[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
[Proposed Rules]
[Pages 13524-13595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03145]



[[Page 13523]]

Vol. 87

Wednesday,

No. 46

March 9, 2022

Part IV





 Securities and Exchange Commission





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17 CFR Parts 230, 232, 239, et al.





Cybersecurity Risk Management for Investment Advisers, Registered 
Investment Companies, and Business Development Companies; Proposed Rule

Federal Register / Vol. 87 , No. 46 / Wednesday, March 9, 2022 / 
Proposed Rules

[[Page 13524]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 230, 232, 239, 270, 274, 275, and 279

[Release Nos. 33-11028; 34-94197; IA-5956; IC-34497; File No. S7-04-22]
RIN 3235-AN08


Cybersecurity Risk Management for Investment Advisers, Registered 
Investment Companies, and Business Development Companies

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission is proposing new rules 
under the Investment Advisers Act of 1940 (``Advisers Act'') and the 
Investment Company Act of 1940 (``Investment Company Act'') to require 
registered investment advisers (``advisers'') and investment companies 
(``funds'') to adopt and implement written cybersecurity policies and 
procedures reasonably designed to address cybersecurity risks. The 
Commission also is proposing a new rule and form under the Advisers Act 
to require advisers to report significant cybersecurity incidents 
affecting the adviser, or its fund or private fund clients, to the 
Commission. With respect to disclosure, the Commission is proposing 
amendments to various forms regarding the disclosure related to 
significant cybersecurity risks and cybersecurity incidents that affect 
advisers and funds and their clients and shareholders. Finally, we are 
proposing new recordkeeping requirements under the Advisers Act and 
Investment Company Act.

DATES: Comments should be received on or before April 11, 2022.

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

Electronic Comments

    <bullet> Use the Commission's internet comment form (https://www.sec.gov/rules/submitcomments.htm); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#fb898e979ed6989496969e958f88bb889e98d59c948d"><span class="__cf_email__" data-cfemail="e89a9d848dc58b8785858d869c9ba89b8d8bc68f879e">[email protected]</span></a>. Please include 
File Number S7-04-22 on the subject line.

Paper Comments

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

All submissions should refer to File Number S7-04-22. 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 of submission. The Commission will post all 
comments on the Commission's website (https://www.sec.gov/rules/proposed.shtml). Comments are also available for website 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. Operating conditions may limit access to the 
Commission's Public Reference Room. 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 website. 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: Juliet Han, Senior Counsel; Thomas 
Strumpf, Senior Counsel; Christopher Staley, Branch Chief; or Melissa 
Gainor, Assistant Director, at (202) 551-6787, Investment Adviser 
Regulation Office, Division of Investment Management, (202) 551-6787 or 
<a href="/cdn-cgi/l/email-protection#074e4675726b62744774626429606871"><span class="__cf_email__" data-cfemail="30797142455c5543704355531e575f46">[email protected]</span></a>; Y. Rachel Kuo, Senior Counsel; Amanda Hollander 
Wagner, Branch Chief; or Brian McLaughlin Johnson, Assistant Director, 
Investment Company Regulation Office, Division of Investment 
Management, (202) 551-6792 or <a href="/cdn-cgi/l/email-protection#71383c5c23041d1402310214125f161e07"><span class="__cf_email__" data-cfemail="2c6561017e5940495f6c5f494f024b435a">[email protected]</span></a>; David Joire, Senior 
Special Counsel, at (202) 551-6825, Chief Counsel's Office, Division of 
Investment Management, (202) 551-6825 or <a href="/cdn-cgi/l/email-protection#f4bdb9bbb7b7b4879197da939b82"><span class="__cf_email__" data-cfemail="99d0d4d6dadad9eafcfab7fef6ef">[email protected]</span></a>, Securities and 
Exchange Commission, 100 F Street NE, Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission 
(``Commission'') is proposing for public comment 17 CFR 275.206(4)-9 
(``proposed rule 206(4)-9'') and 17 CFR 275.204-6 (``proposed rule 204-
6'') under the Advisers Act [15 U.S.C. 80b-1 et seq.]; 17 CFR 270.38a-2 
(``proposed rule 38a-2'') under the Investment Company Act [15 U.S.C. 
80a-1 et seq.]; and new Form ADV-C [referenced in 17 CFR 279.7] under 
the Advisers Act; amendments to 17 CFR 275.204-2 (``rule 204-2'') and 
17 CFR 275.204-3 (``rule 204-3'') under the Advisers Act; amendments to 
Form ADV [referenced in 17 CFR 279.1] under the Advisers Act; 
amendments to Form N-1A [referenced in 17 CFR 274.11A], Form N-2 
[referenced in 17 CFR 274.11a-1], Form N-3 [referenced in 17 CFR 
274.11b, Form N-4 [referenced in 17 CFR 274.11c], Form N-6 [referenced 
in 17 CFR 274.11d], Form N-8B-2 [referenced in 17 CFR 274.12], and Form 
S-6 [referenced in 17 CFR 239.16] under the Investment Company Act and 
the Securities Act of 1933 (``Securities Act'') [15 U.S.C. 77a et 
seq.]; amendments to 17 CFR 232.11 (``rule 11 of Regulation S-T'') and 
17 CFR 232.405 (``rule 405 of Regulation S-T'') under the Securities 
Exchange Act of 1934 (``Exchange Act'') [15 U.S.C. 78a et seq.]; 
amendments to 17 CFR 230.485 (``rule 485'') under the Securities Act; 
and amendments to 17 CFR 230.497 (``rule 497'') under the Securities 
Act.\1\
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    \1\ Unless otherwise noted, when we refer to the Investment 
Company Act, we are referring to 15 U.S.C. 80a, and when we refer to 
rules under the Investment Company Act, we are referring to title 
17, part 270 of the Code of Federal Regulations [17 CFR 270]. In 
addition, unless otherwise noted, when we refer to the Advisers Act, 
we are referring to 15 U.S.C. 80b, and when we refer to rules under 
the Advisers Act, we are referring to title 17, part 275 of the Code 
of Federal Regulations [17 CFR 275].
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Table of Contents

I. Introduction
    A. Adviser and Fund Cybersecurity Risks
    B. Current Legal and Regulatory Framework
    C. Overview of Rule Proposal
II. Discussion
    A. Cybersecurity Risk Management Policies and Procedures
    1. Required Elements
    2. Annual Review and Required Written Reports
    3. Fund Board Oversight
    4. Recordkeeping
    B. Reporting of Significant Cybersecurity Incidents to the 
Commission
    1. Proposed Rule 204-6
    2. Form ADV-C
    C. Disclosure of Cybersecurity Risks and Incidents
    1. Proposed Amendments to Form ADV Part 2A
    2. Cybersecurity Risks and Incidents Disclosure
    3. Requirement To Deliver Certain Interim Brochure Amendments to 
Existing Clients
    4. Proposed Amendments To Fund Registration Statements
III. Economic Analysis
    A. Introduction
    B. Broad Economic Considerations
    C. Baseline
    1. Cybersecurity Risks and Practices
    2. Regulation
    3. Market Structure
    D. Benefits and Costs of the Proposed Rule and Form Amendments

[[Page 13525]]

    1. Cybersecurity Policies and Procedures
    2. Disclosures of Cybersecurity Risks and Incidents
    3. Regulatory Reporting of Cybersecurity Incidents
    4. Recordkeeping
    E. Effects on Efficiency, Competition, and Capital Formation
    F. Alternatives Considered
    1. Alternatives to the Proposed Policies and Procedures 
Requirement
    2. Modify Requirements for Structuring Disclosure of 
Cybersecurity Risks and Incidents
    3. Public Disclosure of Form ADV-C
IV. Paperwork Reduction Act Analysis
    A. Introduction
    B. Rule 206(4)-9
    C. Rule 38a-2
    D. Rule 204-2
    E. Rule 204-6
    F. Form ADV-C
    G. Form ADV
    H. Rule 204-3
    I. Form N-1A
    J. Form N-2
    K. Form N-3
    L. Form N-4
    M. Form N-6
    N. Form N-8B-2 and Form S-6
    O. Investment Company Interactive Data
    P. Request for Comment
V. Initial Regulatory Flexibility Act Analysis
    A. Reason for and Objectives of the Proposed Action
    B. Legal Basis
    C. Small Entities Subject to the Rules and Rule Amendments
    D. Projected Reporting, Recordkeeping and Other Compliance 
Requirements
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    G. Solicitation of Comments
VI. Consideration of Impact on the Economy
VII. Statutory Authority

I. Introduction

A. Adviser and Fund Cybersecurity Risks

    Advisers and funds play an important role in our financial markets 
and increasingly depend on technology for critical business 
operations.\2\ Advisers and funds are exposed to, and rely on, a broad 
array of interconnected systems and networks, both directly and through 
service providers such as custodians, brokers, dealers, pricing 
services, and other technology vendors. Advisers also increasingly use 
digital engagement tools and other technology to engage with clients 
and develop and provide investment advice.\3\ As a result, they face 
numerous cybersecurity risks and may experience cybersecurity incidents 
that can cause, or be exacerbated by, critical system or process 
failures.\4\
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    \2\ Unless otherwise noted, the term ``fund'' means a registered 
investment company or a closed-end company that has elected to be 
treated as a business development company under the Investment 
Company Act (``BDC'').
    \3\ Request for Information and Comments on Broker-Dealer and 
Investment Adviser Digital Engagement Practices, Related Tools and 
Methods, and Regulatory Considerations and Potential Approaches; 
Information and Comments on Investment Adviser Use of Technology to 
Develop and Provide Investment Advice, Investment Advisers Act 
Release No. 5833 (Aug. 27, 2021) [86 FR 49067 (Sept. 1, 2021)].
    \4\ See, e.g., Financial Services Information Sharing and 
Analysis Center, Navigating Cyber 2021 (Mar. 2021), available at 
https://www.fsisac.com/navigatingcyber2021-report (detailing cyber 
threats that emerged in 2020 and predictions for 2021).
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    At the same time, cyber threat actors have grown more sophisticated 
and may target advisers and funds, putting them at risk of suffering 
significant financial, operational, legal, and reputational harm.\5\ 
Cybersecurity incidents affecting advisers and funds also can cause 
substantial harm to their clients and investors. For example, 
cybersecurity incidents caused by malicious software (also known as 
malware) can cause the loss of adviser, fund, or client data. 
Cybersecurity incidents can prevent an adviser or fund from executing 
its investment strategy or an adviser, fund, client, or investor from 
accessing an account, which can lead to financial losses for clients or 
investors. In addition, cybersecurity incidents can lead to the theft 
of intellectual property, confidential or proprietary information, or 
client assets.
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    \5\ See, e.g., Federal Bureau of Investigation, 2020 Internet 
Crime Report (Mar. 17, 2021), at 5, available at https://www.ic3.gov/Media/PDF/AnnualReport/2020_IC3Report.pdf (``FBI 2020 
Internet Crime Report'') (noting the FBI's Internet Crime Complaint 
Center received more than 791,790 complaints in 2020); see also SEC, 
Office of Compliance, Inspections and Examinations (``OCIE'') (as of 
December 17, 2020, OCIE was renamed the Division of Examinations 
(``EXAMS''); SEC, EXAMS Risk Alert, Cybersecurity: Ransomware Alert 
(July 10, 2020), available at https://www.sec.gov/files/Risk%20Alert%20-%20Ransomware.pdf (``EXAMS Ransomware Risk Alert'') 
(observing an apparent increase in sophistication of ransomware 
attacks on SEC registrants); SEC, EXAMS Risk Alert, Cybersecurity: 
Safeguarding Client Accounts against Credential Compromise (Sept. 
15, 2020), available at https://www.sec.gov/files/Risk%20Alert%20-%20Credential%20Compromise.pdf (``EXAMS Credential Stuffing Risk 
Alert''). Any staff statements represent the views of the staff. 
They are not a rule, regulation, or statement of the Commission. 
Furthermore, the Commission has neither approved nor disapproved 
their content. These staff statements, like all staff statements, 
have no legal force or effect: They do not alter or amend applicable 
law; and they create no new or additional obligations for any 
person.
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    An adviser or a fund may incur substantial remediation costs due to 
a cybersecurity incident.\6\ It may need to reimburse clients for 
cybersecurity-related losses as well as implement expensive 
organizational or technological changes to reinforce its ability to 
respond to and recover from a cybersecurity incident. It may also see 
an increase in its insurance premiums. In addition, an adviser or fund 
may face increased litigation, regulatory, or other legal and financial 
risks or suffer reputational damage, and any of these outcomes could 
cause its clients or investors to lose confidence in their adviser or 
fund, or the financial markets more generally. Cybersecurity risk 
management is therefore a critical area of focus for advisers and 
funds, and many advisers and funds have taken steps to address 
cybersecurity risks.
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    \6\ See, e.g., Ponemon Institute and IBM Security, Cost of Data 
Breach Report 2021 (July 2021), available at https://www.ibm.com/security/data-breach (``Cost of Data Breach Report'') (noting the 
average cost of a data breach in the financial industry in the 
United States is $5.72 million); FBI 2020 Internet Crime Report, 
supra footnote 5, at 15 (noting that cybercrime victims lost 
approximately $4.2 billion in 2020).
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    The Commission and its staff have and continue to focus on 
cybersecurity risks to advisers and their clients, and funds and their 
investors.\7\ We are concerned about the efficacy of adviser and fund 
practices industry-wide to address cybersecurity risks and incidents, 
and that less robust practices may not address investor protection 
concerns. We are also concerned about the effectiveness of disclosures 
to advisory clients and fund shareholders concerning cybersecurity 
risks and incidents. The staff has observed a number of practices with 
respect to firms addressing cybersecurity risk and has provided its 
observations on a number of occasions to assist firms in enhancing 
their cybersecurity preparedness.\8\ Despite these efforts and in the 
face of ever-increasing cybersecurity risk, staff continues to observe 
that certain advisers and funds show a lack of cybersecurity 
preparedness, which puts clients and investors at risk. We believe that 
clients and investors would be better protected if advisers and funds 
were required to have policies and procedures that include specific 
elements to address cybersecurity risks.
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    \7\ See, e.g., Division of Investment Management Cybersecurity 
Guidance, IM Guidance Update No. 2015-02 (Apr. 2015), available at 
https://www.sec.gov/investment/im-guidance-2015-02.pdf; Division of 
Investment Management, Business Continuity Planning for Registered 
Investment Companies, IM Guidance Update No. 2016-04 (June 2016), 
available at https://www.sec.gov/investment/im-guidance-2016-04.pdf.
    \8\ See, e.g., SEC, EXAMS, Cybersecurity and Resiliency 
Observations (Jan. 27, 2020), available at https://www.sec.gov/files/OCIE%20Cybersecurity%20and%20Resiliency%20Observations.pdf 
(``EXAMS Cybersecurity and Resiliency Observations''); EXAMS 
Cybersecurity Initiative (Apr. 15, 2014), available at https://
www.sec.gov/ocie/announcement/Cybersecurity-Risk-Alert_Appendix_-
4.15.14.pdf; EXAMS' 2015 Cybersecurity Examination Initiative (Sept. 
15, 2015), available at https://www.sec.gov/files/ocie-2015-cybersecurity-examination-initiative.pdf.

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[[Page 13526]]

    Moreover, the staff has observed that while many advisers and funds 
already provide disclosure about cybersecurity risks, we are concerned 
that clients and investors may not be receiving sufficient 
cybersecurity-related information, particularly with respect to 
cybersecurity incidents, to assess the operational risk at a firm or 
the effects of an incident to help ensure they are making informed 
investment decisions. We therefore seek to improve cybersecurity-
related disclosures by addressing cybersecurity more directly.
    Finally, we believe that, in the face of ever-increasing 
cybersecurity risk, advisers and funds should report certain 
cybersecurity incidents to the Commission to assist in its oversight 
role. As further discussed below, this would allow the Commission and 
its staff to understand better the nature and extent of cybersecurity 
incidents occurring at advisers and funds, how firms respond to such 
incidents to protect clients and investors, and how cybersecurity 
incidents affect the financial markets more generally. We believe 
requiring advisers and funds to report the occurrence of significant 
cybersecurity incidents would bolster the efficiency and effectiveness 
of our efforts to protect investors, other market participants, and the 
financial markets in connection with cybersecurity incidents. 
Accordingly, we are proposing a set of comprehensive reforms to address 
cybersecurity risks for advisers and funds, enhance disclosure of 
information regarding cybersecurity risks and significant cybersecurity 
incidents, and require the reporting of significant cybersecurity 
incidents to the Commission.

