 
transfer of the asset;
     The size of the fund's position in the asset relative to 
the asset's average daily trading volume and, as applicable, the number 
of units of the asset outstanding; and
     Relationship of the asset to another portfolio asset.
    These factors are based on those certain investment advisers 
consider when systematically evaluating the liquidity of portfolio 
assets.\202\ We are proposing to require that all funds take into 
account these factors, as applicable, to encourage effective liquidity 
assessment across the fund industry. This list is not meant to be 
exhaustive. We recognize that the specific factors appropriate for 
consideration could vary depending on the issuer and the particular 
asset, and therefore an evaluation of a particular portfolio position's 
liquidity could focus more heavily on certain factors and less on 
others. In evaluating the liquidity of its portfolio positions, a fund 
could also take into account other pertinent factors in addition to 
those set forth in proposed rule 22e-4(b)(2)(ii). However, a fund would 
be required to consider, as applicable, the proposed rule 22e-
4(b)(2)(ii) factors as a minimum set of considerations to be used in 
classifying the liquidity of each portfolio position.
---------------------------------------------------------------------------

    \202\ See, e.g., ICI FSOC Notice Comment Letter, supra note 16, 
at 23 (``Specific information that may contribute further to the 
manager's view of an asset's liquidity may include: (i) assessments 
of bid-ask spreads, volumes, depth of secondary market for the 
asset, information from pricing vendors, and other data; (ii) 
deliberations among portfolio managers and traders regarding 
valuation and liquidity; (iii) analysis of the capital structure and 
credit quality of the asset/holding; (iv) the ``newness'' of a bond 
issue (newer issues tend to be more liquid); and (v) liquidity data 
provided by third parties. Some fund managers assign ``liquidity 
scores'' to particular holdings based on these types of factors.'').
---------------------------------------------------------------------------

    If a fund lacks pertinent information about a portfolio asset, the 
fund would be required to consider the proposed rule 22e-4(b)(2)(ii) 
factors as applied to similar assets (for purposes of this release, 
``comparable assets'').\203\ For example, if a fund has never before 
invested in a particular asset--particularly, an asset that does not 
trade frequently and for which market data is not generally available 
or is of low quality--the fund could estimate the time it would take to 
convert the asset to cash if better market data were available for 
comparable assets (for example, as applicable, assets that are similar 
in terms of duration, credit quality, bid-ask spread, and/or maturity). 
Under these circumstances, a fund would be required to evaluate all 
applicable 22e-4(b)(2)(ii) factors with respect to the comparable 
assets. If data concerning a portfolio asset (as opposed to the 
comparable assets) were to become available to a fund, we would expect 
that a fund would assess, as part of its ongoing review of the 
liquidity classifications assigned to each portfolio position, whether 
the liquidity classification given to the portfolio asset is 
appropriate in light of newly available data.\204\
---------------------------------------------------------------------------

    \203\ See proposed rule 22e-4(b)(2)(ii).
    \204\ See infra section III.B.3.a.
---------------------------------------------------------------------------

    We understand that some third-party service providers currently 
provide data and analyses assessing the relative liquidity of a fund's 
portfolio assets,\205\ and we believe that a fund could also 
appropriately use this type of data to inform or supplement its 
consideration of the proposed liquidity classification factors. 
However, before doing so, a fund should consider having the person(s) 
at the fund or investment adviser tasked with administering the fund's 
liquidity risk management program review the quality of the data 
received from third parties, as well as the particular methodologies 
used and metrics analyzed by third parties, to determine whether this 
data would effectively inform or supplement the fund's consideration of 
the proposed liquidity classification factors. This review could 
include an assessment of whether modifications to an ``off-the-shelf'' 
product are necessary to accurately reflect the liquidity 
characteristics of the fund's portfolio holdings.
---------------------------------------------------------------------------

    \205\ These third-party vendors may, for example, create 
liquidity scores for a fund's portfolio assets based on factors such 
as duration, rating, bid-ask spreads, and instrument maturity, and 
provide models that reflect how an asset's liquidity may be affected 
by different market conditions.
---------------------------------------------------------------------------

    In the following sections, we discuss each of the proposed 
liquidity classification factors and provide guidance on specific 
issues associated with each of these factors that a fund may wish to 
consider in evaluating the liquidity of its portfolio positions.
a. Existence of Active Market, Including Whether the Asset Is Listed on 
an Exchange, and the Number, Diversity, and Quality of Market 
Participants
    Under proposed rule 22e-4(b)(2)(ii)(A), a fund would be required to 
consider, to the extent applicable, the existence of an active market 
for the asset, including whether the asset is listed on an exchange, as 
well as the number, diversity, and quality of market participants.
    The manner in which a fund may sell a particular portfolio asset, 
including whether an asset is listed on an exchange, can affect that 
asset's liquidity. While in general, being listed on a developed and 
recognized exchange increases an asset's liquidity,\206\ the fact that 
an asset is

[[Page 62298]]

exchange-traded does not necessarily mean that a fund would be able to 
convert that asset to cash within a relatively short period. For 
example, a small-cap equity stock might be listed on an exchange but 
trade quite infrequently, which would tend to decrease its relative 
liquidity. Conversely, certain securities that are traditionally traded 
in over-the-counter (``OTC'') markets, such as corporate bonds, could 
be considered more liquid if, for instance, they are frequently traded 
and there are generally a substantial number of bids to purchase the 
security. As an extreme example, short-term securities issued (or 
guaranteed as to principal and interest) by the U.S. government do not 
trade on exchanges, but are typically considered to be quite 
liquid.\207\
---------------------------------------------------------------------------

    \206\ See, e.g., Basel Committee on Banking Supervision, Basel 
III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring 
Tools (Jan. 2013), at part 1, section II.A.1, available at http://www.bis.org/publ/bcbs238.pdf; see also Nuveen FSOC Notice Comment 
Letter, supra note 45, at 9 (``While securities that trade on 
exchanges. . . or in deep principal/over-the-counter (``OTC'') 
markets (e.g., U.S. Treasuries) are generally liquid even in 
stressed markets, other securities that trade on an OTC basis. . . 
have faced increasing liquidity challenges in normal markets and can 
be subject to insufficient quality bids in times of stress as market 
makers pull back their capital. This can make it not only more 
difficult to sell these securities, but also to accurately value 
those assets that are retained.'').
    \207\ See rule 15c3-1(c)(2)(vi)(A)(1) under the Exchange Act 
(describing securities haircuts for securities issued or guaranteed 
as to principal or interest by the United States or any agency 
thereof); see also Liquidity Coverage Ratio: Liquidity Risk 
Measurement Standards (Sept. 9, 2014) [79 FR 61440 (Oct. 10, 2014)] 
(``Liquidity Coverage Ratio Release'') (in liquidity coverage ratio 
rule adopted by the Office of the Comptroller of the Currency, Board 
of Governors of the Federal Reserve System, and the Federal Deposit 
Insurance Corporation, ``Level 1 Liquid Assets'' are described as 
securities issued or unconditionally guaranteed as to timely payment 
of principal and interest by the U.S. Department of the Treasury, 
and liquid and readily-marketable securities issued or 
unconditionally guaranteed as to the timely payment of principal and 
interest by any other U.S. government agency (provided that its 
obligations are fully and explicitly guaranteed by the full faith 
and credit of the U.S. government)). But see Flash Crash Staff 
Report, supra note 124 (noting that, while ``[t]he U.S. Treasury 
market is the deepest and most liquid government securities market 
in the world,'' liquidity conditions in the market for U.S. Treasury 
securities became ``significantly strained'' during the October 2015 
``Flash Crash'').
---------------------------------------------------------------------------

    The means of trading a portfolio asset can affect its liquidity 
regardless of whether the asset is a security traded on an exchange. 
For example, whether an asset is traded in a bilateral transaction with 
a single dealer, or through an electronic auction mechanism whereby a 
trader can simultaneously contact multiple counterparties, can have 
different effects on that asset's liquidity.\208\ The choice of trading 
mechanism may have different liquidity effects depending on the asset 
being traded and other market conditions, and therefore it is difficult 
to make general statements regarding the correlation between a 
particular trading mechanism and the liquidity of the asset being 
traded. However, a fund should consider past experience in using 
different trading mechanisms to sell a particular asset (or similar 
assets), when assessing the liquidity of a portfolio position in that 
asset.
---------------------------------------------------------------------------

    \208\ See, e.g., Terrence Hendershott & Ananth Madhavan, Click 
or Call? Auction versus Search in the Over-the-Counter Market (Mar. 
19, 2012), available at http://people.stern.nyu.edu/jhasbrou/SternMicroMtg/SternMicroMtg2012/Accepted/ClickOrCall13.pdf.
---------------------------------------------------------------------------

    In addition, there are multiple considerations that a fund could 
assess in evaluating the diversity and quality of market participants 
for a particular asset. A fund may wish to consider the number of 
market makers on both the buying and selling sides of transactions. A 
fund also may consider the quality of market participants who purchase 
and sell units of a particular portfolio asset, and may wish to assess, 
in particular: The market participant's capitalization; the reliability 
of the market participant's trading platform(s); and the market 
participant's experience and reputation transacting in various types of 
assets. We believe that the diversity and quality of market 
participants are meaningful in assessing a portfolio position's 
liquidity because the most liquid assets tend to have active sale or 
repurchase markets at all times with diverse market participants.\209\ 
The presence of multiple market makers may be a sign that a market is 
liquid.\210\ Diversity of market participants, on both the buying and 
selling sides of transactions, is also an important factor for a fund 
to consider because it tends to reduce market concentration and may 
facilitate a market remaining liquid during periods of stress.\211\
---------------------------------------------------------------------------

    \209\ See, e.g., Abdourahmane Sarr & Tonny Lybek, Measuring 
Liquidity in Financial Markets, IMF Working Paper (Dec. 2002), 
available at http://www.imf.org/external/pubs/ft/wp/2002/wp02232.pdf 
(``Liquid markets tend to exhibit five characteristics: (i) 
tightness (ii) immediacy, (iii) depth, (iv) breadth, and (v) 
resiliency.'').
    \210\ See, e.g., Sunil Wahal, Entry, Exit, Market Makers, and 
the Bid-Ask Spread, 10 Rev. of Fin. Stud. 871 (1997), available at 
http://www.acsu.buffalo.edu/~keechung/MGF743/Readings/H1.pdf 
(``Large-scale entry (exit) is associated with substantial declines 
(increases) in quoted end-of-day inside spreads, even after 
controlling for the effects of changes in volume and volatility. The 
spread changes are larger in magnitude for issues with few market 
makers; however, even for issues with a large number of market 
makers, substantial changes in quoted spreads take place.'').
    \211\ See, e.g., Amir Rubin, Ownership Level, Ownership 
Concentration, and Liquidity, 10 J. Fin. Markets 219 (Aug. 2007), 
available at http://www.sfu.ca/~arubin/JFM_2006074.pdf (``We examine 
the link between the liquidity of a firm's stock and its ownership 
structure, specifically, how much of the firm's stock is owned by 
insiders and institutions, and how concentrated is their ownership. 
We find that the liquidity-ownership relation is mostly driven by 
institutional ownership rather than insider ownership. Importantly, 
liquidity is positively related to total institutional holdings but 
negatively related to institutional block holdings.'').
---------------------------------------------------------------------------

b. Frequency of Trades or Quotes and Average Daily Trading Volume
    Proposed rule 22e-4(b)(2)(ii)(B) would require a fund to consider 
the frequency of trades and quotes for a particular asset in evaluating 
the liquidity of a portfolio position in that asset, as well as the 
asset's average daily trading volume, regardless of whether the asset 
is a security traded on an exchange.
    In general, the greater the frequency of trades for an asset (and, 
relatedly, the greater the frequency of bid and ask quotes for that 
asset), the more liquid that asset is. However, this is not a perfect 
or complete measure, and trade size also should be considered in 
assessing the relationship between trade frequency and liquidity. For 
example, 100 trades at $100 might or might not signify greater 
liquidity than 50 trades at $200, although they are likely to suggest 
better liquidity than one trade at $10,000.\212\ In evaluating the 
frequency of trades (and bid and ask quotes) for an asset, a fund 
should generally consider, among other relevant factors, the number of 
dealers quoting prices for that asset, the number of other potential 
purchasers and sellers, and dealer undertakings to make a market in the 
asset.
---------------------------------------------------------------------------

    \212\ See Erik Banks, Liquidity Risk: Managing Funding and Asset 
Risk (2nd ed. 2013), at 169.
---------------------------------------------------------------------------

    High average trading volume also tends to be correlated with 
greater liquidity. In general, the greater the average daily trading 
volume for a particular portfolio asset, the deeper the market, and the 
more likely it is that a fund would be able to convert its position to 
cash at a price that does not materially affect the value of that asset 
immediately prior to sale.\213\ A fund

[[Page 62299]]

may wish to particularly consider the number of days a particular asset 
has shown zero trading volume during the prior month, year, or other 
relevant period, as this could indicate particularly limited liquidity. 
High trading volume is not always indicative of available liquidity for 
a particular asset, however. For example, high trading volumes might be 
associated with high selling pressure on the asset and trades at that 
time may have a high price impact.\214\
---------------------------------------------------------------------------

    \213\ See id. at 168; see also MarketWatch, Fitch: Bond Trade 
Frequency Strongly Linked to Issue Size (Jan. 29, 2015), available 
at http://www.marketwatch.com/story/fitch-bond-trade-frequency-strongly-linked-to-issue-size-2015-01-29 (discussing Fitch Ratings 
study findings showing that smaller investment-grade corporate bond 
issues, under $500 million, trade materially less frequently than 
larger issue bonds); Fidelity FSOC Notice Comment Letter, supra note 
20, at 21 (``Liquidity management is linked to portfolio managers' 
attention to market risks indicated by . . . shrinking transaction 
volumes which exacerbate the impact cost for additional trading'').
     We note that double-counting of trades is a potential issue to 
consider when assessing average trading volume. Double-counting 
occurs because of differences between dealer and auction markets. In 
a dealer market, trades are ``double-counted'' because the dealer 
buys from person A and then sells to person B. In an auction market, 
person A and B trade directly. See, e.g., Anne M. Anderson & Edward 
A. Dyl, Trading Volume: NASDAQ and the NYSE, 63 Fin. Analysts J. 79 
(May/June 2007), available at http://www.cfapubs.org/doi/abs/10.2469/faj.v63.n3.4693.
    \214\ See, e.g., Jennifer Huang & Jiang Wang, Liquidity and 
Market Crashes, 22 Rev. of Fin. Stud. 2607 (2009), available at 
http://rfs.oxfordjournals.org/content/22/7/2607.full (discussing how 
there can be high selling pressure (and high volume) along with low 
liquidity and how this can create market crashes); Mark Carlson, A 
Brief History of the 1987 Stock Market Crash with a Discussion of 
the Federal Reserve Response, Federal Reserve Board Working Paper 
2007-13 (Nov. 2006), available at http://www.federalreserve.gov/pubs/feds/2007/200713/200713pap.pdf (discussing how the 1987 stock 
market crash had both high volume and low liquidity).
---------------------------------------------------------------------------

    Assets that are components of widely followed market indices tend 
to have relatively high trading volume, and therefore relatively high 
liquidity compared to other assets. If a security is included in such 
an index, market participants are likely to invest in the security in 
order to replicate the index. This, in turn, will increase demand and 
trading volume for the security, therefore increasing the security's 
liquidity compared to securities not in such an index.\215\ 
Additionally, index components are selected, with a goal of promoting 
replicability of the index, based on multiple factors including 
liquidity screens, which in turn may be based on an asset's trading 
volume.\216\ A security's inclusion in a widely followed market index 
therefore suggests relatively high trading volume, and thus a greater 
level of liquidity relative to similar securities that were not chosen 
to be part of such an index (e.g., a high-yield corporate bond included 
in a widely followed market index would likely be more liquid than an 
otherwise similar high-yield corporate bond that is not a component of 
such an index).
---------------------------------------------------------------------------

    \215\ See, e.g., Shantaram P. Hegde & John B. McDermott, The 
Liquidity Effects of Revisions to the S&P 500 Index: An Empirical 
Analysis, 6 J. Fin. Markets 413 (2003) (``Using a recent sample of 
S&P 500 additions, we find a sustained increase in the liquidity of 
the added stocks.'').
    \216\ See, e.g., Stock Index Liquidity Screen patent application 
(Owner: Frank Russell Company) (Mar. 19, 2009), available at http://appft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PG01&s1=%22stock+index+liquidity+screen%22&OS=``stock+index+liquidity+screen''&RS=``stock+index+liquidity
+screen'' (describing various methods that index providers use to 
identify securities with inadequate liquidity and exclude them from 
indices).
---------------------------------------------------------------------------

c. Volatility of Trading Prices
    Under proposed rule 22e-4(b)(2)(ii)(C), a fund would be required to 
consider the volatility of trading prices for a particular portfolio 
asset when evaluating the liquidity of a position in that asset. In 
general, there is an inverse relationship between liquidity and 
volatility,\217\ as lack of liquidity in a particular asset tends to 
amplify price volatility for that asset.\218\ Additionally, Commission 
staff understands that certain funds and fund groups have historically 
experienced liquidity disruptions during periods of extreme market 
volatility, such as the June 2013 ``taper tantrum.''\219\ For these 
reasons, we believe that trading price volatility is potentially a 
valuable metric to consider in determining an asset's liquidity.
---------------------------------------------------------------------------

    \217\ See, e.g., Tarun Chordia, Asani Sarkar & Avanidhar 
Subrahmanyam, An Empirical Analysis of Stock and Bond Market 
Liquidity, Federal Reserve Bank of New York Staff Reports, no. 164 
(Mar. 2003), available at http://www.newyorkfed.org/research/staff_reports/sr164.pdf (finding that unexpected liquidity and 
volatility shocks are positively and significantly correlated across 
stock and bond markets).
    \218\ See, e.g., Prachi Deuskar, Extrapolative Expectation: 
Implications for Volatility and Liquidity (Aug. 2007), available at 
https://business.illinois.edu/pdeuskar/Deuskar_Extrapolative_Liquidity_Volatility.pdf (``Illiquidity 
amplifies supply shocks, increasing realized volatility of prices, 
which feeds into subsequent volatility forecasts.''); see also 
Fidelity FSOC Notice Comment Letter, supra note 20, at 21 
(``Liquidity management is linked to portfolio managers' attention 
to market risks indicated by . . . increasing market- and security-
specific volatility.'').
    \219\ In May 2013, Ben Bernanke, then Chairman of the Federal 
Reserve Board, announced that the Federal Reserve may start scaling 
back its asset purchase program--in which the Federal Reserve 
purchased approximately $85 billion worth of bonds and mortgage-
backed securities each month--sooner than investors expected. This 
caused interests rates on fixed income products to spike, and bond 
prices to fall dramatically. This market dislocation came to be 
known as the ``taper tantrum.'' See Condon & Kearns, Fed Worried 
About Triggering Another `Taper Tantrum,' BloombergBusiness (Oct. 8, 
2014), available at http://www.bloomberg.com/news/articles/2014-10-08/fed-worried-about-triggering-another-taper-tantrum-.
---------------------------------------------------------------------------

d. Bid-Ask Spreads
    Bid-ask spreads--the difference between bid and offer prices for a 
particular asset--have historically been viewed as a useful measure for 
assessing the liquidity of assets that trade in the OTC markets.\220\ A 
fund would thus be required, under proposed rule 22e-4(b)(2)(ii)(D), to 
consider a portfolio asset's bid-ask spreads in evaluating the 
liquidity of a position in that asset. The bid-ask spread of a 
particular fixed income asset is related to the riskiness of that 
asset, as well as the length of time that a broker-dealer believes it 
will have to hold the asset before selling it.\221\ In general, high 
bid-ask spreads for a particular asset correlate with a lack of 
liquidity in that asset. For example, when liquidity was significantly 
constricted during the 2007-2009 financial crisis, bid-ask spreads on 
U.S. investment grade bonds were notably elevated.\222\ However, bid-
ask spreads alone do not necessarily provide a comprehensive 
understanding of an asset's liquidity. For instance, bid-ask spreads 
are often constrained by the increments in which prices are 
quoted.\223\
---------------------------------------------------------------------------

    \220\ See, e.g., Michael J. Fleming, Measuring Treasury Market 
Liquidity, Federal Reserve Bank of New York Policy Review (Sept. 
2003), available at http://www.newyorkfed.org/research/epr/03v09n3/0309flem.pdf (providing a literature review of studies analyzing 
bid-ask spreads in relation to Treasury market liquidity); see also 
Fidelity FSOC Notice Comment Letter, supra note 20, at 21 
(``Liquidity management is linked to portfolio managers' attention 
to market risks indicated by. . .heightened market impact costs (as 
indicated by widening bid/ask spreads)'').
    \221\ See MarketAxess, The MarketAxess Bid-Ask Spread Index 
(BASI)TM: A More Informed Picture of Market Liquidity in 
the U.S. Corporate Bond Market (2013), available at http://www.marketaxess.com/pdfs/research/marketaxess-bid-ask-spread-index-BASI.pdf (discussing methodology for developing an index that tracks 
bid-ask spreads of U.S. corporate bonds).
    \222\ See, e.g., BlackRock Investment Institute, Got Liquidity? 
(Sept. 2012), available at http://www.blackrock.com/investing/literature/whitepaper/got-liquidity-us-version.pdf, at p.7; see also 
Oppenheimer, Diminished Liquidity in the Corporate Bond Market: 
Implications for Fixed Income Investors (Mar. 16, 2015), available 
at https://www.opco.com/redirect/bond-liquidity-report-3-15.aspx, at 
p.1.
    \223\ See, e.g., Michael A. Goldstein & Kenneth A. Kavajecz, 
Eighths, Sixteenths, and Market Depth: Changes in Tick Size and 
Liquidity Provision on the NYSE, 56 J. Fin. Econ. 125 (2000), 
available at http://www.acsu.buffalo.edu/~keechung/MGF743/Readings/
G5.pdf (``Using limit order data provided by the NYSE, we 
investigate the impact of reducing the minimum tick size on the 
liquidity of the market. While both spreads and depths (quoted and 
on the limit order book) declined after the NYSE's change from 
eighths to sixteenths, depth declined throughout the entire limit 
order book as well. The combined effect of smaller spreads and 
reduced cumulative limit order book depth has made liquidity 
demanders trading small orders better off; however, traders who 
submitted larger orders in lower volume stocks did not benefit, 
especially if those stocks were low priced.''); Hendrik 
Bessembinder, Tick Size, Spreads, and Liquidity: An Analysis of 
Nasdaq Securities Trading Near Ten Dollars, 9 J. of Fin. 
Intermediation 213 (July 2000), available at http://
www.acsu.buffalo.edu/~keechung/MGF743/Readings/G4.pdf (``There is no 
evidence of a reduction in liquidity with the smaller tick size. The 
largest spread reductions occur for stocks whose market makers avoid 
odd-eighth quotes. This finding provides support for models implying 
that changes in the tick size can affect equilibrium spreads on a 
dealer market and indicates that the relation between tick size and 
market quality is more complex than the imposition of a constraint 
on minimum spread widths.'').

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[[Page 62300]]

e. Standardization and Simplicity of Structure
    Proposed rule 22e-4(b)(2)(ii)(E) would require a fund to consider 
whether a portfolio asset has a relatively standardized and simple 
structure in evaluating the liquidity of a position in that asset. 
Assets that trade OTC with terms set at issuance such as sizes, 
maturities, coupons, and payment dates tend to be relatively more 
liquid compared to similarly situated assets without standardized 
terms. The issue of standardization is particularly significant with 
respect to the corporate bond market, since corporate issuers commonly 
have large numbers of bonds outstanding, and trading can be fragmented 
among that universe of bonds. For example, while each of the top ten 
largest issuers in the United States had one common equity security 
outstanding as of April 2014, these issuers collectively had more than 
9,000 bonds outstanding.\224\ Conversely, some types of OTC-traded 
securities exhibit a relatively high level of standardization, such as 
government and agency bonds, futures contracts, and certain swap 
contracts. Central clearing of certain OTC-traded securities, which 
generally requires the terms of these securities to be highly 
standardized, has been associated with an increase in these assets' 
liquidity, as measured by factors such as the bid-ask spreads for these 
assets and the number of dealers providing quotes for these 
assets.\225\ While standardization of a particular security contract 
alone is not indicative of that security's liquidity, standardization 
can increase liquidity by simplifying the ability to quote and trade 
securities, enhancing operational efficiency to execute and settle 
trades, and improving secondary market transparency.
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    \224\ See BlackRock, Viewpoint, Corporate Bond Market Structure: 
The Time for Reform Is Now (Sept. 2014), at p.7, available at http://www.blackrock.com/corporate/en-ae/literature/whitepaper/viewpoint-corporate-bond-market-structure-september-2014.pdf.
    \225\ See, e.g., Yee Cheng Loon & Zhaodong (Ken) Zhong, The 
impact of central clearing on counterparty risk, liquidity, and 
trading: Evidence from the credit default swap market, 112 J. of 
Fin. Econ. 91 (Apr. 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176561 (analyzing the impact of central 
clearing on credit default swaps and finding that cleared reference 
entities experience an improvement in both liquidity and trading 
activity relative to noncleared entities); Joshua Slive, Jonathan 
Witmer & Elizabeth Woodman, Liquidity and Central Clearing: Evidence 
from the CDS Market, Bank of Canada Working Paper 2012-38 (Dec. 
2012), available at http://www.bankofcanada.ca/wp-content/uploads/2012/12/wp2012-38.pdf (analyzing ``the relationship between 
liquidity and central clearing using information on credit default 
swap clearing at ICE Trust and ICE Clear Europe,'' and finding that 
``the introduction of central clearing is associated with a slight 
increase in the liquidity of a contract'' (but noting that the 
effects of central clearing on liquidity must be viewed in light of 
the fact that the central counterparty chooses the most liquid 
contracts for central clearing, consistent with liquidity 
characteristics being important in determining the safety and 
efficiency of clearing)). But see Manmohan Singh, Collateral, 
Netting and Systemic Risk in the OTC Derivatives Market, IMF Working 
Paper 10/99 (Apr. 1, 2010), available at https://www.imf.org/external/pubs/cat/longres.cfm?sk=23741.0 (arguing that large 
increases in collateral posted for the centrally cleared trades 
negatively affect market liquidity given that most large banks will 
be reluctant to offload their positions to central counterparties).
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f. Maturity and Date of Issue
    With respect to fixed income assets, proposed rule 22e-
4(b)(2)(ii)(F) would require a fund to consider the maturity of a 
particular asset, as well as when the asset was issued, in assessing 
the liquidity of the fund's position in that asset. In general, a fixed 
income asset trades most frequently in the time directly following 
issuance, and its trading volume decreases in the asset's remaining 
time to maturity.\226\ Thus ``on-the-run'' securities (that is, bonds 
or notes of a particular maturity that were most recently issued) tend 
to trade significantly more frequently than their ``off-the-run'' 
counterparts (that is, bonds or notes issued before the most recently 
issued bond or note of a particular maturity).\227\ Because high 
trading volume generally suggests relatively higher liquidity,\228\ a 
fixed income asset's date of issuance and maturity (which in turn are 
generally correlated with the trading volume of a fixed income asset) 
together are important liquidity indicators. We understand, based on 
staff outreach and industry knowledge, that remaining time to maturity 
is a key factor that fixed income funds commonly consider in assessing 
the liquidity of their portfolio positions.
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    \226\ See, e.g., Sugato Chakravarty & Asani Sarkar, Liquidity in 
U.S. Fixed Income Markets: A Comparison of the Bid-Ask Spread in 
Corporate, Government and Municipal Bond Markets, Federal Reserve 
Board of New York Staff Report No. 73 (Mar. 1999), available at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=163139.
    \227\ The on-the-run phenomenon refers to the fact that, in 
fixed income markets, securities with nearly identical cash flows 
trade at different yields and with different liquidity. In 
particular, most recently issued (i.e., on-the-run) government bonds 
of a certain maturity are generally more liquid than previously 
issued (i.e., off-the-run or old) bonds maturing on similar dates. 
See, e.g., Paolo Pasquariello & Clara Vega, The on-the-run liquidity 
phenomenon, 92 J. of Fin. Econ. 1 (Apr. 2009), available at http://webuser.bus.umich.edu/ppasquar/onofftherun.pdf (analyzing the 
liquidity differentials of on-the-run and off-the-run U.S. Treasury 
bonds and finding, among other things, that on-the-run and off-the-
run liquidity differentials are economically and statistically 
significant--showing that on-the-run bonds tend to be more liquid 
than their off-the-run counterparts--even after controlling for 
certain intrinsic characteristics of the bonds); Michael Barclay, 
Terrence Hendershott & Kenneth Kotz, Automation versus 
Intermediation: Evidence from Treasuries Going Off the Run, 61 J. 
Fin. 2395 (Oct. 2006), available at http://faculty.haas.berkeley.edu/hender/on-off.pdf (discussing how ``when 
Treasury securities go `off the run' their trading volume drops by 
more than 90%'').
    \228\ See supra section III.B.2.b.
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g. Restrictions on Trading and Limitations on Transfer
    Proposed rule 22e-4(b)(2)(ii)(G) would require a fund to consider 
any restrictions on trading a particular asset, and limitations on 
transfers of that asset, in evaluating the liquidity of a portfolio 
position in that asset. We previously stated that the liquidity of rule 
144A securities is ``a question of fact for the board of directors [of 
the fund] to determine based upon the trading markets for the specific 
security.''\229\ We also stated that a fund's board may find it 
reasonable to consider certain factors when evaluating the liquidity of 
a rule 144A security, including: (i) the frequency of trades and quotes 
for the security; (ii) the number of dealers willing to purchase or 
sell the security and the number of other potential purchasers; (iii) 
dealer undertakings to make a market in the security; and (iv) the 
nature of the security and the nature of the marketplace trades (e.g., 
the time needed to dispose of the security, the method of soliciting 
offers, and the mechanics of transfer).\230\ These guidance factors are 
consistent with certain of the proposed rule 22e-4(b)(2)(ii) 
factors,\231\ and a fund is required to consider the proposed rule

[[Page 62301]]

22e-4(b)(2)(ii) factors in evaluating the liquidity of a 144A security.
---------------------------------------------------------------------------

    \229\ See Rule 144A Release, supra note 86. As discussed below, 
the Commission has stated that an investment company's board of 
directors may delegate day-to-day responsibility for such 
determinations to the investment company's investment adviser, 
provided that the board retains sufficient oversight. See infra 
section III.D.3; see also Rule 144A Release at n.61.
    \230\ See Rule 144A Release, supra note 86, at text following 
n.62.
    \231\ ``The frequency of trades and quotes for the security'' is 
consistent with proposed rule 22e-4(b)(2)(ii)(B). ``The number of 
dealers willing to purchase or sell the security and the number of 
other potential purchasers'' and ``dealer undertakings to make a 
market in the security,'' are reflected in proposed rule 22e-
4(b)(2)(ii)(A). ``The nature of the security and the nature of the 
marketplace trades'' is a very general factor, and we believe that 
many of the proposed rule 22e-4(b)(2)(ii) factors (in particular, 
those reflected in proposed rule 22e-4(b)(2)(ii)(A), (B), (C), (D), 
(E), (F), (G), and (H)) indicate the nature of the security and the 
nature of marketplace trades.
---------------------------------------------------------------------------

    Regardless of whether a portfolio asset is a restricted security, 
it may nevertheless be subject to other limitations on transfer. For 
example, for securities that are traded in certain foreign markets, 
government approval may be required for the repatriation of investment 
income, capital, or the proceeds of sales of securities by foreign 
investors.\232\ Portfolio assets furthermore may be subject to certain 
contractual limitations on transfer.\233\ Securities subject to 
transfer limitations in general are less liquid than securities without 
such limitations.
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    \232\ See, e.g., HSBC, Emerging Markets FX: Regulatory 
understanding a priority, HSBC's Emerging Markets Currency Guide 
2012 (Dec. 2011), available at http://www.hsbcnet.com/gbm/attachments/rise-of-the-rmb/currency-guide-2012.pdf?WT.ac=CIBM_gbm_pro_rmbrise_pbx01_On; see also Liquidity 
Coverage Ratio Release, supra note 207, at section II.B.3.iv 
(discouraging banking entities from holding a disproportionate 
amount of their eligible highly qualified liquid assets in locations 
outside the United States where unforeseen impediments may prevent 
timely repatriation of such assets during a liquidity crisis).
    \233\ See, e.g., Stephen H. Bier, Julien Bourgeois & Joseph 
McClain, Mutual Funds and Loan Investments, The Investment Lawyer 
(Mar. 2015), at 2, available at http://www.dechert.com/files/Uploads/Documents/FSG/Mutual%20Funds%20and%20Loan%20Investments%20-%20The%20Investment%20Lawyer.pdf (``[M]any loans and assignment 
trades remain bespoke transactions that require consents from 
borrowers or key syndicate members, and loan documents are still 
negotiated written documents that require human review. As a result. 
. .the mechanics of loan trades and certain trade settlement times 
cause funds to carefully monitor liquidity considerations 
surrounding loan investments . . . . [In making such determinations, 
funds] typically consider factors common to general liquidity 
determinations, as well as factors specific to the loan markets, 
which can include: (i) the legal limitations on the transferability 
or sale of a loan including the requirement to obtain consents from 
borrowers or syndicate agents and members prior to assignment; (ii) 
the existence of a trading market for the loans and the estimated 
depth of the market; (iii) the frequency of trades or quotes for the 
loan; (iv) the estimated length of the settlement period; and (v) 
the borrower's health.'').
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h. Size of Position in an Asset Relative to the Asset's Average Daily 
Trading Volume and, as Applicable, Number of Units of the Asset 
Outstanding
    Under proposed rule 22e-4, a fund's liquidity analysis regarding a 
particular portfolio asset would be required to take into consideration 
the ability to sell and receive cash for the entire position (or, as 
applicable, portions of a position in a particular asset), not only its 
ability to convert a single trading lot of that asset to cash.\234\ 
Because the size of a fund's portfolio position in a particular asset 
is a key element in determining a fund's ability to convert the entire 
position (or portions of a position in a particular asset) to cash, the 
proposed rule would require a fund assessing the liquidity of a 
portfolio asset to consider the size of the fund's position in that 
asset.\235\ Staff outreach has shown that many funds currently consider 
this factor in evaluating the liquidity of their portfolio positions. A 
fund would be required to consider the size of its position in a 
particular portfolio asset relative to the asset's average daily 
trading volume and, as applicable, the number of units of the asset 
outstanding.\236\ Small-capitalization securities are generally less 
liquid than large-capitalization securities\237\ and, as discussed 
above, securities with lower trading volume are generally less liquid 
than securities whose trading volume is higher.\238\ The size of a 
fund's position in a particular portfolio asset could augment the 
effects of these two liquidity factors. For example, if a fund holds a 
significant position in a small-capitalization security, this could 
indicate that its position is relatively illiquid.\239\ Likewise, 
holding a large position in a thinly traded security diminishes the 
possibility that a fund would be able to convert a significant portion 
of that position to cash in order to meet redemptions. In considering 
the number of units of an asset that are currently outstanding, a fund 
may wish to take into account the extent to which units of an asset may 
be technically outstanding, but cannot be purchased by a member of the 
public (e.g., shares of a company that the company has repurchased from 
the public, but not cancelled because the company plans to later 
reissue the shares, for example to cover employee stock grants). 
Because units of an asset that cannot be purchased by a member of the 
public are not able to be actively traded, this consideration could be 
relevant to a fund's assessment of how the size of a portfolio position 
relative to the number of outstanding units may affect that position's 
liquidity.
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    \234\ See proposed rule 22e-4(b)(2)(i); supra paragraph 
accompanying note 177.
    \235\ See proposed rule 22e-4(b)(2)(ii)(H).
    \236\ Proposed rule 22e-4(b)(2)(ii)(H).
    \237\ See, e.g., DERA Study, supra note 39, at p. 27; cf. also 
Amy K. Edwards, Lawrence E. Harris & Michael S. Piwowar, Corporate 
Bond Market Transaction Costs and Transparency, 62 J. Fin. 1421, 
1444 (June 2007) (``Large issues have significantly lower 
transaction costs than do small issues.'').
    \238\ See supra section III.B.2.b.
    \239\ See, e.g., Marshall E. Blume & Donald B. Keim, 
Institutional Investors and Stock Market Liquidity: Trends and 
Relationships (Aug. 21, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2147757 (examining the relation between 
illiquidity and two measures of institutional stock ownership--the 
percentage of a stock owned by institutions and the number of 
institutions that own the stock--and finding that the number of 
institutions that own and trade a stock is more important than the 
percentage of institutional ownership in explaining the cross-
sectional variability of illiquidity (``an increase in the number of 
institutional holders of a stock decreases the average number of 
shares of the stock held by individual institutions and, thereby, 
reduces the potential size of a trade and its accompanying 
liquidity-induced impact'')).
---------------------------------------------------------------------------

    When a fund is evaluating the size of its position in a particular 
asset as a factor in assessing that position's liquidity, it would be 
required to consider the extent to which the timing of disposing of the 
position could create any market value impact.\240\ Selling a large 
position in a particular asset into the market over a short time period 
could entail a negative price impact on the asset, which in turn could 
cause losses to the fund and its shareholders. Therefore, this 
consideration is relevant to determining the period in which a fund 
would be able to convert a particular portfolio position (or portion 
thereof) to cash, without affecting the value of that asset by virtue 
of the transaction.
---------------------------------------------------------------------------

    \240\ Proposed rule 22e-4(b)(2)(ii)(H).
---------------------------------------------------------------------------

i. Relationship of Asset to Another Portfolio Asset
    Under proposed rule 22e-4(b)(2)(ii)(I), a fund would be required to 
consider, in assessing the liquidity of a position in a particular 
portfolio asset, whether the fund invests in the asset because it is 
connected with an investment in another portfolio asset. This may arise 
in connection with a derivatives transaction, or if the fund uses an 
asset for hedging or risk mitigation purposes.
    When funds enter into certain transactions that implicate section 
18 of the Investment Company Act, they generally will maintain in a 
segregated account certain liquid assets in order to ``cover'' the 
fund's obligation under the transactions. We applied this framework to 
certain financing transactions in Investment Company Act Release No. 
10666 (``Release 10666''), issued in 1979,\241\ and also understand 
that funds today apply this framework to certain derivatives, based on 
the guidance we provided in Release 10666 and on no-action letters 
issued by our staff.\242\ We explained in Release 10666 that ``[a] 
segregated account freezes certain assets of the investment company and 
renders

[[Page 62302]]

such assets unavailable for sale or other disposition.''\243\ We also 
stated in Release 10666 that only liquid assets should be placed in a 
segregated account. Thus, although we expect that assets used by a fund 
to cover derivatives and other transactions would be liquid when 
considered in isolation, when evaluating their liquidity for purposes 
of the proposed rule, the fund would have to consider that they are 
being used to cover other transactions and, consistent with our 
position in Release 10666, are ``frozen'' and ``unavailable for sale or 
other disposition.'' Because these assets are only available for sale 
to meet redemptions once the related derivatives position is disposed 
of or unwound, a fund should classify the liquidity of these segregated 
assets using the liquidity of the derivative instruments they are 
covering. Release 10666 notes that segregated assets may be ``replaced 
by other appropriate non-segregated assets of equal value,'' and when 
they are so replaced, formerly segregated assets would no longer be 
considered unavailable for sale or other disposition.\244\ When a 
formerly segregated asset is no longer segregated, a fund generally 
should assess, as part of its ongoing review of the liquidity 
classifications assigned to each portfolio position, whether the 
liquidity classification given to the portfolio asset when it was 
segregated continues to be appropriate.\245\
---------------------------------------------------------------------------

    \241\ Securities Trading Practices of Registered Investment 
Companies, Investment Company Act Release No. 10666 (Apr. 18, 1979) 
[44 FR 25128 (Apr. 27, 1979)] (``Release 10666'').
    \242\ See generally Use of Derivatives by Investment Companies 
Under the Investment Company Act of 1940, Investment Company Act 
Release No. 29776 (Aug. 31, 2011) [76 FR 55237 (Sept. 7, 2011)] 
(``Investment Company Derivatives Use Concept Release'') (providing 
background information on the application of section 18 to 
derivatives and certain other transactions).
    \243\ See also Dear Chief Financial Officer Letter from Lawrence 
A. Friend, Chief Accountant, Division of Investment Management (Nov. 
7, 1997) (staff letter taking the position that a fund could 
segregate assets by designating such assets on its books, rather 
than establishing a segregated account at its custodian).
    \244\ See Release 10666, supra note 241.
    \245\ See infra section III.B.3.a.
---------------------------------------------------------------------------

    A fund may purchase an asset in connection with its holding of 
another asset for other reasons, such as hedging. For example, a fund 
might purchase a debt security denominated in a foreign currency and 
attempt to hedge the currency risks associated with the debt security 
by entering into a currency future. When evaluating the liquidity of 
the currency future, the fund should consider the way the currency 
future is being used in the fund's portfolio. In situations where a 
fund purchases a more liquid asset in connection with a less liquid 
asset, and it plans to transact in the more liquid asset only in 
connection with the less liquid asset, then the liquidity of the two 
assets is linked by the fund and, in this case, the fund should 
consider the liquidity classification of the foreign debt security when 
determining the liquidity of the currency future.
j. Request for Comment
    We request comment on the proposed factors that a fund would be 
required to consider, as applicable, in classifying the liquidity of 
each portfolio position in a particular asset.
     What factors do funds currently use to assess and classify 
the liquidity of portfolio assets, and do the proposed factors reflect 
factors that funds already consider when evaluating portfolio assets' 
liquidity? Do commenters agree that requiring a fund to consider 
certain factors would encourage effective liquidity assessment across 
the fund industry? Would considering certain factors improve funds' 
ability to meet their redemption obligations and to reduce potential 
dilution of non-redeeming shareholders? Would classification generally 
enhance funds' liquidity risk management, including funds' ability to 
meet their redemption obligations and to reduce potential dilution of 
non-redeeming shareholders?
     Should any of the proposed factors not be required to be 
considered by a fund in making liquidity determinations? Should any of 
the proposed factors be modified? Are there any additional factors, 
besides the proposed factors, that a fund should be required to 
consider in evaluating the liquidity of a portfolio position in a 
particular asset? Should the proposed rule text be modified to 
explicitly exempt certain types of funds from considering certain 
factors? Or are there additional factors, besides the proposed factors, 
that should be required to be considered by certain types of funds? 
Should funds be required to consider correlations between asset classes 
more generally, outside the derivatives and hedging contexts? Should 
certain factors be given more weight than others? Should proposed rule 
22e-4 explicitly require a fund to classify the liquidity of a position 
(or portions of a position in a particular asset) used to cover a 
derivative position using the same liquidity classification category as 
it assigned to the derivative? Should the Commission provide additional 
guidance regarding the circumstances in which a fund should consider 
the liquidity of a particular portfolio asset in relation to the 
liquidity of another asset? What types of operational challenges would 
arise in connection with considering the liquidity of a particular 
portfolio asset in relation to the liquidity of another asset?
     Instead of codifying the factors as part of proposed rule 
22e-4, should the Commission solely provide guidance as to what would 
be appropriate for a fund to consider in assessing its portfolio 
assets' liquidity? Why or why not? Would the failure to codify the 
factors diminish how consistently they are applied across the industry?
     Would a more principles-based approach, in lieu of 
codified factors or guidance, be more appropriate? For example, would 
it be less costly to implement and allow more flexible use of factors 
that might be more pertinent in analyzing the liquidity of a particular 
asset? Or would a more principles-based approach not materially advance 
portfolio asset liquidity assessments beyond those conducted today 
under the 15% guidelines, and thus be subject to similar limitations as 
discussed above as a stand-alone method for liquidity assessment?
     To the extent that a fund lacks pertinent information 
about a particular portfolio asset, should the fund be required to 
consider the proposed rule 22e-4(b)(2)(ii) factors with respect to 
appropriate comparable assets? What characteristics of the portfolio 
asset and the comparable asset would a fund generally compare in 
determining the weight to ascribe to the comparable asset's liquidity 
in evaluating the portfolio asset's liquidity?
     Should ETFs and ETMFs be governed by the same, a subset 
of, or different factors? If so, which factors and why?
    We seek comment on the Commission's guidance regarding each of the 
proposed factors.
     Besides the guidance, are there any other specific issues 
associated with any of the proposed factors that a fund may wish to 
consider in evaluating the liquidity of a portfolio position in a 
particular asset?
     Do commenters generally agree with the guidance that we 
have proposed regarding the ways that each of the proposed factors 
could indicate relative liquidity or illiquidity of a portfolio asset? 
Should we add a note to rule 22e-4 indicating that the release includes 
additional guidance regarding the proposed factors?
3. Ongoing Review of the Liquidity of a Fund's Portfolio Positions
a. Proposed Ongoing Review Requirement
    Proposed rule 22e-4(b)(2)(i) would require a fund to review the 
liquidity classification of each of the fund's portfolio positions on 
an ongoing basis. As appropriate, a fund could determine to revise its 
liquidity classification of a portfolio position based on this ongoing

[[Page 62303]]

review requirement. The Commission has previously stated that it 
``expects funds to monitor portfolio liquidity on an ongoing basis to 
determine whether, in light of current circumstances, an adequate level 
of liquidity is being maintained.''\246\ Some have interpreted this 
statement to mean that the Commission does not intend for a fund to 
reassess the liquidity status of individual securities on an ongoing 
basis, but instead to monitor whether a fund portfolio's overall 
liquidity profile is appropriate in light of its redemption obligations 
under section 22(e).\247\ We agree that a fund should monitor the 
liquidity of its portfolio holistically, in light of shareholder flows, 
to determine the fund's capacity to meet its redemption 
obligations.\248\ However, decreased liquidity of individual portfolio 
components can directly affect the ability of a fund to meet its 
redemption obligations, or to meet obligations in a manner that does 
not dilute the interests of non-redeeming shareholders.\249\ We thus 
believe that requiring a fund to review position-level liquidity 
classifications made under proposed rule 22e-4 on an ongoing basis 
would reduce the risk that the fund will be unable to meet its 
redemption obligations and reduce potential dilution of shareholders' 
interests.
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    \246\ Guidelines Release, supra note 4, at section II.
    \247\ See ICI Valuation and Liquidity Issues White Paper, supra 
note 177, at 45.
    \248\ See Guidelines Release, supra note 4, at section II. 
(stating, with respect to the Commission's expectation that a fund 
would monitor its portfolio liquidity, ``For example, an equity fund 
that begins to experience a net outflow of assets because investors 
increasingly shift their moneys from equity to income funds should 
consider reducing its holdings of illiquid securities in an orderly 
fashion in order to maintain liquidity.'').
    \249\ See, e.g., Heartland Release, supra note 47.
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    As discussed above, Commission staff understands, based on outreach 
to the fund industry and information provided by industry participants, 
that different funds employ varying approaches to monitoring the 
liquidity of individual assets and positions. We understand that some 
funds may not normally review the liquidity of individual portfolio 
assets on a continuing basis after they are acquired. On the other 
hand, our staff learned through outreach efforts across the fund 
industry that certain funds periodically reassess the liquidity of each 
portfolio security based on market-wide developments, as well as events 
affecting particular securities or asset classes.\250\
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    \250\ See also, e.g., ICI FSOC Notice Comment Letter, supra note 
16, at 23-25 (``A mutual fund manager's liquidity management 
practices typically will include active monitoring of the liquidity 
profile of individual portfolio holdings.'').
---------------------------------------------------------------------------

    Pursuant to the proposed ongoing review requirement, each fund 
would be required to consider the rule 22e-4(b)(2)(ii) factors, as 
applicable, in reviewing its portfolio positions' liquidity on an 
ongoing basis.\251\ However, beyond this, rule 22e-4 does not include 
prescribed review procedures, nor does it incorporate specific 
developments that a fund must monitor. A fund may wish to determine the 
frequency of its ongoing review of portfolio positions' liquidity 
classifications based in part on the liquidity of its portfolio 
holdings, as well as the timing of its portfolio acquisitions and 
turnover, in order to evaluate whether its portfolio acquisitions are 
in compliance with the three-day liquid asset minimum requirement.\252\ 
For example, a fund whose portfolio assets' liquidity could depend 
significantly on current market conditions should generally review the 
liquidity classifications of its portfolio assets relatively often (up 
to daily, or even hourly, depending on facts and circumstances). On the 
other end of the spectrum, it may be appropriate for a fund whose 
portfolio holdings' liquidity tends to be more stable (for example, a 
large-cap equity fund) to consider reviewing the liquidity 
classifications of its portfolio assets less frequently.\253\
---------------------------------------------------------------------------

    \251\ See proposed rule 22e-4(b)(2)(i)-(ii).
    \252\ See infra section III.C.3 (discussion of three-day liquid 
asset minimum requirement).
    \253\ We note that at a minimum, a fund would review its 
liquidity classification at least monthly in order to accurately 
report this information on proposed Form N-PORT.
---------------------------------------------------------------------------

    In adopting ongoing review policies and procedures, a fund 
generally should include policies and procedures for identifying 
market-wide developments, as well as security- and asset-class-specific 
developments, that could demonstrate a need to change the liquidity 
classification of a portfolio position. For instance, relevant market-
wide developments could include changes in interest rates or other 
macroeconomic events, market-wide volatility, market-wide flow changes, 
dealer inventory or capacity changes, and extraordinary events such as 
natural disasters or political upheaval.\254\ Security- and asset-class 
specific developments that a fund may wish to consider include 
corporate events (such as bankruptcy, default, or delisting, as well as 
reputational events) and regulatory changes affecting certain asset 
classes. Any of these developments could cause changes, for example, in 
the frequency of trades or quotes for a particular asset, as well as 
changes to that asset's trading volume, price volatility, and bid-ask 
spreads.
---------------------------------------------------------------------------

    \254\ See, e.g., 2014 Fixed Income Guidance Update, supra note 
62.
---------------------------------------------------------------------------

b. Request for Comment
    We request comment on the proposed ongoing review requirement.
     How do funds currently monitor the liquidity of portfolio 
assets, and how frequently do they do so? To what extent do funds 
anticipate that the ongoing review procedures that would be required 
under proposed rule 22e-4 would replicate the procedures funds 
currently use to monitor whether portfolio assets are limited by the 
15% guideline? Are current processes largely automated? Do funds 
believe that systems could be used to automate the monitoring that 
would be required under proposed rule 22e-4? What trade-offs or risks 
does automated monitoring pose vis-[agrave]-vis manual monitoring, and 
how do firms currently manage those risks? Are there circumstances in 
which automated monitoring is inappropriate, and, if so, why?
     Is the ongoing review requirement, as proposed, 
sufficiently clear? Are there certain approaches to ongoing review that 
we should require and/or on which we should provide guidance? Should we 
specify a minimum time period for funds to review their liquidity 
classifications under proposed rule 22e-4? Should we require that a 
fund monitor for certain specified developments or events, and/or 
expand our guidance on the market-wide and security- and asset-class-
specific developments that a fund could consider?

C. Assessing and Managing a Fund's Liquidity Risk

    We believe that assessing and managing liquidity risk in a 
comprehensive manner is critical to a fund's ability to honor 
redemption requests within the seven-day period required under section 
22(e) of the Investment Company Act, as well as within any shorter time 
period disclosed in the fund's prospectus or advertising materials or 
required for purposes of rule 15c6-1. Proposed rule 22e-4(a)(7) would 
define liquidity risk as the risk that the fund could not meet requests 
to redeem shares issued by the fund that are expected under normal 
conditions, or are reasonably foreseeable under stressed conditions, 
without materially affecting the fund's net asset value. This proposed 
definition contemplates that a fund consider both expected requests to 
redeem (e.g., shareholder flows relating to seasonality or shareholder 
tax considerations), as well as requests to redeem that may not be 
expected, but are reasonably

[[Page 62304]]

foreseeable under stressed conditions (e.g., shareholder outflows 
related to stressed market conditions or increased volatility, or 
outflows that are reasonable to expect in light of a reputational event 
affecting the fund or the departure of a fund's portfolio 
manager).\255\
---------------------------------------------------------------------------

    \255\ See, e.g., infra section IV.C.1.e (discussing why we do 
not believe that a general stress testing requirement would be an 
adequate substitute for the proposed three-day liquid asset 
requirement).
---------------------------------------------------------------------------

    A fund's liquidity risk depends on a variety of factors, including, 
among others, its cash flows, investment strategy, portfolio liquidity, 
use of borrowings and derivatives, cash (and cash equivalents) on hand, 
and borrowing arrangements.\256\ Staff outreach has shown that funds 
consider these types of factors in assessing their liquidity risk, and 
some funds conduct stress tests (incorporating these factors) to 
analyze various redemption scenarios to determine whether the fund has 
sufficient liquid assets to cover different levels of redemptions.\257\ 
Likewise, we understand that a fund may employ many different policies 
and procedures for managing its liquidity risk, including adjusting 
portfolio composition to withstand potential liquidity stresses, 
maintaining bank lines of credit or other borrowing arrangements, 
requesting notification from large shareholders about possible upcoming 
redemptions, and other similar risk management techniques. In addition, 
some fund complexes have established a dedicated risk management 
function, with independent risk oversight. Other funds, however, employ 
substantially less comprehensive liquidity risk assessment and 
management practices and procedures. These funds, for example, may have 
little coordination between the compliance personnel who monitor the 
fund's adherence to the 15% guideline, and the portfolio and risk 
management personnel who assess the liquidity profile of portfolio 
assets. Staff outreach has shown that it is fairly common for a fund 
not to have adopted a specific liquidity risk management program, but 
instead to rely primarily on the portfolio management process to 
consider liquidity risk when making portfolio management decisions. 
While a fund's portfolio management function has access to a great deal 
of information relevant to the liquidity of the fund's portfolio 
assets, and thus pertinent to the fund's liquidity risk, portfolio 
managers may have competing interests that could potentially impede 
effective liquidity risk management. For example, depending on the 
circumstances, a fund's portfolio manager could be reluctant to invest 
a portion of the fund's assets in highly liquid assets, which may be 
appropriate for liquidity risk management purposes, but that the 
manager believes could cause a fund's performance to lag compared to 
similar funds or the fund's benchmark.\258\ In sum, our staff has found 
that the comprehensiveness as well as the independence of funds' 
liquidity risk management vary significantly.
---------------------------------------------------------------------------

    \256\ See infra section III.C.1; see also Nuveen FSOC Notice 
Comment Letter, supra note 45, at 10-11 (stating that mutual funds 
that could have liquidity challenges in difficult markets include 
those that invest not only in less liquid asset classes, but also 
those with larger investor concentrations, with fund flows 
particularly sensitive to changes in the returns of the markets in 
which they invest, that hold a large amount of a single issuance or 
a high percentage of its average daily trading volume, with 
meaningful use of effective leverage, and that invest in assets that 
do not have contractual settlement periods and tend to settle over 
longer periods than ordinary securities).
    \257\ See supra text following note 100; see also supra note 104 
(discussing Commission initiative to require large investment 
companies and investment advisers to engage in annual stress tests 
as required by section 165(i) of the Dodd-Frank Act); BlackRock FSOC 
Notice Comment Letter, supra note 50, at 6 (stating that among 
several overarching principles that provide the foundation for a 
prudent market liquidity risk management framework for collective 
investment vehicles is estimating ``potential fund redemptions based 
on (a) historical behavior under normal as well as under adverse 
market conditions, and (b) monitoring investor profiles and related 
redemption behaviors to help identify potential liquidity needs, 
recognizing the differences between institutional and retail 
investors, large and small investors, categories of assets (e.g., 
retirement versus non-retirement assets), and the platforms on which 
funds are sold (e.g., self-directed versus through an 
intermediary''); AII FSOC Notice Comment Letter, supra note 50, at 
15 (``investment advisers to mutual funds continually review a broad 
series of metrics to evaluate the current adequacy of the fund's 
liquidity position. These include historic data regarding redemption 
request levels, stressing the historic redemption levels, assessing 
levels of liquidity of categories of assets held by the fund based 
on industry standards, assessing current and expected market 
conditions of the types of asset held by the fund and then assessing 
liquidity in those various market conditions.'').
    \258\ But see Mikhail Simutin, Cash Holdings and Mutual Fund 
Performance, 18 Rev. of Fin. 1425 (2013) (``Simutin'') (``Cash 
holdings of equity mutual funds impose a drag on fund performance 
but also allow managers to make quick investments in attractive 
stocks and satisfy outflows without costly fire sales. This article 
shows that actively managed equity funds with high abnormal cash--
that is, with cash holdings in excess of the level predicted by fund 
attributes--outperform their low abnormal cash peers by over 2% per 
year.'').
---------------------------------------------------------------------------

    Because we are concerned with funds' ability to meet their 
redemption obligations and to mitigate shareholder dilution associated 
with redemptions, we are proposing new requirements for assessing and 
managing funds' liquidity risk. Proposed rule 22e-4(b)(2)(iii) would 
require a fund to assess and periodically review its liquidity risk, 
taking into account certain factors. Proposed rule 22e-4(b)(2)(iv) 
would require a fund to manage its liquidity risk based on this 
assessment, including: (i) Requiring the fund to determine (and 
periodically review) a minimum percentage of the fund's net assets that 
must be invested in three-day liquid assets (the fund's ``three-day 
liquid asset minimum''); \259\ (ii) prohibiting a fund from acquiring 
any less liquid asset if the fund would have invested less than its 
three-day liquid asset minimum in three-day liquid assets; \260\ and 
(iii) prohibiting a fund from acquiring any 15% standard asset if the 
fund would have invested more than 15% of its net assets in 15% 
standard assets.\261\
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    \259\ Proposed rule 22e-4(b)(2)(iv)(A)-(B).
    \260\ Proposed rule 22e-4(b)(2)(iv)(C).
    \261\ Proposed rule 22e-4(b)(2)(iv)(D). In addition, proposed 
rule 22e-4(b)(2)(iv)(E) would require a fund to establish policies 
and procedures regarding redemptions in kind, to the extent that the 
fund engages in or reserves the right to engage in redemptions in 
kind.
---------------------------------------------------------------------------

    We are proposing these new requirements with the goal of providing 
funds with the flexibility to adopt policies and procedures that would 
be most appropriate to assess and manage their liquidity risk, while at 
the same time reducing the risk that funds will be unable to meet 
redemption obligations, minimizing dilution, and elevating the overall 
quality of liquidity risk assessment and management across the fund 
industry. Given that a fund's liquidity risk arises from the 
interaction of multiple discrete and overlapping factors, we believe 
that the most effective liquidity risk management programs would be 
multi-faceted and customized to reflect the sources of the fund's 
liquidity risk. The requirements that we are proposing are therefore 
intended to be largely principles-based and would permit a fund to 
tailor its risk assessment and management procedures to respond to the 
fund's particular risks and circumstances. On the other hand, we also 
believe that requiring each fund to consider, as a baseline, a standard 
set of factors for assessing liquidity risk, requiring each fund to 
keep a minimum portion of net assets in cash and assets that the fund 
believes are convertible to cash within three business days without 
materially affecting the value of the asset (which minimum each fund 
would determine based on standard factors), and limiting a fund's 
holdings of 15% standard assets would create an overall framework that 
we believe would assist the development of effective and thorough 
liquidity risk assessment and management across the fund industry, 
thereby strengthening the ability of funds to meet redemption 
obligations

[[Page 62305]]

and mitigating dilution of the interests of fund shareholders.
1. Assessing a Fund's Liquidity Risk
    Proposed rule 22e-4 envisions a two-pronged liquidity risk 
assessment and risk management process, whereby a fund would be 
required to assess its liquidity risk, based on certain specified 
factors, and then develop a liquidity risk management program tailored 
to the fund's liquidity risk.\262\ Here we discuss the liquidity risk 
assessment portion of this process. The requirements we are proposing 
for the fund's management of the risks identified by this assessment 
are discussed in a later section of the release.\263\ Proposed rule 
22e-4(b)(2)(iii) would require each fund to assess the fund's liquidity 
risk, considering certain specified factors that are discussed in more 
detail below. We compiled these factors based, in part, on staff 
outreach to funds and third-party service providers who assess 
liquidity risk on behalf of funds. To the extent that funds currently 
conduct liquidity stress tests, we understand that these stress tests 
commonly incorporate many of the proposed factors (or functionally 
similar factors).\264\ The proposed liquidity risk factors also 
incorporate considerations that we believe have historically 
contributed to liquidity risk in open-end funds.\265\
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    \262\ To the extent that liquidity risk differs among each 
series of an investment company, each series would be required to 
adopt a liquidity risk management program whose liquidity risk 
assessment and management elements are distinct from other series' 
programs. See supra paragraph accompanying notes 114-115.
    \263\ See infra sections III.C.3-III.C.5.
    \264\ See supra notes 101, 257 and accompanying text.
    \265\ See Guidelines Release, supra note 4 (noting that funds 
should consider cash flows into specific investment strategies in 
determining whether the fund is maintaining an adequate level of 
liquidity).
---------------------------------------------------------------------------

    The proposed rule would require each fund to take the following 
factors into account, as applicable, in assessing the fund's liquidity 
risk:
    [cir] Short-term and long-term cash flow projections, taking into 
account the following considerations:
    [ssquf] Size, frequency, and volatility of historical purchases and 
redemptions of fund shares during normal and stressed periods;
    [ssquf] The fund's redemption policies;
    [ssquf] The fund's shareholder ownership concentration;
    [ssquf] The fund's distribution channels; and
    [ssquf] The degree of certainty associated with the fund's short-
term and long-term cash flow projections
    [cir] The fund's investment strategy and liquidity of portfolio 
assets;
    [cir] Use of borrowings and derivatives for investment purposes; 
and
    [cir] Holdings of cash and cash equivalents, as well as borrowing 
arrangements and other funding sources.
    This list is not meant to be exhaustive. In assessing its liquidity 
risk, a fund may take into account considerations in addition to the 
factors set forth in proposed rule 22e-4(b)(2)(iii). For example, if a 
fund elects to conduct stress testing \266\ to determine whether it has 
sufficient liquid assets to cover different levels of redemptions, a 
fund should consider incorporating the results of this stress testing 
into its liquidity risk assessment. However, a fund would be required 
to consider, as applicable, the proposed rule 22e-4(b)(2)(iii) factors 
as a minimum set of considerations to be used in assessing its 
liquidity risk. For this reason, a fund that elects to conduct stress 
tests may wish to review the factors and parameters it uses to 
construct scenario analyses concerning the adequacy of the fund's 
portfolio liquidity, and update these factors and parameters to reflect 
the proposed liquidity risk assessment factors. We believe that stress 
tests that incorporate the proposed factors, though not required, could 
be particularly useful to a fund in assessing its liquidity risk.
---------------------------------------------------------------------------

    \266\ See supra notes 101, 257 and accompanying text.
---------------------------------------------------------------------------

    We recognize that some of the proposed factors may not be 
applicable in assessing the liquidity risk of certain funds or types of 
funds. For example, we recognize that certain considerations that the 
proposed rule would require a fund to consider in assessing its cash 
flow projections (e.g., shareholder ownership concentration, and the 
fund's distribution channels) would generally be more applicable to 
mutual funds than to ETFs. To the extent that a proposed factor is not 
applicable to a particular fund, the fund would not be required to 
consider that factor in assessing its liquidity risk.
    Below we provide guidance on specific issues associated with each 
of the proposed liquidity risk assessment factors. We also request 
comment below with respect to each of the proposed factors, as well as 
guidance regarding each factor.
a. Cash Flow Projections
    A fund's cash flow (the amount of cash flowing either into or out 
of the fund) is important in determining whether the fund will have 
sufficient cash to satisfy redemption requests.\267\ Cash flow 
projections thus directly affect a fund's liquidity risk.\268\ As 
discussed below, we believe that several factors influence the extent 
to which a fund's cash flow profile could indicate or contribute to the 
fund's liquidity risk. Proposed rule 22e-4(b)(2)(iii)(A) thus would 
require a fund to consider these factors when evaluating its liquidity 
risk. In general, we believe that the better a fund's portfolio and 
risk managers are able to predict the fund's net flows, the better they 
will be able to measure and manage the fund's liquidity risk.\269\ 
Predictability about whether periods of market stress or declines in 
fund performance generally lead to increased redemptions of fund shares 
is particularly significant, as careful liquidity risk management 
during these periods could prevent the need to sell less-liquid 
portfolio assets under unfavorable circumstances, which in turn could 
create significant negative price pressure on the assets and, to the 
extent the fund continues to hold a portion of those assets, decrease 
the value of the assets still held by the fund at least 
temporarily.\270\
---------------------------------------------------------------------------

    \267\ See, e.g., Invesco FSOC Notice Comment Letter, supra note 
35, at 11(``Cash inflows from sources such as gross subscriptions 
(including reinvested dividends on fund shares), dividend and 
interest payments on portfolio securities and maturities of debt 
securities held in portfolios do help manage fund level liquidity 
and are taken into account by portfolio managers as part of their 
liquidity management.''); ICI FSOC Notice Comment Letter, supra note 
16, at 18 (``Managing liquidity as part of overall portfolio 
management is a dynamic process requiring fund managers to make 
daily adjustments to accommodate cash inflows and outflows. . . 
Portfolio managers and traders typically receive data on cash flows 
at least daily and thus have a strong sense of whether additional 
actions (including the sale of portfolio holdings) would be needed 
to meet redemption requests or otherwise adjust a fund's liquidity 
profile.'').
    \268\ Proposed rule 22e-4(a)(7).
    \269\ See, e.g., Gordon J. Alexander, Gjergi Cici & Scott 
Gibson, Does Motivation Matter When Assessing Trade Performance? An 
Analysis of Mutual Funds, 20 Rev. of Fin. Stud. 125 (Jan. 2007) 
(noting that unexpected investor flows may force managers to 
rebalance their portfolios to control liquidity, and that these 
liquidity-related trades should underperform trades motivated by 
valuation beliefs).
    \270\ See, e.g., supra note 54 and accompanying paragraph; Coval 
& Stafford, supra note 51 (noting that fire sales can be anticipated 
based on past flows and returns); Peter Fortune, Mutual Funds, Part 
I: Reshaping the American Financial System, New England Econ. Rev. 
(July/Aug. 1997), at 66-67, (``Fortune''), available at http://www.bostonfed.org/economic/neer/neer1997/neer497d.htm (positing that 
funds with insufficient liquidity to meet redemption requests 
following a significant decline in stock prices will need to sell 
securities in a declining market, making the funds more sensitive to 
price fluctuations); 1987 Market Crash Report, supra note 54, at 
III-16--III-26, IV-1--IV-8 (discussing mutual fund selling behavior 
during the October 1987 stock market crash, and in particular the 
selling of three mutual fund companies, whose heavy selling of 
assets to meet significant redemptions ``accounted for approximately 
one quarter of all trading on the NYSE for the first 30 minutes that 
the Exchange was open'' on October 19, 1987 and that such selling 
had ``a significant impact on the downward direction of the 
market'').