B. Current Legal and Regulatory Framework

    As fiduciaries, advisers are required to act in the best interest 
of their clients at all times.\9\ Advisers owe their clients a duty of 
care and a duty of loyalty. An adviser's fiduciary obligation to its 
clients includes the obligation to take steps to protect client 
interests from being placed at risk because of the adviser's inability 
to provide advisory services.\10\ These include steps to minimize 
operational and other risks that could lead to significant business 
disruptions or a loss or misuse of client information. Under this 
framework, advisers today consider a number of rules and regulations, 
which indirectly address cybersecurity. As discussed above, 
cybersecurity incidents can lead to significant business disruptions, 
including lapses in communication or the inability to place trades. In 
addition, these disruptions can lead to the loss of access to accounts 
or investments, potentially resulting in the loss or theft of data or 
assets. Thus, advisers should take steps to minimize cybersecurity 
risks in accordance with their fiduciary obligations.
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    \9\ SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 
194 (1963); see also Commission Interpretation Regarding Standard of 
Conduct for Investment Advisers, Investment Advisers Act Release No. 
5248 (June 5, 2019) [84 FR 33669 (July 12, 2019)], at 6-8.
    \10\ See Compliance Programs of Investment Companies and 
Investment Advisers, Investment Advisers Act Release No. 2204 (Dec. 
17, 2003) [68 FR 74714 (Dec. 24, 2003)], at n.22 (``Compliance 
Program Release'') (noting this fiduciary obligation in the context 
of business continuity plans).
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    Additionally, 17 CFR 275.206(4)-7 (``Advisers Act compliance 
rule'') requires advisers to consider their fiduciary and regulatory 
obligations and formalize policies and procedures reasonably designed 
to address them.\11\ While the Advisers Act compliance rule does not 
enumerate specific elements that an adviser must include in its 
compliance program, an adviser generally should first identify 
conflicts of interest and other compliance factors creating risk 
exposure for the firm and its clients in light of the firm's particular 
operations and then design policies and procedures that address those 
risks.\12\ Because cybersecurity incidents could create significant 
operational disruptions and losses to clients and investors, we 
understand that advisers often consider the cybersecurity risks created 
by their particular circumstances when developing their compliance 
policies and procedures under the Advisers Act compliance rule and 
tailor their policies and procedures to address those risks.
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    \11\ The Advisers Act compliance rule requires an adviser that 
is registered, or required to be registered, with the Commission to: 
(1) Adopt and implement written policies and procedures reasonably 
designed to prevent violations of the Advisers Act by the adviser 
and its supervised persons; (2) designate a chief compliance officer 
(``CCO'') responsible for administering the policies and procedures; 
and (3) review the adequacy of the policies and procedures and the 
effectiveness of their implementation at least annually.
    \12\ See Compliance Program Release, supra footnote 10, at n.22 
and accompanying text. The Commission included business continuity, 
safeguards for the privacy of client records and information, as 
well as the accuracy of disclosures made to investors, clients and 
regulators in a list of general areas it believes, at a minimum, an 
adviser's compliance program should address to the extent they are 
relevant to the adviser. Id.
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    Similarly, 17 CFR 270.38a-1 (``Investment Company compliance 
rule'') requires funds to adopt and implement written policies and 
procedures reasonably designed to prevent violations of the Federal 
securities laws by the fund, including policies and procedures that 
provide for the oversight of compliance by each investment adviser, 
principal underwriter, administrator, and transfer agent of the fund 
(``named service providers'').\13\ We understand that funds take into 
account the specific risks they face, often including any specific 
cybersecurity risks, when developing their compliance policies and 
procedures under the Investment Company compliance rule.
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    \13\ The Investment Company compliance rule also requires the 
fund to: (1) Designate a CCO responsible for administering the 
policies and procedures, subject to certain requirements, including 
providing the fund's board with an annual report; and (2) review the 
adequacy of the policies and procedures and the effectiveness of 
their implementation at least annually.
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    Other Commission rules require advisers and funds to consider 
cybersecurity. For example, advisers and funds subject to 17 CFR 248.1 
through 248.31 (``Regulation S-P'') are required to, among other 
things, adopt written policies and procedures that address 
administrative, technical, and physical safeguards for the protection 
of customer records and information.\14\ These written policies and 
procedures must be reasonably designed to protect the security and 
confidentiality of customer records and information. They must also be 
reasonably designed to protect against any anticipated threats or 
hazards, unauthorized access to, or use of customer records or 
information that could result in substantial harm or inconvenience to 
any customer.\15\
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    \14\ See Privacy of Consumer Financial Information (Regulation 
S-P), Investment Advisers Act Release No. 1883 (June 22, 2000) [65 
FR 40334 (June 29, 2000)] (``Regulation S-P Release''); see also 
Disposal of Consumer Report Information, Investment Advisers Act 
Release No. 2332 (Dec. 2, 2004) [69 FR 71322 (Dec. 8, 2004)] 
(``Disposal of Consumer Report Information Release'') (requiring 
written policies and procedures under Regulation S-P); Compliance 
Program Release, supra footnote 10, at n.21 and accompanying text 
(stating expectation that policies and procedures would address 
safeguards for the privacy protection of client records and 
information and noting the applicability of Regulation S-P).
    \15\ 17 CFR 248.30. Regulation S-P also establishes general 
requirements and restrictions on, as well as exceptions to, the 
ability of financial institutions to disclose nonpublic personal 
information about customers to nonaffiliated third parties.
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    Moreover, advisers and funds subject to 17 CFR 248.201 through 202 
(``Regulation S-ID'') must develop and implement a written identity 
theft program.\16\ A Regulation S-ID program must include reasonable 
policies and procedures to identify and detect relevant red flags, as 
well as respond appropriately to red flags so as to prevent and 
mitigate identity theft.

[[Page 13527]]

Regulation S-ID programs must also be reviewed periodically to ensure 
that changes in the identity theft risk landscape are reflected and 
provide for the continued administration of the program, including 
staff training and appropriate and effective oversight of service 
providers.\17\ In addition, because fraudulent activity could result 
from cybersecurity or data breaches from insiders, such as advisory or 
fund personnel, advisers and funds often take precautions concerning 
information security specifically related to insiders.\18\
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    \16\ See Identity Theft Red Flags Rules, Investment Advisers Act 
Release No. 3582 (Apr. 10, 2013) [78 FR 23638 (Apr. 19, 2013)] 
(``Identity Theft Release'').
    \17\ See also Appendix A to Subpart C of 17 CFR part 248 
(setting out Commission guidelines for consideration when 
implementing an identity theft program).
    \18\ See, e.g., 17 CFR 270.17j-1; 17 CFR 275.204A-1; see also 
generally Personal Investment Activities of Investment Company 
Personnel, Investment Company Act Release No. 23958 (Aug. 24, 1999) 
[64 FR 46821 (Aug. 27, 1999)] (stating that rule 17j-1 prohibits 
fraudulent, deceptive or manipulative acts by fund personnel in 
connection with their personal transactions in securities held or to 
be acquired by the fund); Investment Adviser Codes of Ethics, 
Investment Advisers Act Release No. 2256 (July 2, 2004) [69 FR 41696 
(July 9, 2004)] (stating that rule 204A-1 will benefit advisers by 
renewing their attention to their fiduciary and other legal 
obligations, and by increasing their vigilance against inappropriate 
behavior by employees).
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C. Overview of Rule Proposal

    While some funds and advisers have implemented cybersecurity 
programs under the existing regulatory framework, there are no 
Commission rules that specifically require firms to adopt and implement 
comprehensive cybersecurity programs. Based on our staff's examinations 
of advisers and funds, we are concerned that some funds and advisers 
that are registered with us have not implemented reasonably designed 
cybersecurity programs. As a result, these firms' clients and investors 
may be at greater risk of harm than those of funds and advisers that 
have in place appropriate plans to address cybersecurity risks.
    To address these concerns, we are proposing rules 206(4)-9 under 
the Advisers Act and 38a-2 under the Investment Company Act, which 
would require advisers and funds that are registered or required to be 
registered with us to implement cybersecurity policies and procedures 
addressing a number of elements.\19\ Under the proposed rules, such an 
adviser's or fund's cybersecurity policies and procedures generally 
should be tailored based on its business operations, including its 
complexity, and attendant cybersecurity risks. Further, the proposed 
rules would require advisers and funds, at least annually, to review 
and evaluate the design and effectiveness of their cybersecurity 
policies and procedures, which would allow them to update them in the 
face of ever-changing cyber threats and technologies. We believe that 
advisers and funds should be required to adopt and implement policies 
and procedures that address a number of elements to increase the 
likelihood that they are prepared to face a cybersecurity incident 
(whether that threat comes from an outside actor or the firm's 
personnel), and that investors and other market participants are 
protected from a cybersecurity incident that could significantly affect 
a firm's operations and lead to significant harm to clients and 
investors.
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    \19\ When discussing the requirements proposed in this release, 
our use of the terms funds and advisers refers to funds and advisers 
that are registered or required to be registered with the 
Commission.
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    To address cybersecurity more directly, we also are proposing 
amendments to adviser and fund disclosure requirements to provide 
current and prospective advisory clients and fund shareholders with 
improved information regarding cybersecurity risks and cybersecurity 
incidents. In particular, we propose amendments to Form ADV for 
advisers and Forms N-1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6 for funds. 
We believe these proposed cybersecurity disclosure requirements would 
enhance investor protection by requiring that cybersecurity risk or 
incident-related information is available to increase understanding in 
these areas and help ensure that investors and clients can make 
informed investment decisions.
    In addition, we are proposing to require advisers to report 
significant cybersecurity incidents affecting the adviser, or its fund 
or private fund clients, to the Commission on a confidential basis.\20\ 
These reports would bolster the efficiency and effectiveness of our 
efforts to protect investors in connection with cybersecurity 
incidents. This reporting would not only help the Commission monitor 
and evaluate the effects of a cybersecurity incident on an adviser and 
its clients or a fund and its investors, but also assess the potential 
systemic risks affecting financial markets more broadly.
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    \20\ See 15 U.S.C. 80b-2(a)(29) (defining a ``private fund'' as 
``an issuer that would be an investment company, as defined in 
section 3 of the Investment Company Act of 1940, but for section 
3(c)(1) or 3(c)(7) of that Act'').
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    Taken together, these reforms are designed to promote a more 
comprehensive framework to address cybersecurity risks for advisers and 
funds, thereby reducing the risk that advisers and funds would be not 
be able to maintain critical operational capability when confronted 
with a significant cybersecurity incident. These reforms also are 
designed to give clients and 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 ever-evolving cybersecurity risks and incidents affecting 
advisers and funds.

II. Discussion

A. Cybersecurity Risk Management Policies and Procedures

    The Commission is proposing rule 206(4)-9 under the Advisers Act 
and 38a-2 under the Investment Company Act (collectively, ``proposed 
cybersecurity risk management rules'').\21\ The proposed cybersecurity 
risk management rules would require all advisers and funds to adopt and 
implement cybersecurity policies and procedures containing certain 
elements. Advisers and funds of every type and size rely on technology 
systems and networks and face increasing cybersecurity risks. The rules 
would therefore require all of these advisers and funds to consider and 
mitigate cybersecurity risk.\22\
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    \21\ Section 206(4) of the Advisers Act permits the Commission 
to define, and prescribe means reasonably designed to prevent, such 
acts, practices and courses of business conduct as are fraudulent, 
deceptive or manipulative under the Advisers Act, and to adopt rules 
reasonably designed to prevent fraud. We are proposing rule 206(4)-9 
as a means reasonably designed to prevent fraud. Section 38(a) of 
the Investment Company Act authorizes the Commission to ``make . . . 
such rules and regulations . . . as are necessary or appropriate to 
the exercise of the powers conferred upon the Commission elsewhere 
in [the Investment Company Act].''
    \22\ Proposed rule 206(4)-9 would apply to advisers to 
separately managed accounts and pooled investment vehicles, both 
private and offered to the public. Proposed rule 38a-2 would apply 
to mutual funds, exchange-traded funds (``ETFs''), unit investment 
trusts, registered closed-end funds, and BDCs.
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    As discussed below, while the proposed cybersecurity risk 
management rules would require all such advisers and funds to implement 
cybersecurity hygiene and protection measures, we recognize that there 
is not a one-size-fits-all approach to addressing cybersecurity risks. 
As a result, the proposed cybersecurity risk management rules would 
allow firms to tailor their cybersecurity policies and procedures to 
fit the nature and scope of their business and address their individual 
cybersecurity risks.
    We request comment on the entities subject to the proposed rules:
    1. Should we exempt certain types of advisers or funds from these 
proposed

[[Page 13528]]

cybersecurity risk management rules? If so, which ones, and why? For 
example, is there a subset of funds or advisers with operations so 
limited or staffs so small that the adoption of cybersecurity risk 
management programs is not beneficial?
    2. Should we scale the proposed requirements based on the size of 
the adviser or fund? If so, which of the elements described below 
should not be required for smaller advisers or funds? How would we 
define such smaller advisers or funds? For example, should we define 
such advisers and funds based on the thresholds that the Commission 
uses for purposes of the Regulatory Flexibility Act? Would using 
different thresholds based on assets under management, such as $150 
million or $200 million, be appropriate? Would another threshold be 
more suitable, such as one based on an adviser's or fund's limited 
operations, staffing, revenues or management?
1. Required Elements of Advisers' and Funds' Policies and Procedures
    The proposed cybersecurity risk management rules would require 
advisers and funds to adopt and implement written policies and 
procedures that are reasonably designed to address cybersecurity risks. 
We believe that these policies and procedures would help address 
operational and other risks that could harm advisory clients and fund 
investors or lead to the unauthorized access to or use of adviser or 
fund information.\23\ The proposed cybersecurity risk management rules 
enumerate certain general elements that advisers and funds would be 
required to address in their cybersecurity policies and procedures.\24\ 
They also contain a number of defined terms that apply across the 
proposed cybersecurity risk management rules as well as the other rule 
and form amendments we are proposing.\25\
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    \23\ After gaining access to an adviser's or a fund's 
information systems, an attacker could use this access to steal, 
disclose, delete, destroy, or modify adviser or fund information, as 
well as steal client or investor assets.
    \24\ Funds and advisers may wish to consult a number of 
resources in connection with these elements. See, e.g., National 
Institute of Standards and Technology (NIST), Framework for 
Improving Critical Infrastructure Cybersecurity, Version 1.1 (Apr. 
16, 2018), available at https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf (``NIST Framework''); Cybersecurity and 
Infrastructure Security Agency (CISA), Cyber Essentials Starter 
Kit--The Basics for Building a Culture of Cyber Readiness (Spring 
2021), available at https://www.cisa.gov/sites/default/files/publications/Cyber%20Essentials%20Starter%20Kit_03.12.2021_508_0.pdf.
    \25\ The proposed defined terms for advisers and funds are the 
same in most instances, except where necessary to take into account 
relevant differences in each of the proposed cybersecurity risk 
management rules. For example, the majority of differences between 
proposed rules 206(4)-9 and 38a-2 are that the rule applicable to 
advisers includes the word ``adviser'' in a number of terms (e.g., 
``adviser information systems'' and ``adviser information'') whereas 
the rule applicable to funds includes the word ``fund'' (e.g., 
``fund information systems'' and ``fund information.'') in a number 
of terms. We understand that there are different definitions for a 
number of common terms in the realm of cybersecurity, and we propose 
terms derived from a number established sources. See Presidential 
Policy Directive--United States Cyber Incident Coordination (July 
26, 2016) (``PPD-41''); 6 U.S.C. 1501 (2021); 44 U.S.C. 3502 (2021); 
44 U.S.C. 3552 (2021); see also National Institute of Standards and 
Technology (NIST), Computer Security Resource Center Glossary (last 
visited Feb. 2, 2022), available at https://csrc.nist.gov/glossary 
(``NIST Glossary''). We believe the proposed terms are sufficiently 
precise and aligned with each other for advisers and funds to 
understand and utilize in connection with the proposed rules. Using 
common terms and similar definitions is intended to facilitate 
compliance and reduce regulatory burdens.
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    The general elements are designed to enumerate core areas that 
firms must address when adopting, implementing, reassessing and 
updating their cybersecurity policies and procedures. We recognize, 
however, that given the number and varying characteristics (e.g., size, 
business, and sophistication) of advisers and funds, firms need the 
ability to tailor their cybersecurity policies and procedures based on 
their individual facts and circumstances. The proposed cybersecurity 
risk management rules therefore give advisers and funds the flexibility 
to address the general elements based on the particular cybersecurity 
risks posed by each adviser's or fund's operations and business 
practices. In addition, because cybersecurity threats are constantly 
evolving and measures to address those threats continue to advance, 
this approach would allow an adviser's or fund's cybersecurity policies 
and procedures to evolve accordingly as firms reassess their 
cybersecurity risks in accordance with the proposed cybersecurity risk 
management rules.
    The proposed cybersecurity risk management rules also would provide 
flexibility for the adviser and fund to determine the person or group 
of people who implement and oversee the effectiveness of its 
cybersecurity policies and procedures. Wide-ranging areas of expertise 
could be needed to manage cybersecurity risk. We understand that 
cybersecurity may be the responsibility of many individuals within an 
organization, and expertise may be provided both internally and by 
third-party experts. Within an adviser or fund organization, various 
officers or employees may be involved in implementing a cybersecurity 
program, including those who specialize in technology, risk, 
compliance, and legal matters. Some advisers and funds may be a part of 
a larger company structure that shares common cybersecurity and 
information technology (``IT'') personnel, resources, systems, and 
infrastructure. Advisers and funds may also utilize third-party 
cybersecurity experts that provide varying perspectives and are well-
positioned to understand and assist in managing risks. Multiple 
perspectives may assist in building a stronger cybersecurity program, 
and also would allow firms to add expertise as needed in the rapidly 
changing cybersecurity environment. We believe that this approach 
allows advisers and funds of differing sizes, organizational 
structures, and investment strategies to tailor their cybersecurity 
programs effectively to their operations.
    Under the proposed cybersecurity risk management rules, an adviser 
or fund may choose to administer its cybersecurity policies and 
procedures using in-house resources with appropriate knowledge and 
expertise. The proposed framework also does not preclude an adviser or 
fund from using a third party's cybersecurity risk management services, 
subject to appropriate oversight. Similarly, subject to appropriate 
oversight, a fund's adviser or sub-adviser could administer any of the 
functions of the fund's required policies and procedures.\26\ Whether 
the administrators of an adviser's or fund's cybersecurity policies and 
procedures are in-house or a third party, reasonably designed policies 
and procedures must empower these administrators to make decisions and 
escalate issues to senior officers as necessary for the administrator 
to carry out the role effectively (e.g., the policies and procedures 
could include an explicit escalation provision to the adviser's or 
fund's senior officers). Reasonably designed cybersecurity policies and 
procedures generally should specify which groups, positions, or 
individuals, whether in-house or third-party, are responsible for 
implementing and administering the policies and procedures, including 
specifying those responsible for communicating incidents internally and

[[Page 13529]]

making decisions with respect to reporting to the Commission and 
disclosing to clients and investors certain incidents.
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    \26\ A sub-adviser that is delegated advisory services by an 
adviser is subject to its own cybersecurity obligations under the 
proposed risk management rules. Delegating any or all cybersecurity-
related activities does not exempt an adviser or fund from its 
oversight responsibilities.
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    We believe that this approach would help ensure that advisers and 
funds adopt and implement cybersecurity policies and procedures that 
are effective in mitigating cybersecurity risk without being overly 
burdensome or costly to implement. Moreover, we believe the proposed 
cybersecurity risk management rules would benefit advisory clients and 
fund investors because advisers and funds would be better prepared to 
confront a cybersecurity incident if (and when) it occurs.\27\ The 
proposed rules also would help to ensure that advisers and funds focus 
their efforts and resources on mitigating the cybersecurity risks 
associated with their operations and business practices.\28\
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    \27\ We propose to define ``cybersecurity incident'' as ``an 
unauthorized occurrence on or conducted through [an adviser's or a 
fund's] information systems that jeopardizes the confidentiality, 
integrity, or availability of [an adviser's or a fund's] information 
systems or any [adviser or fund] information residing therein.'' See 
proposed rules 206(4)-9 and 38a-2. This proposed term is derived 
from the 44 U.S.C. 3552, which is incorporated into PPD-41 (defining 
``cyber incident''), and included in the NIST Glossary (defining 
``incident''). We believe this term is sufficiently understood and 
broad enough to encompass incidents that could adversely affect an 
adviser's or fund's information systems or information residing 
therein, such as gaining access without authorization or by 
exceeding authorized access to such systems and information that 
could lead, for example, to the modification or destruction of 
systems and information.
    \28\ We propose to define ``cybersecurity risk'' as the 
``financial, operational, legal, reputational, and other adverse 
consequences that could stem from cybersecurity incidents, threats, 
and vulnerabilities.'' See proposed rules 206(4)-9 and 38a-2. This 
proposed term is designed to capture risks that an adviser or fund 
faces when confronted with incidents, threats and vulnerabilities, 
and we believe is generally well understood in connection with 
integrating cybersecurity into enterprise risk management. See 
generally NIST Framework, supra footnote 24.
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a. Risk Assessment
    The first step in designing effective cybersecurity policies and 
procedures is assessing and understanding the cybersecurity risks 
facing an adviser or a fund.\29\ As an element of an adviser's or 
fund's reasonable policies and procedures, the proposed cybersecurity 
risk management rules would require advisers and funds periodically to 
assess, categorize, prioritize, and draft written documentation of, the 
cybersecurity risks associated with their information systems and the 
information residing therein.\30\ The proposed cybersecurity risk 
management rules would require advisers and funds, when conducting this 
risk assessment, to:
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    \29\ Risk assessments are included as an element in many 
cybersecurity frameworks. See, e.g., NIST Framework, supra footnote 
24.
    \30\ See proposed rules 206(4)-9(a)(1) and 38a-2(a)(1). 
``Adviser information systems'' is proposed to be defined as 
``information resources owned or used by the adviser, including 
physical or virtual infrastructure controlled by such information 
resources, or components thereof, organized for the collection, 
processing, maintenance, use, sharing, dissemination, or disposition 
of adviser information to maintain or support the adviser's 
operations.'' See proposed rule 206(4)-9; see also proposed rule 
38a-2 (defining ``fund information systems''). The definitions of 
these terms are designed to be broad enough to encompass all the 
electronic information resources owned or used by an adviser or a 
fund.
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    (i) Categorize and prioritize cybersecurity risks based on an 
inventory of the components of their information systems, the 
information residing therein, and the potential effect of a 
cybersecurity incident on the advisers and funds; and
    (ii) Identify their service providers that receive, maintain or 
process adviser or fund information, or that are permitted to access 
their information systems, including the information residing therein, 
and identify the cybersecurity risks associated with the use of these 
service providers.\31\
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    \31\ ``Adviser information'' is proposed to be defined as ``any 
electronic information related to the adviser's business, including 
personal information, received, maintained, created, or processed by 
the adviser.'' The term ``personal information'' is proposed to be 
defined as: ``(1) any information that can be used, alone or in 
conjunction with any other information, to identify an individual, 
such as name, date of birth, place of birth, telephone number, 
street address, mother's maiden name, Social Security number, 
driver's license number, electronic mail address, account number, 
account password, biometric records or other non-public 
authentication information; or (2) Any other non-public information 
regarding a client's account.'' See proposed rule 206(4)-9; see also 
proposed rule 38a-2 (the term ``personal information'' in proposed 
rule 38a-2 does not include the second prong of the same term 
contained in proposed rule 206(4)-9). The definitions of ``personal 
information'' for advisers and funds are derived from a number of 
established sources and aim to capture a broad array of personal 
information that can reside on an adviser's or a fund's information 
systems. See e.g., Regulation S-ID, supra footnote 16 (defining 
``identifying information''); NIST Glossary, supra footnote 24 
(defining ``personal information'' and ``personally identifiable 
information'').
---------------------------------------------------------------------------

    The proposed rules would also require written documentation of any 
risk assessment. Generally, this risk assessment should inform senior 
officers at the adviser or the fund of the risks specific to the firm 
and support responses to cybersecurity risks by identifying 
cybersecurity threats to information systems that, if compromised, 
could result in significant cybersecurity incidents.\32\ In general, an 
adviser or fund's cybersecurity program should be reasonably designed 
to ensure its operational capability, including resiliency and capacity 
of information systems, when confronted with a cybersecurity incident, 
whether at the adviser or at a service provider that may access adviser 
or fund information.
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    \32\ ``Cybersecurity threat'' is proposed to be defined as ``any 
potential occurrence that may result in an unauthorized effort to 
adversely affect the confidentiality, integrity or availability of 
[an adviser's or a fund's] information systems or any [adviser or 
fund] information residing therein.'' See proposed rules 206(4)-9 
and 38a-2.
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    An adviser or fund generally should assess, categorize, and 
prioritize the cybersecurity risks created by its information systems 
and information residing therein in light of the firm's particular 
operations.\33\ For example, advisers may be subject to different risks 
as a result of international operations, insider threats, or remote or 
traveling employees. Only after assessing, analyzing, categorizing, and 
prioritizing its risks can an adviser or fund develop and implement 
cybersecurity policies and procedures designed to mitigate those risks. 
The proposed cybersecurity risk management rules would also require 
advisers and funds to reassess and re-prioritize their cybersecurity 
risks periodically as changes that affect these risks occur. Due to the 
ongoing and emerging nature of cybersecurity threats, and the proposed 
requirement discussed below that advisers and funds review their 
cybersecurity policies and procedures no less frequently than annually, 
we are not proposing that such a reassessment occur at specified 
intervals.\34\ Instead, advisers and funds should reassess their 
cybersecurity risks as they arise to reflect internal changes, such as 
changes to its business, online presence, or client web access, or 
external changes, such as changes in the evolving technology and 
cybersecurity threat landscape, and inform senior officers of the 
adviser or fund of any material changes to the risk assessment. In 
assessing ongoing and emerging cybersecurity threats, advisers and 
funds generally should monitor and consider updates and guidance from 
private sector and governmental resources, such as the Financial 
Services Information Sharing and Analysis Center (``FS-ISAC'') and the

[[Page 13530]]

Department of Homeland Security's CISA.\35\
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    \33\ Some firms use an enterprise governance, risk management 
and compliance (``EGRC'') system to manage cybersecurity risk and 
compliance by creating policies, procedures, and internal controls 
that assist in identifying cybersecurity risks related to particular 
systems.
    \34\ See discussion in section II.A.2 below (advisers and funds 
must review their cybersecurity policies and procedures no less 
frequently than annually, including preparing and reviewing a 
written report that is designed to address cybersecurity risk 
assessments, among other items).
    \35\ Information about FS-ISAC is available at https://www.fsisac.com. Information about CISA is available at https://www.cisa.gov.
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    Because many advisers and funds are exposed to cybersecurity risks 
through the technology of their service providers, a risk assessment 
also must identify service providers that receive, maintain, or process 
adviser or fund information, or that are permitted to access their 
information systems, including the information residing therein and the 
cybersecurity risks they present.\36\ For example, advisers may use 
service providers who provide trade order management systems that allow 
the adviser to automate all or some of the adviser's trading, and 
advisers should consider any cybersecurity risks presented by these 
services. In identifying cybersecurity risks, an adviser or fund should 
consider the service provider's cybersecurity practices, including 
whether any systems used have the resiliency and capacity to process 
transactions in an accurate, timely and efficient manner, and their 
capability to protect information and systems (including response and 
recovery procedures in response to any incidents and any escalation 
protocols contained therein).
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    \36\ Oversight of third-party service provider or vendor risk is 
a component of many cybersecurity frameworks. See, e.g., NIST 
Framework, supra footnote 24 (discussing supply chain risks 
associated with products and services an organization uses).
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    Generally, an adviser or fund should take into account whether a 
cybersecurity incident at a service provider could lead to the 
unauthorized access or use of adviser or fund information or technology 
or process failures. For an adviser, such unauthorized access or use or 
failure could disrupt portfolio management, trade execution, or other 
aspects of its operations. For example, an adviser may retain a cloud 
service provider for maintaining required books and records. If all of 
the adviser's books and records were concentrated at this cloud service 
provider and a cybersecurity incident were to occur at the cloud 
service provider--or any service provider maintaining the adviser's 
books and records--there could potentially be detrimental data loss 
affecting the ability of the adviser to provide services and comply 
with regulatory obligations. Accordingly, as part of identifying the 
cybersecurity risks associated with using this cloud service provider, 
the adviser should consider how the service provider will secure and 
maintain data and whether the service provider has response and 
recovery procedures in place such that any compromised or lost data in 
the event of a cybersecurity incident can be recovered and restored.
    For a fund, similar unauthorized access or use or failure could 
affect the valuation of portfolio securities or the processing of 
shareholder transactions, which could significantly disrupt the fund's 
operations. For example, a fund may rely on service providers to 
calculate the fund's net asset value (``NAV''). The inability of an 
administrator, pricing vendor, or accounting system to calculate a 
fund's NAV due to a cybersecurity incident would force a fund to 
consider alternatives. As part of its cybersecurity program and its 
oversight of service providers, a fund that relies on any service 
provider for calculating NAV generally should assess the potential 
cybersecurity risks presented by that service provider and develop 
procedures to respond to and mitigate disruptions, including by 
identifying alternative processes or vendors to calculate the fund's 
NAV.\37\ Accordingly, the fund's risk assessment generally should 
involve inquiring about that service provider's business continuity and 
disaster recovery protocols with respect to a cybersecurity incident.
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    \37\ See generally Good Faith Determinations of Fair Value, 
Investment Company Release No. 34128 (Dec. 3, 2020) [86 FR 748 (Jan. 
06, 2021)], at text accompanying nn.94-95 (determining fair value in 
good faith requires the oversight and evaluation of any pricing 
services used, including approval, monitoring, and evaluation).
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b. User Security and Access
    As an element of an adviser's or fund's reasonably designed 
policies and procedures, the proposed cybersecurity risk management 
rules would require controls designed to minimize user-related risks 
and prevent the unauthorized access to information and systems.\38\ 
Their policies and procedures must include:
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    \38\ See proposed rules 206(4)-9(a)(2) and 38a-2(a)(2).
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    (1) Requiring standards of behavior for individuals authorized to 
access adviser or fund information systems and any adviser or fund 
information residing therein, such as an acceptable use policy;
    (2) Identifying and authenticating individual users, including 
implementing authentication measures that require users to present a 
combination of two or more credentials for access verification;
    (3) Establishing procedures for the timely distribution, 
replacement, and revocation of passwords or methods of authentication;
    (4) Restricting access to specific adviser or fund information 
systems or components thereof and adviser or fund information residing 
therein solely to individuals requiring access to such systems and 
information as is necessary for them to perform their responsibilities 
and functions on behalf of the adviser or fund; and
    (5) Securing remote access technologies used to interface with 
adviser or fund information systems.
    The proposed cybersecurity risk management rules would require 
advisers and funds, as part of their cybersecurity programs, to address 
user access controls to restrict system and data access to authorized 
users.\39\ Such controls are necessary to prevent and detect 
unauthorized access to systems or client or investor data or 
information. In addition, as remote access and teleworking have become 
increasingly common, we believe that having such measures is a 
necessary component of robust and comprehensive cybersecurity policies 
and procedures.
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    \39\ Advisers and funds generally should consider their 
potential obligations under Regulation S-P and Regulation S-ID to 
implement certain access controls with respect to protecting client 
or investor information.
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    In designing and implementing user access controls, advisers and 
funds generally should develop a clear understanding of the need for 
access to systems, data, functions, and/or accounts, including 
identifying which users have legitimate needs to access particularly 
critical or sensitive systems, data, functions, or accounts. For 
example, a portfolio manager may have privileged access to trading 
systems that permit him or her to enter trades, while a compliance 
personnel's access may be limited to reviewing or approving, but not 
entering, trades.
    Access to systems and data can be controlled through a variety of 
means, including, but not limited to, the issuance of user credentials, 
digital rights management with respect to proprietary hardware and 
copyrighted software, authentication and authorization methods (e.g., 
multi-factor authentication and geolocation), and tiered access to 
sensitive information and network resources. Effective controls would 
also generally include user security and access measures that are 
regularly monitored not only to provide access to authorized users, but 
also to remove access for users that are no longer authorized, whether 
due to removal from a project or termination of employment.
    As part of its user access controls, an adviser or fund should also 
consider what measures are necessary for clients

[[Page 13531]]

and investors that have access to information systems and information 
residing on the systems--not only user access controls for its own 
personnel. For example, an adviser or fund may implement measures that 
monitor for unauthorized login attempts and account lockouts, and the 
handling of customer requests, including for user name and password 
changes. Similarly, well-designed user access controls should assess 
the need to authenticate or investigate any unusual customer requests 
(e.g., wire transfer or withdraw requests).
    In developing these policies and procedures, an adviser or fund 
also should take into account the types of technology through which its 
users access adviser or fund information systems. For example, mobile 
devices (whether firm-issued or personal devices) that allow employees 
to access sensitive data and systems may create additional and unique 
vulnerabilities, including when such devices are used internationally. 
An adviser or fund may consider limiting mobile or other devices 
approved for remote access to those issued by the firm or enrolled 
through a mobile device manager.\40\
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    \40\ Advisers and funds may wish to consider multi-factor 
authentication methods that are not based solely on SMS-delivery 
(e.g., text message delivery) of authentication codes, because such 
methods may provide less security than other non-SMS based multi-
factor authentication methods.
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    In addition, an adviser or fund should consider its practices with 
respect to securing remote network access and teleworking to define its 
network perimeter. Advisers and funds generally should implement 
detection security capabilities that can identify threats on a 
network's endpoints. For example, they may utilize software that 
monitors and inspects all files on an endpoint, such as a mobile phone 
or remote laptop, and identifies and blocks incoming unauthorized 
communications. Advisers and funds should also consider cybersecurity 
best practices in remote or telework locations. For example, if adviser 
or fund personnel work remotely at home or in a co-working space, 
additional cybersecurity risks, such as unsecured or less secure Wi-Fi, 
may be present, resulting in sensitive information being seen, gathered 
or stolen by unauthorized persons. Accordingly, firms should consider 
having policies and procedures for using any mobile or other devices 
approved for remote access, and implementing security measures and 
training on device policies and effective security practices.
c. Information Protection
    As an element of an adviser's or fund's reasonably designed 
policies and procedures, the proposed cybersecurity risk management 
rules would require advisers and funds to monitor information systems 
and protect information from unauthorized access or use, based on a 
periodic assessment of their information systems and the information 
that resides on the systems.\41\ Such assessment should take into 
account:
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    \41\ Proposed rules 206(4)-9(a)(3) and 38a-2(a)(3).
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    (1) The sensitivity level and importance of adviser or fund 
information to its business operations;
    (2) Whether any adviser or fund information is personal 
information;
    (3) Where and how adviser or fund information is accessed, stored 
and transmitted, including the monitoring of adviser or fund 
information in transmission;
    (4) Adviser or fund information systems access controls and malware 
protection; and
    (5) The potential effect of a cybersecurity incident involving 
adviser or fund information on the adviser or fund and its clients or 
shareholders, including the ability for the adviser to continue to 
provide investment advice or the fund to continue providing services.
    Advisers and funds generally should use the information obtained 
from this assessment to determine what methods to implement to prevent 
the unauthorized access or use of such data. For example, an adviser or 
fund could utilize processes such as encryption, network segmentation, 
and access controls to ensure that only authorized users have access to 
sensitive data or information or critical systems.
    An adviser or fund could also implement measures reasonably 
designed to identify suspicious behavior that include consistent 
monitoring of systems and personnel, such as the generation and review 
of activity logs, identification of potential anomalous activity, and 
escalation of issues to senior officers, as appropriate. Such a program 
may include rules to identify and block the transmission of sensitive 
data (e.g., account numbers, Social Security numbers, trade 
information, and source code) from leaving the organization. The 
program could also include testing of systems, including penetration 
tests. An adviser or fund could also consider measures to track the 
actions taken in response to findings from testing and monitoring, 
material changes to business operations or technology, or any other 
significant events. Appropriate methods for preventing the unauthorized 
use of data may differ depending on circumstances specific to an 
adviser or fund, such as the systems used, the relationship with 
service providers, or level of access granted to employees or 
contractors. Appropriate methods would also generally be expected to 
evolve with changes in technology and the increased sophistication of 
cybersecurity attacks.
    In addition, as part of an adviser's or fund's reasonably designed 
cybersecurity policies and procedures, an adviser or fund would be 
required to oversee any service providers that receive, maintain, or 
process adviser or fund information, or are otherwise permitted to 
access their information systems and any information residing therein. 
Advisers and funds would be required to document that the adviser or 
fund is requiring such service providers, pursuant to a written 
contract, to implement and maintain appropriate measures, including 
measures similar to the elements advisers and fund must address in 
their own cybersecurity policies and procedures, designed to protect 
adviser and fund information and systems. Such policies and procedures 
generally should also include other oversight measures, such as due 
diligence procedures or periodic contract review processes, that allow 
funds and advisers to assess whether, and help to ensure that, their 
agreements with service providers contain provisions that require 
service providers to implement and maintain appropriate measures 
designed to protect fund and adviser information and systems (e.g., 
notifying the adviser or fund of cybersecurity incidents that adversely 
affect an adviser's or fund's information, systems, or operations). 
Given the significant role played by service providers, we believe this 
proposed requirement would assist advisers and funds, when considering 
whether to hire or retain service providers, in assessing whether they 
are capable of appropriately protecting important information and 
systems.
d. Threat and Vulnerability Management
    As an element of an adviser's or fund's reasonably designed 
policies and procedures, the proposed cybersecurity risk management 
rules would require advisers and funds to detect, mitigate, and 
remediate cybersecurity threats and vulnerabilities with respect to 
adviser or