---------------------------------------------------------------------------

[[Page 62306]]

    A fund would be required to consider the size, frequency, and 
volatility of historical purchases and redemptions of fund shares, 
during both normal and stressed periods, when considering its cash flow 
projections.\271\ A fund whose inflows generally correspond to its 
outflows in terms of timing, size, frequency, and response to market 
events will likely be able to use cash received from purchases to pay 
redeeming shareholders, which decreases the fund's liquidity risk. 
Funds whose net flows are relatively less volatile in terms of size and 
frequency will likely entail less liquidity risk than similar funds 
with more volatile net flows, because funds with less flow volatility 
can better plan how to meet fund redemptions and thus will be less 
likely to need to sell portfolio assets in a manner that creates a 
market impact in order to pay redeeming shareholders.\272\ A fund 
should generally review historical purchases and redemptions of fund 
shares across a variety of market conditions in order to determine how 
the fund's flows may differ during stressed and normal periods (keeping 
in mind that historical experience may not necessarily be indicative of 
future outcomes, depending on changes in market conditions and the 
fund's particular circumstances). In particular, if outflows are 
greater, more frequent, or more volatile during stressed periods, this 
could exacerbate the fund's liquidity risk.\273\ A fund may find it 
instructive to understand when its highest, lowest, most frequent, and 
most volatile purchases and redemptions occurred within various time 
horizons, such as the past one, five, ten, and twenty years (as 
applicable, considering the fund's operating history). In addition to 
considering its own historical flow data, a fund, particularly a fund 
without a substantial operating history, may wish to consider purchase 
and redemption activity in funds with similar investment strategies. 
Consideration of similar funds' purchases and redemptions could show 
whether the fund's historical flows are typical or aberrant compared to 
those seen in similar funds and assist new funds in predicting flow 
patterns.
---------------------------------------------------------------------------

    \271\ Proposed rule 22e-4(b)(2)(iii)(A)(1).
    \272\ See, e.g., Thomas M. Idzorek, James X. Xiong & Roger G. 
Ibbotson, The Liquidity Style of Mutual Funds, 68 Fin. Analysts J. 
38 (2012), at n.4, available at http://corporate.morningstar.com/us/documents/MethodologyDocuments/ResearchPapers/LiquidityStyleOfMutualFunds.pdf (noting that funds with less 
volatile fund flows can afford to hold more illiquid stocks because 
they can accommodate redemptions with the liquid portion of their 
portfolios).
    \273\ See, e.g., supra note 270.
---------------------------------------------------------------------------

    A fund may wish to evaluate whether the size, frequency, and 
volatility of its shareholder flows follow any discernable pattern. For 
example, patterns in shareholder flows have been observed relating to 
seasonality,\274\ shareholder tax considerations,\275\ fund 
advertising,\276\ and changes in fund performance ratings provided by 
third-party rating agencies.\277\ A fund's investment strategy also 
could contribute to its shareholder flows: for instance, we understand 
that certain investors tend to trade in and out of ETFs with index-
based strategies frequently because they invest in these ETFs for 
hedging and/or short-term trading purposes.\278\ Furthermore, a fund 
may wish to take into account its assets in assessing historical flow 
data, since smaller funds may experience greater flow volatility.\279\
---------------------------------------------------------------------------

    \274\ See, e.g., Mark J Kamstra, et al., Seasonal Asset 
Allocation: Evidence from Mutual Fund Flows (Dec. 2013), available 
at http://www.bus.umich.edu/ConferenceFiles/2014-Mitsui-Finance-Symposium/files/Kramer_Seasonal_Asset_Allocation.pdf (``[W]e find 
that aggregate investor flow data reveals a preference for U.S. 
money market and government bond mutual funds in the autumn, and 
equity funds in the spring, controlling for the influence of 
seasonality in past performance, advertising, liquidity needs, and 
capital gains overhang on fund flow. This movement of large amounts 
of money between fund categories is correlated with a proxy for 
variation in risk aversion across the seasons, consistent with 
households' revealed preferences for safer investments in the fall, 
and riskier investments in the spring.''); Hyung-Suk Choi, 
Seasonality in Mutual Fund Flows, 31 J. of Applied Bus. Research 715 
(Mar./Apr. 2015), available at http://www.cluteinstitute.com/ojs/index.php/JABR/article/viewFile/9162/9156 (``January is the month 
when equity funds experience the largest net cash flows and December 
is the month with the smallest cash flows.'').
    \275\ See, e.g., Woodrow T. Johnson & James M. Poterba, Taxes 
and Mutual Fund Inflows around Distribution Dates, NBER Working 
Paper 13884 (Mar. 2006, rev'd Mar. 2008), available at http://economics.mit.edu/files/2512 (``Johnson & Poterba'') (finding a 
``modest'' decline in inflows into mutual funds by taxable investors 
prior to a capital gains distribution date); Brad M. Barger & 
Terrance Odean, Are Individual Investors Tax Savvy? Evidence from 
Retail and Discount Brokerage Accounts, 88 J. of Pub. Econ. 419 
(Jan. 2004), available at http://faculty.haas.berkeley.edu/odean/papers%20current%20versions/areindividualinvestorstaxsavvy_2003.pdf 
(observing tax losses being related at greater rates than gains only 
in the month of December).
    \276\ See, e.g., Murat Aydogdu & Jay W. Wellman, The Effects of 
Advertising on Mutual Fund Flows: Results from a New Database, 
Financial Management (Fall 2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1755-053X.2011.01161.x/epdf 
(finding significant differences in the effectiveness of mutual fund 
advertising to attract inflows (e.g., smaller funds received 
significant inflows due to advertising, while ``flagship'' funds did 
not attract inflows as a result of their advertisements)).
    \277\ See, e.g., Diane Del Guercio & Paula A. Tkac, Star Power: 
The Effect of Morningstar Ratings on Mutual Fund Flow, 43 J. of Fin. 
and Quantitative Analysis 907 (Dec. 2008), available at http://www.jstor.org/stable/27647379?seq=1#page_scan_tab_contents (finding 
that certain changes in performance ratings (rather than changes in 
the underlying fund performance) have a substantial influence on 
retail investors inflows into and outflows from mutual funds).
    \278\ See, e.g., 2015 ICI Fact Book, supra note 3, at 13 
(``Investment managers, including mutual funds and pension funds, 
use ETFs to manage liquidity--helping them manage their investor 
flows and remain fully invested in the market. Asset managers also 
use ETFs as part of their investment strategies, including as a 
hedge against their exposure to equity markets.''); see also Izhak 
Ben-David, Francesco A. Franzoni & Rabih Moussawi, Do ETFs Increase 
Volatility?, NBER Working Paper No. 20071, at 12, available at 
http://www.nber.org/papers/w20071.pdf (``Theoretical support for 
this conjecture comes from Amihud and Mendelson (1986) and 
Constantinides (1986), who propose that investors with shorter 
holding periods self-select into assets with lower trading costs. 
Atkins and Dyl (1997) find support for this conjecture by showing 
that securities with lower bid-ask spread have higher trading 
volume. These theories and empirical evidence suggest that, due to 
the low trading costs of ETFs, a new clientele of high-frequency 
investors can materialize around the newly created securities. This 
clientele would not trade the less-liquid underlying assets if ETFs 
were not present.'').
    \279\ See infra notes 726 and 727.
---------------------------------------------------------------------------

    While historical redemption patterns are an important factor in 
assessing cash flows, a fund should be cognizant of the limitations of 
using past flow history to assess future cash flow needs. Therefore, a 
fund would be required to take into account other factors when 
considering cash flow projections, including its redemption 
policies.\280\ Specifically, we believe a fund should generally 
consider the disclosures in its prospectus or advertising materials 
regarding the time period in which it will pay redemption proceeds (or 
endeavor to pay redemption proceeds),\281\ and whether its redemption 
policies vary based on the distribution channels the fund employs. A 
fund whose policies require it to pay redeeming shareholders on a next-
day basis could find itself with fewer options for managing high levels 
of redemptions than a fund that is bound only by the redemption timing 
requirements of rule 15c6-1. To illustrate, when a fund that pays 
redemption proceeds within one day receives a large redemption request 
and a fund that pays redemption proceeds within three business days 
pursuant to the timing requirements of rule 15c6-1

[[Page 62307]]

receives a redemption request of the same size, the first fund must 
satisfy the full request within one day, whereas the second fund has 
more time to space out the sale of portfolio assets in order to satisfy 
the redemption request. Even though the shareholder flows of the first 
and second fund are identical, the redemption policies of the first 
fund magnify its liquidity risks by requiring that the fund pay 
redemptions quickly.\282\ An ETF that typically pays redemption 
proceeds in kind should generally also consider that it has reserved 
the right to transact with authorized participants in cash, the 
circumstances in which it anticipates that it would pay redemption 
proceeds in cash, and how these policies impact its cash flow 
projections.
---------------------------------------------------------------------------

    \280\ Proposed rule 22e-4(b)(2)(iii)(A)(2).
    \281\ See Item 6(b) of Form N-1A (requiring a fund to briefly 
identify the procedures for redeeming shares); proposed amendments 
to Item 11 of Form N-1A (requiring funds to disclose the number of 
days in which a fund will pay redemption proceeds to redeeming 
shareholders, and explain if the number of days differs by 
distribution channel); infra section III.G.1.a (discussing proposed 
amendments to Item 11 of Form N-1A).
    \282\ See supra note 270.
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    A mutual fund also would be required to consider its shareholder 
ownership concentration as a factor affecting its cash flow 
projections.\283\ If a mutual fund's shares are concentrated in a 
relatively small group of shareholders, one shareholder's redemptions 
of fund shares could result in considerable cash outflows from the 
fund.\284\ This in turn could increase the mutual fund's liquidity risk 
if the fund does not have procedures in place to manage large 
redemptions, particularly if the fund were to encounter unexpected 
redemptions from a large shareholder. For these reasons, we believe a 
mutual fund should consider the extent to which its shareholder 
concentration affects its liquidity risk, particularly taking into 
account other factors that could magnify shareholder concentration-
related liquidity risk (e.g., if a fund has an investment strategy that 
attracts shareholders who trade based on short-term price movements, 
shareholders could be more likely to redeem precipitously, and 
resulting unexpected redemptions by a shareholder with a large 
ownership stake could cause significant liquidity stresses to the 
fund).
---------------------------------------------------------------------------

    \283\ Proposed rule 22e-4(b)(2)(iii)(A)(3).
    \284\ We note that a relatively concentrated fund shareholder 
base may make it easier for funds to communicate with those 
shareholders about their anticipated future redemptions, and thus 
plan liquidity demands. However, those shareholders are under no 
legal obligation to forewarn the fund of their redemptions and so, 
particularly in times of stress, may not do so.
---------------------------------------------------------------------------

    There are multiple ways that a mutual fund's distribution channels 
could affect its cash flows (including the predictability of the fund's 
cash flows), and the proposed rule would require a mutual fund to 
consider this factor in evaluating its cash flows and related liquidity 
risk.\285\ First, a mutual fund's redemption practices could depend on 
its distribution channels. For example, mutual funds that are sold 
through broker-dealers will have to meet redemption requests within 
three business days, because rule 15c6-1 under the Exchange Act 
establishes a T+3 settlement period for securities trades effected by a 
broker or dealer. Second, to the extent that mutual fund shares are 
held through omnibus accounts, it could be difficult for a mutual fund 
to be fully aware of the composition of the underlying investor 
base,\286\ including investor characteristics that could affect the 
mutual fund's short-term and long-term flows (e.g., whether ownership 
in the mutual fund is relatively concentrated,\287\ and whether the 
mutual fund's underlying investors share any common investment goals 
affecting redemption frequency and timing). Finally, a mutual fund's 
distribution channels could affect its cash flow predictions insofar as 
certain distribution channels are generally correlated with particular 
purchase and redemption patterns. For instance, investors in mutual 
funds distributed through a retirement plan channel or other planned 
savings channel (e.g., funds underlying a 529 plan) \288\ may be more 
likely to be long-term investors who do not trade based on short-term 
price movements, and their purchase and redemption patterns thus may be 
relatively predictable compared to those of other investors. Investors 
in mutual funds distributed through certain channels also may have 
similar purchase and redemption characteristics relating to their 
financial and tax-related needs. For example, taxable investors who are 
considering purchasing mutual fund shares around capital gains 
distribution dates have an incentive to delay their purchases until 
after the distribution, but non-taxable shareholders (such as those who 
invest through IRAs and other tax-deferred accounts) face no such 
incentive for delaying purchases.\289\
---------------------------------------------------------------------------

    \285\ Proposed rule 22e-4(b)(2)(iii)(A)(4).
    \286\ See, e.g., Board of the IOSCO, Principles of Liquidity 
Risk Management for Collective Investment Schemes (Mar. 2013), at 5, 
available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD405.pdf 
(``The responsible entity should consider liquidity aspects related 
to its proposed distribution channels.'').
    \287\ See supra notes 283-284 and accompanying text.
    \288\ A 529 plan is a tax-advantaged plan designed to encourage 
saving for future college costs that is sponsored by a state, state 
agency, or educational institution and is authorized by section 529 
of the Internal Revenue Code.
    \289\ See Johnson & Poterba, supra note 275; see also supra note 
274 and accompanying text (discussing seasonality in mutual fund 
flows).
---------------------------------------------------------------------------

    Finally, a fund would be required to consider the degree of 
certainty surrounding its short-term and long-term cash flow 
projections.\290\ A fund could consider the length of its operating 
history (including the fund's experience during points of market 
instability, illiquidity, or volatility), any observed purchase and 
redemption patterns, and the applicable other factors set forth in 
proposed rule 22e-4(b)(2)(iii)(A) in determining the level of certainty 
the fund has regarding its cash flows. A fund may find it instructive 
to employ ranges in considering cash flow projections and their 
relationship to liquidity risk. For instance, a fund that could 
reasonably project that its cash flows will fall within a relatively 
narrow range could more precisely assess its liquidity risk than a fund 
that could reasonably project a broader range of projected cash flows. 
If a fund has implemented policies to encourage certain shareholders 
(e.g., large shareholders, or certain types of shareholders such as 
institutional shareholders) to provide advance notification of their 
intent to redeem a significant number of shares of the fund, this could 
increase the degree of certainty surrounding its cash flow 
projections.\291\
---------------------------------------------------------------------------

    \290\ Proposed rule 22e-4(b)(2)(iii)(A)(5).
    \291\ We understand, based on staff outreach, that advance 
notification procedures are a relatively common liquidity risk 
management tool that funds currently employ. See also Invesco FSOC 
Notice Comment Letter, supra note 35, at 11 (noting that Invesco has 
advance notification arrangements regarding anticipated redemptions 
above certain levels in place with certain distribution partners).
---------------------------------------------------------------------------

b. Investment Strategy and Liquidity of Portfolio Assets
    Under proposed rule 22e-4, a fund's procedures for assessing its 
liquidity risk must take into account the effects that the fund's 
investment strategy and the liquidity of its portfolio assets could 
have on the fund's liquidity risk.\292\ A fund's investment strategy 
could increase or decrease the fund's liquidity risk in various ways. 
For example, whether a fund is actively or passively managed could have 
ramifications on the fund's liquidity. On one hand, a fund with a 
passive investment strategy could have less liquidity risk relative to 
an actively managed fund that invests in a similar portfolio, to the 
extent that the portfolio of the passively managed fund is built around 
a widely followed market index (securities that are

[[Page 62308]]

components of such an index are generally more liquid than securities 
that are not).\293\ An index-tracking fund also may be more likely to 
sell a ``strip'' of the portfolio (i.e., a cross-section or 
representative selection of the fund's portfolio assets) to meet net 
redemptions, which minimizes the outcome that the fund would sell its 
most liquid assets first, in order to continue to closely track the 
applicable benchmark. On the other hand, index-based strategies could 
exhibit increased liquidity risk during periods when an index is being 
reconstituted, if the index reconstitution results in multiple funds 
simultaneously attempting to get into or out of the same portfolio 
position.\294\ Index-based strategies also could experience increased 
liquidity risk when the assets in the index become less liquid due to 
market events, because the fund's manager will have less discretion to 
move the fund's strategy away from the index's assets. In addition, 
index-based strategies that track less-liquid market indices may 
exhibit more liquidity risk than passively managed funds built around 
widely-followed market indices.\295\
---------------------------------------------------------------------------

    \292\ Proposed rule 22e-4(b)(2)(iii)(B).
    \293\ See supra paragraph accompanying notes 215-216.
    \294\ See, e.g., Antti Petajisto, The Index Premium and Its 
Hidden Cost for Index Funds, 18 J. of Empirical Fin. 271, 288 
(2011), available at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.372.3301&rep=rep1&type=pdf (``The annual index 
turnover cost from 1990 to 2005 is about 21-28 bp for the S&P 500 
and 38-77 bp for the Russell 2000. This is the cost of mechanically 
tracking the index rather than holding an essentially similar index-
neutral portfolio.'').
    \295\ See also Jonathan Wheatley & Joel Lewin, Emerging Market 
ETFs: Solving the Liquidity Problem or Storing it Up?, Financial 
Times (Apr. 20, 2015), available at http://www.ft.com/cms/s/0/43c52f1e-e75e-11e4-a01c-00144feab7de.html (discussing ETFs built 
around emerging market corporate bond indexes).
---------------------------------------------------------------------------

    The extent to which a fund's portfolio is diversified (or, 
relatedly, a fund's concentration in certain types of portfolio assets) 
could have ramifications on the fund's potential liquidity risk as 
well. A fund's status as a diversified investment company under the 
Investment Company Act,\296\ its status as a regulated investment 
company under Subchapter M of the Internal Revenue Code,\297\ and its 
principal investment strategies as disclosed in its prospectus all 
could affect the fund's liquidity risk.\298\ For example, a fund 
constrained by various diversification requirements that needs to sell 
portfolio securities in order to meet redemption requests could be 
limited by its diversification obligations in determining which 
portfolio securities it will sell. Such a fund might need to unwind 
certain portfolio positions under unfavorable circumstances. A fund 
whose investment strategy requires it to invest a certain percentage of 
its assets in a particular asset class, industry segment, or securities 
associated with a particular geographic region could encounter similar 
limitations, if selling certain portfolio securities would cause the 
fund to not be in compliance with its investment strategies. On the 
other hand, a fund with a relatively more-diversified portfolio needing 
to sell portfolio assets to build liquidity would possibly be able to 
select assets for sale based on whether the markets for those assets 
are favorable. A relatively less-diversified fund may have fewer 
options (i.e., because the markets for its portfolio assets are uniform 
or correlated) and could thus be compelled to transact in unfavorable 
markets. Such fund also may need to trade larger dollar amounts of each 
asset, which may increase the price impact of the trades.
---------------------------------------------------------------------------

    \296\ See section 5(b)(1) of the Investment Company Act.
    \297\ 26 U.S.C. 851. To qualify as a regulated investment 
company, a fund must meet several diversification requirements at 
the close of each fiscal quarter of the taxable year. See id.
    \298\ See Items 4(a), 9 of Form N-1A.
---------------------------------------------------------------------------

    In addition to diversification or concentration issues, a fund's 
portfolio management decisions that are meant, in part, to decrease an 
undesirable tax impact on the fund could affect the fund's liquidity 
risk. For example, a fund whose portfolio includes foreign securities 
might manage its portfolio to avoid securities transaction taxes 
imposed by other jurisdictions.\299\ Similarly, a fund could be managed 
using an active tax loss harvesting strategy to opportunistically 
realize losses that may be used to offset future gains.\300\ The sale 
of certain portfolio assets to meet liquidity needs might adversely 
affect these, and comparable, management practices. Consequently, a 
fund whose tax management strategy makes its portfolio managers 
unwilling to sell certain portfolio assets in order to meet redemptions 
could face increased liquidity risk compared to a similarly situated 
fund, because it could have fewer desirable options to generate cash to 
pay redemptions (and thus could have increased risk that it would need 
to sell portfolio assets under unfavorable circumstances in order to 
meet redemptions) than another, similar fund.
---------------------------------------------------------------------------

    \299\ See, e.g., Karl Habermeier & Andrei Kirilenko, Securities 
Transaction Taxes and Financial Markets, IMF Working Paper (May 
2001), available at http://www.imf.org/external/pubs/ft/wp/2001/wp0151.pdf (discussing, among other things, the effects of 
transaction taxes on liquidity).
    \300\ See, e.g., Scott J. Donaldson & Francis M. Kinniry Jr., 
Tax-Efficient Equity Investing: Solutions for Maximizing After-Tax 
Returns, Vanguard Investment Counseling & Research (2008), available 
at https://personal.vanguard.com/pdf/flgtei.pdf.
---------------------------------------------------------------------------

    While we believe consideration of a fund's investment strategy is 
an important factor in assessing a fund's liquidity risk, we caution 
that different types of funds within the same broad investment strategy 
may demonstrate different levels of liquidity (and thus, presumably, 
different levels of liquidity risk).\301\ The liquidity of a fund's 
portfolio assets directly affects the amount of liquidity risk 
associated with the fund. A fund should consider the portions of the 
fund's net assets that are invested in each of the six liquidity 
categories set forth in proposed rule 22e-4(b)(2)(i). All else being 
equal, funds with relatively greater portions of their assets invested 
in less liquid assets would tend to have greater liquidity risk than 
funds holding relatively fewer less liquid assets.
---------------------------------------------------------------------------

    \301\ See infra note 627 and accompanying text.
---------------------------------------------------------------------------

c. Use of Borrowings and Derivatives for Investment Purposes
    Proposed rule 22e-4 would require a fund to take into account the 
potential effects of the use of borrowings and derivatives for 
investment purposes (for example, to enhance returns) on its liquidity 
risk.\302\ Funds may borrow from a bank under section 18 of the 
Investment Company Act. In addition to the asset coverage limitations 
imposed by section 18,\303\ any such borrowing would be subject to the 
terms agreed between a fund and the bank, including terms relating to 
the maturity date of the borrowing and any circumstances under which 
the borrowing may be required to be repaid. In addition, as noted 
above, funds that borrow for investment purposes, for example through 
financing transactions such as reverse repurchase agreements and short 
sales, generally do so in reliance on the guidance we provided in 
Release 10666, under which funds cover their obligations under such 
transactions by segregating certain liquid assets.\304\ Segregated 
assets are considered to be unavailable for sale or disposition, 
including for redemptions, unless replaced by other appropriate non-
segregated assets of equal value.\305\ This means that a fund that 
receives significant redemption requests may

[[Page 62309]]

need to unwind a portion of its financing transactions in order make 
more liquid assets available for sale to fulfill such requests. 
Furthermore, if a fund seeks to unwind its financing transactions in a 
declining market, it may need to dispose of a greater amount of its 
more liquid holdings in order to repay its borrowings, thereby reducing 
the amount of liquid assets it has available to meet redemptions. 
Consequently, a fund's assessment of its liquidity risk should include 
an evaluation of the nature and extent of its borrowings and the 
potential impact of borrowings on the fund's overall liquidity profile.
---------------------------------------------------------------------------

    \302\ Proposed rule 22e-4(b)(2)(iii)(C). Although the use of 
borrowings and derivatives is a distinct factor under proposed rule 
22e-4(b)(2)(iii), a fund should also consider the potential impact 
of borrowings and derivatives in its assessment of other factors set 
forth in proposed rule 22e-4(b)(2)(iii), such as the fund's cash 
flow projections and its investment strategy and liquidity of 
portfolio assets.
    \303\ See infra note 321.
    \304\ See supra section III.B.2.i.
    \305\ See Release 10666, supra note 241.
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    The use of derivatives, such as futures, forwards, swaps and 
written options, may also affect a fund's liquidity risk. Funds use 
derivatives for a wide range of purposes, including hedging or risk 
mitigation, but also to obtain leverage or investment exposures.\306\ 
As noted above, funds that use derivatives under which they have an 
obligation to pay typically do so in reliance on the guidance we 
provided in Release 10666 and in related no-action letters issued by 
our staff, and therefore segregate liquid assets in respect of their 
obligations under derivatives transactions.\307\ Derivatives may 
therefore raise concerns that are similar to those discussed above in 
the context of borrowings. Funds also may be required to dispose of 
assets in order to post required margins with respect to their short 
sale transactions. In addition, some derivatives transactions--
particularly those that are complex or entered into OTC--may be less 
liquid, have longer settlement periods, or be more difficult to price 
than other types of investments, which potentially increases the amount 
of time required to unwind such transactions.
---------------------------------------------------------------------------

    \306\ See generally Investment Company Derivatives Use Concept 
Release, supra note 242, at 13-17.
    \307\ See supra section III.B.2.i.
---------------------------------------------------------------------------

    Even highly liquid derivatives may present liquidity risk for some 
funds. For example, some funds use derivatives for cash and liquidity 
management purposes. A large-cap equity fund with a temporary cash 
position may purchase equity index futures that have lower transaction 
costs, shorter settlement periods and greater liquidity than a direct 
investment in equity securities, in order to obtain a degree of 
exposure to large-cap equities. While ``equitizing'' its temporary cash 
position in this manner may mitigate the potential performance lag 
associated with a cash holding, it also exposes the fund to market 
risk.\308\ Accordingly, a fund's assessment of liquidity risk should 
take into account the manner and extent of its derivatives use and the 
structure and terms of its derivatives transactions.
---------------------------------------------------------------------------

    \308\ Investment Company Derivatives Use Concept Release, supra 
note 242, at n.46 and accompanying text.
---------------------------------------------------------------------------

    In addition to the liquidity of the derivatives positions 
themselves, assessing liquidity risk generally may include an 
evaluation of the potential liquidity demands that may be imposed on 
the fund in connection with its use of derivatives, including any 
variation margin or collateral calls the fund may be required to 
meet.\309\ To the extent the fund is required to make payments to a 
derivatives counterparty, those assets would not be available to meet 
shareholder redemptions.
---------------------------------------------------------------------------

    \309\ See In re OppenheimerFunds, Inc., et al., Investment 
Company Act Release No. 30099 (June 6, 2012) (``OppenheimerFunds 
Release'') (settled action) (alleging the adviser made misleading 
statements regarding two fixed income mutual funds that suffered 
significant losses during the 2008 financial crisis primarily due to 
their use of total return swaps to obtain exposure to commercial 
mortgage-backed securities and noting that the funds ``had to raise 
cash for anticipated [total return swap] contract payments by 
selling depressed bonds into an increasingly illiquid market.'').
---------------------------------------------------------------------------

d. Holdings of Cash and Cash Equivalents, as Well as Borrowing 
Arrangements and Other Funding Sources
    Proposed rule 22e-4 would require a fund to consider its cash and 
cash equivalent holdings, as well as its borrowing arrangements and 
other funding sources, in assessing its liquidity risk.\310\ Current 
U.S. generally accepted accounting principles define cash equivalents 
as short-term, highly liquid investments that are readily convertible 
to known amounts of cash and that are so near their maturity that they 
present insignificant risk of changes in value because of changes in 
interest rates.\311\ Examples of items commonly considered to be cash 
equivalents include certain Treasury bills, agency securities, bank 
deposits, commercial paper, and shares of money market funds.\312\ Cash 
and cash equivalents are extremely liquid (in that they either are 
cash, or could be easily and nearly immediately converted to known 
amounts of cash without a loss in value), and significant holdings of 
these instruments generally decrease a fund's liquidity risk because 
the fund could use them to meet redemption requests without materially 
affecting the fund's NAV.\313\
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    \310\ Proposed rule 22e-4(b)(2)(iii)(D).
    \311\ FASB Accounting Standards Codification paragraph 305-10-
20l.
    \312\ See 2014 Money Market Fund Reform Adopting Release, supra 
note 85, at sections III.A.7 and III.B.6 (clarifying that the 
reforms to the regulation of money market funds adopted by the 
Commission in 2014 should not preclude an investment in a money 
market fund from being classified as a cash equivalent under U.S. 
GAAP under normal circumstances); Form PF: Glossary of Terms 
(defining ``cash and cash equivalents'').
    \313\ However, a substantial investment in cash and cash 
equivalents could decrease a fund's total return and/or cause a fund 
to diverge from its investment strategy, and thus a fund may wish to 
calibrate its holdings of these instruments to manage the fund's 
liquidity risk while taking these concerns into consideration. But 
see Simutin, supra note 258 (observing that actively managed equity 
funds with cash holdings in excess of the level predicted by fund 
attributes outperform their low abnormal cash peers by over 2% per 
year).
---------------------------------------------------------------------------

    Entering into borrowing arrangements and agreements with other 
potential funding sources also could affect a fund's liquidity risk, as 
they could assist the fund in paying redeeming shareholders without the 
need to sell portfolio securities under circumstances that could impair 
the fund's NAV.\314\ For example, in the past several decades, it has 
become increasingly common for fixed income funds to establish lines of 
credit with commercial banks.\315\ When considering the extent to which 
a bank credit facility could affect a fund's liquidity risk, we believe 
a fund may find it instructive to evaluate the terms of the credit 
facility (e.g., associated fees, the borrowing rate, and the time frame 
for repaying borrowed funds), the amount of the credit facility, 
whether the credit facility is committed or uncommitted,\316\ and the 
financial health of the institution(s) providing the facility 
(especially to the extent that the fund also holds bonds or other 
securities issued by such institution(s), as a decrease in these 
securities' liquidity--caused, for example, by increased volatility of 
their trading prices--could contribute to an increased need to borrow 
from the institution). If a credit facility is shared among multiple 
funds within a fund family, a fund may wish to consider that the 
ability of that facility to mitigate the

[[Page 62310]]

liquidity risk of one fund within the family hinges in part on the 
degree of liquidity risk associated with the other funds sharing the 
facility. A fund also may wish to consider any negative impact on the 
fund resulting from borrowing funds for liquidity risk management 
purposes, as opposed to managing liquidity through the fund's portfolio 
construction. For example, borrowing funds to pay redeeming 
shareholders (for example, to avoid making sales of assets into 
distressed markets) could be beneficial to redeeming shareholders but 
could ultimately disadvantage non-redeeming shareholders who would 
effectively bear the costs of borrowing.\317\ In assessing the effects 
of the fund's borrowing arrangements on the fund's liquidity risk, a 
fund may find it useful to assess the purposes for which the fund has 
historically borrowed funds to pay redemption proceeds. Finally, if a 
fund holds bonds or other securities issued by a bank, the fund may 
wish to consider whether entering into a borrowing arrangement with the 
same bank that issued such securities increases correlated exposure to 
the bank.
---------------------------------------------------------------------------

    \314\ See supra note 35 (noting that most funds do not 
frequently draw on their lines of credit).
    \315\ See, e.g., Miles Weiss, BlackRock Leads Funds Raising 
Credit Lines Amid Review, Bloomberg (Jan. 21, 2015), available at 
http://www.bloomberg.com/news/articles/2015-01-21/blackrock-leads-funds-raising-credit-lines-amid-review (discussing an uptick in 
demand by funds for bank lines of credit); see also Fortune, supra 
note 270, at 64 (noting that lines of credit with banks were rarely 
available to funds prior to the mid-1980s); infra section III.C.5.a 
(Commission guidance on use of borrowing arrangements and other 
funding sources as a liquidity risk management control).
    \316\ A committed line of credit represents a bank's obligation, 
in exchange for a fee, to make a loan to a fund subject to specified 
conditions. A bank can also provide an uncommitted or standby line 
of credit, in which the bank indicates a willingness, but no 
obligation, to lend to a fund. See Fortune, supra note 270, at 47.
    \317\ See Heartland Release, supra note 47.
---------------------------------------------------------------------------

    A fund also could engage in interfund lending within a family of 
funds if the fund has obtained exemptive relief from the Commission 
permitting the arrangement.\318\ When considering the extent to which 
an interfund lending arrangement could affect a fund's liquidity risk, 
we believe a fund may find it instructive to evaluate the terms of the 
arrangement (e.g., the lending rate and the time frame for repaying 
borrowed funds), as well as any conditions required under exemptive 
relief, including limitations on the circumstances in which interfund 
lending may be used. For example, it is common for exemptive orders to 
permit interfund lending in circumstances in which there is a timing 
mismatch between when a fund is required to pay redeeming shareholders 
and when any asset sales that the fund has executed in order to pay 
redemptions will settle (e.g., a fund may be required to pay redeeming 
shareholders within three business days, but the portfolio transactions 
the fund has executed in order to pay these shareholders may not settle 
for seven days). A fund can reasonably predict that it will repay 
borrowed money relatively quickly and reliably under these 
circumstances. Therefore this type of borrowing would tend to be very 
low risk, and thus entail less liquidity risk,\319\ than borrowing 
money to pay redemptions without already having secured a price at 
which the assets used to cover the borrowing will be sold.
---------------------------------------------------------------------------

    \318\ See infra note 320 and accompanying and following text.
    \319\ See supra section III.C.1.c (discussing circumstances in 
which a fund's use of leverage and derivatives could increase the 
fund's liquidity risk).
---------------------------------------------------------------------------

    Finally, a fund could generate liquidity through repurchase 
transactions, whereby the fund could agree to sell securities to 
another party at a specified price with a commitment to buy the 
securities back at a later date for another specified price. A 
repurchase agreement is structurally similar to a short-term loan, and 
thus a fund could use repurchase agreements to temporarily borrow cash 
to repay redeeming shareholders. A fund may find it instructive to 
consider how factors such as market conditions, supply and demand 
factors, whether the repurchase agreement is on a bilateral or tri-
party basis, and counterparty credit risk could affect the ability of 
repurchase transactions to mitigate liquidity risk.
    A fund's borrowing and other funding arrangements are subject to 
restrictions on affiliated transactions and leverage under the 
Investment Company Act and rules under the Act. For example, funds must 
obtain exemptive relief from the Commission before executing 
transactions that implicate section 17 of the Investment Company Act, 
which restricts transactions between an ``affiliated person of a 
registered investment company or an affiliated person of such 
affiliated person'' and that investment company.\320\ Thus, as noted 
above, a fund must obtain exemptive relief before executing interfund 
lending arrangements. Additionally, funds' borrowing arrangements must 
be conducted in compliance with section 18 of the Investment Company 
Act, which limits a fund's ability to issue or sell ``senior 
securities.'' For instance, section 18(f) of the Investment Company Act 
limits funds to bank borrowing with 300% asset coverage.\321\ The 
Commission and its staff have also taken the position that reverse 
repurchase agreements may involve the issuance of a senior security 
subject to the requirements of section 18 and, under certain 
circumstances, a fund could need to ``cover'' the senior security by 
maintaining ``segregated accounts.'' \322\ These statutory and 
regulatory restrictions could constrain a fund's ability to use 
borrowing and other funding sources to meet redemption requests, and 
these limitations should be considered in assessing a fund's liquidity 
risk.
---------------------------------------------------------------------------

    \320\ See Investment Company Act sections 17(a) (prohibiting 
first- and second-tier affiliates of a fund from borrowing money or 
other property from, or selling or buying securities or other 
property to or from the fund, or any company that the fund controls; 
17(b) (permitting the Commission to grant an exemptive order 
permitting transactions that would otherwise be prohibited under 
section 17(a) if certain conditions of fairness are met); see also 
Investment Company Act section 17(d) (making it unlawful for 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 Commission rules); 
rule 17d-1(a) under the Investment Company Act (prohibiting 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, from participating in or 
effecting any transaction in connection with any joint enterprise or 
other joint arrangement or profit-sharing plan in which any such 
fund or company controlled by a fund is a participant unless an 
application regarding such enterprise, arrangement or plan has been 
filed with the Commission and has been granted).
    \321\ See Investment Company Act section 18(f) (prohibiting an 
open-end fund from issuing any senior security, except that a fund 
may borrow from any bank so long as immediately after the borrowing 
there is asset coverage of at least 300% for all borrowings of the 
fund).
    \322\ See, e.g., Release 10666 supra note 241. In Release 10666, 
the Commission considered the application of section 18's 
restrictions on the issuance of senior securities to reverse 
repurchase agreements (among other types of agreements). The 
Commission concluded that such agreements may involve the issuance 
of senior securities subject to the prohibitions and asset coverage 
requirements of section 18. The Commission further stated that, 
although reverse repurchase agreements (among other types of 
agreements) are functionally equivalent to senior securities, these 
and similar arrangements nonetheless could be used by funds in a 
manner that would not warrant application of the section 18 
restrictions. The Commission noted that in circumstances involving 
similar economic effects, such as short sales of securities by 
funds, Commission staff had determined that the issue of section 18 
compliance would not be raised if funds ``cover'' senior securities 
by maintaining ``segregated accounts.'' The Commission also 
discussed the specific attributes of segregated accounts, board 
obligations, and other related matters in Release 10666.
---------------------------------------------------------------------------

e. Request for Comment
    We request comment on the proposed liquidity risk assessment 
requirement.
     Do commenters believe that the definition of ``liquidity 
risk'' in proposed rule 22e-4 is appropriate? Within the proposed 
definition, are the terms ``reasonably foreseeable'' and ``without 
materially affecting the fund's NAV'' clear? If not, how could the 
definition of ``liquidity risk,'' and terms within the proposed 
definition, be made more appropriate and/or clear?
     How do funds currently assess their liquidity risk? Who at 
the fund and/or the adviser is tasked with assessing the fund's 
liquidity risk? Who should be tasked with assessing the fund's 
liquidity risk? Should the proposed rule specify the officers or 
functional areas

[[Page 62311]]

that should be tasked with assessing a fund's liquidity risk?
    We also request comment on each of the proposed factors that each 
fund would be required to consider in assessing its liquidity risk.
     What factors do funds currently use to assess their 
liquidity risk, and do the proposed factors reflect factors that funds 
(and/or the adviser, as applicable) already consider when evaluating 
liquidity risk? Should any of the proposed factors not be required to 
be considered by a fund in assessing its liquidity risk? Should any of 
the proposed factors be modified? Are there any additional factors, 
besides the proposed factors, that a fund should be required to 
consider in assessing liquidity risk? Should any of the proposed 
factors be given additional weight and, if so, under what 
circumstances?
     Instead of codifying the proposed factors as part of 
proposed rule 22e-4, should we provide guidance on factors that might 
be appropriate for a fund to consider in assessing its liquidity risk?
    We seek comment on the Commission's guidance discussed above 
regarding each of the proposed factors.
     Besides the guidance, are there any other specific issues 
associated with any of the proposed factors that a fund may wish to 
consider in assessing the fund's liquidity risk? Do commenters 
generally agree with the guidance that the Commission has proposed 
regarding the ways in which each of the proposed factors could 
contribute to a fund's liquidity risk? Should the staff provide 
additional guidance about the factors? Should we add a note to rule 
22e-4 indicating that the release includes additional guidance 
regarding the proposed factors?
     Are there any factors or procedures that would be of 
particular use to a fund without a substantial operating history in 
assessing liquidity risk? Would a new fund look to purchase and 
redemption activity in similar funds to predict its flow patterns?
2. Periodic Review of a Fund's Liquidity Risk
a. Proposed Liquidity Risk Review Requirement
    Proposed rule 22e-4(b)(2)(iii) would require a fund to periodically 
review the fund's liquidity risk, taking into account each of the 
factors of proposed rule 22e-4(b)(2)(iii)(A)-(D) (discussed above in 
sections III.C.1.a-III.C.1.d). We believe that the periodic review of a 
fund's liquidity risk is necessary to determine whether, in light of 
current circumstances, an adequate level of liquidity is being 
maintained. Like the proposed requirement to monitor the liquidity of 
portfolio assets,\323\ the proposed liquidity risk review requirement 
would permit each fund to develop and adopt effective and 
individualized procedures to review the fund's liquidity risk, tailored 
as appropriate to reflect the fund's particular facts and 
circumstances. A fund would be required to consider each of the 
proposed rule 22e-4(b)(2)(iii)(A)-(D) factors in reviewing its 
liquidity risk. However, beyond this, rule 22e-4 does not include 
prescribed review procedures, nor does it specify the required risk 
review period or incorporate specific developments that a fund should 
consider as part of its review. A fund might generally consider whether 
its periodic review procedures should include procedures for evaluating 
regulatory, market-wide, and fund-specific developments affecting each 
of the proposed rule 22e-4(b)(2)(iii) risk factors. Because a fund's 
liquidity risk is directly related to the liquidity of the fund's 
portfolio assets (as reflected by proposed rule 22e-4(b)(2)(iii)(B), 
which requires consideration of the liquidity of a fund's portfolio 
assets as an element of the fund's liquidity risk assessment), a fund 
may wish to adopt liquidity risk review procedures that reference the 
fund's procedures for monitoring portfolio assets' liquidity. For 
example, a fund's liquidity risk review procedures could specify that 
certain circumstances giving rise to a revision of a portfolio asset's 
liquidity classification \324\ could necessitate a review of the fund's 
liquidity risk.
---------------------------------------------------------------------------

    \323\ See proposed rule 22e-4(b)(2)(i).
    \324\ See, e.g., supra paragraph accompanying notes 251-254.
---------------------------------------------------------------------------

b. Request for Comment
    We request comment on the proposed liquidity risk review 
requirement.
     How do funds currently review liquidity risk? How often do 
funds currently review this risk? To what extent do funds anticipate 
that the periodic review procedures that would be required under 
proposed rule 22e-4 would replicate procedures funds currently use to 
periodically evaluate liquidity risks facing the fund?
     Are there certain review procedures that the Commission 
should require and/or on which the Commission should provide guidance? 
Should the Commission specify how frequently a fund must review its 
liquidity risk? Should funds review liquidity risk at least as 
frequently as they conduct ongoing liquidity reviews? Should the 
Commission expand its guidance on regulatory, market-wide, and fund-
specific developments that a fund's review procedures should cover?
3. Portfolio Liquidity: Minimum Investments in Three-Day Liquid Assets
a. Proposed Three-Day Liquid Asset Minimum Requirement
    Proposed rule 22e-4(b)(2)(iv)(A) would require each fund to 
determine the fund's ``three-day liquid asset minimum'' as part of its 
liquidity risk management program.\325\ As proposed, the fund's three-
day liquid asset minimum would be defined as the percentage of the 
fund's net assets to be invested in three-day liquid assets.\326\ In 
determining its three-day liquid asset minimum, a fund would be 
required to consider the factors a fund would be required to consider 
in assessing its liquidity risk under proposed rule 22e-
4(b)(2)(iii).\327\ These factors include an assessment of short-term 
and long-term cash flow projections, taking into account certain 
specified considerations discussed further below; the investment 
strategy and liquidity of the fund's portfolio assets; the use of 
borrowings and derivatives for investment purposes (for example, to 
enhance returns),\328\ and holdings of cash and cash equivalents, as 
well as borrowing arrangements and other funding sources. These factors 
are based, in part, on staff outreach to funds and third-party service 
providers that assess liquidity risk on behalf of funds, and they also 
incorporate considerations that we believe have historically 
contributed to liquidity risk in open-end funds.\329\
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    \325\ Under proposed rule 22e-4(b)(2)(iv)(C), a fund would be 
prohibited from acquiring any less liquid asset if, immediately 
after the acquisition, the fund would have invested less than its 
three-day liquid asset minimum in three-day liquid assets.
    \326\ We propose to define three-day liquid asset as any cash 
held by a fund and any position of a fund in an asset (or portion of 
the fund's position in an asset) that the fund believes is 
convertible into cash within three business days at a price that 
does not materially affect the value of that asset immediately prior 
to sale. See proposed rule 22e-4(a)(8).
    \327\ See proposed rule 22e-4(b)(2)(iv)(A).
    \328\ See Investment Company Names Rule Release, supra note 36, 
at n.36 (``Whether a particular transaction is considered borrowing 
for investment purposes would depend on all facts and 
circumstances.'').
    \329\ See supra section III.C.1.
---------------------------------------------------------------------------

    A fund's board would be required to approve the fund's three-day 
liquid asset minimum (including any changes to the fund's three-day 
liquid asset minimum),\330\ and a fund would be required to maintain a 
written record of how the fund's three-day liquid asset minimum was 
determined (including an

[[Page 62312]]

assessment of each of the factors proposed rule 22e-4 would require a 
fund to assess in making this determination).\331\
---------------------------------------------------------------------------

    \330\ See proposed rule 22e-4(b)(3)(i).
    \331\ See proposed rule 22e-4(c)(3) (each fund must maintain a 
written record of how the three-day liquid asset minimum, and any 
adjustments thereto, were determined, including assessment of the 
factors specified in proposed rule 22e-4(b)(2)(iii)(A)-(D), for a 
period of not less than five years (the first two years in an easily 
accessible place) following the determination of and each change to 
the three-day liquid asset minimum).
---------------------------------------------------------------------------

    We are proposing the requirement for each fund to determine a 
three-day liquid asset minimum to increase the likelihood that the fund 
will hold adequate liquid assets to meet redemption requests without 
materially affecting the fund's NAV. Although the Commission has stated 
that open-end funds have a general responsibility to maintain an 
appropriate level of portfolio liquidity, no requirements under the 
federal securities laws or Commission rules specifically oblige open-
end funds (with the exception of money market funds) to maintain a 
minimum level of portfolio liquidity.\332\ We believe that codifying a 
three-day liquid asset minimum requirement would result in a portfolio 
liquidity standard that fosters consistency in funds' consideration of 
the factors relevant to their liquidity risk management, while 
simultaneously permitting flexibility in implementation, which we 
believe is appropriate in light of the significant diversity of 
holdings and strategies within the fund industry.
---------------------------------------------------------------------------

    \332\ See supra section II.D.1.
---------------------------------------------------------------------------

    We believe setting the minimum amount of liquid assets in the fund 
based on three-day liquid assets is appropriate for a number of 
reasons. Most funds sell at least some of their shares through broker-
dealers, and thus, as a practical matter, are required as a result of 
rule 15c6-1 under the Exchange Act to meet redemptions within three 
business days.\333\ While some mutual funds disclose in their 
prospectuses that they will generally pay redemption proceeds on a 
next-business day basis and many others do so as a matter of 
practice,\334\ we are not proposing that funds maintain a minimum 
amount of assets that may be converted to cash within one day, given 
the impact such a minimum could have on investment strategies. Staff 
outreach has shown that, for the funds that typically do target a 
minimum amount of liquidity in the fund, they typically target either 
cash and cash equivalents or assets similar to our definition of three-
day liquid assets. Accordingly, targeting such a minimum appears to be 
a common practice for those funds that do establish a target.
---------------------------------------------------------------------------

    \333\ See, e.g., Fidelity FSOC Notice Comment Letter, supra note 
20, at 6 (``As a practical matter, three-day settlement requirements 
under Exchange Act Rule 15c6-1 . . . effectively take most fund 
investments to a T+3 settlement timeline.'').
    \334\ See id. at 6 (``mutual funds normally process redemption 
requests by the next business day''); see also ICI FSOC Notice 
Comment Letter, supra note 16, at 17 (``For example, a mutual fund 
has by law up to seven days to pay proceeds to redeeming investors, 
although as a matter of practice funds typically pay proceeds within 
one to two days of a redemption request.'').
---------------------------------------------------------------------------

    Consistent with the time period referenced in section 22(e) of the 
Act, we considered requiring that a fund determine a minimum amount of 
liquid assets based on assets convertible to cash within seven calendar 
days at a price that does not materially affect the value of that asset 
immediately prior to sale (``seven-day liquid assets''). Determining a 
minimum amount of seven-day liquid assets would require that a fund 
have a certain amount of liquidity to meet redemptions within the 
seven-day period required under the Act. However, we were concerned 
that requiring a minimum amount of seven-day liquid assets would not as 
well match regulatory requirements and disclosures that require most 
funds to meet redemption requests in shorter time periods and market 
practices and investor expectations that effectively require all funds 
to meet redemption requests in shorter time periods. We thus believe 
that a three-day liquid asset minimum more effectively advances our 
goals of reducing the risk that funds will be unable to meet 
redemptions and mitigating dilution.
    We anticipate that the proposed requirement for a fund to consider 
certain factors, including the factors required in assessing the fund's 
liquidity risk, in determining its three-day liquid asset minimum would 
promote investor protection by reducing the risk funds will be unable 
to meet their redemption obligations, mitigating dilution, and 
elevating the overall quality of liquidity risk management across the 
fund industry. The consideration of certain factors also would require 
every fund to consider multiple aspects of its history, policies, 
strategy, and operations that could give rise to liquidity risk.
    When determining its three-day liquid asset minimum, a fund must 
consider short-term and long-term cash flow projections, taking into 
account the following factors, which we discussed previously in 
connection with the assessment of a fund's liquidity risk: \335\
---------------------------------------------------------------------------

    \335\ See supra section III.C.1.a.
---------------------------------------------------------------------------

    1. the size, frequency, and volatility of historical purchases and 
redemptions of fund shares during normal and stressed periods;
    2. the fund's redemption policies;
    3. the fund's shareholder ownership concentration;
    4. the fund's distribution channels; and
    5. the degree of certainty associated with the fund's short-term 
and long-term cash flow projections.\336\
---------------------------------------------------------------------------

    \336\ See proposed rule 22e-4(b)(2)(iii)(A).
---------------------------------------------------------------------------

    We believe consideration of cash flow projections is pivotal to 
setting an appropriate three-day liquid asset minimum. The primary goal 
of a minimum level of liquidity is to ensure that each fund is able to 
meet redemptions and to do so with minimal dilution of shareholders' 
interests. Doing so requires that the fund's adviser, to the best of 
its ability, understands potential levels of net redemptions and the 
causes and timing of those redemptions. To adequately make such 
projections, we believe a fund must consider the sub-factors described 
above. For example, it would be important to understand not just the 
magnitude of redemptions the fund tends to receive, but also how 
frequent redemptions of various sizes are and how volatile the fund's 
flows are. It also may be important to understand how the fund's 
redemption activity compares to funds with similar investment 
strategies, for example, to understand whether the fund may have unique 
liquidity risks (or lack liquidity risks) that may make past redemption 
experiences less predictive of future redemption risk. It would be 
essential that the fund formulate its cash flow projections after 
considering the factors in both normal and stressed periods--minimum 
liquidity would not likely advance the Commission's goal of reducing 
the risk that funds will be unable to meet redemptions and mitigating 
dilution if funds can only meet redemptions in stressed conditions 
through sales of portfolio assets that create dilution and 
significantly increase the fund's liquidity risk. In addition, a fund, 
though not required to do so, may wish to consider employing some form 
of stress testing \337\ or consider specific historical redemption 
scenarios in determining its three-day liquid asset minimum.
---------------------------------------------------------------------------

    \337\ See supra text following note 100; see also supra note 104 
(discussing Commission initiative to require large investment 
companies and investment advisers to engage in annual stress tests 
as required by section 165(i) of the Dodd-Frank Act).
---------------------------------------------------------------------------

    In formulating the fund's cash flow projections, a fund also must 
consider the fund's redemption policies, shareholder ownership 
concentration, and distribution channels. These are

[[Page 62313]]

important structural features of a fund that can materially affect the 
risk of significant redemptions--and thus may cause a fund to set a 
higher three-day liquid asset minimum than one based on its redemption 
history alone. For example, a fund with a concentrated shareholder base 
has a high risk that only one or two shareholders deciding to redeem 
can cause the fund to sell a significant amount of assets, which 
depending on the liquidity of the fund's portfolio and how it meets 
those redemptions, can dilute remaining shareholders. Similarly, a fund 
whose redemption policy is to satisfy all redemptions on a next 
business day basis (T+1) or that is sold through distribution channels 
that historically attract investors with more volatile and/or 
unpredictable flows also should consider setting a higher three-day 
liquid asset minimum than a fund that--all else equal--does not face 
these risks. Finally, in setting a three-day liquid asset minimum it is 
critical that a fund consider the degree of certainty associated with 
the fund's short-term and long-term cash flow projections. Projections 
may only be as good as the extent and quality of information that 
informs them. For example, if a fund does not have great visibility 
into its shareholder base (e.g., because the fund's shares are 
principally sold through intermediaries that do not provide shareholder 
transparency) or if a fund is uncertain about changing market 
conditions which are likely to materially affect the fund's level of 
net redemptions, it may make projections but be quite uncertain about 
those projections. In these circumstances, we would expect a fund to 
set its three-day liquid asset minimum to reflect this uncertainty, for 
example, by providing a cushion or multiple of its cash flow 
projections in the event realized net redemptions are significantly 
higher. A fund should have a three-day liquid asset minimum that will 
allow it to meet its net redemption projections.
    In setting its three-day liquid asset minimum, a fund also must 
consider its investment strategy and the liquidity of portfolio assets. 
A finding of the DERA Study is that certain investment strategies 
typically have greater volatility of flows than other investment 
strategies. For example, the DERA Study indicates that the mean 
standard deviation of monthly net flows for alternative funds is 13.6% 
and for emerging market debt funds is 9.4%, but is only 2.7% for 
municipal bond funds and 4.9% for U.S. corporate bond funds.\338\ 
Accordingly, all else equal, we generally would expect that an emerging 
market debt fund would have a higher three-day liquid asset minimum 
than a municipal bond fund. Similarly, the less liquid a fund's overall 
portfolio assets are, the more a fund may want to establish a higher 
three-day liquid asset minimum to avoid dilution when meeting investor 
redemptions.
---------------------------------------------------------------------------

    \338\ DERA Study, supra note 39, at Table 6.
---------------------------------------------------------------------------

    A fund also must consider its use of borrowings and derivatives in 
setting its three-day liquid asset minimum. A leveraged fund has an 
increased risk that it will be unable to meet redemptions and an 
increased risk of investor dilution compared to an equivalent fund with 
no leverage. For example, a fund with leverage through bank borrowings 
may have to meet margin calls if a security the fund provided to the 
bank to secure the loan declines in value. Such margin calls can render 
highly liquid portfolio assets unavailable to meet investor 
redemptions, which can increase dilution and the risk the fund will be 
unable to meet redemptions. Similarly, a fund that has significant 
fixed obligations to derivatives counterparties (for example, from a 
total return swap or writing credit default swaps) must pay out on 
these obligations when due, even if it means selling the fund's more 
liquid, high quality assets to raise cash.\339\ A fund with a leveraged 
strategy thus, all else equal, should have a higher three-day liquid 
asset minimum than a fund that does not.
---------------------------------------------------------------------------

    \339\ See, e.g., OppenheimerFunds Release, supra note 309.
---------------------------------------------------------------------------

    Finally, a fund must consider its holdings of cash and cash 
equivalents, as well as borrowing arrangements and other funding 
sources when determining its three-day liquid asset minimum. 
Unencumbered cash and cash equivalents are assets that the fund can 
typically readily deploy, in normal and stressed conditions, to meet 
redemptions. A fund can have cash on hand to meet redemptions from cash 
held in the fund's portfolio, cash received from investor purchases of 
fund shares, interest payments and dividends on portfolio securities, 
or maturing bonds. Our staff observed that several fund complexes 
targeted a minimum amount of cash or cash equivalent holdings in the 
fund because they assumed such holdings would allow the fund to meet 
redemptions in a stressed period without realizing significant 
discounts to fair value when the asset was sold. Accordingly, higher 
cash and cash equivalent holdings may make a fund more comfortable that 
it can meet redemptions under stressed conditions with a lower three-
day asset minimum than an equivalent fund whose three-day asset minimum 
was comprised primarily of non-cash equivalent assets. A fund also 
should consider whether it has a line of credit or other funding 
sources available to it to meet redemptions. As discussed further 
below, while we believe that liquidity risk management is best 
conducted primarily through portfolio construction, we recognize a line 
of credit can facilitate a fund's ability to meet unexpected 
redemptions.
    Because each fund would be required to maintain a written record of 
how its three-day liquid asset minimum was determined, including an 
assessment of each of the factors discussed above,\340\ our examination 
staff would be able to ascertain that funds are indeed considering the 
required factors. We expect that a board approving a fund's three-day 
liquid asset minimum would consider how the specified factors inform 
that minimum, and thus we believe that the proposed rule would cause 
fund boards to consider a comprehensive set of issues surrounding the 
fund's liquidity risk and risk management. Moreover, we believe that 
the board approval requirement associated with the three-day liquid 
asset minimum determination would add independent oversight over funds' 
liquidity risk management.
---------------------------------------------------------------------------

    \340\ See supra note 331.
---------------------------------------------------------------------------

    Although a fund would be permitted to determine its three-day 
liquid asset minimum under the analysis required by the proposed rule, 
we generally believe that it would be extremely difficult to conclude, 
based on the factors it would be required to consider, that a zero 
three-day liquid asset minimum would be appropriate. Under the proposed 
rule, a fund's three-day liquid asset minimum would be a control to 
manage the fund's liquidity risk, and as discussed above the fund's 
three-day liquid asset minimum would be required to be determined based 
on the consideration of certain specified factors.\341\ We believe that 
it would be extremely difficult to conclude, based on factors such as 
the fund's cash flow projections and redemption policies, that zero 
holdings of three-day liquid assets would allow the fund to manage its 
liquidity risk (in conjunction with any other liquidity risk management 
policies and procedures the fund adopts as part of its liquidity risk 
management program).
---------------------------------------------------------------------------

    \341\ See proposed rule 22e-4(b)(iv)(A).
---------------------------------------------------------------------------

    By way of example, consider a bank loan fund with a ten-year track 
record. The fund has a history of volatile cash

[[Page 62314]]

flows that it projects will continue, with periods of market stress and 
reduced performance leading to increased net redemptions, and its 
largest net redemption during a one-week period was five percent of the 
fund's net assets. The fund does not have a concentrated shareholder 
base and is sold through several broker-dealers. The fund has 98 
percent of its net assets invested in bank loans and loan 
participations that do not settle within three business days, one 
percent of its net assets invested in corporate bonds (which under this 
example we are assuming qualify as three-day liquid assets) and one 
percent of its net assets in cash and cash equivalents. The fund does 
not borrow or use derivatives for investment purposes, but does have a 
committed credit line in place with a bank. It would appear that such a 
fund, after assessing the factors required to be considered, would have 
a difficult time concluding that its existing three-day liquid asset 
holdings would be an adequate minimum given the liquidity risks 
inherent in the fund's portfolio and its redemption history.
    We considered establishing a floor for the three-day liquid asset 
minimum. For example, we considered requiring that a fund set its 
three-day liquid asset minimum after consideration of the factors 
described above, but in no event could the minimum be below a certain 
specified percentage of the fund's net assets or a certain multiple of 
its average or worst net redemptions. A uniform percentage three-day 
liquid asset minimum floor could be difficult, however, given the 
diverse range of funds to which it would apply and the range of net 
redemptions within different types of funds indicated by the DERA 
Study. If set relatively high, a uniform percentage floor risks 
requiring excessive liquidity in some funds given their portfolio 
characteristics, investor base, and flow projections, which may 
unnecessarily constrain the fund's returns and investment in certain 
assets frustrating investors' goals in choosing to invest in the fund. 
If set relatively low, it may encourage some funds to set low levels of 
three-day liquid asset minimums that would not effectively manage 
liquidity risk or mitigate dilution. A floor also could be set based on 
a fund's historical redemptions. However, such a floor would not be 
forward-looking--a fund should be setting its minimum liquidity based 
in large part on projections of expected future redemptions. Such an 
approach risks a fund setting its minimum liquidity too low, for 
example during a period of rapid inflows that are likely to soon 
reverse. Conversely, continuing with the same example, it risks setting 
minimum liquidity too high after those flows have in fact reversed.
    Accordingly, we preliminarily believe our proposed approach 
appropriately balances these considerations by requiring that a 
rigorous set of factors be considered and documented, and the three-day 
liquid asset minimum approved by the fund's board, but otherwise allow 
the minimum to be tailored to the nature of the fund and its cash flow 
projections. It should allow funds with different investment 
strategies, and whose cash flow and liquidity needs vary notably from 
one fund to the next, to manage their individual levels of liquidity 
risk in a way that best serves their investors.\342\ We recognize that 
funds' three-day liquid asset minimums would likely vary from one fund 
to the next (even within the same strategy), depending on the factors 
that each fund would be required to consider. But we believe that 
consideration and documentation of the required factors, board 
oversight, and public disclosure of the fund's three-day liquid asset 
minimum should constrain funds from setting an inappropriately low 
minimum in light of the fund's liquidity needs and risks.\343\
---------------------------------------------------------------------------

    \342\ See, e.g., BlackRock FSOC Notice Comment Letter, supra 
note 50, at 6 (statement that among several overarching principles 
that provide the foundation for a prudent market liquidity risk 
management framework for collective investment vehicles is 
``[r]equiring that individual funds have sufficient sources of 
market liquidity to meet anticipated redemptions under a range of 
scenarios, including changes in market risk factors (e.g., interest 
rates) that may impact the value of portfolio securities and/or 
collateral and various levels of potential fund redemptions. This 
could be achieved by setting out principles for managing liquidity 
and redemption risk that should include maintaining sufficient 
levels of liquid assets, such as cash and liquid bonds as well as 
dedicated and shared loan facilities. The principles-based approach 
should provide appropriate flexibility to tailor practices to 
particular asset structures and fund redemption terms.'').
    \343\ See infra section III.D.1-2 (discussing board approval of 
the fund's three-day liquid asset minimum and any changes thereto), 
section III.G.2.c (discussing disclosure of a fund's three-day 
liquid asset minimum on proposed Form N-PORT).
---------------------------------------------------------------------------

    We also note that assets eligible for inclusion in each fund's 
three-day liquid asset minimum holdings could include a broad variety 
of securities, as well as cash and cash equivalents. While one fund may 
conclude that it is appropriate to hold a significant portion of its 
three-day liquid assets in cash and cash equivalents, another could 
decide it is appropriate to hold equity, debt, derivatives or asset-
backed securities as the majority of its three-day liquid asset minimum 
holdings. We believe that the proposed three-day liquid asset minimum 
requirement would allow funds to continue to meet a wide variety of 
investors' investment needs by obliging funds to maintain appropriate 
liquidity in their portfolios, while permitting funds to remain 
substantially invested in portfolio assets that conform to their 
investment strategies.
    The proposed three-day liquid asset minimum requirement reflects 
liquidity management strategies that we understand from staff outreach 
that some--but not all--funds use. Based on staff outreach, we 
understand that funds of different sizes, with varying investment 
strategies, manage their liquidity by maintaining specified portions of 
their portfolios in more liquid assets. Some funds invest a certain 
percentage of their assets in cash and cash equivalents; others invest 
in other types of more liquid portfolio securities corresponding with 
their investment strategies. To the extent that a fund already 
maintains a specified portion of its portfolio in more liquid assets, 
we anticipate that the proposed three-day liquid asset minimum 
requirement would formalize this risk management strategy, and augment 
it by requiring the fund to consider certain factors in determining the 
portion of assets that the fund will maintain in three-day liquid 
assets. More importantly, it would require the many funds that do not 
consider maintaining a minimum amount of liquidity, despite their 
obligations to meet redemptions within a certain time period, to do so.
b. Limiting Acquisition of Less Liquid Assets in Contravention of a 
Fund's Three-Day Liquid Asset Minimum
    Under proposed rule 22e-4(b)(2)(iv)(C), a fund would not be 
permitted to acquire any less liquid asset if, immediately after the 
acquisition, the fund would have invested less than its three-day 
liquid asset minimum in three-day liquid assets.\344\ This provision of 
proposed rule 22e-4 would thus limit the acquisition of less liquid 
assets if such acquisition would result in the fund holding a smaller 
percentage of its net assets in three-day liquid assets than the 
percentage representing its three-day liquid asset minimum. The 
provision would not, however, require a fund to constantly have 
invested a certain portion of its net assets in three-day liquid 
assets. For example, if a fund's investments in three-day liquid assets 
were to temporarily drop below the fund's three-day liquid asset 
minimum,

[[Page 62315]]

proposed rule 22e-4(b)(2)(iv)(C) would require the fund to acquire only 
three-day liquid assets until its investments in three-day liquid 
assets reach the fund's three-day liquid asset minimum, but the 
proposed rule would not require the fund to divest less liquid assets 
and reinvest the proceeds in three-day liquid assets.\345\
---------------------------------------------------------------------------

    \344\ A fund's three-day liquid asset minimum would apply at the 
series level, not at the class level.
    \345\ A fund's investments in three-day liquid assets could drop 
below the fund's three-day liquid asset minimum for a variety of 
reasons. For instance, the fund could sell its most liquid assets in 
order to obtain cash to meet redemption requests, thereby reducing 
its holdings of three-day liquid assets. Or, if the market value of 
a fund's three-day liquid assets falls relative to the market value 
of the fund's less liquid assets, the percentage of a fund's assets 
invested in three-day liquid assets could decrease. A fund's three-
day liquid assets also could become less liquid if market conditions 
deteriorate.
---------------------------------------------------------------------------

    While we believe that fund shareholders' interests are generally 
best served when the percentage of a fund's assets invested in three-
day liquid assets is at (or above) the fund's three-day liquid asset 
minimum,\346\ we believe that requiring a fund to maintain this 
percentage at all times could adversely affect shareholders and could 
potentially negate the liquidity risk management benefits of the 
proposed three-day liquid asset minimum requirement. For instance, if a 
fund were forced to sell less liquid assets at an inopportune time in 
order to reinvest the proceeds in three-day liquid assets, the fund 
might need to sell the less liquid assets at prices that incorporate a 
significant discount to the assets' stated value, or even at fire sale 
prices. These forced sales could produce significant negative price 
pressure on those assets and decrease the value of the assets still 
held by the fund, thereby decreasing the value of fund shares held by 
remaining investors, and possibly creating a first-mover advantage that 
harms investors who choose not to redeem their shares as quickly as 
others.\347\ Also, if a fund needed to rebalance its portfolio 
frequently to maintain a specified percentage of the fund's net assets 
invested in three-day liquid assets, this could produce unnecessary 
transaction costs adversely affecting the fund's NAV, and could cause a 
fund to sell portfolio assets when it is not advantageous to do so 
(e.g., when an asset's price is low, or when sales of an asset would 
have an undesirable tax impact). For these reasons, we are proposing a 
requirement that limits the acquisition of less liquid assets when such 
acquisition would result in a fund investing less than its three-day 
liquid asset minimum in three-day liquid assets, but we are not 
proposing to require that funds always maintain a certain portion of 
their portfolio assets in three-day liquid assets.\348\
---------------------------------------------------------------------------

    \346\ See supra text preceding and following note 332.
    \347\ See infra notes 690-698 and accompanying text.
    \348\ This proposed acquisition test (in contrast to a 
maintenance test) reflects approaches that Congress and the 
Commission have historically taken in other parts of the Investment 
Company Act and the rules thereunder. See, e.g., Investment Company 
Act section 5(c) (a registered diversified company that at the time 
of its qualification meets the diversification requirements 
specified in Investment Company Act section 5(b)(1) shall not lose 
its status as a diversified company because of any subsequent 
discrepancy between the value of its various investments and the 
requirements of section 5(b)(1), so long as any such discrepancy 
existing immediately after its acquisition of any security or other 
property is neither wholly nor partly the result of such 
acquisition); rule 2a-7(d)(3) (portfolio diversification 
requirements of rule 2a-7 are determined at the time of portfolio 
securities' acquisition); rule 2a-7(d)(4)(i) (limit on a money 
market fund's acquisition of illiquid securities if, immediately 
after the acquisition, the money market fund would have invested 
more than 5% of its total assets in illiquid securities); rule 2a-
7(d)(4)(ii)-(iii) (minimum daily liquidity requirement and minimum 
weekly liquidity requirement of rule 2a-7 are determined at the time 
of portfolio securities' acquisition).
---------------------------------------------------------------------------

c. Periodic Review of a Fund's Three-Day Liquid Asset Minimum
    Under proposed rule 22e-4(b)(2)(iv)(B), each fund would be required 
to periodically review the adequacy of the fund's three-day liquid 
asset minimum, and in conducting such review would be required to take 
into account the factors a fund would be required to consider in 
determining its three-day liquid asset minimum. We believe the factors 
used to determine a fund's three-day liquid asset minimum also provide 
an appropriate framework for reviewing the adequacy of a fund's three-
day liquid asset minimum because, as discussed below, changes in the 
assessment of the factors could provide a basis for adjusting the 
three-day liquid asset minimum. A fund would be required to complete 
this review no less frequently than semi-annually,\349\ but could 
establish a more frequent periodic review period, and in addition could 
review the three-day liquid asset minimum even more frequently on an 
ad-hoc basis as conditions demand.\350\ As discussed below, the fund's 
investment adviser or officers administering the fund's liquidity risk 
management program would be required to submit written reports to the 
fund's board concerning the adequacy of the fund's liquidity risk 
management program, including the fund's three-day liquid asset 
minimum, and the effectiveness of its implementation. Board approval 
would be required for any changes to the fund's three-day liquid asset 
minimum.\351\ Each fund would be required to maintain a copy of the 
written reports provided to the board, as well as a written record of 
the fund's assessment of the factors set forth in rule 22e-
4(b)(2)(iii)(A) through (D) and the determination of the three-day 
liquid asset minimum, and any reviews and adjustments to the fund's 
three-day liquid asset minimum.\352\
---------------------------------------------------------------------------

    \349\ Proposed rule 22e-4(b)(2)(iv)(B).
    \350\ See infra paragraph following note 352.
    \351\ See infra section III.D (discussing the board's role in 
approving and overseeing a fund's liquidity risk management 
program); see also proposed rule 22e-4(b)(3)(i) and (ii). We note 
that a fund may hold more three-day liquid assets than required by 
the three-day liquid asset minimum. Thus, a fund may determine it is 
appropriate to increase its minimum holdings in three-day liquid 
assets without waiting for the next board meeting (or calling a 
special meeting) to formally approve an increase in the minimum.
    \352\ See supra note 331.
---------------------------------------------------------------------------

    Because we anticipate that a fund would rely significantly on its 
three-day liquid assets in meeting fund redemptions, we view the three-
day liquid asset minimum determination as a cornerstone of a fund's 
liquidity risk management, and we believe it is important for a fund to 
periodically reassess whether its three-day liquid asset minimum 
effectively assists the fund in managing its liquidity risk. We 
envision the determination of a fund's three-day liquid asset minimum 
as a dynamic process, incorporating new or updated information into the 
fund's assessment of factors, reflecting shareholder-related, fund-
management-oriented, or market changes that could affect the fund's 
ability to meet redemptions. A fund's three-day liquid asset minimum 
could become outdated for multiple reasons. For example, a fund's 
shareholder ownership concentration could change or market events could 
reveal that shareholder redemption patterns are different than 
anticipated under certain circumstances. Additionally, market events or 
national regulatory, monetary, and fiscal policies could affect the 
liquidity of a fund's portfolio assets. Any of these events, or similar 
events influencing a fund's cash flows, portfolio liquidity, or the 
other liquidity risk factors included in proposed rule 22e-
4(b)(2)(iii), could alter the level of three-day liquid assets that a 
fund would determine appropriate to manage its liquidity risk.
    Like the proposed requirements to perform an ongoing review of the 
liquidity of portfolio assets and to review periodically the fund's 
liquidity risk,\353\ the proposed three-day liquid

[[Page 62316]]

asset minimum review requirement would permit each fund to develop and 
adopt its own procedures for conducting this review, taking into 
account the fund's particular facts and circumstances. While each fund 
would be required to consider each of the proposed rule 22e-
4(b)(2)(iii)(A)-(D) factors in periodically reviewing its three-day 
liquid asset minimum, rule 22e-4 would not otherwise include prescribed 
review procedures or incorporate specific developments that a fund 
should consider as part of its review. We believe that in developing 
comprehensive periodic review procedures, a fund should generally 
consider including procedures for evaluating regulatory, market-wide, 
and fund-specific developments affecting the fund's liquidity risk. A 
fund also may wish to adopt procedures specifying any circumstances 
that would prompt ad-hoc review of the fund's three-day liquid asset 
minimum in addition to the periodic review required by the proposed 
rule (as well as the process for conducting any ad-hoc reviews).
---------------------------------------------------------------------------

    \353\ See supra note 323 and accompanying text.
---------------------------------------------------------------------------

d. Request for Comment
    We request comment on all aspects of the proposed three-day liquid 
asset minimum requirement.
     Do commenters agree that the proposed three-day liquid 
asset minimum requirement would improve a fund's ability to meet 
redemption requests without materially affecting the fund's NAV? Are we 
correct that not all funds today target holding a minimum amount of 
more liquid assets?
     Do commenters agree that the proposed requirement would 
promote investor protection by enhancing funds' ability to meet their 
redemption obligations, mitigating dilution, and elevating the overall 
quality (comprehensiveness as well as independence) of liquidity risk 
management across the industry? Would the proposed requirement assist 
fund boards in overseeing funds' ability to meet redemption 
obligations?
     Should we define the three-day liquid asset minimum as 
proposed? Should we define three-day liquid assets as proposed? If not, 
why not? Are there other definitions that would be better? If so, what 
are they? Should we preclude certain assets or types of assets from 
being considered three-day liquid assets? If so, which assets or asset 
types and why? For example, should we prohibit funds from classifying 
as three-day liquid assets any assets that are subject, directly or 
indirectly, to a guarantee, put, wrap, swap, or other liquidity 
enhancement from a third party? Alternatively, should we require 
specific disclosure regarding such assets? If so, what should be 
included in the disclosure? Should we require that the fund more 
stringently or frequently monitor the liquidity of three-day liquid 
assets?
     Would an alternate liquid asset holdings requirement 
(e.g., a seven-day liquid asset minimum requirement, a one-day liquid 
asset minimum requirement, or a buffer of cash and cash equivalents or 
a combination of the above) better accomplish these goals, and if so, 
what should that alternate requirement be and why? Should funds that 
disclose that they will meet redemptions (or are otherwise required to 
meet redemptions) within less than three business days be required to 
have liquid asset minimum requirements that correspond to those shorter 
redemption windows (given that there may be liability under the 
antifraud provisions of the federal securities laws if a fund fails to 
meet redemptions within any shorter time disclosed in the fund's 
prospectus or advertising materials)? Conversely, should funds that 
disclose that under normal circumstances they expect to meet 
redemptions within a period that is longer than three business days 
(e.g., within the seven days permitted under section 22(e)) be 
permitted to have liquid asset minimum requirements that correspond to 
those longer redemption windows? Which funds (and holding how much 
assets) are not subject to rule 15c6-1 under the Exchange Act? Would 
different minimum liquidity requirements for different open-end funds 
be confusing to investors?
     Instead of permitting each fund to determine the portion 
of liquid asset holdings that would most effectively enable it to 
manage its own liquidity risk, should the Commission instead mandate a 
standard level of required minimum liquid asset holdings across-the-
board, or different levels depending on different investment strategies 
(or some other fund characteristic)? If so, at what level (e.g., 1%, 
5%, 10%), and what considerations would form the basis for the 
recommended level?
     Should the Commission set a floor below which a fund could 
not set its three-day liquid asset minimum? Should it do so only for 
funds that hold above a certain percentage of net assets in less liquid 
assets? If so, what percentage of less liquid assets should trigger the 
mandated floor on the three-day liquid asset minimum? What should the 
floor on the three-day liquid asset minimum be for such funds?
     In addition to specifying that a fund must determine its 
three-day liquid asset minimum, should the Commission also require a 
fund to limit its investment in a subset of less liquid assets held by 
a fund (e.g., assets that can only be converted to cash in over 7 days, 
over 15 days, over 30 days, or over 90 days at a price that does not 
materially affect the value of that asset immediately prior to sale)? 
If so, what should this limit be? Should it be a set percentage of fund 
assets established by the Commission (e.g., 5%, 10%, 20%, 30%), or 
should a fund be required to set its own limit, using the factors it 
would be required to consider in determining its three-day liquid asset 
minimum (or some other set of factors)? Should this limit apply to all 
funds, or only a subset of funds (e.g., only funds with certain 
investment strategies, or whose three-day liquid asset minimums are 
below a certain threshold)? Would such a requirement be an effective 
substitute for the limit on 15% standard assets discussed below?
     Should we exclude certain funds from the proposed 
requirement to determine a three-day liquid asset minimum? For example, 
should a fund that only invests in three-day liquid assets be required 
to determine a three-day liquid asset minimum?
     Instead of a requirement that limits the acquisition of 
less liquid assets when such acquisition would result in a fund 
investing less than its required minimum in three-day liquid assets, 
would a requirement mandating that a fund always maintain a specified 
portion of its assets in three-day liquid assets better facilitate 
funds' liquidity risk management and promote investor protection? 
Should a fund be required to hold some minimum portion of assets in 
holdings that are likely to be liquid in stressed market environments? 
If so, what type of assets, at what level, and what considerations 
would form the basis for the recommended level?
     As noted above, the three-day liquid asset minimum would 
be tested each time the fund acquires new assets, and a fund would be 
permitted to fall below its three-day liquid asset minimum if it does 
so due to redemptions or market events. Once a fund falls below its 
three-day liquid asset minimum, any acquisition of new assets must be 
of three-day liquid assets until the fund is at or above its three-day 
liquid asset minimum. Should we limit the time period (e.g., to 30 
days, 60 days, or 90 days) in which a fund can be below its three-day 
liquid asset minimum so that a fund cannot persistently be below this 
level of liquidity? Would such an approach better promote investor 
protection? Would there be operational challenges

[[Page 62317]]

with this requirement? Should we limit the extent to which a fund can 
fall below its three-day liquid asset minimum? If so, what extent 
should be the limit?
     Should the board be required to approve the fund's three-
day liquid asset minimum and any changes to the three-day liquid asset 
minimum? Why or why not?
    We request comment on how the three-day liquid asset minimum 
requirement (or a similar requirement) could affect the management of a 
fund's liquidity risk, decrease the probability that the fund will be 
able to meet redemption obligations only through activities that could 
materially affect the fund's NAV or risk profile, and mitigate 
dilution.
     What range of levels of three-day liquid assets do 
commenters anticipate different funds would determine to be 
appropriate, based on the factors the proposed rule would require a 
fund to consider? What types of securities do commenters anticipate 
that different funds would determine are or are not appropriate as 
three-day liquid asset minimum holdings?
     How many funds today target a minimum level of more liquid 
assets? If some funds indeed aim to invest a certain portion of their 
assets in more liquid assets for purposes of liquidity risk management, 
what types of assets do funds hold for these purposes, and how do funds 
determine what portion of their net assets they intend to invest in 
these assets? What burdens and other difficulties, if any, would funds 
have in initially complying with the three-day liquid asset minimum 
requirement?
     What are the processes that commenters anticipate a fund 
would use for determining and reviewing its three-day liquid asset 
minimum under the proposed rule? Do commenters generally agree with the 
guidance that the Commission has provided regarding the processes a 
fund could use to determine and review its three-day liquid asset 
minimum? Should the minimum frequency of the fund's review of the 
adequacy of its three-day liquid asset minimum be shorter than semi-
annually (such as quarterly) or longer (such as annually)?
     Should the Commission specify certain procedures that a 
fund must use in determining its three-day liquid asset minimum, such 
as requiring a fund to consider specific historical redemption 
scenarios? Should we require that the minimum not be less than, for 
example, a fund's highest historical level of net redemptions, its 
average level of net redemptions over some time period, or a multiple 
(e.g., two times) of those levels?
    We request comment on the proposed factors that each fund would be 
required to consider in determining and reviewing its three-day liquid 
asset minimum.
     To what extent do funds already consider the proposed 
factors when determining the portion of fund assets that should be 
invested in more liquid assets for purposes of liquidity risk 
management? Do commenters believe it is appropriate for a fund to 
consider the same set of factors in determining and reviewing its 
three-day liquid asset minimum as it considers in assessing and 
reviewing its liquidity risk? Are there other factors that would be 
preferable?
     Should any of the proposed factors not be required to be 
considered by a fund in determining and reviewing its three-day liquid 
asset minimum? Should any of the proposed factors be modified? Are 
there any additional factors, besides the proposed factors, that a fund 
should be required to consider?
     Instead of codifying the proposed factors as part of 
proposed rule 22e-4, should the Commission provide guidance on factors 
that may be appropriate for a fund to consider in determining and 
reviewing its three-day liquid asset minimum? Should the Commission 
provide additional guidance on the proposed factors?
4. Portfolio Liquidity: Limitation on Funds' Investments in 15% 
Standard Assets
a. 15% Standard Assets
    Included in proposed rule 22e-4 is a limit on a fund's ability to 
acquire ``15% standard assets.'' Specifically, proposed rule 22e-
4(b)(2)(iv)(D) would prohibit a fund from acquiring any 15% standard 
asset if, immediately after the acquisition, the fund would have 
invested more than 15% of its net assets in 15% standard assets. The 
provision would not require a fund to divest any holdings if 15% 
standard assets rise above 15% of its net assets.\354\
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    \354\ A fund's investments in 15% standard assets could rise 
above 15% of the fund's net assets for a variety of reasons. For 
instance, the fund could sell its most liquid assets in order to 
obtain cash to meet redemption requests, thereby increasing its 
holdings of 15% standard assets relative to its total holdings. Or, 
if the market value of a fund's 15% standard assets rises relative 
to the market value of the fund's other assets, the percentage of a 
fund's assets invested in 15% standard assets could increase. Assets 
that are not 15% standard assets also could become 15% standard 
assets if market conditions deteriorate. See supra note 345 
(discussing similar considerations with respect to a fund's holdings 
of three-day liquid assets).
---------------------------------------------------------------------------

    Under proposed rule 22e-4(a)(4), a 15% standard asset would be 
defined as any asset that may not be sold or disposed of in the 
ordinary course of business within seven calendar days at approximately 
the value ascribed to it by the fund.\355\ For purposes of the proposed 
definition, a fund would not be required to take into account the size 
of the fund's position in the asset or the time period associated with 
receipt of proceeds of sale or disposition of the asset. We believe 
that assets included in the definition of 15% standard asset would be 
consistent with those currently classified as illiquid by funds under 
the 15% guideline, and that such a limit would be an important 
limitation on certain relatively illiquid holdings in funds' 
portfolios, such as private equity investments, securities acquired in 
an initial public offering, and real estate assets. As noted above, we 
believe that the 15% guideline has generally caused funds to limit 
their exposure to particular types of securities that cannot be sold 
within seven days and the proposed limit on 15% standard assets would 
continue to limit these exposures.
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    \355\ As discussed above, under the 15% guideline, a portfolio 
security or other asset is considered illiquid if it cannot ``be 
sold or disposed of in the ordinary course of business within seven 
days at approximately the value at which the mutual fund has valued 
the investment.'' See supra note 93. Rule 2a-7(a)(20) defines the 
term ``illiquid security'' to mean ``a security that cannot be sold 
or disposed of in the ordinary course of business within seven 
calendar days at approximately the value ascribed to it by the 
fund.'' We understand the terms ``approximately the value at which 
the . . . fund has valued the investment'' and ``approximately the 
value ascribed to it by the fund'' to have identical meanings. For 
the sake of consistency with the language of current rule 2a-7, the 
definition of 15% standard asset incorporates the ``approximately 
the value ascribed to it by the fund'' formulation.
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    As discussed above, the Commission and staff have in the past 
provided guidance in connection with the 15% guideline.\356\ We propose 
to withdraw this guidance because we believe this proposal provides a 
more comprehensive framework for funds to evaluate the liquidity of 
their assets. We request comment below on whether additional guidance 
is needed in connection with the definition of 15% standard asset.
---------------------------------------------------------------------------

    \356\ See supra section II.D.2.
---------------------------------------------------------------------------

    We believe that the proposed limit on 15% standard assets and the 
proposed three-day liquid asset minimum each serve distinctly 
important, but interrelated, roles in managing liquidity risk. We 
therefore propose to require each fund to comply with the limit on 15% 
standard assets as well as the three-day liquid asset minimum 
requirement. While the three-day liquid

[[Page 62318]]

asset minimum requirement would increase the likelihood that each fund 
holds adequate liquid assets to meet redemption requests without 
materially affecting the fund's NAV, the limit on 15% standard assets 
would increase the likelihood that a fund's portfolio is not 
concentrated in assets whose liquidity is limited and thus may serve as 
a limit on certain cases of fund illiquidity. While we considered 
requiring a different percentage-based ceiling on relatively illiquid 
holdings, we ultimately decided that proposing the 15% standard would 
effectively accomplish our intended goals while disrupting funds' 
existing practices to the least extent possible.
    While this definition is similar to the definition of an asset that 
cannot be converted to cash within seven days under the proposed 
liquidity classification framework, we note several key differences 
between the definitions. When determining whether an asset may be sold 
or disposed of within seven calendar days for purposes of assessing 
whether the asset is a 15% standard asset, a fund need not consider 
whether it can receive the proceeds of such sale or disposition within 
the same seven-day time period. In contrast, the classification 
framework takes into consideration whether a fund could convert an 
asset to cash--that is, sell the asset and receive cash for the sale 
within this period. Also, the definition of 15% standard asset does not 
require a fund to consider any specific factors in determining the 
circumstances under which an asset may be sold or disposed of. The 
definition of less liquid asset, on the other hand, requires a fund to 
consider, as applicable, certain market, trading, and asset-specific 
factors set forth in proposed rule 22e-4(b)(2)(ii).\357\ These factors 
include the size of a fund's position in a particular portfolio asset 
relative to the asset's average daily trading volume and (as 
applicable) the number of units of the asset outstanding, which a fund 
is not required to assess in determining whether an asset is a 15% 
standard asset.\358\
---------------------------------------------------------------------------

    \357\ Proposed rule 22e-4(a)(6).
    \358\ See supra section II.D.2.
---------------------------------------------------------------------------

    To provide an example of the distinctions between the proposed 15% 
standard and the proposed three-day liquid asset minimum, consider a 
fund that holds a very large block of a particular security ``X''. 
Because the fund holds a large block of the issue, it may determine, 
based on the liquidity classification factors required to be considered 
under the proposed rule, that it could convert a certain percentage 
(e.g., 70%) of its position to cash in fewer than three business days, 
but that it would take more than three business days to convert the 
remainder of its position to cash. Under the proposed rule, 70% of the 
fund's position in security ``X'' would be considered three-day liquid 
assets, and the other 30% would be considered to be less liquid assets. 
The fund would take these classifications into account when considering 
whether the further acquisition of less liquid assets would cause the 
fund to not be in compliance with its three-day liquid asset minimum. 
However, even though 30% of the fund's position in security ``X'' would 
be considered to be less liquid assets, the fund's position in security 
``X'' would not also be considered to be 15% standard assets. This is 
because, as discussed above, a fund is not required to assess position 
size in determining whether a particular portfolio asset is a 15% 
standard asset. Thus, if a fund can sell a standard size lot of its 
holdings in that position within seven days at approximately the value 
ascribed to it by the fund, the entire position would be deemed not to 
be a 15% standard asset.
    Consider as well a scenario in which a fund holds shares of 
security ``Y,'' and the fund determines, based on the liquidity 
classification factors required to be considered under the proposed 
rule, that it can sell security ``Y'' within seven days at 
approximately the value ascribed to it by the fund, but whose sale(s) 
will not also settle until the tenth day. Security ``Y'' would fall 
into the 8-15 day liquidity classification category and would be 
considered a less liquid asset because it would not be able to be 
converted to cash within three business days. However, because the fund 
would be able to sell its shares of security ``Y'' within seven days at 
approximately the value ascribed to it by the fund, security ``Y'' 
would not be considered to be a 15% standard asset. This is because a 
fund is required to consider whether it would be able to sell an asset 
within seven days, but not also whether those asset sales would settle 
within this period, in determining whether a particular portfolio asset 
is a 15% standard asset.\359\
---------------------------------------------------------------------------

    \359\ See proposed rule 22e-4(a)(4).
---------------------------------------------------------------------------

    Conversely, consider a fund that holds shares of security ``Z,'' a 
privately placed security that the fund determines cannot be sold 
within seven days at approximately the value ascribed to it by the 
fund. Under the proposed rule, security ``Z'' would be considered a 
less liquid asset, because it would not be able to be converted to cash 
(that is, sold, with the sale settled) within three business days. 
Security ``Z'' also would be considered to be a 15% standard asset, 
because it would not be able to be sold within seven days at 
approximately the value ascribed to it by the fund. The fund would take 
these classifications into account when it is considering whether the 
further acquisition of less liquid assets or 15% standard assets would 
cause the fund to not be in compliance with its three-day liquid asset 
minimum or the 15% standard.
    The scenarios depicted in the preceding paragraphs demonstrate that 
the same asset could be deemed to be a less liquid asset but not also 
deemed to be a 15% standard asset, and also illustrate the different 
roles that the proposed three-day liquid asset minimum and the 15% 
standard play in liquidity risk management. The proposed 15% standard 
would provide an across-the-board limitation on the acquisition of 
certain relatively illiquid holdings. The proposed definition of less 
liquid asset, on the other hand, is meant to identify those assets that 
would generally not be able to be converted to cash to meet redemption 
requests, and the proposed three-day liquid asset minimum is meant to 
tailor a fund's acquisition of these holdings to correspond with its 
particular liquidity needs. Thus, the proposed 15% standard acts as a 
cap on the amount of relatively illiquid assets that a fund may hold, 
while the proposed three-day liquid asset minimum acts as a floor on 
the amount of three-day liquid assets that a fund must hold.
b. Request for Comment
    We request comment on the proposed 15% standard.
     Do commenters agree that the Commission should include the 
15% standard in proposed rule 22e-4? Would the 15% standard enhance 
funds' ability to manage liquidity risk?
     Do commenters agree that the three-day liquid asset 
minimum requirement and the 15% standard serve distinct roles in 
managing liquidity risk? Is there a single alternative standard that 
would be an effective substitute for the three-day liquid asset minimum 
requirement and the 15% standard?
     Should the Commission instead adopt a different 
restriction on funds' investments in assets whose liquidity is 
extremely limited, and if so, what should this restriction be? For 
example, should we adopt a different percentage limit on funds' 
investments in 15% standard assets? Should we instead limit funds' 
investments in some other subset of assets with extremely limited 
liquidity, such as assets that can only be converted to cash in over 7 
days, over

[[Page 62319]]