[[Page 13532]]

fund information and systems.\42\ Cybersecurity threats may result in 
unauthorized access to an adviser's or fund's information systems or 
any information residing therein that could lead to adverse 
consequences. Cybersecurity vulnerabilities present weaknesses in 
adviser or fund information systems that attackers may exploit. Because 
advisers and funds depend on information systems to process, store, and 
transmit sensitive information and to conduct business functions, it is 
essential for advisers and funds to manage cybersecurity threats and 
vulnerabilities effectively.
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    \42\ Proposed rules 206(4)-9(a)(4) and 38a-2(a)(4). See proposed 
definition of ``cybersecurity threat,'' supra footnote 32. 
``Cybersecurity vulnerability'' is proposed to be defined as ``a 
vulnerability in [an adviser's or a fund's] information systems, 
information system security procedures, or internal controls, 
including vulnerabilities in their design, maintenance, or 
implementation that, if exploited, could result in a cybersecurity 
incident.''
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    Detecting, mitigating, and remediating threats and vulnerabilities 
is essential to preventing cyber incidents before they occur. Advisers 
and funds generally should seek to detect cybersecurity threats and 
vulnerabilities through ongoing monitoring (e.g., comprehensive 
examinations and risk management processes). Ongoing monitoring of 
vulnerabilities could include, for example, conducting network, system, 
and application vulnerability assessments. This could include scans or 
reviews of internal systems, externally-facing systems, new systems, 
and systems used by service providers. Advisers and funds generally 
should also monitor industry and government sources for new threat and 
vulnerability information that may assist them in detecting 
cybersecurity threats and vulnerabilities.\43\
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    \43\ See supra footnote 35 and accompanying text; see also, 
e.g., CISA, National Cyber Awareness System--Alerts, available at 
https://us-cert.cisa.gov/ncas/alerts (last visited Feb. 2, 2022) 
(providing information about current security issues, 
vulnerabilities, and exploits).
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    In general, once a threat or vulnerability is identified, advisers 
and funds should consider how to mitigate and remediate the threat or 
vulnerability, with a view towards minimizing the window of opportunity 
for attackers to exploit vulnerable hardware and software. Methods for 
mitigating and remediating threats and vulnerabilities could include, 
for example, implementing a patch management program to ensure timely 
patching of hardware and software vulnerabilities and maintaining a 
process to track and address reports of vulnerabilities.\44\ An adviser 
or a fund should adopt policies and procedures that establish 
accountability for handling vulnerability reports, and processes for 
intake, assignment, escalation, remediation, and remediation testing. 
For example, an adviser or fund may use a vulnerability tracking system 
that includes severity ratings, and metrics for measuring timing for 
identification, analysis, and remediation of vulnerabilities.
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    \44\ Advisers and funds should also consider the vulnerabilities 
associated with ``end of life systems'' (i.e., systems in which 
software is no longer supported by the particular vendor and for 
which security patches are no longer issued).
---------------------------------------------------------------------------

    Advisers and funds should also consider role-specific cybersecurity 
threat and vulnerability and response training. For example, training 
could include secure system administration courses for IT 
professionals, vulnerability awareness and prevention training for web 
application developers, and social engineering awareness training for 
employees and executives. Advisers and funds that do not proactively 
address threats and discovered vulnerabilities face an increased 
likelihood of having their information systems, and the adviser or fund 
information residing therein, compromised.
e. Cybersecurity Incident Response and Recovery
    As an element of an adviser's or fund's reasonable policies and 
procedures, the proposed cybersecurity risk management rules would 
require advisers and funds to have measures to detect, respond to, and 
recover from a cybersecurity incident.\45\ These include policies and 
procedures that are reasonably designed to ensure:
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    \45\ Proposed rules 206(4)-9(a)(5) and 38a-2(a)(5).
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    (1) Continued operations of the fund or adviser;
    (2) The protection of adviser information systems and the fund or 
adviser information residing therein;
    (3) External and internal cybersecurity incident information 
sharing and communications; and
    (4) Reporting of significant cybersecurity incidents to the 
Commission.\46\
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    \46\ Incident and response recovery are common elements of many 
cybersecurity frameworks. See, e.g., NIST Framework, supra footnote 
24 (setting out incident response and recovery functions and 
categories, such as planning, improvements (e.g., lessons learned), 
and communication, in connection with an organization's risk 
management processes).
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    Finally, the proposed rules would require advisers and funds to 
prepare written documentation of any cybersecurity incident, including 
their response and recovery from such an incident.
    Cybersecurity incidents can lead to significant business 
disruptions, including losing the ability to communicate or the ability 
to access accounts or investments. These incidents also can lead to the 
unauthorized access or use of adviser or fund information. Having 
policies and procedures reasonably designed to respond to cybersecurity 
incidents can help mitigate these significant business disruptions. A 
cybersecurity program with a clear incident response plan designed to 
ensure continued operational capability, and the protection of, and 
access to, sensitive information and data, even if an adviser or fund 
loses access to its systems, would assist in mitigating the effects of 
a cybersecurity incident. Advisers and funds, therefore, may wish to 
consider maintaining physical copies of their incident response plans--
and other cybersecurity policies and procedures--to help ensure they 
can be accessed and implemented during the times they may be needed 
most.
    We believe it is critical for advisers and funds to focus on 
operational capability, including resiliency and capacity of 
information systems, so that they can continue to provide services to 
their clients and investors when facing disruptions resulting from 
cybersecurity incidents. The ability to recover critical systems or 
technologies, including those provided by service providers, in a 
timeframe that meets business requirements, is important to mitigate 
the consequences of cybersecurity incidents. An adviser or fund may 
consider implementing safeguards, such as backing up data, which can 
help facilitate a prompt recovery to allow an adviser or fund to resume 
operations following a cybersecurity incident that leads to the 
unauthorized access or use of adviser or fund information.\47\
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    \47\ Because having easily accessible, accurate backup data 
could be critical when responding to and recovering from a 
cybersecurity incident, advisers and funds may wish to consider 
storing sensitive backup data in immutable, multi-tiered online and 
offline storage systems.
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    An incident response plan should also designate adviser or fund 
personnel to perform specific roles in the case of a cybersecurity 
incident. This would entail identifying and/or hiring personnel or 
third parties who have the requisite cybersecurity and recovery 
expertise (or are able to coordinate effectively with outside experts) 
as well as identifying personnel who should be kept informed throughout 
the response and recovery process. In addition, an incident response 
plan should generally have a clear escalation protocol to ensure that 
an adviser's and fund's

[[Page 13533]]

senior officers, including appropriate legal and compliance personnel, 
and a fund's board (as applicable) receive necessary information 
regarding cybersecurity incidents on a timely basis.
    Moreover, under proposed rule 204-6 and amendments to Form ADV Part 
2A, as well as amendments to funds' disclosure requirements, advisers 
and funds would have to report any significant cybersecurity incidents 
to the Commission and make appropriate disclosures to their clients and 
investors.\48\ Accordingly, advisers and funds must include provisions 
in their policies and procedures designed to ensure their compliance 
with their reporting and disclosure obligations as part of their 
cybersecurity incident response.\49\
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    \48\ See proposed rule 204-6; see also infra sections II.B and 
C.
    \49\ Although an adviser's or a fund's initial focus may be on 
protecting its clients and investors, it may also wish to implement 
a process to determine promptly whether and how to contact local and 
Federal law enforcement authorities, such as the FBI, about an 
incident. The FBI has instructed individuals and organizations to 
contact their nearest FBI field office to report cybersecurity 
incidents or to report them online at https://www.ic3.gov/Home/FileComplaint. See also FBI, What We Investigate, Cyber Crime, 
available at https://www.fbi.gov/investigate/cyber (last visited 
Feb. 2, 2022).
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    Advisers and funds should also consider testing their incident 
response plans to assess their efficacy and to determine whether any 
changes are necessary, for example, through tabletop or full-scale 
exercises. As part of the annual review of their policies and 
procedures, advisers and funds are required to review and assess the 
design and effectiveness of the policies and procedures and should 
generally consider amendments to correct any identified weaknesses in 
their design or effectiveness.\50\
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    \50\ See proposed rules 206(4)-9(b) and 38a-2(b).
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    We request comment on the proposed cybersecurity risk management 
rules:
    3. Are the proposed elements of the cybersecurity policies and 
procedures appropriate? Should we modify or delete any of the proposed 
elements? Why or why not? For example, should advisers and funds be 
required, as proposed, to conduct a risk assessment as part of their 
cybersecurity policies and procedures? Should we require that a risk 
assessment include specific components (e.g., identification and 
documentation of vulnerabilities and threats, identification of the 
business effect of threats and likelihood of incidents occurring, 
identification and prioritization of responses), or require written 
documentation for risk assessments? Should the rules require policies 
and procedures related to user security and access, as well as 
information protection?
    4. Should there be additional or more specific requirements for who 
would implement an adviser's or fund's cybersecurity program? For 
example, should we require an adviser or fund to specify an individual, 
such as a chief information security officer, or group of individuals 
as responsible for implementing the program or parts thereof? Why or 
why not? If so, should such an individual or group of individuals be 
required to have certain qualifications or experience related to 
cybersecurity, and if so, what type of qualifications or experience 
should be required?
    5. The Investment Company Act compliance rule prohibits the fund's 
officers, directors, employees, adviser, principal underwriter, or any 
person acting under the direction of these persons, from directly or 
indirectly taking any action to coerce, manipulate, mislead or 
fraudulently influence the fund's chief compliance officer in the 
performance of her responsibilities under the rule in order to protect 
the chief compliance officer from undue influence by those seeking to 
conceal non-compliance with the Federal securities laws. Should we 
adopt a similar prohibition for those administering a fund's or 
adviser's cybersecurity policies and procedures? Why or why not?
    6. Would advisers and funds expect to use sub-advisers or other 
third parties to administer their cybersecurity programs? If so, to 
what extent and in what manner? Should there be additional or specific 
requirements for advisers and funds that delegate cybersecurity 
management responsibilities to a sub-adviser or third party? If so, 
what requirements and why?
    7. Should we include any other cybersecurity program administration 
requirements? If so, what? For example, should we include a requirement 
for training staff responsible for day-to-day management of the 
program? If we require such training, should that involve setting 
minimum qualifications for staff responsible for carrying out the 
requirements of the program? Why or why not?
    8. Are the proposed rules' definitions appropriate and clear? If 
not, how could these definitions be clarified within the context of the 
proposed rules? Should any be modified or eliminated? Are any of them 
proposed terms too broad or too narrow? Are there other terms that we 
should define?
    9. What are best practices that commenters have developed or are 
aware of with respect to the types of measures that must be implemented 
as part of the proposed cybersecurity risk management rules or, 
alternatively, are there any measures that commenters have found to be 
ineffective or relatively less effective?
    10. What user measures do advisers currently have for using mobile 
devices or other ways to access adviser or fund information systems 
remotely? Should we require advisers and funds to implement specific 
measures to secure remote access technologies?
    11. Do advisers and funds currently conduct periodic assessments of 
their information systems to monitor and protect information from 
unauthorized use? If so, how often do advisers and funds conduct such 
assessments? Should the proposed rules specify a minimum assessment 
frequency, and if so, what should that frequency be?
    12. Other than what is required to be reported under proposed rule 
204-6, should we require any specific measures within an adviser's 
policies and procedures with respect to cybersecurity incident response 
and recovery?
    13. Should we require that advisers and funds respond to 
cybersecurity incidents within a specific timeframe? If so, what would 
be an appropriate timeframe?
    14. Should we require advisers and funds to assess the compliance 
of all service providers that receive, maintain, or process adviser or 
fund information, or are otherwise permitted to access adviser or fund 
information systems and any adviser or fund information residing 
therein, with these proposed cybersecurity risk management rules? 
Should we expand or narrow this set of service providers? For example, 
with respect to funds, should this requirement only apply to ``named 
service providers'' as discussed above?
    15. How do advisers and funds currently consider cybersecurity 
risks when choosing third-party service providers? What due diligence 
with respect to cybersecurity is involved in selecting a service 
provider?
    16. How do advisers and funds reduce the risk of a cybersecurity 
incident transferring from the service provider (or a fourth party 
(i.e., a service provider used by one of an adviser's or fund's service 
providers)) to the adviser today?
    17. Should we require advisers' and funds' cybersecurity policies 
and procedures to require oversight of certain service providers, 
including that such service providers implement and maintain 
appropriate measures designed to protect a fund's or an adviser's

[[Page 13534]]

information and information systems pursuant to written contract? Do 
advisers and funds currently include specific cybersecurity and data 
protection provisions in their agreements with service providers? If 
so, what provisions are the most important? Do they address potential 
cybersecurity risks that could result from a cybersecurity incident 
occurring at a fourth party? Should any contractual provisions be 
specifically required as part of these rules? Should this requirement 
apply to a more limited subset of service providers? If so, which 
service providers? For example, should we require funds to include such 
provisions in their agreements with advisers that would be subject to 
proposed rule 206(4)-9? Are there other ways we should require 
protective actions by service providers?
    18. Do advisers or funds currently consider their or their service 
providers' insurance policies, if any, when responding to cybersecurity 
incidents? Why or why not?
    19. Are advisers and funds currently able to obtain information 
from or about their service providers' cybersecurity practices (e.g., 
policies, procedures, and controls) to effectively assess them? What, 
if any, challenges do advisers and funds currently have in obtaining 
such information? Are certain advisers or funds (e.g., smaller or 
larger firms) more easily able to obtain such information?
2. Annual Review and Required Written Reports
    The proposed cybersecurity risk management rules would require 
advisers and funds to review their cybersecurity policies and 
procedures no less frequently than annually.\51\ Advisers and funds 
must, at least annually: (1) Review and assess the design and 
effectiveness of the cybersecurity policies and procedures, including 
whether they reflect changes in cybersecurity risk over the time period 
covered by the review; and (2) prepare a written report. The report 
would, at a minimum, describe the annual review, assessment, and any 
control tests performed, explain the results thereof, document any 
cybersecurity incident that occurred since the date of the last report, 
and discuss any material changes to the policies and procedures since 
the date of the last report.
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    \51\ Proposed rules 206(4)-9(b) and 38a-2(b). As discussed 
below, the proposed rules would require funds' boards of directors 
to review funds' required written reports. See infra section II.A.3.
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    The annual review requirement is designed to require advisers and 
funds to evaluate whether their cybersecurity policies and procedures 
continue to work as designed and whether changes are needed to assure 
their continued effectiveness, including oversight of any delegated 
responsibilities. The written report should be prepared or overseen by 
the persons who administer the adviser's or fund's cybersecurity 
policies and procedures and should consider any risk assessments 
performed by the adviser or fund. We recognize that a cybersecurity 
expert may provide needed expertise and perspective to the annual 
review, but additional adviser or fund personnel generally should also 
participate to provide their organizational perspective, as well as 
ensure accountability and appropriate resources.
    We request comment on the proposed requirements for a review and 
assessment of the policies and procedures and a related written report:
    20. Should there be additional, fewer, or more specific 
requirements for the annual review or written report? Why or why not?
    21. Is the proposed requirement for advisers and funds to review 
their cybersecurity policies and procedures at least annually 
appropriate? Is this minimum review period too long or too short? Why 
or why not?
    22. Should the annual review include whether the cybersecurity 
policies and procedures reflect changes in cybersecurity risk over the 
time period covered by the review? Why or why not?
    23. Should management, a cybersecurity officer, or a centralized 
committee be designated to conduct the annual review and prepare the 
report? Would additional specificity promote accountability and 
adequate resources? Should relevant expertise be required? Why or why 
not?
    24. Would the proposed annual review raise any particular 
challenges for smaller or different types of advisers or funds? If so, 
what could we do to help mitigate these challenges?
    25. Are there any conflicts of interest if the same adviser or fund 
officers implement the cybersecurity program and also conduct the 
annual review? How can those conflicts be mitigated or eliminated? 
Should advisers and funds be required to have their cybersecurity 
policies and procedures periodically audited by an independent third 
party to assess their design and effectiveness? Why or why not? If so, 
are there particular cybersecurity-focused audits or assessments that 
should be required, and should any such audits or assessments be 
required to be performed by particular professionals (e.g., certified 
public accountants)? Would there be any challenges in obtaining such 
audits, particularly for smaller advisers or funds?
3. Fund Board Oversight
    Proposed rule 38a-2 would require a fund's board of directors, 
including a majority of its independent directors, initially to approve 
the fund's cybersecurity policies and procedures, as well as to review 
the written report on cybersecurity incidents and material changes to 
the fund's cybersecurity policies and procedures that, as described 
above, would be required to be prepared at least annually.\52\ These 
requirements are designed both to facilitate the board's oversight of 
the fund's cybersecurity program and provide accountability for the 
administration of the program. These requirements also would be 
consistent with a board's duty to oversee other aspects of the 
management and operations of a fund.\53\ Board oversight should not be 
a passive activity, and the requirements for the board to initially 
approve the fund's cybersecurity policies and procedures and thereafter 
to review the required written reports are designed to assist directors 
in understanding a fund's cybersecurity risk management policies and 
procedures, as well as the risks they are designed to address.
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    \52\ Proposed rule 38a-2(c). The board may satisfy its 
obligation to approve a fund's cybersecurity policies and procedures 
by reviewing summaries of those policies and procedures. This is 
similar to how directors may satisfy their obligations under rule 
38a-1. See Compliance Program Release, supra footnote 10, at n.33.
    \53\ See, e.g., rule 38a-1 under the Investment Company Act; 
Compliance Program Release, supra footnote 10, at n.31.
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    A fund's independent directors play an important role in overseeing 
fund activities.\54\ We believe this should include reviewing and 
initially approving a fund's cybersecurity policies and procedures to 
help ensure that the fund's adviser has committed sufficient resources 
to the activity. Directors may satisfy their obligation with respect to 
the initial approval by reviewing summaries of the cybersecurity 
program prepared by persons who administer the fund's