15 days, over 30 days, or over 90 days at a price that does not 
materially affect the value of that asset immediately prior to sale? If 
we did the latter, what should the limit be? Should it be a set 
percentage of fund assets established by the Commission (e.g., 5%, 10%, 
20%, 30%), or should a fund be required to set its own limit, using the 
factors it would be required to consider in determining its three-day 
liquid asset minimum (or some other set of factors)? Should this limit 
apply to all funds, or only a subset of funds (e.g., only funds with 
certain investment strategies, or whose three-day liquid asset minimums 
are below a certain threshold)?
     As noted above, the 15% standard would be tested each time 
the fund acquires new assets, and a fund would be permitted to hold 
more than 15% of its net assets in 15% standard assets if it does so 
due to redemptions or market events. Once a fund rises above the 15% 
limit, any acquisition of new assets must be of non-15% standard assets 
until the fund is at or below the 15% standard. Would a requirement 
mandating that a fund divest excess 15% standard assets if its holdings 
of these assets rise above 15% of its net assets better facilitate 
funds' liquidity risk management and promote investor protection? Or 
should we limit the time period (e.g., to 30 days, 60 days, or 90 days) 
in which a fund holds more than 15% of its net assets in 15% standard 
assets so that a fund cannot persistently be above the 15% standard? 
Alternatively, we note that certain Canadian mutual funds are subject 
to illiquid asset restrictions that provide that a fund: (i) Must not 
acquire illiquid assets if more than 10% of the fund's net assets would 
be made up of illiquid assets; (ii) must not have invested more than 
15% of the fund's net assets in illiquid assets for a period of 90 days 
or more; and (iii) must, as quickly as is commercially reasonable, take 
all necessary steps to reduce the percentage of its net assets made up 
of illiquid assets to 15% or less if more than 15% of the fund's net 
assets is made up of illiquid assets.\360\ Should we adopt similar 
requirements? Would such requirements better promote investor 
protection?
---------------------------------------------------------------------------

    \360\ See Canadian Securities Administrators, National 
Instrument 81-102--Investment Funds at section 2.4.
---------------------------------------------------------------------------

     Should the Commission modify the proposed definition of 
15% standard assets to require that funds take into account the time 
period associated with receipt of proceeds of sale or disposition of an 
asset?
     Do commenters agree with the proposal to withdraw current 
guidance associated with the 15% guideline? Do commenters believe 
additional guidance is needed in connection with the proposed 
definition of 15% standard asset? If so, what guidance should the 
Commission provide?
     What assets do funds currently consider to be limited by 
the 15% guideline? Do commenters believe that assets that would meet 
the proposed definition of 15% standard asset are consistent with 
assets that funds currently classify as illiquid under the 15% 
guideline? If not, what types of assets would be classified 
differently?
     What are funds' current practices for determining whether 
a portfolio asset is limited by the 15% guideline, and what factors do 
funds currently use to make this determination? Who at the fund and/or 
the adviser is tasked with determining whether a portfolio asset is 
limited by the 15% guideline, and how often is each asset reviewed? Do 
funds expect to engage in the same practices for determining whether an 
asset is a 15% standard asset?
     Would it be beneficial to funds for the Commission to 
include as part of the rule certain types of securities whose 
acquisition would be limited by the 15% standard, or other factors for 
funds to consider in determining whether an asset is a 15% standard 
asset? Do commenters believe that confusion could arise between the 
definition of a 15% standard asset and the definition of a less liquid 
asset under the proposed rule, and if so, how could this confusion be 
reduced?
     Rule 2a-7 currently defines the term ``illiquid security'' 
to mean ``a security that cannot be sold or disposed of in the ordinary 
course of business within seven calendar days at approximately the 
value ascribed to it by the fund.'' \361\ Should we amend rule 2a-7 to 
clarify that ``illiquid security'' has the same definition as ``15% 
standard asset?''
---------------------------------------------------------------------------

    \361\ Rule 2a-7(a)(20).
---------------------------------------------------------------------------

5. Policies and Procedures Regarding Redemptions in Kind
a. Use of Redemptions in Kind
    Along with ETFs, which commonly redeem shares in kind, many mutual 
funds reserve the right to redeem their shares in kind instead of in 
cash.\362\ Mutual funds that reserve the right to redeem in kind may 
use in-kind redemptions to manage liquidity risk under exceptional 
circumstances.\363\ A fund, for example, could choose to redeem in kind 
when faced with significant redemptions, because this would result in 
the redeeming shareholder (and not the fund and its remaining 
shareholders) bearing any liquidity costs associated with dispositions 
of portfolio assets. We understand that many funds also use in-kind 
redemptions if a large shareholder is redeeming to transition to a 
separately managed account with a similar investment strategy.
---------------------------------------------------------------------------

    \362\ See, e.g., Adoption of (1) Rule 18f-1 Under the Investment 
Company Act of 1940 to Permit Registered Open-End Investment 
Companies Which Have the Right to Redeem In Kind to Elect to Make 
Only Cash Redemptions and (2) Form N-18F-1, Investment Company Act 
Release No. 6561 (June 14, 1971) [36 FR 11919 (June 23, 1971)] 
(``Rule 18f-1 and Form N-18F-1 Adopting Release'') (stating that the 
definition of ``redeemable security'' in section 2(a)(32) of the 
Investment Company Act ``has traditionally been interpreted as 
giving the issuer the option of redeeming its securities in cash or 
in kind.'').
    \363\ See Karen Damato, `Redemptions in Kind' Become Effective 
for Tax Management, Wall Street Journal (Mar. 10, 1999), available 
at http://www.wsj.com/articles/SB921028092685519084 (`` `Redemptions 
in kind' are typically viewed by fund managers as an emergency 
measure, a step they could take to meet massive redemptions in the 
midst of a market meltdown.'').
     Besides using in-kind redemptions as an emergency measure to 
manage liquidity risk, funds may also use in-kind redemptions for 
other reasons. For example, funds may wish to redeem certain 
investors (particularly, large, institutional investors) in kind, 
because in-kind redemptions could have a lower tax impact on the 
fund than selling portfolio securities in order to pay redemptions 
in cash. This, in turn, could benefit the remaining shareholders in 
the fund. See, e.g., id. (``If a fund has to sell appreciated stocks 
to pay a redeeming shareholder, it realizes capital gains. Unless 
the fund has offsetting capital losses, those gains are distributed 
as taxable income to all remaining fund holders. By contrast, when 
funds distribute stocks from their portfolios, there is no tax event 
for the continuing holders.'').
---------------------------------------------------------------------------

    There are often logistical issues associated with paying in-kind 
redemptions, and this limits the availability of in-kind redemptions 
under many circumstances.\364\ For instance, in-kind redemptions could 
entail complex operational issues that would be imposed on both the 
fund and on investors receiving portfolio securities.\365\ Moreover, 
some shareholders are generally unable or unwilling to receive in-kind 
redemptions.\366\ Some funds also have

[[Page 62320]]

waived the right to redeem in kind with respect to certain relatively 
small redemption requests under rule 18f-1 under the Investment Company 
Act, which allows a fund to abide by different in-kind redemption 
policies for different shareholders without being deemed to create a 
class of senior securities prohibited by section 18(f)(1) of the 
Act.\367\
---------------------------------------------------------------------------

    \364\ See, e.g., Invesco FSOC Notice Comment Letter, supra note 
35, at 11 (noting that while ``Invesco has on occasion exercised 
rights to redeem in kind, in practice such rights are exercised 
infrequently'').
    \365\ Money Market Fund Reform; Amendments to Form PF, 
Investment Company Act Release No. 30551 (June 5, 2013) [78 FR 36834 
(June 19, 2013)] (``2013 Money Market Fund Reform Proposing 
Release''), at n.473.
    \366\ See, e.g., Fortune, supra note 270, at 47 (``A fund 
redeeming in kind does so at the risk of its reputation and future 
business . . .''). In the context of money market funds, we 
requested comment on whether we should require redemptions in kind 
for redemptions in excess of a certain size threshold, to ease 
liquidity strains on the fund and reduce the risks and unfairness 
posed by significant sudden redemptions. See Money Market Fund 
Reform; Proposed Rule, Investment Company Act Release No. 28807 
(June 30, 2009) [74 FR 32688 (July 8, 2009)] (``2009 Money Market 
Fund Reform Proposing Release''), at section III.B. Commenters 
generally opposed this type of reform for a variety of reasons, all 
of which likely would apply equally to funds other than money market 
funds. For example, most commenters stated that in-kind redemptions 
would be technically unworkable due to complex valuation and 
operational issues that would be imposed on both the fund and on 
investors receiving the in-kind distribution. See 2013 Money Market 
Fund Reform Proposing Release, supra note 365, at section III.B.9.c.
    \367\ Under rule 18f-1, any registered open-end fund that has 
the right to redeem in kind could file with the Commission, on Form 
N-18F-1, a notification of election committing itself to pay in cash 
all requests for redemptions by any shareholder of record, limited 
in amount during any ninety-day period to the lesser of $250,000 or 
1 percent of the net asset value of the fund at the beginning of the 
period. See Rule 18f-1 and Form N-18F-1 Adopting Release, supra note 
362.
---------------------------------------------------------------------------

    We believe that, as part of a fund's management of its liquidity 
risk, a fund that engages in or reserves the right to engage in in-kind 
redemptions should adopt and implement written policies and procedures 
regarding in-kind redemptions, and we have included this requirement in 
proposed rule 22e-4.\368\ We expect these policies and procedures would 
address the process for redeeming in kind, as well as the circumstances 
under which the fund would consider redeeming in kind. Through staff 
outreach to funds, we understand that while many funds disclose that 
they have reserved the right to redeem in kind, most of these funds 
consider redemptions in kind to be a last resort or emergency measure, 
and many do not have policies or procedures in place that would govern 
in-kind redemptions. Because the management and personnel capacity of 
funds facing heavy redemptions and other liquidity stresses would 
likely be strained as funds attempt to manage these pressures, policies 
and procedures that dictate the fund's in-kind redemption procedures 
(which, as discussed above, could be quite complicated and could apply 
differently to different types of shareholders) would increase the 
likelihood that in-kind redemptions would be a feasible risk management 
tool.\369\
---------------------------------------------------------------------------

    \368\ See proposed rule 22e-4(b)(2)(iv)(E).
    \369\ See infra notes 552-554 and accompanying text.
---------------------------------------------------------------------------

b. Requests for Comment
     Our understanding is that redemptions in kind are not used 
extensively outside ETFs. Is this assumption correct? Do funds that 
engage in redemptions in kind have policies and procedures regarding 
those redemptions? Are there steps that funds can take to make 
redemptions in kind easier to implement?
     Under rule 18f-1, any registered open-end fund that has 
the right to redeem in kind could file with the Commission a 
notification of election committing itself to pay in cash all requests 
for redemptions by any shareholder of record, limited in amount during 
any ninety-day period to the lesser of $250,000 or 1 percent of the net 
asset value of the fund at the beginning of the period.\370\ Would re-
visiting and eliminating funds' ability to limit in-kind redemptions 
clarify that the Investment Company Act permits funds to redeem shares 
in kind as well as in cash?
---------------------------------------------------------------------------

    \370\ See supra note 362 and accompanying text.
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6. Discussion of Additional Liquidity Risk Management Tools
    While proposed rule 22e-4 specifies that each fund would be 
required to adopt a liquidity risk management program incorporating 
certain specified elements, a fund's program could incorporate 
liquidity risk management tools beyond the requirements of the proposed 
rule. We understand that many funds currently engage in certain 
practices that would not be required by proposed rule 22e-4, but which 
could enhance funds' ability--in conjunction with the policies and 
procedures required to be adopted under the proposed rule--to manage 
liquidity risk. Specifically, we understand based on staff outreach 
that it is relatively common for funds to establish lines of credit to 
manage liquidity risk, and that funds may use borrowed money or draw on 
other funding sources to meet shareholder redemptions, typically during 
periods of significantly limited market liquidity. We also understand 
that it is relatively common for certain funds (particularly, funds 
with strategies involving investment in relatively less liquid 
portfolio securities) to invest in ETFs to enhance the liquidity of the 
fund's portfolio. Below we provide guidance funds may wish to consider 
in using these tools and their role in a fund's liquidity risk 
management program. We note that the liquidity risk management tools 
discussed below do not comprise an exhaustive list of liquidity risk 
management controls or procedures that a fund could consider 
implementing, nor are we currently proposing to mandate that a fund use 
these tools as part of its liquidity risk management program.
    In addition, there are currently several tools that a fund could 
use, generally under emergency circumstances, to pay redeeming 
shareholders during periods in which the fund encounters limited 
liquidity. As discussed above, many funds reserve the right to redeem 
their shares in kind instead of in cash, although we understand that 
many funds that do so consider in-kind redemptions to be a last resort 
or emergency measure. As a separate emergency measure, money market 
funds (but not other funds) are currently permitted, under certain 
circumstances, to permanently suspend shareholder redemptions and 
liquidate the fund. Below we request comment on whether this tool would 
be useful and appropriate for the Commission to make available to funds 
besides money market funds.
a. Borrowing Arrangements and Other Funding Sources
    As discussed above, entering into borrowing arrangements and 
agreements with other potential funding sources could strengthen a 
fund's management of liquidity risk, as they could be used to pay 
redeeming shareholders without the need to sell portfolio securities at 
significantly discounted prices. For example, a fund could establish a 
committed or uncommitted line of credit with a commercial bank, engage 
in interfund lending within a family of funds, or use repurchase 
transactions to generate liquidity.\371\ Proposed rule

[[Page 62321]]

22e-4(b)(2)(iii)(D) would require a fund to consider its borrowing 
arrangements and other funding sources in assessing its liquidity risk, 
and above we provide guidance on particular aspects of these activities 
that could affect a fund's liquidity risk.\372\ We anticipate that a 
fund could consider this guidance in assessing whether entering into 
borrowing or other funding arrangements would assist the fund in 
managing its liquidity risk, as well as determining the terms under 
which such arrangements would best help the fund to manage its 
liquidity risk. We also anticipate that this guidance could be used in 
reviewing existing borrowing arrangements and the use of other funding 
sources to assess whether these activities would continue to help the 
fund effectively manage its liquidity risk. In evaluating borrowing 
arrangements or other funding sources for purposes of managing 
liquidity risk, a fund should take into account restrictions on 
affiliated transactions and leverage under the Investment Company Act 
and rules under the Act.\373\ A fund also may wish to consider any 
negative impact on the fund resulting from borrowing funds for 
liquidity risk management purposes, as opposed to managing liquidity 
through the fund's portfolio construction.\374\
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    \371\ See, e.g., SIFMA IAA FSOC Notice Comment Letter, supra 
note 16, at nn.73-75 (stating that 79% of SIFMA AMG survey 
respondents report having access to a line of credit to manage 
outflows from their mutual funds, that 64% have drawn on that line 
of credit at some point within the last five years, and that 8% of 
SIMFA AMG members surveyed state that they engage in interfund 
lending to address liquidity issues); BlackRock FSOC Notice Comment 
Letter, supra note 50, at 6 (statement that among several 
overarching principles that provide the foundation for a prudent 
market liquidity risk management framework for collective investment 
vehicles is identifying backup sources of liquidity such as 
temporary borrowings). But see Fidelity FSOC Notice Comment Letter, 
supra note 20, at 20 (``During the time period since its inception 
in 2001, the committed bank line of credit has never been used.''); 
Comment Letter of PIMCO on the FSOC Notice (Mar. 25, 2015), at 
Appendix-2 (``In practice, it is rare for funds to . . . draw on 
these lines of credit.''); Invesco FSOC Notice Comment Letter, supra 
note 35, at 12 (stating that it has a line of credit for its 
floating rate fund and senior loan portfolio ETF, but that it has 
been used on a very infrequent basis).
    \372\ See supra notes 315-318 and accompanying and following 
text.
    \373\ See supra notes 320-322 and accompany and following text.
    \374\ See, e.g., Nuveen FSOC Notice Comment Letter, supra note 
45, at 9-10 (``Funds without credit lines face the possibility of 
not being able to sell sufficient assets to raise cash to fund 
redemption requests, or having to sell assets at significantly 
discounted values. To the extent that a fund draws on a credit line 
to meet net redemptions (and thus temporarily leverages itself), it 
increases its market risk at a time when markets are stressed. While 
this can be potentially beneficial to long-term performance if the 
asset class recovers, it increases the risk of loss to remaining 
shareholders if markets continue to weaken.'').
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b. Use of ETF Portfolio Holdings as a Liquidity Risk Management Tool
    We understand that certain funds, particularly funds with 
investment strategies involving relatively less liquid portfolio 
securities (such as micro-cap equity funds, high-yield bond funds and 
bank loan funds), may invest a portion of their assets in ETFs with 
strategies similar to the fund's investment strategy because they view 
ETF shares as having characteristics that enhance the liquidity of the 
fund's portfolio.\375\ Specifically, funds that invest in ETF shares 
have stated to Commission staff that they find that these shares are 
more readily tradable, are less expensive to trade, and have shorter 
settlement periods than other types of portfolio investments.\376\ And 
unlike investments in cash, cash equivalents, and other highly liquid 
instruments, funds have suggested that investing in ETFs with the same 
(or a similar) strategy as the fund's investment strategy permits the 
fund to remain fully invested in assets that reflect the fund's 
investment concentrations, risks, and performance potential.
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    \375\ See, e.g., Katy Burne, Institutions Pour Cash Into Bond 
ETFs, Wall Street Journal (Mar. 1, 2015), available at http://www.wsj.com/articles/institutions-pour-cash-into-bond-etfs-1425250969. Funds' investments in ETFs are subject to the Investment 
Company Act's limitations on investments in shares issued by other 
registered investment companies. See section 12(d)(1)(A) of the 
Investment Company Act.
    \376\ The Commission's 2015 Request for Comment on Exchange-
Traded Products requested comment on whether investors' expectations 
of the nature of the liquidity of an exchange-traded product 
(including an ETF) holding relatively less liquid portfolio 
securities differ from their expectations of the liquidity of the 
underlying portfolio securities. See 2015 ETP Request for Comment, 
supra note 11, at Question #49. See e.g., Comment Letter of Vanguard 
on the 2015 ETP Request for Comment (Aug. 17, 2015) (stating that 
the disclosures made by ETFs in prospectuses, shareholder reports, 
and Web sites ``ensures that investors and market participants have 
the necessary information to make informed investment decisions''); 
Comment Letter of ETF Radar on the 2015 ETP Request for Comment 
(Aug. 8, 2015) (stating that investor expectations of liquidity 
depend on the skill of the investor); Comment Letter of Danny Reich 
on the 2015 ETP Request for Comment (July 2, 2015) (stating that 
there is a ``false assumption'' that underlying assets have the same 
liquidity as the ETP, particularly with respect to bond ETPs).
---------------------------------------------------------------------------

    While we appreciate that ETFs' exchange-traded nature could make 
these instruments useful to funds in managing purchases and redemptions 
(for example, ETFs' settlement times could more closely reflect the 
time in which a fund has disclosed that it will typically redeem fund 
shares), funds should consider the extent to which relying 
substantially on ETFs to manage liquidity risk is appropriate. As 
discussed above, the liquidity of an ETF, particularly in times of 
declining market liquidity, may be limited by the liquidity of the 
market for the ETF's underlying securities.\377\ Thus, shares of an ETF 
whose underlying securities are relatively less liquid (taking into 
account the factors discussed in proposed rule 22e-4(b)(2)(ii)) may not 
be able to be counted on as an effective liquidity risk management tool 
during times of liquidity stress. In the case of a significant decline 
in market liquidity, if authorized participants were unwilling or 
unable to trade ETF shares in the primary market, and the majority of 
trading took place among investors in the secondary market, the ETF's 
shares could trade continuously at a premium or a discount to the value 
of the ETF's underlying portfolio securities. This could frustrate the 
expectations of secondary market investors who count on the creation 
and redemption process to align the prices of ETF shares and their 
underlying portfolio securities.\378\ We therefore encourage funds to 
assess the liquidity characteristics of an ETF's underlying securities, 
as well as the characteristics of the ETF shares themselves, in 
classifying an ETF's liquidity under proposed rule 22e-4(b)(2)(i). We 
also encourage funds to consider the portion of a fund's three-day 
liquid assets that is invested in ETF shares, taking into account the 
foregoing concerns.
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    \377\ See supra note 24 and accompanying text; see also Tyler 
Durden, What Would Happen if ETF Holders Sold All at Once?, ETF 
Daily News (Mar. 26, 2015), available at http://etfdailynews.com/2015/03/26/what-would-happen-if-etf-holders-sold-all-at-once/2/ 
(``Thus we can't get away from depending on the liquidity of the 
underlying high yield bonds. The ETF can't be more liquid than the 
underlying, and we know the underlying can become highly 
illiquid.'').
    \378\ See supra note 29 and accompanying text.
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c. Suspension of Redemptions
    Section 22(e) of the Investment Company Act permits a fund to 
suspend redemptions in specified unusual circumstances, including for 
any period during which an emergency exists (only as determined by 
Commission rules and regulations) as a result of which it is not 
reasonably practicable for the fund to liquidate its portfolio 
securities, or fairly determine the value of its net assets.\379\ Rule 
22e-3 exempts money market funds from section 22(e), permitting a money 
market fund to suspend redemptions and postpone payment of redemption 
proceeds in an orderly liquidation of the fund if, subject to other 
requirements, the fund's board makes certain findings.\380\ The 
Commission has previously requested comment on whether the relief 
provided by rule 22e-3 should be available to types of open-end funds 
besides money market funds.\381\ The Commission received only limited 
comments addressing the topic, with a few commenters generally 
supportive of extending the rule to all open-end funds,\382\ and one 
commenter arguing that open-end funds should be required

[[Page 62322]]

to seek individual exemptive orders from the Commission to obtain the 
relief provided by rule 22e-3.\383\ We request specific comment below 
on whether proposing a rule similar to rule 22e-3, which would permit 
open-end funds other than money market funds to suspend redemptions and 
postpone payment of redemption proceeds in an orderly liquidation of 
the fund under certain circumstances, would protect the interests of 
its investors if the fund were to liquidate.
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    \379\ See supra note 82.
    \380\ See supra note 155 and accompanying text.
    \381\ See 2009 Money Market Fund Reform Proposing Release, supra 
note 366.
    \382\ See Comment Letter of the Committee on Federal Regulation 
of Securities, Section of Business Law of the American Bar 
Association on Money Market Fund Reform (Sept. 9, 2009); Comment 
Letter of Bankers Trust Company, N.A. on Money Market Fund Reform 
(Aug. 28, 2009).
    \383\ See Comment Letter of Federated Investors, Inc. on Money 
Market Fund Reform (Sept. 8, 2009).
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    We also request comment below on whether the Commission should 
consider proposing rules that would permit funds to suspend redemptions 
under other circumstances not involving the liquidation of the 
fund.\384\ As discussed above, private funds are often able to impose 
gates and suspend redemptions to manage liquidity stress,\385\ and rule 
2a-7 likewise permits money market funds to temporarily suspend 
redemptions under certain circumstances.\386\ Registered funds that are 
not money market funds, however, are significantly more limited in 
their current ability to suspend redemptions under the Investment 
Company Act.\387\ Specifically, open-end funds may suspend redemptions 
for any period during which the NYSE is closed (other than customary 
weekend and holiday closings) and in three additional situations only 
if the Commission has made certain determinations.\388\ These limited 
suspension rights are aimed at preventing funds and their advisers from 
interfering with shareholders' redemption rights for improper 
purposes,\389\ and recognize the importance that shareholders place on 
daily redeemability of fund shares.
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    \384\ See, e.g., BlackRock FSOC Notice Comment Letter, supra 
note 50, at 40 (stating that the Commission should ``extend the 
authority to suspend redemptions under extraordinary redemptions, 
including an unmanageable spike in redemptions, to fund boards.'').
    \385\ See supra note 71 and accompanying text.
    \386\ See supra note 154 and accompanying text.
    \387\ See supra text accompanying note 379.
    \388\ See supra note 82.
    \389\ See 2014 Money Market Fund Reform Adopting Release, supra 
note 85, at section III.A.1.
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d. Request for Comment
    We request comment on the above discussion and guidance regarding 
certain tools that a fund could use to manage liquidity risk beyond the 
requirements specified in proposed rule 22e-4.
     Are there any specific liquidity risk management policies 
or procedures, beyond those that would be required by proposed rule 
22e-4(b)(2)(iv)(A)-(E), that funds should be required to implement? 
What procedures, separate from any that resemble those required by 
proposed rule 22e-4(b)(2)(iv)(A)-(E), do funds currently use to manage 
liquidity risk?
     Do commenters generally agree with our guidance discussed 
above on the use of borrowing arrangements and other funding sources, 
the use of ETFs to manage portfolio liquidity, and the use of 
redemptions in kind? Is any additional guidance needed on the liquidity 
risk management tools described in this section? Are there any other 
issues associated with specific liquidity risk management tools or 
techniques about which we should provide guidance? To the extent that 
funds use liquidity risk management tools outside those mentioned in 
this section, what guidance, if any, is needed regarding those tools?
     Regarding borrowing arrangements and other funding 
sources, would additional guidance be useful regarding specific types 
of borrowing arrangements?
     When using ETFs to manage liquidity, do funds consider the 
liquidity of the ETFs' portfolio securities? Why or why not?
    We also request specific comment on several current rules that 
touch on liquidity risk management issues and the suspension of 
shareholder redemptions.
     Would proposing a rule similar to rule 22e-3 for funds 
other than money market funds protect the interests of fund investors 
if the fund were to liquidate? If so, under what circumstances should 
funds be permitted to suspend redemptions and postpone payment of 
redemption proceeds, and should a fund's board be required to make any 
finding in connection with a fund's suspension of redemptions?
     Should we consider proposing rules that would permit funds 
to suspend redemptions under other circumstances, such as rules that 
would specify certain emergency circumstances that would permit funds 
to suspend redemptions under section 22(e)? How could we define such 
emergency circumstances? For example, should we define emergency 
circumstances to include situations where redemptions exceeded a high 
level over a certain period of time or where asset price volatility in 
the markets exceeded a certain level making it difficult for the fund 
to accurately price?
7. Cross-Trades
    Funds, subject to the requirements of the Investment Company Act, 
are permitted to engage in ``cross-trading,'' that is, securities 
transactions with certain of their affiliated persons, including other 
funds within the fund family. Some funds may seek to use cross-trading 
as an additional liquidity risk management tool. Rule 17a-7, however, 
includes conditions that limit the portfolio assets that may be cross-
traded, and as discussed below, cross-trades that involve certain less 
liquid assets may not be eligible to rely on the rule. We propose below 
guidance relating to the use of cross-trading in response to investor 
redemptions.
    Section 17 of the Investment Company Act restricts transactions 
between an ``affiliated person of a registered investment company or an 
affiliated person of such affiliated person'' and that investment 
company--for example, transactions between a fund and another fund 
managed by the same adviser.\390\ A fund must therefore obtain 
exemptive relief from the Commission before entering into purchase or 
sale transactions with an affiliated fund, or execute such transactions 
subject to the provisions of rule 17a-7 under the Investment Company 
Act (permitting purchase and sale transactions among affiliated funds 
and other accounts, under certain circumstances).\391\
---------------------------------------------------------------------------

    \390\ See supra note 320 and accompanying text.
    \391\ Rule 17a-7 under the Investment Company Act provides an 
exemption from section 17(a)'s prohibitions so long as certain 
conditions are met. In summary, rule 17a-7 requires, among other 
things, that: (i) The transaction at issue is a purchase or sale, 
for no consideration other than cash, for a security for which 
market quotations are readily available; (ii) the transaction be 
effected at the independent current market price for the security at 
issue; (iii) the transaction must be consistent with the policy of 
each fund participating in the transaction as set forth in its 
registration statement and reports filed under the Investment 
Company Act; (iv) no brokerage commission, fee (except for customary 
transfer fees) or other remuneration be paid in connection with the 
transaction; and (v) the fund's board, including a majority of the 
independent directors, adopts procedures that are reasonably 
designed to provide that the rule 17a-7 transactions comply with the 
conditions of the rule, approve changes to the procedures as the 
board deems necessary, and determines no less frequently than 
quarterly that all rule 17a-7 transactions made during the preceding 
quarter were effected in compliance with the approved procedures.
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    Cross-trading can benefit funds and their shareholders, for example 
by allowing funds that are mutually interested in a securities 
transaction that is consistent with the investment strategies of each 
fund to conduct such a transaction without incurring transaction costs 
and without generating a market impact.\392\ However, cross-

[[Page 62323]]

trades also have the potential for abuse. As the Commission has said, 
``[f]or example, an unscrupulous investment adviser might ``dump'' 
undesirable securities on a registered investment company or transfer 
desirable securities from a registered investment company to another 
more favored advisory client in the complex. Moreover the transaction 
could be effected at a price which is disadvantageous to the registered 
investment company.'' \393\ Accordingly, rule 17a-7 requires that any 
cross-trades satisfy certain conditions designed to prevent such 
abuses, including the requirement that market quotations be readily 
available for each traded security and that if the security is only 
traded over the counter, the cross-trade be conducted at the average of 
the highest current independent bid and lowest current independent 
offer determined on the basis of reasonable inquiry.\394\ In requiring 
market quotations for cross-traded securities, the Commission has 
stated that ``[r]eliance upon such market quotations provides an 
independent basis for determining that the terms of the transaction are 
fair and reasonable to each participating investment company and do not 
involve overreaching.'' \395\
---------------------------------------------------------------------------

    \392\ As noted above, rule 17a-7 requires that each cross-trade 
be consistent with the policy of each fund participating in the 
transaction and that no brokerage commissions, fees or other 
remuneration be paid in connection with the transaction. Because 
cross-trades are conducted privately between funds, they are not 
transparent to market trading reporting systems and thus are 
unlikely to generate a market impact.
    \393\ Exemption of Certain Purchase or Sale Transactions Between 
a Registered Investment Company and Certain Affiliated Persons 
Thereof, Investment Company Act Release No. 11136 (Apr. 21, 1980) 
[45 FR 29067 (May 1, 1980)].
    \394\ See rule 17a-7(b).
    \395\ Exemption of Certain Purchase or Sale Transactions Between 
a Registered Investment Company and Certain Affiliated Persons 
Thereof, Investment Company Act Release No. 11676 (Mar. 10, 1981) 
[45 FR 17011 (Mar. 17, 1981)]. The Commission historically declined 
to expand rule 17a-7 to cross-trades for which market quotations 
were not readily available and where independent current market 
prices were not available because these conditions increase the 
potential for abuse through cross-trades. See id.
---------------------------------------------------------------------------

    Certain less liquid assets may be ineligible to trade under rule 
17a-7 due to this requirement. Indeed, the less liquid an asset is, the 
more likely it may not satisfy rule 17a-7.\396\ Accordingly, for assets 
that do not trade in active secondary markets, a fund should consider 
whether ``market quotations are readily available'' and a ``current 
market price'' is available and thus whether the asset may be cross-
traded in accordance with rule 17a-7.
---------------------------------------------------------------------------

    \396\ See supra section III.B.2 (discussing proposed factors for 
classifying the liquidity of a portfolio position).
---------------------------------------------------------------------------

    In addition, when considering whether cross-trading would be an 
effective and appropriate liquidity risk management tool, a fund's 
adviser should consider its duty to seek best execution for each fund 
potentially involved in the cross-trading transaction, as well as its 
duty of loyalty to each fund.\397\ An adviser should not cause funds to 
enter into a cross-trade unless doing so would be in the best interests 
of each fund participating in the transaction. In assessing these 
factors, a fund should consider any negative impact on the fund 
resulting from the purchase of assets by one fund from an affiliated 
fund (that is, whether any risk-shifting between funds that results 
from trading assets is appropriate, considering the funds' strategies, 
risk profile, and liquidity needs before the transaction takes place) 
given the policy of each fund as recited in its registration statement 
and reports under the Act. We request comment on our guidance relating 
to cross-trading.
---------------------------------------------------------------------------

    \397\ See, e.g., In the Matter of Western Asset Management Co., 
Investment Company Act Release No. 30893 (Jan. 27, 2014) (settled 
action) (the adviser to funds engaging in cross-trading ``has a 
fiduciary duty of loyalty to its clients and also must seek to 
obtain best execution for both its buying and selling clients'').
---------------------------------------------------------------------------

     Does our guidance (combined with existing guidance) 
relating to rule 17a-7 provide sufficient protections for cross-trades 
involving assets that are only traded over the counter and, depending 
on the facts and circumstances, may be less liquid? If not, what 
additional guidance or protections might be warranted to protect funds 
and investors from unfairness or abuse in cross-trades?

D. Board Approval and Designation of Program Administrative 
Responsibilities

1. Initial Approval of Liquidity Risk Management Program
    Proposed rule 22e-4(b)(3)(i) would require each fund to obtain 
initial approval of its written liquidity risk management program from 
the fund's board of directors, including a majority of independent 
directors.\398\ The proposed rule specifies that this approval is 
required to include the fund's three-day liquid asset minimum. 
Directors, and particularly independent directors, play a critical role 
in overseeing fund operations, although they may delegate day-to-day 
management to a fund's adviser.\399\ Given the board's historical 
oversight role, we believe it is appropriate to require a fund's board 
to approve the fund's liquidity risk management program. This 
requirement is designed to facilitate independent scrutiny by the board 
of directors of the liquidity risk management program--an area where 
there may be a conflict of interest between the investment adviser and 
the fund. For example, an adviser might have an incentive to set a low 
three-day liquid asset minimum in order to permit the fund to invest in 
additional less liquid assets (because such assets may result in higher 
total returns for a fund), even though a low minimum may not reflect an 
appropriate alignment between the fund's portfolio liquidity profile 
and the fund's liquidity needs.
---------------------------------------------------------------------------

    \398\ In this release, we refer to directors who are not 
``interested persons'' of the fund as ``independent directors.'' 
Section 2(a)(19) of the Investment Company Act identifies persons 
who are ``interested persons'' of a fund.
    \399\ See Investment Trusts and Investment Companies: Hearings 
on H.R. 10065 Before a Subcomm. of the House Comm. on Interstate and 
Foreign Commerce, 76th Cong., 3d Sess. 112 (1940) at 109 (describing 
the board as an ``independent check'' on management); Burks v. 
Lasker, 441 U.S. 471 (1979) (citing Tannenbaum v. Zeller, 552 F.2d 
402, 406 (2d. Cir. 1979)) (describing independent directors as 
``independent watchdogs''). See also Comment Letter of the 
Independent Directors Council on the FSOC Notice (Mar. 25, 2015), at 
5 (``A fund board oversees the adviser's management of the 
portfolio's liquidity as part of its oversight of the fund's 
compliance program and portfolio management more generally.'').
---------------------------------------------------------------------------

    Directors may satisfy their obligations with respect to this 
initial approval by reviewing summaries of the liquidity risk 
management program prepared by the fund's investment adviser or 
officers administering the program, legal counsel, or other persons 
familiar with the liquidity risk management program. The summaries 
should familiarize directors with the salient features of the program 
and provide them with an understanding of how the liquidity risk 
management program addresses the required assessment of the fund's 
liquidity risk, including how the fund's investment adviser or officers 
administering the program determined the fund's three-day liquid asset 
minimum. In considering whether to approve a fund's liquidity risk 
management program, the board may wish to consider the nature of the 
fund's liquidity risk exposure. A board also may wish to consider the 
adequacy of the fund's liquidity risk management program in light of 
recent experiences regarding the fund's liquidity, including any 
redemption pressures experienced by the fund.
2. Approval of Material Changes to Liquidity Risk Management Program 
and Oversight of the Three-Day Liquid Asset Minimum
    Proposed rule 22e-4(b)(3)(i) also would require each fund to obtain 
approval of any material changes to the fund's liquidity risk 
management program, including changes to the

[[Page 62324]]

fund's three-day liquid asset minimum, from the fund's board of 
directors, including a majority of independent directors. As with the 
initial approval of a fund's liquidity risk management program, the 
requirement to obtain approval of any material changes to the fund's 
liquidity risk management program from the board is designed to 
facilitate independent scrutiny of material changes to the liquidity 
risk management program by the board of directors. We note that our 
proposal to require directors to approve material changes to the fund's 
liquidity risk management program differs from the requirements under 
rule 38a-1 under the Act, which does not require a fund board to 
approve changes to a fund's compliance policies and procedures.\400\ 
Given that the fund's liquidity risk management program will be 
administered by a fund's investment adviser or officers (rather than a 
chief compliance officer),\401\ we believe that board approval of 
material changes in this context will provide an important independent 
check on such administration.
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    \400\ Rule 38a-1 requires that the fund's chief compliance 
officer provide a written annual report to the fund's board 
addressing, among other things, any material changes made to the 
fund's compliance policies and procedures since the date of the last 
report and any material changes to the fund's compliance policies 
and procedures recommended as a result of the fund's annual review 
of the adequacy of such policies and procedures and the 
effectiveness of their implementation.
    \401\ Rule 38a-1 contains several provisions ``designed to 
promote the independence of the chief compliance officer from the 
management of the fund.'' See Rule 38a-1 Adopting Release, supra 
note 90. These include: Rule 38a-1(a)(4)(i) (designation and 
compensation of the chief compliance officer must be approved by the 
fund's board, including a majority of the fund's independent 
directors); rule 38a-1(a)(4)(ii) (the chief compliance officer can 
only be discharged from his or her responsibilities with the 
approval of the fund's board, including a majority of the fund's 
independent directors); rule 38a-1(a)(4)(iii) (the chief compliance 
officer must provide an annual report to the board addressing: (i) 
The operation of the policies and procedures of the fund and certain 
service providers since the last report; (ii) any material changes 
to the policies and procedures since the last report; (iii) any 
recommendations for material changes to the policies and procedures 
as a result of the annual review; and (iv) any material compliance 
matters since the date of the last report); and rule 38a-1(a)(4)(iv) 
(requiring the chief compliance officer to meet separately with the 
fund's independent directors at least once a year).
---------------------------------------------------------------------------

    The fund's board would be responsible under the proposed rule for 
reviewing a written report from the fund's investment adviser or 
officers administering the fund's liquidity risk management program, 
provided no less frequently than annually, that reviews the adequacy of 
the fund's liquidity risk management program, including the fund's 
three-day liquid asset minimum, and the effectiveness of its 
implementation.\402\ This aspect of the proposed rule is designed to 
facilitate board oversight over the adequacy and effectiveness of the 
fund's liquidity risk management program, including the three-day 
liquid asset minimum and whether the three-day liquid asset minimum is 
providing an appropriate level of minimum liquidity to the fund in 
light of changes in the markets, the fund, and its shareholder base 
over time. To the extent that the board is being asked to approve a 
change in a fund's three-day liquid asset minimum, the written report 
should also provide directors with an understanding of how a change to 
the fund's three-day liquid asset minimum was determined to be 
appropriate. We believe that this review and its related report will 
provide the board with sufficient information to provide oversight over 
the adequacy and effective implementation of the fund's liquidity risk 
management program. As with the initial approval of each fund's 
liquidity risk management program, directors may also wish to consider 
the nature of the fund's liquidity risk exposure in approving any 
material changes, particularly with respect to the fund's three-day 
liquid asset minimum.
---------------------------------------------------------------------------

    \402\ Proposed rule 22e-4(b)(3)(ii).
---------------------------------------------------------------------------

3. Designation of Administrative Responsibilities to Fund Investment 
Adviser or Officers
    Proposed rule 22e-4(b)(3)(iii) would expressly require a fund to 
designate the fund's investment adviser or officers (which may not be 
solely portfolio managers of the fund) responsible for administering 
the fund's liquidity risk management program, which designation must be 
approved by the fund's board of directors. Designating the fund's 
investment adviser or officers responsible for the administration of 
the fund's liquidity risk management program, subject to board 
oversight, is consistent with the way we understand most funds 
currently manage liquidity.\403\ The proposed designation also tasks 
the persons who are in a position to manage the fund's liquidity risks 
on a real-time basis with responsibility for administration of the 
liquidity risk management program. In administering a fund's liquidity 
risk management program, the fund's investment adviser or officers may 
wish to consult with the fund's portfolio manager, traders, risk 
managers, and others as necessary or appropriate (e.g., to obtain 
information used in classifying the liquidity of a new portfolio 
position), but we note that the fund's portfolio managers may not be 
solely responsible for administering the program.
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    \403\ See Federal Regulation Of Securities Committee, American 
Bar Association, Fund Director's Guidebook (4th ed. 2015), at p. 82 
(``Determining the liquidity of a security is primarily an 
investment decision that is delegated to the investment adviser, but 
directors may establish guidelines and standards for determining 
liquidity.'').
---------------------------------------------------------------------------

    We understand, based on staff outreach, that some funds employ a 
dedicated risk management officer and task liquidity risk management to 
this officer, in consultation with the fund's portfolio management 
function. The board of a fund that employs a dedicated risk management 
officer (or an officer whose role includes risk management among other 
duties) may find it appropriate to designate administration of the 
fund's liquidity risk management program to this officer. We request 
comment below on whether a fund should be required to specifically task 
administration of the fund's liquidity risk management program to a 
dedicated risk officer, or whether we should otherwise specify the 
officer who must administer the fund's liquidity risk management 
program.
    Because the administration of a fund's liquidity risk management 
program would be designated to a fund's investment adviser or officers, 
the investment adviser or officers should provide the board with enough 
information to oversee such administration. As discussed above, the 
fund's investment adviser or officers would therefore be required to 
provide the board with a written report on the adequacy of the fund's 
liquidity risk management program, including the three-day liquid asset 
minimum, and the effectiveness of its implementation, at least 
annually. To the extent that a serious compliance issue arises under 
the program, it may be appropriate to consider whether the event should 
be brought to the board's attention promptly.\404\
---------------------------------------------------------------------------

    \404\ See Rule 38a-1 Adopting Release, supra note 90 (noting, in 
the case of a rule 38a-1 compliance program, that ``[s]erious 
compliance issues must, of course, always be brought to the board's 
attention promptly'').
---------------------------------------------------------------------------

    We understand that, in certain circumstances, a fund's service 
providers may assist a fund and its investment adviser in monitoring 
factors relevant to a fund's liquidity risk and managing the fund's 
liquidity risk. For example, third parties could provide data relevant 
to assessing fund flows. Also, a sub-adviser's portfolio management 
responsibilities would involve investing a fund's assets in accordance 
with the fund's three-day

[[Page 62325]]

liquid asset minimum and any other liquidity-related portfolio 
requirements adopted by the fund.\405\ While we understand that such 
actions could provide useful assistance to a fund in assessing, 
monitoring, and managing liquidity risk, we note that the primary 
parties responsible for a fund's liquidity risk management are the fund 
itself and any parties to whom the fund has designated responsibility 
for administering the fund's liquidity risk management program. A fund 
(or its investment adviser, to the extent the investment adviser has 
been given liquidity risk management responsibility) should thus 
oversee any liquidity risk monitoring or risk management activities 
undertaken by the fund's service providers, and we encourage a fund (or 
its investment adviser, as appropriate) to communicate regularly with 
its service providers as a part of its oversight and to coordinate the 
liquidity risk management efforts undertaken by various parties.
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    \405\ A fund could also formally designate a fund's sub-adviser 
as responsible for the fund's liquidity risk management program.
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4. Request for Comment
    We request comment on the proposed board approval and oversight 
requirements.
     Do fund boards currently approve procedures for 
classifying the liquidity of portfolio assets? Do fund boards take any 
additional steps to oversee the liquidity of portfolio assets? Should 
the Commission require boards, including a majority of independent 
directors, to approve the initial liquidity risk management program, 
including the three-day liquid asset minimum?
     Should the Commission require boards to approve material 
changes to a fund's liquidity risk management program, including any 
changes to a fund's three-day liquid asset minimum? Should the 
Commission define what would constitute a ``material change'' to a 
fund's liquidity risk management program or provide additional guidance 
regarding what changes would constitute material changes? 
Alternatively, should the Commission require boards to approve all 
changes to a fund's liquidity risk management program? Or, similar to 
rule 38a-1 regarding a fund's compliance program, should there be no 
requirement for board approval of changes to the liquidity risk 
management program?
     Does the release provide adequate guidance to fund boards 
regarding their approval of the liquidity risk management program? 
Should we provide any additional guidance in this regard?
     Do commenters agree that it would be appropriate to 
require a fund to designate the fund's adviser or officers responsible 
for administering a fund's liquidity risk management program, subject 
to board approval? Is it appropriate to specify that those 
administering the program may not be solely the fund's portfolio 
managers? Would any small fund complexes have difficulty meeting the 
proposed requirement that the program may not be solely administered by 
the fund's portfolio manager? Is it appropriate to allow a fund to 
designate a fund sub-adviser responsible for administering a fund's 
liquidity risk management program? Should the Commission require a fund 
to task administration of the fund's liquidity risk management program 
to a specific officer of the fund? Should the Commission require that a 
fund have a chief risk officer or risk committee administer the fund's 
liquidity risk management program?
     Should the Commission specify a shorter or longer 
frequency for review of a report on the fund's liquidity risk 
management program? Should the report to the board cover both the 
adequacy and effectiveness of the fund's liquidity risk management 
program as well as the adequacy of the fund's three-day liquid asset 
minimum? Alternatively, would a report reviewing the adequacy of the 
fund's three-day liquid asset minimum likely provide a review of the 
fund's liquidity risk management program overall given the factors that 
must be assessed in setting the three-day liquid asset minimum?
     Are there other aspects of the fund's liquidity risk 
management program about which the fund's investment adviser or 
officers responsible for administering the program should report to the 
board? Should we provide any additional guidance to fund boards in 
connection with the approval and oversight of a fund's liquidity risk 
management program?

E. Liquidity Risk Management Program Recordkeeping Requirements

    We are proposing to require that each fund maintain a written copy 
of the policies and procedures adopted as part of its liquidity risk 
management program for five years, in an easily accessible place.\406\ 
Each fund also would be required to maintain copies of any materials 
provided to its board in connection with the board's initial approval 
of the fund's liquidity risk management program and approvals of any 
subsequent material changes to the program, including any changes to 
the fund's three-day liquid asset minimum, and copies of written 
reports provided to the board that review the adequacy of the fund's 
liquidity risk management program, including the fund's three-day 
liquid asset minimum, and the effectiveness of its implementation.\407\ 
Funds would have to maintain such records for at least five years after 
the end of the fiscal year in which the documents were provided to the 
board, the first two years in an easily accessible place.
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    \406\ Proposed rule 22e-4(c)(1).
    \407\ Proposed rule 22e-4(c)(2); see also proposed rule 22e-
4(b)(3)(i)-(ii).
---------------------------------------------------------------------------

    Finally, we are proposing to require that each fund keep a written 
record of how its three-day liquid asset minimum, and any adjustments 
thereto, were determined, including the fund's assessment and periodic 
review of its liquidity risk in light of the factors incorporated in 
paragraphs (b)(2)(iii)(A) through (D) of proposed rule 22e-4.\408\ 
Funds would have to maintain such records for a period of not less than 
five years, the first two years in an easily accessible place, 
following the determination of, and each change to, the fund's three-
day liquid asset minimum.
---------------------------------------------------------------------------

    \408\ Proposed rule 22e-4(c)(3).
---------------------------------------------------------------------------

    The records discussed above are designed to provide our examination 
staff with a basis to determine whether a fund has adopted a liquidity 
risk management program in compliance with the requirements of proposed 
rule 22e-4. Specifically, such records would help our staff to 
determine whether a fund's program incorporates the elements required 
to be included under paragraph (b)(2) of proposed rule 22e-4. We also 
anticipate that these records would assist our staff in identifying 
weaknesses in a fund's liquidity risk management if violations do occur 
or are uncorrected.
    The five-year retention period in proposed rule 22e-4(c) is 
consistent with that in rule 38a-1(d) under the Act. We believe 
consistency in these retention periods is appropriate because funds 
currently have program-related recordkeeping procedures in place 
incorporating a five-year retention period, which we believe would 
lessen the compliance burden to funds slightly, compared to choosing a 
different retention period, such as the six-year recordkeeping 
retention period under rule 31a-2 of the Act. Taking this into account, 
we believe a five-year retention period is a sufficient period of time 
for our examination staff to evaluate whether a fund is in compliance 
(and

[[Page 62326]]

has been in compliance) with the liquidity risk management program 
requirements of the rule and anticipate that such information would 
become less relevant if extended beyond a five-year retention period. 
Furthermore, we believe that the proposed five-year retention period 
appropriately balances recordkeeping-related burdens on funds.
    We request comment on the proposed liquidity risk management 
program recordkeeping requirements.
    [ssquf] Do commenters agree that the proposed recordkeeping 
requirements are appropriate? Specifically, are there any additional 
records associated with a fund's liquidity risk management program that 
a fund should be required to keep? Should a fund be required to keep a 
written record of how the liquidity classifications of each of the 
fund's positions in a portfolio asset were determined, including 
assessment of the factors set forth in proposed rule 22e-4(b)(2)(ii)? 
Should a fund be required to keep a written record of what liquidity 
classifications were determined for each of the fund's positions in a 
portfolio asset? Do commenters anticipate that, to the extent that data 
regarding certain factors that a fund would be required to consider in 
classifying its portfolio positions' liquidity could be obtained 
largely through automated systems, it would be possible to easily re-
create a record of how past liquidity classifications assigned to a 
fund's portfolio positions were determined? Are there feasible 
alternatives to the proposed rule that would minimize recordkeeping 
burdens, including the costs of maintaining the required records?
    [ssquf] Do commenters agree that the five-year retention period for 
records that would be required to be kept pursuant to proposed rule 
22e-4(c) is appropriate? If not, what retention period would commenters 
recommend? Would commenters recommend a six-year retention period? Why 
or why not?
    [ssquf] We specifically request comment on any alternatives to the 
proposed recordkeeping requirements that would minimize recordkeeping 
burdens on funds, the utility and necessity of the proposed 
recordkeeping requirements in relation to the associated costs and in 
view of the public benefits derived, and the effects that additional 
recordkeeping requirements would have on funds' internal compliance 
policies and procedures.\409\
---------------------------------------------------------------------------

    \409\ See sections 30(c)(2)(A), 30(c)(2)(B), and 31(a)(2) of the 
Investment Company Act.
---------------------------------------------------------------------------

F. Swing Pricing

    Rule 22c-1 under the Investment Company Act, the ``forward 
pricing'' rule, requires funds, their principal underwriters, dealers 
in fund shares, and other persons designated in a fund's prospectus, to 
sell and redeem fund shares at a price based on the current NAV next 
computed after receipt of an order to purchase or redeem.\410\ When a 
fund trades portfolio assets as a result of purchase or redemption 
requests, costs associated with this trading activity can dilute the 
value of the existing shareholders' interests in the fund. This 
dilution occurs because the price at which shareholders transact in 
fund shares reflects the shares' current NAV that is next computed 
after the fund's receipt of the shareholders' purchase and redemption 
requests (generally, the fund's NAV calculated as of the close of the 
fund's primary underlying market, which is typically 4 p.m. Eastern 
Time),\411\ but the fund's NAV will not generally reflect changes in 
holdings of the fund's portfolio assets and changes in the number of 
the fund's outstanding shares until the first business day following 
the fund's receipt of the shareholders' purchase and redemption 
requests.\412\ Thus, the price that a purchasing shareholder pays for 
fund shares customarily does not take into account the market impact 
costs and trading costs that arise when the fund buys portfolio assets 
in order to invest proceeds of shareholder purchases. Likewise, the 
price that a redeeming shareholder receives for fund shares customarily 
does not take into account the market impact costs and trading costs 
that arise when the fund sells portfolio assets in order to meet 
shareholder redemptions. Going forward, however, the NAV of the fund 
shares held by existing shareholders does reflect these costs, and thus 
these costs are borne not by the purchasing or redeeming shareholders 
but by all existing fund shareholders.\413\
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    \410\ See rule 22c-1(a). Prior to adoption of rule 22c-1, 
investor orders to purchase and redeem could be executed at a price 
computed before receipt of the order, allowing investors to lock-in 
a low price in a rising market and a higher price in a falling 
market. The forward pricing provision of rule 22c-1 was designed to 
eliminate these trading practices and the dilution to fund 
shareholders which occurred as a result of backward pricing. Pricing 
of Redeemable Securities for Distribution, Redemption, and 
Repurchase, Investment Company Act Release No. 14244 (Nov. 21, 1984) 
[49 FR 46558 (Nov. 27, 1984)], at text following n.2.
    \411\ See supra note 41 and accompanying text.
    \412\ See rule 2a-4(a)(2) (providing that changes in holdings of 
portfolio securities shall be reflected in the fund's current NAV no 
later than in the first calculation on the first business day 
following the trade date); rule 2a-4(a)(3) (providing that changes 
in the number of outstanding shares of the registered company 
resulting from distributions, redemptions, and repurchases shall be 
reflected in the fund's current NAV no later than in the first 
calculation on the first business day following such change); see 
also BlackRock, Swing Pricing: The Dilution Effects of Trading 
Activity (Dec. 2011), available at http://www2.blackrock.com/content/groups/internationalsite/documents/literature/1111157589.pdf 
(``BlackRock Swing Pricing Paper'').
    \413\ See Association of the Luxembourg Fund Industry, Swing 
Pricing: Survey, Reports & Guidelines (Feb. 2011), available at 
http://www.alfi.lu/sites/alfi.lu/files/ALFI_Swing_Pricing.pdf 
(``Luxembourg Swing Pricing Survey, Reports & Guidelines''), at 13 
(``[T]he single price at which investors buy and sell the fund's 
shares only reflects the value of its net assets. It does not take 
into account the dealing costs that arise when the portfolio manager 
trades as a result of capital activity incurring a spread on the 
underlying securities. In other words, the charges incurred fall not 
on the client who has just traded, but on all investors in the 
fund.'').
     To the extent that a fund were to apply a purchase fee or 
redemption fee, shareholders would, at least to a certain extent, 
bear the transaction-related costs associated with their purchase 
and redemption requests. See infra notes 421-422 and accompanying 
text; see also Securities and Exchange Commission, Mutual Fund Fees 
and Expenses, available at http://www.sec.gov/answers/mffees.htm.
---------------------------------------------------------------------------

    While forward pricing captures the changes in portfolio assets' 
value that arise as a result of market-wide trading, it does not 
necessarily reflect any disparity between the market price of a 
portfolio asset at the end of the day (as determined for purposes of 
striking a fund's NAV) and the price that a fund receives for trading 
that asset. This scenario could arise, for example, in situations in 
which an asset's value changes throughout the day, and the price that a 
fund receives when trading that asset differs from the market value of 
the asset at the end of the day. It also could arise if a fund were 
forced to sell a relatively less liquid asset at an inopportune time, 
and thus had to accept a price for that asset that incorporates a 
significant discount to the asset's stated value.
    To provide an illustration of a situation in which forward pricing 
may not result in a fund's NAV reflecting the price that a fund 
actually received when it sold portfolio assets, consider the following 
example. If a fund has valued portfolio asset X at $10 at the beginning 
of day 1, and market activity on day 1 (including the fund's sale of 
portfolio asset X) decreases the market value of portfolio asset X to 
$9 at the end of day 1, the fund's remaining holdings of portfolio 
asset X at the end of day 1 would be valued at $9 to reflect the 
asset's market value on that day. However, staff outreach has shown 
that it is common industry practice, as permitted by rule 2a-4, for the 
fund's current NAV to not reflect the actual price at which the fund 
has sold the

[[Page 62327]]

portfolio assets until the next business day following the sale.\414\ 
In the example above, if the fund selling portfolio asset X sold the 
asset during the day at $8 on day 1, the price that the fund received 
for these asset sales would not be reflected in the fund's NAV until 
day 2. Thus, redeeming shareholders would have received an exit price 
that would reflect portfolio asset X being valued at the close of the 
market at $9 on day 1, whereas remaining shareholders would hold shares 
on day 2 whose value reflects portfolio asset X being sold at $8 (the 
actual price that the fund received when it sold the asset on day one).
---------------------------------------------------------------------------

    \414\ See 2a-4(a)(2) (providing that changes in holdings of 
portfolio securities shall be reflected in the fund's current NAV no 
later than in the first calculation on the first business day 
following the trade date). The next day's NAV would generally 
reflect the cash receivable from the sale instead of the value of 
the shares that were sold (although if the shares were sold and 
settled within a T+0 or T+1 timeframe, the next day's NAV would 
reflect the value of the shares that were sold).
---------------------------------------------------------------------------

    Similarly, as noted above, the price that a purchasing shareholder 
pays for fund shares normally does not take into account trading and 
market impact costs that arise when the fund buys portfolio assets to 
invest the proceeds received from shareholder purchases. For example, 
when a fund experiences net inflows, it may invest the proceeds of 
shareholder purchases over several days following the purchase of fund 
shares. Thus, the purchase price that shareholders receive on day 1 
would not reflect any transaction fees associated with investing the 
proceeds of shareholder purchases on subsequent days, or any market 
activity (including the fund's purchase of portfolio assets) that 
increases the value of the fund's portfolio assets. To illustrate, if 
the fund's NAV on day 1 (and the purchase price an incoming shareholder 
were to receive on day 1) reflects portfolio asset X being valued at 
$10, but the fund were to purchase additional shares of portfolio asset 
X on day 2 at $11, the price that a purchasing shareholder pays on day 
1 would not reflect the costs of investing the proceeds of the 
shareholder's purchases of fund shares. These costs instead would be 
reflected in the fund's NAV on days following the shareholder's 
purchase, and thus would be borne by all of the investors in the fund, 
not only the shareholders who purchased on day 1.
    Certain foreign funds currently use ``swing pricing,'' the process 
of adjusting the fund's NAV to effectively pass on the market impact 
costs,\415\ spread costs,\416\ and transaction fees and charges 
stemming from net capital activity (i.e., flows into or out of the 
fund) to the shareholders associated with that activity, in order to 
protect other shareholders from dilution arising from these costs. 
Investment management industry representative associations operating in 
certain European jurisdictions have adopted guidelines on swing pricing 
procedures in recent years,\417\ and a survey conducted by the 
Association of the Luxembourg Fund Industry (``ALFI'') several years 
ago confirmed a strong directional trend towards the adoption of swing 
pricing among major market participants in that jurisdiction, which is 
a significant jurisdiction for the organization of UCITS funds in 
Europe.\418\ Likewise, several comments from asset managers received in 
response to the FSOC Notice \419\ noted favorably that funds regulated 
under the UCITS Directive use swing pricing to allocate transaction 
costs to purchasing and redeeming shareholders.\420\
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    \415\ Market impact costs are incurred when the price of a 
security changes as a result of the effort to purchase or sell the 
security. Stated formally, market impacts are the price concessions 
(amounts added to the purchase price or subtracted from the selling 
price) that are required to find the opposite side of the trade and 
complete the transaction. Market impact cost cannot be calculated 
directly. It can be roughly estimated by comparing the actual price 
at which a trade was executed to prices that were present in the 
market at or near the time of the trade. See Concept Release: 
Request for Comments on Measures to Improve Disclosure of Mutual 
Fund Transaction Costs, Investment Company Act Release No. 26313 
(Dec. 18, 2003) [68 FR 74819 (Dec. 24, 2003)] (``Transaction Cost 
Concept Release'').
    \416\ Spread costs are incurred indirectly when a fund buys a 
security from a dealer at the ``asked'' price (slightly above 
current value) or sells a security to a dealer at the ``bid'' price 
(slightly below current value). The difference between the bid price 
and the asked price is known as the ``spread.'' See Transaction Cost 
Concept Release, supra note 415. For equity securities listed on an 
exchange, the costs associated with trading the security typically 
take the form of brokerage commissions, as opposed to spread costs.
    \417\ See, e.g., Luxembourg Swing Pricing Survey, Reports & 
Guidelines, supra note 413; Association Francaise de la Gestion 
Financi[egrave]re, Charte de bonne conduit pour le Swing Pricing et 
les droits d'entr[eacute]e et de sortie ajustables acquis aux fonds 
(2014), available at http://www.afg.asso.fr/index.php?option=com_content&view=article&id=5459%3Acharte-de-bonne-conduite-pour-le-swing-pricing-et-les-droits-dentree-et-de-sortie-ajustables-acquis-aux-fonds&catid=527%3A2014⟨=fr.
     The European Commission's 2009 revised Undertakings for 
Collective Investment in Transferable Securities (``UCITS'') 
Directive does not specifically provide for swing pricing, but does 
provide that ``[t]he rules for the valuation of assets and the rules 
for calculating the sale or issue price and the repurchase or 
redemption price of the units of a UCITS shall be laid down in the 
applicable national law, in the fund rules or in the instruments of 
incorporation of the investment company.'' Directive 2009/65/EC of 
the European Parliament and of the Council of 13 July 2009 on the 
coordination of laws, regulations, and administrative provisions 
relating to undertakings for collective investment in transferable 
securities, Official J. of the European Union (Nov. 2009), available 
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:302:0032:0096:en:PDF, at Article 85.
    \418\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413; see also BlackRock Swing Pricing Paper, supra note 
412 (discussing the results of the ALFI survey). The results of the 
ALFI survey indicated that the majority of respondents were already 
using swing pricing, and the number of fund managers using swing 
pricing had tripled over the previous five years.
    \419\ See supra note 16.
    \420\ See Comment Letter of AllianceBernstein L.P. on the FSOC 
Notice (Mar. 25, 2015) (noting that UCITS funds may utilize swing 
pricing to ``accurately reflect the costs borne by other 
shareholders stemming from transaction costs''); BlackRock FSOC 
Notice Comment Letter, supra note 50, at 5 and 39 (recommending that 
policy makers consider a ``mechanism to allocate transaction costs 
to redeeming shareholders as a way to provide a price signal for the 
price of market liquidity and to reimburse or buffer a fund's 
remaining shareholders''); see also Nuveen FSOC Notice Comment 
Letter, supra note 45, at n.26 (``The SEC could also study proposals 
to change the pricing mechanisms for mutual fund subscriptions and 
redemptions in such a way that, under certain pre-specified 
circumstances, subscribing and redeeming shareholders would bear the 
cost of portfolio transactions necessary to invest cash for new 
subscriptions and to fund redemptions.''); Occupy the SEC FSOC 
Notice Comment Letter, supra note 45, at 13 (stating that investors 
buying or selling large amounts of fund shares impose costs on the 
fund that results in inequitable outcomes as long-term investors 
subsidize those who trade more actively and that for funds that hold 
illiquid assets these externalities can become quite material).
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    Commission rules and guidance do not currently address the ability 
of a fund to use swing pricing to mitigate potential dilution of fund 
shareholders. The Commission has previously recognized that excessive 
trading of mutual fund shares could dilute the value of long-term 
investors' shares,\421\ however, and in response to this, the 
Commission adopted rule 22c-2 under the Investment Company Act. Rule 
22c-2, among other things, permits a fund to impose a fee of up to two 
percent on shareholders' redemptions and requires fund boards to 
consider imposing redemption fees under certain circumstances.\422\ 
While redemption

[[Page 62328]]

fees (or purchase fees) could mitigate dilution arising from 
shareholder transaction activity, implementing a fee requires 
coordination with the fund's service providers, which could entail 
operational complexity. On the other hand, adjusting a fund's NAV, like 
imposing a fee, could pass on transaction-related costs to purchasing 
and redeeming shareholders, but could be simpler to implement because 
this adjustment would occur pursuant to the fund's own procedures (as 
opposed to involving the intermediaries' systems) and would be factored 
into the process by which a fund strikes its NAV. However, the 
Commission has not addressed whether a fund might adjust its current 
NAV to lessen dilution of the value of a fund's outstanding securities, 
and the Commission's current valuation guidance could raise questions 
about making such a NAV adjustment.\423\
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    \421\ See, e.g., Mutual Fund Redemption Fees, Investment Company 
Act Release No. 26782 (Mar. 11, 2005) [70 FR 13328 (Mar. 18, 2005)] 
(``Rule 22c-2 Adopting Release'') at n.7 and accompanying text.
    \422\ Rule 22c-2 prohibits a fund from redeeming shares within 
seven days after the share purchase unless the fund meets three 
conditions. See rule 22c-2(a). First, the board of directors must 
either: (i) Approve a redemption fee (in an amount not to exceed two 
percent of the value of shares redeemed), or (ii) determine that 
imposition of a redemption fee is either not necessary or not 
appropriate. Second, the fund (or its principal underwriter or 
transfer agent) must enter into a written agreement with each 
financial intermediary under which the intermediary agrees to, among 
other things: (i) Provide, at the fund's request, identity and 
transaction information about shareholders who hold their shares 
through an account with the intermediary; and (ii) execute 
instructions from the fund to restrict or prohibit future purchases 
or exchanges. Third, the fund must maintain a copy of each written 
agreement with a financial intermediary for six years.
    \423\ For example, adjusting a fund's NAV in order to 
effectively require shareholders who are purchasing or redeeming 
shares of the fund to bear the costs associated with their purchases 
or redemptions could be viewed as a temporary change in a fund's 
valuation policies that might conflict with long-standing Commission 
guidance that a fund's valuation policies be ``consistently 
applied.'' See Accounting for Investment Securities by Registered 
Investment Companies, Investment Company Act Release No. 6295 (Dec. 
23, 1970) [35 FR 19986 (Dec. 31, 1970)] (``ASR 118'').
---------------------------------------------------------------------------

    Because we believe that swing pricing could be a useful tool in 
mitigating potential dilution of fund shareholders, we are proposing 
rule 22c-1(a)(3), which would permit certain mutual funds (but not ETFs 
or money market funds) to use swing pricing under certain 
circumstances. Proposed rule 22c-1(a)(3) specifies the conditions under 
which we believe swing pricing would be appropriately used. Below we 
describe in detail the proposed requirements that a fund using swing 
pricing would be obliged to follow, the objectives of the proposed 
rule, and certain considerations that a fund should generally assess in 
determining whether swing pricing would be an effective tool to prevent 
fund dilution and promote fairness among all its shareholders. The 
proposed rule is designed to promote all shareholders' interests and 
promote practices that seek to ensure that a fund's shares are 
purchased and redeemed at a fair price.\424\ We also believe that the 
proposed rule would provide a set of operational standards that would 
allow U.S. funds to gain comfort using swing pricing as a new means of 
mitigating potential dilution. We recognize that implementing swing 
pricing could give rise to a number of operational issues and 
questions, and we provide guidance and request comment on relevant 
operational considerations below.
---------------------------------------------------------------------------

    \424\ See Rule 38a-1 Adopting Release, supra note 90, at text 
following n.40 (noting that the pricing requirements of the 
Investment Company Act are ``critical to ensuring fund shares are 
purchased and redeemed at fair prices and that shareholder interests 
are not diluted.'').
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1. Proposed Rule 22c-1(a)(3)
a. Overview and Objectives of Proposed Rule
    Under proposed rule 22c-1(a)(3), a registered open-end investment 
company (but not a registered investment company that is regulated as a 
money market fund,\425\ and not including an exchange-traded fund 
\426\) would be permitted to establish and implement policies and 
procedures providing for the fund to adjust its current NAV to mitigate 
dilution of the value of its outstanding redeemable securities as a 
result of shareholder purchase and redemption activity.\427\ 
Specifically, a fund \428\ would be permitted to establish and 
implement swing pricing policies and procedures that would require a 
fund to adjust its NAV under certain circumstances, provided that the 
fund's board (including a majority of directors who are not interested 
persons of the fund) \429\ must approve these policies and procedures, 
and the policies and procedures must include certain specified 
elements.\430\ A fund's swing pricing policies and procedures must 
provide that the fund will adjust its NAV by an amount designated as 
the ``swing factor'' once the level of net purchases into or net 
redemptions from the fund has exceeded a specified percentage of the 
fund's net asset value known as the ``swing threshold.'' \431\ A fund 
would be required to adopt policies and procedures for determining and 
periodically reviewing its swing threshold. A fund's swing pricing 
policies and procedures also would be required to include policies and 
procedures for determining a swing factor that would be used to adjust 
the fund's NAV when the fund's swing threshold is breached. While the 
swing factor could vary depending on the facts and circumstances, a 
fund's policies and procedures for determining its swing factor must 
take certain specified factors into account.\432\ A fund's board must 
approve the swing pricing policies and procedures (including the fund's 
swing threshold), as well as any material change thereto,\433\ and the 
board would be required to designate the fund's adviser or officers 
responsible for administering the policies and procedures.\434\ A fund 
would be required to abide by certain recordkeeping requirements 
relating to its swing pricing policies and procedures and any NAV 
adjustments made pursuant to these policies and procedures.\435\
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    \425\ See rule 2a-7.
    \426\ Proposed rule 22c-1(a)(3)(v)(A) would define ``exchange-
traded fund'' as ``an open-end management investment company or a 
class thereof, the shares of which are traded on a national 
securities exchange, and that operates pursuant to an exemptive 
order granted by the Commission or in reliance on an exemptive rule 
adopted by the Commission.''
    \427\ Proposed rule 22c-1(a)(3). Under the proposed rule, 
``swing pricing'' would be defined as ``the process of adjusting a 
fund's current net asset value per share to mitigate dilution of the 
value of its outstanding redeemable securities as a result of 
shareholder purchase and redemption activity, pursuant to the 
requirements set forth in [proposed rule 22c-1(a)(3)].'' See 
proposed rule 22c-1(a)(3)(v)(C).
    \428\ For purposes of this section III.F and the discussions of 
proposed rule 22c-1(a)(3) in this document, the term ``fund'' 
denotes a fund as defined in proposed rule 22c-1(a)(3), that is, ``a 
registered open-end management investment company (but not a 
registered open-end management investment company that is regulated 
as a money market fund under Sec.  270.2a-7 or an exchange traded 
fund as defined in [proposed rule 22c-1(a)(3)(v)(A)]).''
    \429\ Proposed rule 22c-1(a)(3)(ii)(A).
    \430\ Proposed rule 22c-1(a)(3)(i).
    \431\ Proposed rule 22c-1(a)(3)(i)(A). Under the proposed rule, 
``swing factor'' would be defined as ``the amount, expressed as a 
percentage of the fund's net asset value and determined pursuant to 
the fund's swing pricing procedures, by which a fund adjusts its net 
asset value per share when the level of net purchases or net 
redemptions from the fund has exceeded the fund's swing threshold.'' 
Proposed rule 22c-1(a)(3)(v)(B). We request comment on this 
definition in section III.F.1.e below.
    ``Swing threshold'' would be defined as ``the amount of net 
purchases into or net redemptions from a fund, expressed as a 
percentage of the fund's net asset value, that triggers the 
initiation of swing pricing.'' Proposed rule 22c-1(a)(3)(v)(D). We 
request comment on this definition in section III.F.1.c below.
    \432\ Proposed rule 22c-1(a)(3)(i)(D).
    \433\ Proposed rule 22c-1(a)(3)(ii)(A).
    \434\ Proposed rule 22c-1(a)(3)(ii)(B).
    \435\ See infra section III.F.1.g; proposed rule 22c-
1(a)(3)(iii); proposed amendment to rule 31a-2(a)(2).
---------------------------------------------------------------------------

    In determining whether the fund's level of net purchases or net 
redemptions has exceeded the fund's swing threshold, the person(s) 
responsible for administering the fund's swing pricing policies and 
procedures \436\ would be permitted to make such determination on the 
basis of information obtained after reasonable inquiry.\437\ As 
discussed below, swing pricing requires the net cash flows for a fund 
to be known, or reasonably estimated, before determining whether to 
adjust the fund's NAV on a particular

[[Page 62329]]

day.\438\ Because the deadline by which a fund must strike its NAV may 
precede the time that a fund receives final information concerning 
daily net flows from the fund's transfer agent or principal 
underwriter, we believe it is appropriate to permit the person 
responsible for administering swing pricing policies and procedures to 
determine whether net purchases or net redemptions have exceeded the 
fund's swing threshold on the basis of information obtained after 
reasonable inquiry. The operational processes associated with swing 
pricing are discussed in more detail below at section III.F.2.a.
---------------------------------------------------------------------------

    \436\ See infra section III.F.1.f.
    \437\ Proposed rule 22c-1(a)(3)(i)(A).
    \438\ See infra section III.F.2.a.
---------------------------------------------------------------------------

    Under the proposed rule, in-kind purchases and in-kind redemptions 
would be excluded from the calculation of net purchases and net 
redemptions for purposes of determining whether a fund's net purchases 
or net redemptions exceed its swing threshold.\439\ When a fund 
investor purchases or redeems shares of a fund in kind as opposed to in 
cash, this does not necessarily cause the fund to trade any of its 
portfolio assets. We therefore believe that the risk of dilution as a 
result of shareholder purchase and redemption activity is lower with 
respect to in-kind purchases and in-kind redemptions, and thus swing 
pricing would not be permitted unless a fund's net purchases or net 
redemptions that are made in cash (and not in kind) exceed the fund's 
swing threshold.
---------------------------------------------------------------------------

    \439\ Proposed rule 22c-1(a)(3)(i)(A).
---------------------------------------------------------------------------

    We are proposing rule 22c-1(a)(3) to provide funds with a tool to 
mitigate the potentially dilutive effects of shareholder purchase and 
redemption activity. Funds would be able to adopt swing pricing 
policies and procedures in their discretion (although, once these 
policies and procedures are adopted, a fund would be required to adjust 
its NAV when net purchases or net redemptions cross the swing 
threshold, unless the fund's board approves a change to the fund's 
swing threshold). When a fund that has adopted swing pricing 
experiences net purchases exceeding the swing threshold, it would 
adjust its NAV upward, which would effectively require purchasing 
shareholders to cover near-term costs associated with the fund 
investing in additional portfolio assets. Conversely, when a fund that 
has adopted swing pricing experiences net redemptions exceeding the 
swing threshold, it would adjust its NAV downward, which would 
effectively require redeeming shareholders to cover near-term costs 
associated with the fund selling portfolio assets. In both cases, swing 
pricing would result in the costs of trading portfolio assets (along 
with transaction fees and charges relating to these trades) being 
passed on to purchasing and redeeming shareholders.
    As discussed above, some foreign funds currently use swing pricing, 
which suggests that these funds consider swing pricing to be a valuable 
and effective means of decreasing dilution. Indeed, one investment 
manager conducted a study of its funds whose prices swung over a one-
year period (over fifty funds) and found that the performance of each 
of these funds would have been impaired, in some cases quite 
considerably, had the manager not implemented a swing pricing 
policy.\440\ Likewise, ALFI has noted that studies have shown that 
``[f]unds that apply swing pricing show superior performance over time 
compared to funds (with identical investment strategies and trading 
patterns) that do not employ anti-dilution measures,'' and that 
``[s]wing pricing helps preserve investment returns as the value to 
long-term investors normally exceeds the value of the swing factor 
applied on entry to or exit from the fund.'' \441\ We believe that the 
swing pricing policies contemplated by the proposed rule, which are 
similar to those used by some foreign funds, could mitigate dilution 
arising from shareholders' purchase and redemption activity.\442\ As 
opposed to purchase and redemption fees or liquidity fees, which could 
also prevent fund dilution arising from purchase or redemption 
activity,\443\ swing pricing would occur pursuant to the fund's own 
procedures and would not require coordination with the fund's service 
providers because the swing pricing adjustment would be factored into 
the process by which a fund strikes its NAV.\444\ In addition to 
mitigating potential dilution arising from purchase and redemption 
activity, swing pricing also could help deter redemptions motivated by 
any first-mover advantage. That is, if remaining shareholders 
understood that redeeming shareholders would bear the estimated costs 
of their redemption activity, it would reduce their incentive to redeem 
quickly because there would be less risk that they would bear the costs 
of other shareholders' redemption activity.
---------------------------------------------------------------------------

    \440\ See BlackRock Swing Pricing Paper, supra note 412.
    \441\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 12. But see infra paragraph following note 447 
(noting that swing pricing could increase the volatility of a fund's 
NAV in the short term, which could increase tracking error and could 
make a fund's performance deviate from the fund's benchmark during 
the period of volatility to a greater degree than if swing pricing 
had not been used).
    \442\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 12. The Commission has previously recognized that 
costs arising from certain types of redemption activity (namely, 
short-term trading strategies, such as market timing) could dilute 
the value of long-term investors' shares. See Rule 22c-2 Adopting 
Release, supra note 421.
    \443\ As discussed above, the Commission has previously 
recognized that excessive trading of fund shares could dilute the 
value of long-term investors' shares, and in response to this, 
adopted rule 22c-2, which permits a fund to impose redemption fees, 
and requires fund boards to consider imposing redemption fees, under 
certain circumstances. See supra notes 421-422.
     In addition, money market funds are permitted to use liquidity 
fees under rule 2a-7. See 2014 Money Market Fund Reform Adopting 
Release, supra note 85, at section III.A.5; see also discussion of 
money market fund liquidity fees in section III.F.1.b infra. 
Liquidity fees (including ``dilution levies'' used by certain UCITS) 
are also used in some foreign jurisdictions, as a distinct liquidity 
risk management tool separate from swing pricing. See infra notes 
467-468 and accompanying text.
    \444\ See supra note 422 and accompanying and following text.
---------------------------------------------------------------------------

    In considering the swing pricing proposal, we considered proposing 
a rule that would permit ``dual pricing'' as opposed to swing pricing. 
We understand that certain foreign funds use dual pricing as an 
alternative means of mitigating potential dilution arising from 
shareholder transaction activity. A fund using dual pricing would not 
adjust the fund's NAV by a swing factor when it faces high levels of 
net purchases or net redemptions, but instead would quote two prices--
one for incoming shareholders (reflecting the cost of buying portfolio 
securities at the ask price in the market), and one for outgoing 
shareholders (reflecting the proceeds the fund would receive from 
selling portfolio securities at the bid price in the market).\445\ 
While we believe that dual pricing also could mitigate potential 
dilution, we believe that swing pricing is a preferable alternative 
because we believe it would be simpler to implement and for investors 
to understand. Swing pricing would permit a fund to continue to 
transact using one price, as they do today (instead of transacting 
using separate prices for purchasing and redeeming shareholders), and 
also would permit a fund to price its shares without adjustment unless 
the level of net purchases or net redemptions were to cross the fund's 
swing threshold.
---------------------------------------------------------------------------

    \445\ See, e.g., supra note 423 for a discussion of different 
methods of valuing portfolio assets, as considered in ASR 118.
---------------------------------------------------------------------------

    We recognize that swing pricing may involve potential disadvantages 
to funds as well as potential advantages, and the provisions of 
proposed rule 22c-1(a)(3) are designed to maximize the relative