[[Page 13535]]

cybersecurity policies and procedures. Any documentation provided to 
the board with respect to the initial approval should generally serve 
to familiarize directors with the salient features of the program and 
provide them with an understanding of the operation and administration 
of the program. In considering whether to approve the policies and 
procedures, a board may wish to consider the fund's exposure to 
cybersecurity risks, including those of its service providers, as 
appropriate, and any recent threats and incidents to which the fund may 
have been subject.
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    \54\ Fund directors are commonly referred to as ``independent 
directors'' if they are not ``interested persons'' of the fund. The 
term ``interested person'' is defined in section 2(a)(19) of the 
Investment Company Act [15 U.S.C. 80a-2(a)(19)]. If the fund is a 
unit investment trust, the fund's principal underwriter or depositor 
must approve the policies and procedures. Proposed rule 38a-2(d). 
Fund boards, including a majority of independent directors, approve 
fund advisory contracts, among other oversight functions. See 
Section 15(c) of the Investment Company Act [15 U.S.C. 80a-15(c)]. 
See also rule 38a-1 under the Investment Company Act.
---------------------------------------------------------------------------

    The required written reports also would provide fund directors with 
information necessary to ask questions and seek relevant information 
regarding the effectiveness of the program and its implementation, and 
whether the fund has adequate resources with respect to cybersecurity 
matters, including access to cybersecurity expertise. We anticipate 
that a fund's board's review of the written reports would naturally 
involve inquiries about cybersecurity risks arising from the program 
and any incidents that have occurred.
    Boards should also consider what level of oversight of the fund's 
service providers is appropriate with respect to cybersecurity based on 
the fund's operations. For example, a board may review the service 
provider contract and risk assessment (or summaries thereof) of any 
service providers that receive, maintain or process fund information, 
or that are permitted to access their information systems, including 
the information residing therein and the cybersecurity risks they 
present, in the required written reports. Generally, the board should 
follow up regarding any questions on the contracts or weaknesses found 
in the risk assessments as well as the steps the fund has taken to 
address the fund's overall cybersecurity risks, including as those 
risks may change over time.
    We request comment on the proposed initial board approval of the 
fund's cybersecurity policies and procedures, as well as the proposed 
requirement for the board to review the written reports that would be 
prepared at least annually under the proposed rules:
    26. Should the Commission require a fund's board, including a 
majority of its independent directors, initially to approve the 
cybersecurity policies and procedures, as proposed? As an alternative, 
should the Commission require approval by the board, but not specify 
that this approval also must include approval by a majority of the 
fund's directors who are not interested persons of the fund? Why or why 
not?
    27. As part of their oversight function, should fund boards also be 
required to approve the cybersecurity policies and procedures of 
certain of the fund's service providers (e.g., its investment adviser, 
principal underwriter, administrator, and transfer agent)? Why or why 
not? If so, which service providers should be included and why?
    28. Should a fund's board, or some designee such as a sub-committee 
or cybersecurity expert, have oversight over the fund's risk 
assessments of service providers? Why or why not?
    29. Should the Commission require boards to base their approval of 
cybersecurity policies and procedures on any particular finding, for 
example, that that they are reasonably designed to prevent violations 
of the Federal securities laws or reasonably designed to address the 
fund's cybersecurity risks? Why or why not?
    30. Does the release provide adequate guidance to funds' boards 
regarding their initial approval of the cybersecurity policies and 
procedures? Why or why not? Should the Commission provide any 
additional guidance in this regard? If so, what guidance would assist 
boards in their approval process? For example, should the Commission 
provide additional guidance on documentation provided to the board with 
respect to the initial approval?
    31. Is the proposed requirement for fund boards to review the 
required written reports appropriate? The proposed rules would require 
these reports to be prepared at least annually, and a fund's board 
would be required to review each such report that is prepared. Should 
the Commission instead require periodic reviews of a report on the 
fund's cybersecurity risk management policies and procedures, or 
specify a shorter or longer frequency for review of such a report? Why 
or why not?
    32. Should the Commission require boards to approve any material 
changes to the fund's cybersecurity policies and procedures instead of 
reviewing a written report that discusses such changes? Why or why not?
4. Recordkeeping
    As part of the proposed cybersecurity risk management rules, we are 
proposing new recordkeeping requirements under the Advisers Act and 
Investment Company Act. Advisers Act rule 204-2, the books and records 
rule, sets forth requirements for maintaining, making, and retaining 
books and records relating to an adviser's investment advisory 
business. We are proposing to amend this rule to require advisers to 
maintain: (1) A copy of their cybersecurity policies and procedures 
formulated pursuant to proposed rule 206(4)-9 that are in effect, or at 
any time within the past five years were in effect; (2) a copy of the 
adviser's written report documenting the annual review of its 
cybersecurity policies and procedures pursuant to proposed rule 206(4)-
9 in the last five years; (3) a copy of any Form ADV-C filed by the 
adviser under rule 204-6 in the last five years; (4) records 
documenting the occurrence of any cybersecurity incident, including any 
records related to any response and recovery from such an incident, in 
the last five years; and (5) records documenting an adviser's 
cybersecurity risk assessment in the last five years.\55\ Records 
documenting the occurrence of a cybersecurity incident may include 
event or incident logs, as well as longer descriptions depending on the 
nature and scope of the incident. These proposed amendments would help 
facilitate the Commission's inspection and enforcement capabilities.
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    \55\ See proposed rule 204-2(a)(17)(i), (iv) through (vii).
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    Similarly, proposed rule 38a-2 under the Investment Company Act 
would require that a fund maintain: (1) A copy of its cybersecurity 
policies and procedures that are in effect, or at any time within the 
last five years were in effect; (2) copies of written reports provided 
to its board; (3) records documenting the fund's annual review of its 
cybersecurity policies and procedures; (4) any report of a significant 
fund cybersecurity incident provided to the Commission by its adviser; 
(5) records documenting the occurrence of any cybersecurity incident, 
including any records related to any response and recovery from such an 
incident; and (6) records documenting the fund's cybersecurity risk 
assessment.\56\ These records would have to be maintained for five 
years, the first two years in an easily accessible place.\57\
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    \56\ See proposed rule 38a-2(e). If the fund is a unit 
investment trust, copies of materials provided to its principal 
underwriter or depositor should be maintained for at least five 
years after the end of the fiscal year in which the documents were 
provided.
    \57\ See proposed rule 38a-2(e). A copy of the fund's policies 
and procedures that are in effect, or were at any time within the 
past five years in effect, must be kept in an easily accessible 
place for five years. See proposed rule 38a-2(e)(1).
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    We request comments on the proposed recordkeeping requirements:
    33. Are the records that we propose to require advisers and funds 
to keep relating to the proposed cybersecurity risk management rules 
appropriate? Why or why not? Should advisers and

[[Page 13536]]

funds have to keep any additional or fewer records, and if so, what 
records?
    34. Do advisers or funds have concerns it will be difficult to 
retain any of documents? Could this place an undue burden on smaller 
advisers or funds?

B. Reporting of Significant Cybersecurity Incidents to the Commission

    We are proposing a new reporting rule requirement and related 
proposed Form ADV-C. Advisers would be required to report significant 
cybersecurity incidents to the Commission, including on behalf of a 
client that is a registered investment company or business development 
company, or a private fund (referred to in this release as ``covered 
clients'') that experiences a significant cybersecurity incident. 
Specifically, under proposed rule 204-6, any adviser registered or 
required to be registered with the Commission as an investment adviser 
would be required to submit proposed Form ADV-C promptly, but in no 
event more than 48 hours, after having a reasonable basis to conclude 
that a significant adviser cybersecurity incident or a significant fund 
cybersecurity incident had occurred or is occurring.\58\ Form ADV-C 
would include both general and specific questions related to the 
significant cybersecurity incident, such as the nature and scope of the 
incident as well as whether any disclosure has been made to any clients 
and/or investors.\59\ Proposed rule 204-6 would also require advisers 
to amend any previously filed Form ADV-C promptly, but in no event more 
than 48 hours, after information reported on the form becomes 
materially inaccurate; if new material information about a previously 
reported incident is discovered; and after resolving a previously 
reported incident or closing an internal investigation pertaining to a 
previously disclosed incident.
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    \58\ See proposed rules 204-6 and 38a-2.
    \59\ See proposed Form ADV-C.
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    This reporting would help us in our efforts to protect investors in 
connection with cybersecurity incidents by providing prompt notice of 
these incidents. We believe this proposed reporting would allow the 
Commission and its staff to understand the nature and extent of a 
particular cybersecurity incident and the firm's response to the 
incident. As stated above, this reporting would not only help the 
Commission monitor and evaluate the effects of the cybersecurity 
incident on an adviser and its clients or a fund and its investors, but 
also assess the potential systemic risks affecting financial markets 
more broadly. For example, these reports could assist the Commission in 
identifying patterns and trends across registrants, including 
widespread cybersecurity incidents affecting multiple advisers and 
funds.
1. Proposed Rule 204-6
    Proposed rule 204-6 would require investment advisers to report on 
Form ADV-C within 48 hours after having a reasonable basis to conclude 
that a significant adviser cybersecurity incident or a significant fund 
cybersecurity incident occurred or is occurring. The rule would define 
a significant adviser cybersecurity incident as a cybersecurity 
incident, or a group of related incidents, that significantly disrupts 
or degrades the adviser's ability, or the ability of a private fund 
client of the adviser, to maintain critical operations, or leads to the 
unauthorized access or use of adviser information, where the 
unauthorized access or use of such information results in: (1) 
Substantial harm to the adviser, or (2) substantial harm to a client, 
or an investor in a private fund, whose information was accessed.\60\
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    \60\ See proposed rule 204-6(b); see also proposed rule 206(4)-
9. This proposed definition is substantially similar to the proposed 
definition of ``significant fund cybersecurity incident'' for funds. 
We view critical operations as including investment, trading, 
reporting, and risk management of an adviser or fund as well as 
operating in accordance with the Federal securities laws.
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    The first prong of the definition of significant adviser 
cybersecurity incident includes a cybersecurity incident, or a group of 
related cybersecurity incidents, that significantly disrupts or 
degrades the adviser's ability, or the ability of a private fund client 
of the adviser, to maintain critical operations. If an adviser were 
unable to maintain critical operations, such as the ability to 
implement its investment strategy, process or record transactions, or 
communicate with clients, there is potential for substantial loss to 
both the adviser and its clients. For example, if an adviser's internal 
computer systems, including its websites or email function, are shut 
down due to malware, it could have a significant effect on the ability 
for the adviser to continue to provide advisory services and for the 
adviser's clients to access their investments or communication with the 
adviser. In such a situation, it is possible that the adviser's 
employees would not be able to access the computer systems they need to 
make trades or manage a client's portfolio, and advisory clients may 
not be able to access their accounts through the adviser's web page or 
other channels that were affected by the malware.\61\ Depending on the 
type of malware, this could lock up advisory client records, among 
other things, and affect an adviser's decision-making and investments 
for days, or even weeks. This in turn could potentially affect the 
market, particularly if other advisers are similarly targeted with the 
same malware. Reporting to the Commission the occurrence of such an 
incident, we believe, could help the Commission monitor and evaluate 
the effects of the event on an adviser or fund and its clients and 
investors, and the broader financial markets. For example, reporting by 
a large adviser or a series of advisers of similar occurrences could 
signal a market-wide event requiring Commission attention and, if 
necessary, coordination with other governmental agencies.
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    \61\ Account access could also be affected by denial of service 
(``DoS'') attacks that disrupt customer access for extended periods 
of time. We understand that DoS attacks are often accompanied by 
ransom demands to stop any attack and/or are used as a diversionary 
measure to exfiltrate (or remove) information or probe further into 
business networks.
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    Under the proposed rules, a significant adviser cybersecurity 
incident would also include significant cybersecurity incidents 
affecting private fund clients of an adviser. Given that a 
cybersecurity incident that significantly disrupts or degrades the 
ability of a private fund to maintain its critical operations could 
potentially cause similar substantial losses to the adviser and private 
fund investors, and that private funds play a significant role in the 
financial industry, we believe that such incidents should be reported 
as well.
    The second prong of the definition of a significant adviser 
cybersecurity incident would include a cybersecurity incident that 
leads to unauthorized access or use of adviser information, where the 
unauthorized access or use of such information results in: (1) 
Substantial harm to the adviser, or (2) substantial harm to a client, 
or an investor in a private fund, whose information was accessed.\62\ 
Substantial harm to an adviser as the result of a cybersecurity 
incident in which adviser information is compromised could include, 
among other things, significant monetary loss or theft of intellectual

[[Page 13537]]

property. Substantial harm to a client or an investor in a private fund 
as the result of a cybersecurity incident in which adviser information 
is compromised could include, among other things, significant monetary 
loss or the theft of personally identifiable or proprietary 
information.\63\ After gaining access to an adviser's or a fund's 
systems, an attacker could use this access to disclose, modify, delete 
or destroy adviser, fund, or client data, as well as steal intellectual 
property and client assets. Any of these actions could result in 
substantial harm to the adviser and/or to the client.
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    \62\ Proposed rule 204-6(b). There may be times where an 
incident meets both prongs. For example, a breach of an adviser's 
internal computer systems may affect the adviser's ability to 
maintain critical operations as well as result in substantial harm 
to the adviser, its clients, or investors in private fund clients of 
the adviser.
    \63\ When considering their obligations under these proposed 
reporting and risk management requirements, advisers and funds 
should also keep in mind their obligations with respect to 
safeguarding client information, such as those required by 
Regulation S-P and under an adviser's fiduciary duty.
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    In addition to reporting significant cybersecurity incidents for 
itself and its private fund clients, an adviser would also have to 
report significant fund cybersecurity incidents on Form ADV-C for its 
registered fund and BDC clients. Similar to a significant adviser 
cybersecurity incident, a significant fund cybersecurity incident has 
two prongs, that it: (1) Significantly disrupts or degrades the fund's 
ability to maintain critical operations, or (2) leads to the 
unauthorized access or use of fund information, which results in 
substantial harm to the fund, or to the investor whose information was 
accessed.\64\ Significant fund cybersecurity incidents may include 
cyber intruders interfering with a fund's ability to redeem investors, 
calculate NAV or otherwise conduct its business. Other significant fund 
cybersecurity incidents may involve the theft of fund information, such 
as non-public portfolio holdings, or personally identifiable 
information of the fund's employees, directors or shareholders.
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    \64\ See proposed rules 204-6(b) and 38a-2.
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    In order to assist the adviser in reporting a significant fund 
cybersecurity incident, a fund's cybersecurity policies and procedures 
must address the proposed notification requirement to the Commission on 
Form ADV-C. Generally, these provisions of the policies and procedures 
should address communications between the person(s) who administer the 
fund's cybersecurity policies and procedures and the adviser about 
cybersecurity incidents, including those affecting the fund's service 
providers.
    An adviser would have to report within 48 hours after having a 
reasonable basis to conclude that any significant adviser or fund 
cybersecurity incident has occurred or is occurring with respect to 
itself or any of its clients that are covered clients.\65\ In other 
words, an adviser must report within 48 hours after having a reasonable 
basis to conclude that an incident has occurred or is occurring, and 
not after definitively concluding that an incident has occurred or is 
occurring. The 48-hour period would give an adviser time to confirm its 
preliminary analysis, and prepare the report while still providing the 
Commission with timely notice about the incident.
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    \65\ We believe that an adviser would generally gather relevant 
information and perform an initial analysis to assess whether to 
reasonably conclude that a cybersecurity incident has occurred or is 
occurring and follow its own internal communication and escalation 
protocols concerning such an incident before providing notification 
of any significant cybersecurity incident to the Commission.
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    We are also requiring that advisers amend a previously filed Form 
ADV-C promptly, but in no event more than 48 hours, in connection with 
certain incidents. Advisers would be required to update the Commission 
by filing an amended Form ADV-C if any previously reported information 
about a significant cybersecurity incident becomes materially 
inaccurate or if the adviser discovers new material information related 
to an incident.\66\ We are also proposing to require advisers to file a 
final Form ADV-C amendment after the resolution of any significant 
cybersecurity incident or after closing any internal investigation 
related to a previously disclosed incident.\67\ We believe requiring 
advisers to amend Form ADV-C in these circumstances would help to 
ensure the Commission has accurate and timely information with respect 
to significant adviser and fund cybersecurity incidents to allocate 
resources better when evaluating and responding to these incidents. 
While advisers and funds have other incentives to investigate and 
remediate significant cybersecurity incidents, we believe these ongoing 
reporting obligations would further encourage advisers and funds to 
take the steps necessary to do so completely. Moreover, based on our 
experience with other regulatory filings, we believe it is likely that 
an adviser could regularly engage in a productive dialogue with 
applicable Commission staff after the reporting of an incident and the 
filing of any amendments to Form ADV-C, and, as part of that dialogue, 
could provide Commission staff with any additional information as 
necessary, depending on the facts and circumstances of the incident and 
the progress in resolving it.
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    \66\ See proposed rule 204-6(a)(2)(i) and (ii).
    \67\ See proposed rule 204-6(a)(2)(iii).
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    We request comments on the proposed reporting rule 204-6 and the 
reporting thresholds.
    35. Should we require advisers to report significant cybersecurity 
incidents of the adviser and covered clients with the Commission? Why 
or why not? Alternatively, should we exclude incidents that affect 
private fund clients of an adviser? Should we exclude registered funds 
and BDCs as covered clients? If so, should we require them to report to 
the Commission in another manner? How should the Commission address 
funds that are internally managed? Should we require a separate 
reporting requirement under the Investment Company Act for such funds? 
If so, should it be substantially similar to the proposed reporting 
requirements under rule 204-6?
    36. Should we require advisers to report on significant 
cybersecurity incidents of other pooled investment vehicle clients? For 
example, should we require advisers to report on significant 
cybersecurity incidents of pooled investment vehicles that rely on the 
exemption from the definition of ``investment company'' in section 
3(c)(5)(C) of that Act? \68\
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    \68\ Section 3(c)(5)(C) of the Investment Company Act provides 
an exclusion from the definition of investment company for any 
person who is not engaged in the business of issuing redeemable 
securities, face-amount certificates of the installment type or 
periodic payment plan certificates, and who is primarily engaged in 
the business of purchasing or otherwise acquiring mortgages and 
other liens on and interests in real estate.
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    37. Who should be responsible for having a reasonable basis to 
conclude that there has been a significant adviser cybersecurity 
incident or significant fund cybersecurity incident or that one is 
occurring? Should the Commission require a person or role be designated 
to be the one responsible for gathering relevant information about the 
incident and having a reasonable basis to conclude that such an 
incident occurred?
    38. At what point would one conclude that there has been a 
significant adviser cybersecurity incident or significant fund 
cybersecurity incident? Would it be after some reasonable period of 
assessment or some other point?
    39. Are the proposed definitions of significant adviser 
cybersecurity incident and significant fund cybersecurity incident 
appropriate and clear? If not, how could they be made clearer? Should 
the term critical operations be defined for advisers and funds, and if 
so what adviser and fund

[[Page 13538]]

operations should be considered critical? For example, should critical 
operations include the investment, trading, valuation, reporting, and 
risk management of the adviser or fund as well as the operation of the 
adviser or fund in accordance with the Federal securities laws? 
Alternatively, should there be a quantitative threshold at which 
operations must be impaired by a cybersecurity incident before an 
adviser's or fund's obligation to report is triggered (for example, 
maintaining operations at minimally 80% of current levels on any 
function)? If so, what should that threshold be and how should an 
adviser or fund measure its operational capacity to determine whether 
that threshold has been crossed?
    40. Is the proposed ``substantial harm'' threshold under the 
definition of significant adviser and fund cybersecurity incident 
appropriate? Should we also include ``inconvenience'' as a threshold 
with respect to shareholders, clients and investors? In other words, 
should we also require reporting if the unauthorized access or use of 
such information results in substantial harm or inconvenience to a 
shareholder, client, or an investor in a private fund, whose 
information was accessed?
    41. Do commenters believe requiring the report 48 hours after 
having a reasonable basis to conclude that there has been a significant 
adviser cybersecurity incident or significant fund cybersecurity 
incident or that one is occurring is appropriate? If not, is it too 
long or too short? Should we require a specific time frame at all? Do 
commenters believe that ``a reasonable basis'' is a clear standard? If 
not, what other standard should we use?
    42. Should we provide for one or more exceptions to the reporting 
of significant cybersecurity incidents, for example for smaller 
advisers or funds? Are there ways, other than the filing of Form ADV-C, 
we should require advisers to notify the Commission regarding 
significant cybersecurity incidents?
    43. The Commission recently proposed current reporting requirements 
that would require large hedge fund advisers to file a current report 
on Form PF within one business day of the occurrence of a reporting 
events at a qualifying hedge fund that they advise.\69\ The proposed 
reporting events include a significant disruption or degradation of the 
reporting fund's key operations, which could include a significant 
cybersecurity incident. If the amendments to Form PF are adopted, 
should the Commission provide an exception to the Form ADV-C filing 
requirements when an adviser has reported the incident as a current 
report on Form PF? Alternatively, should the Commission provide an 
exception to the Form PF current reporting requirements if the adviser 
filed a Form ADV-C in connection with the reporting event?
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    \69\ See Amendments to Form PF to Require Current Reporting and 
Amend Reporting Requirements for Large Private Equity Advisers and 
Large Liquidity Fund Advisers, Investment Advisers Act Release No. 
5950 (Jan. 26, 2022).
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    44. Should advisers be required to provide the Commission with 
ongoing reporting about significant cybersecurity incidents? If so, are 
the proposed requirements to amend Form ADV-C promptly, but in no event 
more than within 48 hours, sufficient for such reporting? Is this 
timeframe appropriate? Should we require a shorter or longer timeframe? 
Is the materiality threshold for ongoing reports appropriate? Should we 
require another mechanism be used for ongoing reporting? For example, 
should advisers instead be required to provide periodic reports about 
significant cybersecurity incidents that are ongoing? If so, how often 
should such reports be required (e.g., every 30 days) and what 
information should advisers be required to provide?
2. Form ADV-C
    The Commission is proposing a new Form ADV-C to require an adviser 
to provide information regarding a significant cybersecurity incident 
in a structured format through a series of check-the-box and fill-in-
the-blank questions. We believe that collecting information in a 
structured format would enhance our staff's ability to carry out our 
risk-based examination program and other risk assessment and monitoring 
activities effectively. By enhancing comparability across multiple 
filers, the structured format would also assist our staff in assessing 
trends in cybersecurity incidents across the industry and accordingly 
better protect investors from any patterned cybersecurity threats.
    The proposed rule would require Form ADV-C to be filed 
electronically with the Commission through the Investment Adviser 
Registration Depository (``IARD'') platform. We considered proposing 
other electronic filing platforms, either maintained by the Commission 
or by a third-party contractor. However, we believe that there would 
likely be efficiencies realized if the IARD platform is expanded for 
this purpose, such as the possible interconnectivity of Form ADV 
filings and Form ADV-C filings, and possible ease of filing with one 
password. Moreover, the IARD platform is a familiar filing system for 
advisers.
    Proposed Form ADV-C would require advisers to report certain 
information regarding a significant cybersecurity incident in order to 
allow the Commission and its staff to understand the nature and extent 
of the cybersecurity incident and the adviser's response to the 
incident.
    Items 1 through 4 request the following information about the 
adviser: (1) Investment Advisers Act SEC File Number; (2) full name of 
investment adviser; (3) name under which business is conducted; (4) 
address of principal place of business; and (5) contact information for 
an individual with respect to the significant cybersecurity incident 
being reported: (name, title, address if different from above, phone, 
email address). These items are designed to provide the Commission with 
basic identifying information regarding the adviser. We anticipate that 
the IARD system will pre-populate this information, other than the 
contact information for the individual whom should be contacted for 
additional information about the incident being reported.
    Items 6 through 9 would elicit whether the adviser is reporting a 
significant adviser cybersecurity incident or a significant fund 
cybersecurity incident (or both), the approximate date the incident 
occurred, the approximate date the incident was discovered, and whether 
the incident is ongoing. This information would provide the Commission 
with important background information regarding the incident. This 
information would also inform the Commission if the incident presents 
an ongoing threat and assist the Commission in prioritizing its 
outreach to advisers following multiple Form ADV-C filings in the same 
time period.
    Item 10 would require the adviser to disclose whether law 
enforcement or a government agency has been notified about the 
cybersecurity incident. In assessing the risk to the broader financial 
market, it may be important for the Commission to coordinate with other 
governmental authorities. Therefore, this disclosure would inform the 
Commission whether an adviser or fund has already notified local and 
Federal law enforcement authorities, such as the FBI, or a local or 
Federal government agency, such as the Department of Homeland 
Security's Cybersecurity and Infrastructure Security Agency, about an 
incident.
    Items 11 through 15 would require the adviser to provide the 
Commission with substantive information about the

[[Page 13539]]

nature and scope of the incident being reported, including any actions 
and planned actions to recover from the incident; whether any data was 
stolen altered, or accessed or used for any other unauthorized purpose; 
and whether the significant cybersecurity incident has been disclosed 
to the adviser's clients and/or to investors. When describing the 
nature and scope of the incident being reported, advisers generally 
should describe whether, and if so how, the incident has affected its 
critical operations, including which systems or services have been 
affected, and whether the incident being reported was the result of a 
cybersecurity incident that occurred at a service provider. Further, to 
the extent an adviser reports a significant cybersecurity incident that 
resulted from a cybersecurity incident that occurred at a service 
provider, generally the adviser also should describe the services 
provided to the adviser or funds it advises by the provider that 
experienced the incident and how any degradation in those services have 
affected the adviser's--or its registered and private fund clients'--
operations. This information should provide the Commission with 
sufficient detail regarding the incident to understand its potential 
effects and whether the adviser can continue to provide services to its 
clients and investors. The information would also help the Commission 
determine whether the incident merits further analysis by the 
Commission and its staff and/or whether the Commission and its staff 
should collect additional information from the adviser.
    Item 16 would require the adviser to disclose whether the 
cybersecurity incident is covered under a cybersecurity insurance 
policy. This information would assist the Commission in understanding 
the potential effect that incident could have on an adviser's clients. 
This information would also be helpful in evaluating the adviser's 
response to the incident given that cybersecurity insurance may require 
an adviser to take certain actions during and after a cybersecurity 
incident.
    After realizing a cybersecurity incident has occurred, an adviser 
may need time to determine the scope and effect of the incident to 
provide meaningful responses to these questions. We recognize that the 
adviser may be working diligently to investigate and resolve the 
cybersecurity incident at the time it would be required to report to 
the Commission under the proposed rule. We believe, however, that 
advisers should have sufficient information to respond to the proposed 
questions by the time the filing is due to the Commission. Advisers 
should only share information about what is known at the time of 
filing.
    Section 210(a) of the Advisers Act requires information in Form 
ADV-C to be publicly disclosed, unless we find that public disclosure 
is neither necessary nor appropriate in the public interest or for the 
protection of investors.\70\ Form ADV-C would elicit certain 
information regarding cybersecurity incidents, the public disclosure of 
which, we believe, could adversely affect advisers (and advisory 
clients) and funds (and their investors). For example, public 
disclosure may harm an adviser's or fund's ability to mitigate or 
remediate the cybersecurity incident, especially if the incident is 
ongoing. Keeping information related to a cybersecurity incident 
confidential may serve to guard against the premature release of 
sensitive information, while still allowing the Commission to have 
early notice of the cybersecurity incident.\71\ Accordingly, our 
preliminary view is that Form ADV-C should be confidential given that 
public disclosure is neither necessary nor appropriate in the public 
interest or for the protection of investors.\72\
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    \70\ Section 210(a) of the Advisers Act states that ``[t]he 
information contained in any . . . report or amendment thereto filed 
with the Commission pursuant to any provision of this title shall be 
made available to the public, unless and except insofar as the 
Commission, by rules and regulations upon its own motion, or by 
order upon application, finds that public disclosure is neither 
necessary nor appropriate in the public interest or for the 
protection of investors.''
    \71\ Further, as discussed in greater detail below, we are 
proposing amendments to Form ADV Part 2A and certain fund 
registration forms that would require advisers and funds to publicly 
disclose significant cybersecurity incidents. Therefore, clients and 
investors would have access to information regarding cybersecurity 
incidents that they may find material, albeit on a different 
timeline. Further, as discussed in more detail below, the disclosure 
requirements we are proposing are designed to provide clients and 
investors with clear and meaningful disclosure regarding 
cybersecurity incidents in a narrative, plain-English format, while 
the information we are proposing to require adviser disclose on Form 
ADV-C may be less useful to clients and investors, given its more 
granular nature and the fact that it may be incomplete due to the 
expediency in which it must be reported.
    \72\ Although the Commission does not intend to make Form ADV-C 
filings public, the Commission or Commission staff could issue 
analyses and reports that are based on aggregated, non-identifying 
Form ADV-C data, which would otherwise be nonpublic.
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    We request comment on all aspects of Form ADV-C, including the 
following items.
    45. Is IARD the appropriate system for investment advisers to file 
Form ADV-C with the Commission? Instead of expanding the IARD system to 
receive Form ADV-C filings, should the Commission utilize some other 
system, such as the Electronic Data Gathering, Analysis, and Retrieval 
System (EDGAR)? If so, please explain. What would be the comparative 
advantages and disadvantages and costs and benefits of utilizing a 
system other than IARD? What other issues, if any, should the 
Commission consider in connection with electronic filing?
    46. Should we include any additional items or eliminate any of the 
items that we have proposed to include in Form ADV-C? For example, 
should advisers be required to disclose any technical information 
(e.g., about specific information systems, particular vulnerabilities 
exploited, or methods of exploitation) about significant cybersecurity 
incidents? Should we modify any of the proposed items? If so, how and 
why?
    47. Should Form ADV-C be confidential, as proposed? Alternatively, 
should we require public disclosure of some or all of the information 
included in Form ADV-C?

C. Disclosure of Cybersecurity Risks and Incidents

    We are also proposing amendments to certain forms used by advisers 
and funds to require the disclosure of cybersecurity risks and 
incidents to their investors and other market participants. In 
particular, we propose amendments to Form ADV Part 2A for advisers and 
Forms N-1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6 for funds. While many 
advisers and funds already provide disclosure about cybersecurity 
risks, we are updating current reporting and disclosure requirements to 
address cybersecurity risks and incidents more directly. These proposed 
amendments are designed to enhance investor protection by ensuring 
cybersecurity risk or incident-related information is available to 
increase understanding and insight into an adviser's or fund's 
cybersecurity history and risks. These proposed reporting and 
disclosure amendments, together with the proposed cybersecurity risk 
management rules, may also increase accountability of advisers and 
funds on cybersecurity issues. The proposed disclosure changes would 
also give the Commission and staff greater insight into cybersecurity 
risks affecting advisers and funds. This information would enhance the 
Commission's ability to oversee compliance with the proposed 
cybersecurity risk management rules, and to gain understanding about 
the specifics of the

[[Page 13540]]

policies and procedures that funds adopted under the rules.
1. Proposed Amendments to Form ADV Part 2A
    We are proposing amendments to Form ADV Part 2A that are designed 
to provide clients and prospective clients with information regarding 
cybersecurity risks and incidents that could materially affect the 
advisory relationship. We believe the proposed amendments would improve 
the ability of clients and prospective clients to evaluate and 
understand relevant cybersecurity risks and incidents that advisers 
face and their potential effect on the advisers' services.
2. Cybersecurity Risks and Incidents Disclosure
    The proposed amendments would add a new Item 20 entitled 
``Cybersecurity Risks and Incidents'' to Form ADV's narrative brochure, 
or Part 2A. The brochure, which is publicly available and the primary 
client-facing disclosure document, contains information about the 
investment adviser's business practices, fees, risks, conflicts of 
interest, and disciplinary events. We believe the narrative format of 
the brochure would allow advisers to present clear and meaningful 
cybersecurity disclosure to their clients and prospective clients.
    Advisers would be required to, in plain English, describe 
cybersecurity risks that could materially affect the advisory services 
they offer and how they assess, prioritize, and address cybersecurity 
risks created by the nature and scope of their business. A 
cybersecurity risk, regardless of whether it has led to a significant 
cybersecurity incident, would be material to an adviser's advisory 
relationship with its clients if there is a substantial likelihood that 
a reasonable client would consider the information important based on 
the total mix of facts and information.\73\ The facts and circumstances 
relevant to determining materiality in this context may include, among 
other things, the likelihood and extent to which the cybersecurity risk 
or resulting incident: (1) Could disrupt (or has disrupted) the 
adviser's ability to provide services, including the duration of such a 
disruption; (2) could result (or has resulted) in the loss of adviser 
or client data, including the nature and importance of the data and the 
circumstances and duration in which it was compromised; and/or (3) 
could harm (or has harmed) clients (e.g., inability to access 
investments, illiquidity, or exposure of confidential or sensitive 
personal or business information).
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    \73\ See, e.g., Amendments to Form ADV, Investment Advisers Act 
Release No. 3060 (July 28, 2010) [75 FR 49233 (Aug.12, 2010)], at 
n.35 (citing SEC. v. Steadman, 967 F.2d 636, 643 (D.C. Cir. 1992); 
cf. Basic Inc. v. Levinson, 485 U.S. 224, 231-232 (1988); TSC 
Industries v. Northway, Inc., 426 U.S. 438, 445, 449 (1976)).
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    The proposed amendments would also require advisers to describe any 
cybersecurity incidents that occurred within the last two fiscal years 
that have significantly disrupted or degraded the adviser's ability to 
maintain critical operations, or that have led to the unauthorized 
access or use of adviser information, resulting in substantial harm to 
the adviser or its clients.\74\ When describing these incidents in 
their brochures, advisers would be required to identify the entity or 
entities affected, when the incidents were discovered and whether they 
are ongoing, whether any data was stolen, altered, or accessed or used 
for any other unauthorized purpose, the effect of the incident on the 
adviser's operations, and whether the adviser, or service provider has 
remediated or is currently remediating the incident. This information 
would allow investors to make more informed decisions when deciding 
whether to engage or stay with an adviser.
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    \74\ We believe disclosure covering this look-back period would 
provide investors a short history of cybersecurity incidents 
affecting the adviser while not overburdening the adviser with a 
longer disclosure period. Further, this lookback period would foster 
consistency between adviser and fund disclosures regarding 
significant cybersecurity incidents.
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3. Requirement To Deliver Certain Interim Brochure Amendments to 
Existing Clients
    17 CFR 275.204-3(b) (rule 204-3(b) under the Advisers Act) does not 
require advisers to deliver interim brochure amendments to existing 
clients unless the amendment includes certain disciplinary information 
in response to Item 9 Part 2A or Item 3 of Part 2B.\75\ We are 
proposing an amendment to rule 204-3(b) that would also require an 
adviser to deliver interim brochure amendments to existing clients 
promptly if the adviser adds disclosure of a cybersecurity incident to 
its brochure or materially revises information already disclosed in its 
brochure about such an incident. Given the potential effect that 
significant cybersecurity incidents could have on an adviser's 
clients--such as exposing their personal or other confidential 
information or resulting in losses in their accounts--time is of the 
essence, and we believe that requiring an adviser to promptly deliver 
the brochure amendment would enhance investor protection by enabling 
clients to take protective or remedial measures to the extent 
appropriate. Accordingly, the timing of the brochure amendment delivery 
should take into account the exigent nature of cybersecurity incidents 
which would generally militate toward swift delivery to clients. We 
also believe that requiring advisers to deliver the brochure amendment 
to existing clients following the occurrence of a new significant 
cybersecurity incident would assist investors in determining whether 
their engagement of that particular adviser remains appropriate and 
consistent with their investment objectives.
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    \75\ Even if an adviser is not required to deliver a brochure to 
an existing client, as a fiduciary the adviser may still be required 
to provide clients with similar information. If an adviser is not 
required to deliver an existing client a brochure, the adviser may 
make any required disclosures to that client by delivery of the 
brochure or through some other means. See Instruction 1 of 
Instructions for Part 2A of Form ADV: Preparing Your Firm Brochure.
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    We seek comment on the Commission's proposed amendments to Form ADV 
Part 2A:
    48. Will the proposed cybersecurity disclosures in Item 20 of Form 
ADV Part 2A be helpful for clients and investors? Are there additional 
cybersecurity disclosures we should consider adding to Item 20? Should 
we modify or delete any of the proposed cybersecurity disclosures?
    49. Does the definition of significant adviser cybersecurity 
incident allow advisers to inform investors of cybersecurity risks 
arising from the incident while protecting the adviser and its clients 
from threat actors who might use that information for the current or 
future attacks? Does this definition allow for disclosures relevant to 
investors without providing so much information as to be desensitizing? 
Why or why not?
    50. Do the required disclosures provide investors with prompt 
access to important information that they need in connection with the 
decision to engage, or continue to engage, an adviser? Why or why not?
    51. We propose to require advisers to update their cybersecurity 
disclosures in Item 20 promptly to the extent the disclosures become 
materially inaccurate. Do commenters agree that the lack of disclosure 
regarding certain cybersecurity risks and cybersecurity incidents would 
render an adviser's brochure materially inaccurate? Should we only 
require advisers to update their cybersecurity disclosures on an annual 
basis (rather than an ongoing basis, as proposed)?
    52. We propose to require advisers to deliver brochure amendments 
to