[[Page 62330]]

advantages and respond to potential concerns associated with swing 
pricing. While swing pricing protects against dilution at the fund 
level and could act as a deterrent against redemptions motivated by any 
first-mover advantage, the potential disadvantages of swing pricing 
(described in more detail below) include increased performance 
volatility and the fact that the precise impact of swing pricing on 
particular purchase and redemption requests would not be known in 
advance and thus may not be fully transparent to investors. Under 
proposed rule 22c-1(a)(3), swing pricing would be a voluntary tool for 
funds, and thus a fund would be able to weigh the potential advantages 
and disadvantages of swing pricing in relation to the fund's particular 
circumstances and risks, as well as the other tools the fund uses to 
manage risks relating to dilution and liquidity.
    The swing pricing requirements in proposed rule 22c-1(a)(3) aim to 
minimize NAV volatility (and related tracking error) associated with 
swing pricing to the extent possible. Swing pricing could increase the 
volatility of a fund's NAV in the short term, because NAV adjustments 
would occur when the fund's net purchases or net redemptions pass the 
fund's swing threshold. Thus, the fund's NAV would show greater 
fluctuation than would be the case in the absence of swing pricing. 
This volatility might increase tracking error (i.e., the difference in 
return based on the swung NAV compared to the fund's benchmark) during 
the period of NAV adjustment, and could make a fund's short-term 
performance deviate from the fund's benchmark to a greater degree than 
if swing pricing had not been used.\446\ Volatility and tracking error 
related to swing pricing could, therefore, result in investors 
incorrectly perceiving the short-term relative performance of a fund. 
This could potentially cause market distortions if investors were to 
incorrectly rate the performance of funds that use swing pricing 
compared to funds that do not, and shifted their invested assets from 
funds that use swing pricing to funds that do not as a result of this 
perception. Volatility and tracking error related to swing pricing also 
may activate alerts in monitoring systems that follow fund performance, 
which could in turn trigger purchases or redemptions in automated fund 
advisory services whose algorithms are driven by fund performance. 
However, we believe that the use of partial swing pricing, described 
below, would significantly reduce the performance volatility 
potentially associated with swing pricing. In addition, swing pricing 
should have a minimal effect on longer-term performance volatility and 
longer-term tracking error. Taking these considerations into account, 
we do not believe that volatility would generally be a significant 
deterrent to funds using swing pricing. We do request comment below on 
the potential effects of swing pricing on funds' performance volatility 
and any potential market distortions that could result if some funds 
adopt swing pricing but other, similarly situated funds do not.
---------------------------------------------------------------------------

    \446\ But see supra notes 440-441 and accompanying text (noting 
that swing pricing has been found to benefit fund performance over 
the long term).
---------------------------------------------------------------------------

    Proposed rule 22c-1(a)(3) envisions partial swing pricing (that is, 
a NAV adjustment would not be permitted unless net purchases or net 
redemptions exceed a threshold set by the fund and approved by the 
fund's board) and not full swing pricing (that is, a NAV adjustment any 
time the fund experiences net purchases or net redemptions). Some 
foreign funds employ full swing pricing,\447\ and there are certain 
advantages to full swing pricing (e.g., a fund using full swing pricing 
would not be required to determine an appropriate swing 
threshold).\448\ However, we believe partial swing pricing would 
generally cause lower NAV volatility than full swing pricing. The use 
of partial swing pricing also recognizes that net purchases and net 
redemptions below a certain threshold might not require a fund to trade 
portfolio assets,\449\ and therefore a NAV adjustment, and any 
associated NAV volatility, might not be appropriate if purchases and 
redemptions would not result in costs associated with asset purchases 
and sales.
---------------------------------------------------------------------------

    \447\ But see Luxembourg Swing Pricing Survey, Reports & 
Guidelines, supra note 413, at 6 (of the respondents surveyed by 
ALFI, the majority employed a partial swing approach, with only a 
select few choosing the full swing method).
    \448\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 17.
    \449\ For example, a fund may not need to sell portfolio assets 
to pay redemptions below a certain threshold if it maintains a 
certain percentage of its net assets in cash or cash equivalents.
---------------------------------------------------------------------------

    We recognize that there are other trade-offs that a fund would have 
to consider in determining to implement swing pricing. For example, 
application of a swing factor would affect all purchasing and redeeming 
shareholders equally, regardless of whether the size of an individual 
shareholder's purchases or redemptions alone would create material 
trading costs for the fund. This could cause certain shareholders to 
experience benefits or costs, relative to the other shareholders in the 
fund, that otherwise would not exist. For example, an investor who 
purchases fund shares on a day when a fund adjusts its NAV downward 
would pay less to enter the fund than if the fund had not adjusted is 
NAV on that day. And, while a small investor's redemption requests 
would not likely create significant liquidity costs for the fund on its 
own, if this investor were to redeem on the same day that the fund's 
net redemptions cross the swing threshold, his or her redemption 
proceeds would be reduced by the NAV adjustment. These concerns, 
however, are partially mitigated by the fact that shareholders could be 
assured that the same threshold level of net purchase and net 
redemption activity (as approved by the fund's board) would 
consistently trigger the use of swing pricing, unless the fund's board 
and a majority of the fund's independent directors were to approve a 
change in the fund's swing threshold.\450\ Furthermore, we believe that 
investors who purchase shares on a day that a fund adjusts its NAV 
downward would not create dilution for non-redeeming shareholders (even 
though the purchasing shareholders may be receiving a lower price than 
would be the case if the NAV was not adjusted downward). Under these 
circumstances, shareholders' purchase activity would provide liquidity 
to the fund, which could reduce the fund's liquidity costs and thereby 
could decrease the swing factor. This could potentially help redeeming 
shareholders to receive a more favorable redemption price than they 
otherwise would have if there had been less purchase activity on that 
day, but would not affect the interests of non-redeeming investors.
---------------------------------------------------------------------------

    \450\ See infra section III.F.1.f.
---------------------------------------------------------------------------

    We believe that an adequate level of transparency about swing 
pricing is critical for investors to understand the risks associated 
with investing in a particular fund. As discussed in section III.G 
below, proposed disclosure and reporting requirements regarding swing 
pricing would assist shareholders in understanding whether a particular 
fund has implemented swing pricing policies and procedures and has used 
swing pricing. We are not, however, proposing to require a fund to 
publicly disclose its swing threshold, because of concerns that certain 
shareholders may attempt to time their transactions based on this 
information,\451\ as well as

[[Page 62331]]

concerns that disclosure could be confusing or potentially misleading 
insofar as it could give an inaccurate view of funds' relative risks 
and benefits. For example, a shareholder might assume that Fund X with 
a swing threshold of 5% is inherently more risky and thus a ``worse'' 
investment than Fund Y with a swing threshold of 7% because a lower 
level of net flows would cause Fund X to adjust its NAV than Fund Y. 
But the relative performance and risks of both funds could depend on 
additional considerations, even excluding differences in the various 
market, credit, liquidity, and other risks associated with the funds' 
portfolio assets. These considerations could include the swing factors 
the funds would use to adjust their NAV and the frequency with which 
each fund would encounter net purchases or net redemptions that cross 
the fund's swing threshold. Although funds would not be required to 
disclose their swing threshold, the use of partial swing pricing as 
opposed to full swing pricing could give shareholders comfort that, 
under circumstances in which the fund is experiencing relatively low 
purchases or redemptions, the fund's NAV will likely not be adjusted.
---------------------------------------------------------------------------

    \451\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 8 (of the respondents surveyed by ALFI, the 
majority of those that used swing pricing ``were reluctant to 
disclose the level of [swing] threshold they apply . . . [and some] 
commented that the act of disclosing these details was contradictory 
to the principle of investor protection and therefore avoided 
disclosing the threshold.'' ALFI noted that ``[o]n balance it 
appears that the majority of promoters prefer not to disclose 
thresholds to ensure clients do not actively manage trades below the 
trigger level of the partial swing.'').
---------------------------------------------------------------------------

Request for Comment
    We seek comment on the general swing pricing process as 
contemplated by proposed rule 22c-1(a)(3). We seek specific comment on 
the process a fund would use to determine and review its swing 
threshold and to calculate the swing factor it would use to adjust its 
NAV, and on the proposed approval and oversight requirements associated 
with swing pricing policies and procedures, below.
     Do commenters agree that swing pricing could be a useful 
tool for U.S. registered funds in mitigating potential dilution of fund 
shareholders? Do commenters believe that dilution arising from costs 
associated with certain purchases or redemptions of fund shares is a 
significant problem that funds currently face, have historically faced 
under certain market conditions, or might be expected to face in the 
future?
     Do commenters agree that the proposed rule should require 
a fund that adopts swing pricing policies and procedures to adjust the 
fund's NAV when the fund's level of net purchases or redemptions 
exceeds the fund's swing threshold? Or should the proposed rule instead 
only require a fund that adopts swing pricing policies and procedures 
to adjust the fund's NAV when the fund's level of net redemptions 
exceeds the swing threshold? Alternatively, should the proposed rule 
permit a fund to choose whether to adopt swing pricing policies and 
procedures that would: (i) Require the fund to adjust its NAV when the 
fund's level of net purchases or redemptions exceeds the fund's swing 
threshold; or (ii) require the fund to adjust its NAV only when the 
fund's level of net redemptions exceeds the fund's swing threshold? Are 
there greater concerns about the potential for dilution associated with 
net redemptions than those associated with net purchases?
     Should a fund be permitted to use full swing pricing, as 
opposed to the partial swing pricing contemplated by the proposed rule? 
Why or why not?
     Under the proposed rule, when net purchases or net 
redemptions of a fund that has adopted swing pricing policies and 
procedures exceed the fund's swing threshold, the price that all 
purchasing or redeeming shareholders would receive for fund shares 
would be adjusted pursuant to the fund's swing pricing policies and 
procedures. Should a fund instead be permitted to exempt certain 
shareholders (for example, purchasing shareholders on days when the 
fund's share price is adjusted downward, or small shareholders whose 
purchase or redemption activity would not likely create significant 
liquidity costs for the fund) from receiving an adjusted share price on 
a day when the fund's net purchases or redemptions exceed the swing 
threshold? Why or why not?
     Would the use of purchase fees, redemption fees and/or 
liquidity fees (either separately or in combination) be a more or less 
effective means of mitigating potential dilution than swing pricing? 
Why or why not? Would the use of purchase fees, redemption fees and/or 
liquidity fees (either separately or in combination) entail burdens and 
costs that are higher or lower than the burdens and costs associated 
with swing pricing? What types of operational challenges would arise 
with swing pricing as opposed to purchase fees, redemption fees, and 
liquidity fees? Are purchase fees, redemption fees, and liquidity fees 
feasible for those funds whose shares are primarily held through third-
party intermediaries?
     Would the use of dual pricing be a more or less effective 
means of mitigating potential dilution than swing pricing? What types 
of operational challenges would arise with swing pricing vs. dual 
pricing?
     Would allowing funds to require certain investors to 
accept in-kind redemptions in certain circumstances be a more or less 
effective means of mitigation potential dilution than swing pricing in 
those circumstances?
     Do commenters agree that the swing pricing framework 
contemplated by proposed rule 22c-1(a)(3) responds as effectively as 
possible to the potential concerns associated with swing pricing? 
Specifically, we request comment on the extent to which the swing 
pricing requirements incorporated into the proposed rule would reduce 
volatility and respond to transparency-related concerns. Would any 
performance volatility that could result from swing pricing result in 
market distortions if some funds adopt swing pricing but other, 
similarly situated funds do not? Do commenters believe that the use of 
partial swing pricing, as opposed to full swing pricing, would mitigate 
concerns that the swing pricing would increase a fund's volatility? Do 
these proposed requirements also effectively respond to transparency-
related concerns associated with swing pricing, and would the proposed 
disclosure requirements regarding swing pricing also respond to 
transparency concerns? Would any alternative or additional swing 
pricing requirements more effectively respond to potential concerns 
about volatility or transparency (or any other concerns) associated 
with swing pricing?
     As proposed, rule 22c-1(a)(3) would permit, but not 
require, a fund to adopt swing pricing policies and procedures. What 
process do commenters anticipate that a fund may use to weigh the 
potential advantages and disadvantages of swing pricing in relation to 
the fund's particular circumstances and risks? Should each fund's board 
be required to determine whether swing pricing is appropriate for each 
fund? Should all funds, or a particular subset of funds (e.g., funds 
whose three-day liquid asset minimums are below a certain level, or 
whose less liquid assets are above a certain level) be required to use 
swing pricing? Do commenters expect funds would decide that swing 
pricing would be an effective anti-dilution tool, in spite of potential 
concerns about volatility or transparency (or any other potential 
concerns)?
     Proposed rule 22c-1(a)(3) would permit the person(s) 
responsible for administering a fund's swing pricing policies and 
procedures to make the

[[Page 62332]]

determination of whether the fund's level of net purchases or 
redemptions has exceeded the fund's swing threshold ``on the basis of 
information obtained after reasonable inquiry.'' Do commenters agree 
that this would be appropriate? Why or why not? Is the phrase 
``information obtained after reasonable inquiry'' clear? If not, how 
could this term be clarified within the context of the proposed rule?
     As proposed, rule 22c-1(a)(3) would require a fund to 
exclude any purchases or redemptions that are made in kind and not in 
cash when determining whether the fund's level of net purchases or net 
redemptions has exceeded the fund's swing threshold. Is this exclusion 
appropriate? Why or why not?
b. Scope of Proposed Rule
    Proposed rule 22c-1(a)(3) would apply to all registered open-end 
management investment companies, with the exception of money market 
funds and ETFs.\452\ While rule 22c-1(a) generally applies to all 
registered investment companies issuing redeemable securities,\453\ we 
believe that only open-end mutual funds (and, as discussed below, not 
UITs or ETFs) are generally susceptible to the risk that shareholder 
redemption activity could dilute the value of outstanding shares held 
by existing shareholders. And as discussed below, we believe money 
market funds, while potentially susceptible to this risk, already have 
extensive tools at their disposal to mitigate potential shareholder 
dilution.
---------------------------------------------------------------------------

    \452\ As discussed above, for purposes of the proposed 
amendments to rule 22c-1, ``exchange-traded fund'' includes an ETMF.
    \453\ Rule 2a-7 provides exemptions from rule 22c-1 for money 
market funds, to permit certain money market funds to use the 
amortized cost method and/or the penny-rounding method to calculate 
its NAV, and to permit a money market fund to impose liquidity fees 
and temporarily suspend redemptions. See rule 2a-7(c)(1)(i); rule 
2a-7(c)(2).
---------------------------------------------------------------------------

    All investment companies that fall within the scope of proposed 
rule 22e-4, with the exception of ETFs, would be permitted to use swing 
pricing under proposed rule 22c-1(a)(3), and a fund may decide to adopt 
swing pricing policies and procedures as part of the liquidity risk 
management program it would be required to implement under proposed 
rule 22e-4. Under proposed rule 22c-1(a)(3), swing pricing would be 
voluntary for funds, and some fund complexes may decide to use swing 
pricing for certain funds within the complex but not others, or 
establish different swing thresholds for different funds within the 
complex.\454\ As discussed above, funds would be required to exclude 
any purchases and redemptions that are made in kind, and not in cash, 
in determining whether the fund's level of net purchases or net 
redemptions has exceeded the fund's swing threshold.\455\ This could 
functionally limit the ability of a fund that often permits in-kind 
purchases and in-kind redemptions to use swing pricing, or discourage 
such a fund from adopting swing pricing policies and procedures, 
because the fund's level of net purchases or net redemptions as 
calculated pursuant to proposed rule 22c-1(a)(3) may never (or rarely) 
reach the fund's swing threshold as determined pursuant to the proposed 
rule.
---------------------------------------------------------------------------

    \454\ Outside the U.S., it is a common industry practice for 
funds within a fund complex each to have an individual swing 
threshold, or for some funds within a complex to use swing pricing 
while others do not. See, e.g., BlackRock Swing Pricing Paper, supra 
note 412; J.P. Morgan Asset Management, Swing pricing: The J.P. 
Morgan Asset Management Approach in the Luxembourg Domiciled SICAVs, 
JPMorgan Funds and JPMorgan Investment Funds Insight (June 2014), 
available at http://www.jpmorganassetmanagement.de/DE/dms/Swing%20Pricing%20%5bMKR%5d%20%5bIP_EN%5d.pdf (``J.P. Morgan Asset 
Management Swing Pricing Paper'').
    \455\ See supra note 439 and accompanying paragraph.
---------------------------------------------------------------------------

    We are not proposing to include closed-end investment companies, 
UITs, ETFs or money market funds within the scope of proposed rule 22c-
1(a)(3). Closed-end investment companies do not issue redeemable 
securities and therefore would not incur costs associated with 
shareholder purchase and redemption activity that would necessitate 
swing pricing. Similarly, where a UIT sponsor maintains a secondary 
market in units of a UIT series, we believe that the series is unlikely 
to ever need to use swing pricing. In addition, since UITs do not 
frequently trade their underlying securities, but instead maintain a 
relatively fixed portfolio, investor flows do not generally affect the 
portfolio, and thus purchases and sales of UIT shares would not likely 
produce dilutive effects to existing shareholders.\456\
---------------------------------------------------------------------------

    \456\ See, e.g., supra notes 136 and 141 and accompanying text.
---------------------------------------------------------------------------

    Although we believe that ETFs could experience liquidity risk and 
thus have included them within the scope of proposed rule 22e-4,\457\ 
we are proposing not to include ETFs within the scope of proposed rule 
22c-1(a)(3) because we believe--as described more fully below--that 
ETFs' purchase and redemption practices do not generally entail the 
risk of dilution as a result of authorized participants' purchase and 
redemption activity, and that swing pricing could impede the effective 
functioning of an ETF's arbitrage mechanism. Unlike mutual funds, which 
typically internalize the costs associated with purchases and 
redemptions of shares, ETFs typically externalize these costs by 
charging a fixed and/or variable fee to authorized participants who 
purchase creation units from, and sell creation units to, an ETF. The 
fixed and/or variable fees are imposed to offset both transfer and 
other transaction costs that may be incurred by the ETF (or its service 
providers), as well as brokerage, tax-related, foreign exchange, 
execution, market impact and other costs and expenses related to the 
execution of trades resulting from such transaction. The amount of 
these fixed and variable fees typically depends on whether the 
authorized participant effects transactions in kind versus in cash and 
is related to the costs and expenses associated with transaction 
effected in kind versus in cash. When an authorized participant redeems 
ETF shares by selling a creation unit to the ETF, for example, the fees 
imposed by the ETF defray the costs of the liquidity that the redeeming 
authorized participant receives, which in turn mitigates the risk that 
dilution of non-redeeming authorized participants would result when an 
ETF redeems its shares.
---------------------------------------------------------------------------

    \457\ See supra section III.A.2.
---------------------------------------------------------------------------

    In addition to our belief that ETFs' purchase and redemption 
practices would generally not entail the risk of dilution for existing 
shareholders, we are also not including ETFs within the scope of the 
proposed rule because we believe that swing pricing could impede the 
effective functioning of an ETF's arbitrage mechanism.\458\ As 
discussed above, the effective functioning of the arbitrage mechanism 
is necessary in order for an ETF's shares to trade at a price that is 
at or close to the NAV of the ETF.\459\ If an ETF were to adopt swing 
pricing policies and procedures, as conceptualized under the proposed 
rule, an authorized participant would not know whether the ETF's NAV 
would be adjusted by a swing factor on any given day and therefore may 
not be able to assess whether an arbitrage opportunity exists.\460\ The 
Commission

[[Page 62333]]

has historically considered the effective functioning of the arbitrage 
mechanism to be central to the principle that all shareholders be 
treated equitably when buying and selling their fund shares.\461\ 
Therefore, we believe that the implementation of swing pricing by an 
ETF could raise concerns about the equitable treatment of shareholders, 
to the extent that swing pricing could impede the effective functioning 
of the arbitrage mechanism.
---------------------------------------------------------------------------

    \458\ As discussed previously, ETMF market makers would not 
engage in the same arbitrage as ETF market makers because all 
trading prices of ETMF shares are linked to NAV. See supra note 32 
and accompanying text. ETMFs would charge transaction fees that 
mitigate the risk of dilution, and therefore we do not propose to 
include ETMFs within the scope of proposed rule 22c-1(a)(3).
    \459\ See, e.g., supra note 14 and accompanying text.
    \460\ See supra note 451 and accompanying paragraph (noting that 
a fund would not be required to disclose its swing threshold under 
the proposed rule).
    \461\ See, e.g., Spruce ETF Trust, et al., Investment Company 
Act Release No. 31301 (Oct. 21, 2014) [79 FR 63964 (Oct. 27, 2014)] 
(notice of application for exemptive relief) (to the extent that 
investors would have to exit at a price substantially below the NAV 
of the ETF, this would be ``contrary to the foundational principle 
underlying section 22(d) and rule 22c-1 under the Act that all 
shareholders be treated equitably when buying and selling their fund 
shares''); Precidian ETFs Trust, et al., Investment Company Act 
Release No. 31300 (Oct. 21, 2014) [79 FR 63971 (Oct. 27, 2014)] 
(notice of application for exemptive relief) (``A close tie between 
market price and NAV per share of the ETF is the foundation for why 
the prices at which retail investors buy and sell ETF shares are 
similar to the prices at which Authorized Participants are able to 
buy and redeem shares directly from the ETF at NAV. This close tie 
between prices paid by retail investors and Authorized Participants 
is important because section 22(d) and rule 22c-1 under the Act are 
designed to require that all fund shareholders be treated equitably 
when buying and selling their fund shares.'').
---------------------------------------------------------------------------

    We are also not proposing to include money market funds within the 
scope of proposed rule 22c-1(a)(3). Money market funds are subject to 
extensive requirements concerning the liquidity of their portfolio 
assets. Also, a money market fund (other than a government fund) is 
permitted to impose a liquidity fee on redemptions if its weekly liquid 
assets fall below a certain threshold, and these fees serve a similar 
purpose as the NAV adjustments contemplated by swing pricing.\462\ That 
is, money market fund liquidity fees allocate at least some of the 
costs of providing liquidity to redeeming rather than existing 
shareholders,\463\ and also generate additional liquidity to meet 
redemption requests.\464\ We therefore believe that money market funds 
already have liquidity risk management tools at their disposal that 
could accomplish comparable goals to the swing pricing that would be 
permitted under proposed rule 22c-1(a)(3).
---------------------------------------------------------------------------

    \462\ See rule 2a-7(c)(2); see also 2014 Money Market Fund 
Reform Adopting Release, supra note 85, at section III.A.
    \463\ See, e.g., 2014 Money Market Fund Reform Adopting Release, 
supra note 85, at n.139 and accompanying text.
    \464\ See id. at n.120.
---------------------------------------------------------------------------

    We also believe that the liquidity fee regime permitted under rule 
2a-7 is a more appropriate tool for money market funds to manage the 
allocation of liquidity costs than swing pricing. First, while funds 
would be able to adopt swing pricing policies and procedures at their 
discretion, rule 2a-7 requires a money market fund under certain 
circumstances to impose a 1% liquidity fee on each shareholder's 
redemption, unless the fund's board of directors (including a majority 
of its independent directors) determines that such fee is not in the 
best interests of the fund, or determines that a lower or higher fee 
(not to exceed 2%) is in the best interests of the fund.\465\ Money 
market funds also have unique minimum liquid asset requirements, and we 
believe the use of liquidity fees is appropriately tied to those 
requirements. Finally, we anticipate that open-end funds that adopt 
swing pricing policies and procedures would be required under such 
procedures to adjust their NAV on a relatively regular basis (whenever 
the fund's net purchases or net redemptions exceed the fund's swing 
threshold). In contrast, money market fund investors (particularly, 
investors in stable-NAV money market funds) are particularly sensitive 
to price volatility,\466\ and we anticipate liquidity fees will be used 
only in times of stress when money market funds' internal liquidity has 
been partially depleted. We note that some foreign jurisdictions have a 
similar conception of liquidity fees as a distinct tool separate from 
swing pricing. For example, in Europe, UCITS may use swing pricing and 
apply ``dilution levies.'' \467\ While many UCITS use swing pricing as 
a matter of normal course, dilution levies may be considered a 
liquidity risk management tool that is used in connection with stressed 
conditions.\468\
---------------------------------------------------------------------------

    \465\ See supra note 462.
    \466\ For example, retail and government money market funds are 
permitted to maintain a stable NAV, reflecting in part our 
understanding that investors in these products have a low tolerance 
for NAV volatility. See 2014 Money Market Fund Reform Adopting 
Release, supra note 85, at section III.B.3.c. Investors in floating 
NAV money market funds also could be sensitive to principal 
volatility, as we recognized in adopting requirements that all money 
market funds disclose their daily net asset value (rounded to the 
fourth decimal place) on their Web sites, and as we discussed in the 
economic analysis of the 2014 Money Market Fund Reform Adopting 
Release. See id. at section III.E.9 and section III.K.
    \467\ See, e.g., BlackRock Fund Structures Paper, supra note 30, 
at 6; see also supra note 422 and accompanying and following text 
(discussing redemption fees that are currently permitted under rule 
22c-2 and noting that, while redemption fees could mitigate dilution 
arising from redemption activity, implementing a fee requires 
coordination with the fund's service providers, which could entail 
operational complexity).
    \468\ See BlackRock Fund Structures Paper, supra note 30, at 6.
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Request for Comment
    We seek comment on the scope of proposed rule 22c-1(a)(3).
     Do commenters agree that the proposed rule should apply to 
all registered open-end management investment companies except money 
market funds and open-end ETFs?
     Do commenters agree that the risk of investor dilution is 
low for closed-end investment companies and UITs, and thus closed-end 
investment companies and UITs should not be included within the scope 
of proposed rule 22c-1(a)(3)?
     Do commenters agree that the risk of investor dilution is 
low for ETFs, whether ETFs purchase and redeem in cash or in kind? Why 
or why not? Do commenters agree that swing pricing could adversely 
affect the effective functioning of an ETF's arbitrage mechanism? Why 
or why not? Regardless of these considerations, should ETFs be 
permitted to use swing pricing, and do commenters anticipate that ETFs 
would use swing pricing if the scope of proposed rule 22c-1(a)(3) were 
expanded to include ETFs?
     If the scope of the proposed rule were expanded to include 
ETFs, are there any swing pricing operational considerations specific 
to ETFs that we should address? For example, if an ETF were to adopt 
swing pricing, how should we address any shareholder fairness 
implications that could result if certain authorized participants were 
to transact in cash and others were to transact in kind on a day when 
the fund swings its NAV? Should ETFs be permitted to use swing pricing 
in addition to imposing transaction fees on authorized participants, or 
as an alternative to such fees? Should we address implications of the 
proposed rule on exemptive relief that has been granted to existing 
ETFs? Should we also consider the implications of the proposed rule on 
an ETF that operates as a share class of a fund that also offers mutual 
fund share classes, or on an ETF that operates as a feeder fund 
investing in a master fund alongside mutual fund feeder funds?
     We seek comment on how the utilization of swing pricing by 
an ETF could affect the capital markets, in particular, market-making 
in the ETF. If the scope of the rule were expanded to include ETFs, 
would market makers and other market participants that contribute to 
ETF market-making be less willing to do so if it were unclear when an 
ETF that has adopted swing pricing policies and procedures would adjust 
its NAV, and to what extent swing pricing would affect the ETF's end-
of-day NAV?

[[Page 62334]]

     The proposed definition of ``exchange-traded fund'' in 
rule 22c-1 would include ETMFs. While no ETMF has been launched yet, if 
an ETMF were to begin operations pursuant to applicable exemptive 
relief, it would arrange for an independent third party to disseminate 
the intraday indicative value of the ETMF's shares, which an investor 
would use to estimate the number of shares to buy or sell based on the 
dollar amount in which the investor wants to transact.\469\ To what 
extent would a NAV adjustment effected by swing pricing make an 
investor's estimate less accurate, given that such adjustment would not 
be reflected in the intraday indicative value of the ETMF's shares 
disseminated during the trading day?
---------------------------------------------------------------------------

    \469\ See ETMF Notice, supra note 15.
---------------------------------------------------------------------------

     Do commenters agree that money market funds already have 
liquidity risk management tools at their disposal that could accomplish 
comparable goals to swing pricing, and that the liquidity fee regime 
permitted under rule 2a-7 is a more appropriate tool for money market 
funds to manage the allocation of liquidity costs than swing pricing? 
Would there be any reason to extend the scope of proposed rule 22c-
1(a)(3) to floating NAV money market funds?
c. Determining the Fund's Swing Threshold
    Under proposed rule 22c-1(a)(3), a fund's swing pricing policies 
and procedures must provide that the fund is required to adjust its NAV 
once the level of net purchases or net redemptions from the fund has 
exceeded a set, specified percentage of the fund's net asset value 
known as the ``swing threshold.'' \470\ A fund would be required to 
adopt policies and procedures for determining its swing threshold,\471\ 
and as discussed below, the swing threshold and any changes thereto 
must be approved by the fund's board of directors.\472\ In specifying 
its swing threshold, a fund would be required to consider:
---------------------------------------------------------------------------

    \470\ Proposed rule 22c-1(a)(3)(i)(A). Under the proposed rule, 
``swing threshold'' would be defined as ``the amount of net 
purchases into or net redemptions from a fund, expressed as a 
percentage of the fund's net asset value, that triggers the 
initiation of swing pricing.'' Proposed rule 22c-1(a)(3)(v)(D). We 
request comment on this definition at the end of this section 
III.F.1.c.
    \471\ Proposed rule 22c-1(a)(3)(i)(B).
    \472\ See infra section III.F.1.f.
---------------------------------------------------------------------------

    [cir] The size, frequency, and volatility of historical net 
purchases or net redemptions of fund shares during normal and stressed 
periods;
    [cir] The fund's investment strategy and the liquidity of the 
fund's portfolio assets;
    [cir] The fund's holdings of cash and cash equivalents, as well as 
borrowing arrangements and other funding sources; and
    [cir] The costs associated with transactions in the markets in 
which the fund invests.\473\
---------------------------------------------------------------------------

    \473\ Proposed rule 22c-1(a)(3)(i)(B).
     These factors overlap significantly with factors that we 
understand are commonly considered by funds that use swing pricing 
in other jurisdictions, in order to determine a fund's swing 
threshold. For example, the Luxembourg Swing Pricing Survey, Reports 
& Guidelines provides that factors influencing the determination of 
the swing threshold ordinarily include: (i) Fund size; (ii) type and 
liquidity of securities in which the fund invests; (iii) costs (and 
hence, the dilution impact) associated with the markets in which the 
fund invests; and (iv) investment manager's investment policy and 
the extent to which the fund can retain cash (or near cash) as 
opposed to always being fully invested). See Luxembourg Swing 
Pricing Survey, Reports & Guidelines, supra note 413, at 14.
---------------------------------------------------------------------------

    In order to effectively mitigate possible dilution arising in 
connection with shareholder purchase and redemption activity, a fund's 
swing threshold should generally reflect the estimated point at which 
net purchases or net redemptions would trigger the fund's investment 
adviser to trade portfolio assets in the near term, to a degree or of a 
type that may generate material liquidity or transaction costs for the 
fund. As discussed below, we believe that a consideration of the 
factors set forth above would permit a fund to estimate this point. The 
liquidity or transaction costs associated with purchase or redemption 
activity can dilute the value of existing shareholders' interests in 
the fund, and the purpose of swing pricing is to lessen this potential 
dilution. Trading assets to meet purchase or redemption requests is not 
in and of itself an indication that a fund will incur material 
liquidity or transaction costs. For example, trading smaller levels of 
very liquid assets would likely not produce significant costs to the 
fund. However, trading portfolio assets to a significant degree, or 
trading relatively less liquid assets within a short time frame in 
order to invest proceeds from purchases or satisfy redemption requests, 
could generate material costs to the fund that could dilute the value 
of fund shares held by existing investors.
    We believe that evaluating the factors that proposed rule 22c-
1(a)(3) would require a fund to consider in specifying its swing 
threshold would assist a fund in determining what level of net 
purchases or net redemptions would generally lead to a trade of 
portfolio assets that would result in material costs to the fund. 
Assessing the size, frequency, and volatility of historical net 
purchases and net redemptions of fund shares would permit a fund to 
determine its typical levels of net purchases and net redemptions and 
the levels the fund could expect to encounter during periods of unusual 
market stress, as well as the frequency with which the fund could 
expect to see periods of unusually high purchases or redemptions. We 
believe that comparing the fund's historical flow patterns with the 
fund's investment strategy, the liquidity of the fund's portfolio 
holdings, the fund's holdings of cash and cash equivalents and 
borrowing arrangements and other funding sources, and the costs 
associated with transactions in the markets in which the fund invests 
would allow a fund to predict what levels of purchases and redemptions 
would result in material costs under a variety of scenarios.
    The first three factors that proposed rule 22c-1(a)(3)(i)(B) would 
require a fund to consider in specifying the fund's swing threshold 
correspond with certain of the factors a fund would be required to 
consider in assessing its liquidity risk.\474\ This is because 
evaluating a fund's liquidity risk, or the risk that the fund could not 
meet expected and reasonably foreseeable requests to redeem its shares 
without materially affecting the fund's NAV,\475\ is a similar exercise 
to determining the fund's swing threshold (which, as discussed above, 
should generally reflect the estimated point at which net purchases or 
net redemptions would trigger the fund's investment manager to trade 
portfolio assets in the near term, to a degree or of a type that may 
generate material liquidity or transaction costs for the fund). For 
this reason, we believe that the issues a fund would consider in 
assessing the extent to which the (i) size, frequency, and volatility 
of historical purchases and redemptions of fund shares during normal 
and stressed periods, (ii) the fund's investment strategy and portfolio 
liquidity, and (iii) the fund's holdings of cash and cash equivalents, 
borrowing arrangements and other funding sources would affect the 
fund's liquidity risk also are relevant when a fund determines its 
swing

[[Page 62335]]

threshold. These issues are discussed in detail above.\476\
---------------------------------------------------------------------------

    \474\ See proposed rule 22e-4(b)(2)(iii)(A)(1), proposed rule 
22e-4(b)(2)(iii)(B), proposed rule 22e-4(b)(2)(iii)(D) (requiring a 
fund to consider, in assessing its liquidity risk, the ``size, 
frequency, and volatility of historical purchases and redemptions of 
fund shares during normal and stressed periods,'' the fund's 
``investment strategy and liquidity of portfolio assets,'' and the 
fund's ``holdings of cash and cash equivalents, as well as borrowing 
arrangements and other funding sources,'' respectively).
    \475\ See proposed rule 22e-4(a)(7).
    \476\ See supra sections III.C.1.a, III.C.1.b, and III.C.1.d.
---------------------------------------------------------------------------

    In assessing the fourth factor, the costs associated with 
transactions in the markets in which the fund invests, a fund may wish 
to consider, as applicable, market impact costs \477\ and spread costs 
\478\ that the fund typically incurs when it trades its portfolio 
assets (or assets with comparable characteristics if data concerning a 
particular portfolio asset is not available to the fund). A fund also 
may wish to consider, as applicable, the transaction fees and charges 
that the fund typically is required to pay when it trades portfolio 
assets.\479\ These could include brokerage commissions and custody 
fees, as well as other charges, fees, and taxes associated with 
portfolio asset purchases or sales (for example, transfer taxes and 
repatriation costs for certain foreign securities, or transaction fees 
associated with portfolio investments in other investment companies).
---------------------------------------------------------------------------

    \477\ See supra note 415.
    \478\ See supra note 416.
    \479\ A fund would be required to take transaction fees and 
charges into account when determining the swing factor that would be 
used to adjust the fund's NAV when the level of net purchases or net 
redemptions from the fund has exceeded the fund's swing threshold. 
Proposed rule 22c-1(a)(3)(i)(D)(1). See infra note 493 for a 
discussion of the proposed definition of ``transaction fees and 
charges.''
---------------------------------------------------------------------------

    We understand that because proposed rule 22c-1(a)(3) does not 
specify a minimum ``floor'' for a fund's swing threshold, a fund could 
set a swing threshold representing a very low level of net purchases or 
net redemptions. This could result in the fund effectively practicing 
full swing pricing (that is, adjusting the fund's NAV whenever there is 
any level of net purchases or net redemptions) instead of partial swing 
pricing. However, we do not anticipate that a fund would generally wish 
to set a very low swing threshold, because we believe that a fund would 
not want to incur the increased NAV volatility associated with full (or 
nearly full) swing pricing. We also are not currently proposing a swing 
threshold floor because we believe that different levels of net 
purchases and net redemptions would create a risk of dilution for funds 
with different strategies, shareholder bases, and other liquidity-
related characteristics, and thus it would be difficult to determine a 
swing threshold floor that would be appropriate across the scope of 
funds that would be permitted to use swing pricing.\480\
---------------------------------------------------------------------------

    \480\ We note that, in Europe, there are no across-the-board 
swing threshold floors applicable to UCITS that use swing pricing.
---------------------------------------------------------------------------

    We recognize that requiring a fund to adopt a swing threshold could 
create the potential for shareholder gaming behavior because a fund's 
shareholders could attempt to time their purchases and redemptions 
based on the likelihood that a fund would or would not adjust its NAV. 
However, we do not think that potential gaming is a significant 
concern, because it would be difficult for shareholders to determine 
when the fund's net purchases or net redemptions cross the swing 
threshold. As discussed above, a fund would not be required to publicly 
disclose its swing threshold.\481\ Also, funds are not required to 
disclose their daily net flows and do not usually do so.\482\ For a 
shareholder to effectively ``game'' the swing pricing, it would have to 
know the daily flows on the day that shareholder was purchasing or 
redeeming and those flows would have to not materially change after the 
shareholder placed its order, all of which may be unlikely. 
Accordingly, even if a fund were to reveal its swing threshold, it may 
be difficult for shareholders to determine when the fund's net 
purchases or net redemptions exceed the swing threshold. We note that, 
to the extent a fund does decide to disclose its swing threshold, we 
believe it would not be appropriate for a fund to disclose it 
selectively to certain investors (e.g., to only disclose the fund's 
swing threshold to institutional investors), as we believe this could 
assist certain groups of shareholders in strategically timing purchases 
and redemptions of fund shares, potentially disadvantaging shareholders 
who do not know the fund's swing threshold.\483\
---------------------------------------------------------------------------

    \481\ See supra paragraph accompanying note 451.
    \482\ However, as proposed earlier this year, a fund would be 
required to disclose flow information on proposed Form N-PORT 
monthly, and information contained on reports for the last month of 
each fiscal quarter would be made public. See infra note 561.
    \483\ Like selective disclosure of fund portfolio holdings, we 
believe that selective disclosure of a fund's swing threshold could 
facilitate fraud and have adverse ramifications for a fund's 
investors if certain investors are given the opportunity to use this 
information to their advantage to the detriment of other investors. 
See, e.g., Disclosure Regarding Market Timing and Selective 
Disclosure of Portfolio Holdings, Investment Company Act Release No. 
26418 (Apr. 16, 2004) [69 FR 22300 (Apr. 23, 2004)] (discussing harm 
that could result from selective disclosure of fund portfolio 
holdings and adopting amendments to Form N-1A that would--among 
other things--require funds to disclose their policies and 
procedures with respect to the disclosure of their portfolio 
securities and any ongoing arrangements to make available 
information about their portfolio securities).
---------------------------------------------------------------------------

Request for Comment
    We request comment on the definition of ``swing threshold'' set 
forth in proposed rule 22c-1(a)(3) and the process a fund would use to 
determine its swing threshold.
     Is the definition of ``swing threshold,'' as set forth in 
proposed rule 22c-1(a)(3) appropriate and clear? If not, how could this 
definition be clarified or made more effective within the context of 
the proposed rule?
     Should a fund be permitted to adopt two swing thresholds--
one for net redemptions and one for net purchases? Would this be more 
operationally difficult than adopting one swing threshold that would be 
used for net redemptions as well as net purchases, and if so, why?
     Should any of the proposed factors not be required to be 
considered by a fund in determining and reviewing its swing threshold? 
Should any be modified? Are there any additional factors, besides the 
proposed factors, that a fund should be required to consider? Should we 
set a minimum floor for a fund's swing threshold (e.g., one percent, or 
some other percentage, of the fund's net asset value) to prevent a fund 
from setting a very low swing threshold? If so, what should it be and 
why?
     Do commenters agree that the swing threshold requirements 
under proposed rule 22c-1(a)(3) would not raise significant concerns 
regarding the potential for shareholder gaming behavior, because it 
would be difficult for shareholders to determine when the fund's net 
purchases or net redemptions cross the swing threshold? If commenters 
believe that the swing pricing framework contemplated by proposed rule 
22c-1(a)(3) would raise significant concerns regarding the potential 
for shareholder gaming behavior, how could these concerns best be 
alleviated?
d. Periodic Review of a Fund's Swing Threshold
    Proposed rule 22c-1(a)(3) would require a fund's swing pricing 
policies and procedures to include policies and procedures providing 
for the periodic review, no less frequently than annually, of the 
fund's swing threshold.\484\ In conducting such review, a fund would be 
required to consider the factors included in proposed rule 22c-
1(a)(3)(i)(B).\485\ Any change to the fund's swing threshold, including 
those deemed appropriate as a result of this review would be deemed to 
be a material change to the fund's swing pricing policies and 
procedures that must be approved by the fund's

[[Page 62336]]

board.\486\ Beyond specifying certain factors that a fund would be 
required to consider in reviewing its swing threshold, proposed rule 
22c-1(a)(3) does not include prescribed review procedures, nor does it 
specify the required risk review period or incorporate specific 
developments that a fund should consider as part of its review. A fund 
may wish to adopt procedures specifying that the swing threshold will 
be reviewed more frequently than annually (i.e., semi-annually or 
monthly), and/or specifying any circumstances that would prompt ad-hoc 
review of the fund's swing threshold in addition to the periodic review 
required by the proposed rule (as well as the process for conducting 
any ad-hoc reviews). Like a fund's liquidity risk review procedures, we 
believe that funds should generally consider procedures for evaluating 
market-wide, and fund-specific developments affecting each of the 
proposed rule 22c-1(a)(3)(i)(B) factors in developing comprehensive 
procedures for reviewing a fund's swing threshold.\487\
---------------------------------------------------------------------------

    \484\ Proposed rule 22c-1(a)(3)(i)(C).
    \485\ Id.
    \486\ Proposed rule 22c-1(a)(3)(ii)(A) (``The fund's board of 
directors, including a majority of directors who are not interested 
persons of the fund, shall approve . . . any material change to the 
[fund's swing pricing] policies and procedures (including any change 
to the fund's swing threshold).'').
    \487\ See supra section III.C.2.a.
---------------------------------------------------------------------------

Request for Comment
    We request comment on the process a fund would use to review its 
swing threshold.
     Are there certain procedures that we should require, and/
or on which we should provide guidance, regarding a fund's periodic 
review of its swing threshold? Should we expand our guidance on the 
market-wide, and fund-specific developments that a fund's swing 
threshold review procedures should cover?
     Do commenters agree that a fund that adopts swing pricing 
policies and procedures should be required to review its swing 
threshold at least annually? Do commenters anticipate that a fund that 
adopts swing pricing procedures would voluntarily choose to review its 
swing threshold any more frequently than annually? Alternatively, 
should a fund be required to review its swing threshold any more or 
less frequently than annually?
e. Calculating the Swing Factor the Fund Will Use To Adjust Its NAV
    Under proposed rule 22c-1(a)(3), a fund's swing pricing policies 
and procedures would be required to provide that the fund must adjust 
its NAV by an amount designated as the ``swing factor'' each time the 
fund's net purchases or net redemptions have exceeded the fund's swing 
threshold.\488\ A fund's swing pricing policies and procedures would be 
required to specify how the swing factor to be used to adjust the 
fund's NAV will be determined.\489\ As discussed in more detail below, 
the swing factor would be the amount, expressed as a percentage of the 
fund's net asset value, that takes into account any near-term costs 
expected to be incurred by the fund as a result of net purchases or net 
redemptions that occur on the day the swing factor is used to adjust 
the fund's NAV.\490\ It also must take into account information about 
the value of assets purchased or sold by the fund to satisfy net 
purchases or net redemptions that occur on the day the swing factor is 
used to adjust the fund's NAV (if that information would not be 
reflected in the current NAV of the fund computed on that day).\491\
---------------------------------------------------------------------------

    \488\ Proposed rule 22c-1(a)(3)(i)(A). Under the proposed rule, 
``swing factor'' would be defined as ``the amount, expressed as a 
percentage of the fund's net asset value and determined pursuant to 
the fund's swing pricing procedures, by which a fund adjusts its net 
asset value when the level of net purchases into or net redemptions 
from the fund has exceeded the fund's swing threshold.'' Proposed 
rule 22c-1(a)(3)(v)(B). We request comment on this definition at the 
end of this section III.F.1.e.
    \489\ Proposed rule 22c-1(a)(3)(i)(D).
    \490\ Id.
    \491\ Id.
---------------------------------------------------------------------------

    We anticipate that, because these considerations could vary 
depending on the facts and circumstances, the swing factor that a fund 
would determine appropriate to use in adjusting its NAV also could 
vary. We therefore believe that procedures for determining the swing 
factor generally should detail how each of the factors a fund would be 
required to consider under the proposed rule would assist the fund in 
calculating the swing factor. Below we provide examples of methods that 
a fund may wish to consider employing in calculating the swing factor.
    We are proposing rule 22c-1(a)(3) to provide funds with a tool to 
mitigate the potentially dilutive effects of shareholder purchase and 
redemption activity, and the factors a fund would be required to 
consider in determining its swing factor are meant to enhance a fund's 
ability to estimate the costs associated with purchase and redemption 
activity that could dilute the value of the existing shareholders' 
interests in the fund. These costs include both market-related costs 
(that is, market impact costs and spread costs \492\) and transaction 
fees and charges associated with the fund trading portfolio 
assets.\493\ The proposed swing factor determination requirement 
incorporates an assessment of multiple sources of potential dilution, 
in order to cause a fund to take all relevant considerations into 
account when making this determination.
---------------------------------------------------------------------------

    \492\ See supra notes 415-416.
    \493\ ``Transaction fees and charges'' would be defined in 
proposed rule 22c-1(a)(3) to mean ``brokerage commissions, custody 
fees, and any other charges, fees, and taxes associated with 
portfolio asset purchases and sales.'' Proposed rule 22c-
1(a)(3)(v)(E). We request comment on the proposed definition of this 
term at the end of this section III.F.1.e.
---------------------------------------------------------------------------

    Specifically, proposed rule 22c-1(a)(3)(i)(D)(1) would require a 
fund's policies and procedures for determining the swing factor to take 
into account any near-term costs that are expected to be incurred as a 
result of net purchases or net redemptions that occur on the day the 
swing factor is used to adjust the fund's NAV, including any market 
impact costs, spread costs, and transaction fees and charges arising 
from asset purchases or asset sales in connection with those purchases 
or redemptions, as well as any borrowing-related costs associated with 
satisfying those redemptions.\494\ While a fund may be able to 
determine some of these costs with precision (e.g., transaction fees 
and charges, and borrowing-related costs), we understand that other 
costs may only be able to be estimated by the fund, and the swing 
factor therefore would represent an estimate of the combined near-term 
costs associated with purchase or redemption activity. A fund may wish 
to consider certain of the factors it would evaluate for purposes of 
classifying the liquidity of its portfolio positions \495\ in order to 
assess the costs associated with purchasing or selling portfolio 
assets. For example, a fund could use a portfolio asset's average daily 
trading volume \496\ in determining the portion of a particular 
portfolio holding that it could sell each day without market impact. 
Likewise, a fund

[[Page 62337]]

could refer to bid-ask spreads for a particular asset \497\ to estimate 
the purchase price that the fund would pay for that asset. Indications 
of decreasing liquidity (for example, widening bid-ask spreads) would 
likely indicate increased market-related costs associated with certain 
portfolio assets. We anticipate that the particular transaction fees 
and charges that a fund would likely consider would include brokerage 
commissions and custody fees, as well as other charges, fees, and taxes 
associated with portfolio asset purchases or sales (for example, 
transfer taxes and repatriation costs for certain foreign securities, 
or transaction fees associated with portfolio investments in other 
investment companies). If a fund were to draw on a line of credit, or 
otherwise borrow money, in order to pay redemptions, this borrowing 
activity could result in costs to the fund that, like the costs 
associated with purchasing and selling portfolio assets, could dilute 
the value of the shares held by existing shareholders.\498\ We are 
therefore proposing to require that a fund consider these costs, along 
with the costs associated with investing the proceeds from net 
purchases or assets sales to satisfy net redemptions, in determining 
the swing factor.
---------------------------------------------------------------------------

    \494\ The proposed costs that a fund would be required consider 
in determining its swing factor overlap significantly with costs 
that we understand funds that use swing pricing in other 
jurisdictions commonly consider when determining their swing factor. 
For example, the Luxembourg Swing Pricing Survey, Reports & 
Guidelines provides that the following should be considered when 
determining the swing factor: (i) The bid-offer spread of a fund's 
underlying portfolio assets, (ii) net broker commissions paid by the 
fund, (iii) custody transaction charges, (iv) fiscal charges (e.g., 
stamp duty and sales tax), (v) any initial charges or exit fees 
applied to trades in underlying investment funds, and (vi) any swing 
factors or dilution amounts or spreads applied to underlying 
investment funds or derivative instruments. See Luxembourg Swing 
Pricing Survey, Reports & Guidelines, supra note 413, at 7, 15-16.
    \495\ See supra section III.B.2.
    \496\ See proposed rule 22e-4(b)(2)(ii)(B).
    \497\ See proposed rule 22e-4(b)(2)(ii)(D).
    \498\ See supra section III.C.5.a.
---------------------------------------------------------------------------

    The proposed rule specifies that the determination of a fund's 
swing factor must take into account the near-term costs expected to be 
incurred by the fund as a result of net purchases or net redemptions 
that occur on the day the swing factor is used to adjust the fund's NAV 
(emphasis added). The phrase ``near-term'' is meant to reflect that 
investing proceeds from net purchases or satisfying net redemptions 
could involve costs that may not be incurred by the fund for several 
days. For example, a fund could use cash to satisfy redemptions, which 
may result in minimal costs to the fund, but rebalancing the fund's 
portfolio to rebuild cash balances in the next several days could cause 
the fund to incur costs that would be borne by the existing 
shareholders. The rule text specifies that the costs to be considered 
are those that are expected to be incurred by the fund as a result of 
the net purchase or net redemption activity that occurred on the day 
the swing factor is used to adjust the fund's NAV; this specification 
is designed to help ensure that the costs to be taken into account are 
those that are directly related to the purchases or redemptions at 
issue. Thus, while the term ``near-term costs'' does not envision a 
precise number of days, we believe that, in context, this term would 
not likely encompass costs that are significantly removed in time from 
the purchases or redemptions at issue.
    Under proposed rule 22c-1(a)(3)(i)(D)(2), a fund's policies and 
procedures for determining the swing factor would be required to 
consider information about the value of assets purchased or sold by the 
fund as a result of the net purchases or net redemptions that occur on 
the day the swing factor is used to adjust the fund's NAV, if that 
information would not be reflected in the current NAV of the fund 
computed that day. This factor is meant to reflect the fact that a 
fund's NAV will generally not reflect changes in holdings of the fund's 
portfolio assets and changes in the number of the fund's outstanding 
shares until the first business day following the fund's receipt of the 
shareholder's purchase or redemption requests.\499\ Thus, the price 
that a shareholder receives for his or her purchase or sale of fund 
shares customarily does not take into account market-related costs that 
arise when the fund trades portfolio assets in order to meet 
shareholder purchases or redemptions. But these costs could dilute the 
value of fund shares held by existing shareholders and thus should be 
considered in determining the fund's swing factor.
---------------------------------------------------------------------------

    \499\ See supra note 412 and accompanying text.
---------------------------------------------------------------------------

    A fund could take a variety of approaches to determining its swing 
factor, in light of the fact that the relevant factors to be used in 
determining the swing factor could vary, as well as the likelihood that 
the persons administering the fund's swing pricing policies and 
procedures may (to the extent that net purchases or net redemptions 
cannot be ascertained or reasonably estimated until close to the time 
that the fund must strike its NAV) have limited time to determine the 
swing factor each day the fund's net purchases or net redemptions 
exceed the swing threshold. For example, a fund may wish to set a 
``base'' swing factor, and adjust it as appropriate if certain aspects 
required to be considered in determining the swing factor deviate from 
a range of pre-determined norms (for example, if spread costs generally 
exceed a certain pre-determined level). Alternatively or additionally, 
we request comment below on the extent to which a fund that uses swing 
pricing may wish to incorporate into its policies and procedures a 
formula or algorithm that includes the factors required to be 
considered for determining the swing factor. We also understand that it 
may be difficult to determine certain costs (particularly, certain 
market impact costs and spread costs) with precision, while other 
factors that a fund would be required to consider in determining its 
swing factor may be able to be ascertained more exactly (for example, 
transaction fees and charges, borrowing-related costs, and the value of 
assets purchased or sold by the fund as a result of net purchases or 
net redemptions that occur on the day the swing factor is used to 
adjust the fund's NAV). For this reason, in establishing policies and 
procedures for determining the swing factor, a fund may wish to 
incorporate the use of reasonable estimates in these policies and 
procedures, to the extent the fund determines necessary or 
appropriate.\500\
---------------------------------------------------------------------------

    \500\ We understand that funds that use swing pricing in other 
jurisdictions may use reasonable estimates, such as those discussed 
in this paragraph, when determining their swing factor. See, e.g., 
Luxembourg Swing Pricing Survey, Reports & Guidelines, supra note 
413, at 15.
---------------------------------------------------------------------------

    We are not proposing to require an upper limit on the swing factor 
that a fund would be permitted to use, on account of the difficulty of 
establishing an appropriate across-the-board limit that would permit 
funds with different investment strategies, under all market 
conditions, to determine a swing factor that reflects the costs 
associated with the potential shareholder purchase or redemption 
activity. These costs could vary widely across funds and under 
different market conditions, and we do not wish to limit the extent to 
which swing pricing could mitigate the dilution of existing 
shareholders. We believe that the lack of an upper limit on a fund's 
swing factor would not result in inappropriately high NAV adjustments, 
because the swing factor would be required to be determined with 
reference to the factors discussed above, and the policies and 
procedures for determining the swing factor would be required to be 
approved by the fund's board, which has an obligation to act in the 
interests of the fund.\501\
---------------------------------------------------------------------------

    \501\ See infra section III.F.1.f and note 517.
---------------------------------------------------------------------------

    We do recognize that if we were to require an upper limit on the 
amount that a fund would be permitted to adjust its NAV, this could 
mitigate volatility, tracking error, and transparency concerns that 
could arise from the use of swing pricing.\502\ A required swing factor 
limit would act as an upper bound on the extent to which a fund would 
be able to adjust its NAV and the NAV volatility resulting from this 
adjustment. Also, capping the swing factor that a fund would be 
permitted to use would provide transparency

[[Page 62338]]

regarding the maximum amount that a shareholder could expect the share 
price that he or she receives upon purchase or redemption to be 
adjusted on account of swing pricing. However, as discussed above, we 
believe that the use of partial swing pricing could significantly 
reduce the performance volatility potentially associated with swing 
pricing,\503\ and that proposed disclosure and reporting requirements 
regarding swing pricing will enhance transparency surrounding the use 
of swing pricing.\504\
---------------------------------------------------------------------------

    \502\ See supra section III.F.1.a.
    \503\ See supra notes 447-449 and accompanying text.
    \504\ See supra paragraph accompanying note 451.
---------------------------------------------------------------------------

    Although we are not proposing to require an upper limit on the 
swing factor that a fund would be permitted to use, a fund would be 
permitted to adopt an upper limit on the swing factor it would apply, 
as part of the fund's swing pricing policies and procedures.\505\ We 
understand that certain foreign domiciled funds that use swing pricing 
voluntarily limit the level of the swing factor to be applied, with 
such limits generally ranging from 1%-3%.\506\ These funds usually 
disclose the swing factor upper limit in the fund's offering 
documents.\507\ To the extent that a fund chooses to adopt a swing 
factor upper limit as part of its swing pricing policies and 
procedures, this limit would be required to be approved by the fund's 
board (as part of the fund's swing pricing policies and procedures, 
which are subject to board approval).\508\ Likewise, a change to a 
fund's swing factor upper limit would be deemed to be a material change 
to the fund's swing pricing policies and procedures that would require 
board approval.\509\ As fund directors have an obligation to act in the 
interests of the fund,\510\ we expect that a fund board approving a 
swing factor upper limit would generally determine that capping the 
swing factor would not unduly limit the extent to which swing pricing 
could mitigate the potentially dilutive effects of shareholder purchase 
and redemption activity. Also, because the upper limit would affect the 
swing factor a fund would use to adjust its NAV when net purchases or 
net redemptions exceed the fund's swing threshold, the determination of 
the upper limit must take into account the same factors the fund would 
be required to consider in determining the swing factor.\511\
---------------------------------------------------------------------------

    \505\ See proposed rule 22c-1(a)(3)(i)(D).
    \506\ Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 7.
    \507\ Id.
    \508\ See infra section III.F.1.f.
    \509\ See id.; proposed rule 22c-1(a)(3)(ii)(A).
    \510\ See infra note 517 and accompanying text.
    \511\ Proposed rule 22c-1(a)(3)(i)(D).
---------------------------------------------------------------------------

    We request comment below on whether to require an upper limit on 
the swing factor that a fund would be permitted to use, and if so, the 
appropriate level of such limit. We also request comment on whether a 
fund should be permitted to adopt an upper limit on the swing factor it 
would apply, as part of the fund's swing pricing policies and 
procedures.
Request for Comment
    We request comment on the definition of ``swing factor'' set forth 
in proposed rule 22c-1(a)(3) and the process a fund would use to 
calculate the swing factor that the fund would use to adjust its NAV.
     Is the definition of ``swing factor,'' as set forth in 
proposed rule 22c-1(a)(3) appropriate and clear? If not, how could this 
definition be clarified or made more effective within the context of 
the proposed rule?
     We request comment on each of the considerations that a 
fund would be required to take into account in determining the swing 
factor, pursuant to proposed rule 22c-1(a)(3)(i)(D). Would these 
considerations reflect the estimated or actual costs associated with 
purchasing or selling portfolio assets in order to meet purchases or 
redemptions of fund shares? Should any aspect of proposed rule 22c-
1(a)(3)(i)(D) not be required to be considered by a fund in calculating 
the swing factor? Should any of the considerations be modified, and is 
the definition of ``transaction fees and charges,'' as set forth in the 
proposed rule, appropriate and clear? Instead of codifying certain 
considerations that a fund must take into account in determining the 
swing factor, should we instead provide guidance on factors a fund may 
wish to consider in calculating the swing factor? Instead of using a 
swing factor to adjust a fund's NAV, is there an alternate means by 
which a fund should be permitted to adjust its NAV to mitigate 
potential dilution stemming from purchase or redemption activity (e.g., 
pricing its assets on the basis of bid prices, as opposed to pricing 
using the mean of bid and asked prices)?
     We request comment on the approaches commenters believe a 
fund may take to determine its swing factor. For example, do commenters 
anticipate that a fund would set a ``base'' swing factor, and adjust it 
as appropriate if certain elements required to be considered in the 
swing factor deviate from a range of pre-determined norms? Do 
commenters believe that it would be feasible and likely that a fund may 
wish to use a formula or algorithm approach for determining the swing 
factor? What other approaches to determining the swing factor do 
commenters anticipate that a fund would be likely to take?
     Do commenters agree that the Commission should not require 
an upper limit on the swing factor that a fund would be permitted to 
use? Why or why not? If not, what upper limit would be appropriate 
(e.g., 2%, or some other limit), and why? Should we specify different 
limits for different types of funds or investment strategies?
     Do commenters agree that a fund should be permitted to 
adopt an upper limit on the swing factor it would apply, as part of the 
fund's swing pricing policies and procedures? Why or why not? To the 
extent that a fund does adopt an upper limit on the swing factor it 
would apply, should the fund be required to disclose this upper limit 
to shareholders? Should each fund that adopts swing pricing policies 
and procedures be required, not only permitted, to adopt an upper limit 
on the swing factor it would apply?
f. Approval and Oversight of Swing Pricing Policies and Procedures
    Proposed rule 22c-1(a)(3)(ii)(A) would require a fund that has 
determined to engage in the use of swing pricing to obtain initial 
approval of its swing pricing policies and procedures (including the 
fund's swing threshold and any swing factor upper limit specified under 
the fund's swing pricing policies and procedures) from the fund's 
board, including a majority of independent directors. The proposed rule 
also would require a fund's board, including a majority of independent 
directors, to approve any material change to the fund's swing pricing 
policies and procedures (including any change to the fund's swing 
threshold, a change to any swing factor upper limit, or any decision to 
suspend or terminate the fund's swing pricing policies and 
procedures).\512\ However, a fund's board would not be required to 
manage the administration of the fund's swing pricing policies and 
procedures. The proposed rule instead provides that a fund's board is 
required to designate the fund's investment adviser or officers 
responsible for administering the fund's swing pricing policies and 
procedures and determining the swing factor that would be used to 
adjust the fund's NAV when the fund's swing threshold is breached.\513\ 
This proposed designation requirement tasks administration for the 
fund's swing pricing policies and procedures to persons who we believe 
would be in a better position to evaluate

[[Page 62339]]

fund flows on a real-time basis than the fund's board.
---------------------------------------------------------------------------

    \512\ Proposed rule 22c-1(a)(3)(ii)(A).
    \513\ Proposed rule 22c-1(a)(3)(ii)(B).
---------------------------------------------------------------------------

    The proposed oversight requirements for a fund's board and its 
independent directors reflect the historical role that a fund's board 
and independent directors have held with respect to issues involving 
valuation. A fund's board historically has held significant 
responsibility regarding valuation- and pricing-related matters,\514\ 
as well as in approving valuation and compliance-related policies and 
procedures.\515\ Additionally, in the past we have stated that a fund's 
compliance policies and procedures, which must be approved by the 
fund's board (including a majority of independent directors), should 
include procedures for the pricing of portfolio securities and fund 
shares.\516\
---------------------------------------------------------------------------

    \514\ See, e.g., section 2(a)(41)(B) of the Investment Company 
Act and rule 2a-4 thereunder (when market quotations are not readily 
available for a fund's portfolio securities, the Investment Company 
Act requires the fund's board of directors to determine, in good 
faith, the fair value of the securities); rule 2a-7(c)(1)(i) and 
rule 2a-7(g)(1)(i)(A)-(C) (a stable NAV money market fund that 
qualifies as a retail or government money market fund may use the 
amortized cost method of valuation to compute the current share 
price provided, among other things, the board of directors believes 
that the amortized cost method of valuation fairly reflects the 
market-based NAV and does not believe that such valuation may result 
in material dilution or other unfair results to investors or 
existing shareholders).
    \515\ See, e.g., ASR 118, supra note 423 (a board, consistent 
with its responsibility to determine the fair value of each issue of 
restricted securities in good faith, determines the method of 
valuing each issue of restricted securities in the company's 
portfolio and the actual valuation calculations may be made by 
persons acting pursuant to the board's direction; the board must 
continuously review the appropriateness of the method used in 
valuing each issue of security in the company's portfolio); Rule 
38a-1 Adopting Release, supra note 90, at text accompanying n.46 
(stating that rule 38a-1 requires fund directors to approve written 
compliance policies and procedures that require each fund to 
``provide a methodology or methodologies by which the fund 
determines the fair value of the portfolio security'').
    \516\ See Rule 38a-1 Adopting Release, supra note 90, at nn.39-
47 and accompanying text.
---------------------------------------------------------------------------

    We believe that the proposed board and independent director 
approval requirements would help ensure that a fund establishes and 
implements swing pricing policies and procedures that are in the best 
interests of all the fund's shareholders. Because fund directors have 
an obligation to act in the interests of the fund,\517\ a board 
approving swing pricing policies and procedures might do so under the 
premise that such policies and procedures would not unduly disadvantage 
any particular group of shareholders, and that any disadvantages that 
could affect certain shareholders would generally be outweighed by the 
benefits to the fund as a whole. Furthermore, the proposed approval 
requirements would serve to assure shareholders that the same level of 
net purchase or net redemption activity would consistently trigger the 
use of swing pricing, unless the fund's board and a majority of the 
fund's independent directors were to approve a change in the fund's 
swing threshold.
---------------------------------------------------------------------------

    \517\ See, e.g., Role of Independent Directors of Investment 
Companies, Investment Company Act Release No. 24082 (Oct. 14, 1999) 
[64 FR 59826 (Nov. 3, 1999)] (discussing directors' duties of care 
and loyalty).
---------------------------------------------------------------------------

    We believe that shareholders' interests would be best served by 
requiring the majority of a fund's independent directors, along with 
the fund's board, to approve the fund's swing pricing policies and 
procedures. As we have stated before, a fund's independent directors 
serve to guard investors' interests.\518\ The decision to implement 
swing pricing, and determining the terms of swing pricing policies and 
procedures to be adopted by a fund, could occasionally produce 
conflicts for the fund and its adviser, and we believe that the 
proposed independent director approval requirement would help ensure 
that a fund's use of swing pricing would operate to the benefit of the 
fund's shareholders (even if this may not be in the best interest of 
the fund's adviser). For example, a fund's adviser could be reluctant 
to implement swing pricing to the extent it may make the fund's 
performance stray too far from, or appear more volatile than, the 
fund's benchmark, which could impact the ability of the fund to attract 
new investments. Approval of swing pricing policies and procedures by a 
majority of a fund's independent directors could make certain that the 
fund would use swing pricing in circumstances in which the board has 
determined swing pricing would serve shareholders' best interests, even 
if these interests may conflict with the adviser's.
---------------------------------------------------------------------------

    \518\ See id.
---------------------------------------------------------------------------

    While a fund's board would be required to approve the fund's swing 
pricing policies and procedures, the board would be required to 
designate the fund's adviser or officers responsible for the 
administration of these policies and procedures, including 
responsibility for determining a swing factor that would be used to 
adjust the fund's NAV when the fund's swing threshold is breached.\519\ 
It is currently common industry practice for foreign domiciled funds 
that use swing pricing to appoint a committee to administer the fund's 
swing pricing operations.\520\ A fund's board may wish to consider 
requiring the fund's swing pricing policies and procedures to be 
administered by a committee, and to specify the officers or functional 
areas that comprise the committee (taking into account any possible 
conflicts for the fund and the adviser related to swing pricing). The 
persons or committee tasked with swing pricing oversight may wish to 
meet periodically to determine the swing factor(s) the fund would use 
in a variety of circumstances, taking into account the factors and 
considerations discussed above in section III.F.1.e. A fund may wish to 
consider delineating the frequency with which these persons would meet 
in its policies and procedures; for example, a fund's policies and 
procedures might specify that these persons shall meet periodically, 
such as monthly or quarterly, or more frequently if market conditions 
require.\521\ Because a fund may decide to adopt swing pricing policies 
and procedures as part of its liquidity risk management program, the 
fund's board may wish to provide that the persons (or functional areas) 
in charge of implementing these policies and procedures overlap with 
the persons (or functional areas) in charge of administering the 
liquidity risk management program.
---------------------------------------------------------------------------

    \519\ Proposed rule 22c-1(a)(3)(ii)(B).
    \520\ See, e.g., BlackRock Swing Pricing Paper, supra note 412; 
J.P. Morgan Asset Management Swing Pricing Paper, supra note 454; 
Franklin Templeton Investments, Swing pricing: Investor protection 
against fund dilution, last visited Apr. 15, 2015, available at 
http://www.franklintempleton.co.uk/downloadsServlet?docid=hjs17mth 
(``Franklin Templeton Investments Swing Pricing Paper'').
    \521\ See, e.g., BlackRock Swing Pricing Paper, supra note 412 
(swing pricing committee meets at least monthly); J.P. Morgan Asset 
Management Swing Pricing Paper, supra note 454 (swing pricing 
committee meets at least quarterly); Franklin Templeton Investments 
Swing Pricing Paper, supra note 520 (swing pricing committee meets 
at least quarterly).
---------------------------------------------------------------------------

    Proposed rule 22c-1(a)(3) would require the determination of the 
swing factor to be reasonably segregated from the portfolio management 
function of the fund. For example, if a committee were tasked with 
determining the swing factor(s) the fund would use in a variety of 
circumstances, we believe it would be appropriate for the fund's 
portfolio manager to provide inputs to be used by that committee in 
determining the swing factor, but not to decide how those inputs would 
be employed in the swing factor determination. We believe that, in 
determining the swing factor, independence from portfolio management is 
important because the incentives of portfolio managers may not always 
be consistent with determining a swing factor that most effectively 
prevents dilution of existing

[[Page 62340]]

shareholders' interests in the fund. For example, a fund's portfolio 
manager could have an incentive to determine a swing factor that is as 
low as possible, because the portfolio manager could be reluctant for 
the fund's short-term performance to appear relatively poor compared to 
other funds and the fund's benchmark.\522\
---------------------------------------------------------------------------

    \522\ See supra note 446 and accompanying text; infra section 
III.F.2.b.
---------------------------------------------------------------------------

    A fund's board would not be required to approve each swing factor 
that would be used to adjust the fund's NAV when the fund's swing 
threshold is breached, although the board would be required to approve 
the policies and procedures for determining the swing threshold. This 
approval framework--along with the proposed segregation of the swing 
factor determination from the portfolio management function--is meant 
to strike a balance between ensuring appropriate board oversight over 
the policies and procedures for determining the swing factor, and 
independence with respect to the swing factor determination process, 
while recognizing that it may not be practicable for a fund's directors 
to be directly involved in the process of determining each swing 
factor. Because the persons administering the fund's swing pricing 
policies and procedures may have limited time to determine each swing 
factor to the extent that net purchases or net redemptions cannot be 
ascertained or reasonably estimated until close to the time that the 
fund must strike its NAV, we do not believe that it would generally be 
operationally feasible for a fund's board to approve each swing factor. 
Also, we do not believe that requiring a fund's board to approve each 
swing factor would be consistent with boards' historical oversight 
role.
Request for Comment
    We seek comment on the proposed approval and oversight requirements 
associated with a fund's swing pricing policies and procedures.
     Do commenters agree that a fund's board, including a 
majority of the fund's independent directors, should be required to 
approve the fund's swing pricing policies and procedures (including the 
fund's swing threshold, and any swing factor upper limit specified 
under the fund's swing pricing policies and procedures), and any 
material changes thereto? Would these approval requirements ensure that 
a fund establishes and implements swing pricing policies and procedures 
that are in the interests of all of the fund's shareholders? Do 
commenters agree that the proposed independent director approval 
requirement would ensure that a fund's use of swing pricing benefits 
the fund's shareholders? Should the board be provided the option to not 
use swing pricing in a particular situation when swing pricing would 
have been warranted pursuant to a fund's swing pricing policies and 
procedures?
     Do commenters agree that it would be appropriate to 
require a fund's board to designate the fund's adviser or officers 
responsible for the administration of swing pricing policies and 
procedures, including responsibility for determining a swing factor 
that would be used to adjust the fund's NAV when the fund's swing 
threshold is breached? Do commenters agree that the determination of 
the swing factor should be reasonably segregated from the portfolio 
management of the fund? Would this pose any difficulty for particular 
types of entities, for example funds managed by small advisers? Is 
there a better way to prevent conflicts between the portfolio manager's 
incentives and the process of determining a swing factor that most 
effectively prevents dilution of existing shareholders' interests in 
the fund? What officers (or functional areas) of a fund do commenters 
anticipate a fund's board would select to administer the fund's swing 
pricing policies and procedures, and do commenters anticipate that 
these persons (or functional areas) would overlap with the 
administrators of a fund's liquidity risk management program?
     Do commenters agree that a fund's board should not be 
required to approve each swing factor that would be used to adjust the 
fund's NAV when the fund's swing threshold is breached, although the 
board would be required to approve the policies and procedures for 
determining the swing threshold? Why or why not?
     Should the Commission provide guidance as to the 
circumstances in which a possible misapplication of a firm's swing 
pricing policy could result in a material NAV error? For example, 
should the Commission explain whether an error would occur when the 
fund makes estimates under its swing pricing policy that is applied 
correctly, but the information, such as final shareholder flows, 
subsequently changes to a material degree? Should funds be required to 
have specific policies and procedures to address possible NAV errors?
g. Recordkeeping Requirements
    Proposed rule 22c-1(a)(3) would require a fund to maintain a 
written copy of swing pricing policies and procedures adopted by the 
fund that are in effect, or at any time within the past six years were 
in effect, in an easily accessible place.\523\ Additionally, we are 
proposing to expand current rule 31a-2(a)(2), which requires a fund to 
keep records evidencing and supporting each computation of the fund's 
NAV,\524\ to reflect the NAV adjustments based on a fund's swing 
pricing policies and procedures. Specifically, a fund that adopts swing 
pricing policies and procedures would be required to preserve records 
evidencing and supporting each computation of an adjustment to the 
fund's NAV based on the fund's swing pricing policies and 
procedures.\525\ For each NAV adjustment, such records should generally 
include, at a minimum, the fund's unswung NAV, the level of net 
purchases or net redemptions that the fund encountered (or estimated) 
that triggered the application of swing pricing, the swing factor that 
was used to adjust the fund's NAV, and relevant data supporting the 
calculation of the swing factor. The records required under the 
proposed amendments to rule 31a-2(a)(2) would be required to be 
preserved for at least six years from the date that the NAV adjustment 
occurred, the first two years in an easily accessible place.\526\ The 
proposed six-year period for a fund to maintain a copy of its swing 
pricing policies and procedures in proposed rule 22c-1(a)(3) 
corresponds with the six-year recordkeeping period currently 
incorporated in rule 31a-2(a)(2). We believe that consistency in these 
retention periods is appropriate in order to permit a fund or 
Commission staff to review historical instances of NAV adjustments 
effected pursuant to the fund's swing pricing policies and procedures 
in light of the policies and procedures that were actually in place at 
the time the NAV adjustments occurred.
---------------------------------------------------------------------------

    \523\ Proposed rule 22c-1(a)(3)(iii).
    \524\ See rule 31a-2(a)(2) (every registered investment company 
shall . . . ``[p]reserve for a period not less than six years from 
the end of the fiscal year in which any transactions occurred, the 
first two years in an easily accessible place . . . all schedules 
evidencing and supporting each computation of net asset value of the 
investment company shares'').
    \525\ See proposed amendment to rule 31a-2(a)(2).
    \526\ See id.
---------------------------------------------------------------------------

    These proposed recordkeeping requirements would help our 
examination staff to ascertain whether a fund that has adopted swing 
pricing policies and procedures has done so in compliance with the 
requirements of proposed rule 22c-1(a)(3). They also would help our 
staff to determine whether a fund is taking into account

[[Page 62341]]

the factors required to be considered under proposed rule 22c-
1(a)(3)(i)(D) in calculating the swing factor.
Request for Comment
    We seek comment on the proposed recordkeeping requirements 
associated with a fund's swing pricing policies and procedures.
     Do commenters agree that the proposed recordkeeping 
requirements are appropriate? Are there any additional records 
associated with a fund's swing pricing policies and procedures that a 
fund should be required to keep? Should rule 31a-2(a)(2) be amended to 
specifically require a fund to keep records evidencing the fund's 
consideration of each of the factors required to be considered in 
determining each swing factor used to adjust the fund's NAV? Do 
commenters agree that the six-year record retention period in proposed 
rule 22c-1(a)(3) and the proposed amendments to rule 31a-2(a)(2) is 
appropriate?
2. Guidance on Operational Considerations Relating To Swing Pricing
a. Operational Processes Associated With Swing Pricing
    Swing pricing requires the net cash flows for a fund to be known, 
or estimated using information obtained after reasonable inquiry,\527\ 
before determining whether to adjust the fund's NAV on any particular 
day (and, if the fund's swing factor varies depending on its net flows, 
to determine the swing factor that the fund will use to adjust its 
NAV). A fund using swing pricing would need to monitor shareholder 
trades or flows of money in and out of the fund for purposes of 
determining whether the fund's net purchases or net redemptions would 
give rise to an NAV adjustment under its swing pricing policies and 
procedures.\528\ Because the deadline by which a fund must strike its 
NAV may precede the time that a fund receives final information 
concerning daily net flows from the fund's transfer agent, a fund may 
wish to arrange for interim feeds of flows from its transfer agent or 
distributor in order to reasonably estimate its daily net flows for 
swing pricing purposes. A fund also may wish to implement formal or 
informal policies to encourage effective communication channels between 
the persons charged with implementing the fund's swing pricing policies 
and procedures, the fund's investment professionals, and personnel 
charged with day-to-day pricing responsibility (to the extent different 
persons comprise each of these groups).
---------------------------------------------------------------------------

    \527\ See proposed rule 22c-1(a)(3)(i)(A) (permitting the 
person(s) responsible for administering the fund's swing pricing 
policies and procedures to use ``information obtained after 
reasonable inquiry'' in determining whether the fund's level of net 
purchases or net redemptions has exceeded the fund's swing 
threshold).
    \528\ We have previously stated that a fund should adopt 
compliance policies and procedures that provide for monitoring 
shareholder trades or flows of money in and out of the fund for 
purposes of detecting market timing activity. See Rule 38a-1 
Adopting Release, supra note 90, at nn.66-69 and accompanying text.
---------------------------------------------------------------------------

    In addition, there are unique operational considerations applicable 
to funds with multiple share classes. A fund with multiple share 
classes that uses swing pricing should consider the net purchase or net 
redemption activity of all share classes in determining whether its 
swing threshold has been breached.\529\ Like a fund with only one share 
class, the purchase or redemption activity of certain shareholders (or 
a class of shareholders) within a multi-share-class fund could dilute 
the value of the existing shareholders' (or class of shareholders') 
interests in the fund.
---------------------------------------------------------------------------

    \529\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 21 (discussing swing pricing considerations 
relevant to funds with multiple share classes).
---------------------------------------------------------------------------

b. Performance Reporting and Calculation of NAV-Based Performance Fees
    For purposes of calculating the financial highlights and 
performance data to be included in a fund's prospectus and shareholder 
reports,\530\ a fund using swing pricing should consider its NAV at the 
beginning and end of a reporting period, as well as its ``ending 
redeemable value'' on a particular day, to be its NAV as adjusted 
pursuant to its swing pricing policies and procedures (as applicable). 
Because a fund using swing pricing to adjust its NAV would, under 
certain circumstances, use the adjusted NAV as the price that 
shareholders receive for the purchase or redemption of shares, the 
adjusted NAV is the ``net asset value calculated on the last business 
day before the first day of each [performance] period'' and the ``price 
calculated on the last business day of each [performance] period,'' as 
referenced in the instructions to Item 13 (``Financial Highlights 
Information'') of Form N-1A. For the same reason, the adjusted NAV is 
the ``ending redeemable value'' of the fund's shares, as referenced in 
Item 26 (``Calculation of Performance Data'') of Form N-1A. Likewise, 
because rule 482 under the Securities Act references Form N-1A with 
respect to performance data,\531\ a fund using swing pricing also 
should use its adjusted NAV when calculating the standardized 
performance data to be included in the fund's advertising materials.
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    \530\ See Items 13, 26 of Form N-1A.
    \531\ Rule 482(d), 17 CFR 230.482.
---------------------------------------------------------------------------

    If a fund using swing pricing pays NAV-based performance fees to 
its adviser,\532\ the fund's NAV for purposes of calculating 
performance fees should be the NAV as adjusted pursuant to its swing 
pricing policies and procedures (as applicable). As discussed above, a 
fund's NAV used for performance reporting purposes would be the NAV as 
adjusted pursuant to swing pricing policies and procedures. We believe 
that the reported NAV and the NAV used for calculating performance fees 
(to the extent used) should be consistent in order to promote 
transparency regarding any performance fees paid to the fund's adviser, 
and to reflect the fact that the fund's performance likely has been 
affected by the transaction costs associated with shareholders' 
purchases and redemptions.
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    \532\ Section 205(a)(1) of the Investment Advisers Act generally 
restricts an investment adviser from entering into, extending, 
renewing, or performing an investment advisory contract that 
provides for compensation to the adviser based on a share of capital 
gains on, or capital appreciation of, the funds of a client.
    However, there are certain exemptions to this general 
restriction. See section 205(b)(2) of the Investment Advisers Act 
(providing that the section 205(a)(1) restriction does not apply to 
an investment adviser charging performance fees to a registered 
investment company if the fee is structured to comply with four 
requirements: (i) The fee is based on the investment company's NAV; 
(ii) the NAV is averaged over a ``specified period''; (iii) the fee 
increases or decreases proportionately with the investment company's 
``investment performance'' over the specified period; and (iv) the 
investment company's investment performance relates to the 
``investment record'' of an ``appropriate index'' of securities 
prices or another measure of investment performance as specified by 
the Commission by rule, regulation, or order); see also rule 205-3 
under the Investment Advisers Act 17 CFR 275.205-3 (providing an 
exemption to the section 205(a)(1) restriction and permitting an 
investment adviser to charge performance fees if the adviser's 
client is a ``qualified client'' as defined in rule 205-3(d)(1) 
(generally, a client having at least $1 million under management 
with the adviser immediately after entering into an advisory 
contract with the adviser, or a client the adviser reasonably 
believed had a net worth of more than $2 million at the time the 
contract was entered into)).
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c. Fund Merger Considerations
    When funds merge, and at least one of the merging funds uses swing 
pricing, there are a number of considerations relating to swing pricing 
that the funds generally should consider when determining the terms of 
the merger.\533\

[[Page 62342]]

The boards of merging funds should consider whether a swing factor 
should be used to adjust the value of the absorbed fund's assets, if 
the absorbing fund uses swing pricing and it is applied on the day of 
the merger.\534\ Although the manager of the absorbing fund may need to 
sell certain of the assets of the absorbed fund following the merger 
(e.g., for consistency with the absorbing fund's investment strategy, 
or to comply with certain regulatory requirements \535\), we do not 
believe that the NAV of either the absorbing fund or the absorbed fund 
should be adjusted to counter any dilution resulting from these sales, 
because costs associated with these sales would result from the merger 
and would not be caused by shareholders' purchase or redemption 
activity. In light of potential complications arising when funds using 
swing pricing merge, the boards of merging funds should consider 
whether to temporarily suspend a fund's swing pricing policies and 
procedures ahead of the merger.\536\ Under proposed rule 22c-1(a)(3), 
such suspension would be considered a material change to the fund's 
swing pricing policies and procedures and thus could be accomplished 
only by vote of the fund's board, including a majority of the fund's 
independent directors.\537\ In any event, the swing threshold of the 
absorbing fund should be reviewed following a merger. Likewise, the 
persons in charge of administering the absorbing fund's swing pricing 
policies and procedures should consider the effects of the merger when 
considering what swing factor would be appropriate to use if the fund's 
swing threshold is breached following the merger.
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    \533\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 18-19 (discussing swing pricing considerations 
relevant to fund mergers).
    \534\ Directors overseeing fund mergers must take into account 
rule 17a-8 under the Investment Company Act (which sets forth 
requirements for mergers of affiliated investment companies), if 
applicable, as well as any relevant state law requirements. Rule 
17a-8 requires a board, including a majority of the independent 
directors, to consider the relevant facts and circumstances with 
respect to a merger of affiliated funds and determine that the 
merger is in the best interests of each of the merging funds and 
that the interests of the shareholders of both the fund being 
acquired and the acquiring fund are not being diluted. We expect 
swing pricing considerations could be relevant to this 
determination.
     See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 18-19 (discussing issues associated with the use 
of swing pricing to adjust the value of the absorbed fund's assets).
    \535\ See, e.g., supra paragraph accompanying notes 296-298.
    \536\ See supra note 534.
    \537\ See proposed rule 22c-1(a)(3)(ii)(A).
---------------------------------------------------------------------------

d. Request for Comment
    We seek comment on the Commission's guidance discussed above 
regarding certain operational and accounting considerations relating to 
swing pricing. Do commenters generally agree with the Commission's 
guidance in this section III.F.2?
    Along with this general request for comment on the Commission's 
guidance, we request specific comment on a number of individual 
guidance items.
     To what extent is it currently typical for a fund to 
receive interim feeds of flows from its transfer agent or distributor, 
and do these interim feeds generally permit a fund to reasonably 
estimate its net flows at the end of a business day? To what extent do 
financial intermediaries or other third parties provide interim feeds 
of flows?
     Should the Commission amend the proposed rule or provide 
guidance regarding pricing errors in the context of swing pricing? How 
do commenters anticipate that a fund using swing pricing may wish to 
update its pricing policies to provide clarity as to the application of 
swing pricing to the fund's policies concerning pricing errors? What 
policies do commenters anticipate that a fund's pricing policies could 
incorporate with respect to circumstances in which the fund's NAV was 
swung (or not swung) based on an estimate of net purchases or net 
redemptions that was later determined to be incorrect, but was based on 
information obtained after reasonable inquiry pursuant to proposed rule 
22c-1(a)(3)(i)(A)?
     Do commenters agree that it is appropriate to require that 
a fund calculate performance fees based on the fund's NAV as adjusted 
pursuant to the fund's swing pricing policies and procedures (as 
applicable)? Why or why not? We specifically request comment on whether 
calculating a performance fee based on a fund's adjusted NAV could be 
viewed as inappropriately increasing or decreasing the fee (e.g., 
depending on whether the NAV was adjusted at the beginning or end of a 
measurement period).
     Besides the issues discussed in this section, what 
specific operational challenges do funds anticipate associated with 
swing pricing? Do commenters anticipate there would be circumstances in 
which a fund's structure (e.g., a fund with multiple share classes, as 
discussed in section III.F.2.a) would cause swing pricing to be 
particularly complex to implement?
     With respect to a fund with multiple share classes that 
uses swing pricing, do commenters agree that the fund should consider 
the net purchase or net redemption activity of all share classes in 
determining whether its swing threshold has been breached? Or should a 
fund instead be permitted to consider the net purchase or redemption 
activity of each share class separately (which potentially could lead 
to NAV adjustments for certain share classes and not others, or 
different NAV adjustments for each share class, on the same day)? If 
so, should we amend rule 18f-3 to expressly allow this? What 
operational or other difficulties could result from permitting a fund 
with multiple share classes that uses swing pricing to consider the net 
purchase or redemption activity of each share class separately, and to 
potentially make different NAV adjustments for each share class on the 
same day?
     Besides the issues discussed in this section, are there 
any other operational issues associated with swing pricing about which 
we should provide guidance?
3. Master-Feeder Funds
    With respect to master-feeder funds, we believe the use of swing 
pricing would generally be appropriate only with respect to the level 
(or levels) of the fund structure that actually transact in underlying 
portfolio assets as a result of net purchase or redemption 
activity.\538\ For example, if shareholders of a feeder fund were to 
redeem feeder fund shares, the feeder fund would redeem from the master 
fund (and not sell portfolio assets) in order to pay redeeming 
shareholders. Likewise, if investors were to purchase shares of a 
feeder fund, the feeder fund would invest in the master fund with cash 
received from the feeder fund purchasing shareholders, and the master 
fund would invest this cash in portfolio assets. Thus, a feeder fund 
would not be permitted to use swing pricing under the proposed 
rule.\539\ The master fund, on the other hand, would potentially need 
to purchase portfolio assets in order to invest purchasing 
shareholders' cash (as transferred through the feeder fund), or sell 
portfolio assets in order to pay redemption proceeds in exchange for 
feeder fund shares. Thus, to the extent that net purchases into or 
redemptions from the master fund (by one or more feeder funds, or any 
other investors in the master fund) exceed the fund's swing threshold, 
the swing factor should thus be applied to the master fund's NAV.\540\ 
In this example, because

[[Page 62343]]

the feeder fund invests in the master fund, the master fund's adjusted 
NAV would indirectly affect the NAV of the feeder fund.
---------------------------------------------------------------------------

    \538\ See Luxembourg Swing Pricing Survey, Reports & Guidelines, 
supra note 413, at 21-22 (discussing swing pricing considerations 
relevant to master-feeder fund structures).
    \539\ See proposed rule 22c-1(a)(3)(iv).
    \540\ Proposed rule 22c-1(a)(3) clarifies that, although feeder 
funds would not be permitted to use swing pricing, master funds 
would be permitted to do so. See proposed rule 22c-1(a)(3)(iv).
---------------------------------------------------------------------------

Request for Comment
    We seek comment on the application of swing pricing to master-
feeder funds. Do commenters generally agree that feeder funds should 
not be permitted to use swing pricing? Why or why not?
4. Financial Statement Disclosure Regarding Swing Pricing
    The application of swing pricing would impact a fund's financial 
statements and disclosures in a number of areas, including a fund's 
statement of assets and liabilities, statement of changes in net 
assets, financial highlights and the notes to the financial statements. 
Currently, funds are required by Regulation S-X rule 6-04.19 \541\ to 
state the NAV on the statement of assets and liabilities. Similar to 
``ending redeemable value'' discussed in performance reporting in 
section III.F.2.b above, for purposes of reporting the NAV in a fund's 
statement of assets and liabilities, a fund using swing pricing should 
consider its ``purchase price'' or ``redemption price'' on a particular 
day to be its NAV as adjusted pursuant to its swing pricing policies 
and procedures. We believe that disclosure of this price is important, 
as it allows investors to understand the value they would receive had 
they purchased or redeemed shares on the financial reporting period end 
date. Different from redemption fees, which may be charged to specific 
shareholders based on the length of time that the shareholder has owned 
shares of the fund, all shareholders in a fund would receive the NAV as 
adjusted pursuant to its swing pricing policies and procedures. As all 
shareholders would receive the NAV as adjusted pursuant to the fund's 
swing pricing policies and procedures, we are proposing to amend 
Regulation S-X rule 6-04.19 to require funds to disclose the NAV as 
adjusted pursuant to its swing pricing policies and procedures (if 
applicable).\542\
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    \541\ See 17 CFR 210.6-04.19.
    \542\ See proposed amendments to 210.6-04.19. We also propose 
amending Regulation S-X rule 6-02 to add a definition of swing 
pricing. Swing pricing would be defined as having the meaning given 
in proposed rule 22c-1(a)(3)(v)(C). See proposed 210.6-02(g).
---------------------------------------------------------------------------

    Swing pricing also would impact disclosures of capital share 
transactions included in a fund's statement of changes in net assets. A 
fund using swing pricing to adjust its NAV would make payments for 
shares redeemed and receive payments for shares purchased net of the 
swing pricing adjustment. For example, if a fund had an unadjusted NAV 
of $10.00 on a given day and the adjusted NAV pursuant to the fund's 
swing pricing policies and procedures was $9.90, shareholders would 
transact at $9.90 multiplied by the number of shares purchased or 
redeemed. The $0.10 difference between the adjusted and unadjusted NAV 
would be retained by the fund to offset transaction and liquidity 
costs. This $0.10 difference per share should be accounted for as a 
capital transaction and not included as income to the fund, because it 
is designed to reflect the near-term transactional and liquidity costs 
incurred as a result of satisfying shareholder transactions. Funds are 
required by Regulation S-X rule 6-09.4(b) to disclose the number of 
shares and dollar amounts received for shares sold and paid for shares 
redeemed.\543\ In this example, Regulation S-X would require the dollar 
amount disclosed to be based on the $9.90 per share that was actually 
used for shareholder transactions.
---------------------------------------------------------------------------

    \543\ See 17 CFR 210.6-09.4(b).
---------------------------------------------------------------------------

    Consistent with presentation of the impact of swing pricing on the 
statement of changes in net assets and performance reporting described 
in section III.F.2.b, a fund should include the impact of swing pricing 
in its financial highlights.\544\ The per share impact of amounts 
retained by the fund due to swing pricing should be included in the 
fund's disclosures of per share operating performance.\545\ 
Accordingly, we are proposing to amend Item 13 of Form N-1A to 
specifically require the per share impact of amounts related to swing 
pricing to be disclosed below the total distributions line in a fund's 
financial highlights. In order to properly reconcile with the adjusted 
NAV reported on the statement of assets and liabilities, we also are 
proposing to clarify that ``Net Asset Value, Beginning of Period'' and 
``Net Asset Value, End of Period'' are each the NAV as adjusted 
pursuant to the fund's swing pricing policies and procedures, if 
applicable.
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    \544\ See Item 13 of Form N-1A.
    \545\ ASC 946-205-50-7 requires specific per share information 
to be presented in the financial highlights for registered 
investment companies, including disclosure of the per share amount 
of purchase premiums, redemption fees, or other capital items.
---------------------------------------------------------------------------

    Similarly, a fund's calculation of total return should use the NAV 
as adjusted pursuant to a fund's swing pricing policies and procedures 
as the redemption price calculated on the last business day of the 
period. We are proposing to amend Instructions 3(a) and 3(d) to Item 13 
of Form N-1A to explicitly require funds to assume the NAV calculated 
on the last business day before the first day of each period and the 
price calculated on the last business day of each period shown should 
each be adjusted for the impact of swing pricing, if applicable. We 
believe that it is important for investors to understand the impact of 
swing pricing on the return that they would have received for the 
period presented in the fund's financial statements. We also are 
proposing to amend instructions to Item 26 regarding calculation of 
performance data to clarify that ``ending redeemable value'' should 
assume a value adjusted pursuant to swing pricing policies and 
procedures.
    Finally, we are proposing to require funds that adopted swing 
pricing policies and procedures to state in a note to their financial 
statements the general methods used in determining whether the fund's 
net asset value per share will swing, whether the fund's net asset 
value per share has swung during the year, and a general description of 
the effects of swing pricing on the fund's financial statements.\546\ 
We believe this information would be useful in further understanding 
the impact of swing pricing on a fund.
---------------------------------------------------------------------------

    \546\ See proposed amendments to rule 6-03(n) of Regulation S-X.
---------------------------------------------------------------------------

Request for Comment
    We seek comment on the financial statement disclosure 
considerations relating to swing pricing. Do commenters generally agree 
with the Commission's guidance discussed above regarding financial 
statement disclosure, as well as the proposed amendments to Regulation 
S-X?
    Along with this general request for comment, we request specific 
comment on a number of individual issues discussed above.
     Should the Commission allow a fund to disclose the total 
return calculation on an unadjusted NAV basis as a supplement to the 
total return calculation in the financial highlights table, and/or in a 
fund's advertising materials?
     Should the dollar amount of purchases and redemptions 
disclosed in a fund's financial statements be presented based on 
unadjusted NAV, with the dollar amount retained by the fund because of 
swing pricing separately disclosed? Alternatively, should the dollar 
amount of purchases and redemptions be presented as the actual value 
received by the fund or paid to shareholders, which would include the 
impact of swing pricing? Why or why not?

[[Page 62344]]

     Should funds be required to disclose only the NAV as 
adjusted pursuant to a fund's swing pricing policies and procedures on 
the statement of assets and liabilities? Alternatively, should funds be 
required to disclose both unadjusted NAV and the NAV as adjusted 
pursuant to a fund's swing pricing policies and procedures on the 
statement of assets and liabilities?
     Should we require additional disclosures in notes to fund 
financial statements regarding swing pricing? If so, what additional 
information should be disclosed? Do commenters believe that any of the 
proposed disclosures should be modified? Are any of the proposed 
disclosures unnecessary? Why or why not?
     Do commenters have any accounting or auditing concerns in 
connection with swing pricing? If so, please describe specific 
concerns.

G. Disclosure and Reporting Requirements Regarding Liquidity Risk and 
Liquidity Risk Management

    Investors receiving relevant information about the operations of a 
fund and the principal risks associated with an investment in a 
particular fund are important in facilitating investor choice regarding 
the appropriate investments for their risk tolerances. Investors in 
open-end funds generally expect funds to pay redemption proceeds 
promptly following their redemption requests based, in part, on 
representations made by funds in their disclosure documents. 
Accordingly, information about how redemptions will be made and when 
investors will receive payment is significant to investors. Currently, 
funds are not expressly required to disclose how they manage the 
liquidity of their assets, and therefore limited information is 
available regarding whether the liquidity of a fund's portfolio 
securities corresponds with its liquidity needs related to redemption 
obligations. In addition to the proposed amendments to Form N-1A and 
Regulation S-X discussed above regarding financial reporting related to 
swing pricing, we are proposing amendments to Form N-1A, Regulation S-
X, proposed Form N-PORT and proposed Form N-CEN to improve the ability 
of investors, the Commission staff, and other potential users to 
analyze and better understand a fund's redemption practices, its 
management of liquidity risks, and how liquidity risk management can 
affect shareholder redemptions. We are also proposing amendments to 
Form N-1A regarding disclosure of swing pricing.
1. Proposed Amendments to Form N-1A
a. Redemption of Fund Shares
    Form N-1A is used by funds to register under the Investment Company 
Act and to register offerings of their securities under the Securities 
Act. In particular, Form N-1A requires funds to describe their 
procedures for redeeming fund shares, including restrictions on 
redemptions and any redemption charges.\547\ Disclosure regarding other 
important redemption information, such as the timing of payment of 
redemption proceeds to fund shareholders, varies across funds as today 
there are no specific requirements for this disclosure under the form. 
Some funds disclose that they will redeem shares within a specific 
number of days after receiving a redemption request, other funds 
disclose that they will honor such requests within seven days (as 
required by section 22(e) of the Act), and others provide no specific 
time periods. Some funds disclose differences in the timing of payment 
of redemption proceeds based on the distribution channel through which 
the fund shares are redeemed, while others do not.
---------------------------------------------------------------------------

    \547\ See Item 11(c) of Form N-1A.
---------------------------------------------------------------------------

    We believe that requiring consistency in disclosures and increasing 
the level of information provided among funds regarding the timing of 
payment after shareholder redemption of fund shares would give 
investors fuller information about their investments. Improvements are 
needed to enhance the ability of investors to evaluate and compare 
redemption policies across funds and to understand when a fund will 
actually pay redemption proceeds. Accordingly, we are proposing 
amendments to Item 11 of Form N-1A that would require a fund to 
disclose the number of days in which the fund will pay redemption 
proceeds to redeeming shareholders.\548\ If the number of days in which 
the fund will pay redemption proceeds differs by distribution channel, 
the fund also would be required to disclose the number of days for each 
distribution channel.\549\
---------------------------------------------------------------------------

    \548\ See proposed Item 11(c)(7) of Form N-1A.
    \549\ Id.
---------------------------------------------------------------------------

    We also are proposing amendments to Item 11 of Form N-1A that would 
require a fund to disclose the methods that the fund uses to meet 
redemption requests.\550\ Under this requirement funds would have to 
disclose whether they use the methods regularly to meet redemptions or 
only in stressed market conditions. Methods to meet redemption requests 
may include, for example, sales of portfolio assets, holdings of cash 
or cash equivalents, lines of credit, interfund lending, and ability to 
make in-kind redemptions. To address transaction costs associated with 
shareholder activity, funds also may use redemption fees.\551\
---------------------------------------------------------------------------

    \550\ See proposed Item 11(c)(8) of Form N-1A.
    \551\ Funds also may use swing pricing to address transaction 
costs associated with shareholder purchases or redemptions. We have 
proposed amendments to Form N-1A regarding disclosure of swing 
pricing. See proposed Item 6(d) of Form N-1A.
---------------------------------------------------------------------------

    Currently, Item 11(c)(3) of Form N-1A requires funds to disclose 
whether they reserve the right to redeem their shares in kind instead 
of in cash.\552\ We propose to incorporate this disclosure requirement 
into proposed Item 11(c)(8) discussed above. We understand that the use 
of in-kind redemptions (outside of the ETF context) historically has 
been rare and that many funds reserve the right to redeem in kind only 
as a tool to manage liquidity risk under emergency circumstances or to 
manage the redemption activity of a fund's large institutional 
investors.\553\ We also are aware that there are often logistical 
issues associated with redemptions in kind and that these issues can 
limit the availability of in-kind redemptions as a practical 
matter.\554\ A fund should consider whether adding relevant detail to 
its disclosure regarding in-kind redemptions, or revising its 
disclosure if the fund would be practically limited in its ability to 
redeem its shares in kind, would provide more accurate information to 
investors.
---------------------------------------------------------------------------

    \552\ See Item 11(c)(3) of Form N-1A.
    \553\ See supra section III.C.5.c.
    \554\ Id.
---------------------------------------------------------------------------

    We are also proposing to amend Item 28 of Form N-1A to require a 
fund to file as an exhibit to its registration statement any agreements 
related to lines of credit for the benefit of the fund.\555\ As 
previously mentioned, we understand based on staff outreach that it is 
relatively common for funds to establish lines of credit to manage 
liquidity risk and meet shareholder redemptions, typically during 
periods of significantly limited market liquidity.\556\ We believe that 
requiring funds to include such agreements as exhibits to registration 
statements will increase Commission, investor, and market participant 
knowledge concerning the arrangements funds have made in order to 
strengthen their ability to meet shareholder redemption requests and 
manage liquidity risk and the terms of those arrangements. We also 
propose to include an instruction related to credit agreements noting 
that the specific fees paid in connection with the credit

[[Page 62345]]

agreements need not be disclosed in the exhibit filed with the 
Commission to preserve the confidentiality of this information.
---------------------------------------------------------------------------

    \555\ See proposed Item 28(h) of Form N-1A.
    \556\ See supra section III.C.5.a.
---------------------------------------------------------------------------

    Overall, we believe that requiring funds to provide additional 
disclosure concerning the methods they use and the funding sources they 
have to fulfill their redemption obligations and whether those methods 
are used on a regular basis or only in stressed market conditions would 
improve shareholder and market participant knowledge regarding fund 
redemption procedures and liquidity risk management. In particular, 
increased knowledge of how and when a fund's redemption procedures may 
affect whether, for example, a shareholder would receive cash or 
securities in kind or pay a redemption fee would be helpful for 
investors to better understand the impact of a fund's redemption 
procedures on shareholders.
b. Swing Pricing
    Form N-1A currently requires a fund to describe its procedures for 
pricing fund shares, including an explanation that the price of fund 
shares is based on the fund's NAV and the method used to value fund 
shares.\557\ If the fund is an ETF, an explanation that the price of 
fund shares is based on market price is required.\558\ As discussed 
above, under proposed rule 22c-1(a)(3), a fund (with the exception of a 
money market fund or ETF) would be permitted, under certain 
circumstances, to use swing pricing to adjust its current NAV as an 
additional tool to lessen dilution of the value of outstanding 
redeemable securities through shareholder purchase and redemption 
activity.\559\
---------------------------------------------------------------------------

    \557\ See Item 11(a)(1) of Form N-1A.
    \558\ Id.
    \559\ See supra section III.F.
---------------------------------------------------------------------------

    We are proposing to amend Item 6 of Form N-1A to account for this 
pricing procedure. Specifically, the proposed amendment would require a 
fund that uses swing pricing to explain the circumstances under which 
swing pricing would be required to be used as well as the effects of 
using swing pricing.\560\ For a fund that invests in other funds (e.g., 
fund-of-funds, master-feeder funds), the fund would be required to 
include a statement that its NAV is calculated based on the NAVs of the 
funds in which the fund invests, and that the prospectuses for those 
funds explain the circumstances under which those funds will use swing 
pricing and the effects of using swing pricing. We believe that these 
proposed disclosures would improve public understanding regarding a 
fund's use of swing pricing as well as the potential advantages and 
disadvantages of using swing pricing to manage dilution arising from 
shareholder purchase and redemption activity.
---------------------------------------------------------------------------

    \560\ See proposed Item 6(d) of Form N-1A.
---------------------------------------------------------------------------

c. Request for Comment
    We request comment on all aspects of the proposed amendments to 
Form N-1A.
     Would the proposed amendments regarding payment of 
redemption proceeds be helpful to fund shareholders? Should we modify 
the proposed disclosures, and if so, how?
     In addition to the proposed disclosure requirements, 
should Form N-1A be amended to require certain funds to incorporate 
enhanced disclosure regarding liquidity risk into their summary 
prospectuses? If so, what funds should be subject to such enhanced 
disclosure requirements (e.g., funds with certain investment 
strategies, whose three-day liquid asset minimums are below a certain 
threshold, or that hold above a certain percentage of their portfolio 
(for instance, 5%, 10%, 20%, 30%) in assets with extremely limited 
liquidity, such as assets that can only be converted to cash in over 7 
days, over 15 days, over 30 days, or over 90 days at a price that does 
not materially affect the value of that asset immediately prior to 
sale)? What specific liquidity risk disclosure requirements should 
apply to these funds?
     Are there any challenges associated with funds disclosing 
when they expect to pay redemption proceeds? Should funds be required 
to disclose the expected period in normal and stressed market 
conditions?
     Are there any challenges associated with funds disclosing 
the methods that they use to meet redemption requests and whether those 
methods are used regularly or only in stressed market conditions? Would 
disclosure of this information overly complicate prospectus 
disclosures?
     In cases where the number of days in which a fund will pay 
redemption proceeds differs by distribution channel, are there any 
challenges associated with funds disclosing the number of days for each 
distribution channel? Do funds pay all redemption proceeds at the same 
time irrespective of distribution channel (although when the 
shareholder actually receives redemption proceeds may differ by 
distribution channel)?
     Would the proposed amendments provide useful information 
to shareholders about how funds plan to satisfy redemption requests? Is 
there any additional information about fund redemption policies that 
shareholders should be aware of that is not discussed above? If so, 
would such additional information already be covered under existing 
Form N-1A requirements, or would we need to make any amendments to the 
form or its instructions?
     Would the proposed amendment to Item 28 of Form N-1A that 
would require a fund to file as exhibits to its registration statement 
any agreements related to lines of credit for the benefit of the fund 
be useful to fund shareholders and market participants? Why or why not? 
Are there any issues associated with funds filing such credit 
agreements? For example, even if specific fees paid in connection with 
the credit agreements are redacted, do funds have confidentiality 
concerns regarding filing such credit agreements? Should funds be 
required to file credit agreements if we adopt the proposed amendments 
to proposed Form N-CEN that require a fund to disclose information 
regarding lines of credit available to the fund?
     Would the proposed amendments to Form N-1A regarding swing 
pricing be useful to fund shareholders? Should funds be required to 
disclose additional information regarding swing pricing, and if so, 
what information should be disclosed?
2. Proposed Amendments to Proposed Form N-PORT
    The Commission, investors, and other market participants currently 
have limited information about the liquidity of portfolio investments 
of funds, and we believe that all would benefit from more detailed 
reporting and disclosure of the liquidity of a fund's portfolio 
investments. On May 20, 2015, we proposed requiring registered 
management investment companies and ETFs organized as unit investment 
trusts, other than registered money market funds or small business 
investment companies, to electronically file with the Commission 
monthly portfolio investment information on proposed Form N-PORT.\561\ 
As we discussed in the Investment Company Reporting Modernization 
Release, the information that would be filed on proposed Form N-PORT 
would enhance the Commission's ability to effectively oversee and 
monitor the activities of

[[Page 62346]]

investment companies in order to better carry out its regulatory 
functions. We also stated that we believe that many investors, 
particularly institutional investors, as well as academic researchers, 
financial analysts, and economic research firms, could use the 
information reported on proposed Form N-PORT to evaluate fund 
portfolios and assess the potential for returns and risks of a 
particular fund.\562\
---------------------------------------------------------------------------

    \561\ Submissions on Form N-PORT would be required to be filed 
no later than 30 days after the close of each month. As proposed, 
only information reported for the third month of each fund's fiscal 
quarter on Form N-PORT would be publicly available, and such 
information would not be made public until 60 days after the end of 
the third month of the fund's fiscal quarter. See Investment Company 
Reporting Modernization Release, supra note 104.
    \562\ See Investment Company Reporting Modernization Release, 
supra note 104.
---------------------------------------------------------------------------

    We believe that requiring funds to report information about the 
liquidity of portfolio investments would assist the Commission in 
better assessing liquidity risk in the open-end fund industry, which 
can inform its policy and guidance, as well as in its monitoring for 
compliance with proposed rule 22e-4 and identifying potential outliers 
in fund liquidity classifications for further inquiry, as appropriate. 
Furthermore, we believe that this information would help investors and 
potential users better understand the liquidity risks in funds. 
Accordingly, the Commission seeks to enhance the reporting regarding 
the liquidity of fund holdings by proposing that each fund report on 
Form N-PORT the fund's three-day liquid asset minimum as well as the 
liquidity classification for each portfolio asset, as further described 
below.
a. Liquidity Classification of Portfolio Investments
    Part C of proposed Form N-PORT would require a fund and its 
consolidated subsidiaries to disclose its schedule of investments and 
certain information about the fund's portfolio of investments. We 
propose to add Item C.13 to Part C of proposed Form N-PORT, which would 
require a fund to indicate the liquidity classification of each of the 
fund's positions in a portfolio asset. Funds would be required to 
indicate such liquidity classification using the following categories 
as specified in proposed rule 22e-4:
     Convertible to cash within 1 business day;
     Convertible to cash within 2-3 business days;
     Convertible to cash within 4-7 calendar days;
     Convertible to cash within 8-15 calendar days;
     Convertible to cash within 16-30 calendar days; and
     Convertible to cash in more than 30 calendar days.

For portfolio assets with multiple liquidity classifications, proposed 
Item C.13 would require funds to indicate the dollar amount 
attributable to each classification. For example, a fund could 
determine that it could convert half of a portfolio position to cash in 
2-3 business days and the other half of the position in 4-7 calendar 
days in order to dispose of the position without creating a market 
impact and receive cash for the trade. In this case, half of the 
position would be reported in the 2-3 day category and the other half 
in the 4-7 day category.
    We anticipate that the enhanced reporting proposed in these 
amendments would help our staff better monitor liquidity trends and 
various funds' liquidity risk profiles. We also believe that making 
this information available to the public quarterly, as with other 
information on proposed N-PORT, is appropriate. We received several 
comments to the Investment Company Reporting Modernization Release that 
addressed our proposal to require funds to identify on proposed Form N-
PORT whether an investment is an illiquid asset. Specifically, several 
commenters noted concern that public dissemination of a fund's 
liquidity determinations could lead to misinterpretation and confusion 
among investors, particularly because of the subjective nature of such 
determinations.\563\
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    \563\ See, e.g., Comment Letter of Charles Schwab Investment 
Management on Investment Company Reporting Modernization Release 
(Aug. 11, 2015); Comment Letter of Invesco Advisers, Inc. on 
Investment Company Reporting Modernization Release (Aug. 11, 2015); 
Comment Letter of the Investment Company Institute on Investment 
Company Reporting Modernization Release (Aug. 11, 2015); Comment 
Letter of Pioneer Investments on Investment Company Reporting 
Modernization Release (Aug. 11, 2015).
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    While we appreciate commenters' concerns and request further 
comment, we believe that the liquidity-related data reported on Form N-
PORT that is made publicly available would inform investors and assist 
users in assessing funds' relative liquidity and the overall liquidity 
of the fund industry and of particular investment strategies and would 
not be confusing to investors.\564\ For example, third-party data 
analyzers could use the reported information to produce useful metrics 
for investors about the relative liquidity of different funds with 
similar strategies. We also anticipate that this publicly available 
data would provide a resource for fund managers to compare the 
liquidity classifications assigned to various portfolio assets, which 
in turn could result in making the liquidity classifications assigned 
to certain positions more consistent across the fund industry, to the 
extent appropriate, and could provide greater market transparency as to 
the liquidity characteristics of certain assets.
---------------------------------------------------------------------------

    \564\ See supra note 561 regarding public disclosure of 
information submitted on Form N-PORT.
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    We note that the liquidity classification of an asset may vary 
across funds depending on the facts and circumstances relating to the 
funds and their trading practices.\565\ For example, one fund may hold 
a particular asset as a hedge against a risk in another portfolio 
asset. In this case, that asset's liquidity profile may be tied to the 
liquidity of the corresponding hedged asset. Another fund not using 
that asset as a hedge could report a quite different liquidity 
classification. Liquidity classifications also may vary based on the 
size of fund positions in a particular portfolio asset. We also 
recognize that liquidity classifications inherently involve some level 
of judgment by the fund and estimation as market conditions can change, 
and thus a fund may predict liquidity based on current information that 
it will take a certain time period to convert a particular asset to 
cash only to find that it takes longer to do so when the fund actually 
sells the asset. Nevertheless, for the reasons discussed above, we 
believe that the proposed reporting of liquidity classification 
information will provide very valuable information to us and market 
participants about current fund expectations regarding portfolio 
liquidity.
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    \565\ See, e.g., Comment Letter of the Investment Company 
Institute on Investment Company Reporting Modernization Release 
(Aug. 11, 2015) (``These [liquidity] judgments may differ among 
personnel and certainly among fund complexes.''); Comment Letter of 
Invesco Advisers, Inc. on Investment Company Reporting Modernization 
Release (Aug. 11, 2015) (``Invesco and other fund complexes could 
reasonably differ in their assessments of the liquidity of a 
particular security, even though both complexes have a sound method 
for determining liquidity and follow their own reasonable 
procedures.'').
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b. 15% Standard Assets
    As currently proposed, Form N-PORT would require that each fund 
disclose whether each particular portfolio security is an ``illiquid 
asset.'' \566\ The proposed form defines illiquid assets in terms of 
current Commission guidelines (i.e., assets that cannot be sold or 
disposed of by the fund within seven calendar days, at approximately 
the value ascribed to them by the fund).\567\ In connection with 
proposed rule 22e-4's requirement regarding 15% standard assets,\568\ 
we propose to amend the General Instructions to proposed Form N-PORT to 
remove the term ``Illiquid

[[Page 62347]]

Asset'' from the definitions section and replace it with the term ``15% 
Standard Asset,'' as such term is defined in proposed rule 22e-4.\569\
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    \566\ See Item C.7 of proposed Form N-PORT.
    \567\ See General Instruction E of proposed Form N-PORT.
    \568\ See proposed rule 22e-4(a)(4); see also supra section 
III.C.4.a.
    \569\ See Item C.7 of proposed Form N-PORT; revised General 
Instructions to proposed Form N-PORT.
     The Investment Company Reporting Modernization Release also 
proposed amendments to Article 12 of Regulation S-X in which funds 
would be required to identify illiquid securities. See, e.g., 
proposed rule 12-12, n. 10 of Regulation S-X (requiring funds to 
indicate ``by an appropriate symbol each issue of illiquid 
securities''). We propose to define ``illiquid securities'' in 
Regulation S-X (as well as ``illiquid investment,'' which term also 
appears in Regulation S-X) by reference to the term ``15% standard 
assets,'' as defined in proposed rule 22e-4(a)(4). See proposed 
210.6-02(e), (f).
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    This change would have the effect of requiring funds to report, for 
each portfolio asset, whether the asset is a 15% standard asset. This 
information would allow our staff and other interested parties to track 
the extent that funds are holding 15% standard assets and to discern 
the nature of those holdings. This information also would help these 
groups in tracking the fund's exposure to liquidity risk.
c. Three-Day Liquid Asset Minimum
    We propose to add an Item B.7 to Part B of proposed Form N-PORT to 
require each fund to disclose its ``three-day liquid asset minimum,'' 
as such term is defined in proposed rule 22e-4.\570\ Requiring 
reporting of this information on Form N-PORT would allow our staff and 
other interested parties to easily assess the three-day liquid asset 
minimum across funds because of the interactive nature of how the 
information would be reported on proposed Form N-PORT.
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    \570\ See proposed rule 22e-4(a)(9); see also supra section 
III.C.3. We also propose adding the term ``Three-Day Liquid Asset 
Minimum'' to General Instruction E of proposed Form N-PORT, 
referencing the definition of such term in proposed rule 22e-4.
---------------------------------------------------------------------------

    This should facilitate comparisons between funds as well as the 
observation of trends over time in this indicator of fund liquidity.
d. Request for Comment
    We seek comment on each of the Commission's proposed amendments to 
proposed Form N-PORT.
     Is there different or other information associated with 
liquidity that we should require funds to report on proposed Form N-
PORT? If so, please describe the information.
     Would the proposed liquidity classification disclosure 
assist investors, fund boards, and other users in analyzing liquidity 
among portfolio assets within the fund and across the fund industry? 
What challenges, if any, may arise in reporting the liquidity 
classification information, and how could we address those challenges? 
What concerns are raised with public disclosure of liquidity 
classification information and how could we address those concerns?
     Should we require that the liquidity classification 
information on proposed Form N-PORT only be reported to the Commission 
and not be publicly disclosed? If so, how would we achieve our goal of 
allowing investors to become better informed, through information 
provided by third-party information providers or otherwise, about the 
liquidity of the funds in which they invest? Would public disclosure of 
liquidity classification information facilitate predatory trading 
practices or exacerbate first mover incentives? If so, how?
     Proposed Form N-PORT has a section in which a fund can 
provide explanatory notes with any information that it believes would 
be helpful in understanding the information reported on Form N-
PORT.\571\ Would this allow funds to explain any methodologies, 
assumptions, or estimations used in determining liquidity 
classifications?
---------------------------------------------------------------------------

    \571\ See Part E of proposed Form N-PORT.
---------------------------------------------------------------------------

3. Proposed Amendments to Proposed Form N-CEN
    As proposed, all registered investment companies, including money 
market funds but excluding face amount certificate companies, would be 
required to file Form N-CEN annually.\572\ Form N-CEN would require 
these registered investment companies to provide census-type 
information that would assist our efforts to modernize the reporting 
and disclosure of information by registered investment companies and 
enhance the staff's ability to carry out its regulatory functions, 
including risk monitoring and analysis of the industry.\573\
---------------------------------------------------------------------------

    \572\ See Investment Company Reporting Modernization Release, 
supra note 104.
    \573\ Id.
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a. Lines of Credit, Interfund Lending, Interfund Borrowing and Swing 
Pricing
    We are proposing to amend proposed Form N-CEN to allow the 
Commission and other users to track certain liquidity risk management 
practices that we expect funds to use on a less frequent basis than the 
day-to-day portfolio construction techniques captured by proposed Form 
N-PORT. More specifically, we propose amending Part C of proposed Form 
N-CEN to add an item that would include certain questions regarding the 
use of lines of credit, interfund lending, interfund borrowing, and 
swing pricing.
    The proposed amendments would add a new Item 44 to Part C of 
proposed Form N-CEN requiring a fund to disclose if it has available a 
committed line of credit, and, if so, the size of the line of credit in 
U.S. dollars, the name of the institution(s) with which the fund has 
the line of credit, and whether the line of credit is for that fund 
alone or is shared among multiple funds.\574\ If the line of credit is 
shared among multiple funds, the fund would be required to disclose the 
names and SEC File numbers of the other funds (including any series) 
that may use the line of credit.\575\ If the fund responds 
affirmatively to having available a committed line of credit, the fund 
would be required to disclose whether it drew on the line of credit 
during the reporting period.\576\ If the fund drew on that line of 
credit during the reporting period, Item 44 would require the fund to 
disclose the average dollar amount outstanding when the line of credit 
was in use and the number of days that line of credit was in use.\577\ 
This information would allow our staff and other potential users to 
assess how often and to what extent funds rely on certain external 
sources of liquidity, rather than relying on the liquidity of fund 
portfolio assets alone, for liquidity risk management. It also would 
allow monitoring of whether such lines of credit are concentrated in 
particular financial institutions.
---------------------------------------------------------------------------

    \574\ See proposed Item 44(a)(i)-(iii) of Part C of proposed 
Form N-CEN.
    \575\ See proposed Item 44(a)(iii)(1) of Part C of proposed Form 
N-CEN. Under proposed Form N-CEN, ``SEC File number'' means the 
number assigned to an entity by the Commission when that entity 
registered with the Commission in the capacity in which it is named 
in Form N-CEN. See General Instruction F to proposed Form N-CEN.
    \576\ See proposed Item 44(a)(iv) of Part C of proposed Form N-
CEN.
    \577\ See proposed Item 44(a)(v) and (vi) of Part C of proposed 
Form N-CEN.
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    Proposed Item 44 also would require a fund to report whether it 
engaged in interfund lending or interfund borrowing during the 
reporting period, and, if so, the average amount of the interfund loan 
when the loan was outstanding and the number of days that the interfund 
loan was outstanding.\578\ This information would provide some 
transparency regarding the extent to which funds use interfund lending 
or interfund borrowing. We understand that one reason that funds have 
sought exemptive relief to engage in interfund

[[Page 62348]]

lending and borrowing is to meet redemption obligations if necessary.
---------------------------------------------------------------------------

    \578\ See proposed Item 44(b) and (c) of Part C of proposed Form 
N-CEN.
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    Finally, Item 44 would require a fund other than a money market 
fund to disclose whether it engaged in swing pricing during the 
reporting period. This disclosure would inform our staff and potential 
users about whether funds use swing pricing as a tool to mitigate 
dilution of the value of outstanding redeemable securities through 
shareholder purchase and redemption activity.\579\
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    \579\ As part of the proposed revisions to proposed Form N-CEN, 
we propose renumbering previously proposed Items 44 through 79 to 45 
through 80.
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b. Additional Information Concerning ETFs
    Proposed Form N-CEN includes a section related specifically to 
ETFs.\580\ Some of the proposed reporting requirements on Form N-CEN 
relate to an authorized participant's interaction with the ETF (or its 
service provider), as these entities play a significant role in the 
marketplace.\581\ We believe collection of such information would allow 
us to better assess the size, capacity, and concentration of the 
authorized participant framework and may allow the Commission staff to 
monitor how ETF purchase and redemption activity is distributed across 
authorized participants and, for example, the extent to which a 
particular ETF--or ETFs as a group--may be reliant on one or more 
particular authorized participants.\582\
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    \580\ See Part E of proposed Form N-CEN. We note that the 
reporting requirements of proposed Form N-CEN that are tailored for 
ETFs also apply to UITs organized as ETFs, as well as exchange-
traded managed funds. See General Instruction A to proposed Form N-
CEN. The additional proposed reporting requirement discussed below 
would apply to the same group of entities.
    \581\ Specifically, proposed Form N-CEN would require an ETF to 
provide identifying information about each of its authorized 
participants, as well as the dollar value of the ETF's shares that 
each authorized participant purchased or redeemed from the ETF 
during the reporting period. See proposed Item 60(g) of proposed 
Form N-CEN.
    \582\ See Investment Company Reporting Modernization Release, 
supra note 104, at section II.E.4.
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    Specifically, we are proposing to add Item 60(g) \583\ to Form N-
CEN, which would require an ETF to report whether it required that an 
authorized participant post collateral to the ETF or any of its 
designated service providers in connection with the purchase or 
redemption of ETF shares during the reporting period.\584\ We 
understand that some ETFs (or their custodians), particularly ETFs that 
invest in non-U.S. securities, require authorized participants 
transacting primarily on an in-kind basis to post collateral when 
purchasing or redeeming shares, most often for the duration of the 
settlement process. This can protect the ETF in the event, for example, 
that the authorized participant fails to deliver the basket 
securities.\585\ The requirement to post collateral for creating or 
redeeming ETF shares impacts the authorized participant's operating 
capital, which could, in turn, affect the ability and willingness of 
authorized participants to serve such ETFs or serve other market makers 
on an agency basis. Accordingly, we believe that information about 
required posting of collateral by authorized participants when 
purchasing or redeeming shares--alongside the information we previously 
proposed to require in Form N-CEN--would be helpful in understanding 
whether, and to what extent, there may be concentration in the 
authorized participant framework for such ETFs.
---------------------------------------------------------------------------

    \583\ In the Reporting Modernization Release, information 
requirements related to authorized participants for ETFs were in 
Item 59 of Proposed Form N-CEN; however, because this release 
proposes to add additional items to proposed Form N-CEN, Item 59 of 
proposed Form N-CEN would be renumbered to Item 60. See infra Text 
of Rules and Forms.
    \584\ Proposed Item 60(g) of proposed Form N-CEN.
    \585\ See, e.g., Investment Company Institute, The Role and 
Activities of Authorized Participants of Exchange-Traded Funds, 
(Mar. 2015), available at https://www.ici.org/pdf/ppr_15_aps_etfs.pdf. In addition to ETFs that invest in non-U.S. 
securities, Commission staff understands that there are other ETFs 
that have collateral requirements for purchases and redemptions, 
such as ETFs that invest in debt securities.
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c. Request for Comment
    We seek comment on each of the Commission's proposed amendments to 
proposed Form N-CEN.
     Would the proposed reporting on the availability and use 
of lines of credit, interfund lending, interfund borrowing and the use 
of swing pricing assist investors, Commission staff, and market 
participants in assessing liquidity and liquidity risks within a fund 
and across the fund industry? Would this information be readily 
available to funds? If not, please explain why.
     Do the proposed questions collect all sources of liquidity 
outside the liquidity of fund portfolio assets? If not, what are these 
other sources?
     Is the annual reporting time period under Form N-CEN 
appropriate for this requested information? Should it be collected more 
frequently? If so, should we require funds to disclose any or all of 
the requested information on Form N-PORT instead of Form N-CEN?
     Is there different or other information associated with 
liquidity that we should require funds to report on proposed Form N-
CEN? If so, please describe the information.
     Should funds be required to report information on 
uncommitted lines of credit? Please explain why or why not.
     What types of ETFs tend to require posting of collateral 
for purchases or redemptions and why? Please provide data on the size 
of such collateral deposits, and how this deposit requirement can 
affect an authorized participant's operating capital? How common is it 
for an authorized participant or market maker to contract with another 
authorized participant to post such collateral on its behalf? Are there 
situations where one authorized participant contracts with another 
authorized participant to purchase or redeem ETF shares on an agency 
basis rather than purchase or redeem the shares directly with the ETF 
because of the ETF's requirement that the purchase or redemption be 
collateralized for the duration of the settlement period?

H. Compliance Dates

1. Liquidity Risk Management Program
    Proposed rule 22e-4 would require that each registered open-end 
management investment company, including open-end ETFs but not 
including money market funds, adopt and implement a written liquidity 
risk management program, approved by a fund's board of directors, that 
meets certain minimum requirements outlined in the rule. Given the 
nature of the liquidity risk management program, including the 
classification and ongoing review of the liquidity of each of a fund's 
positions in an asset (or portion thereof) required under proposed rule 
22e-4(b)(2)(i) and the three-day liquid asset minimum determination 
required under proposed rule 22e-4(b)(2)(iv)(A), we expect to provide 
for a tiered set of compliance dates based on asset size for proposed 
rule 22e-4.
    Specifically, for larger entities--namely, funds that together with 
other investment companies in the same ``group of related investment 
companies'' \586\ have net assets of $1

[[Page 62349]]

billion or more as of the end of the most recent fiscal year--we are 
proposing a compliance date of 18 months after the effective date to 
comply with proposed rule 22e-4. For these larger entities, we expect 
that 18 months would provide an adequate period of time for funds to 
prepare internal processes, policies and procedures and implement 
liquidity risk management programs that meet the requirements of the 
rule.
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    \586\ For these purposes, we expect that the threshold would be 
based on the definition of ``group of related investment 
companies,'' as such term is defined in rule 0-10 under the 
Investment Company Act. Rule 0-10 defines the term in part as ``two 
or more management companies (including series thereof) that: (i) 
Hold themselves out to investors as related companies for purposes 
of investment and investor services; and (ii) Either: (A) Have a 
common investment adviser or have investment advisers that are 
affiliated persons of each other; or (B) Have a common 
administrator. . . .'' We believe that this broad definition would 
encompass most types of fund complexes and therefore is an 
appropriate definition for compliance date purposes.
---------------------------------------------------------------------------

    For smaller entities (i.e., funds that together with other 
investment companies in the same ``group of related investment 
companies'' have net assets of less than $1 billion as of the end of 
the most recent fiscal year),\587\ we are proposing to provide for an 
extra 12 months (or 30 months after the effective date) to comply with 
proposed rule 22e-4.\588\ We believe that smaller entities would 
benefit from this extra time to establish and implement the 
requirements outlined in the rule.
---------------------------------------------------------------------------

    \587\ Based on staff analysis of data obtained from Morningstar 
Direct, as of June 30, 2015, we estimate that a $1 billion threshold 
would provide an extended compliance period to approximately 66% of 
the fund groups, but only 0.6% of all fund assets. We therefore 
believe that the $1 billion threshold would appropriately balance 
the need to provide smaller groups of investment companies with more 
time to prepare internal processes, policies and procedures and 
implement liquidity risk management programs that meet the 
requirements of proposed rule 22e-4, while still including the vast 
majority of fund assets in the initial compliance period.
    \588\ See proposed rule 22e-4(b)(2)(i), (ii) and (iv)(A)-(C).
---------------------------------------------------------------------------

    On or before the applicable compliance date(s), a fund must have 
adopted and implemented compliance policies and procedures that satisfy 
the requirements of the new rule. These policies and procedures must 
have been approved by the board on or before the applicable compliance 
date(s).
2. Swing Pricing
    Proposed rule 22c-1(a)(3), if adopted, would permit (but not 
require) a fund (with the exception of a money market fund or ETF) to 
adopt swing pricing policies and procedures. Related proposed 
amendments to rule 31a-2 (regarding the preservation of books and 
records evidencing and supporting adjustments to NAV based on swing 
pricing policies and procedures), Item 13 of Form N-1A and Regulation 
S-X (regarding financial reporting), and Item 11(c) of Form N-1A 
(regarding a fund's use of swing pricing) would apply only to funds 
that elect to use swing pricing. As reliance on rule 22c-1(a)(3) would 
be optional, we believe a compliance period would not be necessary. 
Therefore, we expect that a fund would be able to rely on the rule 
after the effective date as soon as the fund could comply with proposed 
rule 22c-1(a)(3) and related records, financial reporting and 
prospectus disclosure requirements.
3. Amendments to Form N-1A
    Except with respect to the proposed amendments to Form N-1A related 
to swing pricing (discussed above), if the other proposed amendments to 
Form N-1A are adopted, we expect to require all initial registration 
statements on Form N-1A, and all post-effective amendments that are 
annual updates to effective registration statements on Form N-1A, filed 
six months or more after the effective date, to comply with the 
proposed amendments to Form N-1A. We do not expect that funds would 
require significant amounts of time to prepare additional disclosures 
in accordance with our proposed amendments regarding redemptions.
4. Amendments to Form N-PORT
    Similar to the tiered compliance dates for the liquidity 
classification requirements for fund liquidity risk management programs 
under proposed rule 22e-4 (discussed above), we expect to provide for a 
tiered set of compliance dates based on asset size for the proposed 
amendments to proposed Form N-PORT. Specifically, for larger entities 
we are proposing a compliance date of 18 months after the effective 
date to comply with the new reporting requirements. For these larger 
entities, we expect that 18 months would provide an adequate period of 
time for funds, intermediaries, and other service providers to conduct 
the requisite operational changes to their systems and to establish 
internal processes to prepare, validate, and file reports containing 
the additional information requested by the proposed amendments to Form 
N-PORT. For smaller entities, we are proposing to provide for an extra 
12 months (or 30 months after the effective date) to comply with the 
new reporting requirements. We believe that smaller groups would 
benefit from this extra time to comply with the filing requirements for 
Form N-PORT and would potentially benefit from the lessons learned by 
larger investment companies and groups of investment companies during 
the adoption period for Form N-PORT.
5. Amendments to Form N-CEN
    If Form N-CEN and the amendments we propose to the form are 
adopted, we are proposing a compliance date of 18 months after the 
effective date to comply with the new reporting requirements.\589\ We 
expect that 18 months would provide an adequate period of time for 
funds, intermediaries, and other service providers to conduct the 
requisite operational changes to their systems and to establish 
internal processes to prepare, validate, and file reports containing 
the additional information requested by the proposed amendments to Form 
N-CEN.
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    \589\ Unlike Form N-PORT, we do not expect to provide a tiered 
compliance date based on asset size because we believe that it is 
less likely that smaller fund complexes would need additional time 
to comply with the amendments we propose on Form N-CEN. This 18-
month compliance period is consistent with the compliance period for 
proposed Form N-CEN. See Investment Company Reporting Modernization 
Release, supra note 104.
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6. Request for Comment
    We request comment on the compliance dates discussed above.
     How, if at all, should the proposed compliance dates be 
modified? What factors should we consider when setting the compliance 
dates for the proposed rule and amendments to the rules and forms? To 
the extent that a fund would decide to reallocate certain portions of 
its portfolio in order to correlate its portfolio holdings with its 
three-day liquid asset minimum, would the proposed compliance dates 
provide adequate time to do so in a way that would cause the fund to 
incur relatively few portfolio reallocation-related costs (i.e., by 
permitting sufficient time to purchase and sell portfolio assets when 
it is relatively advantageous to do so)?
     We request comment on our proposed 18-month compliance 
date for proposed rule 22e-4. Is our 18-month compliance period 
appropriate? If not, what length of time (e.g., 12 months or 24 months) 
would be appropriate for compliance with the new rule?
     We also request comment on our proposed tiered compliance 
dates for proposed rule 22e-4 and related reporting requirements under 
our proposed amendments to proposed Form N-PORT. Is a threshold of $1 
billion based on the net assets of funds together with other investment 
companies in the same ``group of related investment companies'' as of 
the end of the most recent fiscal year appropriate? Should the 
threshold be higher or lower? \590\ Should the threshold include 
aggregation of net assets with other investment companies in the same 
``group of related investment companies?'' Why or why not? Is our

[[Page 62350]]

12-month extension of the compliance period for smaller entities 
appropriate? If not, what length of time (e.g., 6 months or 18 months) 
would be adequate and why?
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    \590\ Based on staff analysis of data obtained from Morningstar 
Direct, as of June 30, 2015, we estimate that a threshold of $100 
million would include approximately 38% of fund firms and 0.1% of 
all fund assets. A threshold of $3 billion would include 
approximately 77% of fund firms and 1.6% of fund assets.
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     With respect to our proposed amendments to Form N-PORT, is 
our compliance date of 18 months for larger filers appropriate? If not, 
what length of time would be appropriate for compliance with the 
proposed amendments? Would a shorter or longer compliance date be 
appropriate? Is our 12-month extension of the compliance period for 
smaller entities appropriate? If not, what length of time would be 
appropriate for compliance with the additional reporting requirements 
under the proposed amendments?
     Is our 18-month compliance period for our proposed 
amendments to Form N-CEN appropriate? If not, what length of time would 
be appropriate? Would a shorter or longer compliance date be 
appropriate?
     We are proposing to not have a compliance period for 
proposed amendments to rule 22c-1 regarding swing pricing policies 
procedures and related amendments to rule 31a-2, Form N-1A and 
Regulation S-X. Is this appropriate?
     Is our six-month compliance period for our proposed 
amendments to Form N-1A disclosure requirements regarding the 
redemption of fund shares adequate? If not, what length of time would 
be adequate and why?

IV. Economic Analysis

A. Introduction and Primary Goals of Proposed Regulation

    The Commission is sensitive to the economic effects that could 
result from the proposed liquidity risk management program requirement, 
the ability for funds to use swing pricing under proposed rule 22c-
1(a)(3), and the proposed new disclosure and reporting requirements 
regarding liquidity risk and liquidity risk management (such proposed 
rule and proposed amendments to certain rules and forms, the ``proposed 
liquidity regulations''). These economic effects include the benefits 
and costs of the proposed liquidity regulations, as well as the effects 
on efficiency, competition, and capital formation. The economic effects 
of the proposed liquidity regulations are discussed below in the 
context of the primary goals of the proposed regulation.
    In summary, and as discussed in greater detail in section III 
above, the proposed liquidity regulations include the following:
    [cir] Proposed new rule 22e-4 would require that each fund 
establish a written liquidity risk management program. A fund's 
liquidity risk management program would be required to include the 
following elements: (i) Classification and ongoing review of the 
classification of the liquidity of each of the fund's positions in a 
portfolio asset (or portions of a position in a particular asset), 
taking into account certain specified factors; (ii) assessment and 
periodic review of its liquidity risk; and (iii) management of the 
fund's liquidity risk, including limitations on the fund's acquisition 
of less liquid assets or 15% standard assets in certain circumstances.
    [cir] Under proposed rule 22c-1(a)(3), a fund (except a money 
market fund or ETF) would be permitted (but not required) to establish 
and implement swing pricing policies and procedures that would, under 
certain circumstances, require the fund to use swing pricing to adjust 
its current NAV to lessen potential dilution of the value of 
outstanding redeemable securities caused by shareholder purchase and 
redemption activity. A fund that engages in swing pricing would be 
subject to certain disclosure and reporting requirements.
    [cir] Proposed amendments to Form N-1A, Regulation S-X, proposed 
Form N-PORT, and proposed Form N-CEN would require enhanced fund 
disclosure and reporting regarding position liquidity, shareholder 
redemption practices, and swing pricing.
    The proposed liquidity regulations are designed to promote 
effective liquidity risk management throughout the open-end fund 
industry and thereby reduce the risk that funds will be unable to meet 
redemption obligations and mitigate dilution of the interests of fund 
shareholders in accordance with, among other provisions, section 22(e) 
and rule 22c-1 under the Investment Company Act. The proposed liquidity 
regulations also seek to enhance disclosure regarding fund liquidity 
and redemption practices. In addition, these proposed reforms are 
intended to address the liquidity-related developments in the open-end 
fund industry discussed above and are a part of a broader set of 
initiatives to address the impact of open-end fund investment 
activities on financial markets and the risks associated with the 
increasingly complex portfolio composition and operations of the asset 
management industry. We provide an overview of these rulemaking goals 
in the following paragraphs, and the goals are discussed in more detail 
below as we describe the prospective benefits and costs of each aspect 
of the proposal.\591\
---------------------------------------------------------------------------

    \591\ See infra sections IV.C.1, IV.C.2, and IV.C.3.
---------------------------------------------------------------------------

    A primary goal of the proposed liquidity regulations is to promote 
investor protection by reducing the risk that funds will be unable to 
meet their redemption obligations, elevating the overall quality of 
liquidity risk management across the fund industry, increasing 
transparency of funds' liquidity risks and risk management practices, 
and mitigating potential dilution of existing shareholders' interests. 
Funds are not currently subject to requirements under the federal 
securities laws or Commission rules that specifically require them to 
maintain a minimum level of portfolio liquidity (with the exception of 
money market funds), and follow Commission guidelines (not rules) that 
generally limit their investment in illiquid assets.\592\ Additionally, 
funds today are only subject to limited disclosure requirements 
concerning a fund's liquidity risk and risk management.\593\ Staff 
outreach has shown that funds today engage in a variety of different 
practices--ranging from comprehensive and rigorous to minimal and 
basic--for classifying the liquidity of their portfolio assets, 
assessing and managing liquidity risk, and disclosing information about 
their liquidity risk, redemption practices, and liquidity risk 
management practices to investors.\594\ We believe that the proposed 
enhanced requirements for funds' assessment, management, and disclosure 
of liquidity risk could decrease the chance that funds would be unable 
to meet their redemption obligations and mitigate potential dilution of 
non-redeeming shareholders' interests.
---------------------------------------------------------------------------

    \592\ See supra section II.D; infra section IV.B.1.a.
    \593\ See supra section II.D; infra section IV.B.1.c.
    \594\ See supra section II.D; infra sections IV.B.1.a, IV.B.1.c.
---------------------------------------------------------------------------

    The proposed liquidity regulations are also intended to lessen the 
possibility of early redemption incentives (and investor dilution) 
created by insufficient liquidity risk management, as well as the 
possibility that investors' share value will be diluted by costs 
incurred by the fund as a result of other investors' purchase or 
redemption activity. When a fund experiences significant redemption 
requests, it may sell portfolio securities or borrow funds in order to 
obtain sufficient cash to meet redemptions.\595\ However, sales of a 
fund's portfolio assets conducted in order to meet shareholder 
redemptions could result in significant adverse consequences to non-
redeeming

[[Page 62351]]

shareholders when a fund fails to adequately manage liquidity. For 
example, if a fund sells portfolio assets under unfavorable 
circumstances, this could create negative price pressure on those 
assets and decrease the value of any of those assets still held by the 
fund.\596\ Funds also may borrow from a bank or use interfund lending 
facilities to meet redemption requests, but there are costs associated 
with such borrowings. Both selling of portfolio assets and borrowing to 
meet redemption requests could cause funds to incur costs that would be 
borne at least partially by non-redeeming shareholders.\597\ These 
factors could result in dilution in the value of non-redeeming 
shareholders' interests in a fund,\598\ and also could create 
incentives for early redemptions in times of liquidity stress, which 
could result in further dilution of non-redeeming shareholders' 
interests.\599\ There also is a potential for adverse effects on the 
markets when open-end funds fail to adequately manage liquidity. For 
example, the sale of less liquid portfolio assets at discounted or even 
fire sale prices can produce significant negative price pressure on 
those assets and correlated assets, which can impact other investors 
holding these assets and may transmit stress to other funds or portions 
of the markets.\600\ For reasons discussed in detail below, we believe 
that the liquidity risk management program requirement and the ability 
for a fund to adopt swing pricing policies and procedures would 
mitigate the risk of potential shareholder dilution and decrease the 
incentive for early redemption in times of liquidity stress.
---------------------------------------------------------------------------

    \595\ See supra section II.B.2; infra sections IV.C.1, IV.C.2.
    \596\ See supra notes 46-48 and accompanying text.
    \597\ See supra notes 49-53 and accompanying text.
    \598\ See supra notes 46-48 and accompanying text; infra 
sections IV.C.1, IV.C.2.
    \599\ See supra notes 49-53 and accompanying text; infra 
sections IV.C.1, IV.C.2.
    \600\ See supra note 54 and accompanying text.
---------------------------------------------------------------------------

    Finally, the proposed liquidity regulations are meant to address 
recent industry developments that have underscored the significance of 
funds' liquidity risk management practices. In recent years, there has 
been significant growth in the assets managed by funds with strategies 
that focus on holding relatively less liquid assets, such as fixed 
income funds (including emerging market debt funds), open-end funds 
with alternative strategies, and emerging market equity funds.\601\ 
There also has been considerable growth in assets managed by funds that 
exhibit characteristics that could give rise to increased liquidity 
risk, such as relatively high investor flow volatility.\602\ 
Additionally, as discussed in detail above, standard fund redemption 
and securities settlement periods have tended to become significantly 
shorter over the last several decades, which has caused funds to 
satisfy redemption requests within relatively short time periods (e.g., 
within T+3, T+2, and next-day periods).\603\ But while fund redemption 
periods have become shorter, certain funds have increased their 
holdings of portfolio securities with relatively long settlement 
periods, which could result in a liquidity mismatch between when a fund 
plans or is required to pay redeeming shareholders, and when any asset 
sales that the fund has executed in order to pay redemptions will 
settle.\604\ Collectively, these industry trends have emphasized the 
importance of effective liquidity risk management among funds and 
enhanced disclosure regarding liquidity risk and risk management.
---------------------------------------------------------------------------

    \601\ See supra section II.C.1; infra section IV.B.3; see also 
DERA Study, supra note 39, at pp. 6-9.
    \602\ See infra section IV.B.3.
    \603\ See supra notes 73-77 and accompanying text.
    \604\ See supra notes 78-79 and accompanying text.
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B. Economic Baseline

    The proposed liquidity regulations would affect all funds and their 
investors, investment advisers and other service providers, all issuers 
of the portfolio securities in which funds invest, and other market 
participants potentially affected by fund and investor behavior. The 
effects of the proposed liquidity regulations on all of these parties 
are analyzed in detail below in the discussion of the costs and 
benefits of the proposed regulations. The economic baseline of the 
proposed liquidity regulations includes funds' current practices 
regarding liquidity risk management, swing pricing, and liquidity risk 
disclosure, as well as the economic attributes of funds that affect 
their portfolio liquidity and liquidity risk. These economic attributes 
include industry-wide trends regarding funds' liquidity and liquidity 
risk management, as well as industry developments highlighting the 
importance of robust liquidity risk management by funds.
1. Funds' Current Practices Regarding Liquidity Risk Management, Swing 
Pricing, and Liquidity Risk Disclosure
a. Funds' Current Liquidity Risk Management Requirements and Practices
    Under section 22(e) of the Investment Company Act, an open-end fund 
is required to make payment to shareholders for securities tendered for 
redemption within seven days of their tender.\605\ In addition to the 
seven-day redemption requirement in section 22(e), open-end funds that 
are sold through broker-dealers are required as a practical matter to 
meet redemption requests within three business days because broker-
dealers are subject to rule 15c6-1 under the Exchange Act, which 
establishes a three-day (T+3) settlement period for security trades 
effected by a broker or a dealer. Furthermore, rule 22c-1 under the 
Act, the ``forward pricing'' rule, requires funds, their principal 
underwriters, and dealers to sell and redeem fund shares at a price 
based on the current NAV next computed after receipt of an order to 
purchase or redeem fund shares, even though cash proceeds from 
purchases may be invested or fund assets may be sold in subsequent days 
in order to satisfy purchase requests or meet redemption obligations.
---------------------------------------------------------------------------

    \605\ See section 22(e) of the Investment Company Act. Section 
22(e) of the Act provides, in part, that no open-end fund shall 
suspend the right of redemption or postpone the date of payment upon 
redemption of any redeemable security in accordance with its terms 
for more than seven days after tender of the security absent 
specified unusual circumstances.
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    With the exception of money market funds subject to rule 2a-7 under 
the Act, the Commission has not promulgated rules requiring open-end 
funds to invest in a minimum level of liquid assets.\606\ The 
Commission historically has taken the position that open-end funds 
should maintain a high degree of portfolio liquidity to ensure that 
their portfolio securities and other assets can be sold and the 
proceeds used to satisfy redemptions in a timely manner in order to 
comply with section 22(e).\607\ The Commission also has stated that 
open-end funds have a ``general responsibility to maintain a level of 
portfolio liquidity that is appropriate under the circumstances,'' and 
to engage in ongoing portfolio liquidity monitoring to determine 
whether an adequate level of portfolio liquidity is being maintained in 
light of the fund's redemption obligations.\608\ Open-end funds also 
are required by rule 38a-1 under the Act to adopt and implement written 
compliance policies and procedures reasonably designed to prevent 
violations of the federal securities laws, and such policies and 
procedures should be appropriately tailored to reflect each fund's 
particular compliance risks.\609\ An open-end fund

[[Page 62352]]

holding a significant portion of its assets in securities with long 
settlement periods or with infrequent trading, for instance, may be 
subject to relatively greater liquidity risks than other open-end 
funds, and should have relatively more robust policies and procedures 
to comply with its redemption obligations.
---------------------------------------------------------------------------

    \606\ See supra note 85 and accompanying text.
    \607\ See Restricted Securities Release, supra note 86.
    \608\ See supra note 87 and accompanying text.
    \609\ See Rule 38a-1 Adopting Release, supra note 90.
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    Additionally, long-standing Commission guidelines generally limit 
an open-end fund's aggregate holdings of ``illiquid assets'' to 15% of 
the fund's net assets (the ``15% guideline'').\610\ Under the 15% 
guideline, a portfolio security or other asset is considered illiquid 
if it cannot be sold or disposed of in the ordinary course of business 
within seven days at approximately the value at which the fund has 
valued the investment.\611\ The 15% guideline has generally limited 
funds' exposure to particular types of securities that cannot be sold 
within seven days and that the Commission and staff have indicated may 
be illiquid, depending on the facts and circumstances.
---------------------------------------------------------------------------

    \610\ See supra note 92 and accompanying text.
    \611\ See supra note 93 and accompanying text.
---------------------------------------------------------------------------

    Staff outreach has shown that funds currently employ a diversity of 
practices with respect to classifying portfolio assets' liquidity, as 
well as managing liquidity risk. Section II.D.3 above provides an 
overview of these practices, which include, among others: Assessing the 
ability to sell particular assets within various time periods, taking 
into account relevant market, trading, and other factors; monitoring 
initial liquidity determinations for portfolio assets (and modifying 
these determinations, as appropriate); holding certain amounts of the 
fund's portfolio in highly liquid assets or cash equivalents; 
establishing committed back-up lines of credit or interfund lending 
facilities; and conducting stress testing relating to the extent the 
fund has liquid assets to cover possible levels of redemptions.\612\ We 
have observed that some of the funds with relatively more thorough 
liquidity risk management practices have appeared to be able to meet 
periods of high redemptions without significantly altering the risk 
profile of the fund or materially affecting the fund's performance, and 
thus with few dilutive impacts. It therefore appears that these funds 
have generally aligned their portfolio liquidity with their liquidity 
needs, and that their liquidity risk management permits them to 
efficiently meet redemption requests. Other funds, however, employ 
liquidity classification and liquidity risk management practices that 
are substantially less rigorous. As discussed above in section II.D.3, 
some funds do not take different market conditions into account when 
evaluating portfolio asset liquidity, and do not conduct ongoing 
liquidity monitoring. Likewise, some funds do not have independent 
oversight of their liquidity risk management outside of the portfolio 
management process. As a result, funds' procedures for classifying the 
liquidity of their portfolio securities, as well as the 
comprehensiveness and independence of their liquidity risk management, 
vary significantly.
---------------------------------------------------------------------------

    \612\ See also e.g., Nuveen FSOC Notice Comment Letter, supra 
note 45 (discussing stress tests of a fund's ability to meet 
redemptions over certain periods); BlackRock FSOC Notice Comment 
Letter, supra note 50 (discussing several overarching principles 
that provide the foundation for a prudent market liquidity risk 
management framework for collective investment vehicles, including 
an independent risk management function, compliance checks to ensure 
portfolio holdings do not exceed regulatory limits, a risk 
management function that is independent from portfolio management, 
and measuring levels of liquid assets into ``tiers of liquidity''); 
Invesco FSOC Notice Comment letter, supra note 35, at 11 (discussing 
liquidity analysis).
---------------------------------------------------------------------------

b. Funds' Current Swing Pricing Practices
    Commission rules and guidance do not currently address the ability 
of an open-end fund to use swing pricing to mitigate potential dilution 
of fund shareholders, and U.S. registered funds do not currently use 
swing pricing. However, as discussed above, certain foreign funds 
currently do use swing pricing.\613\ We understand that some fund 
complexes that include U.S. registered funds also include foreign-
domiciled funds that currently use swing pricing.
---------------------------------------------------------------------------

    \613\ See supra notes 417-420 and accompanying text.
---------------------------------------------------------------------------

c. Funds' Current Liquidity Risk Disclosure Requirements and Practices
    Items 4 and 9 of Form N-1A require a fund to disclose the principal 
risks of investing in the fund.\614\ A fund currently must disclose the 
risks to which the fund's portfolio as a whole is expected to be 
subject and the circumstances reasonably likely to adversely affect the 
fund's NAV, yield, or total return.\615\ Some funds currently disclose 
that liquidity risk is a principal risk of investing in the fund.
---------------------------------------------------------------------------

    \614\ Item 4(b)(1)(i) and Item 9(c) of Form N-1A.
    \615\ Id.
---------------------------------------------------------------------------

    Item 11 of Form N-1A requires a fund to describe its procedure for 
redeeming fund shares, including restrictions on redemptions, any 
redemption charges, and whether the fund has reserved the right to 
redeem in kind.\616\ Disclosure regarding other redemption information, 
such as the timing of payment of redemption proceeds to fund 
shareholders, varies across funds as there are currently no specific 
requirements for this disclosure. Some funds disclose that they will 
redeem shares within a specific number of days after receiving a 
redemption request, other funds disclose that they will honor such 
requests within seven days (as required by section 22(e) of the Act), 
and others provide no specific time periods. Additionally, some funds 
disclose differences in the timing of payment of redemption proceeds 
based on the distribution channel through which the fund shares are 
redeemed, while others do not.
---------------------------------------------------------------------------

    \616\ Item 11(c) of Form N-1A.
---------------------------------------------------------------------------

    Funds are not currently required to disclose information about the 
liquidity of their portfolio assets. However, Form N-PORT, as proposed 
earlier this year, would require that each fund disclose whether each 
particular portfolio security is an ``illiquid asset'' and defines 
illiquid assets in terms of current Commission guidelines (i.e., assets 
that cannot be sold or disposed of by the fund within seven calendar 
days, at approximately the value ascribed to them by the fund).\617\ 
Also, some funds voluntarily disclose in their registration statements 
any specific limitations applicable to the fund's investment in 15% 
guideline assets, as well as types of assets considered by the fund to 
be subject to the 15% guideline.
---------------------------------------------------------------------------

    \617\ See General Instruction E of proposed Form N-PORT.
---------------------------------------------------------------------------

    Form N-1A does not currently require funds to disclose information 
about liquidity risk management practices such as the establishment (or 
use) of committed back-up lines of credit. A fund is, however, required 
to disclose information regarding the amount and terms of unused lines 
of credit for short-term financing, as well as information regarding 
related party transactions in its financial statements or notes 
thereto.\618\
---------------------------------------------------------------------------

    \618\ See Regulation S-X 210.5-02.19(b); 210.4-08(k).
---------------------------------------------------------------------------

2. Economic Trends Regarding Funds' Liquidity and Liquidity Risk 
Management
a. Overview
    While the liquidity of a fund's portfolio assets, and the fund's 
overall liquidity risk, depend on a variety of factors and are unique 
to the particular circumstances facing the fund,\619\ analysis by staff 
economists has revealed trends that are useful for

[[Page 62353]]

providing an overview of the liquidity of funds exhibiting certain 
characteristics.\620\ These trends are useful in estimating the 
relative level of liquidity of certain types of funds, and have thus 
helped to shape the scope and substance of the proposed liquidity 
regulations and to estimate the benefits and costs of the proposed 
liquidity regulations, as discussed below. Staff economists have also 
analyzed how fund portfolios change in response to decreases in market 
liquidity and large net outflows. These trends may be useful in 
examining how redemption requests could give rise to investor 
protection and potential market impact concerns.
---------------------------------------------------------------------------

    \619\ See supra section III.B.2 (discussing factors relevant to 
an assessment of the liquidity of a fund's portfolio assets); supra 
section III.C.1 (discussing factors relevant to an assessment of a 
fund's liquidity risk).
    \620\ The analysis discussed in this section reflects an 
evaluation of data on U.S. funds (primarily, U.S. equity funds and 
U.S. municipal bond funds) from the years 1999-2014, conducted by 
economists in the Commission's Division of Economic and Risk 
Analysis. DERA Study, supra note 39.
---------------------------------------------------------------------------

b. Trends in the Relationship Between Liquidity of Portfolio Assets, 
Market Capitalization of Portfolio Assets, and Fund Assets
    Staff economists have examined how the liquidity of U.S. equity 
funds' portfolios is influenced by both the market capitalization of a 
fund's portfolio assets, as well as the size of the fund in terms of 
assets. As described in more detail below, among U.S. equity funds, the 
average liquidity of a fund's equity positions is correlated with the 
market capitalization of a fund's portfolio assets, as well as the 
level of the fund's assets.\621\ The staff's analysis with respect to 
these trends is, at this point, limited to an analysis of U.S. equity 
funds, on account of limitations in the availability of current data 
with respect to the holdings of funds that are not U.S. equity 
funds.\622\ To the extent that Form N-PORT is adopted, we anticipate 
that the fund portfolio data filed on this form would significantly 
assist the staff in conducting similar liquidity-related analyses in 
the future.\623\
---------------------------------------------------------------------------

    \621\ For these purposes, ``average liquidity of a fund's equity 
positions'' is defined as the asset-weighted average liquidity of 
the individual equity positions held by the fund. Liquidity for 
individual equity positions is calculated using the Amihud liquidity 
measure because it is a widely accepted liquidity measure. See id., 
section 4.1. See also Yakov Amihud, Illiquidity and Stock Returns: 
Cross-Section and Time-Series Events, 5 J. of Fin. Markets (2002) 31 
(``Amihud'').
    \622\ DERA Study, supra note 39, at pp. 31-32.
    \623\ See infra section IV.C.3.b.
---------------------------------------------------------------------------

    Fund liquidity tends to be highest for large cap U.S. equity funds 
and lowest for small cap U.S. equity funds.\624\ As a U.S. equity 
fund's assets increase, fund liquidity also tends to increase. Among 
U.S. equity funds with less than $100 million in assets, the median 
price impact of ten million dollars in trading volume on the average 
portfolio asset is about 69 basis points; among U.S. equity funds with 
greater than $1 billion in assets, the same amount of trading volume 
has a median price impact of about 46 basis points.\625\
---------------------------------------------------------------------------

    \624\ DERA Study, supra note 39, at pp. 29-30.
    \625\ Id.
---------------------------------------------------------------------------

    To the extent that a fund invests in portfolio assets that are 
relatively less liquid, the fund may experience greater liquidity risk 
than a fund that invests in portfolio assets that are highly liquid. 
Based in part on our empirical analysis, we have decided not to propose 
any modification of or exclusion from the proposed liquidity 
requirements for smaller funds, since smaller funds tend to demonstrate 
relatively high flow volatility (and thus possibly greater liquidity 
risk).\626\ Also, based in part on staff analysis finding that 
different types of funds within the same broad investment strategy 
demonstrate different levels of liquidity (and thus, presumably, 
different levels of liquidity risk), we have decided not to propose to 
exclude certain investment strategies from the scope of the proposed 
rule.\627\ Our cost estimates associated with the proposed liquidity 
risk management program requirement reflect staff analysis showing that 
certain types of funds tend to have relatively more liquid portfolios 
than others.\628\
---------------------------------------------------------------------------