[[Page 13541]]

existing clients if the adviser adds disclosure of an event, or 
materially revises information already disclosed about an event, that 
involves a cybersecurity incident in response to proposed Item 20. Is 
this delivery requirement appropriate? Why or why not? Are there other 
delivery or client-notification requirements that we should consider 
for advisers when updates to their cyber security disclosures are made?
    53. Should advisers also be specifically required to disclose if 
there has not been a significant cybersecurity incident in its last two 
fiscal years? Would this disclosure assist investors in their 
investment decision-making? Why or why not?
    54. Should the rule include a requirement to disclose whether a 
significant adviser cybersecurity incident is currently affecting the 
adviser? Why or why not? Is the look-back period of two fiscal years 
appropriate? Why or why not?
4. Proposed Amendments To Fund Registration Statements
    Like advisers, funds would also be required to provide prospective 
and current investors with disclosure about significant cybersecurity 
incidents under our proposal. We are proposing amendments to funds' 
registration forms that would require a description of any significant 
fund cybersecurity incident that has occurred in its last two fiscal 
years, and that funds must tag the new information that would be 
included using a structured data language (specifically, Inline 
eXtensible Business Reporting Language or ``Inline XBRL'').\76\ The 
proposed disclosure amendments would require that a fund disclose to 
investors in its registration statement whether a significant fund 
cybersecurity incident has or is currently affecting the fund or its 
service providers.\77\
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    \76\ We are proposing amendments to Form N-1A, Form N-2, Form N-
3, Form N-4, Form N-6, Form N-8B-2, and Form S-6.
    \77\ The proposed disclosure amendments would also require funds 
to disclose significant fund cybersecurity incidents affecting 
insurance companies (for separate accounts that are management 
investment companies that offer variable annuity contracts 
registered on Form N-3) and depositors (for separate accounts that 
are unit investment trusts that offer variable annuity contracts on 
Form N-4; unit investment trusts that offer variable life insurance 
contracts on Form N-6; and unit investment trusts other than 
separate accounts that are currently issuing securities, including 
unit investment trusts that are issuers of periodic payment plan 
certificates and unit investment trusts of which a management 
investment company is the sponsor or depositor on Form N-8b-2 or 
Form S-6).
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    Specifically, the proposed amendments would require a description 
of each significant fund cybersecurity incident, including the 
following information to the extent known: the entity or entities 
affected; when the incident was discovered and whether it is ongoing; 
whether any data was stolen, altered, or accessed or used for any other 
unauthorized purpose; the effect of the incident on the fund's 
operations; and whether the fund or service provider has remediated or 
is currently remediating the incident. The requirements for disclosure 
describing the incident would be similar to the information that new 
Form ADV-C requires, which we believe would increase compliance 
efficiencies for funds and their advisers.
    The fund would be required to disclose any significant fund 
cybersecurity incident that has occurred during its last two fiscal 
years. We believe disclosure covering this look-back period would 
provide investors a short history of cybersecurity incidents affecting 
the fund while not overburdening the fund with a longer disclosure 
period.\78\ We believe providing a description of a significant fund 
cybersecurity incident would improve the ability of shareholders and 
prospective shareholders to evaluate and understand relevant 
cybersecurity risks and incidents that a fund faces and their potential 
effect on the fund's operations.
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    \78\ The two-year period is consistent with other items in Form 
N-1A (for example, Item 16(e) (description of the fund's portfolio 
turnover), Item 17(b)(6) through (9) (management of the fund), and 
Item 31 (business and other connections of investment adviser). We 
are proposing a corresponding period for the disclosures in Part 2A 
of Form ADV.
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    In addition to providing investors with information on significant 
fund cybersecurity incidents, funds should consider cybersecurity risks 
when preparing risk disclosures in fund registration statements under 
the Investment Company Act and the Securities Act. Funds are currently 
required to disclose ``principal risks'' of investing in the fund, and 
if a fund determines that a cybersecurity risk is a principal risk of 
investing in the fund, the fund should reflect this information in its 
prospectus.\79\ For example, a fund that has experienced a number of 
significant fund cybersecurity incidents in a short period of time may 
need to disclose heightened cybersecurity risk as a principal risk of 
investing in the fund. This information would allow investors to make 
more informed decisions when deciding whether to invest in a fund.
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    \79\ See Form N-1A, Item 4(b)(1) (narrative risk disclosure), 
Item 9(c) (risks), and Item 16(b) (investment strategies and risks); 
Form N-2, Item 8(3) (risk factors); Form N-3, Item 5 (principal 
risks of investing in the contract) and Item 22 (investment 
objectives and risks); Form N-4, Item 5 (principal risks of 
investing in the contract) and Item 20 (non-principal risks of 
investing in the contract); Form N-6, Item 5 (principal risks of 
investing in the contract) and Item 21 (non-principal risks of 
investing in the contract). UITs filing on Form N-8B-2 must disclose 
instead information concerning the operations of the trust (Form N-
8B-2, Items 14-24).
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    Funds are required to update their prospectuses so that they do not 
contain an untrue statement of a material fact (or omit a material fact 
necessary to make the disclosure not misleading).\80\ To make timely 
disclosures of cybersecurity risks and significant fund cybersecurity 
incidents, a fund would amend its prospectus by filing a supplement 
with the Commission.\81\ In addition, funds should generally include in 
their annual reports to shareholders a discussion of cybersecurity 
risks and significant fund cybersecurity incidents, to the extent that 
these were factors that materially affected performance of the fund 
over the past fiscal year.\82\
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    \80\ See generally 17 CFR 230.497 [rule 497 under the Securities 
Act]; section 12(a)(2) of the Securities Act (providing a civil 
remedy if a prospectus includes an untrue statement of a material 
fact or omits to state a fact necessary in order to make the 
statements, in the light of the circumstances under which they were 
made, not misleading); 17 CFR 230.408 [rule 408 under the Securities 
Act] (requiring registrants to include, in addition to the 
information expressly required to be included in a registration 
statement, such further material information, if any, as may be 
necessary to make the required statements, in the light of the 
circumstances under which they are made, not misleading).
    \81\ See 17 CFR 230.497 (open-end funds); 17 CFR 230.424 
(closed-end funds).
    \82\ See, e.g., Disclosure of Mutual Fund Performance and 
Portfolio Managers, Investment Company Act Release No. 19382 (Apr. 
6, 1993) [58 FR 21927 (Apr. 26, 1993)], at n.15 (noting that 
management's discussion of fund performance requires funds to 
``explain what happened during the previous fiscal year and why it 
happened'').
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    We are proposing to require all funds to tag this information about 
significant fund cybersecurity incidents in a structured, machine-
readable data language.\83\ Specifically, we are proposing to require 
funds to tag the disclosures in Inline XBRL in accordance with rule 405 
of Regulation S-T and the EDGAR Filer Manual.\84\

[[Page 13542]]

The proposed requirements would include block text tagging of narrative 
information about significant fund cybersecurity incidents, as well as 
detail tagging of any quantitative values disclosed within the 
narrative disclosures.
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    \83\ Many funds are already required to tag certain registration 
statement disclosure items using Inline XBRL; however, UITs that 
register on Form N-8B-2 and file post-effective amendments on Form 
S-6 are not currently subject to any tagging requirements. The costs 
of these requirements for funds that are currently subject to 
tagging requirements and those that newly would be required to tag 
certain disclosure items are discussed in the Economic Analysis. See 
section III.D.2 infra.
    \84\ This proposed tagging requirement would be implemented by 
including cross-references to rule 405 of Regulation S-T in each 
fund registration form (and, as applicable, updating references to 
those fund registration forms in rule 11 and rule 405), by revising 
rule 405(b) of Regulation S-T to include the proposed significant 
fund cybersecurity incident disclosures, and by proposing conforming 
amendments to rule 485 and rule 497 under the Securities Act.
    Pursuant to rule 301 of Regulation S-T, the EDGAR Filer Manual 
is incorporated by reference into the Commission's rules. In 
conjunction with the EDGAR Filer Manual, Regulation S-T governs the 
electronic submission of documents filed with the Commission. Rule 
405 of Regulation S-T specifically governs the scope and manner of 
disclosure tagging requirements for operating companies and 
investment companies, including the requirement in rule 405(a)(3) to 
use Inline XBRL as the specific structured data language to use for 
tagging the disclosures.
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    Many funds are already required to tag certain registration 
statement disclosure items using Inline XBRL.\85\ Requiring Inline XBRL 
tagging of significant fund cybersecurity incidents for all funds would 
benefit investors, other market participants, and the Commission by 
making the disclosures more readily available and easily accessible for 
aggregation, comparison, filtering, and other analysis, as compared to 
requiring a non-machine readable data language such as ASCII or HTML. 
This would enable automated extraction and analysis of granular data on 
significant fund cybersecurity incidents, such as the date the incident 
was discovered, allowing investors and other market participants to 
more efficiently perform large-scale analysis and comparison across 
funds and time periods. An Inline XBRL requirement would facilitate 
other analytical benefits, such as more easily extracting/searching 
disclosures about significant fund cybersecurity incidents, performing 
targeted assessments (rather than having to manually run searches for 
these disclosures through entire documents), and automatically 
comparing these disclosures against prior periods. We believe requiring 
structured data for significant fund cybersecurity incidents for all 
funds would make cybersecurity disclosure more readily available, 
accessible, and comparable for investors, other market participants, 
and the Commission.
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    \85\ The Commission has adopted rules requiring funds 
registering on Forms N-1A, N-2, N-3, N-4, and N-6 to submit data 
using Inline XBRL. See Interactive Data to Improve Financial 
Reporting, Release No. 33-9002 (Jan. 30, 2009) [74 FR 6776 (Feb. 10, 
2009)] as corrected by Release No. 33-9002A (Apr. 1, 2009) [74 FR 
15666 (Apr. 7, 2009)]; Inline XBRL Filing of Tagged Data, Release 
No. 33-10514 (June 28, 2018) [83 FR 40846 (Aug. 16, 2018)]; Updated 
Disclosure Requirements and Summary Prospectus for Variable Annuity 
and Variable Life Insurance Contracts, Investment Company Act 
Release No. 33814 (Mar. 11, 2020) [85 FR 25964 (May 1, 2020)] 
(``Variable Contract Summary Prospectus Adopting Release''); 
Securities Offering Reform for Closed-End Investment Companies, 
Release No. 33-10771 (Apr. 8, 2020) [85 FR 33290 (June 1, 2020)]; 
Filing Fee Disclosure and Payment Methods Modernization, Release No. 
33-10997 (Oct. 13, 2021) [86 FR 70166 (Dec. 9, 2021)].
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    We seek comment on the Commission's proposed amendments to fund 
registration statement disclosure requirements:
    55. Should there be a prospectus disclosure requirement of 
significant fund cybersecurity incidents for all registered funds? If 
some types of funds should be exempt, have different disclosure 
requirements, or not be subject to the proposed structured data 
requirement, which and why?
    56. Will the proposed cybersecurity disclosures be helpful for 
shareholders and potential shareholders? Are there additional 
cybersecurity disclosures we should add? Should we modify or delete any 
of the proposed cybersecurity disclosures?
    57. Does the definition of significant fund cybersecurity incident 
allow funds to inform investors of cybersecurity risks arising from the 
incident while protecting the fund from threat actors who might use 
that information for the current or future attacks? Does this 
definition allow for disclosures relevant to investors without 
providing so much information as to be desensitizing? Why or why not?
    58. Should the rule include a requirement to disclose whether a 
significant fund cybersecurity incident is currently affecting the fund 
as proposed? Why or why not? How often should cybersecurity disclosure 
be updated? Is the lookback period of two fiscal years appropriate? Why 
or why not?
    59. Should the rule include an instruction about significant fund 
cybersecurity incidents that may have occurred in the fund's last two 
fiscal years but was discovered later? Why or why not? Should the 
Commission provide more specific guidance or requirements on when a 
fund should update its disclosure to provide information about a 
significant fund cybersecurity incident? Should the timing or 
information about a significant cybersecurity incident for updated 
disclosure match the prompt reporting requirement for advisers on Form 
ADV-C? Why or why not?
    60. Are there other delivery or shareholder-notification 
requirements that we should consider for funds when updates to their 
cybersecurity disclosures are made? For example, should there be an 
alternate website disclosure regime, similar to how proxy voting 
records may be disclosed, for cybersecurity incidents? Why or why not? 
Or alternatively or additionally, should information about significant 
fund cybersecurity incidents be included in funds' annual reports to 
shareholders, filed on Form N-CSR, or reported on Form N-CEN?
    61. Should funds also be specifically required to disclose if there 
has not been a significant cybersecurity incident in its last two 
fiscal years? Would this disclosure assist investors in their 
investment decision-making? Why or why not?
    62. Should the Commission provide more specific guidance or 
requirements on when and what cybersecurity risk funds should disclose, 
including when cybersecurity risk would be considered a principal risk 
factor? Why or why not?
    63. Should we require all funds to tag significant fund 
cybersecurity incidents in Inline XBRL, as proposed? Why or why not?
    64. Should we require funds to use a different structured data 
language to tag significant fund cybersecurity incident disclosures? If 
so, what structured data language should we require?

III. Economic Analysis

A. Introduction

    The Commission is mindful of the economic effects, including the 
costs and benefits, of the proposed rules and amendments. Section 3(f) 
of the Exchange Act, section 2(c) of the Investment Company Act, and 
section 202(c) of the Advisers Act provide that when engaging in 
rulemaking that requires us to consider or determine whether an action 
is necessary or appropriate in or consistent with the public interest, 
to also consider, in addition to the protection of investors, whether 
the action will promote efficiency, competition, and capital formation. 
Section 23(a)(2) of the Exchange Act also requires us to consider the 
effect that the rules would have on competition, and prohibits us from 
adopting any rule that would impose a burden on competition not 
necessary or appropriate in furtherance of the Exchange Act. The 
analysis below addresses the likely economic effects of the proposed 
amendments, including the anticipated and estimated benefits and costs 
of the amendments and their likely effects on efficiency, competition, 
and capital formation. The Commission also discusses the potential 
economic effects of certain alternatives to the approaches taken in 
this proposal.

[[Page 13543]]

    The proposed rules and amendments would provide a more specific and 
comprehensive framework for advisers and funds to address, report on, 
and disclose cybersecurity-related risks and incidents. They would 
directly affect advisers and funds through changes in their obligations 
related to cybersecurity risks. They would also directly affect 
investment advisers' and funds' current and prospective clients and 
investors. In addition, the proposed rules may affect third-party 
service providers to advisers and funds.
    We anticipate that the main economic benefits of the proposed rules 
and amendments would be to enhance certain advisers' and funds' 
cybersecurity preparedness and thereby reduce related risks to clients 
and investors, to improve clients' and investors' information about 
advisers' and funds' cybersecurity exposures, and to enhance the 
Commission's ability to assess systemic risks and its oversight of 
advisers and funds. We expect the main economic costs of the proposed 
rules and amendments to be compliance costs \86\ borne by investment 
advisers and funds--costs likely to be passed on to their respective 
clients and investors. We do not anticipate that these costs and 
benefits will be material in the aggregate, although they may have 
significant effects on individual advisers, funds, and their respective 
clients and investors.
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    \86\ Throughout this economic analysis, ``compliance costs'' 
refers to the direct and indirect costs resulting from material 
changes to affected registrants' business practices that may be 
required to comply with the proposed regulations (e.g., conducting 
cybersecurity analysis of deployed systems, replacing outdated 
insecure computer software, hiring staff to implement cybersecurity 
improvements, renegotiating contracts with service providers, 
exposing aspects of secret business practices through mandated 
disclosures). As used here, ``compliance costs'' excludes certain 
administrative costs of the proposed regulations (e.g., filling out 
and filing required forms, conducting legal reviews of mandated 
disclosures) subject to the Paperwork Reduction Act. These 
administrative costs are discussed in detail in the Paperwork 
Reduction Act analysis in section IV.
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    We expect that the proposed rules and amendments would have a more 
significant effect on smaller advisers and smaller fund families as 
well as their clients and investors. Such differential impacts would 
likely have some effect on competition in the adviser and fund 
management markets, although the direction of this effect is 
ambiguous.\87\ In addition to providing clients and investors with 
additional cybersecurity-related information about advisers and funds, 
we expect the proposed amendments to increase investors' confidence in 
the operational resiliency of advisers and funds and safety of their 
investments held through those firms. In so doing, we expect that the 
proposed amendments would improve economic efficiency and enhance 
capital formation.
---------------------------------------------------------------------------

    \87\ Both costs and benefits would have differential effects. 
See infra section III.E.
---------------------------------------------------------------------------

    Many of the benefits and costs discussed below are difficult to 
quantify. For example, the effectiveness of cybersecurity hygiene 
measures taken as a result of the proposed amendments on the 
probability of a cybersecurity incident and on the expected cost of 
such an incident, including remediation costs, is subject to numerous 
assumptions and unknowns, and is thus impracticable to quantify. Also, 
in some cases, data needed to quantify these economic effects are not 
currently available. For example, the Commission does not have reliable 
data on the incidence of cybersecurity incidents for advisers and 
funds. While we have attempted to quantify economic effects where 
possible, much of the discussion of economic effects is qualitative in 
nature. The Commission seeks comment on all aspects of the economic 
analysis, especially any data or information that would enable a 
quantification of the proposal's economic effects.