    \626\ See infra section VI; infra note 727 and accompanying 
text.
    \627\ See infra notes 726-727 and accompanying text.
    \628\ See infra section IV. C.1. and accompanying text.
---------------------------------------------------------------------------

    We do note, however, that the staff's analysis discussed in the 
previous two paragraphs may overstate the difference in liquidity risk 
between funds with differing levels of asset liquidity for two reasons. 
First, the analysis performed by the staff does not reflect the fact 
that smaller funds will have smaller positions in the underlying 
equities, and sales of relatively small positions should result in less 
price impact than sales of larger positions (although the sale of 
smaller positions should have greater transaction costs as a percentage 
of sale proceeds). However, with respect to U.S. equity funds, staff 
analysis indicates that, on average, smaller funds hold assets that are 
relatively less liquid, which may at least partially offset that 
fact.\629\ Second, the analysis does not reflect the fact that less 
liquid funds, regardless of style or size, may have larger cash and 
cash equivalent holdings or liquid asset buffers that may offset their 
less liquid holdings. Staff analysis does show that cash and cash 
equivalent holdings vary, on average, according to the funds' strategy, 
but cash and cash equivalent holdings also vary significantly among 
funds within a particular strategy.\630\ That result implies that, even 
within a relatively less liquid strategy, certain funds within the 
strategy hold relatively little cash and cash equivalents.
---------------------------------------------------------------------------

    \629\ DERA Study, supra note 39, at pp. 29-30.
    \630\ DERA Study, supra note 39, at pp. 10-12. The DERA Study 
describes how cash and cash equivalents are defined for these 
purposes.
---------------------------------------------------------------------------

c. Trends in the Manner in Which Funds' Portfolio Management Responds 
to Changes in Flow Volatility and Decreases in Market Liquidity
    While portfolio managers consider a variety of factors when 
constructing a fund's portfolio (including the fund's investment 
strategies, economic and market trends, portfolio asset credit quality, 
and tax considerations), meeting daily redemption obligations is 
fundamental for open-end funds, and funds need to manage liquidity in 
order to meet obligations. We understand, based on statements from 
members of the fund industry and staff outreach, that funds generally 
consider the portfolio management process to be of central importance 
in managing funds' liquidity risk.\631\ Commission staff has analyzed 
whether the liquidity of funds' portfolio holdings, as well as funds' 
holdings of cash and cash equivalents, is correlated with certain 
events that could affect a fund's liquidity risk--that is, increased 
flow volatility, and decreased market liquidity. As described in more 
detail below, staff analysis shows empirical results indicating that 
funds' portfolio holdings tend to be less liquid, and their holdings of 
cash and cash equivalents tend to be lower, when funds encounter 
periods of decreased flow volatility. These results indicate that 
certain funds' portfolio construction takes liquidity risk management 
into account and, as discussed below, the details comprising these 
results have both reinforced our understanding of the benefits of the 
proposed regulations and have shaped certain of the provisions of the 
proposed regulations.
---------------------------------------------------------------------------

    \631\ See, e.g., ICI FSOC Notice Comment Letter, supra note 16, 
at 14 (``For mutual funds, the central importance of meeting 
redemptions means that liquidity management is a key element of 
regulatory compliance, investment risk management, and portfolio 
management--and a constant area of focus.'').
---------------------------------------------------------------------------

    The results of the staff's analysis demonstrate that, with respect 
to U.S. equity funds, the liquidity of funds' holdings of equity 
securities is higher

[[Page 62354]]

when flow volatility is higher.\632\ As discussed above, staff's 
analysis with respect to trends that reflect the liquidity of funds' 
non-cash (or cash equivalent) holdings is limited to an analysis of 
U.S. equity funds, on account of limitations in the availability of 
current data with respect to the holdings of funds that are not U.S. 
equity funds.\633\ However, the staff was able to conduct similar 
analyses regarding the relationship between flow volatility and 
portfolio liquidity with respect to U.S. municipal bond funds, which 
are unique in that their holdings typically consist only of U.S. 
municipal bonds and cash and cash equivalents. Because U.S. municipal 
bonds are less liquid than cash, any change in the relative holdings of 
municipal bonds and cash and cash equivalents indicates a change in the 
fund's portfolio liquidity. Unlike U.S. municipal bond funds, other 
types of funds tend to hold portfolio assets that are not as 
homogenous, and thus staff would not be able to assume that changes in 
relative holdings across asset classes could indicate a change in the 
fund's portfolio liquidity. With respect to U.S. municipal bond funds, 
the holdings of municipal bonds (as opposed to these funds' holdings of 
cash and cash equivalents) are relatively lower when flow volatility is 
higher; holdings of municipal bonds are higher and holdings of cash and 
cash equivalents are lower when flow volatility is lower.\634\ Thus, 
like U.S. equity funds, U.S. municipal bond funds' portfolio liquidity 
tends to be higher when flow volatility is higher. Likewise, staff 
analysis of the cash and cash equivalent holdings of all funds 
(regardless of strategy) shows that funds with more volatile flows tend 
to hold more cash and cash equivalents.\635\
---------------------------------------------------------------------------

    \632\ DERA Study, supra note 39, at p. 37.
    \633\ See supra notes 622-623 and accompanying text.
    \634\ DERA Study, supra note 39, at pp. 39-40.
    \635\ DERA Study, supra note 39, at pp. 41-42.
---------------------------------------------------------------------------

    The results of staff's analysis on the relationship between 
portfolio liquidity and fund flow volatility are significant for 
several reasons. First, these results suggest that, as indicated by 
funds in the course of staff outreach and in funds' statements 
regarding their liquidity risk management, some funds actively manage 
their portfolio liquidity to respond to events that could challenge 
funds' ability to plan to meet redemption requests. These results also 
emphasize that flow volatility is a relevant factor that a fund should 
consider when assessing liquidity risk and managing the liquidity 
profile of its portfolio. Rule 22e-4 as proposed reflects this by 
requiring a fund to consider its cash flow projections in assessing its 
liquidity risk (and determining its three-day liquid asset minimum), 
including the volatility of historical purchases and redemptions of 
fund shares during normal and stressed periods.\636\
---------------------------------------------------------------------------

    \636\ See proposed rule 22e-4(b)(2)(iii)(A)(1).
---------------------------------------------------------------------------

    While increased flow volatility could make a fund less certain as 
to the extent of redemption requests it will be required to meet, 
changes in market liquidity (that is, the extent to which market 
factors affect the liquidity of a fund's portfolio holdings) could make 
a fund less certain that the assets its holds are sufficient to meet 
redemption requests, or meet such requests in a way that minimizes 
dilution of non-redeeming shareholders. Thus, both increased flow 
volatility and decreased market liquidity could increase a fund's 
liquidity risk. While staff analysis shows that U.S. equity fund 
liquidity decreased sharply during the 2007-2009 financial crisis, the 
cause of this decrease in liquidity is initially unclear.\637\ Fund 
liquidity could have decreased because of a general decrease in the 
liquidity of all assets in the market, or fund liquidity could have 
decreased as a result trading activity--for instance, if the fund were 
to sell its most liquid assets to pay redeeming shareholders or if the 
fund were to buy less liquid assets because of perceived profit 
opportunities. Staff analysis, however, suggests that decreases in the 
liquidity of U.S. equity funds are generally driven by changes in 
market liquidity and that funds do limited trading to offset such 
decreases.\638\ For the average U.S. equity fund, when market liquidity 
decreases by 1% from the previous quarter, fund liquidity decreases by 
0.93% from the previous quarter. Conversely, when market liquidity 
increases by 1% from the previous quarter, fund liquidity increases by 
0.82% from the previous quarter.\639\ So, while the results are 
consistent with the view that U.S. equity funds actively manage their 
portfolio liquidity, funds appear to make only minor adjustment to 
their portfolio in response to changes in market liquidity.\640\
---------------------------------------------------------------------------

    \637\ DERA Study, supra note 39, at pp. 30-31.
    \638\ DERA Study, supra note 39, at Section 6. As discussed 
above, staff's analysis with respect to trends that reflect the 
liquidity of funds' non-cash (or cash equivalent) holdings is 
limited to an analysis of U.S. equity funds, on account of 
limitations in the availability of current data with respect to the 
holdings of funds that are not U.S. equity funds. See also supra 
notes 622-623 and accompanying text.
    \639\ DERA Study, supra note 39, at pp. 34-35.
    \640\ Funds may be unable to fully offset decreases in market 
liquidity because of their investment mandate. A small cap mutual 
fund cannot simply begin buying only large cap stocks just because 
the liquidity of small cap stocks has decreased.
---------------------------------------------------------------------------

    This analysis demonstrates that fund portfolio liquidity tends to 
be lower during periods of decreased market liquidity. Based on this 
analysis, if a shareholder were to redeem shares during a period of 
decreased market liquidity, funds would likely have a less liquid 
portfolio of assets available to sell to meet redemptions. To the 
extent that selling those relatively less liquid assets requires the 
fund to accept a discount from the assets' market value, the value of 
the fund's shares would be negatively affected. Our staff's analysis 
thus highlights a source of potential concern regarding investor 
protection, reinforcing our motivation to propose regulations to better 
protect investors by enhancing funds' liquidity risk management. A 
primary benefit of the proposed liquidity risk management program 
requirement, discussed below, is the potential for the requirement to 
improve investor protection by decreasing the likelihood that a fund 
would be unable to meet its redemption obligations, or meet such 
obligations by materially affecting the fund's NAV.\641\
---------------------------------------------------------------------------

    \641\ See infra section IV.C.1.b.
---------------------------------------------------------------------------

d. Trends in Fund Strategies To Meet Redemption Requests
    A fund may meet redemption requests in a variety of ways, including 
by using available cash to pay all redemptions. If a fund were to sell 
portfolio assets in order to meet redemption requests, the fund's 
portfolio liquidity will be affected by the choice of which assets will 
be sold. Subsequent rebalancing of the fund's portfolio after 
redemptions are met will also affect portfolio liquidity. For example, 
a fund facing a large redemption request can lessen the price impact of 
selling assets by selling the most liquid portion of the 
portfolio.\642\ That choice benefits non-redeeming investors by 
minimizing the loss in fund value due to the price impact of selling, 
but it also could increase the liquidity risk of the fund 
portfolio.\643\ If the fund instead were to

[[Page 62355]]

sell a ``strip'' of the portfolio (i.e., a cross-section or 
representative selection of the fund's portfolio assets), the impact on 
fund value may be greater, but the liquidity of the fund portfolio 
would be unchanged as a result of the sale. Funds also could choose to 
meet redemptions by selling a range of assets in between its most 
liquid, on one end of the spectrum, and a perfect pro rata strip of 
assets, on the other end of the spectrum. Additionally, funds could 
choose to opportunistically pare back or eliminate holdings in a 
particular asset or sector to meet redemptions.
---------------------------------------------------------------------------

    \642\ We note that in some instances, selling only the most 
liquid assets to meet a large redemption could be inconsistent with 
the fund's investment mandate. For example, if a fund's investment 
mandate required it to hold a certain percentage of its portfolio in 
equities, the fund might not be able to sell a large portion of its 
equity holdings to meet redemption requests and still hold the 
required percentage of its portfolio in equities.
    \643\ See, e.g., supra note 37 (discussing recent circumstances 
in which, during a year of heavy redemptions that caused a high 
yield bond fund's assets to shrink 33% in this period, the fund's 
holdings of bonds rated triple-C or below grew to 47% of assets, 
from 35% before the redemptions).
---------------------------------------------------------------------------

    Staff analysis of the impact of large redemptions on portfolio 
liquidity suggests that the typical U.S. equity fund does not sell a 
strip of its portfolio assets to meet redemptions, but instead 
appears--based on changes in funds' portfolio liquidity following net 
outflows--to disproportionately sell the more liquid portion of its 
portfolio for this purpose.\644\ Similarly, staff analysis shows that 
when a U.S. municipal bond fund encounters net outflows, the typical 
U.S. municipal bond fund will experience an increase in its holdings of 
municipal bonds (and a decrease in its holdings of cash and cash 
equivalents), thus decreasing the fund's overall portfolio 
liquidity.\645\ This suggests that U.S. municipal bond funds tend to 
satisfy redemption requests with cash, and not by selling a strip of 
the fund's portfolio assets.
---------------------------------------------------------------------------

    \644\ DERA Study, supra note 39, at pp. 43-46.
    \645\ DERA Study, supra note 39, at pp. 47-49; see also supra 
notes 633-634 and accompanying text (discussing the staff's 
assumptions that a decrease in the holdings of municipal bonds by a 
U.S. municipal bond fund would increase the fund's liquidity, as 
well as the reasons that the staff does not make similar assumptions 
about funds other than U.S. municipal bond funds).
---------------------------------------------------------------------------

    Holding all else equal, as the liquidity of a U.S. equity fund 
portfolio decreases, the price impact of selling a strip of that 
portfolio increases.\646\ As a result, we would expect less liquid U.S. 
equity funds to have greater incentive to meet redemption requests by 
selling their most liquid assets rather than a strip of their 
portfolio. Staff analysis suggests that, as initial liquidity 
decreases, U.S. equity funds do become more likely to 
disproportionately sell their relatively more liquid assets, rather 
than strips of their portfolio, to meet redemptions.\647\ That choice 
has the effect of decreasing the liquidity of the portfolio, which 
could potentially disadvantage non-redeeming shareholders by increasing 
the fund's liquidity risk.\648\ As discussed below, we believe that a 
significant benefit of the liquidity risk management program 
requirement is the decreased possibility that a fund's actions taken in 
order to pay redemptions would result in negative effects on the fund's 
liquidity profile that could ultimately harm non-redeeming 
shareholders.\649\
---------------------------------------------------------------------------

    \646\ DERA Study, supra note 39, at pp. 25-26. The Amihud 
liquidity measure used in this analysis measures price impact. When 
using this measure, price impact increases when liquidity decreases, 
by definition. However, using alternative measures of liquidity, 
this statement would not necessarily be true. See supra note 621.
    \647\ DERA Study, supra note 39, at pp. 45-46 and Table 19.
    \648\ While a holder of an illiquid asset receives compensation 
in the form of an illiquidity premium (see, e.g., Amihud, supra note 
621, at 31), non-redeeming investors might not be aware of the 
change in portfolio liquidity and would therefore maintain an 
allocation that does not reflect their liquidity risk preference.
    \649\ See infra section IV.C.1.b.
---------------------------------------------------------------------------

3. Fund Industry Developments Highlighting the Importance of Funds' 
Liquidity Risk Management
a. Overview
    Along with staff analysis of economic relationships regarding 
funds' portfolio liquidity, evaluating recent fund industry 
developments also point to concerns about the need for funds to have 
liquidity risk management programs that will reduce the risk that funds 
will be unable to meet redemption obligations without materially 
affecting the fund's NAV or risk profile and mitigate dilution of 
interests of fund shareholders.\650\ These developments include the 
growth in assets managed by funds with strategies that are generally 
viewed as concentrating in relatively less liquid asset holdings, as 
well as the growth in assets managed by funds with strategies that tend 
to exhibit relatively high portfolio flow volatility, which could give 
rise to increased liquidity risk. This section provides details about 
these industry trends.
---------------------------------------------------------------------------

    \650\ See supra section IV.A.
---------------------------------------------------------------------------

    Below we discuss the size and growth of the U.S. fund industry 
generally, as well as the growth of various investment strategies 
within the industry. We show that the fund industry has grown 
significantly in the past two decades, and during this period, funds 
with international strategies, fixed income funds, and funds with 
alternative strategies have grown particularly quickly. We also examine 
trends regarding the volatility and predictability of fund flows, 
discussing in particular those types of funds that demonstrate notably 
volatile and unpredictable flows. Because volatility and predictability 
in a fund's flows can affect the extent to which the fund is able to 
meet expected and reasonably foreseeable redemption requests without 
materially affecting a fund's NAV or dilution of the interests of fund 
shareholders, assessing trends regarding these factors can provide 
information about sectors of the fund industry that could be 
particularly susceptible to liquidity risk.
    While we believe that these trends are relevant from the 
perspective of addressing potential liquidity risk in the fund industry 
(and in funds' underlying portfolio assets), we emphasize that 
liquidity risk is not confined to certain types of funds or investment 
strategies. Although we recognize that certain fund characteristics 
could make a fund relatively more prone to liquidity risk, we believe 
that all types of funds entail liquidity risk to some extent.\651\ 
Thus, while in this section we discuss certain types of funds and 
strategies that are generally considered to exhibit increased liquidity 
risk, we are not asserting that only these types of funds and 
strategies involve liquidity risk, or that a fund of the type and with 
the strategy discussed below necessarily demonstrates greater liquidity 
risk than a fund that does not have these same characteristics.
---------------------------------------------------------------------------

    \651\ See supra section III.A.2.
---------------------------------------------------------------------------

b. Size and Growth of the U.S. Fund Industry and Various Investment 
Strategies Within the Industry
    Open-end funds and ETFs manage a significant and growing amount of 
assets in U.S. financial markets. As of the end of 2014, there were 
8,734 open-end funds (excluding money market funds, but including 
ETFs), as compared to 5,279 at the end of 1996.\652\ The assets of 
these funds were $15.05 trillion in 2014, having grown from about $2.63 
trillion in 1996.\653\ Within these figures, the number of ETFs and 
ETFs' assets have increased notably in the past decade. There were 
1,411 ETFs in 2014, as opposed to a mere 119 in 2003, and ETFs' assets 
have increased from $151 billion in 2003 to $1.9 trillion in 2014.\654\
---------------------------------------------------------------------------

    \652\ See 2015 ICI Fact Book, supra note 3, at 177, 184.
    \653\ See 2015 ICI Fact Book, supra note 3, at 175, 183.
    \654\ See 2015 ICI Fact Book, supra note 3, at 60.
---------------------------------------------------------------------------

    U.S. equity funds represent the greatest percentage of U.S. open-
end fund industry assets.\655\ Excluding ETFs, money market funds and 
variable annuities, open-end U.S. equity funds held 44.5% of U.S. fund 
industry assets as of the end of 2014. The investment

[[Page 62356]]

strategies with the next-highest percentages of U.S. fund industry 
assets are foreign equity funds (15.4%), mixed strategy funds (13.7%), 
and general bond funds (13.3%).\656\ Funds with alternative strategies 
only represent a small percentage of the U.S. fund industry assets, but 
as discussed below, the number of alternative strategy funds and the 
assets of this sector have grown considerably in recent years.\657\
---------------------------------------------------------------------------

    \655\ DERA Study, supra note 39, at Table 1.
    \656\ Id. The figure for general bond funds does not include 
assets attributable to foreign bond funds (2.0%), U.S. corporate 
bond funds (0.8%), U.S. government bond funds (1.3%), and U.S. 
municipal bond funds (4.5%).
    \657\ DERA Study, supra note 39, at pp. 7-8.
---------------------------------------------------------------------------

    While the overall growth rate of funds' assets has been generally 
high (about 8.0% per year, between the years 2000 and 2014 \658\), it 
has varied significantly by investment strategy.\659\ U.S. equity 
funds' assets grew substantially in terms of dollars from the end of 
2000 to 2014,\660\ but this sector's assets as a percentage of total 
U.S. fund industry assets decreased from about 65% to about 45% during 
that same period.\661\ Like U.S. equity funds, the assets of U.S. 
corporate bond funds, government bond funds, and municipal bond funds 
also increased in terms of dollars from 2000 to 2014, but each of these 
sectors' assets as a percentage of the fund industry decreased during 
this period.\662\ On the other hand, the assets of foreign equity 
funds, general bond funds, and foreign bond funds increased steadily 
and substantially as a percentage of the fund industry over the same 
period.\663\ For example, foreign equity funds increased steadily from 
10.6% of total industry assets in 2000 to 15.4% in 2014. And within 
these three investment strategies, certain investment subclasses 
(emerging market debt and emerging market equity) have grown 
particularly quickly from 2000 to 2014.\664\
---------------------------------------------------------------------------

    \658\ DERA Study, supra note 39, at Table 2.
    \659\ The figures in this paragraph and the following paragraph, 
discussing the variance in growth rate of funds' assets by 
investment strategy, exclude ETF assets.
    \660\ U.S. equity funds held about $5.6 trillion as the end of 
2014, compared to about $2.9 trillion at the end of 2000. DERA 
Study, supra note 39, at Table 2.
    \661\ DERA Study, supra note 39, at Table 2.
    \662\ Id. U.S. corporate bond funds held about $99 billion at 
the end of 2014, as opposed to $66 billion in 2000; these funds' 
assets as a percentage of the U.S. fund industry decreased from 1.5% 
in 2000 to 0.8% in 2014. U.S. government bond funds held about $166 
billion at the end of 2014, as opposed to $91 billion in 2000; these 
funds' assets as a percentage of the U.S. fund industry decreased 
from 2.1% in 2000 to 1.3% in 2014. U.S. municipal bond funds held 
about $565 billion at the end of 2014, as opposed to $278 billion in 
2000; these funds' assets as a percentage of the U.S. fund industry 
decreased from 6.3% in 2000 to 4.5% in 2014.
    \663\ Id. Foreign equity funds held about $1.9 trillion in 2014, 
as opposed to $465 billion in 2000; these funds' assets as a 
percentage of the U.S. fund industry increased from 10.6% in 2000 to 
15.4% in 2014. U.S. general bond funds held about $1.7 trillion at 
the end of 2014, as opposed to $240 billion in 2000; these funds' 
assets as a percentage of the U.S. fund industry increased from 5.4% 
in 2000 to 13.3% in 2014. Foreign bond funds held about $259 billion 
at the end of 2014, as opposed to $19 billion in 2000; these funds' 
assets as a percentage of the U.S. fund industry increased from 0.4% 
in 2000 to 2.0% in 2014.
    \664\ DERA Study, supra note 39, at p. 9. Emerging market debt 
and emerging market equity funds held about $334 billion at the end 
of 2014, as opposed to $20 billion in 2000. The assets of emerging 
market debt funds and emerging market equity funds grew by an 
average of 20.8% and 22.7%, respectively, each year from 2000 
through 2014.
     These investment subclasses represent a small portion of the 
U.S. mutual fund industry (the combined assets of these investment 
subclasses as a percentage of the U.S. fund industry was 2.6% at the 
end of 2014).
---------------------------------------------------------------------------

    The assets of funds with alternative strategies \665\ also have 
grown rapidly in recent years. From 2005 to 2014, the assets of 
alternative strategy funds grew from $366 million to $334 billion, and 
from the end of 2011 to the end of 2013, the assets of alternative 
strategy funds grew by almost 80% each year. However, as discussed 
above, funds with alternative strategies remain a relatively small 
portion of the U.S. fund industry as a percentage of total assets.\666\ 
While growth in funds with alternative strategies has slowed over the 
past year, a rising interest rate environment could cause inflows to 
these funds to increase once again, as investors look to reduce their 
interest rate risk and/or increase income by investing in alternative 
strategies.\667\
---------------------------------------------------------------------------

    \665\ See supra note 64 for a discussion of the primary 
investment strategies practiced by ``alternative strategy'' funds.
    \666\ See supra note 657 and accompanying text.
    \667\ See supra note 66.
---------------------------------------------------------------------------

c. Significance of Fund Industry Developments
    The industry developments discussed above are notable for several 
reasons. The growth of funds generally over the past few decades 
demonstrates that investors have increasingly come to rely on 
investments in funds to meet their financial needs.\668\ As investments 
in funds increase, the need for continued effective regulations to 
protect investors is paramount. Initiatives such as the proposed 
liquidity regulations, which aim to promote shareholder protection by 
enhancing funds' liquidity risk management, are important to decrease 
the risk that funds will be unable to meet redemption obligations and 
reduce potential dilution of the interests of fund shareholders.
---------------------------------------------------------------------------

    \668\ See supra note 6 and accompanying text.
---------------------------------------------------------------------------

    These trends also demonstrate growth in particular types of funds 
that may entail increased liquidity risk. In particular, there has been 
significant growth in high-yield bond funds, emerging market debt 
funds, and funds with alternative strategies. Commissioners and 
Commission staff have previously spoken about the need to focus on 
potential liquidity risks relating to fixed income assets and fixed 
income funds,\669\ and within this sector, funds that invest in high-
yield bonds could be subject to greater liquidity risk as they invest 
in lower-rated bonds that tend to be less liquid than investment grade 
fixed income securities.\670\ Emerging market debt funds may invest in 
relatively illiquid securities with lengthy settlement periods.\671\ 
Likewise, funds with alternative strategies may invest in portfolio 
assets that are relatively illiquid.\672\ Moreover, Commission staff 
economists have found that both foreign bond funds (including emerging 
market debt funds) and alternative strategy funds have historically 
experienced relatively more volatile and unpredictable flows than the 
average mutual fund,\673\ which could increase these funds' liquidity 
risk by making it more difficult to plan to meet fund redemptions (and 
thus, more likely that a fund may need to sell portfolio assets in a 
manner that creates a market impact in order to pay redeeming 
shareholders).\674\ On account of these characteristics of high-yield 
bond funds, emerging market debt

[[Page 62357]]

funds, and funds with alternative strategies, we are concerned that the 
growth in these strategies could give rise to increased concerns 
regarding these funds' liquidity risk.
---------------------------------------------------------------------------

    \669\ See supra note 62 and accompanying text.
    \670\ The Commission and Commission staff have cautioned that 
high yield securities may be considered to be illiquid, depending on 
the facts and circumstances. See Interval Fund Proposing Release, 
supra note 83; see also SEC Investor Bulletin, What Are High-Yield 
Corporate Bonds?, available at http://www.sec.gov/investor/alerts/ib_high-yield.pdf (noting that high-yield bonds may be subject to 
more liquidity risk than, for example, investment-grade bonds). But 
see BlackRock, Viewpoint, Who Owns the Assets?, supra note 79 
(discussing the liquidity characteristics of high-yield bond funds 
in depth, and noting that these funds have weathered multiple market 
environments, and are generally managed with multiple sources of 
liquidity).
    \671\ See, e.g., supra note 197 and accompanying text 
(discussing the settlement cycles associated with transactions in 
certain foreign securities); see also Reuters, ``Fitch: Close Look 
at EM Corporate Bond Trading Reveals Liquidity Risks'' (Apr. 16, 
2015), available at http://www.reuters.com/article/2015/04/16/idUSFit91829620150416. But see BlackRock, Viewpoint, Who Owns the 
Assets?, supra note 79 (discussing the liquidity characteristics of 
emerging market debt funds in depth, and noting that these funds 
tend to hold a portion of their assets in developed market 
government bonds (providing further liquidity), generally establish 
limits on less liquid issuers, and generally maintain allocations to 
cash for liquidity and rebalancing purposes).
    \672\ See supra notes 68-72 and accompanying text.
    \673\ DERA Study, supra note 39, at pp. 16-24.
    \674\ See supra notes 269-270 and accompanying text.
---------------------------------------------------------------------------

C. Benefits and Costs, and Effects on Efficiency, Competition, and 
Capital Formation

    Taking into account the goals of the proposed liquidity regulations 
and the economic baseline, as discussed above, this section explores 
the benefits and costs of the proposed liquidity regulations, as well 
as the potential effects of the proposed liquidity regulations on 
efficiency, competition, and capital formation. This section also 
discusses reasonable alternatives to proposed rule 22e-4, proposed rule 
22c-1(a)(3), and the proposed disclosure and reporting requirements 
regarding funds' liquidity risk and liquidity risk management and swing 
pricing.
1. Proposed Rule 22e-4
a. Requirements of Proposed Rule 22e-4
    Proposed rule 22e-4 would require each fund to establish a written 
liquidity risk management program. The proposed rule specifies that a 
fund's liquidity risk management program shall include the following 
required program elements: (i) Classification and ongoing review of the 
classification of the liquidity of each of the fund's positions in a 
portfolio asset (or portions of a position in a particular asset), 
taking into account certain specified factors set forth in the rule; 
\675\ (ii) assessment and periodic review of the fund's liquidity risk 
taking into account certain specified factors set forth in the rule; 
\676\ and (iii) management of the fund's liquidity risk.\677\ A fund's 
policies and procedures for managing liquidity risk, in turn, must 
incorporate the determination and periodic review of the adequacy of a 
fund's three-day liquid asset minimum (that is, the percentage of the 
fund's net assets that must be invested in three-day liquid 
assets).\678\ Proposed rule 22e-4 would also prohibit a fund from 
acquiring any: (i) Less liquid asset, if immediately after the 
acquisition, the fund would have invested less than its three-day 
liquid asset minimum in three-day liquid assets; \679\ or (ii) 15% 
standard asset, if immediately after the acquisition, the fund would 
have invested more than 15% of its net assets in 15% standard 
assets.\680\ In addition, proposed rule 22e-4 would require a fund to 
establish policies and procedures regarding redemptions in kind, to the 
extent that the fund engages in or reserves the right to engage in 
redemptions in kind.\681\
---------------------------------------------------------------------------

    \675\ Proposed rule 22e-4(b)(2)(i)-(ii).
    \676\ Proposed rule 22e-4(b)(2)(iii).
    \677\ Proposed rule 22e-4(b)(2)(iv).
    \678\ Proposed rule 22e-4(b)(2)(iv)(A)-(B).
    \679\ Proposed rule 22e-4(b)(2)(iv)(C).
    \680\ Proposed rule 22e-4(b)(2)(iv)(D).
    \681\ Proposed rule 22e-4(b)(2)(iv)(E).
---------------------------------------------------------------------------

    A fund's board, including a majority of the fund's independent 
directors, would be required to approve the fund's liquidity risk 
management program (including the fund's three-day liquid asset 
minimum), as well as any material change to the program.\682\ The fund 
would be required to designate the fund's adviser or officers 
responsible for administering the program, and such designation is 
required to be approved by the fund's board of directors.\683\ The 
fund's board would also be required to review, at least annually, a 
written report prepared by the fund's investment adviser or officers 
administering the liquidity risk management program reviewing the 
adequacy of the fund's liquidity risk management program, including the 
fund's three-day liquid asset minimum, and the effectiveness of its 
implementation.\684\
---------------------------------------------------------------------------

    \682\ Proposed rule 22e-4(b)(3)(i).
    \683\ Proposed rule 22e-4(b)(3)(iii).
    \684\ Proposed rule 22e-4(b)(3)(ii).
---------------------------------------------------------------------------

    Proposed rule 22e-4 also includes certain recordkeeping 
requirements. A fund would be required to keep a written copy of its 
liquidity risk management policies and procedures, as well as copies of 
any materials provided to the fund's board in connection with the 
approval of the initial liquidity risk management program and any 
material changes to the program and annual board reporting 
requirement.\685\ A fund also would be required to keep a written 
record of how its three-day liquid asset minimum, and any adjustments 
thereto, were determined.\686\
---------------------------------------------------------------------------

    \685\ Proposed rule 22e-4(c)(1) and (2).
    \686\ Proposed rule 22e-4(c)(3).
---------------------------------------------------------------------------

b. Benefits
    We believe that proposed rule 22e-4 is likely to produce benefits 
for current and potential fund investors. Specifically, we believe that 
the proposed program requirement is likely to improve investor 
protection by decreasing the chance that a fund would be unable to meet 
its redemption obligations, would meet such obligations only by 
materially affecting the fund's NAV, or would meet such obligations 
through methods that would have other adverse impacts on non-redeeming 
investors (e.g., increased risk exposure and decreased liquidity). 
Funds are not currently subject to specific requirements under the 
federal securities laws or Commission rules obliging them to manage 
their liquidity risk.\687\ Also, with the exception of money market 
funds, funds are currently guided by Commission guidelines (not rules) 
that generally limit their investment in illiquid assets.\688\ As 
discussed above, funds today employ notably different practices for 
assessing and classifying the liquidity of their portfolio assets, as 
well as for assessing and managing fund liquidity risk. Some of these 
practices take into account multiple aspects relating to portfolio 
assets' liquidity (including relevant market, trading, and asset-
specific factors), involve comprehensive assessment and robust 
management of fund liquidity risk, and incorporate ongoing review of 
both portfolio liquidity and fund liquidity risk. Outreach by 
Commission staff has found that practices of some funds raise concerns 
regarding various funds' ability to meet their redemption obligations 
and lessen the effects of dilution. Also, while some funds have 
independent oversight of their liquidity risk outside of the portfolio 
management process, others do not. While a fund's portfolio management 
has access to a great deal of information relevant to the liquidity of 
the fund's portfolio assets, and thus pertinent to the fund's liquidity 
risk, a portfolio manager may have conflicts of interest that could 
impede effective liquidity risk management.\689\ For example, because 
investments in relatively less liquid assets may result in higher total 
returns for a fund, fund managers may have incentive to increase their 
funds' investment in illiquid assets levels in a manner that is 
potentially inconsistent with the funds' expected and reasonably 
foreseeable redemptions. Consequently, to the extent that some funds do 
not currently meet the minimum baseline requirements for fund 
assessment and management of liquidity risk proposed in this rule, 
investor protection would be enhanced by reducing the risk that funds 
will be unable to meet redemption obligations and mitigating dilution 
of fund shareholders.
---------------------------------------------------------------------------

    \687\ See supra section IV.B.1.a.
    \688\ See id.
    \689\ See text accompanying supra note 258.
---------------------------------------------------------------------------

    We believe that the proposed liquidity risk management program 
requirement would promote improved alignment of the liquidity of the 
fund's portfolio with the fund's expected (and reasonably foreseeable) 
levels of redemptions. As discussed above, proposed rule 22e-4 would 
require each fund to consider a

[[Page 62358]]

standard set of factors, as applicable, in classifying the liquidity of 
its portfolio assets and in assessing its liquidity risk, and to 
determine a three-day liquid asset minimum to increase the likelihood 
that the fund will hold adequate liquid assets to meet redemption 
requests without materially affecting the fund's NAV. Each fund would 
have flexibility to determine the particular assets that it holds in 
connection with its three-day liquid asset minimum. Assets eligible for 
inclusion in a fund's three-day liquid asset minimum holdings could 
include a broad variety of securities, as well as cash and cash 
equivalents. While one fund may conclude that it is appropriate to hold 
a significant portion of its three-day liquid assets in cash and cash 
equivalents, another could decide it is appropriate to hold assets that 
are convertible to cash within longer periods (but not exceeding three 
business days) as the majority of its three-day liquid asset minimum 
holdings. We believe that the proposed three-day liquid asset minimum 
requirement would allow funds to continue to meet a wide variety of 
investors' investment needs by obliging funds to maintain appropriate 
liquidity in their portfolios, while permitting funds to remain 
substantially invested in portfolio assets that conform to their 
investment strategies. The limitation on acquisition of 15% standard 
assets would complement the three-day liquid asset minimum requirement 
to increase the likelihood that a fund's portfolio is not overly 
concentrated in assets whose liquidity is extraordinarily limited.
    We believe that the proposed rule also would decrease the 
probability that a fund will be able to meet redemption requests only 
through activities that can materially affect the fund's NAV or risk 
profile or dilute the interests of fund shareholders. For example, when 
a fund does not effectively manage liquidity and is faced with 
significant redemptions, it may be forced to sell portfolio assets 
under unfavorable circumstances, which could create significant 
negative price pressure on those assets.\690\ This, in turn, could 
disadvantage non-redeeming shareholders by decreasing the value of 
those shareholders' interests in the fund.\691\ Even if a fund were to 
sell the most liquid portion of its portfolio to meet redemption 
requests, which would minimize the loss in fund value due to the price 
impact of selling, these asset sales could decrease the liquidity of 
the fund portfolio, potentially creating increased liquidity risk for 
non-redeeming shareholders. As discussed above, staff analysis suggests 
that U.S. equity funds may dispose of relatively more liquid assets 
first, as opposed to selling a pro rata ``strip'' of the fund's 
portfolio assets, which minimizes price impact on a fund in the short 
term, but ultimately decreases the liquidity of the fund's 
portfolio.\692\ Short-term borrowings by a fund to meet redemption 
requests also could disadvantage non-redeeming shareholders by 
leveraging the fund and requiring the fund to pay interest on the 
borrowed funds (although, in some instances, the costs of borrowing may 
be less than the costs of selling assets to meet redemptions). For 
example, in a settled enforcement action, the Commission found that 
certain high-yield bond funds experienced liquidity problems and as a 
result, the funds borrowed heavily against a line of credit to meet 
fund redemption requests, which permitted shareholders to redeem fund 
shares at prices above the fair value of the fund's holdings. The 
result was a benefit to redeeming shareholders at the expense of 
remaining and new shareholders.\693\ Moreover, the costs of borrowing 
(that is, the costs associated with maintaining a committed line of 
credit, as well as interest expenses associated with drawing on a 
credit line) could be passed on to fund shareholders in the form of 
fund operating expenses, which could adversely affect a fund's NAV. It 
is possible that such costs could exceed any price impact caused by 
asset sales conducted to generate liquidity, particularly since the 
costs of maintaining a committed line of credit are ongoing costs, 
whereas the price impact caused by asset sales could be only temporary. 
To the extent that the proposed program requirement results in 
liquidity risk assessment and management that enhance funds' ability to 
meet redemption obligations, it would be less likely that a fund takes 
actions to pay redemptions that would materially affect the fund's NAV 
or have other adverse impacts on non-redeeming shareholders.
---------------------------------------------------------------------------

    \690\ See Coval & Stafford, supra note 51 (discussing how mutual 
fund fire sales impact asset prices).
    \691\ While the impact of fire sales on asset prices may be 
short lived in some instances, Coval and Stafford show that the 
impact of fire sales can often take many months to dissipate. Id.
    \692\ See supra note 39 and accompanying discussion.
    \693\ Heartland Release, supra note 47.
---------------------------------------------------------------------------

    The potential negative consequences of asset sales effected to pay 
fund redemptions could create incentives in times of liquidity stress 
in the markets for early redemptions, or a ``first-mover advantage.'' 
\694\ For example, recent academic studies have suggested that an 
incentive exists for market participants to front-run trades conducted 
by a fund in response to significant changes in fund flows.\695\ This 
suggests that sophisticated fund investors could anticipate that 
significant fund outflows could lead a fund to conduct trades that 
would disadvantage non-redeeming shareholders, which could create an 
incentive to redeem ahead of such trades. Among U.S. equity funds, 
staff analysis suggests that, as a fund's liquidity decreases, a fund 
will become more likely to sell its relatively more liquid assets to 
pay redemptions (thus resulting in decreased liquidity in the fund's 
portfolio).\696\ Thus, if investors' redemptions are motivated by a 
first-mover advantage, this could lead to increasing levels of 
redemptions, and as the level of outflows from a fund increases, the 
incentive to redeem also increases. Any negative effects on non-
redeeming shareholders thus could be magnified by a first-mover 
advantage to the extent that this dynamic produces growing redemptions 
and decreased portfolio liquidity. While we understand that fund 
investors may not have historically been motivated to redeem on account 
of a perceived (or actual) first-mover advantage during previous 
periods of stress,\697\ we cannot predict how investors may behave in 
the future. The first-mover advantage is more commonly referenced with 
respect to money market funds, but the incentives that have been argued 
to create the first-mover advantage among those funds exist (in 
possibly weaker form) among other open-end funds. To the extent that 
economic incentives exist to redeem fund shares prematurely, this could 
lead to investor dilution as discussed above, and the possibility of 
protecting against this potential dilution is one motivating aspect 
(but not the only or key

[[Page 62359]]

motivating aspect \698\) of the overall goal of investor protection 
that we believe the proposed rule 22e-4 would accomplish.
---------------------------------------------------------------------------

    \694\ See supra note 49 and accompanying text (discussing the 
possibility of a first-mover advantage with respect to the timing of 
shareholder redemption from funds). But see supra note 50 
(discussing arguments that such a first-mover advantage does not 
exist in funds, as well as arguments that even if incentives to 
redeem ahead of other shareholders do exist, this does not 
necessarily imply that investors will in fact redeem en masse in 
times of market stress).
    \695\ See Coval & Stafford, supra note 51; Dyakov & Verbeek, 
supra note 51.
    \696\ See supra section II.B.2.
    \697\ See, e.g., Comment Letter of Wellington Management Group 
LLP on the FSOC Notice (Mar. 25, 2015), at 4; ICI FSOC Notice 
Comment Letter, supra note 16, at 7; Nuveen FSOC Notice Comment 
Letter, supra note 45, at 10 (all arguing that evidence shows that 
fund shareholders' redemptions are largely driven by other concerns 
rather than a theoretical first-mover advantage).
    \698\ See supra notes 690-693 and accompanying text.
---------------------------------------------------------------------------

    We recognize that certain funds already engage in fairly 
comprehensive liquidity risk management practices, and the proposed 
program requirement would likely benefit these funds' shareholders less 
than it would benefit the shareholders of funds that do not employ 
equally rigorous practices. The proposed program requirement aims to 
promote a minimum baseline in the fund industry, both in the assessment 
of portfolio assets' liquidity and the evaluation of factors relevant 
to liquidity risk management. This, in turn, we believe would promote 
investor protection by elevating the overall quality of liquidity risk 
management across the fund industry, reducing the likelihood that funds 
will meet redemption obligations only through activities that could 
materially affect fund NAVs or risk profiles, and mitigating dilution 
of shareholder interests. We cannot quantify the total benefits to fund 
operations and investor protection that we discuss above, but to the 
extent that staff outreach has noted that some funds currently have no 
(or very limited) formal liquidity risk management programs in place, 
proposed rule 22e-4 would enhance current liquidity risk management 
practices.
    We also believe that the liquidity risk management program 
requirement, as proposed, would not adversely impact fund diversity and 
investor choice. While the proposed liquidity risk management program 
requirement would include certain required elements, and would require 
a fund to consider certain specified factors in classifying the 
liquidity of its portfolio assets and assessing its liquidity risk, it 
would not produce a de facto prohibition against certain investment 
strategies. We anticipate that the proposed three-day liquid asset 
minimum requirement would be sufficiently flexible to permit funds with 
different investment strategies, and whose cash flow and liquidity 
needs vary notably from one fund to the next, to manage their 
individual levels of liquidity risk. This proposed requirement would 
not mandate a standard level of minimum liquid asset holdings across 
the fund industry. Proposed rule 22e-4 thus would allow a fund with a 
relatively less liquid investment strategy to continue operating under 
that strategy, so long as the fund determines a three-day liquid asset 
minimum that takes into account the factors required to be considered 
under the proposed rule, and invests its assets in compliance with its 
three-day liquid asset minimum. (We recognize, however, that the 
proposed rule could result in a fund modifying its portfolio 
composition if it determines that the three-day liquid asset minimum 
that it should hold, as a result of its consideration of the required 
factors specified in the proposed rule, does not correspond with the 
fund's current portfolio composition.\699\) The proposed requirement 
would not adversely impact the diversity of investment strategies 
within the fund industry and would permit a fund investor to choose 
appropriate investment options for his or her risk tolerance and risk 
preferences.\700\
---------------------------------------------------------------------------

    \699\ See infra section IV.C.1.c.
    \700\ We also believe that investor choice would be facilitated 
by the proposed enhanced disclosure requirements, as discussed below 
at section IV.C.3.b.
---------------------------------------------------------------------------

    Finally, to the extent that the proposed program requirement 
results in funds less frequently needing to sell portfolio assets in 
unfavorable market conditions in order to meet redemptions, the 
proposed requirement also could lower potential spillover risks that 
funds could pose to the financial markets generally. For example, the 
proposed approach could decrease the risk that all investors holding an 
asset would be affected if a fund facing heavy redemptions were forced 
to sell portfolio assets under unfavorable circumstances, which in turn 
could create significant negative price pressure on those assets. If, 
as a result of the proposed program requirement, a fund was prepared to 
meet redemption requests in other ways, the proposed rule could 
decrease the risk that the fund might indirectly transmit stress to 
other market sectors and participants. While there have been examples 
of funds' liquidity risk management preventing spillover market effects 
that could have arisen in the face of significant shareholder 
redemptions, this prevention of larger market effects has occurred 
because of funds' organic liquidity risk management practices, and not 
because of any specific liquidity risk management requirements. It is 
unclear whether such organic practices will be sufficient to prevent 
future spillover market events of similar or greater magnitude. The 
proposed rule should help all funds, not just funds with liquidity risk 
management practices currently in place, operate in a manner that 
lessens the chance of spillover risks. We are unable to quantify this 
potential benefit because we cannot predict the extent to which funds 
would enhance their current liquidity risk management practices as a 
result of proposed rule 22e-4, or predict the precise circumstances 
that could entail negative spillover effects in light of less-
comprehensive liquidity risk management by funds.\701\
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    \701\ The ability of the Commission to perform such analysis is 
limited by difficulties in both gathering data about funds' 
liquidity risk management practices and quantifying such data.
---------------------------------------------------------------------------

c. Costs
One-Time and Ongoing Costs Associated With Program Establishment and 
Implementation
    Funds would incur one-time costs to establish and implement a 
liquidity risk management program in compliance with proposed rule 22e-
4, as well as ongoing program-related costs. As discussed above, funds 
today employ a range of different practices, with varying levels of 
comprehensiveness, for assessing and classifying the liquidity of their 
portfolio assets, as well as for assessing and managing fund liquidity 
risk. Accordingly, funds whose practices regarding portfolio asset 
liquidity classification and liquidity risk assessment and management 
most closely align with the proposed liquidity risk management program 
requirements would incur relatively lower costs to comply with proposed 
rule 22e-4. Funds whose practices for classifying the liquidity of 
their portfolio assets and for assessing and managing liquidity risk 
are less comprehensive or not closely aligned with our proposals, on 
the other hand, may incur relatively higher initial compliance costs.
    Our staff estimates that the one-time costs necessary to establish 
and implement a liquidity risk management program would range from $1.3 
million to $2.25 million \702\ per fund complex,

[[Page 62360]]

depending on the particular facts and circumstances and current 
liquidity risk management practices of the funds comprising the fund 
complex.\703\ These estimated costs are attributable to the following 
activities, as applicable to each of the funds within the complex: (i) 
Developing policies and procedures relating to each of the required 
program elements,\704\ and the related recordkeeping requirements of 
the proposed rule; (ii) planning, coding, testing, and installing any 
system modifications relating to each of the required program elements; 
(iii) integrating and implementing policies and procedures relating to 
each of the required program elements (including classifying the 
liquidity of each of the fund's positions in a portfolio asset (or 
portions of a position in a particular asset) in a portfolio asset 
pursuant to proposed rule 22e-4(b)(2)(i)), as well as the recordkeeping 
requirements of the proposed rule; (iv) preparing training materials 
and administering training sessions for staff in affected areas; and 
(v) board approval of the program. We anticipate that if there is 
demand to develop policies and procedures relating to each of the 
required program elements, third parties may develop programs that fund 
complexes could purchase for less than our estimated cost to develop 
the programs themselves. Indeed, we understand that third parties have 
already developed programs to classify the liquidity of portfolio 
assets, which are currently available for purchase.\705\ Because the 
proposed requirement for a fund to limit acquisition of 15% standard 
assets under certain circumstances is similar to existing Commission 
guidelines, we assume that a fund complex would incur minimal costs 
associated with implementing the proposed requirement to limit 
acquisition of 15% standard assets with respect to each of its 
respective funds.\706\
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    \702\ These cost estimates are based in part on the staff's 
recent estimates of the one-time systems costs associated with 
implementing the fees and gates provisions of the 2014 amendments to 
rule 2a-7 under the 1940 Act. See 2014 Money Market Fund Reform 
Adopting Release, supra note 85, at section III.A.5.b. Although the 
substance and content of systems associated with establishing and 
implementing a liquidity risk management program (including any 
systems changes associated with classifying the liquidity of funds' 
portfolio positions) would be different from the substance and 
content of systems associated with implementing the rule 2a-7 fees 
and gates provisions, the one-time costs associated with proposed 
rule 22e-4, like the one-time costs associated with the fees and 
gates provisions, would entail: Srafting relevant procedures; 
planning, coding, testing, and installing relevant system 
modifications; integrating and implementing relevant procedures; and 
preparing training materials and administering training sessions for 
staff in affected areas. See id. However, in estimating the one-time 
costs associated with proposed rule 22e-4, staff has adjusted the 
estimated one-time systems costs associated with implementing the 
fees and gates provisions to reflect that the estimated costs 
associated with implementing the fees and gates provisions include 
costs to be incurred by the fund and others in the distribution 
chain (including transfer agents, accountants, custodians, and 
intermediaries), whose services would be needed if a fund were to 
impose a fee or gate, whereas we anticipate that the proposed rule 
22e-4 requirements would be borne primarily by a fund complex and 
not by others in the distribution chain.
     We note that the estimated one-time systems costs associated 
with implementing the fees and gates provisions of the 2014 
amendments to rule 2a-7 are generally similar to the proposed 
estimated one-time systems costs associated with implementing the 
floating NAV provisions of the 2014 rule 2a-7 amendments. See id. at 
section III.B.8.a. However, the proposed estimated one-time systems 
costs associated with implementing the floating NAV provisions were 
adjusted downward at adoption, to account for certain considerations 
specific to the floating NAV reforms. Thus, staff believes that the 
one-time costs associated with the fees and gates provisions would 
provide a closer analogue to the estimated costs associated with 
proposed rule 22e-4 than the one-time costs associated with the 
floating NAV provisions.
    \703\ This estimate assumes that each fund would not bear all of 
the estimated costs (particularly, the costs of systems 
modification) on an individual basis, but instead that these costs 
would likely be allocated among the multiple users of the systems, 
that is, each of the members of a fund complex. Accordingly, we 
expect that, in general, funds within large fund complexes would 
incur fewer costs on a per fund basis than funds within smaller fund 
complexes, due to economies of scale in allocating costs among a 
group of users.
    \704\ Specifically, a fund would be required to establish 
policies and procedures relating to: (i) Classification and ongoing 
review of the classification of the liquidity of each of the fund's 
positions in a portfolio asset (or portions of a position in a 
particular asset) (proposed rule 22e-4(b)(2)(i)-(ii)); (ii) 
assessment and ongoing review of the fund's liquidity risk (proposed 
rule 22e-4(b)(2)(iii)); (iii) determination and periodic review of 
the adequacy of the fund's three-day liquid asset minimum (proposed 
rule 22e-4(b)(2)(iv)(A)-(B)); (iv) the requirement for the fund not 
to acquire any less liquid asset if, immediately after the 
acquisition, the fund would have invested less than its three-day 
liquid asset minimum in three-day liquid assets (proposed rule 22e-
4(b)(2)(iv)(C)); (v) the requirement for the fund not to acquire any 
15% standard asset if, immediately after the acquisition, the fund 
would have invested more than 15% of its net assets in 15% standard 
assets (proposed rule 22e-4(b)(2)(iv)(D)); and (vi) the requirement 
to establish policies and procedures regarding redemptions in kind, 
to the extent that the fund engages in or reserves the right to 
engage in redemptions in kind (proposed rule 22e-4(b)(2)(iv)(E)).
    \705\ See text accompanying supra note 205 (discussing proposed 
Commission guidance on a fund's use of third-party service providers 
to obtain data to inform or supplement its consideration of the 
proposed liquidity classification factors).
     We understand, based on staff outreach, that annual costs to 
subscribe to the liquidity classification services provided by 
third-party data and analytics providers currently range from 
$50,000-$500,000.
    \706\ See supra section III.C.4.a.
---------------------------------------------------------------------------

    We anticipate that, depending on the personnel (and/or third party 
service providers) involved with respect to the activities associated 
with establishing and implementing a liquidity risk management program, 
certain of the estimated one-time costs could be borne by the fund, and 
others could be borne by the fund's adviser. This cost allocation would 
be dependent on the facts and circumstances of a particular fund's 
liquidity risk management program, and thus we cannot specify the 
extent to which the estimated costs would typically be allocated to the 
fund as opposed to the adviser. Estimated costs that are allocated to 
the fund would be borne by fund shareholders in the form of fund 
operating expenses.
    Staff estimates that each fund complex would incur ongoing program-
related costs, as a result of proposed rule 22e-4, that range from 10% 
to 25% of the one-time costs necessary to establish and implement a 
liquidity risk management program.\707\ Thus, staff estimates that a 
fund complex would incur ongoing annual costs associated with proposed 
rule 22e-4 that would range from $130,000 to $562,500.\708\ These costs 
are attributable to the following activities, as applicable to each of 
the funds within the complex: (i) Classification and ongoing review of 
the classification of the liquidity of each of the fund's positions in 
a portfolio asset (or portions of a position in a particular asset) 
(proposed rule 22e-4(b)(2)(i)-(ii)); (ii) ongoing review of the fund's 
liquidity risk (proposed rule 22e-4(b)(2)(iii)); (iii) periodic review 
of the adequacy of the fund's three-day liquid asset minimum (proposed 
rule 22e-4(b)(2)(iv)(B)); (iv) systems maintenance; (v) additional 
staff training; (vi) approval by the board of any material change to 
the fund's liquidity risk management program (including a change to the 
fund's three-day liquid asset minimum) (proposed rule 22e-4(b)(3)(i)); 
(vii) periodic reports to the board of directors reviewing the adequacy 
of the fund's three-day liquid asset minimum (proposed rule 22e-
4(b)(3)(ii)); and (viii) recordkeeping relating to the fund's liquidity 
risk management program (proposed rule 22e-4(c)).\709\
---------------------------------------------------------------------------

    \707\ These cost estimates are based in part on the staff's 
recent estimates of the ongoing costs associated with implementing 
the fees and gates provisions of the 2014 amendments to rule 2a-7 
under the 1940 Act. See supra note 702 (discussing why staff 
believes that the costs associated with the fees and gates 
provisions could be useful to estimate the costs associated with 
proposed rule 22e-4). In estimating the ongoing costs associated 
with proposed rule 22e-4, staff has adjusted the ongoing costs 
associated with implementing the fees and gates provisions to 
reflect that we anticipate that the costs associated with 
classifying the liquidity of a fund's portfolio positions would 
entail the majority of the ongoing costs associated with proposed 
rule 22e-4. Staff estimates that these costs, in conjunction with 
other ongoing costs, would exceed the estimated ongoing costs 
associated with the fees and gates provisions, and thus staff has 
adjusted these estimates upward (based in part on staff knowledge of 
costs associated with liquidity analyses prepared by third-party 
service providers, as well as knowledge of the costs associated with 
board approval to the extent that a fund's board were required to 
approve a modified three-day liquid asset minimum).
    \708\ This estimate is based on the following calculations: 0.10 
x $1,300,000 = $130,000; 0.25 x $2,250,000 = $562,500.
    \709\ We anticipate that, depending on the personnel (and/or 
third party service providers) involved in the activities associated 
with administering a liquidity risk management program, certain of 
the estimated ongoing costs associated with these activities could 
be borne by the fund, and others could be borne by the adviser. See 
paragraph following supra note 706.

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[[Page 62361]]

    For purposes of this analysis, Commission staff estimates, based on 
outreach conducted with a variety of funds regarding funds' current 
liquidity risk management practices, that approximately \1/3\ of 
currently-operational fund complexes (or 289 complexes \710\) would 
incur one-time and ongoing costs on the high end of the range of costs 
associated with establishing and implementing a liquidity risk 
management program, and \2/3\ of currently-operational fund complexes 
(or 578 complexes \711\) would incur one-time and ongoing costs on the 
low end of the range. Based on these estimates, staff further estimates 
that the total aggregate one-time costs for all funds to establish and 
implement a liquidity risk management program would be approximately 
$1.4 billion.\712\ In addition, staff estimates that the aggregate 
annual costs associated with the liquidity risk management program 
requirement would be approximately $240 million.\713\
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    \710\ In developing the estimate that 289 fund complexes would 
incur one-time and ongoing costs on the high end of the range of 
costs associated with establishing and implementing a liquidity risk 
management program, the staff assumed that that fund complexes that 
include investment grade bond funds, high yield bond funds, world 
bond funds (including emerging market bond funds), multi-sector bond 
funds, state municipal funds, alternative strategy funds, and 
emerging market equity funds, as well as ETFs with any of these 
strategies, would incur costs on the high end of the range, and all 
other complexes would incur costs on the low end of the range. The 
staff assumed that the percentage of fund complexes that includes 
these selected investment strategies, as a fraction of all fund 
complexes, is the same as the percentage of all mutual funds 
(excluding money market funds) and ETFs that these strategies 
represent. The actual number of fund complexes that includes these 
selected strategies could be higher or lower than the number 
calculated using this assumption.
     605 investment grade bond mutual funds + 241 high yield bond 
mutual funds + 347 world bond mutual funds + 139 multi-sector bond 
mutual funds + 322 state municipal mutual funds + 376 alternative 
strategy funds that are equity funds (alternative strategy funds 
that are bond funds are included in our estimates of the number of 
bond mutual funds) + 469 emerging market equity mutual funds + 264 
bond ETFs + 165 emerging market ETFs = 2,928 funds. 2,928 funds / 
8,734 open-end funds (excluding money market funds, and including 
ETFs) = approximately 33% = approximately \1/3\. \1/3\ x 867 
currently-operational fund complexes = 289 fund complexes. These 
estimates are based on figures included in the 2015 ICI Fact Book. 
See 2015 ICI Fact Book, supra note 3, at Fig. 1.8.
    \711\ In developing the estimate that 578 fund complexes would 
incur one-time and ongoing costs on the high end of the range of 
costs associated with establishing and implementing a liquidity risk 
management program, the staff assumed that that fund complexes that 
include investment grade bond funds, high yield bond funds, world 
bond funds (including emerging market bond funds), multi-sector bond 
funds, state municipal funds, alternative strategy funds, and 
emerging market equity funds, as well as ETFs with any of these 
strategies, would incur costs on the high end of the range, and all 
other complexes would incur costs on the low end of the range. The 
staff assumed that the percentage of fund complexes that includes 
these selected investment strategies, as a fraction of all fund 
complexes, is the same as the percentage of all mutual funds 
(excluding money market funds) and ETFs that these strategies 
represent. The actual number of fund complexes that includes these 
selected strategies could be higher or lower than the number 
calculated using this assumption.
    8,734 open-end funds (excluding money market funds, and 
including ETFs) -2,928 funds (see supra note 710) = 5,806 funds. 
5,806 funds / 8,734 open-end funds (excluding money market funds, 
and including ETFs) = approximately 66% = approximately \2/3\. \2/3\ 
x 867 currently-operational fund complexes = 578 fund complexes. 
These estimates are based on figures included in the 2015 ICI Fact 
Book. See 2015 ICI Fact Book, supra note 3, at Fig. 1.8.
    \712\ This estimate is based on the following calculation: (578 
fund complexes x $1,300,000 = $751,400,000) + (289 fund complexes x 
$2,250,000 = $650,250,000) = $1,401,165,000.
    \713\ This estimate is based on the following calculation: (578 
fund complexes x $130,000 = $75,140,000) + (289 fund complexes x 
$562,500 = $162,562,500) = $237,702,500.
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    Certain elements of the program requirement may entail marked 
variability in related compliance costs, depending on a fund's 
particular circumstances and sources of potential liquidity risk. The 
process of classifying the liquidity of each of a fund's positions in a 
portfolio asset, taking into account the factors specified under 
proposed rule 22e-4(b)(2)(ii), could give rise to varying costs 
depending on the fund's particular investment strategy. For example, a 
U.S. large cap equity fund would likely incur relatively few costs to 
obtain the data necessary to consider the required factors. On the 
other hand, a fund that invests in assets for which relevant market, 
trading, and other liquidity-relevant data is less readily available 
would incur relatively greater costs associated with the 
classification, and ongoing review of the classification, of the funds' 
portfolio positions' liquidity. Certain of the factors that a fund 
would be required to consider in assessing its liquidity risk also 
could entail relatively greater costs, depending on the fund's 
circumstances. For instance, a fund with a relatively short operating 
history could incur greater costs in assessing the fund's cash flow 
projections than a similarly situated fund with a relatively long 
operating history. This is because the newer fund could find it 
appropriate to assess redemption activity in similar funds during 
normal and stressed periods (to predict its future cash flow patterns), 
which could entail additional costs to gather and analyze relevant data 
about these comparison funds. Also, a fund whose shares are held 
largely through omnibus accounts may wish to periodically request 
shareholder information from financial intermediaries in order to 
determine how the fund's ownership concentration may affect its cash 
flow projections. These data requests, and related analyses, could 
cause a fund to incur costs that another fund, whose shares are largely 
held directly, would not. A fund that deems it appropriate to establish 
and implement additional liquidity risk management policies and 
procedures beyond those specifically required under the proposed rule 
also would incur additional related costs. While we recognize that, as 
described above, the costs to establish and implement a liquidity risk 
management program in compliance with proposed rule 22e-4 will depend 
to some degree on the level of liquidity risk facing the fund, we are 
unable to discuss in detail all of the ways in which a fund's 
individual risks and circumstances could affect the costs associated 
with establishing a liquidity risk management program.
    A fund may incur costs if it decides to reallocate portfolio assets 
to correspond with its initial or subsequently modified three-day 
liquid asset minimum. While we are unable to anticipate how many funds 
may reallocate portfolio assets in this way, or the extent of such 
reallocation by any fund that does so, we anticipate that the 
transaction-related costs of any such reallocation will not be 
significant for most funds. This is because some funds may not need to 
reallocate portfolio assets at all to correspond with their three-day 
liquid asset minimum, and those that decide to do so would be able to 
gradually adjust their portfolios in order to buy and sell portfolio 
positions during times that are financially advantageous. We note that 
the three-day liquid asset minimum requirement would limit the 
acquisition of less liquid assets when such acquisition would result in 
a fund investing less than its three-day liquid asset minimum in three-
day liquid assets, but would not require funds always to maintain a 
certain portion of their portfolio assets in three-day liquid 
assets.\714\ Thus, while a fund may decide to reallocate its portfolio 
to correspond with its three-day liquid asset minimum by the time of 
the proposed compliance date or at any time the fund determined to 
modify the three-day liquid asset minimum, a fund would not be required 
to conduct transactions in portfolio assets in any particular 
timeframe, so long as it were to limit its acquisition of less liquid 
assets in compliance with its three-day

[[Page 62362]]

liquid asset minimum. If a fund wishes to reallocate its portfolio by 
the proposed compliance date, we anticipate that the proposed 
compliance date would provide sufficient time to do so with relatively 
few associated transaction costs. We request comment on this point in 
section III.H above. Along with the transaction-related costs 
associated with any portfolio reallocation, we recognize that this 
reallocation in turn could affect the performance and/or risk profiles 
of funds that modify their composition, which in turn could result in 
costs associated with decreased investment options available to 
investors and any changes to the market for relatively less liquid 
assets; these costs are discussed below.\715\
---------------------------------------------------------------------------

    \714\ See supra notes 346-348 and accompanying text.
    \715\ See infra paragraphs accompanying notes 716-717.
---------------------------------------------------------------------------

Potential for Decreased Investment Options and Adverse Effects
    Under the proposed rule, a fund would be required to determine its 
three-day liquid asset minimum based on a consideration of certain 
specified factors relating to the fund's liquidity risk.\716\ Because a 
fund is currently not required to consider any particular factors 
relating to its portfolio liquidity, we recognize that this requirement 
could result in a fund newly determining its existing portfolio 
liquidity profile given the fund's liquidity needs. This could lead a 
fund to modify its portfolio composition if it determines that the 
three-day liquid asset minimum that it should hold, as a result of its 
liquidity risk assessment, does not correspond with the fund's current 
portfolio composition. The proposed rule thus could result in certain 
funds increasing their investments in relatively more liquid assets, 
which in turn could affect the performance and/or risk profiles of 
funds that modify their portfolio composition in this way. This impact 
may be particularly strong for funds that plan to meet redemptions 
within seven days after receiving them (rather than a shorter period of 
time). Such modifications to funds' portfolio composition consequently 
could decrease certain investment options available to investors or 
reduce investor returns. However, because these portfolio composition 
shifts would occur only if a fund were to determine that it needs to 
adjust its existing liquidity level based on consideration of the 
factors in the proposed rule, we anticipate that the potential for 
decreased yield would likely only affect funds currently holding 
portfolios whose liquidity levels have the potential to create 
redemption-related liquidity risk for fund investors. Thus, the 
potential for decreased investment options for certain investors (and 
any related decrease in investment yield) has the corollary benefit of 
potential decreased liquidity risk in the funds in which these 
investors hold shares. Currently we are not able to quantify the number 
of funds that would need to significantly modify their portfolios' risk 
profile as a result of the proposed rule because of the lack of 
information necessary to provide a reasonable estimate. Such an 
estimate would depend on the number of funds that might need to modify 
their current portfolio composition as a result of the proposed rule, 
as well as the availability of relatively liquid assets that can act as 
adequate substitutes to existing assets for those affected funds. 
Because funds are not required to report or disclose information 
concerning the liquidity of their assets, because we cannot anticipate 
the three-day liquid asset minimum that each fund would determine to be 
appropriate based on its liquidity risk, and because we cannot 
determine what relatively more liquid assets funds would purchase as 
substitutes, we are unable to quantify the total potential costs 
discussed in this section. However, individual funds would only incur 
these costs if their current portfolio construction lacks sufficient 
liquidity to allow the offering of daily redemption without creating 
significant negative impact on investors.
---------------------------------------------------------------------------

    \716\ Proposed rule 22e-4(b)(2)(iv)(A).
---------------------------------------------------------------------------

Market for Relatively Less Liquid Assets
    As discussed above, the proposed rule could result in certain funds 
increasing their investments in relatively more liquid assets, which 
would effectively mean that these funds would decrease their 
investments in relatively less liquid assets. If funds decrease their 
investments in relatively less liquid assets, the market for those 
assets could become even less liquid. This could discourage new 
issuances of similar assets and decrease the liquidity of relatively 
less liquid assets that are still outstanding. The impact of decreased 
activity from funds in less liquid markets will depend on how much 
current activity in those markets is driven by the funds, which varies 
between markets. Further, these market effects could be partially 
offset if other opportunistic investors with greater capacity to hold 
less liquid assets are attracted to the market by any lower prices for 
these assets that result if funds decrease their holdings of less 
liquid assets.\717\ In addition, if the proposed rule leads funds to 
better assess the liquidity risk associated with certain asset 
holdings, any decrease in the prices of these assets could reflect more 
efficient pricing of the assets (that is, risk would be better 
reflected in asset prices than it is currently). Because funds 
currently are not required to report or disclose information concerning 
the liquidity of their assets, and because we cannot anticipate the 
three-day liquid asset minimum that each fund would determine to be 
appropriate based on its liquidity risk, it is difficult to predict the 
extent to which the proposed rule could lead funds to modify their 
portfolio holdings, or whether such modifications would discourage the 
issuance of certain assets. As a result, we cannot quantify the 
potential costs discussed in this section. However, these costs will 
only exist to the extent that some funds lack sufficient liquidity in 
their current portfolio to allow the offering of daily redemption 
without creating significant negative impact on investors.
---------------------------------------------------------------------------

    \717\ Relatively less liquid assets have a higher expected 
return compared to relatively more liquid assets, thereby 
compensating longer-term investors for holding relatively less 
liquid assets. See Yakov Amihud & Haim Mendelson, Asset Pricing and 
the Bid-Ask Spread, 17 J. Fin. Econ. 223 (1986).
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d. Effects on Efficiency, Competition, and Capital Formation
    The proposed liquidity risk management program requirement would 
require a fund to assess its liquidity risk and to determine its three-
day liquid asset minimum based on this risk assessment. We believe that 
the proposed requirements would improve the alignment between fund 
portfolio liquidity and fund liquidity needs. This improved alignment 
could enhance funds' ability to meet redemptions in a manner that 
mitigates potential dilution of shareholders' interests, and thus this 
improved alignment could be viewed as increasing efficiency to the 
extent that dilution is viewed as a drag on the ability of a fund's NAV 
to reflect the performance of its portfolio. Additionally, the 
requirement for a fund to classify the liquidity of its portfolio 
assets (along with the related reporting and disclosure requirements, 
discussed below) also could increase allocative efficiency by assisting 
investors in making investment choices that better match their risk 
tolerances.
    By enhancing funds' liquidity risk assessment and risk management, 
the proposed program requirement also could promote pricing efficiency 
in the sense that it would decrease the likelihood that a fund would be 
forced

[[Page 62363]]

to sell portfolio assets under unfavorable circumstances in order to 
meet redemptions (thus creating significant negative price pressure on 
those assets) without materially affecting the fund's NAV or risk 
profile. If a fund's asset sales were to temporarily move asset prices 
away from their market value, this could create a temporary pricing 
inefficiency. By decreasing the likelihood that these types of price 
movements would occur, the program requirement could decrease pricing 
inefficiency. However, the proposed program requirement could 
negatively affect the efficient pricing of relatively less liquid 
assets if it indirectly discourages funds from investing in them (for 
example, if a fund were to decrease its investments in less liquid 
assets if it determines that the three-day liquid asset minimum that it 
should hold, as a result of its liquidity risk assessment, does not 
correspond with the fund's current portfolio composition). But as 
discussed above, this market effect could be partially offset if other 
investors are incentivized to buy relatively less liquid assets on 
account of any lower prices for these assets that result if funds 
decrease their holdings of these assets.\718\ Alternatively, any price 
decreases experienced as a result of decreased mutual fund investment 
could be considered efficient price adjustments given the reduction in 
liquidity of the assets.
---------------------------------------------------------------------------

    \718\ See supra section IV.C.1.c.
---------------------------------------------------------------------------

    If the proposed liquidity risk management program requirement 
results in a material decrease in funds' investment in relatively less 
liquid assets, competition for these assets would be negatively 
affected. Under this scenario, the relatively less liquid assets in 
which funds formerly would have invested may become even less liquid, 
since the number of current or potential market participants would be 
reduced. This decrease in competition may be partially offset if some 
other investors become willing to invest in relatively less liquid 
assets because of the larger illiquidity discount now associated with 
the price of those assets. As a corollary, if the proposed liquidity 
risk management program requirement results in a material increase in 
funds' investment in three-day liquid assets, competition for these 
assets would be positively affected. As funds increase their investment 
in relatively more liquid assets, the liquidity of those assets should 
increase. However, that increase may be partially offset if some other 
investors decrease their investment in relatively more liquid assets 
because of the larger liquidity premium now associated with the price 
of those assets.
    The size of a fund, or the family of funds to which a fund belongs, 
could have certain competitive effects with respect to the fund's 
implementation of its liquidity risk management program. If there are 
economies of scale in creating and administrating multiple liquidity 
risk management programs, funds in large families would have a 
competitive advantage. For a fund in a smaller complex, however, a 
greater portion of the fund's (and/or adviser's \719\) resources may be 
needed to create and administer a liquidity risk management program, 
which may increase barriers to entry in the fund industry, and lead to 
an adverse effect on competition. The size of a fund family also could 
produce competitive advantages or disadvantages with respect to a 
fund's use of products developed by third parties to classify the 
liquidity of their portfolio assets, or to assess the fund's liquidity 
risk. Funds in a large complex also could receive relatively more 
favorable pricing for third-party liquidity risk management tools, if 
the fund complex were to purchase discounted bulk services from the 
developer or receive relationship-based pricing discounts. To the 
extent that they choose to use liquidity risk management tools such as 
committed lines of credit and interfund lending,\720\ funds in larger 
complexes likewise could receive more favorable rates on committed 
lines of credit than funds in smaller complexes, and could have 
opportunities to establish interfund lending agreements that may not be 
available to funds in smaller complexes.
---------------------------------------------------------------------------

    \719\ See paragraph following supra note 706.
    \720\ See supra section III.C.5.a (discussing and providing 
guidance on the use of these tools).
---------------------------------------------------------------------------

    Any changes in certain assets' or asset classes' liquidity that 
could indirectly result from the proposed liquidity risk management 
program requirement (for example, as discussed above, if the number of 
buyers and sellers for certain assets becomes significantly reduced as 
a result of the program requirement) could also affect capital 
formation among issuers of these assets. Some firms could be 
discouraged from issuing new securities in particular asset classes 
because of price discounts associated with lower liquidity. Or if 
changes in liquidity are not equal across all asset classes, firms may 
begin to shift their capital structure (e.g., begin to issue equity 
instead of debt) or to change the terms of certain securities that they 
issue in order to increase their liquidity (e.g., by standardizing the 
terms of certain debt securities, or modifying the securities' terms to 
promote electronic trading).
e. Reasonable Alternatives
    In formulating our proposal, we have considered various 
alternatives to the individual elements of proposed rule 22e-4. Those 
alternatives are outlined above in the sections discussing the proposed 
rule elements, and we have requested comment on these 
alternatives.\721\ The following discussion addresses significant 
alternatives to proposed rule 22e-4, which involve broader issues than 
the more granular alternatives to the individual rule elements 
discussed above.
---------------------------------------------------------------------------

    \721\ See supra sections III.A.3, III.B.1.b, III.B.2.j, 
III.B.3.b, III.C.1.e, III.C.2.b, III.C.3.d, III.C.4.b, III.C.5.e, 
III.D.4, III.E.
---------------------------------------------------------------------------

    Instead of proposing rule 22e-4, we could issue guidance 
surrounding the classification of portfolio assets' liquidity and the 
assessment and management of liquidity risk. However, on account of the 
significant diversity in liquidity risk management practices that we 
have observed in the fund industry, we believe that the need exists for 
an enhanced comprehensive baseline requirement instead of only guidance 
for fund liquidity risk management. Also, an approach that involves 
rulemaking, as opposed to merely guidance, would permit us to examine 
registrants' compliance with the requirements and bring enforcement 
actions relating to non-compliance and hence make it more likely that 
the benefits discussed above would be realized.
    We considered proposing liquidity requirements similar to those 
imposed on money market funds--that is, the requirement to hold a 
minimum level of highly liquid asset holdings, and the ability to 
impose redemption fees and gates.\722\ The requirements imposed on 
money market funds, and the tools available to these funds to manage 
heavy redemptions, are specifically tailored to the assets held by 
money market funds and the behavior of money market fund 
investors.\723\ Imposing similar regulatory requirements on funds that 
are not money market funds would ignore significant differences between 
money market funds and other funds. We discuss below why we decided not 
to propose that funds hold a minimum level of highly liquid asset 
holdings (similar to the portfolio liquidity requirements applicable to

[[Page 62364]]

money market funds). While funds are currently permitted under rule 
22c-2 to impose redemption fees under certain circumstances, we 
understand based on fund outreach that funds are generally moving away 
from the use of fees to manage short-term trading risk, and we are not 
proposing that the use of fees be expanded in light of this, as well as 
the potential operational complexity that could accompany the use of 
fees.\724\ We are not proposing that funds be permitted to impose 
redemption gates because funds that are not money market funds have not 
demonstrated the same risk of significant redemptions during times of 
market stress that money market funds may face, and which redemption 
gates are meant to prevent in money market funds. For example, while 
there is some evidence of a first-mover advantage among money market 
funds during the financial crisis, there is currently no matching 
evidence of first-mover advantage among funds that are not money market 
funds.\725\
---------------------------------------------------------------------------

    \722\ See supra notes 154-155 and accompanying text.
    \723\ See 2014 Money Market Fund Reform Adopting Release, supra 
note 85, at section II.
    \724\ See infra paragraph accompanying note 777 for a discussion 
of why we are proposing swing pricing, instead of a framework 
involving purchase fees or redemption fees, to address potential 
dilution of existing shareholder interests when a fund encounters 
significant net purchases or net redemptions and for a discussion of 
the operational differences between swing pricing and purchase and 
redemption fees.
    \725\ See 2014 Money Market Fund Reform Adopting Release, supra 
note 85, at section III.A.1.
---------------------------------------------------------------------------

    The Commission considered, but ultimately decided against, 
proposing to exclude certain types of funds from proposed rule 22e-4. 
For example, the proposed rule could have carved out exemptions for 
funds with investment strategies that historically have entailed 
relatively little liquidity risk, or funds with relatively low assets. 
We are not proposing to exclude any subset of open-end funds, other 
than money market funds, from the scope of the proposed rule. As 
discussed above, even funds with investment strategies that 
historically have involved little liquidity risk could experience 
liquidity stresses in certain environments.\726\ And investors in small 
funds could suffer from insufficient liquidity risk management just as 
investors in larger funds could. Indeed, staff analysis suggests that 
funds with relatively low total assets can experience greater flow 
volatility, including more volatility in unexpected flows, than funds 
with higher assets, which could indicate increased liquidity risk.\727\ 
The proposed program requirement is meant to permit a fund to customize 
and calibrate its liquidity risk management program to reflect the 
liquidity risks that it typically faces (and that it could face in 
stressed market conditions). This flexibility is meant to result in 
programs whose scope, and related costs and burdens, are appropriate to 
manage the actual liquidity risks facing a particular fund.
---------------------------------------------------------------------------

    \726\ See supra notes 123-125 and accompanying text.
    \727\ DERA Study, supra note 39, at pp. 16-24.
---------------------------------------------------------------------------

    We considered multiple alternatives to the proposed requirements 
regarding a fund's classification of the liquidity of its portfolio 
assets. Under proposed rule 22e-4, a fund would be required to classify 
and review the liquidity of each of the fund's positions in a portfolio 
asset (or a portion of a fund's position in a portfolio asset) based on 
the number of days within which a fund's position in a particular 
portfolio asset could be converted to cash at a price that does not 
materially affect the value of that asset assessed immediately prior to 
sale, and considering certain specified factors.\728\ Instead of these 
proposed requirements, we could have codified a definition of illiquid 
asset that reflects the current 15% guideline. Because we believe most 
funds generally adhere to the 15% guideline, this approach would have 
had the benefit of already being accepted and understood by the 
industry, and would have entailed few additional implementation costs 
for funds. However, we understand, based on staff outreach, that the 
15% guideline has generally caused funds to limit their exposures to 
particular types of securities that generally cannot be sold or sold 
quickly and that the Commission and staff have indicated are often 
illiquid, depending on the facts and circumstances. We also understand 
that it is not uncommon for a fund to consider very few (or none) of 
its portfolio assets to be 15% guideline assets. Given the parameters 
of the 15% guideline, we also do not believe that this approach would 
require the typical fund to consider the liquidity characteristics of a 
significant percentage of its portfolio.\729\ Thus, this approach alone 
would not have provided as comprehensive a view of the relative 
liquidity of portfolio assets as our proposed approach, or strengthen 
funds' ability to meet redemption obligations and mitigate dilution of 
the interests of shareholders.
---------------------------------------------------------------------------

    \728\ See rule 22e-4(b)(2)(i)-(ii).
    \729\ See supra section III.C.4.
---------------------------------------------------------------------------

    Instead of proposing an approach whereby a fund would be required 
to assign each portfolio position to one of several liquidity 
categories, we could have proposed a classification framework under 
which a fund would simply be required to classify a portfolio position 
as ``liquid'' or ``illiquid,'' based on a number of specified factors. 
As discussed above, Commission staff has found, based on outreach to a 
variety of funds, that funds with relatively comprehensive liquidity 
classification procedures tend to view the liquidity of their portfolio 
positions in terms of a liquidity spectrum rather than simply as wholly 
liquid or wholly illiquid. This ``spectrum''-based approach to 
liquidity can greatly facilitate a fund's portfolio manager in engaging 
in portfolio construction that takes into account potential varying 
liquidity needs of the fund over time. Our proposed approach to 
liquidity classification reflects our understanding that funds commonly 
evaluate assets' liquidity across such a liquidity spectrum, as opposed 
to making a binary determination of whether an asset is liquid or 
illiquid. It also more accurately conveys to investors that liquidity 
tends to be a matter of degree.
    We also considered several alternatives to the proposed requirement 
for each fund to determine its three-day liquid asset minimum and limit 
its acquisition of less liquid assets in contravention of that minimum. 
We instead could have proposed that each fund be required to determine 
a minimum buffer level of cash (or cash equivalents) that it would 
hold, or alternatively, to determine a minimum level of one-day liquid 
asset holdings. The cash buffer alternative would help ensure that a 
fund would be able to meet redemptions immediately, without the need to 
sell any portfolio assets. Likewise, a one-day liquid asset minimum 
requirement would help ensure that a fund would be able to meet 
redemptions within a very quick period, and could encourage a fund to 
hold a comparatively more liquid portfolio than the proposed three-day 
liquid asset minimum. But we believe that these options have a number 
of disadvantages. Namely, these options would not necessarily match a 
fund's liquidity needs with its redemption obligations, and could 
result in a fund being underinvested in assets that reflect the fund's 
investment strategy (and concurrent risks and performance 
potential).\730\ We considered proposing a ``seven-day liquid asset 
minimum'' requirement--that is, requiring a fund to invest in a certain 
amount of assets that

[[Page 62365]]

could be converted to cash within seven calendar days or less--which 
would correspond with a fund's redemption obligations under section 
22(e) of the Act. However, we were concerned that a seven-day liquid 
asset minimum would not provide sufficient minimum liquidity given the 
regulatory requirements and disclosures that require most funds to meet 
redemptions obligations in shorter time periods and market practices 
that effectively require all funds to meet redemption requests within 
time periods shorter than seven calendar days.
---------------------------------------------------------------------------

    \730\ We note above that if a fund's redemption practices 
require it to pay redeeming shareholders within a period shorter 
than three business days, we expect the fund would consider whether 
a specified portion of its three-day liquid asset minimum should 
consist of portfolio positions that are convertible to cash within a 
period shorter than three business days.
---------------------------------------------------------------------------

    We also considered proposing to require a standard level of three-
day liquid asset minimum holdings for all funds. This alternative 
approach would have the advantage of being simple for investors to 
understand and our examination staff to verify. However, this 
alternative fails to account for notable differences between funds with 
respect to investment strategy, fund flow patterns, and other 
characteristics that contribute to funds' liquidity risk, which in turn 
would make it reasonable for funds' portfolios to have varying 
liquidity profiles. We believe that the proposed three-day liquid asset 
minimum requirement would promote consistency in funds' consideration 
of the factors relevant to their liquidity risk management, while also 
permitting flexibility in implementation, which we believe is 
appropriate in light of the significant diversity within the fund 
industry. This approach includes elements that would help our staff to 
ascertain that funds are indeed considering the required factors: Each 
fund would be required to maintain a written record of how its three-
day liquid asset minimum was determined, as well as copies of materials 
submitted to the fund's board in connection with the board's approval 
of the three-day liquid asset minimum and reports provided to the board 
that review the adequacy of the fund's three-day liquid asset 
minimum.\731\ And as discussed above, although a fund would be 
permitted to determine its own three-day liquid asset minimum under the 
proposed rule, we believe that the requirement for a fund to consider 
certain specified factors in determining its three-day liquid asset 
minimum would likely preclude a fund from concluding that zero holdings 
of three-day liquid assets would be appropriate.\732\
---------------------------------------------------------------------------

    \731\ See proposed rule 22e-4(c)(2)-(3).
    \732\ See supra section III.C.3.a.
---------------------------------------------------------------------------

    Instead of requiring funds to determine and invest their assets in 
compliance with a three-day liquid asset minimum, we could require 
funds to conduct stress tests of their own design relating to the 
extent the fund has liquid assets to cover possible levels of 
redemptions. This would have the benefit of permitting a fund 
flexibility in determining whether its portfolio liquidity profile is 
appropriate given its liquidity needs. Also, since the three-day liquid 
asset minimum requirement implicitly also involves the requirement for 
a fund to classify its portfolio assets' liquidity in a particular 
manner (since compliance with a fund's three-day liquid asset minimum 
would require knowing which assets are three-day liquid assets), not 
requiring funds to determine a three-day liquid asset minimum would 
permit a fund to not incur the costs associated with the proposed 
liquidity classification requirements. As discussed above, some funds 
already conduct stress testing incorporating the factors that a fund 
would be required to consider in assessing their liquidity risk and 
determining their three-day liquid asset minimum based on this 
assessment.\733\ But, because the quality and comprehensiveness of 
funds' liquidity risk management currently varies significantly, we 
believe that requiring a certain set of factors to be considered in 
assessing and managing liquidity risk (including determining the fund's 
three-day liquid asset minimum) is important in reducing the risk that 
funds will be unable to meet their redemption obligations under the 
Investment Company Act and elevating the overall quality of liquidity 
risk management across the fund industry. Also, we believe that it 
would be difficult to determine, depending on the level of discretion a 
fund would have in developing stress scenarios, whether these scenarios 
would accurately depict liquidity risk and lead funds to determine the 
appropriate level of portfolio liquidity they should hold. For example, 
if a fund's liquidity needs were generally high during normal periods, 
but were not correspondingly extreme during stress events, basing this 
fund's portfolio liquidity on the results of stress testing alone could 
cause a fund to hold too little liquidity during non-stressed periods. 
Therefore we do not believe that a general stress testing requirement 
would be an adequate substitute for the three-day liquid asset minimum 
requirement.\734\
---------------------------------------------------------------------------

    \733\ See supra note 257 and accompanying text.
    \734\ We do note, however, that section 165(i)(2) of the Dodd-
Frank Act obligates the Commission to specify certain stress testing 
requirements for certain large non-bank financial companies we 
regulate, including investment companies. See supra note 104 and 
accompanying text regarding initiatives to address the impact of 
open-end fund investment activities on investors and the financial 
markets.
---------------------------------------------------------------------------

    Finally, we considered proposing a liquidity risk management 
program requirement that would not incorporate a three-day liquid asset 
minimum requirement (or one of the alternatives to this requirement 
discussed in the preceding paragraphs). Under this alternative, a fund 
would be required to adopt and implement a liquidity risk management 
program, which would include the proposed requirements regarding a 
fund's classification of the liquidity of its portfolio assets (and 
related reporting and disclosure regarding its portfolio assets' 
liquidity) and the proposed requirements limiting investments in 15% 
standard assets, but a fund would not be required to establish a 
minimum level of three-day liquid assets. This alternative would have 
the benefit of permitting funds to have a large amount of flexibility 
in managing their liquidity risk. Although a fund would need to ensure 
that it is able to meet its redemption obligations and would be subject 
to the proposed limitations on investments in 15% standard assets, it 
would be subject to no other requirements regarding its portfolio 
liquidity. This would provide flexibility, for example, for a fund to 
adjust its liquidity profile very quickly in light of changing market 
conditions, whereas a fund subject to the three-day liquid asset 
minimum requirement might not be able to do so as quickly, to the 
extent the fund's board would be required to approve a change in the 
fund's three-day liquid asset minimum. It also would permit a fund to 
calibrate portfolio liquidity based on the factors the fund or its 
adviser considers appropriate, instead of the factors that the proposed 
rule would require a fund to consider in determining its three-day 
liquid asset minimum. To the extent that a fund's portfolio liquidity 
was not in line with investors' risk tolerances, investors could decide 
not to invest in the fund, based on information about the fund's 
portfolio liquidity reported on Form N-PORT.
    We do not believe, however, that this alternative would adequately 
respond to primary goals of this rulemaking, that is, reducing the 
risks that funds will be unable to meet their redemption obligations 
and reducing potential dilution of non-redeeming shareholders. We 
believe that the three-day liquid asset minimum requirement is a 
critical element of the proposed liquidity risk management program 
requirement that is designed to provide investors with increased 
protections regarding how

[[Page 62366]]

fund portfolio liquidity is managed. As discussed above, we believe 
that the proposed three-day liquid asset minimum requirement would 
result in a portfolio liquidity standard that fosters consistency in 
funds' consideration of the factors relevant to their liquidity risk 
management, while simultaneously permitting flexibility in 
implementation.\735\ While the board approval requirement associated 
with the three-day liquid asset minimum could add a layer of process if 
a fund wished to change its liquidity profile, we believe that this 
requirement is necessary because it would add independent oversight 
over funds' liquidity risk management.\736\ Although we believe that 
reporting and disclosure regarding a fund's portfolio liquidity are 
important, we do not believe that they would be sufficient to promote a 
high quality of liquidity risk management across the fund industry 
because they would not necessarily require a fund to consider its 
portfolio liquidity in relation to its liquidity needs.
---------------------------------------------------------------------------

    \735\ See supra section III.C.3.
    \736\ See supra section III.D.1.
---------------------------------------------------------------------------

2. Swing Pricing
a. Requirements of Proposed Rule 22c-1(a)(3)
    Under proposed rule 22c-1(a)(3), a fund (with the exception of a 
money market fund or ETF) would be permitted to establish and implement 
swing pricing policies and procedures that would, under certain 
circumstances, require the fund to use swing pricing to adjust its 
current NAV as an additional tool to lessen potential dilution of the 
value of outstanding redeemable securities caused by shareholder 
purchase or redemption activity. In order to use swing pricing under 
the proposed rule, a fund would be required to establish and implement 
swing pricing policies and procedures.\737\ These policies and 
procedures must: (i) Provide that the fund will adjust its NAV by an 
amount designated as the ``swing factor'' once the level of net 
purchases or net redemptions from the fund has exceeded a specified 
percentage of the fund's net asset value known as the ``swing 
threshold''; \738\ (ii) specify the fund's swing threshold, considering 
certain specified factors; \739\ (iii) provide for the periodic review 
(at least annually) of the fund's swing threshold, considering certain 
specified factors; \740\ (iv) specify how a swing factor that would be 
used to adjust the fund's NAV when the fund's swing threshold is 
breached, which determination must take into account certain specified 
factors.\741\
---------------------------------------------------------------------------

    \737\ Proposed rule 22c-1(a)(3)(i).
    \738\ Proposed rule 22c-1(a)(3)(i)(A).
    \739\ Proposed rule 22c-1(a)(3)(i)(B).
    \740\ Proposed rule 22c-1(a)(3)(i)(C).
    \741\ Proposed rule 22c-1(a)(3)(i)(D).
---------------------------------------------------------------------------

    A fund's board, including a majority of the fund's independent 
directors, would be required to approve the fund's swing pricing 
policies and procedures (including the fund's swing threshold, and any 
swing factor upper limit specified under the fund's swing pricing 
policies and procedures), and any material change to these policies and 
procedures.\742\ However, the board would be required to designate the 
fund's investment adviser or officers responsible for administration of 
the fund's swing pricing policies and procedures and for determining a 
swing factor that would be used to adjust the fund's NAV when the 
fund's swing threshold is breached.\743\
---------------------------------------------------------------------------

    \742\ Proposed rule 22c-1(a)(3)(ii)(A).
    \743\ Proposed rule 22c-1(a)(3)(ii)(B).
---------------------------------------------------------------------------

    A fund that adopts swing pricing policies and procedures also would 
be required to keep certain records, including a written copy of its 
swing pricing policies and procedures,\744\ and records of support for 
each computation of an adjustment to the fund's NAV based on these 
policies and procedures.\745\ A fund that engages in swing pricing 
would be required to make certain disclosures and reflect its use of 
swing pricing in its financial statements.\746\
---------------------------------------------------------------------------

    \744\ Proposed rule 22c-1(a)(3)(iii).
    \745\ Proposed amendment to rule 31a-2(a)(2).
    \746\ See proposed amendments to Items 11, 13 and 26 of Form N-
1A and proposed amendments to Regulation S-X.
---------------------------------------------------------------------------

b. Benefits
    We believe proposed rule 22c-1(a)(3) would promote investor 
protection by providing funds with a tool to reduce the potentially 
dilutive effects of shareholder purchase or redemption activity. Rule 
22c-1 under the Investment Company Act, the ``forward pricing'' rule, 
requires a fund to price its shares based on the current market prices 
of its portfolio assets next computed after receipt of an order to buy 
or redeem shares.\747\ When a fund trades portfolio assets in order to 
meet purchases or redemptions, the fund's current NAV on the trade date 
would reflect any changes to the value of the fund's assets that occurs 
as a result of trading on that day. But as discussed above, when a fund 
trades portfolio assets in order to satisfy purchase or redemption 
requests, certain costs associated with this trading activity currently 
may not be taken into account in the price that the purchasing or 
redeeming shareholder receives for his or her fund shares.\748\ The NAV 
of the fund shares held by existing shareholders, however, will 
eventually reflect all of these costs, including those that were not 
passed on to the purchasing or redeeming shareholders.\749\ Swing 
pricing provides funds with an additional tool--as a supplement to the 
pricing conventions required by the forward pricing rule--to pass 
estimated near-term costs stemming from shareholder purchase or 
redemption activity on to the shareholders associated with that 
activity.\750\ Swing pricing thus could lessen dilution of existing 
shareholders and limit redemptions motivated by a potential first-mover 
advantage.
---------------------------------------------------------------------------

    \747\ See rule 22c-1(a).
    \748\ See supra notes 410-413 and accompanying text.
    \749\ See id.
    \750\ See supra paragraph accompanying note 424.
---------------------------------------------------------------------------

    We recognize that swing pricing may involve potential disadvantages 
to funds as well as potential advantages, and the provisions of 
proposed rule 22c-1(a)(3) are designed to maximize the relative 
advantages and respond to potential concerns associated with swing 
pricing. While swing pricing may reduce dilution at the fund level and 
could act as a deterrent against redemptions motivated by any first-
mover advantage, the potential disadvantages to swing pricing 
(described in more detail below) include increased performance 
volatility and the fact that the precise impact of swing pricing on 
particular purchase or redemption requests would not be known in 
advance and thus may not be fully transparent to investors. In 
addition, the swing factor used by a fund on a particular day may not 
capture all costs incurred by the fund resulting from purchases or 
redemptions that day.
    Commission rules and guidance do not currently address the ability 
of a fund to use swing pricing to mitigate potential dilution of fund 
shareholders, and the Commission's current valuation guidance could 
raise questions about making such NAV adjustment.\751\ The proposed 
swing pricing rule would provide the regulatory framework that a fund 
would apply to adjust its NAV in order to effectively pass on estimated 
trading costs to purchasing or redeeming shareholders. The proposed 
rule would require a fund that conducts swing pricing to do so in 
accordance with policies and procedures and other restrictions designed 
to promote all shareholders' interests.\752\ Because we

[[Page 62367]]

cannot prospectively measure the extent to which the swing pricing 
policies and procedures that a fund may adopt would mitigate potential 
dilution, we are unable to quantify the total potential benefits 
discussed in this section.\753\ However, analysis by fund groups of 
their funds domiciled in regions that allow swing pricing indicates 
that investor dilution is significantly reduced through swing pricing 
for some funds.\754\
---------------------------------------------------------------------------

    \751\ See supra note 423 and accompanying text.
    \752\ See supra note 424 and accompanying text.
    \753\ There is no database currently available that identifies 
whether a foreign-domiciled fund uses swing pricing or the structure 
of a fund's swing pricing program (e.g., full swing pricing versus 
partial swing pricing).
    \754\ See BlackRock Swing Pricing Paper, supra note 412.
---------------------------------------------------------------------------

c. Costs
    A primary cost of implementing swing pricing is an increase in fund 
return volatility. The implementation of swing pricing also could 
increase tracking error relative to a fund's benchmark. However, the 
impact of swing pricing on volatility and tracking error would decrease 
as a function of time: For example, the impact of swing pricing on 
daily return volatility and tracking error would likely be much greater 
than the impact on monthly volatility and tracking error. The use of 
``partial'' swing pricing also lessens the impact on volatility and 
tracking error. When deciding whether or not to implement swing 
pricing, a fund would have to weigh the cost of increased volatility 
and tracking error (along with the other costs discussed below) against 
the previously-discussed benefits of swing pricing.
    In addition, a swing pricing regime that uses a fund's daily net 
purchases or net redemptions to determine when the fund will adjust its 
NAV could create costs for fund investors. For example, an investor who 
purchases fund shares on a day when a fund adjusts its NAV downward 
will pay less to enter the fund than if the fund had not adjusted its 
NAV on that day. However, investors would not be able to purposefully 
take advantage of this lower purchase price without knowledge of 
contemporaneous intraday flows, which funds do not publicly disclose. 
Further, we believe that investors who purchase shares on a day that a 
fund adjusts its NAV downward would not create dilution for non-
redeeming shareholders. Shareholders' purchase activity would provide 
liquidity to the fund, which could reduce the fund's liquidity costs 
and thereby could also decrease the swing factor. This could 
potentially help redeeming shareholders to receive a more favorable 
redemption price than they otherwise would have if there had been less 
purchase activity on that day, but would not affect the interests of 
non-redeeming investors. Similarly, adjusting a fund's NAV when the 
fund's daily net redemptions cross a certain threshold, regardless of 
the size of the component shareholder redemptions that comprise the 
daily net redemptions, could produce costs to individual redeeming 
shareholders whose redemptions alone would not result in redemption-
related costs to the fund. For instance, a small investor's redemption 
request would not create any significant liquidity costs for the fund 
on its own, but if this investor were to redeem on the same day that 
the fund's net redemptions are high, his or her redemption proceeds 
would be reduced by the NAV adjustment.
    We are not proposing to exempt certain investors from the NAV 
adjustments permitted under proposed rule 22c-1(a)(3). We believe that 
the costs of exempting certain investors from the NAV adjustment could 
be significant, particularly the operational costs that we believe 
could result from the relatively complex process of applying the NAV 
adjustment only to some investors and not to others. Exempting small 
investors from the NAV adjustment also may not be beneficial to a fund 
because such exemption could lead to large investors engaging in gaming 
behavior--that is, structuring their investments in funds using 
multiple small accounts--in order to use the exemption. This could 
contravene the purpose of the exemption and be costly for funds to 
detect.
    Each fund that chooses to adopt swing pricing policies and 
procedures pursuant to proposed rule 22c-1(a)(3) would incur one-time 
costs to develop and implement the policies and procedures, as well as 
ongoing costs relating to administration of the policies and 
procedures. Those costs will directly impact the fund and may 
indirectly impact fund investors if the fund passes along its costs to 
investors through increased fees. As discussed above, while U.S. 
registered funds do not currently use swing pricing to mitigate 
potential dilution, certain foreign funds affiliated with U.S. fund 
families currently do use swing pricing.\755\ U.S. registered funds in 
fund complexes that also include foreign-domiciled funds that use swing 
pricing may incur relatively lower costs to implement swing pricing 
policies and procedures pursuant to the proposed rule. These funds may 
only need to modify current swing pricing policies, procedures, and 
systems used for foreign-domiciled funds to comply with proposed rule 
22c-1(a)(3), instead of developing them from scratch.
---------------------------------------------------------------------------

    \755\ See supra notes 417-420 and accompanying text.
---------------------------------------------------------------------------

    Just as the costs associated with proposed rule 22e-4 could depend 
largely on the level of liquidity risk facing the fund, as well as the 
sources of the fund's liquidity risk, the costs of implementing swing 
pricing policies and procedures likewise could vary depending on these 
factors. As discussed above, there are multiple ways in which the costs 
associated with classifying portfolio positions' liquidity and 
assessing a fund's liquidity risk could vary based on a fund's 
individual risks and circumstances.\756\ To determine a fund's swing 
threshold, proposed rule 22c-1(a)(3) would require a fund to consider 
certain of the factors required to be considered as part of the 
liquidity risk assessment required under proposed rule 22e-4.\757\ 
Therefore, the costs associated with developing policies and procedures 
for determining the swing threshold could also vary according to 
similar factors that could cause differences in the costs to funds 
associated with proposed rule 22e-4.\758\
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    \756\ See supra section IV.C.1.c.
    \757\ See proposed rule 22c-1(a)(3)(i)(B). Specifically, the 
requirement for a fund to consider: (i) The size, frequency, and 
volatility of historical purchases and redemptions of fund shares 
during normal and stressed periods, (ii) the fund's investment 
strategy and the liquidity of the fund's portfolio assets, and (ii) 
the fund's holdings of cash and cash equivalents, as well as 
borrowing arrangements and other funding sources overlap with 
certain of the proposed liquidity risk assessment factors. See 
proposed rule 22e-4(b)(iii)(A), (B), and (D).
    \758\ See supra section IV.C.1.c.
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    Our staff estimates that the one-time costs necessary to establish 
and implement swing pricing policies and procedures pursuant to 
proposed rule 22c-1(a)(3) would range from $1.3 million to $2.25 
million \759\ per fund

[[Page 62368]]

complex, depending on the particular facts and circumstances applicable 
to the funds comprising the fund complex.\760\ These estimated costs 
are attributable to the following activities, as applicable to each of 
the funds within the complex that adopts swing pricing policies and 
procedures: (i) Developing swing pricing policies and procedures that 
include all of the elements required under the proposed rule,\761\ as 
well as policies and procedures relating to the recordkeeping 
requirements associated with swing pricing; \762\ (ii) planning, 
coding, testing, and installing any system modifications for adjusting 
the fund's NAV pursuant to the fund's swing pricing policies and 
procedures; (iii) integrating and implementing the fund's swing pricing 
policies and procedures, as well as policies and procedures relating to 
the financial reporting and recordkeeping requirements associated with 
swing pricing; (iv) preparing training materials and administering 
training sessions for staff in affected areas; and (v) board approval 
of the fund's swing pricing policies and procedures.
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    \759\ These cost estimates are based in part on the staff's 
recent estimates of the one-time systems costs associated with 
implementing the fees and gates provisions of the 2014 amendments to 
rule 2a-7 under the 1940 Act. See 2014 Money Market Fund Reform 
Adopting Release, supra note 85, at section III.A.5.b. Although the 
substance and content of systems associated with establishing and 
implementing swing pricing policies and procedures would be 
different from the substance and content of systems associated with 
implementing the rule 2a-7 fees and gates provisions, the one-time 
costs associated with establishing and implementing swing pricing 
policies and procedures, like the one-time costs associated with the 
fees and gates provisions, would entail: Drafting relevant 
procedures; planning, coding, testing, and installing relevant 
system modifications; integrating and implementing relevant 
procedures; and preparing training materials and administering 
training sessions for staff in affected areas. See id. However, in 
estimating the one-time costs associated with establishing and 
implementing swing pricing policies and procedures, staff has 
adjusted the estimated one-time systems costs associated with 
implementing the fees and gates provisions to reflect that the 
estimated costs associated with implementing the fees and gates 
provisions include costs to be incurred by the fund and others in 
the distribution chain (including transfer agents, accountants, 
custodians, and intermediaries), whose services would be needed if a 
fund were to impose a fee or gate, whereas we anticipate that the 
requirements associated with establishing and implementing swing 
pricing policies and procedures would be borne primarily by a fund 
complex and not by others in the distribution chain.
    We note that the estimated one-time systems costs associated 
with implementing the fees and gates provisions of the 2014 
amendments to rule 2a-7 are generally similar to the proposed 
estimated one-time systems costs associated with implementing the 
floating NAV provisions of the 2014 rule 2a-7 amendments. See id. at 
section III.B.8.a. However, the proposed estimated one-time systems 
costs associated with implementing the floating NAV provisions were 
adjusted downward at adoption, to account for certain tax 
considerations specific to the floating NAV reforms. Thus, staff 
believes that the one-time costs associated with the fees and gates 
provisions would provide a closer analogue to the estimated costs 
associated with establishing and implementing swing pricing policies 
and procedures than the one-time costs associated with the floating 
NAV provisions.
    \760\ This estimate assumes that each fund would not bear all of 
the estimated costs (particularly, the costs of systems 
modification) on an individual basis, but instead that these costs 
would likely be allocated among the multiple users of the systems, 
that is, each of the members of a fund complex that adopts swing 
pricing policies and procedures.
    \761\ Proposed rule 22c-1(a)(3)(i).
    \762\ Proposed rule 22c-1(a)(3)(iii); proposed amendment to rule 
31a-2(a)(2).
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    We anticipate that, depending on the personnel (and/or third party 
service providers) involved in the activities associated with 
establishing and implementing swing pricing policies and procedures, 
certain of the estimated one-time costs associated with these 
activities could be borne by the fund, and others could be borne by the 
adviser. This cost allocation would depend on the facts and 
circumstances of a particular fund's swing pricing policies and 
procedures, and thus we cannot specify the extent to which the 
estimated costs would typically be allocated to the fund as opposed to 
the adviser. Estimated costs that are allocated to the fund would be 
borne by fund shareholders in the form of fund operating expenses.
    Staff estimates that, on average, a fund complex that includes 
funds that adopt swing pricing policies and procedures pursuant to 
proposed rule 22c-1(a)(3) would incur ongoing annual costs that range 
from 5% to 15% of the one-time costs necessary to establish and 
implement swing pricing policies and procedures pursuant to proposed 
rule 22c-1(a)(3).\763\ Thus, staff estimates that a fund complex that 
includes funds that adopt swing pricing policies and procedures would 
incur ongoing annual costs associated with proposed rule 22c-1(a)(3) 
that would range from $65,000 to $337,500.\764\ These estimated costs 
are attributable to the following activities, as applicable to each of 
the funds within the complex that adopts swing pricing policies and 
procedures: (i) Costs associated with monitoring whether the fund's net 
purchases or net redemptions cross the swing threshold (which could 
include, to the extent a fund determines appropriate, costs associated 
with obtaining interim feeds of flows from its transfer agent or 
distributor in order to reasonably estimate its daily net flows) 
(implicated by proposed rule 22c-1(a)(3)(i)(A)); (ii) adjusting the 
fund's NAV when the fund's net purchases or net redemptions cross the 
swing threshold, including costs associated with determining a swing 
factor that would be used to adjust the fund's NAV when the fund's 
swing threshold is breached (proposed rule 22c-1(a)(3)(i)(A), proposed 
rule 22c-1(a)(3)(i)(D)); (iii) periodic review of the fund's swing 
threshold (proposed rule 22c-1(a)(3)(i)(C)); (iv) systems maintenance; 
(iv) additional staff training; (v) board approval of any material 
changes to the program (proposed rule 22c-1(a)(3)(ii)(A)); and (vi) 
recordkeeping (proposed rule 22c-1(a)(3)(iii), proposed amendments to 
rule 31a-2(a)(2)).\765\
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    \763\ These cost estimates are based in part on the staff's 
recent estimates of the ongoing costs associated with implementing 
the fees and gates provisions of the 2014 amendments to rule 2a-7 
under the 1940 Act. See supra note 759 (discussing why staff 
believes that the costs associated with the fees and gates 
provisions could be useful to estimate the costs associated with 
establishing and implementing swing pricing policies and 
procedures).
    \764\ This estimate is based on the following calculations: 0.05 
x $1,300,000 = $65,000; 0.15 x $2,250,000 = $337,500.
    \765\ We anticipate that, depending on the personnel (and/or 
third party service providers) involved in the activities associated 
with administering a fund's swing pricing policies and procedures, 
certain of the estimated ongoing costs associated with these 
activities could be borne by the fund, and others could be borne by 
the adviser. See paragraph following supra note 762.
---------------------------------------------------------------------------

    A fund would be permitted, but not required, to establish and 
implement swing pricing policies and procedures under proposed rule 
22c-1(a)(3), and for purposes of this cost analysis, staff estimates 
that 167 fund complexes would adopt swing pricing policies and 
procedures. In developing this estimate, staff assumed that complexes 
including certain mutual fund strategies (high-yield bond funds, world 
bond funds (including emerging market debt funds), multi-sector bond 
funds, state municipal funds, alternative strategy funds, and emerging 
market equity funds) would be relatively more likely to adopt swing 
pricing policies and procedures, and of complexes with funds following 
these strategies, 75% would actually adopt swing pricing policies and 
procedures.\766\ Staff estimates that the aggregate one-time costs for 
fund complexes to establish and implement swing pricing policies

[[Page 62369]]

and procedures, and to comply with the recordkeeping requirements of 
the proposed amendments to rule 31a-2(a)(2) and the financial reporting 
requirements in Form N-1A and Regulation S-X, would be approximately 
$296 million.\767\ In addition, staff estimates that the annual 
aggregate costs associated with the proposed regulations relating to 
swing pricing would be approximately $34 million.\768\
---------------------------------------------------------------------------

    \766\ In developing the estimate that 167 fund complexes would 
adopt swing pricing policies and procedures, the staff assumed that 
the percentage of fund complexes that includes high-yield bond 
funds, world bond funds (including emerging market debt funds), 
multi-sector bond funds, state municipal funds, alternative strategy 
funds, and emerging market equity funds, as a fraction of all fund 
complexes, is the same as the percentage of all mutual funds 
(excluding money market funds) that these strategies represent. The 
actual number of fund complexes that includes these selected 
strategies could be higher or lower than the number calculated using 
this assumption. 241 high yield bond mutual funds + 347 world bond 
mutual funds (estimate includes emerging market bond funds) + 139 
multi-sector bond mutual funds + 322 state municipal mutual funds + 
376 alternative strategy funds that are equity funds (alternative 
strategy funds that are bond funds are included in our estimates of 
the number of bond mutual funds) + 469 emerging market equity mutual 
funds = 1,894 funds with strategies that staff assumed would be 
relatively more likely to adopt swing pricing policies and 
procedures. 1,894 funds with selected strategies / 7,395 mutual 
funds (excluding money market funds) = approximately 25.6%. 0.256 x 
867 fund complexes = approximately 222 fund complexes. Assuming that 
75% of these fund complexes would actually adopt swing pricing 
policies and procedures, 0.75 x 222 fund complexes = approximately 
167 fund complexes. These estimates are based on figures included in 
the 2015 ICI Fact Book. See 2015 ICI Fact Book, supra note 3.
    \767\ Because staff is unable to estimate how many fund 
complexes would incur one-time costs on the low end of the estimated 
range versus the high end of the estimated range, this estimate is 
based on the assumption that each fund complex would incur one-time 
costs of $1,775,000, which represents the middle of the range of 
estimated one-time costs ($1,300,000 + $2,250,000 = $3,550,000; 
$3,550,000 / 2 = $1,775,000). 167 fund complexes x $1,775,000 = 
$296,425,000.
    \768\ Because staff is unable to estimate how many fund 
complexes would incur ongoing costs on the low end of the estimated 
range versus the high end of the estimated range, this estimate is 
based on the assumption that each fund complex would incur ongoing 
costs of $201,250, which represents the middle of the range of 
estimated ongoing costs ($65,000 + $337,500 = $402,500; $402,500 / 2 
= $201,250). 167 fund complexes x $201,250 = $33,608,750.
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d. Effects on Efficiency, Competition, and Capital Formation
    Proposed rule 22c-1(a)(3) would permit a fund, under certain 
circumstances, to adjust its NAV to effectively pass on costs stemming 
from shareholder purchase or redemption activity to the shareholders 
associated with that activity. Adjusting a fund's NAV in this way could 
reduce dilution to existing shareholders arising from trading costs. We 
therefore believe that the proposed rule could increase the efficiency 
of cost allocation among shareholders of funds that adopt swing pricing 
policies and procedures, provided that a fund's swing threshold and 
swing factor are appropriately calculated.\769\ If investors believe 
swing pricing to be valuable, funds that decide to implement swing 
pricing will be at a competitive advantage. Fund complexes currently 
using swing pricing in other domiciles may be able to implement swing 
pricing more quickly and more effectively.
---------------------------------------------------------------------------

    \769\ See supra notes 748-749 (discussing cost allocation among 
shareholders with respect to funds that do not use swing pricing).
---------------------------------------------------------------------------

    We anticipate that proposed rule 22c-1-1(a)(3) could indirectly 
foster capital formation by bolstering investor confidence. Investors 
may be more inclined to invest in funds if they understand that funds 
will be able to use swing pricing to prevent the purchase or redemption 
activity of certain investors from diluting the interests of other 
investors (particularly long-term investors, who represent the majority 
of fund shareholders). To the extent that swing pricing preserves 
investment returns to investors, particularly long-term investors,\770\ 
this could incentivize investment in funds that use swing pricing. If 
proposed rule 22c-1(a)(3) enhances investor confidence in funds, 
investors are more likely to invest in funds, thus making additional 
assets available for investment in the capital markets. On the other 
hand, investors could be discouraged from investing in funds that use 
swing pricing if swing pricing produces increased performance 
volatility, which could increase tracking error, and could make a 
fund's short-term performance appear relatively poor compared to other 
funds and the fund's benchmark. Because we do not have the information 
necessary to determine how investors will perceive swing pricing, or 
how they will evaluate the relative benefits or detriments of investing 
in funds that use swing pricing, we are unable to draw conclusions 
about the precise effects of proposed rule 22c-1(a)(3) on capital 
formation. However, to the extent that investors perceive swing pricing 
improves fund performance by decreasing investor dilution, capital 
formation could be encouraged.
---------------------------------------------------------------------------

    \770\ See supra notes 440-441 and accompanying text.
---------------------------------------------------------------------------

e. Reasonable Alternatives
    The following discussion addresses significant alternatives to 
proposed rule 22c-1(a)(3). More detailed alternatives to the individual 
elements of the proposed rule are discussed in detail above, and we 
have requested comment on these alternatives.\771\
---------------------------------------------------------------------------

    \771\ See supra Requests for Comment in sections III.F.1.a, 
III.F.1.b, III.F.1.c, III.F.1.d, III.F.1.e, III.F.1.f, III.F.1.g, 
III.F.2.d, and III.F.3.
---------------------------------------------------------------------------

    Instead of permitting, but not requiring, funds to adopt swing 
pricing policies and procedures under proposed rule 22c-1(a)(3), we 
could have proposed a rule that would require all funds to adopt swing 
pricing policies and procedures. This alternative approach would have 
the benefit of establishing a uniform regulatory framework to prevent 
potential shareholder dilution. But because funds differ notably in 
terms of their particular circumstances and risks, as well as with 
respect to the tools funds use to manage risks relating to liquidity 
and shareholder purchases and redemptions, we decided to propose a rule 
that would permit swing pricing as a voluntary tool for funds. Our 
chosen approach would allow funds to weigh the advantages of swing 
pricing (e.g., improved allocation of trading costs \772\) against 
potential disadvantages (e.g., the potential for swing pricing to 
increase the volatility of a fund's NAV in the short term \773\).
---------------------------------------------------------------------------

    \772\ See supra sections III.F.1.a, III.F.1.c, III.F.1.e.
    \773\ See supra paragraphs accompanying note 446.
---------------------------------------------------------------------------

    While proposed rule 22c-1(a)(3) envisions partial swing pricing 
(that is, a NAV adjustment would not be permitted unless net purchases 
or redemptions exceed a threshold set by the fund), the Commission 
instead could have proposed a rule that would permit full swing pricing 
(that is, a NAV adjustment would be permitted any time the fund 
experiences net purchases or net redemptions). Full swing pricing would 
result in any costs associated with purchases or redemptions being 
passed along to the shareholders whose actions created those costs, 
whereas the partial swing pricing contemplated by the proposed rule 
would only allocate trading costs to purchasing or redeeming 
shareholders when net purchases or net redemptions exceed the fund's 
swing threshold. Nevertheless, we believe that the partial swing 
pricing alternative is, on balance, preferable to the full swing 
pricing option. We expect that partial swing pricing, as opposed to 
full swing pricing, would reduce any performance volatility potentially 
associated with swing pricing.\774\ Also, the use of partial swing 
pricing recognizes that purchases or redemptions below a certain 
threshold might not require a fund to trade portfolio assets, and 
therefore a NAV adjustment might not be appropriate if purchases or 
redemptions would not result in costs associated with asset purchases 
or sales (in which case, a NAV adjustment could unfairly penalize 
purchasing or redeeming shareholders).\775\
---------------------------------------------------------------------------

    \774\ See supra paragraph accompanying notes 447-449.
    \775\ See supra note 449 and accompanying text.
---------------------------------------------------------------------------

    We considered permitting funds to use swing pricing only to adjust 
their NAV downward in the event that net redemptions exceeded a 
particular threshold, as there may be more significant issues regarding 
potential dilution for non-redeeming shareholders in connection with 
shareholder redemptions, because funds are obligated to satisfy 
redemption requests pursuant to section 22(e) of the Act. In this 
regard, we note that unlike redemptions, funds may reserve the right to 
decline purchase requests. For example, a fund may decline purchase 
requests from shareholders who engaged in frequent trading, and it also 
may decline large purchase requests that would negatively impact the 
fund.

[[Page 62370]]

However, we are proposing to permit funds to use swing pricing to 
adjust their NAV upward or downward because we believe that swing 
pricing could be a useful tool in mitigating dilution associated with 
shareholder purchase activity as well.
    We also considered limiting the swing factor, but we recognize that 
there could be circumstances in which limiting the swing factor would 
prevent a fund from capturing the costs associated with purchase or 
redemption activity in a fund.\776\ We believe it is appropriate to 
provide flexibility to funds to determine the appropriate swing factor 
that takes into account estimated trading costs. As part of their swing 
pricing policies and procedures, funds may decide to limit the swing 
factor.
---------------------------------------------------------------------------

    \776\ See supra paragraph accompanying notes 502-504.
---------------------------------------------------------------------------

    Lastly, instead of proposing to permit funds to use swing pricing, 
we considered clarifying that a fund (other than a money market fund) 
could impose a purchase fee or redemption fee to address potential 
dilution.\777\ Swing pricing and purchase and redemption fees could 
pass on transaction-related costs to transacting shareholders. Purchase 
fees and redemption fees, as opposed to swing pricing, would have the 
benefit of being simple for investors to understand, and they would not 
produce the same volatility and tracking error concerns as swing 
pricing. However, on balance we believe that the operational costs and 
difficulty of imposing a fee would be significantly higher than those 
associated with swing pricing. Implementing a fee requires coordination 
with the fund's service providers, which could entail operational 
complexity. On the other hand, we anticipate that swing pricing would 
be simpler to implement than a fee because the NAV adjustment would 
occur pursuant to the fund's own procedures and would be factored into 
the process by which a fund strikes its NAV.
---------------------------------------------------------------------------

    \777\ As discussed above, funds are currently permitted under 
rule 22c-2 to impose redemption fees under certain circumstances. 
See supra notes 421-422 and accompanying text; see also Rule 22c-2 
Adopting Release, supra note 421 (noting that the redemption fee 
permitted under rule 22c-2 ``is intended to allow funds to recoup 
some of the direct and indirect costs incurred as a result of short-
term trading strategies, such as market timing'').
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3. Disclosure and Reporting Requirements Regarding Liquidity Risk and 
Liquidity Risk Management
a. Proposed Disclosure and Reporting Requirements
    We are proposing amendments to Form N-1A, Regulation S-X, proposed 
Form N-PORT, and proposed Form N-CEN to enhance fund disclosure and 
reporting regarding liquidity and redemption practices. Specifically, 
proposed amendments to Form N-1A would require a fund to disclose: (i) 
The number of days in which the fund will pay redemption proceeds to 
redeeming shareholders \778\ and (ii) the methods the fund uses to meet 
redemption requests in stressed and non-stressed market 
conditions.\779\ A fund also would be required to file as an exhibit to 
its registration statement any credit agreements for the benefit of the 
fund.\780\ Regarding swing pricing, a fund would be required to 
disclose in Form N-1A a statement as to whether the fund uses swing 
pricing, and an explanation of the circumstances under which it will 
use swing pricing and the effects of using swing pricing.\781\ The NAV 
reported on a fund's financial statements would reflect swing pricing, 
if applicable. Proposed amendments to proposed Form N-PORT would 
require a fund to disclose: (i) For each portfolio asset, whether that 
security is a 15% standard asset; \782\ (ii) the fund's three-day 
liquid asset minimum; \783\ and (iii) for each of the fund's positions 
in a portfolio asset, the liquidity classification of that position as 
determined pursuant to proposed rule 22e-4(b)(2)(i).\784\ Finally, 
proposed amendments to proposed Form N-CEN would require a fund to 
disclose certain information regarding the use of lines of credit, 
interfund borrowing and lending, and swing pricing.\785\ We have also 
proposed amendments to Form N-CEN that would require an ETF to report 
whether it required that an authorized participant post collateral to 
the ETF or any of its designated service providers in connection with 
the purchase or redemption of ETF shares.\786\
---------------------------------------------------------------------------

    \778\ Proposed Item 11(c)(7) of Form N-1A.
    \779\ Proposed Item 11(c)(8) of Form N-1A.
    \780\ Proposed Item 28(h) of Form N-1A.
    \781\ Proposed Item 6(d) of Form N-1A.
    \782\ Proposed Item C.7 of proposed Form N-PORT.
    \783\ Proposed Item B.7 of proposed Form N-PORT.
    \784\ Proposed Item C.13 of proposed Form N-PORT. If a fund were 
to determine that different portions of a position in a particular 
asset would receive different liquidity classifications pursuant to 
proposed rule 22e-4(b)(2)(i) (see supra paragraph accompanying note 
172), the fund would be required to indicate the dollar amount of 
that position attributable to each classification.
    \785\ Proposed Item 44 of proposed Form N-CEN.
    \786\ Proposed Item 60g of proposed Form N-CEN.
---------------------------------------------------------------------------

b. Benefits
    The proposed disclosure and reporting requirements would promote 
investor protection by improving the availability of information 
regarding funds' liquidity risks and risk management practices, as well 
as funds' redemption practices. As discussed above, funds' disclosures 
to shareholders regarding their redemption practices are currently 
quite varied in content and comprehensiveness.\787\ While some funds 
voluntarily include disclosure regarding fund limitations on illiquid 
asset holdings that track the 15% guideline, a fund is not currently 
required to disclose information about the liquidity of its portfolio 
assets. A fund is also not currently required to disclose information 
about liquidity risk management practices such as the use of lines of 
credit. In light of the relatively few disclosure requirements 
regarding funds' liquidity risks, liquidity risk management practices, 
and redemption practices, as well as the current inconsistency in 
funds' liquidity-related disclosures, we believe that the proposed 
disclosure and reporting requirements would increase shareholder 
understanding of particular funds' liquidity-related risks and 
redemption policies. This in turn would assist investors in making 
investment choices that better match their risk tolerances.
---------------------------------------------------------------------------

    \787\ See supra section III.G.1.a.
---------------------------------------------------------------------------

    We note that, while proposed Form N-PORT and proposed Form N-CEN 
are designed primarily to assist the Commission and its staff, we 
believe that the information in these proposed forms (including the 
liquidity-related information proposed to be included in these forms) 
also would be valuable to investors.\788\ In particular, we believe 
that both sophisticated institutional investors and third-party users 
that provide services to investors may find the proposed liquidity-
related information to be useful. And we believe that individual 
investors would benefit indirectly from the information collected on 
reports on Form N-PORT, through analyses prepared by third-party 
service providers, and through enhanced Commission monitoring and 
oversight of the fund industry.
---------------------------------------------------------------------------

    \788\ See Investment Company Reporting Modernization Release, 
supra note 104, at sections IV.B.b, IV.E.b.
---------------------------------------------------------------------------

    The liquidity-related information that funds would be required to 
provide on proposed Form N-PORT and proposed Form N-CEN would enhance 
investor protection by improving the Commission's ability to monitor 
funds' liquidity using relevant and targeted data. This monitoring 
would permit us to analyze liquidity trends in individual funds, and 
among certain types of funds and the fund industry as a whole, as well 
as to better understand funds' liquidity risk management practices. As

[[Page 62371]]

discussed in our recent proposal to modernize investment company 
reporting, the information we receive on these reports would facilitate 
the oversight of funds and would assist the Commission, as the primary 
regulatory of such funds, to better effectuate its mission to protect 
investors, maintain fair, orderly, and efficient markets, and 
facilitate capital formation.\789\
---------------------------------------------------------------------------

    \789\ See id.
---------------------------------------------------------------------------

    Because we cannot predict the extent to which the proposed 
requirements would enhance investors' awareness of funds' portfolio 
liquidity and liquidity risk, or that this enhanced awareness would 
influence investors' investments in certain funds, we are unable to 
quantify the potential benefits discussed in this section.
c. Costs
    Funds would incur one-time and ongoing annual costs to comply with 
the proposed disclosure and reporting requirements regarding liquidity 
and shareholder redemption practices.
    We estimate that the one-time costs to comply with the proposed 
amendments to Form N-1A would be approximately $637 per fund (plus 
printing costs).\790\ We estimate that each fund would incur an ongoing 
cost associated with compliance with the proposed amendments to Form N-
1A of approximately $80 \791\ each year to review and update the 
proposed disclosure regarding swing pricing and redemptions.
---------------------------------------------------------------------------

    \790\ This estimate is based on the following calculation: 2 
hours (1 hour to update registration statement to include swing 
pricing-related disclosure statements + 1 hour to update 
registration statement disclosure about redemption procedures and 
file credit agreements as exhibits, if applicable) x $318.50 
(blended rate for a compliance attorney ($334) and a senior 
programmer ($303)) = $637. This figure incorporates the costs we 
estimated for each fund to update its registration statement to 
include the required disclosure about: (i) The number of days in 
which the fund will pay redemption proceeds to redeeming 
shareholders; (ii) the methods the fund uses to meet redemption 
requests in stressed and non-stressed market conditions; and (iii) 
if the fund uses swing pricing, an explanation of the circumstances 
under which it will use swing pricing and the effects of using swing 
pricing. This figure also includes the costs we estimate for each 
fund to file any applicable credit agreements as exhibits to the 
fund's registration statement. The costs associated with these 
activities are all paperwork-related costs and are discussed in more 
detail infra at section V.G.
    \791\ This estimate is based on the following calculations: 0.25 
hours (\1/8\ hour to update swing pricing-related disclosure 
statements + \1/8\ hour to update disclosures about redemption 
procedures) x $318.50 (blended hourly rate for a compliance attorney 
($334) and a senior programmer ($303)) = $79.63.
---------------------------------------------------------------------------

    The proposed amendments to proposed Form N-PORT would require funds 
to report on Form N-PORT the liquidity classification of each portfolio 
asset position (or portion of a position in a particular asset), and we 
estimate that the average one-time compliance costs associated with 
this reporting would be $15,330 per fund.\792\ Furthermore, we estimate 
that 8,734 funds would be required to file, on a monthly basis, 
additional information on Form N-PORT as a result of the proposed 
amendments.\793\ Assuming that 35% of funds (3,057 funds) would choose 
to license a software solution to file reports on Form N-PORT in 
house,\794\ we estimate an upper bound on the initial annual costs to 
file the additional information associated with the proposed amendments 
for funds choosing this option of $780 per fund \795\ with annual 
ongoing costs of $260 per fund.\796\ We further assume that 65% of 
funds (5,677 funds) would choose to retain a third-party service 
provider to provide data aggregation and validation services as part of 
the preparation and filing of reports on Form N-PORT,\797\ and we 
estimate an upper bound on the initial costs to file the additional 
information associated with the proposed amendments for funds choosing 
this option of $1,040 per fund \798\ with annual ongoing costs of $130 
per fund.\799\
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    \792\ This estimate is based on the following calculation: (i) 
Project planning and systems design (24 hours x $260 (hourly rate 
for a senior systems analyst) = $6,240) and (ii) systems 
modification integration, testing, installation and deployment (30 
hours x $303 (hourly rate for a senior programmer) = $9,090). $6,240 
+ $9,090 = $15,330. Estimates for drafting, integrating, 
implementing policies and procedures are addressed in the discussion 
of proposed rule 22e-4. This figure incorporates the costs that we 
estimated associated with preparing the section of the fund's report 
on Form N-PORT that would incorporate the information that would be 
required under proposed Item C.13. The costs associated with these 
activities are all paperwork-related costs and are discussed in more 
detail infra at section V.E. As discussed in section V.E infra, we 
believe that any external annual costs associated with filing Form 
N-PORT would be only incrementally affected by compliance with 
proposed Item C.13 to proposed Form N-PORT, and thus proposed Item 
C.13 does not affect our previous estimates of these costs.
    \793\ There were 8,734 open-end funds (excluding money market 
funds, and including ETFs) as of the end of 2014. See 2015 ICI Fact 
Book, supra note 3, at 177, 184.
    \794\ This assumption tracks the assumption made in the 
Investment Company Reporting Modernization Release that 35% of funds 
would choose to license a software solution to file reports on Form 
N-PORT. See Investment Company Reporting Modernization Release, 
supra note 104, at nn.658-659 and accompanying text.
    \795\ This estimate is based upon the following calculations: 
$780 in internal costs = ($780 = 3 hours x $260 (blended hourly rate 
for senior programmer ($303), senior database administrator ($312), 
financial reporting manager ($266), senior accountant ($198), 
intermediate accountant ($157), senior portfolio manager ($301), and 
compliance manager ($283)). We do not anticipate any change to 
external annual costs as a result of the proposed amendments. See 
infra at section V.E. The hourly wage figures in this and subsequent 
footnotes are from SIFMA's Management & Professional Earnings in the 
Securities Industry 2013, modified by Commission staff to account 
for an 1800-hour work-year and multiplied by 5.35 to account for 
bonuses, firm size, employee benefits, and overhead.
    \796\ This estimate is based upon the following calculations: 
$260 in internal costs ($260 = 1 hour x $260 (blended hourly rate 
for senior programmer ($303), senior database administrator ($312), 
financial reporting manager ($266), senior accountant ($198), 
intermediate accountant ($157), senior portfolio manager ($301), and 
compliance manager ($283)). We do not anticipate any change to 
external annual costs as a result of the proposed amendments. See 
infra at section V.E.
    \797\ This assumption tracks the assumptions made in the 
Investment Company Reporting Modernization Release that 65% of funds 
would choose to retain a third-party service provider to provide 
data aggregation and validation services as part of the preparation 
and filing of reports on Form N-PORT. See Investment Company 
Reporting Modernization Release, supra note 104, at nn.660-661 and 
accompanying text.
    \798\ This estimate is based upon the following calculations: 
$1,040 in internal costs ($1,040 = 4 hours x $260 (blended hourly 
rate for senior programmer ($303), senior database administrator 
($312), financial reporting manager ($266), senior accountant 
($198), intermediate accountant ($157), senior portfolio manager 
($301), and compliance manager ($283)). We do not anticipate any 
change to external annual costs as a result of the proposed 
amendments.
    \799\ This estimate is based upon the following calculations: 
$130 in internal costs ($130 = (0.5 hours x $260 (blended hourly 
rate for senior programmer ($303), senior database administrator 
($312), financial reporting manager ($266), senior accountant 
($198), intermediate accountant ($157), senior portfolio manager 
($301), and compliance manager ($283)). We do not anticipate any 
change to external annual costs as a result of the proposed 
amendments.
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    Likewise, compliance with the proposed amendments to proposed Form 
N-CEN would involve ongoing costs as well as one-time costs. We 
estimate that 8,734 funds would be required to file responses on Form 
N-CEN as a result of the proposed amendments to the form. We estimate 
that the one-time and ongoing annual compliance costs associated with 
providing additional responses to Form N-CEN as a result of the 
proposed amendments would be approximately $160 per fund.\800\
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    \800\ This estimate is based on the following calculation: 0.5 
hour x $318.50 (blended hourly rate for a compliance attorney ($334) 
and a senior programmer ($303)) = $159.25. This figure incorporates 
the costs that we estimated associated with preparing the section of 
the fund's report on Form N-CEN that would incorporate the 
information that would be required under proposed Item 44. We do not 
estimate any additional costs in connection with proposed Item 60(g) 
of Form N-CEN because the proposed new item only requires a yes or 
no response. We do not estimate any change to the external costs 
associated with Form N-CEN. The costs associated with these 
activities are all paperwork-related costs and are discussed in more 
detail infra at section V.F.
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    Based on these estimates, staff further estimates that the total 
one-time costs to comply with the proposed disclosure and reporting 
requirements would be

[[Page 62372]]

approximately $51 million for all funds that would file reports on 
proposed Form N-PORT in house \801\ and approximately $96 million for 
all funds that would use a third-party service provider to prepare and 
file reports on proposed Form N-PORT.\802\ In addition, staff estimates 
that the total ongoing annual costs associated with the proposed 
disclosure and reporting requirements would be approximately $1.5 
million for all funds that would file reports on proposed Form N-PORT 
in house \803\ and approximately $2.1 million for all funds that would 
use a third-party service provider to prepare and file reports on 
proposed Form N-PORT.\804\
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    \801\ This estimate assumes that 35% of funds (3,057 funds) 
would choose to file reports on proposed Form N-PORT in house (see 
infra section V.E) and is based on the following calculation: 3,057 
funds x $16,587.75 ($318.50 + $15,330 + $780 + $159.25) = 
$50,708,751.75.
    \802\ This estimate assumes that 65% of funds (5,677) would 
choose to file reports on proposed Form N-PORT with the assistance 
of third-party service providers (see infra section V.E) and is 
based on the following calculation: 5,677 funds x $16,847.75 
($318.50 + $15,330 + $1,040 + $159.25) = $95,644,676.75.
    \803\ This estimate is based on the following calculation: 3,057 
funds x $498.88 ($79.63 + $260 + $159.25) = $1,525,076.16.
    \804\ This estimate is based on the following calculation: 5,677 
funds x $368.88 ($79.63 + $130 + $159.25) = $2,094,131.76.
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    We appreciate that the proposed amendments to proposed Form N-PORT 
would increase the amount and availability of public information about 
investment companies' portfolio positions and that more frequent 
portfolio disclosure could potentially harm fund shareholders by 
expanding the opportunities for professional traders to exploit this 
information by engaging in predatory trading practices, such as 
``front-running'' and ``copycatting.'' \805\ Both front-running and 
copycatting can reduce the returns of shareholders who invest in 
actively managed funds.\806\ Thus, the proposed amendments to proposed 
Form N-PORT could entail costs to funds and market participants 
associated with any reduced profitability of funds that could result 
from the increase in publicly available information.\807\ We believe 
that these costs cannot be separated from the overall costs to funds 
and market participants that could result from the increased disclosure 
of currently non-public information associated with Form N-PORT in its 
entirety.\808\ The effects of the proposed liquidity-related 
disclosures are intertwined with the effects of the other proposed Form 
N-PORT disclosures. For example, any analyses of the liquidity-related 
disclosure proposed to be required could be affected by the enhanced 
reporting of information concerning the pricing of funds' investments, 
information on fund flows, and disclosure of additional information 
that could more clearly reveal the investment strategy and risk 
exposures of reporting funds (e.g., information pertaining to 
derivatives and securities lending activities). The potential costs 
associated with the increased disclosure of currently non-public 
information on Form N-PORT are discussed in detail in our recent 
proposal to modernize investment company reporting.\809\ This proposal 
also discusses the ways in which we have endeavored to mitigate these 
costs, including by proposing to maintain the status quo for the 
frequency and timing of disclosure of publicly available portfolio 
information.\810\ While proposed Form N-PORT would be required to be 
filed monthly, it would be required to be disclosed quarterly and would 
not be made public until 60 days after the close of the period at 
issue. Because funds are currently required to disclose their portfolio 
investments quarterly (and this disclosure is made public with a 60-day 
lag), we believe that maintaining the status quo with regard to the 
frequency and the time lag of publicly available portfolio reporting 
would permit the Commission (as well as the fund industry generally) to 
assess the impact of the Form N-PORT filing requirement on the mix of 
information available to the public, and the extent to which these 
changes might affect the potential for predatory trading, before 
determining whether more frequent or more timely public disclosure 
would be beneficial to investors in funds.\811\ We cannot currently 
predict the extent to which the proposed enhancements to funds' 
disclosures on Form N-PORT would give rise to front-running, predatory 
trading, and other activities that could be detrimental to a fund and 
its investors, and thus we are unable to quantify potential costs 
related to these activities.
---------------------------------------------------------------------------

    \805\ See Investment Company Reporting Modernization Release, 
supra note 104, at n.170 and accompanying and following text.
    \806\ See Russ Wermers, The Potential Effects of More Frequent 
Portfolio Disclosure on Mutual Fund Performance, 7 Investment 
Company Institute Perspective No. 3 (June 2001), available at http://www.ici.org/pdf/per07-03.pdf.
    \807\ See Investment Company Reporting Modernization Release, 
supra note 104, at nn.663-667 and accompanying text.
    \808\ See id. at paragraphs accompanying nn.663-673.
    \809\ See id.
    \810\ See id. at section II.A.4 and paragraph accompanying n. 
670.
    \811\ See id.
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d. Effects on Efficiency, Competition, and Capital Formation
    We believe the proposed requirements could increase informational 
efficiency by providing additional information about the liquidity of 
funds' portfolio positions to investors, third-party service providers, 
and the Commission. This in turn could assist investors in evaluating 
the risks associated with certain funds, which could increase 
allocative efficiency by assisting investors in making investment 
choices that better match their risk tolerances. Enhanced disclosure 
regarding funds' liquidity and liquidity risk management practices 
could positively affect competition by permitting investors to choose 
whether to invest in certain funds based on this information. However, 
if investors were to move their assets among funds as a result of the 
disclosure requirements (for example, if the disclosure made clear that 
a certain fund was able to generate higher returns than its peers 
through high exposure to relatively less liquid positions, which then 
led investors with limited risk tolerance to move assets out of this 
fund), this could negatively affect the competitive stance of certain 
funds.
    Increased investor awareness of funds' portfolio liquidity and 
liquidity risk management practices also could promote capital 
formation if investors find certain funds' liquidity profiles and/or 
risk management practices attractive, and this awareness promotes 
increased investment in these funds and in turn in the assets in which 
the funds invest. For example, disclosure that reveals liquidity risk 
in funds' portfolios could negatively impact capital formation if this 
disclosure leads investors to decide that such funds pose too great of 
an investment risk, and consequently decide not to invest in these 
funds or to decrease their investment in these funds. Conversely, to 
the extent that investors assume that funds investing in relatively 
less liquid assets could obtain a liquidity risk premium in the form of 
higher returns over some period of time, the potential for higher 
returns could draw certain investors to funds investing in relatively 
less liquid asset classes, which could positively affect capital 
formation for these funds. If investors shift their invested assets 
between funds based on liquidity, there could be capital formation 
effects stemming from increased (or decreased) investment in the funds' 
portfolio assets, even if the total capital invested in funds remains 
constant. For example, if fund investors move assets from an investment 
strategy that entails relatively high liquidity risk

[[Page 62373]]

to one whose investment strategy involves relatively low liquidity 
risk, less liquid portfolio asset classes could experience an adverse 
impact on capital formation while the more liquid portfolio asset 
classes could experience a positive impact on capital formation, 
although the total capital invested in funds would remain constant.
e. Reasonable Alternatives
    The following discussion addresses significant alternatives to 
proposed disclosure and reporting requirements. More detailed 
alternatives to the individual elements of the proposed requirements 
are discussed in detail above, and we have requested comment on these 
alternatives.\812\
---------------------------------------------------------------------------

    \812\ See supra sections III.G.1.a, III.G.1.b, III.G.2.d, and 
III.G.3.c.
---------------------------------------------------------------------------

    The Commission considered proposing to require each fund to 
disclose information about the liquidity of its portfolio positions in 
the fund's prospectus or on the fund's Web site, in addition to in 
reports filed on Form N-PORT. For example, we could have proposed to 
require a fund to disclose its three-day liquid asset minimum, or the 
percentage of the fund's portfolio invested in each of the liquidity 
categories specified under proposed rule 22e-4(b)(2)(i), in its 
prospectus or on its Web site. This additional disclosure could further 
increase transparency with respect to funds' portfolio liquidity and 
liquidity-related risks. But we had concerns that this additional 
disclosure could create investor confusion; for example, an investor 
could mistakenly understand statements about the liquidity of the 
fund's portfolio to implicate the redeemability of the fund's shares. 
We also had concerns that this additional disclosure could 
inappropriately emphasize risks relating to a fund's portfolio 
liquidity over other significant risks associated with an investment in 
the fund. We therefore determined that this alternative could lead to 
poor investor allocation and that its costs would likely outweigh its 
potential benefits.
    Conversely, the Commission also considered limiting the proposed 
enhancements to funds' liquidity-related disclosures on proposed Form 
N-PORT. As discussed above, we are sensitive to the possibility that 
the proposed amendments to the proposed form could facilitate front-
running, predatory trading, and other activities that could be 
detrimental to a fund and its investors. Limiting the required 
disclosure about information concerning the liquidity of funds' 
portfolio positions could allow funds to shelter certain information 
that they may consider a source of competitive advantage. As discussed 
in our recent proposal to modernize investment company reporting, the 
items included on proposed Form N-PORT reflect our careful 
consideration of what information we believe to be important for our 
oversight activities and to the public, and the costs to investment 
companies to provide the information.\813\ We likewise carefully 
weighed costs and benefits with respect to the new liquidity-related 
disclosures proposed to be required under proposed Form N-PORT and 
concluded that these disclosures appropriately balance related costs 
with the benefits that could arise from the ability of the Commission, 
and members of the public, to monitor and analyze the liquidity of 
individual funds, as well as liquidity trends within the fund industry.
---------------------------------------------------------------------------

    \813\ See Investment Company Reporting Modernization Release, 
supra note 104, at section IV.B.
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D. Request for Comment

    The Commission requests comment on all aspects of this initial 
economic analysis, including whether the analysis has: (i) Identified 
all benefits and costs, including all effects on efficiency, 
competition, and capital formation; (ii) given due consideration to 
each benefit and cost, including each effect on efficiency, 
competition, and capital formation; and (iii) identified and considered 
reasonable alternatives to the proposed new rule and rule amendments. 
We request and encourage any interested person to submit comments 
regarding the proposed rule and proposed amendments, our analysis of 
the potential effects of the proposed rule and proposed amendments, and 
other matters that may have an effect on the proposed rule and proposed 
amendments. We request that commenters identify sources of data and 
information as well as provide data and information to assist us in 
analyzing the economic consequences of the proposed rule and proposed 
amendments. We also are interested in comments on the qualitative 
benefits and costs we have identified and any benefits and costs we may 
have overlooked. We also request comments on all data and empirical 
analyses used in support of the proposed rule and proposed amendments.
    In addition to our general request for comment on the economic 
analysis associated with the proposed rule and proposed amendments, we 
request specific comment on certain aspects of the proposal:
     To what extent do funds' current practices regarding 
portfolio asset liquidity classification and liquidity risk assessment 
and management currently align with the proposed liquidity risk 
management program requirements, and what operational and other costs 
would funds incur in modifying their current practices to comply with 
the proposed requirements?
     What factors, with respect to a fund's particular risks 
and circumstances, would cause particular variance in funds' compliance 
costs related to the liquidity risk management program requirement?
     We note that rule 22e-4 as proposed is meant to provide 
flexibility in permitting a fund to customize its liquidity risk 
management program, and thus we anticipate that the costs and burdens 
relating to the program requirement will vary based on the fund's risks 
and circumstances. Does this flexibility (and the attendant requirement 
for each fund to adopt liquidity risk management policies and 
procedures based on an assessment of the fund's individual liquidity 
risk) affect the extent to which a fund family could lower costs by 
developing procedures, or implementing systems modifications, that 
could be used by all funds within the fund family? Does this 
flexibility enhance the potential effectiveness of the proposed 
liquidity risk management program?
     We request comment on our estimates of the one-time and 
ongoing costs associated with the proposed program requirement. Do 
commenters agree with our cost estimates? If not, how should our 
estimates be revised, and what changes, if any, should be made to the 
assumptions forming the basis for our estimates? Are there any 
significant costs that have not been identified within our estimates 
that warrant consideration? To what degree would economies of scale 
affect compliance costs for larger entities, and is the longer proposed 
compliance period for small entities \814\ appropriate in light of any 
relatively larger burden that would be borne by smaller entities that 
are not able to take advantage of economies of scale? How do commenters 
anticipate that these estimated costs might be allocated between a fund 
and its adviser?
---------------------------------------------------------------------------

    \814\ See supra section III.H.1.
---------------------------------------------------------------------------

     To what extent do commenters anticipate that the proposed 
liquidity risk management program requirement could lead funds to 
modify their investment strategies or increase their

[[Page 62374]]

investments in relatively more liquid assets? Do commenters believe 
that the proposed program requirement could significantly affect the 
market for relatively more liquid assets (or, conversely, the market 
for relatively less liquid assets) and if so, to what extent would 
these markets be affected?
     We request comment on our estimate of the number of funds 
that would adopt swing pricing policies and procedures under proposed 
rule 22c-1(a)(3). For what reasons would a fund decide not to adopt 
swing pricing policies and procedures, and would funds with certain 
investment strategies be relatively more likely to adopt swing pricing 
policies and procedures?
     What operational and other costs would a fund incur in 
adopting swing pricing policies and procedures, and would these costs 
be significantly lower if a fund is a member of a fund complex that 
also includes foreign-domiciled funds that currently use swing pricing? 
Do commenters agree with our cost estimates associated with proposed 
rule 22c-1(a)(3)? If not, how should our estimates be revised, and what 
changes, if any, should be made to the assumptions forming the basis 
for our estimates? Are there any significant costs that have not been 
identified within our estimates that warrant consideration? How do 
commenters anticipate that these estimated costs might be allocated 
between a fund and its adviser?
     Would fund shareholders be more inclined or less inclined 
to invest in a fund that has adopted swing pricing policies and 
procedures as contemplated by proposed rule 22c-1(a)(3)? Do commenters 
believe that swing pricing could preserve investment returns to fund 
investors? If so, please provide any available data regarding the 
relationship between the use of swing pricing and the preservation of 
investment returns.
     Do commenters agree with our statement that swing pricing 
would be simpler and less costly to implement than purchase fees or 
redemption fees?
     Do the proposed disclosure and reporting requirements 
raise any concerns about confidentiality relating to a fund's portfolio 
holdings, investor confusion, the potential misallocation of invested 
funds, or other concerns? To what extent would the proposed portfolio 
liquidity-related enhancements to funds' disclosures on Form N-PORT 
give rise to front-running, predatory trading, and other activities 
that could be detrimental to a fund and its investors?
     Would additional prospectus disclosure about funds' 
portfolio liquidity, beyond that which would be required under the 
proposed Form N-1A amendments, be useful to investors? If so, what 
additional disclosure would be most useful, and what disclosure methods 
would permit funds to appropriately balance disclosure about liquidity-
related risks with disclosure regarding other risks facing the fund?

V. Paperwork Reduction Act Analysis

A. Introduction

    Proposed rule 22e-4 and the proposed amendments to rule 22c-1 
contain ``collections of information'' within the meaning of the 
Paperwork Reduction Act of 1995 (``PRA'').\815\ In addition, the 
proposed amendments to rule 31a-2, Form N-1A and Regulation S-X would 
impact the collections of information burden under those rules and 
form.\816\ The proposed amendments to proposed Form N-CEN and proposed 
Form N-PORT would impact the collections of information burdens 
associated with these proposed forms described in the Investment 
Company Reporting Modernization Release.\817\
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    \815\ 44 U.S.C. 3501 through 3521.
    \816\ The paperwork burden from Regulation S-X is imposed by the 
rules and forms that relate to Regulation S-X and, thus, is 
reflected in the analysis of those rules and forms. To avoid a PRA 
inventory reflecting duplicative burdens and for administrative 
convenience, we have previously assigned a one-hour burden to 
Regulation S-X.
    \817\ See Investment Company Reporting Modernization Release, 
supra note 104, at section V.
---------------------------------------------------------------------------

    The title for the existing collections of information are: ``Rule 
31a-2 Records to be preserved by registered investment companies, 
certain majority-owned subsidiaries thereof, and other persons having 
transactions with registered investment companies'' (OMB Control No. 
3235-0179); and ``Form N-1A under the Securities Act of 1933 and under 
the Investment Company Act of 1940, Registration Statement of Open-End 
Management Investment Companies'' (OMB Control No. 3235-0307). In the 
Investment Company Reporting Modernization Release, we submitted new 
collections of information for proposed Form N-CEN and proposed Form N-
PORT.\818\ The titles for these new collections of information are: 
``Form N-CEN Under the Investment Company Act, Annual Report for 
Registered Investment Companies'' and ``Form N-PORT Under the 
Investment Company Act, Monthly Portfolio Investments Report.'' We are 
submitting new collections of information for proposed new rule 22e-4 
and the proposed amendments to rule 22c-1 under the Investment Company 
Act of 1940. The titles for these new collections of information would 
be: ``Rule 22e-4 Under the Investment Company Act of 1940, Liquidity 
risk management programs,'' and ``Rule 22c-1 Under the Investment 
Company Act of 1940, Pricing of redeemable securities for distribution, 
redemption and repurchase.'' The Commission is submitting these 
collections of information to the OMB for review in accordance with 44 
U.S.C. 3507(d) and 5 CFR 1320.11. 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.
---------------------------------------------------------------------------

    \818\ See id.
---------------------------------------------------------------------------

    The Commission is proposing new rule 22e-4 and amendments to rule 
22c-1, rule 31a-2, Regulation S-X and Form N-1A. The Commission also is 
proposing to amend proposed Form N-CEN and proposed Form N-PORT. The 
new rule and proposed amendments are designed to promote effective 
liquidity risk management throughout the open-end fund industry, 
prevent potential dilution of interests of fund shareholders in light 
of redemption activity, and enhance disclosure regarding fund liquidity 
and shareholder redemption practices. We discuss below the collection 
of information burdens associated with these reforms.

B. Rule 22e-4

    Proposed rule 22e-4 would require funds to establish a written 
liquidity risk management program that is reasonably designed to assess 
and manage the fund's liquidity risk. This program would include 
policies and procedures adopted by the fund that incorporate certain 
program elements, including: (i) Classification, and ongoing review of 
the classification, of the liquidity of a fund's portfolio positions; 
(ii) assessment and periodic review of a fund's liquidity risk; and 
(iii) management of the fund's liquidity risk, including determination 
and periodic review of the fund's three-day liquidity asset minimum and 
establishment of policies and procedures regarding redemptions in kind, 
to the extent that the fund engages in or reserves the right to engage 
in redemptions in kind. The rule also would require board approval and 
oversight of the program and recordkeeping. The proposed requirements 
that funds adopt a written liquidity risk management program, report to 
the board, maintain a written record of how the three-day liquid asset 
minimum and any adjustments were determined, and retain certain records 
are collections of information under the

[[Page 62375]]

PRA. The respondents to proposed rule 22e-4 would be open-end 
management investment companies (other than money market funds), and we 
estimate that funds within 867 fund complexes would be subject to 
proposed rule 22e-4.\819\ Compliance with proposed rule 22e-4 would be 
mandatory for all such funds. Information regarding the fund's three-
day liquid asset minimum would be confidential until publicly reported 
on Form N-PORT, as described below. Other information provided to the 
Commission in connection with staff examinations or investigations 
would be kept confidential subject to the provisions of applicable law.
---------------------------------------------------------------------------

    \819\ See 2015 ICI Fact Book, supra note 3, at Fig. 1.8.
---------------------------------------------------------------------------

1. Preparation of Written Liquidity Risk Management Program
    We believe that most funds regularly monitor the liquidity of their 
portfolios as part of the portfolio management function, but they may 
not have written policies and procedures regarding liquidity 
management. Proposed rule 22e-4 would require funds to have a written 
liquidity risk management program. We believe such a program would 
promote efficient liquidity risk management, reduce the probability 
that a fund will be able to meet redemption requests only through 
activities that could materially affect the fund's NAV or risk profile 
or dilute the interests of fund shareholders, and respond to risks 
associated with increasingly complex portfolio investments and 
operations.
    For purposes of this PRA analysis, we estimate that a fund complex 
would incur a one-time average burden of 40 hours associated with 
documenting the liquidity risk management programs adopted by each fund 
within the complex. Proposed rule 22e-4 requires fund boards to approve 
the liquidity risk management program and any material changes to the 
program (including the three-day liquid asset minimum), and we estimate 
a one-time burden of nine hours per fund complex associated with fund 
boards' review and approval of the funds' liquidity risk management 
programs and preparation of board materials. Amortized over a 3 year 
period, this would be an annual burden per fund complex of about 16 
hours. Accordingly, we estimate that the total burden for initial 
documentation and review of funds' written liquidity risk management 
program would be 42,483 hours.\820\ We also estimate that it would cost 
a fund complex approximately $38,466 to document, review and initially 
approve these policies and procedures, for a total cost of 
approximately $33,350,022.\821\
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    \820\ This estimate is based on the following calculation: (40 + 
9) hours x 867 fund complexes = 42,483 hours.
    \821\ These estimates are based on the following calculations: 
20 hours x $301 (hourly rate for a senior portfolio manager) = 
$6,020; 20 hours x $455.5 (blended hourly rate for assistant general 
counsel ($426) and chief compliance officer ($485) = $9,110; 5 hours 
x $4,400 (hourly rate for a board of 8 directors) = $22,000; 4 hours 
(for a fund attorney's time to prepare materials for the board's 
determinations) x $334 (hourly rate for a compliance attorney) = 
$1,336. $6,020 + $9,110 + $22,000 + $1,336 = $38,466; $38,466 x 867 
fund complexes = $33,350,022. The hourly wages used are from SIFMA's 
Management & Professional Earnings in the Securities Industry 2013, 
modified to account for an 1800-hour work-year and multiplied by 
5.35 to account for bonuses, firm size, employee benefits, and 
overhead. The staff previously estimated in 2009 that the average 
cost of board of director time was $4,000 per hour for the board as 
a whole, based on information received from funds and their counsel. 
Adjusting for inflation, the staff estimates that the current 
average cost of board of director time is approximately $4,400.
---------------------------------------------------------------------------

2. Reporting Regarding the Three-Day Liquid Assets Minimum
    Under proposed rule 22e-4(b)(2)(iv), each fund would be required as 
part of its liquidity risk management program to determine and 
periodically review its three-day liquid asset minimum. The fund's 
investment adviser or officer that administers the liquidity risk 
management program must provide a written report to the fund's board at 
least annually that reviews the adequacy of the fund's liquidity risk 
management program, including the fund's three-day liquid asset 
minimum, and the effectiveness of its implementation.
    For purposes of this PRA analysis, we estimate that, for each fund 
complex, compliance with the reporting requirement would entail: (i) 
Five hours of portfolio management time, (ii) five hours of compliance 
time, (iii) five hours of professional legal time and (iv) 2.5 hours of 
support staff time, requiring an additional 17.5 burden hours at a time 
cost of approximately $5,193 per fund complex to draft the required 
report to the board.\822\ We estimate that the total burden for 
preparation of the board report would be 15,173 hours, at an aggregate 
cost of $4,502,331.\823\
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    \822\ This estimate is based on the following calculation: 5 
hours x $301 (hourly rate for a senior portfolio manager) = $1,505; 
5 hours x $283 (hourly rate for compliance manager) = $1,415; 5 
hours x $426 (hourly rate for assistant general counsel) = $2,130; 
and 2.5 hours x $57 (hourly rate for general clerk) = $143. $1,505 + 
$1,415 + $2,130 + $143 = $5,193. The hourly wages used are from 
SIFMA's Management & Professional Earnings in the Securities 
Industry 2013, modified to account for an 1800-hour work-year and 
multiplied by 5.35 to account for bonuses, firm size, employee 
benefits, and overhead. The hourly wage used for the general clerk 
is from SIFMA's Office Salaries in the Securities Industry 2013, 
modified to account for an 1800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits, and 
overhead.
     Because each fund within a fund complex would be required to 
determine its own three-day liquid asset minimum, this estimate 
assumes that the report at issue would incorporate an assessment of 
the three-day liquid asset minimum for each fund within the fund 
complex.
    \823\ These estimates are based on the following calculations: 
867 fund complexes x 17.5 hours = 15,173 hours; and $5,193 x 867 
fund complexes = $4,502,331.
---------------------------------------------------------------------------

3. Recordkeeping
    Proposed rule 22e-4(c) would require a fund to maintain a written 
copy of policies and procedures adopted pursuant to its liquidity risk 
management program for five years in an easily accessible place. The 
proposed rule also would require a fund to maintain copies of materials 
provided to the board, as well as a written record of how the three-day 
liquid asset minimum and any adjustments to the minimum were 
determined, for five years, the first two years in an easily accessible 
place. The retention of these records would be necessary to allow the 
staff during examinations of funds to determine whether a fund is in 
compliance with the required liquidity risk management program. We 
estimate that the burden would be five hours per fund complex to retain 
these records, with 2.5 hours spent by a general clerk and 2.5 hours 
spent by a senior computer operator. We estimate a time cost per fund 
complex of $361.\824\ We estimate that the total burden for 
recordkeeping related to the liquidity risk management program would be 
4,335 hours, at an aggregate cost of $312,987.\825\
---------------------------------------------------------------------------

    \824\ This estimate is based on the following calculations: 2.5 
hours x $57 (hourly rate for a general clerk) = $143; 2.5 hours x 
$87 (hour rate for a senior computer operator) = $218. $143 + $218 = 
$361.
    \825\ This estimate is based on the following calculations: 867 
fund complexes x 5 hours = 4,335 hours. 867 fund complexes x $361 = 
$312,987.
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4. Estimated Total Burden
    Amortized over a three-year period, the hour burdens and time costs 
associated with proposed rule 22e-4, including the burden associated 
with (a) funds' initial documentation and review of the required 
written liquidity risk management program, (b) reporting to a fund's 
board regarding the fund's three-day liquid asset minimum, and (c) 
recordkeeping requirements, would result in an average aggregate annual 
burden of 28,611 hours and average aggregate time costs of 
$14,431,215.\826\

[[Page 62376]]

We estimate that there are no external costs associated with this 
collection of information.
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    \826\ These estimates are based on the following calculations: 
42,483 hours (year 1) + (2 x 15,173 hours) (years 2 and 3) + (3 x 
4,335 hours) (years 1, 2 and 3) / 3 = 28,611 hours; $33,350,022 
(year 1) + (2 x $4,502,331) (years 2 and 3) + (3 x $312,987) (years 
1, 2 and 3) / 3 = $14,431,215.
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C. Rule 22c-1

    We are proposing to amend rule 22c-1 and establish new collection 
of information burdens under the rule. The proposed amendments would 
permit a fund (with the exception of a money market fund or ETF) to 
establish and implement policies and procedures that would require the 
fund, under certain circumstances, to use swing pricing to mitigate 
dilution of the value of outstanding redeemable securities stemming 
from shareholder purchase or redemption activity. We believe the 
proposed amendments to rule 22c-1 would promote investor protection by 
providing funds with an additional tool to mitigate the potentially 
dilutive effects of shareholder purchase or redemption activity and 
provide a set of operational standards that would allow funds to gain 
comfort using swing pricing as a new means of mitigating potential 
dilution.\827\
---------------------------------------------------------------------------

    \827\ See supra section IV.C.2.b.
---------------------------------------------------------------------------

    In order to use swing pricing under the proposed amendments, a fund 
would be required to establish and implement swing pricing policies and 
procedures that meet certain requirements.\828\ The proposed amendments 
also would require a fund's board of directors to approve the fund's 
swing pricing policies and procedures, including any material change to 
these policies and procedures,\829\ and funds would be required to 
maintain a written copy of the fund's swing pricing policies and 
procedures.\830\ The requirements that funds adopt policies and 
procedures, obtain board approval and retain certain records related to 
swing pricing are collections of information under the PRA. The 
respondents to the proposed amendments to rule 22c-1 would be open-end 
management investment companies (other than money market funds or ETFs) 
that engage in swing pricing. We estimate that 167 fund complexes 
include funds that would adopt swing pricing policies and procedures 
pursuant to the rule.\831\ Compliance with rule 22c-1 would be 
mandatory for any fund that chose to use swing pricing to adjust its 
NAV in reliance on the proposed amendments. The information when 
provided to the Commission in connection with staff examinations or 
investigations would be kept confidential subject to the provisions of 
applicable law.
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    \828\ See proposed rule 22c-1(a)(3)(i).
    \829\ See proposed rule 22c-1(a)(3)(ii).
    \830\ See proposed rule 22c-1(a)(3)(iii).
    \831\ See supra section IV.C.2.c.
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    For purposes of this PRA analysis, we estimate that each fund 
complex would incur a one-time average burden of 24 hours to document 
swing pricing policies and procedures. The proposed amendments to rule 
22c-1 would require fund boards initially to approve the swing pricing 
policies and procedures (including the swing threshold) and any 
material changes to them, and we estimate a one-time burden of five 
hours per fund complex associated with the fund board's review and 
approval of swing pricing policies and procedures. Amortized over a 3 
year period, this would be an annual burden per fund complex of about 
10 hours. Accordingly, we estimate that the total burden associated 
with the preparation and approval of swing pricing policies and 
procedures by those fund complexes that we believe would use swing 
pricing would be 4,843 hours.\832\ We also estimate that it would cost 
a fund complex $21,710 to document, review and initially approve these 
policies and procedures, for a total cost of $3,625,570.\833\
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    \832\ This estimate is based on the following calculation: (24 + 
5) hours x 167 fund complexes = 4,843 hours.
    \833\ These estimates are based on the following calculations: 
12 hours x $198 (hourly rate for a senior accountant) = $2,376; 12 
hours x $455.5 (blended hourly rate for assistant general counsel 
($426) and chief compliance officer ($485) = $5,466; 3 hours x 
$4,400 (hourly rate for a board of 8 directors) = $13,200; 2 hours 
(for a fund attorney's time to prepare materials for the board's 
determinations) x $334 (hourly rate for a compliance attorney) = 
$668; ($2,376 + $5,466 + $13,200 + $668) = $21,710; $21,710 x 167 
fund complexes = $3,625,570. The hourly wages used are from SIFMA's 
Management & Professional Earnings in the Securities Industry 2013, 
modified to account for an 1800-hour work-year and multiplied by 
5.35 to account for bonuses, firm size, employee benefits, and 
overhead. See also supra note 821 (discussing basis for estimated 
hourly rate for a board of directors).
---------------------------------------------------------------------------

    The proposed amendments to rule 22c-1 also would require a fund 
that uses swing pricing to retain a written copy of the fund's swing 
policies and procedures that are in effect, or at any time within the 
past six years were in effect, in an easily accessible place.\834\ The 
retention of these records would be necessary to allow the staff during 
examinations of funds to determine whether a fund is in compliance with 
its swing pricing policies and procedures, and whether the policies and 
procedures comply with the proposed amendments to rule 22c-1. We 
estimate that the burden would be three hours per fund complex to 
retain these records, with 1.5 hours spent by a general clerk and 1.5 
hours spent by a senior computer operator. We estimate a time cost per 
fund complex of $216.\835\ We estimate that the total for recordkeeping 
related to swing pricing would be 501 hours, at an aggregate cost of 
$36,072 for all fund complexes that we believe include funds that would 
adopt swing pricing policies and procedures.\836\
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    \834\ Proposed rule 22c-1(a)(3)(iii).
    \835\ This estimate is based on the following calculations: 1.5 
hours x $57 (hourly rate for a general clerk) = $85.5; 1.5 hours x 
$87 (hour rate for a senior computer operator) = $130.5. $85.5 + 
$130.5 = $216.
    \836\ These estimates are based on the following calculation: 3 
hours x 167 fund complexes = 501 hours. 167 fund complexes x $216 = 
$36,072.
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    Amortized over a three-year period, the hour burdens and time costs 
associated with the proposed amendments to rule 22c-1, including the 
burden associated with the requirements that funds adopt policies and 
procedures, obtain board approval and retain certain records related to 
swing pricing, would result in an average aggregate annual burden of 
2,115 hours and average aggregate time costs of $1,244,595.\837\ We 
estimate that there are no external costs associated with this 
collection of information.
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    \837\ These estimates are based on the following calculations: 
4,843 hours (year 1) + (3 x 501 hours) (years 1, 2 and 3) / 3 = 
2,115 hours; $3,625,570 (year 1) + (3 x $36,072) (years 1, 2 and 3) 
/ 3 = $1,244,595.
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D. Rule 31a-2

    Section 31(a)(1) of the Investment Company Act requires registered 
investment companies and certain of their majority-owned subsidiaries 
to maintain and preserve records as prescribed by Commission rules. 
Rule 31a-1 under the Act specifies the books and records that must be 
maintained. Rule 31a-2 under the Act specifies the time periods that 
entities must retain certain books and records, including those 
required to be maintained under rule 31a-1. The retention of records, 
as required by rule 31a-2, is necessary to ensure access by Commission 
staff to material business and financial information about funds and 
certain related entities. This information is used by the staff to 
evaluate fund compliance with the Investment Company Act and 
regulations thereunder. The Commission currently estimates that the 
annual burden associated with rule 31a-2 is 220 hours per fund, with 
110 hours spent by a general clerk at a rate of $52 per hour and 110 
hours spent by a senior computer operator at a rate of $81 per 
hour.\838\ The current estimate of the

[[Page 62377]]

total annual burden for all funds to comply with rule 31a-2 is 
approximately 766,480 hours at an estimated cost of $50,970.920.\839\
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    \838\ The estimated salary rates were derived from SIFMA's 
Office Salaries in the Securities Industry 2011, modified to account 
for an 1800-hour work-year and multiplied by 2.93 to account for 
bonuses, firm size, employee benefits, and overhead.
    \839\ These estimates were based on the following calculations: 
220 hours x 3,484 funds (the estimated number of funds the last time 
the rule's information collections were submitted for PRA renewal in 
2012) = 766,480 total hours; 776,480 hours / 2 = 383,240 hours; 
383,240 x $52/hour for a clerk = $19,928,480; 383,240 x $81 rate per 
hour for a computer operator = $31,042,440; $19,928,480 + 
$31,042,440 = $50,970,920 total cost.
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    We are proposing to amend rule 31a-2 to require a fund that chooses 
to use swing pricing to create and maintain a record of support for 
each computation of an adjustment to the NAV of the fund's shares based 
on the fund's swing policies and procedures.\840\ This collection of 
information requirement would be mandatory for any fund that chooses to 
use swing pricing to adjust its NAV in reliance on the proposed 
amendments to rule 22c-1. To the extent that the Commission receives 
confidential information pursuant to this collection of information, 
such information would be kept confidential, subject to the provisions 
of applicable law.
---------------------------------------------------------------------------

    \840\ Proposed amendment to rule 31a-2(a)(2).
---------------------------------------------------------------------------

    We estimate that approximately 947 funds would use swing pricing 
pursuant to the proposed amendments to rule 22c-1. We also estimate 
that each fund that uses swing pricing generally would incur an 
additional burden of 1 hour per year in order to comply with the 
proposed amendments to rule 31a-2. Accordingly, we estimate that the 
total average annual hour burden associated with the proposed 
amendments to rule 31a-2 would be an additional 947 hours at a cost of 
$68,169.\841\
---------------------------------------------------------------------------

    \841\ These estimates are based on the following calculations: 1 
hour x 947 funds = 947 total hours; 474 hours x $57 rate per hour 
for a general clerk = $27,018; 473 hours x $87 rate per hour for a 
senior computer operator = $41,151; $27,018 + $41,151 = $68,169 
total cost.
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    The Commission currently estimates that the average external cost 
of preserving books and records required by rule 31a-2 is approximately 
$70,000 per fund at a total cost of approximately $243,880,000 per 
year,\842\ but that funds would already spend approximately half this 
amount to preserve these same books and records, as they are also 
necessary to prepare financial statements, meet various state reporting 
requirements, and prepare their annual federal and state income tax 
returns. Therefore, the Commission estimated that the total annual cost 
burden for all funds as a result of compliance with rule 31a-2 is 
approximately $121,940,000.\843\ We estimate that the annual external 
cost burden of compliance with the information collection requirements 
of rule 31a-2 would increase by $300 per fund that engages in swing 
pricing, for an increase in the total annual cost burden of 
$284,100.\844\
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    \842\ This estimate is based on the following calculation: 3,484 
funds (the estimated number of funds the last time the rule's 
information collections were submitted for PRA renewal in 2012) x 
$70,000 = $243,880,000.
    \843\ See Submission of OMB Review; Comment Request, Extension: 
Rule 31a-2, OMB Control No. 3235-0179, Securities and Exchange 
Commission 77 FR 66885 (Nov. 7, 2012).
    \844\ This estimate is based on the following calculation: 947 
funds x $300 = $284,100.
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E. Form N-PORT

    On May 20, 2015, the Commission proposed Form N-PORT, which would 
require funds to report information within thirty days after the end of 
each month about their monthly portfolio holdings to the Commission in 
a structured data format. Preparing a report on Form N-PORT is 
mandatory and a collection of information under the PRA, and the 
information required by Form N-PORT would be data-tagged in XML format. 
Responses to the reporting requirements would be kept confidential for 
reports filed with respect to the first two months of each quarter; the 
third month of the quarter would not be kept confidential, but made 
public sixty days after the quarter end.
    In the Investment Company Reporting Modernization Release, we 
estimated that, for the 35% of funds that would file reports on 
proposed Form N-PORT in house, the per fund average aggregate annual 
hour burden was estimated to be 178 hours per fund, and the average 
cost to license a third-party software solution would be $4,805 per 
fund per year.\845\ For the remaining 65% of funds that would retain 
the services of a third party to prepare and file reports on proposed 
Form N-PORT on the fund's behalf, we estimated the average aggregate 
annual hour burden to be 125 hours per fund, and each fund would pay an 
average fee of $11,440 per fund per year for the services of third-
party service provider. In sum, we estimated that filing reports on 
proposed Form N-PORT would impose an average total annual hour burden 
of 1,537,572 hours on applicable funds, and all applicable funds would 
incur on average, in the aggregate, external annual costs of 
$97,674,221.\846\
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    \845\ See Investment Company Reporting Modernization Release, 
supra note 104, at nn.736-741, 749 and accompanying text.
    \846\ See Investment Company Reporting Modernization Release, 
supra note 104, at nn.748 and 751 and accompanying text.
---------------------------------------------------------------------------

    We are proposing amendments to Form N-PORT that would require each 
fund to report its three-day liquid asset minimum,\847\ the liquidity 
classification for each portfolio asset position (or portion 
thereof),\848\ and whether an asset is a 15% standard asset.\849\ For 
portfolio assets with multiple liquidity classifications, the proposed 
amendments would require funds to indicate the dollar amount 
attributable to each classification. We believe that requiring funds to 
report information about the liquidity of portfolio investments would 
assist the Commission in better assessing liquidity risk in the open-
end fund industry. Moreover, we believe that this information would 
help investors and potential users better understand the liquidity 
risks in funds.
---------------------------------------------------------------------------

    \847\ See proposed Item B.7 of proposed Form N-PORT.
    \848\ See proposed Item C.13 of proposed Form N-PORT.
    \849\ See proposed Item C.7 of proposed Form N-PORT.
---------------------------------------------------------------------------

1. Liquidity Classification
    Under proposed rule 22e-4(b)(2)(i), an open-end management 
investment company (other than a money market fund) would be required 
as part of its liquidity risk management program to classify the 
liquidity of each of its positions in a portfolio asset (or portions of 
a position in a particular asset) based the number of days that the 
fund's position in the asset (or portion thereof) would be convertible 
to cash at a price that does not materially affect the value of that 
asset immediately prior to sale. We estimate that 8,734 funds would be 
required to file, on a monthly basis, additional information on Form N-
PORT as a result of the proposed amendments.\850\ Funds also would be 
required to conduct an ongoing review of the liquidity of their assets. 
Proposed rule 22e-4(b)(2)(ii) includes factors that funds must take 
into account when classifying the liquidity of their assets. The 
liquidity classifications of each portfolio asset position would be 
reported on Item C. 13 of proposed Form N-PORT.
---------------------------------------------------------------------------

    \850\ There were 8,734 open-end funds (excluding money market 
funds, and including ETFs (for purposes of these calculations, we 
exclude non-1940 Act ETFs)) as of the end of 2014. See 2015 ICI Fact 
Book, supra note 3, at 177, 184.
---------------------------------------------------------------------------

    Based on staff outreach, we understand that many funds currently 
categorize assets based on their liquidity, but this proposal would 
require a specific type of classification and the determination of a 
three-day liquid asset minimum. We expect that funds would incur a one-
time internal burden to initially classify a fund's

[[Page 62378]]

portfolio securities and program existing systems to conduct the 
ongoing classifications and reviews required by the proposed rule for 
reporting purposes. We estimate that each fund would incur an average 
one-time burden of 54 hours at a time cost of $15,330.\851\ Amortized 
over a three year period, this would result in an average annual hour 
burden of approximately 18 burden hours and a time cost of $5,110.\852\
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    \851\ We estimate that these systems modifications would include 
the following costs: (i) Project planning and systems design (24 
hours x $260 (hourly rate for a senior systems analyst) = $6,240) 
and (ii) systems modification integration, testing, installation and 
deployment (30 hours x $303 (hourly rate for a senior programmer) = 
$9,090. $6,240 + $9,090 = $15,330.
    \852\ $15,330 / 3 = $5,110.
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2. Reporting on Proposed Form N-PORT
    In addition to the classification and review of securities, we 
estimate that 8,734 \853\ funds would be required to file, on a monthly 
basis, additional information on Form N-PORT as a result of the 
proposed amendments. We estimate that each fund that files reports on 
Form N-PORT in house (35%, or 3,057 funds) would require an average of 
approximately 3 burden hours to compile (including review of the 
information), tag, and electronically file the additional information 
in light of the proposed amendments for the first time and an average 
of approximately 1 burden hours for subsequent filings. Therefore, we 
estimate the per fund average annual hour burden associated with the 
incremental changes to Form N-PORT as a result of the proposed 
amendments for these funds would be an additional 14 hours for the 
first year \854\ and an additional 12 hours for each subsequent 
year.\855\ Amortized over three years, the average annual hour burden 
would be an additional 12.67 hours per fund.\856\
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    \853\ There were 8,734 open-end funds (excluding money market 
funds, and including ETFs) as of the end of 2014. See 2015 ICI Fact 
Book, supra note 3, at 177, 184.
    \854\ The estimate is based on the following calculation: (1 
filing x 3 hours) + (11 filings x 1 hour) = 14 burden hours in the 
first year.
    \855\ This estimate is based on the following calculation: 12 
filings x 1 hour = 12 burden hours in each subsequent year.
    \856\ The estimate is based on the following calculation: (14 + 
(12 x 2)) / 3 = 12.67.
---------------------------------------------------------------------------

    We estimate that 65% of funds (5,677) would retain the services of 
a third party to provide data aggregation, validation and/or filing 
services as part of the preparation and filing of reports on proposed 
Form N-PORT on the fund's behalf. For these funds, we estimate that 
each fund would require an average of approximately 4 hours to compile 
and review the information with the service provider prior to 
electronically filing the report for the first time and an average of 
0.5 burden hours for subsequent filings. Therefore, we estimate the per 
fund average annual hour burden associated with the incremental changes 
to proposed Form N-PORT as a result of the proposed amendments for 
these funds would be an additional 9.5 hours for the first year \857\ 
and an additional 6 hours for each subsequent year.\858\ Amortized over 
three years, the average aggregate annual hour burden would be an 
additional 7.17 hours per fund.\859\ In sum, we estimate that the 
proposed amendments to Form N-PORT would impose an average total annual 
hour burden of an additional 79,436.28 hours on applicable funds.\860\ 
We do not anticipate any change to the total external annual costs of 
$97,674,221.\861\
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    \857\ The estimate is based on the following calculation: (1 
filing x 4 hours) + (11 filings x 0.5 hour) = 9.5 burden hours in 
the first year.
    \858\ This estimate is based on the following calculation: 12 
filings x 0.5 hour = 6 burden hours in each subsequent year.
    \859\ The estimate is based on the following calculation: (9.5 + 
(6 x 2)) / 3 = 7.17.
    \860\ The estimate is based on the following calculation: (3,057 
funds x 12.67 hours) + (5,677 funds x 7.17 hours) = 79,436.28 hours.
    \861\ See Investment Company Reporting Modernization Release, 
supra note 104, at n. 751 and accompanying text.
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F. Form N-CEN

    On May 20, 2015, we proposed to amend rule 30a-1 to require all 
funds to file reports with certain census-type information on proposed 
Form N-CEN with the Commission on an annual basis. Proposed Form N-CEN 
would be a collection of information under the PRA, and is designed to 
facilitate the Commission's oversight of funds and its ability to 
monitor trends and risks. The collection of information under Form N-
CEN would be mandatory for all funds, and responses would not be kept 
confidential.
    In the Investment Company Reporting Modernization Release, we 
estimated that the average annual hour burden per response for proposed 
Form N-CEN for the first year would be 32.37 hours and 12.37 hours in 
subsequent years.\862\ Amortizing the burden over three years, we 
estimated that the average annual hour burden per fund per year would 
be 19.04 and the total average annual hour burden would be 59,900 
hours.\863\ We also estimated that all applicable funds would incur, in 
the aggregate, external annual costs of $1,748,637, which would include 
the costs of registering and maintaining LEIs for funds.
---------------------------------------------------------------------------

    \862\ Id. at n. 762 and accompanying text.
    \863\ Id. at n. 765 and accompanying text.
---------------------------------------------------------------------------

    We are proposing amendments to Form N-CEN to enhance the reporting 
of a fund's liquidity risk management practices. Specifically, the 
proposed amendments to Form N-CEN would require a fund to disclose 
information about committed lines of credit, including the size of the 
line of credit, the number of days that the line of credit was used, 
and the identity of the institution with whom the line of credit is 
held. The proposed amendments to Form N-CEN also would require a fund 
to report whether it engaged in interfund lending or interfund 
borrowing. Funds other than money market funds and ETFs would be 
required to report whether they used swing pricing during the reporting 
period. In addition, proposed amendments to Form N-CEN would require an 
ETF to report whether it required that an authorized participant post 
collateral to the ETF or any of its designated service providers in 
connection with the purchase or redemption of ETF shares during the 
reporting period.\864\
---------------------------------------------------------------------------

    \864\ We do not estimate any change in burden as a result of 
proposed Item 60(g) of Form N-CEN because the proposed new item only 
requires a yes or no response.
---------------------------------------------------------------------------

    We estimate that 8,734 funds would be required to file responses on 
Form N-CEN as a result of the proposed amendments to the form. We 
estimate that the average annual hour burden per additional response to 
Form N-CEN as a result of the proposed amendments would be 0.5 hour per 
fund per year for a total average annual hour burden of 4,367 
hours.\865\ We do not estimate any change to the external costs 
associated with proposed Form N-CEN.
---------------------------------------------------------------------------

    \865\ This estimate is based on the following calculation: 8,734 
funds x 0.5 hours = 4,367 hours.
---------------------------------------------------------------------------

G. Form N-1A

    Form N-1A is the registration form used by open-end investment 
companies. The respondents to the proposed amendments to Form N-1A are 
open-end management investment companies registered or registering with 
the Commission. Compliance with the disclosure requirements of Form N-
1A is mandatory, and the responses to the disclosure requirements are 
not confidential. We currently estimate for Form N-1A a total hour 
burden of 1,579,974 hours, and the total annual external cost burden is 
$124,820,197.\866\
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    \866\ These estimates are based on the last time the rule's 
information collections were submitted for PRA renewal in 2014.
---------------------------------------------------------------------------

    We are proposing amendments to Form N-1A that would require funds

[[Page 62379]]

that use swing pricing to disclose that they use swing pricing, and, if 
applicable, an explanation of the circumstances under which swing 
pricing is used, and the effects of using swing pricing.\867\ We also 
are proposing amendments to Form N-1A that would require funds to 
disclose on their balance sheet the NAV as adjusted pursuant to swing 
pricing policies and procedures. The proposed amendments to Form N-1A 
also would require funds to disclose additional information concerning 
the procedures for redeeming a fund's shares. Funds would be required 
to describe the number of days following receipt of shareholder 
redemption requests in which the fund will pay redemption proceeds to 
redeeming shareholders.\868\ Funds also would be required to describe 
the methods used to meet redemption requests in stressed and non-
stressed market conditions.\869\ Finally, funds would be required to 
file as exhibits to their registration statements credit agreements for 
the benefit of the funds. Overall, we believe that requiring funds to 
provide this additional disclosure regarding swing pricing and 
redemption procedures, and requiring the filing of credit agreements 
would provide Commission staff, investors, and market participants with 
improved information about the procedures funds use to meet their 
redemption obligations and the conditions under which swing pricing 
procedures will be used to mitigate the effects of dilution as a result 
of shareholder purchase or redemption activity.
---------------------------------------------------------------------------

    \867\ See proposed Item 6(d) of Form N-1A.
    \868\ See proposed Item 11(c)(7) of Form N-1A.
    \869\ See proposed Item 11(c)(8) of Form N-1A.
---------------------------------------------------------------------------

    Form N-1A generally imposes two types of reporting burdens on 
investment companies: (i) The burden of preparing and filing the 
initial registration statement; and (ii) the burden of preparing and 
filing post-effective amendments to a previously effective registration 
statement (including post-effective amendments filed pursuant to rule 
485(a) or 485(b) under the Securities Act, as applicable). We estimate 
that each fund would incur a one-time burden of an additional 2 
hours,\870\ at a time cost of an additional $637,\871\ to draft and 
finalize the required disclosure and amend its registration statement. 
In aggregate, we estimate that funds would incur a one-time burden of 
an additional 17,468 hours,\872\ at a time cost of an additional 
$5,563,558,\873\ to comply with the proposed Form N-1A disclosure 
requirements. Amortizing the one-time burden over a three-year period 
results in an average annual burden of an additional 5,823 hours at a 
time cost of an additional $1,854,519.\874\
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    \870\ This estimate is based on the following calculation: 1 
hour to update registration statement to include swing pricing-
related disclosure statements + 1 hour to update registration 
statement disclosure about redemption procedures = 2 hours.
    \871\ This estimate is based on the following calculation: 2 
hours x $318.5 (blended rate for a compliance attorney ($334) and a 
senior programmer ($303)) = $637.
    \872\ This estimate is based on the following calculations: 2 
hours x 8,734 funds = 17,468 hours.
    \873\ This estimate is based on the following calculation: 
17,468 hours x $318.50 (blended rate for a compliance attorney 
($334) and a senior programmer ($303)) = $5,563,558.
    \874\ This estimate is based on the following calculation: 
17,468 hours / 3 = 5,823 average annual burden hours; $5,563,558 
burden costs / 3 = $1,854,519 average annual burden cost.
---------------------------------------------------------------------------

    We estimate that each fund would incur an ongoing burden of an 
additional 0.25 hours, at a time cost of an additional $80,\875\ each 
year to review and update the proposed disclosure in response to Item 
11 and Item 28 of Form N-1A regarding the pricing and redemption of 
fund shares and the inclusion of credit agreements as exhibits, 
respectively. In aggregate, we estimate that funds would incur an 
annual burden of an additional 2,184 hours,\876\ at a time cost of an 
additional $695,604,\877\ to comply with the proposed Form N-1A 
disclosure requirements.
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    \875\ This estimate is based on the following calculations: 0.25 
hours x $318.50 (blended hourly rate for a compliance attorney 
($334) and a senior programmer ($303)) = $79.63.
    \876\ This estimate is based on the following calculation: 0.25 
hours x 8,734 funds = 2,183.5 hours.
    \877\ This estimate is based on the following calculation: 2,184 
hours x $318.50 (blended hourly rate for a compliance attorney 
($334) and a senior programmer ($303)) = $695,604.
---------------------------------------------------------------------------

    Amortizing these one-time and ongoing hour and cost burdens over 
three years results in an average annual increased burden of 
approximately 0.50 hours per fund,\878\ at a time cost of $265.42 per 
fund.\879\
---------------------------------------------------------------------------

    \878\ This estimate is based on the following calculation: 1 
burden hour (year 1) + 0.25 burden hour (year 2) + 0.25 burden hour 
(year 3) / 3 = 0.50 hours.
    \879\ This estimate is based on the following calculation: $637 
(year 1 monetized burden hours) + $79.63 (year 2 monetized burden 
hours) + $79.63 (year 3 monetized burden hours) / 3 = $265.42.
---------------------------------------------------------------------------

    In total, we estimate that funds would incur an average annual 
increased burden of approximately 8,007 hours,\880\ at a time cost of 
approximately $2,550,123,\881\ to comply with the proposed Form N-1A 
disclosure requirements. We do not estimate any change to the external 
costs associated with the proposed amendments to Form N-1A.
---------------------------------------------------------------------------

    \880\ This estimate is based on the following calculation: 5,823 
hours + 2,184 hours = 8,007 hours.
    \881\ This estimate is based on the following calculation: 
$1,854,519 + $695,604 = $2,550,123.
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H. Request for Comments

    We request comment on whether our estimates for burden hours and 
any external costs as described above are reasonable. Pursuant to 44 
U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (i) 
Evaluate whether the proposed collections of information are necessary 
for the proper performance of the functions of the Commission, 
including whether the information will have practical utility; (ii) 
evaluate the accuracy of the Commission's estimate of the burden of the 
proposed collections of information; (iii) determine whether there are 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (iv) determine whether there are ways to minimize the 
burden of the collections of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology.
    The agency has submitted the proposed collection of information to 
OMB for approval. Persons wishing to submit comments on the collection 
of information requirements of the proposed amendments should direct 
them to the Office of Management and Budget, Attention Desk Officer for 
the Securities and Exchange Commission, Office of Information and 
Regulatory Affairs, Washington, DC 20503, and should send a copy to 
Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F 
Street NE., Washington, DC 20549 1090, with reference to File No. S7-
16-15. OMB is required to make a decision concerning the collections of 
information between 30 and 60 days after publication of this release; 
therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days after publication of this release. 
Requests for materials submitted to OMB by the Commission with regard 
to these collections of information should be in writing, refer to File 
No. S7-16-15, and be submitted to the Securities and Exchange 
Commission, Office of FOIA Services, 100 F Street NE., Washington, DC 
20549-2736.

VI. Initial Regulatory Flexibility Act Analysis

    This Initial Regulatory Flexibility Analysis has been prepared in 
accordance with section 3 of the

[[Page 62380]]

Regulatory Flexibility Act (``RFA'').\882\ It relates to: Proposed rule 
22e-4; proposed amendments to rule 22c-1(a)(3) and rule 31a-2; and 
proposed amendments to Form N-1A, Regulation S-X, proposed Form N-PORT, 
and proposed Form N-CEN.
---------------------------------------------------------------------------

    \882\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Reasons for and Objectives of the Proposed Actions

    Funds are not currently subject to requirements under the federal 
securities laws or Commission rules that specifically require them to 
manage their liquidity risk.\883\ Also, with the exception of money 
market funds, there are guidelines (not rules) stating that an open-end 
fund should limit its investments in illiquid assets.\884\ Moreover, 
funds are only subject to limited disclosure and reporting requirements 
concerning a fund's liquidity risk and risk management.\885\ We 
understand that funds today engage in a variety of different practices, 
with varying levels of comprehensiveness, for classifying the liquidity 
of their portfolio assets, assessing and managing liquidity risk, and 
disclosing information about their liquidity risk, redemption 
practices, and liquidity risk management practices to investors.\886\
---------------------------------------------------------------------------

    \883\ See supra sections II.D, IV.B.1.a.
    \884\ See id.
    \885\ See supra sections II.D, IV.B.1.c.
    \886\ See supra sections II.D, IV.B.1.a, IV.B.1.c.
---------------------------------------------------------------------------

    The Commission is proposing a new rule, amendments to current 
rules, and amendments to current and proposed forms that are designed 
to promote effective liquidity risk management throughout the open-end 
fund industry and thereby reduce the risk that funds will be unable to 
meet redemption obligations and mitigate dilution of the interests of 
fund shareholders. The proposed amendments also seek to enhance 
disclosure regarding fund liquidity and redemption practices. 
Specifically, a primary objective of these proposed liquidity 
regulations is to promote shareholder protection by elevating the 
overall quality of liquidity risk management across the fund industry, 
as well as by increasing transparency of funds' liquidity risks and 
risk management. The proposed liquidity regulations are also intended 
to lessen the possibility of early redemption incentives (and investor 
dilution) created by insufficient liquidity risk management, as well as 
the possibility that investors' share value will be diluted by costs 
incurred by the fund as a result of other investors' purchase and 
redemption activity. Finally, the proposed liquidity regulations are 
meant to address recent industry developments that have underscored the 
significance of funds' liquidity risk management practices. Each of 
these objectives is discussed in detail in section IV above.

B. Legal Basis

    The Commission is proposing new rule 22e-4 under the authority set 
forth in sections 22(c), 22(e) and 38(a) of the Investment Company Act 
[15 U.S.C. 80a-37(a)]. The Commission is proposing amendments to rule 
22c-1 under the authority set forth in sections 22(c) and 38(a) of the 
Investment Company Act [15 U.S.C. 80a-22(c) and 80a-37(a)]. The 
Commission is proposing amendments to rule 31a-2 under the authority 
set forth in section 31(a) of the Investment Company Act [15 U.S.C. 
80a-31(a)]. The Commission is proposing amendments to Form N-1A, 
Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN under the 
authority set forth in the Securities Act, particularly section 19 
thereof [15 U.S.C. 77a et seq.], the Trust Indenture Act, particularly, 
section 19 thereof [15 U.S.C. 77aaa et seq.], the Exchange Act, 
particularly sections 10, 13, 15, and 23, and 35A thereof [15 U.S.C. 
78a et seq.], and the Investment Company Act, particularly, sections 8, 
30, and 38 thereof [15 U.S.C. 80a et seq.].

C. Small Entities Subject to the Proposed Liquidity Regulations

    An investment company is a small entity if, together with other 
investment companies in the same group of related investment companies, 
it has net assets of $50 million or less as of the end of its most 
recent fiscal year.\887\ Commission staff estimates that, as of 
December 2014, there were 134 small open-end investment companies 
(comprising 85 fund complexes) that would be considered small entities; 
this number includes open-end ETFs.
---------------------------------------------------------------------------

    \887\ See rule 0-10(a) under the Investment Company Act.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

1. Proposed Rule 22e-4
    Proposed new rule 22e-4 would require each fund, including each 
small entity, to establish a written liquidity risk management 
program.\888\ A fund's liquidity risk management program would be 
required to include the following elements: (i) A fund must classify, 
and review the classification on an ongoing basis, the liquidity of 
each of the fund's positions in a portfolio asset (or portions of a 
position in a particular asset), taking into account certain specified 
factors; \889\ (ii) a fund must assess and periodically review its 
liquidity risk, taking into account certain specified factors; \890\ 
and (iii) a fund must manage its liquidity risk, including by 
maintaining a prescribed minimum portion of net assets in three-day 
liquid assets.\891\ A fund's board, including a majority of the fund's 
independent directors, would be required to approve the fund's 
liquidity risk management program, as well as any material change to 
the program.\892\ Proposed rule 22e-4 also includes certain 
recordkeeping requirements.\893\ All of these requirements are 
discussed in detail above in sections III.A. and III.E. For smaller 
funds and fund groups (i.e., funds that together with other investment 
companies in the same ``group of related investment companies'' have 
net assets of less than $1 billion as of the end of the most recent 
fiscal year), which would include small entities, we have proposed an 
extra 12 months (or 30 months after the effective date) to comply with 
the proposed liquidity risk management program requirement.\894\
---------------------------------------------------------------------------

    \888\ Proposed rule 22e-4(b)(1).
    \889\ Proposed rule 22e-4(b)(2)(i)-(ii).
    \890\ Proposed rule 22e-4(b)(2)(iii).
    \891\ Proposed rule 22e-4(b)(2)(iv).
    \892\ Proposed rule 22e-4(b)(3).
    \893\ Proposed rule 22e-4(c).
    \894\ See supra section III.H.
---------------------------------------------------------------------------

    We estimate that 85 fund complexes are small fund groups that have 
funds that would be required to comply with the proposed liquidity risk 
management program requirement.\895\ As discussed above, we estimate 
that, on average, a fund complex would incur one-time costs ranging 
from $1,300,000 to $2,250,000, depending on the fund's particular 
circumstances and current liquidity risk management practices, to 
establish and implement a liquidity risk management program.\896\ We 
further estimate that a fund complex would incur ongoing annual costs 
associated with proposed rule 22e-4 that would range from $130,000 to 
$562,500.\897\ For purposes of this analysis, Commission staff 
estimates, based on outreach conducted with a variety of funds 
regarding funds' current liquidity risk management practices, that 
approximately two-thirds of small fund groups would incur one-time and 
ongoing costs on the low end of the range of costs associated with 
establishing and implementing a liquidity risk management program,\898\

[[Page 62381]]

and one-third of small fund groups would incur one-time and ongoing 
costs on the high end of the range.\899\
---------------------------------------------------------------------------

    \895\ See supra section VI.C.
    \896\ See supra section IV.C.1.c.
    \897\ See id.
    \898\ See id.
    \899\ See id.
---------------------------------------------------------------------------

2. Swing Pricing
    Under proposed rule 22c-1(a)(3), all funds (except money market 
funds and ETFs), including small entities, would be permitted (but not 
required) to use swing pricing to adjust the fund's current NAV to 
prevent potential dilution of the value of outstanding redeemable 
securities caused by shareholder purchase or redemption activity. In 
order to use swing pricing, a fund would be required to adopt swing 
pricing policies and procedures that must: (i) Provide that the fund 
will adjust its NAV by an amount designated as the ``swing factor'' 
once the level of net purchases or net redemptions from the fund has 
exceeded a specified percentage of the fund's net asset value known as 
the ``swing threshold''; \900\ (ii) specify the fund's swing threshold, 
considering certain specified factors; \901\ (iii) provide for the 
periodic review (at least annually) of the fund's swing threshold 
considering certain specified factors; \902\ (iv) specify how the swing 
factor to be used to adjust the fund's NAV when the fund's swing 
threshold is breached will be determined, which determination must take 
into account certain specified factors.\903\ A fund's board, including 
a majority of the fund's independent directors, would be required to 
approve the fund's swing pricing policies and procedures.\904\ A fund 
that adopts swing pricing policies and procedures also would be subject 
to certain recordkeeping requirements under proposed rule 22c-1(a)(3) 
and proposed amendments to rule 31a-2(a)(2).\905\ Because proposed rule 
22c-1(a)(3) would permit, but not require, a fund to adopt swing 
pricing policies and procedures, there is no compliance date associated 
with this proposed rule. Thus, while we anticipate that the compliance 
dates for proposed rule 22e-4 and the proposed disclosure and reporting 
requirements regarding liquidity risk and liquidity risk management 
would be tiered to permit a longer compliance period for smaller funds 
and fund groups, there would be no need for tiered compliance with 
respect to proposed rule 22c-1(a)(3) and the proposed amendments to 
rule 31a-2(a)(2), because a fund would be permitted to adopt swing 
pricing policies and procedures within whatever period the fund 
chooses.\906\
---------------------------------------------------------------------------

    \900\ Proposed rule 22c-1(a)(3)(i)(A).
    \901\ Proposed rule 22c-1(a)(3)(i)(B).
    \902\ Proposed rule 22c-1(a)(3)(i)(C).
    \903\ Proposed rule 22c-1(a)(3)(i)(D).
    \904\ Proposed rule 22c-1(a)(3)(ii).
    \905\ Proposed rule 22c-1(a)(3)(iii); proposed amendments to 
rule 31a-2(a)(2).
    \906\ See supra section III.H.
---------------------------------------------------------------------------

    As discussed above, we estimate that, on average, a fund complex 
would incur one-time costs ranging from $1,300,000 to $2,250,000, 
depending on the fund complex's particular circumstances, to adopt 
swing pricing policies and procedures and comply with related record 
retention requirements, as well as ongoing annual costs ranging from 
$65,000 to $337,500 per year associated with the proposed swing pricing 
(and related recordkeeping) regulations.\907\ We estimate that 24 fund 
complexes that are small complexes would adopt swing pricing policies 
and procedures under proposed rule 22c-1(a)(3).\908\ Because staff is 
unable to estimate how many small fund complexes would incur one-time 
and ongoing costs on the low end of the estimated range versus the high 
end of the estimated range, staff estimates that each small fund 
complex would incur one-time costs of $1,775,000 (which represents the 
middle of the range of estimated one-time costs) \909\ and ongoing 
costs of $201,250 (which represents the middle of the range of 
estimated ongoing costs).\910\
---------------------------------------------------------------------------

    \907\ See supra section IV.C.2.c.
    \908\ We assume that certain types of mutual fund strategies 
(high-yield bond funds, world bond funds (including emerging market 
debt funds), multi-sector bond funds, state municipal funds, 
alternative strategy funds, and emerging market equity funds would 
be relatively more likely to adopt swing pricing policies and 
procedures, and of the fund complexes with funds comprising these 
strategies, 75% would actually adopt swing pricing policies and 
procedures. Staff estimates that there are 32 fund complexes that 
are small fund groups with funds that use these stated strategies. 
0.75 x 32 funds = 24 funds.
    \909\ This estimate is based on the following calculations: 
$1,300,000 + $2,250,000 = $3,550,000; $3,550,000 / 2 = $1,775,000.
    \910\ This estimate is based on the following calculations: 
$65,000 + $337,500 = $402,500; $402,500 / 2 = $201,250.
---------------------------------------------------------------------------

3. Disclosure and Reporting Requirements Regarding Liquidity Risk and 
Liquidity Risk Management
    We are proposing amendments to Form N-1A, proposed Form N-PORT, and 
proposed Form N-CEN to enhance fund disclosure and reporting regarding 
the fund's redemption practices, portfolio liquidity, and certain 
liquidity risk management practices. Specifically, proposed amendments 
to Form N-1A would require new disclosure regarding a fund's redemption 
practices and its use of swing pricing (as applicable); \911\ and 
proposed amendments to proposed Form N-PORT would require a fund to 
report certain information about the liquidity of the fund's portfolio 
assets.\912\ Proposed amendments to proposed Form N-CEN would require a 
fund to report certain information about the fund's use of lines of 
credit, interfund lending and borrowing, and swing pricing, and also 
would require an ETF to report whether it requires authorized 
participants to post collateral in connection with the purchase or 
redemption of ETF shares.\913\
---------------------------------------------------------------------------

    \911\ Proposed Items 6(d), 11(c)(8), 11(c)(9) of Form N-1A.
    \912\ Proposed Items B.7, C.7, and C.13 of proposed Form N-PORT.
    \913\ Proposed Items 44 and 60(g) of proposed Form N-CEN.
---------------------------------------------------------------------------

    All funds would be subject to the proposed disclosure and reporting 
requirements, including funds that are small entities. For smaller 
funds and fund groups (i.e., funds that together with other investment 
companies in the same ``group of related investment companies'' have 
net assets of less than $1 billion as of the end of the most recent 
fiscal year), which would include small entities, we proposed an extra 
12 months (or 30 months after the effective date) to comply with the 
proposed Form N-PORT reporting requirements.\914\ We estimate that 134 
funds are small entities that would be required to comply with the 
proposed disclosure and reporting requirements.\915\
---------------------------------------------------------------------------

    \914\ See supra section III.H.
    \915\ See supra section VI.C.
---------------------------------------------------------------------------

    As discussed above, we estimate that each fund, including funds 
that are small entities, would incur a one-time burden of an additional 
2 hours, at a time cost of an additional $637 (plus printing costs), to 
comply with the proposed amendments to Form N-1A.\916\ We also estimate 
that each fund, including small entities, would incur an ongoing burden 
of an additional 0.25 hours, at a time cost of approximately an 
additional $80 each year associated with compliance with the proposed 
amendments to Form N-1A.\917\ We do not estimate any change to the 
external costs associated with the proposed amendments to Form N-
1A.\918\
---------------------------------------------------------------------------

    \916\ See supra notes 790, 870-871 and accompanying text.
    \917\ See supra notes 791, 875 and accompanying text.
    \918\ See supra section V.G.
---------------------------------------------------------------------------

    We also estimate that the one-time disclosure- and reporting-
related compliance costs for a fund that files reports in compliance 
with the proposed amendments to Form N-PORT in house would be 
approximately $780, and the one-time costs for a fund that uses a 
third-party service provider to prepare and file reports on proposed 
Form N-PORT would be approximately

[[Page 62382]]

$1,040.\919\ We estimate that the ongoing disclosure- and reporting-
related compliance costs for a fund that files reports to comply with 
the proposed amendments to Form N-PORT in house would be approximately 
$260, and the ongoing costs for a fund that uses a third-party service 
provider to prepare and file reports on proposed Form N-PORT would be 
approximately $130.\920\ These compliance cost estimates would not vary 
based on the fund's size. We assume that 35% of funds that are small 
entities, or approximately 47 funds, would file reports on proposed 
Form N-PORT in house, and 65% of funds that are small entities, or 
approximately 87 funds, would use a third-party service provider to 
prepare and file reports on proposed Form N-PORT.\921\
---------------------------------------------------------------------------

    \919\ See supra notes 801-802 and accompanying text.
    \920\ See supra notes 803-804 and accompanying text.
    \921\ See supra notes 801-804 and accompanying text.
---------------------------------------------------------------------------

    As discussed above, we also estimate that the average annual burden 
per additional response to Form N-CEN as a result of the proposed 
amendments would be 0.5 hour per year per fund, including funds that 
are small entities.\922\ Furthermore, we estimate that the one-time and 
ongoing annual compliance costs associated with providing additional 
responses to Form N-CEN as a result of the proposed amendments would be 
approximately $160 per fund, including funds that are small 
entities.\923\ We do not estimate any change to the external costs 
associated with proposed Form N-CEN.\924\
---------------------------------------------------------------------------

    \922\ See supra note 865 and accompanying text.
    \923\ See supra note 800 and accompanying text.
    \924\ See supra section V.F.; see also note 800 and accompanying 
text.
---------------------------------------------------------------------------

E. Duplicative, Overlapping, or Conflicting Federal Rules

    Commission staff has not identified any federal rules that 
duplicate, overlap, or conflict with the proposed liquidity 
regulations.

F. Significant Alternatives

    The RFA directs the Commission to consider significant alternatives 
that would accomplish our stated objectives, while minimizing any 
significant economic impact on small entities. We considered the 
following alternatives for small entities in relation to the proposed 
liquidity regulations: (i) Exempting funds that are small entities from 
proposed rule 22e-4, and/or establishing different requirements under 
proposed rule 22e-4 to account for resources available to small 
entities; (ii) exempting funds that are small entities from the 
proposed disclosure and reporting requirements, or establishing 
different disclosure and reporting requirements, or different reporting 
frequency, to account for resources available to small entities; and 
(iii) exempting funds that are small entities from proposed rule 22c-
1(a)(3) and the recordkeeping requirements of the proposed amendments 
to rule 31a-2.
    We do not believe that exempting any subset of funds, including 
funds that are small entities, from proposed rule 22e-4 would permit us 
to achieve our stated objectives. As discussed above, we believe that 
the proposed liquidity regulations would result in multiple investor 
protection benefits, and these benefits should apply to investors in 
smaller funds as well as investors in larger funds.\925\ Small funds do 
not entail less liquidity risk than larger funds, and investors in 
small funds could suffer from ineffective liquidity risk management 
just as investors in larger funds could. Indeed, analysis by staff 
economists has shown that funds with relatively low assets can actually 
experience greater flow volatility (including more volatility in 
unexpected flows) than funds with higher assets, which in turn could 
lead to increased liquidity risk for investors in smaller funds.\926\ 
Moreover, we understand, based on staff outreach, that small funds 
today are less likely than large funds to employ relatively 
comprehensive portfolio liquidity classification practices and 
liquidity risk management practices. Thus, while small funds may face 
increased liquidity risk, these funds currently may have less effective 
systems in place to address and mitigate this risk than larger funds. 
We therefore do not believe it would be appropriate to exempt funds 
that are small entities from the liquidity risk management requirements 
of proposed rule 22e-4. We do note, however, that we are proposing a 
delayed compliance period for proposed rule 22e-4 for funds that are 
small entities.\927\
---------------------------------------------------------------------------

    \925\ See supra section IV.C.1.b.
    \926\ See supra note 727 and accompanying text.
    \927\ See supra section III.H.
---------------------------------------------------------------------------

    We also do not believe that it would be desirable to establish 
different requirements applicable to funds of different sizes under 
proposed rule 22e-4 to account for resources available to small 
entities. We believe that all of the proposed program elements would be 
necessary for a fund to effectively assess and manage its liquidity 
risk, and we anticipate that all of the proposed program elements would 
work together to produce the anticipated investor protection benefits. 
We do note that the costs associated with proposed rule 22e-4 would 
vary depending on the fund's particular circumstances, and thus the 
proposed rule could result in different burdens on funds' resources. In 
particular, we expect that a fund that pursues an investment strategy 
that involves greater liquidity risk may have greater costs associated 
with its liquidity risk management program. However, we believe that it 
is appropriate to correlate the costs associated with the proposed rule 
with the level of liquidity risk facing a fund, and not necessarily 
with the fund's size. Under the proposed rule, a fund would be 
permitted to customize its liquidity risk management program precisely 
to reflect the liquidity risks that it typically faces, and that it 
could face in stressed market conditions. This flexibility in 
permitting a fund to customize its liquidity risk management program is 
meant to result in programs whose scope, and related costs and burdens, 
are appropriate to manage the actual amount of liquidity risk faced by 
a particular fund. Thus, to the extent a fund that is a small entity 
faces relatively little liquidity risk, it would incur relatively low 
costs to comply with proposed rule 22e-4. However, as discussed above, 
we believe that small funds could generally entail relatively high 
liquidity risk compared to larger funds, and thus these funds could 
incur relatively high costs to comply with proposed rule 22e-4.\928\
---------------------------------------------------------------------------

    \928\ See supra note 926 and accompanying text.
---------------------------------------------------------------------------

    Similarly, we do not believe that the interest of investors would 
be served by exempting funds that are small entities from the proposed 
disclosure and reporting requirements, or subjecting these funds to 
different disclosure and reporting requirements than larger funds. We 
believe that all fund investors, including investors in funds that are 
small entities, would benefit from disclosure and reporting 
requirements that would permit them to make investment choices that 
better match their risk tolerances.\929\ We also believe that all fund 
investors would benefit from enhanced Commission monitoring and 
oversight of the fund industry, which we anticipate would result from 
the proposed disclosure and reporting requirements. We note that the 
current disclosure requirements for reports on Form N-1A, and the 
proposed requirements for reports on proposed Form N-PORT and proposed 
Form N-CEN, do not distinguish between small entities and other

[[Page 62383]]

funds.\930\ However, as discussed above, proposed Form N-PORT has a 
delayed compliance period for small entities that would file reports on 
this form, and we are also proposing a delayed compliance period for 
the amendments to proposed Form N-PORT that we are proposing 
today.\931\
---------------------------------------------------------------------------

    \929\ See supra section IV.C.3.b.
    \930\ See Investment Company Reporting Modernization Release, 
supra note 104, at section IV.F (noting that small entities 
currently follow the same requirements that large entities do when 
filing reports on Form N-SAR, Form N-CSR, and Form N-Q, and stating 
that the Commission believes that establishing different reporting 
requirements or frequency for small entities (including with respect 
to proposed Form N-PORT and proposed Form N-CEN) would not be 
consistent with the Commission's goal of industry oversight and 
investor protection).
    \931\ See supra section III.H.
---------------------------------------------------------------------------

    Finally, we are not exempting funds that are small entities from 
proposed rule 22c-1(a)(3) because we believe that all funds should be 
able to use swing pricing as a voluntary tool to mitigate potential 
shareholder dilution.\932\ We do not believe that the potential 
dilution that proposed rule 22c-1(a)(3) is meant to prevent would 
affect large funds and their shareholders more significantly than small 
funds and investors in small funds. Also, because the adoption of swing 
pricing policies and procedures would be permitted, but not required, 
under proposed rule 22c-1(a)(3), a fund that is a small entity would 
not need to incur the costs of compliance with the proposed rule if the 
fund (and the fund's board) were to determine that the advantages of 
swing pricing would not outweigh the associated disadvantages, 
including compliance costs.
---------------------------------------------------------------------------

    \932\ See supra section IV.C.2.b.
---------------------------------------------------------------------------

G. General Request for Comment

    The Commission requests comments regarding this analysis. We 
request comment on the number of small entities that would be subject 
to the proposed liquidity regulations and whether the proposed 
liquidity regulations would have any effects that have not been 
discussed. We request that commenters describe the nature of any 
effects on small entities subject to the proposed liquidity regulations 
and provide empirical data to support the nature and extent of such 
effects. We also request comment on the estimated compliance burdens of 
the proposed liquidity regulations and how they would affect small 
entities.

VII. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), the Commission must advise OMB whether a 
proposed regulation constitutes a ``major'' rule. Under SBREFA, a rule 
is considered ``major'' where, if adopted, it results in or is likely 
to result in:
    [cir] An annual effect on the economy of $100 million or more;
    [cir] A major increase in costs or prices for consumers or 
individual industries; or
    [cir] Significant adverse effects on competition, investment, or 
innovation.
    We request comment on whether our proposal would be a ``major 
rule'' for purposes of SBREFA. We solicit comment and empirical data 
on:
    [cir] The potential effect on the U.S. economy on an annual basis;
    [cir] Any potential increase in costs or prices for consumers or 
individual industries; and
    [cir] Any potential effect on competition, investment, or 
innovation.
    Commenters are requested to provide empirical data and other 
factual support for their views to the extent possible.

VIII. Statutory Authority and Text of Proposed Amendments

    The Commission is proposing new rule 22e-4 under the authority set 
forth in sections 22(c), 22(e) and 38(a) of the Investment Company Act 
[15 U.S.C. 80a-37(a)]. The Commission is proposing amendments to rule 
22c-1 under the authority set forth in sections 22(c) and 38(a) of the 
Investment Company Act [15 U.S.C. 80a-22(c) and 80a-37(a)]. The 
Commission is proposing amendments to rule 31a-2 under the authority 
set forth in section 31(a) of the Investment Company Act [15 U.S.C. 
80a-31(a)]. The Commission is proposing amendments to Form N-1A, 
Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN under the 
authority set forth in the Securities Act, particularly section 19 
thereof [15 U.S.C. 77a et seq.], the Trust Indenture Act, particularly, 
section 19 thereof [15 U.S.C. 77aaa et seq.], the Exchange Act, 
particularly sections 10, 13, 15, and 23, and 35A thereof [15 U.S.C. 
78a et seq.], and the Investment Company Act, particularly, sections 8, 
30, and 38 thereof [15 U.S.C. 80a et seq.].

Text of Rules and Forms

List of Subjects

17 CFR Part 210

    Accounting, Investment companies, Reporting and recordkeeping 
requirements, Securities.

17 CFR Parts 270 and 274

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

    For the reasons set out in the preamble, Title 17, Chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 210--FORM AND CONTENT OF AND REQUIREMENTS FOR FINANCIAL 
STATEMENTS, SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 
1934, INVESTMENT COMPANY ACT OF 1940, INVESTMENT ADVISERS ACT OF 
1940, AND ENERGY POLICY AND CONSERVATION ACT OF 1975

0
1. The authority citation for part 210 continues to read as follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 
77aa(25), 77aa(26), 77nn(25), 77nn(26), 78c, 78j-1, 78l, 78m, 78n, 
78o(d), 78q, 78u-5, 78w, 78ll, 78mm, 80a-8, 80a-20, 80a-29, 80a-30, 
80a-31, 80a-37(a), 80b-3, 80b-11, 7202 and 7262, unless otherwise 
noted.

0
2. Amend Sec.  210.6-02 by adding paragraphs (e), (f) and (g) to read 
as follows:


Sec.  210.6-02  Definition of certain terms.

* * * * *
    (e) Illiquid investment. The term illiquid investment means an 
investment that is a 15% standard asset, as defined in Sec.  270.22e-
4(a)(4) of this chapter.
    (f) Illiquid securities. The term illiquid securities means 
securities that are 15% standard assets, as defined in Sec.  270.22e-
4(a)(4) of this chapter.
    (g) Swing pricing. The term swing pricing shall have the meaning 
given in Sec.  270.22c-1(a)(3)(v)(C) of this chapter.
0
3. Section 210.6-03 is further amended, as proposed at 80 FR 33687, 
June 12, 2015, by adding paragraph (n) to read as follows:


Sec.  210.6-03  Special rules of general application to registered 
investment companies and business development companies.

* * * * *
    (n) Swing Pricing. For a registered investment company that has 
adopted swing pricing policies and procedures, state in a note the 
general methods used in determining whether the company's net asset 
value per share will swing, if the company's net asset value per share 
has swung during the year, and a general description of the effects of 
swing pricing on the company's financial statements.
0
4. Section 210.6-04 is further amended, as proposed at 80 FR 33688, 
June 12, 2015 by revising item 19 to read as follows:


Sec.  210.6-04  Balance sheets.

* * * * *
    19. Net assets applicable to outstanding units of capital. State 
the

[[Page 62384]]

net asset value per share as adjusted pursuant to swing pricing 
policies and procedures, if applicable.

PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940

0
5. The authority citation for part 270 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, 80a-39, 
and Pub. L. 111-203, sec. 939A, 124 Stat. 1376 (2010), unless 
otherwise noted.
* * * * *
0
6. Amend Sec.  270.22c-1 by adding paragraph (a)(3) to read as follows:


Sec.  270.22c-1  Pricing of redeemable securities for distribution, 
redemption and repurchase.

    (a) * * *
    (3) Notwithstanding this paragraph (a), a registered open-end 
management investment company (but not a registered open-end management 
investment company that is regulated as a money market fund under Sec.  
270.2a-7 or an exchange-traded fund as defined in paragraph 
(a)(3)(v)(A) of this section) (a ``fund'') may use swing pricing to 
adjust its current net asset value per share to mitigate dilution of 
the value of its outstanding redeemable securities as a result of 
shareholder purchase and redemption activity, provided that it has 
established and implemented swing pricing policies and procedures in 
compliance with the paragraphs (a)(3)(i)-(v) of this section.
    (i) The fund's swing pricing policies and procedures shall:
    (A) Provide that the fund must adjust its net asset value per share 
by a swing factor, determined pursuant to paragraph (a)(3)(i)(D) of 
this section, once the level of net purchases into or net redemptions 
from such fund has exceeded the fund's swing threshold, determined 
pursuant to paragraph (a)(3)(i)(B) of this section. In determining 
whether the fund's level of net purchases or net redemptions has 
exceeded the fund's swing threshold, the person(s) responsible for 
administering the fund's swing pricing policies and procedures pursuant 
to paragraph (a)(3)(ii)(B) of this section: shall be permitted to make 
such determination on the basis of information obtained after 
reasonable inquiry; and shall exclude any purchases or redemptions that 
are made in kind and not in cash.
    (B) Specify the fund's swing threshold to be used pursuant to 
paragraph (3)(i)(A) of this section, considering:
    (1) The size, frequency, and volatility of historical net purchases 
or net redemptions of fund shares during normal and stressed periods;
    (2) The fund's investment strategy and the liquidity of the fund's 
portfolio assets;
    (3) The fund's holdings of cash and cash equivalents, as well as 
borrowing arrangements and other funding sources; and
    (4) The costs associated with transactions in the markets in which 
the fund invests.
    (C) Provide for the periodic review, no less frequently than 
annually, of the fund's swing threshold, considering the factors set 
forth in paragraph (a)(3)(i)(B) of this section.
    (D) Specify how the swing factor to be used pursuant to paragraph 
(a)(3)(i)(A) of this section shall be determined, and whether the swing 
factor would be subject to any upper limit. The determination of the 
swing factor, as well as any upper limit on the swing factor, must take 
into account:
    (1) Any near-term costs expected to be incurred by the fund as a 
result of net purchases or net redemptions that occur on the day the 
swing factor is used to adjust the fund's net asset value per share, 
including any market impact costs, spread costs, and transaction fees 
and charges arising from asset purchases or asset sales to satisfy 
those purchases or redemptions, as well as any borrowing-related costs 
associated with satisfying redemptions; and
    (2) The value of assets purchased or sold by the fund as a result 
of net purchases or net redemptions that occur on the day the swing 
factor is used to adjust the fund's net asset value per share, if that 
information would not be reflected in the current net asset value of 
the fund computed that day.
    (ii) The fund's swing pricing policies and procedures shall be 
subject to the following approval and oversight requirements:
    (A) The fund's board of directors, including a majority of 
directors who are not interested persons of the fund, shall approve the 
swing pricing policies and procedures (including the fund's swing 
threshold, and any swing factor upper limit specified under the fund's 
swing pricing policies and procedures), as well as any material change 
to the policies and procedures (including any change to the fund's 
swing threshold, a change to any swing factor upper limit specified 
under the fund's swing pricing policies and procedures, or any decision 
to suspend or terminate the fund's swing pricing policies and 
procedures).
    (B) The fund's board of directors shall designate the fund's 
investment adviser or officers responsible for administering the swing 
pricing policies and procedures, and for determining the swing factor 
that will be used each time the swing threshold is breached; provided 
that determination of the swing factor must be reasonably segregated 
from the portfolio management function of the fund.
    (iii) The fund shall maintain a written copy of the policies and 
procedures adopted by the fund under this paragraph (a)(3) that are in 
effect, or at any time within the past six years were in effect, in an 
easily accessible place.
    (iv) Any fund (a ``feeder fund'') that invests, pursuant to section 
12(d)(1)(E) of the Act (15 U.S.C. 80a-12(d)(1)(E)), in another fund (a 
``master fund'') may not use swing pricing to adjust the feeder fund's 
net asset value per share; however, a master fund may use swing pricing 
to adjust the master fund's net asset value per share, pursuant to the 
requirements set forth in this paragraph (a)(3).
    (v) For purposes of this paragraph (a)(3):
    (A) Exchange-traded fund means an open-end management investment 
company or a class thereof, the shares of which are traded on a 
national securities exchange, and that operates pursuant to an 
exemptive order granted by the Commission or in reliance on an 
exemptive rule adopted by the Commission.
    (B) Swing factor means the amount, expressed as a percentage of the 
fund's net asset value and determined pursuant to the fund's swing 
pricing procedures, by which a fund adjusts its net asset value per 
share when the level of net purchases into or net redemptions from the 
fund has exceeded the fund's swing threshold.
    (C) Swing pricing means the process of adjusting a fund's current 
net asset value per share to mitigate dilution of the value of its 
outstanding redeemable securities as a result of shareholder purchase 
and redemption activity, pursuant to the requirements set forth in this 
paragraph (a)(3).
    (D) Swing threshold means the amount of net purchases into or net 
redemptions from a fund, expressed as a percentage of the fund's net 
asset value, that triggers the initiation of swing pricing.
    (E) Transaction fees and charges means brokerage commissions, 
custody fees, and any other charges, fees, and taxes associated with 
portfolio asset purchases and sales.
* * * * *
0
7. Section 270.22e-4 is added to read as follows:

[[Page 62385]]

Sec.  270.22e-4  Liquidity risk management programs.

    (a) Definitions. For purposes of this section:
    (1) Acquisition (or acquire) means any purchase or subsequent 
rollover.
    (2) Business day means any day, other than Saturday, Sunday, or any 
customary business holiday.
    (3) Convertible to cash means the ability to be sold, with the sale 
settled.
    (4) 15% standard asset means an asset that may not be sold or 
disposed of in the ordinary course of business within seven calendar 
days at approximately the value ascribed to it by the fund. For 
purposes of this definition, the fund does not need to consider the 
size of the fund's position in the asset or the number of days 
associated with receipt of proceeds of sale or disposition of the 
asset.
    (5) Fund means an open-end management investment company that is 
registered or required to register under section 8 of the Act (15 
U.S.C. 80a-8) and includes a separate series of such an investment 
company, but does not include a registered open-end management 
investment company that is regulated as a money market fund under Sec.  
270.2a-7.
    (6) Less liquid asset means any position of a fund in an asset (or 
portion of the fund's position in an asset) that is not a three-day 
liquid asset. In determining whether a position or portion of a 
position in an asset is a less liquid asset, a fund must take into 
account the factors set forth in paragraph (b)(2)(ii) of this section, 
to the extent applicable.
    (7) Liquidity risk means the risk that the fund could not meet 
requests to redeem shares issued by the fund that are expected under 
normal conditions, or are reasonably foreseeable under stressed 
conditions, without materially affecting the fund's net asset value.
    (8) Three-day liquid asset means any cash held by a fund and any 
position of a fund in an asset (or portion of the fund's position in an 
asset) that the fund believes is convertible into cash within three 
business days at a price that does not materially affect the value of 
that asset immediately prior to sale. In determining whether a position 
or portion of a position in an asset is a three-day liquid asset, a 
fund must take into account the factors set forth in paragraph 
(b)(2)(ii) of this section, to the extent applicable.
    (9) Three-day liquid asset minimum means the percentage of the 
fund's net assets to be invested in three-day liquid assets pursuant to 
section (b)(2)(iv)(A) and (C) of this section.
    (b) Adoption and implementation of liquidity risk management 
program.
    (1) Program requirement. Each fund shall adopt and implement a 
written liquidity risk management program (``program'') that is 
reasonably designed to assess and manage the fund's liquidity risk. The 
program shall include policies and procedures incorporating the 
elements of paragraphs (b)(2)(i) through (iv) of this section. The 
program shall be administered by the fund's investment adviser, or an 
officer or officers of the fund, but may not be administered solely by 
portfolio managers of the fund.
    (2) Required program elements. Each fund must:
    (i) Classify and engage in an ongoing review of each of the fund's 
positions in a portfolio asset (or portions of a position in a 
particular asset) based on the following categories of number of days 
in which it is determined, using information obtained after reasonable 
inquiry, that the fund's position in the asset (or portion thereof) 
would be convertible to cash at a price that does not materially affect 
the value of that asset immediately prior to sale:
    (A) Convertible to cash within 1 business day;
    (B) Convertible to cash within 2-3 business days;
    (C) Convertible to cash within 4-7 calendar days;
    (D) Convertible to cash within 8-15 calendar days;
    (E) Convertible to cash within 16-30 calendar days; and
    (F) Convertible to cash in more than 30 calendar days.

    Note to paragraph (b)(2)(i): In situations in which the period 
to convert a position to cash could be viewed either as two-to-three 
business days or four-to-seven calendar days, a fund should classify 
the position based on the shorter period (i.e., two-to-three 
business days, not four-to-seven calendar days).

    (ii) For purposes of classifying and reviewing the liquidity of a 
fund's position in a portfolio asset (or portion thereof) under 
paragraph (b)(2)(i) of this section, take into account the following 
factors, to the extent applicable, with respect to the asset (or 
similar asset(s), to the extent that data concerning the portfolio 
asset is not available to the fund):
    (A) Existence of an active market for the asset, including whether 
the asset is listed on an exchange, as well as the number, diversity, 
and quality of market participants;
    (B) Frequency of trades or quotes for the asset and average daily 
trading volume of the asset (regardless of whether the asset is a 
security traded on an exchange);
    (C) Volatility of trading prices for the asset;
    (D) Bid-ask spreads for the asset;
    (E) Whether the asset has a relatively standardized and simple 
structure;
    (F) For fixed income securities, maturity and date of issue;
    (G) Restrictions on trading of the asset and limitations on 
transfer of the asset;
    (H) The size of the fund's position in the asset relative to the 
asset's average daily trading volume and, as applicable, the number of 
units of the asset outstanding. Analysis of position size should 
consider the extent to which the timing of disposing of the position 
could create any market value impact; and
    (I) Relationship of the asset to another portfolio asset.
    (iii) Assess and periodically review the fund's liquidity risk, 
considering the fund's:
    (A) Short-term and long-term cash flow projections, taking into 
account the following considerations:
    (1) Size, frequency, and volatility of historical purchases and 
redemptions of fund shares during normal and stressed periods;
    (2) Fund's redemption policies;
    (3) Fund's shareholder ownership concentration;
    (4) Fund's distribution channels; and
    (5) Degree of certainty associated with the fund's short-term and 
long-term cash flow projections.
    (B) Investment strategy and liquidity of portfolio assets;
    (C) Use of borrowings and derivatives for investment purposes; and
    (D) Holdings of cash and cash equivalents, as well as borrowing 
arrangements and other funding sources.
    (iv) Manage the fund's liquidity risk, including that the fund 
will:
    (A) Determine the fund's three-day liquid asset minimum, 
considering the factors specified in paragraphs (b)(2)(iii)(A) through 
(D) of this section;
    (B) Periodically review, no less frequently than semi-annually, the 
adequacy of the fund's three-day liquid asset minimum, considering the 
factors incorporated in paragraphs (b)(2)(iii)(A) through (D) of this 
section;
    (C) Not acquire any less liquid asset if, immediately after the 
acquisition, the fund would have invested less than its three-day 
liquid asset minimum in three-day liquid assets;
    (D) Not acquire any 15% standard asset if, immediately after the 
acquisition, the fund would have invested more than 15% of its total 
assets in 15% standard assets; and
    (E) Establish policies and procedures regarding redemptions in 
kind, to the

[[Page 62386]]

extent that the fund engages in or reserves the right to engage in 
redemptions in kind.
    (3) Board approval and oversight of the program.
    (i) The fund shall obtain initial approval of the liquidity risk 
management program (including the fund's three-day liquid asset 
minimum), as well as any material change to the program (including a 
change to the fund's three-day liquid asset minimum), from the fund's 
board of directors, including a majority of directors who are not 
interested persons of the fund.
    (ii) The fund's board of directors, including a majority of 
directors who are not interested persons of the fund, shall review, no 
less frequently than annually, a written report prepared by the fund's 
investment adviser or officers administering the liquidity risk 
management program that describes the adequacy of the fund's liquidity 
risk management program, including the fund's three-day liquid asset 
minimum, and the effectiveness of its implementation.
    (iii) The fund shall designate the fund's investment adviser or 
officers (which may not be solely portfolio managers of the fund) 
responsible for administering the policies and procedures incorporating 
the elements of paragraphs (b)(2)(i) through (iv) of this section, 
whose designation must be approved by the fund's board of directors, 
including a majority of the directors who are not interested persons of 
the fund.
    (c) Recordkeeping. The fund must maintain:
    (1) A written copy of the policies and procedures adopted by the 
fund under paragraphs (b)(1) of this section that are in effect, or at 
any time within the past five years were in effect, in an easily 
accessible place;
    (2) Copies of any materials provided to the board of directors in 
connection with its approval under paragraph (b)(3)(i) of this section, 
and written reports provided to the board of directors under paragraph 
(b)(3)(ii) of this section, for at least five years after the end of 
the fiscal year in which the documents were provided, the first two 
years in an easily accessible place; and
    (3) A written record of how the three-day liquid asset minimum, and 
any adjustments thereto, were determined, including assessment of the 
factors incorporated in paragraphs (b)(2)(iii)(A) through (D) of this 
section, for a period of not less than five years (the first two years 
in an easily accessible place) following the determination of and each 
change to the three-day liquid asset minimum.
0
8. Section 270.31a-2 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  270.31a-2  Records to be preserved by registered investment 
companies, certain majority-owned subsidiaries thereof, and other 
persons having transactions with registered investment companies.

    (a) * * *
    (2) Preserve for a period not less than six years from the end of 
the fiscal year in which any transactions occurred, the first two years 
in an easily accessible place, all books and records required to be 
made pursuant to paragraphs (5) through (12) of Sec.  270.31a-1(b) and 
all vouchers, memoranda, correspondence, checkbooks, bank statements, 
cancelled checks, cash reconciliations, cancelled stock certificates, 
and all schedules evidencing and supporting each computation of net 
asset value of the investment company shares, including schedules 
evidencing and supporting each computation of an adjustment to net 
asset value of the investment company shares based on swing pricing 
policies and procedures established and implemented pursuant to Sec.  
270.22c-1(a)(3), and other documents required to be maintained by Sec.  
270.31a-1(a) and not enumerated in Sec.  270.31a-1(b).
* * * * *

PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940

0
9. The general authority citation for part 274 continues to read, in 
part, as follows, and the sectional authorities for Sec. Sec.  274.101 
and 274.130 are removed:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 
78n, 78o(d), 80a-8, 80a-24, 80a-26, 80a-29, and Pub. L. 111-203, 
sec. 939A, 124 Stat. 1376 (2010), unless otherwise noted.
* * * * *
0
10. Amend Form N-1A (referenced in 274.11A) by:
0
a. In Item 6 adding paragraph (d);
0
b. In Item 11 removing paragraph (c)(3) and redesignating paragraphs 
(c)(4), (c)(5), (c)(6) and (c)(7) as paragraphs (c)(3), (c)(4), (c)(5) 
and (c)(6), respectively;
0
c. In Item 11 adding new paragraph (c)(7) and paragraph (c)(8);
0
d. In Item 13, adding ``Capital Adjustments Due to Swing Pricing'' 
after ``Total Distributions'' to the list in paragraph (a);
0
e. In Item 13, Instruction 2., adding paragraphs (d) and (e);
0
f. In Item 13, Instruction 3., revising paragraphs (a) and (d);
0
g. In Item 26(b)(1), adding a sentence to the end of Instruction 4.
0
h. In Item 26(b)(2), adding a sentence to the end of Instruction 6.
0
i. In Item 26(b)(3), adding a sentence to the end of Instruction 6.
0
j. In Item 28, redesignating paragraphs (h), (i) (j), (k), (l), (m), 
(n), (o) and (p) as paragraphs (i), (j), (k), (l), (m), (n), (o), (p), 
and (q) respectively; and
0
k. In Item 28, adding new paragraph (h).

    Note: The text of Form N-1A does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form N-1A

* * * * *

Item 6. Purchase and Sale of Fund Shares

    (d) If the Fund uses swing pricing, an explanation of the 
circumstances under which it will use swing pricing and the effects of 
using swing pricing. With respect to any portion of a Fund's assets 
that is invested in one or more open-end management investment 
companies that are registered under the Investment Company Act, the 
Fund shall include a statement that the Fund's net asset value is 
calculated based upon the net asset values of the registered open-end 
management investment companies in which the Fund invests, and that the 
prospectuses for those companies explain the circumstances under which 
those companies will use swing pricing and the effects of using swing 
pricing.
* * * * *

Item 11. Shareholder Information

    (c) * * *
    (7) The number of days following receipt of shareholder redemption 
requests in which the fund will pay redemption proceeds to redeeming 
shareholders. If the number of days differs by distribution channel, 
disclose the number of days for each channel.
    (8) The methods that the Fund uses to meet redemption requests, and 
whether those methods are used regularly, or only in stressed market 
conditions (e.g., sales of portfolio assets, holdings of cash or cash 
equivalents, lines of credit, interfund lending, and/or ability to 
redeem in kind).
* * * * *

Item 13. Financial Highlights Information

* * * * *
    Instructions * * *
    2. Per Share Operating Performance. * * *
    (d) The amount shown at the Capital Adjustments Due to Swing 
Pricing caption should include the per share impact of any amounts 
retained by the

[[Page 62387]]

Fund pursuant to its swing pricing policies and procedures, if 
applicable.
    (e) The amounts shown at the Net Asset Value, End of Period and Net 
Asset Value, Beginning of Period captions should be the Fund's net 
asset value per share as adjusted pursuant to its swing pricing 
policies and procedures, if applicable.
    3. Total Return.
    (a) Assume an initial investment made at the net asset value 
calculated on the last business day before the first day of each period 
shown, as adjusted pursuant to the Fund's swing pricing policies and 
procedures, if applicable.
    * * *
    (d) Assume a redemption at the price calculated on the last 
business day of each period shown, as adjusted pursuant to the Fund's 
swing pricing policies and procedures, if applicable.

Item 26. Calculation of Performance Data

* * * * *
    (b)
    * * *
    (1) Average Annual Total Return Quotation.
    * * *
    Instructions * * *
    4. * * * The ending redeemable value should assume a value as 
adjusted pursuant to swing pricing policies and procedures, if 
applicable.
    * * *
    (2) Average Annual Total Return (After Taxes on Distributions) 
Quotation.
    * * *
    Instructions * * *
    6. * * * The ending value should assume a value as adjusted 
pursuant to swing pricing policies and procedures, if applicable.
    (3) Average Annual Total Return (After Taxes on Distributions and 
Redemption) Quotation.
    * * *
    Instructions * * *
    6. * * * The ending value should assume a value as adjusted 
pursuant to swing pricing policies and procedures, if applicable.

Item 28. Exhibits

* * * * *
    (h) Credit Agreements. Agreements relating to lines of credit for 
the benefit of the Fund.
    Instruction: The specific fees paid in connection with the credit 
agreements need not be disclosed.
0
11. Further amend Form N-CEN (referenced in Sec.  274.101) as proposed 
at 80 FR 33699, June 12, 2015 by:
0
a. In Part C, redesignating Items 44 through 79 as Items 45 through 80;
0
b. In Part C, adding Item 44;
0
c. In Part E, adding paragraph g. to newly redesignated Item 60.

Part C. Additional Questions for Management Investment Companies

    * * *
    Item 44. Lines of credit, interfund lending and borrowing, and 
swing pricing. For open-end management investment companies, respond to 
the following:
    a. Does the Fund have available a committed line of credit? [Yes/
No]
    i. If yes, what size is the line of credit? [insert dollar amount]
    ii. If yes, with which institution(s) is the line of credit? [list 
name(s)]
    iii. If yes, is the line of credit just for the Fund, or is it 
shared among multiple funds? [sole/shared]
    1. If shared, list names of other funds that may use the line of 
credit. [list names and SEC File numbers]
    iv. If yes, did the Fund draw on the line of credit this period? 
[Yes/No]
    v. If the Fund drew on the line of credit during this period, what 
was the average amount outstanding when the line of credit was in use? 
[insert dollar amount]
    vi. If the Fund drew on the line of credit during this period, what 
was the number of days that the line of credit was in use? [insert 
amount]
    b. Did the Fund engage in interfund lending? [Yes/No]
    i. If yes, what was the average amount of the interfund loan when 
the loan was outstanding? [insert dollar amount.]
    ii. If yes, what was the number of days that the interfund loan was 
outstanding? [insert amount]
    c. Did the Fund engage in interfund borrowing? [Yes/No]
    i. If yes, what was the average amount of the interfund loan when 
the loan was outstanding? [insert dollar amount.]
    ii. If yes, what was the number of days that the interfund loan was 
outstanding? [insert amount]
    d. Did the Fund (if not a Money Market Fund, Exchange-Traded Fund, 
or Exchange-Traded Managed Fund) engage in swing pricing? [Yes/No]

Part E. Additional Questions for Exchange-Traded Funds and Exchange-
Traded Managed Funds

    * * *
    Item 60.
    * * *
    g. Did the Fund require that an authorized participant post 
collateral to the Fund or any of its designated service providers in 
connection with the purchase or redemption of Fund shares during the 
reporting period? [Y/N]
0
12. Amend Form N-PORT (referenced in 274.150), as proposed at 80 FR 
33712, June 12, 2015 by:
0
a. In the General Instructions, removing the definition of ``Illiquid 
Asset;''
0
b. In the General Instructions, adding a definition of ``15% Standard 
Asset.''
0
c. In the General Instructions, adding a definition of ``Three-Day 
Liquid Asset Minimum;''
0
d. In Part B., adding Item B.7;
0
e. In Part C, revising Item C.7; and
0
f. In Part C, adding Item C.13
    The revisions and additions read as follows:
    E. Definitions
    * * *
    15% Standard Asset has the meaning defined in rule 22e-4(a)(4).
    Three-Day Liquid Asset Minimum has the meaning defined in rule 22e-
4(a)(9).
    * * *

Part B: Information about the Fund

    * * *
    Item B.7 Liquidity information. For open-end investment companies, 
provide the Three-Day Liquid Asset Minimum.
    * * *

Part C: Schedule of Portfolio Investments

    * * *
    Item C.7 For portfolio investments of registered open-end 
management investment companies, is the investment a 15% Standard 
Asset? [Y/N]
    * * *
    Item C.13 For portfolio investments of open-end management 
investment companies, indicate the liquidity classification for each 
portfolio asset (or portion thereof) among the following categories as 
specified in rule 22e-4. For portfolio assets with multiple liquidity 
classifications, indicate the dollar amount attributable to each 
classification:
    Convertible to cash within 1 business day

[[Page 62388]]

    Convertible to cash within 2-3 business days
    Convertible to cash within 4-7 calendar days
    Convertible to cash within 8-15 calendar days
    Convertible to cash within 16-30 calendar days
    Convertible to cash in more than 30 calendar days
* * * * *

    By the Commission.

     Dated: September 22, 2015.
Brent J. Fields,
Secretary.
[FR Doc. 2015-24507 Filed 10-14-15; 8:45 am]
BILLING CODE 8011-01-P