B. Broad Economic Considerations

    While advisers and funds have private incentives to maintain some 
level of cybersecurity hygiene, market failures can lead the privately 
optimal level to be inadequate from the perspective of overall economic 
efficiency: Such market failures provide the economic rationale for 
regulatory intervention in advisers' and funds' cybersecurity 
practices. At the core of these market failures is asymmetric 
information about cybersecurity preparations and incidents as well as 
negative externalities to these incidents. Asymmetric information 
contributes to two main inefficiencies: First, because the production 
of cybersecurity defenses must constantly evolve, an adviser's or 
fund's inability to observe cyberattacks on its competitors inhibits 
the efficacy of its own cybersecurity preparations. Second, for a 
client or investor, the inability to observe an adviser's or fund's 
effort in cybersecurity preparation gives rise to a principal-agent 
problem that can contribute to an adviser or fund exerting too little 
effort (i.e., underinvesting or underspending) on cybersecurity 
preparations. Moreover, because there can be substantial negative 
externalities related to cybersecurity incidents, advisers' and funds' 
private incentives to exert effort on cybersecurity preparations are 
likely to be lower than optimal from a societal standpoint.
    In the production of cybersecurity defenses, the main input is 
information. In particular, information about prior attacks and their 
degree of success is immensely valuable in mounting effective 
countermeasures.\88\ However, firms are naturally reluctant to share 
such information freely: Doing so can assist future attackers as well 
as lead to loss of customers, reputational harm, litigation, or 
regulatory scrutiny.\89\ Moreover, because disclosure of such 
information creates a positive information externality \90\--the 
benefits of which accrue to society at large and which cannot be fully 
captured by the firm making the disclosure--an inefficient market 
equilibrium is likely to arise. In this market equilibrium, too little 
information about cybersecurity incidents is disclosed, leading to 
inefficiently low levels of cybersecurity defense production.\91\
---------------------------------------------------------------------------

    \88\ See Peter W. Singer and Allan Friedman, Cybersecurity: What 
Everyone Needs to Know. Oxford University Press 222 (2014).
    \89\ See, e.g., Federal Trade Commission v. Equifax, Inc. 
(2019), available at https://www.ftc.gov/enforcement/cases-proceedings/172-3203/equifax-inc.
    \90\ However, disclosure of this information to parties that do 
not obey the law creates significant negative externalities as it 
can facilitate attacks against those who employ similar business 
methods and IT systems. See infra section III.D.2.b (discussing the 
potential costs of excessive disclosure).
    \91\ This problem has long been recognized by policymakers 
leading to various efforts aimed at encouraging voluntary 
information sharing across firms. See infra section III.C.1.
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    Asymmetric information also contributes to a principal-agent 
problem. The relationship between an adviser and its client or a fund 
and its investor is one where the principal (the client or fund 
investor) relies on an agent (the investment adviser or fund complex 
and its management) to perform services on the principal's behalf.\92\ 
Because principals and their agents do not have perfectly aligned 
preferences and goals, agents may take actions that increase their 
well-being at the expense of principals, thereby imposing ``agency 
costs'' on the principals.\93\ Although private contracts between 
principals and agents aim to minimize such costs, they are limited in 
their ability to do so; this limitation provides one rationale for 
regulatory intervention.\94\
---------------------------------------------------------------------------

    \92\ See Michael C. Jensen and William H. Meckling, Theory of 
the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 
3 Journal of Financial Economics, 305-360 (1976) (``Jensen and 
Meckling'').
    \93\ Id.
    \94\ Such limitations can arise from un-observability or un-
verifiability of actions, transactions costs associated with 
including numerous contingencies in contracts, or bounded 
rationality in the design of contracts. See e.g. Jean Tirole, 
Cognition and Incomplete Contracts, 99 (1) American Economic Review, 
265-94 (Mar. 2009) (discussing a relatively modern treatment of 
these issues) (``Tirole'').

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[[Page 13544]]

    In the context of cybersecurity, the principal-agent problem is one 
of underspending in cybersecurity--agents exerting insufficient effort 
toward protecting the personal information, investments, or funds of 
the principals from being stolen or otherwise compromised. For example, 
in a recent survey of financial firms, 58% of the respondents self-
reported ``underspending'' on cybersecurity.\95\ Several factors can 
contribute to this underspending. Agents (i.e., advisers and funds) may 
not be able to credibly signal to their principals (i.e., clients or 
investors) that they are better at addressing cybersecurity risks than 
their peers, reducing their incentives to bear such costs.\96\ At the 
same time, agents who do not bear the full cost of a cybersecurity 
failure (e.g., losses of their customers' information or assets) will 
prefer to avoid bearing costs--such as elaborate cybersecurity 
practices--the benefits of which accrue in large part to principals 
(i.e., clients and investors).
---------------------------------------------------------------------------

    \95\ Institute of International Finance, IIF/McKinsey Cyber 
Resilience Survey (Mar. 2020), available at https://www.iif.com/Portals/0/Files/content/cyber_resilience_survey_3.20.2020_print.pdf 
2020) (``IIF/McKinsey Report''). A total of 27 companies 
participated in the survey, with 23 having a global footprint. 
Approximately half of respondents were European or U.S. Globally 
Systemically Important Banks (G-SIBs).
    \96\ See Sanford J. Grossman, The Informational Role of 
Warranties and Private Disclosure about Product Quality, 24 (3) The 
Journal of Law and Economics 461-83 (Dec. 1981); see also Michael 
Spence, Competitive and Optimal Responses to Signals: An Analysis of 
Efficiency and Distribution, 7 (3) Journal of Economic Theory 296-
332 (Mar. 1, 1974); G.A. Akerlof, The Market for ``Lemons'': Quality 
Uncertainty and the Market Mechanism, 84 (3) The Quarterly Journal 
of Economics 488-500 (Aug. 1970).
---------------------------------------------------------------------------

    Agents' reputation motives--the fear of market-imposed loss of 
future profits--should generally work against the tendency for agents 
to underinvest in cybersecurity measures. However, for smaller agents--
who do not enjoy economies of scale or scope, and generally have less 
valuable brands--the cost of implementing robust cybersecurity measures 
will be relatively high, while their reputation motives will be more 
limited. Thus, smaller agents can be expected to be especially prone to 
underinvestment.
    Even in the absence of agency problems, advisers and funds may 
still underinvest in cybersecurity due to negative externalities or 
moral hazard. In the context of cybersecurity, negative externalities 
arise because a disruption to the operation or financial condition of 
one financial entity can have significant negative repercussions on the 
financial system broadly.\97\ For example, a cybersecurity incident at 
a large money market fund that affects its ability to process 
redemptions could disrupt the fund's shareholders' ability to access 
cash needed to satisfy other obligations, potentially leading those 
shareholders to default, which, in turn, could trigger further defaults 
by those shareholders' creditors. Alternatively, a cybersecurity 
incident may adversely affect market confidence and curtail economic 
activity through a confidence channel.\98\ As such costs would not be 
internalized by advisers and funds, advisers and funds would be 
expected to underinvest in measures aimed at avoiding such costs. In 
addition, advisers and funds may also underinvest in their 
cybersecurity measures due to moral hazard from expectations of 
government support.\99\ For example, a large fund may realize that it 
is an attractive target for sophisticated state actors aiming to 
disrupt the U.S. financial system. Protection against such ``advanced 
persistent threats'' \100\ from sophisticated actors is costly.\101\ A 
belief that such an attack would be met with government support could 
lead to moral hazard where the fund underinvests in defenses aimed at 
countering this threat.
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    \97\ See Anil K. Kashyap and Anne Wetherilt, Some Principles for 
Regulating Cyber Risk, AEA Papers and Proceedings 109, 482-487 (May 
2019).
    \98\ Id.
    \99\ It has long been noted that it is difficult for governments 
to commit credibly to not providing support to entities that are 
seen as critical to the functioning of the financial system, 
resulting in problems of moral hazard. See, e.g., Walter Bagehot, 
Lombard Street, King (1873). Historically, banking entities seen as 
``too big to fail'' or ``too interconnected to fail'' have been the 
principal recipients of such government support. Since the financial 
crisis of 2007-2009, non-bank financial institutions (such as 
investment banks), money market funds, and insurance companies, as 
well as specific markets such as the repurchase market have also 
benefited. See, e.g., Gary B. Gorton, Slapped by the Invisible Hand: 
The Panic of 2007, Oxford University Press (2010). See also Viral V. 
Acharya, Deniz Anginer, and A. Joseph Warburton, The End of Market 
Discipline? Investor Expectations of Implicit Government Guarantees, 
SSRN Scholarly Paper. Rochester, NY: Social Science Research Network 
(May 1, 2016).
    \100\ Advanced persistent threat (APT) refers to sophisticated 
cyberattacks by hostile organizations with the goal of: Gaining 
access to defense, financial and other targeted information from 
governments, corporations and individuals; maintaining a foothold in 
these environments to enable future use and control; and modifying 
data to disrupt performance in their targets. See Michael K, Daly, 
The Advanced Persistent Threat (or Informationized Force 
Operations), Usenix LISA 09 (Nov. 4, 2009), available at https://www.usenix.org/legacy/events/lisa09/tech/slides/daly.pdf.
    \101\ See Nikos Virvilis, and Dimitris Gritzalis, The Big Four--
What We Did Wrong in Advanced Persistent Threat Detection? 2013 
International Conference on Availability, Reliability and Security, 
248-54 (2013).
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    The proposed amendments could mitigate these problems in several 
ways. First, establishing explicit requirements for cybersecurity 
policies and procedures could help ensure that investment advisers and 
funds devote a certain minimum amount of effort toward cybersecurity 
readiness. Second, the proposed disclosure and regulatory reporting 
requirements could help alleviate the information asymmetry problems by 
providing current and prospective investors and clients, third parties 
(e.g., fund rating services), and regulators with more information 
about funds' and advisers' cybersecurity exposure. The publicly 
disclosed information could in turn be used by investors, clients, and 
third parties to screen and monitor funds and investment advisers, 
while the confidential regulatory reports could be used by regulators 
to inform industry and law enforcement about ongoing threats. Finally, 
by reducing uncertainty about the effectiveness of funds' and 
investment advisers' cybersecurity measures, the proposed amendments 
could help level the competitive playing field for funds and advisers 
by simplifying prospective investors' and clients' decision 
making.\102\ By addressing important market imperfections, the proposed 
amendments could mitigate underinvestment in cybersecurity and improve 
the adviser and fund industry's ability to produce effective 
cybersecurity defenses through better information sharing, which could 
in turn lead to improved economic efficiency.
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    \102\ By analogy, in the absence of rigorous airline safety 
regulation, shopping for airline tickets would be considerably more 
complex as one would need to consider not only each airline's price 
and level of service, but also the adequacy of each airline's 
maintenance regime, the age of its fleet, and the training of its 
pilots.
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    The effectiveness of the proposed amendments at mitigating the 
aforementioned problems would depend on several factors. It would 
depend on the extent to which the proposed amendments materially affect 
registrants' policies and procedures and disclosures. Insofar as the 
new requirements affect registrants' policies and procedures, the 
effectiveness of the proposed amendments would also depend on the 
extent to which the actions they induce alleviate cybersecurity 
underinvestment. The effectiveness of the proposed amendments would 
also depend on the extent to which the proposed disclosure requirements 
provide useful

[[Page 13545]]

information to investors, clients, third parties, and regulators.\103\
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    \103\ Similar arguments have been put forward with respect to 
disclosure's utility in predicting adviser fraud. See, e.g., Stephen 
Dimmock and William Gerken, Predicting Fraud by Investment Managers, 
105 (1) Journal of Financial Economics, 153-173 (2012).
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C. Baseline

    The market risks and practices, regulation, and market structure 
relevant to the affected parties in place today form the baseline for 
our economic analysis. The parties directly affected by the proposed 
amendments are advisers that are registered or required to be 
registered with the Commission and funds. In addition, the proposed 
amendments would indirectly affect current and prospective clients of 
such advisers (including private funds) and investors in such funds as 
well as certain service providers to advisers and funds. Finally, these 
amendments could also affect issuers of financial assets whose access 
to and cost of capital could change because of the proposed amendments' 
effects on the asset management markets.
1. Cybersecurity Risks and Practices
    With the widespread adoption of internet-based products and 
services over the last two decades, all businesses have had to address 
issues of cybersecurity. For financial services firms, the stakes are 
particularly high--it is where the money is. Cybersecurity threat 
intelligence surveys consistently find the financial sector to be one 
of--if not the most--attacked industry,\104\ and remediation costs for 
such incidents can be substantial.\105\ The financial services sector 
has also been at the forefront of digitization and now represents one 
the most digitally mature sectors of the economy.\106\ Not 
surprisingly, it is also one of the biggest spenders on cybersecurity 
measures: A recent survey found that non-bank financial firms spent an 
average of approximately 0.5% of revenues--or $2,348/employee--on 
cybersecurity.\107\
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    \104\ See, e.g., IBM, X-Force Threat Intelligence Index 2021 
(2021), available at https://www.ibm.com/security/data-breach/threat-intelligence.
    \105\ See, e.g., supra footnote 6 (Cost of Data Breach Report) 
and accompanying text (noting the average cost of a data breach in 
the financial industry in the United States is $5.72 million).
    \106\ See BCG Global, Digital Maturity Is Paying Off (Nov. 6, 
2020), available at https://www.bcg.com/publications/2018/digital-maturity-is-paying-off.
    \107\ Deloitte LLP, Reshaping the Cybersecurity Landscape, 
Deloitte Insights (accessed Nov. 10, 2021), available at https://www2.deloitte.com/us/en/insights/industry/financial-services/cybersecurity-maturity-financial-institutions-cyber-risk.html 
(``Reshaping the Cybersecurity Landscape'').
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    The ubiquity and rising costs of cybercrime \108\ along with firm's 
increasingly costly efforts to prevent it \109\ has created a boom in 
the cybersecurity industry \110\ and led to the development of a 
numerous technologies, standards, and industry noted ``best practices'' 
aimed at mitigating cybersecurity threats. Many of these developments-- 
multi-factor authentication, HTTPS, and user-access control--are so 
widely deployed as to be in common parlance. Among practitioners (chief 
technology officers, chief information officers, chief security 
officers (``CISOs'') and their staffs), best practice frameworks such 
as Carnegie Mellon University's Cyber Resilience Review,\111\ the NIST 
Framework,\112\ and similar offerings from cybersecurity consultants 
and product vendors are now frequently employed to assess and address 
institutional cybersecurity preparedness. Such frameworks cover the 
gamut of cybersecurity, including: IT asset management, controls, 
change management, vulnerability management, incident management, 
continuity of operations, risk management, dependencies on third 
parties, training, and information sharing. In recent years, company 
boards and executive management teams have been paying more attention 
to many of these areas.\113\
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    \108\ See supra footnote 5 (FBI 2020 Internet Crime Report, 
noting that cybercrime victims lost approximately $4.2 billion in 
2020).
    \109\ See Office of Financial Research, Annual Report to 
Congress (2021), available at https://www.financialresearch.gov/annual-reports/files/OFR-Annual-Report-2021.pdf.
    \110\ VentureBeat, The Cybersecurity Industry Is Burning--But 
VCs Don't Care (Sept. 2, 2021)), available at https://venturebeat.com/2021/09/02/the-cybersecurity-industry-is-burning-and-vcs-dont-care/ (``VentureBeat'').
    \111\ U.S. Department of Homeland Security Cybersecurity and 
Infrastructure Security Agency, CRR: Method Description and Self-
Assessment User Guide (Apr. 2020), available at https://www.cisa.gov/sites/default/files/publications/2_CRR%204.0_Self-Assessment_User_Guide_April_2020.pdf.
    \112\ See supra footnote 24.
    \113\ See Reshaping the Cybersecurity Landscape, supra footnote 
107.
---------------------------------------------------------------------------

    While spending on cybersecurity measures in the financial services 
industry is considerable, it may nonetheless be inadequate--even in the 
estimation of financial firms themselves: According to one recent 
survey, 58% of financial firms self-reported ``underspending'' on 
cybersecurity measures.\114\ And while adoption of cybersecurity best 
practices has been accelerating overall, many firms continue to lag in 
their adoption.\115\ While surveys of financial services firms are 
suggestive, the true extent of advisers' and funds' underspending--and 
of failing to adopt industry-accepted cybersecurity ``best 
practices''--is impracticable to quantify.\116\
---------------------------------------------------------------------------

    \114\ See IIF/McKinsey Report, supra footnote 95.
    \115\ See VentureBeat, supra footnote 110.
    \116\ As noted in section III.B, the quality of cybersecurity 
measures is difficult to quantify. Moreover, the cybersecurity 
measures being employed by registrants are not generally observable. 
Consequently, it is not practicable to estimate the adequacy of 
measures currently being employed by registrants.
---------------------------------------------------------------------------

    Similarly, it is impracticable to quantify the adequacy of 
advisers' and funds' information sharing arrangements.\117\ The value 
of such information sharing has long been recognized. In 1998, 
Presidential Decision Directive 63 established industry-based 
information sharing and analysis centers (``ISACs'') to promote the 
disclosure and sharing of cybersecurity information among firms.\118\ 
The FS-ISAC provides financial firms with such a forum.\119\ However, 
observers have questioned the efficacy of these information-sharing 
partnerships,\120\ while the U.S. Government has continued in attempts 
to further such efforts. For example, President Obama's 2015 Executive 
Order, ``Promoting Private Sector Cybersecurity Information Sharing'' 
aimed ``to encourage the voluntary formation of [information sharing 
organizations], to establish mechanisms to continually improve the 
capabilities and functions of these organizations, and to better allow 
these organizations to partner with the Federal Government on a 
voluntary basis.'' \121\ Although the Commission does not have data on 
the extent of advisers' and funds' use of such forums or their 
efficacy, surveys of securities firms conducted by FINRA suggest that 
there is considerable variation in firms' willingness to share 
information about cybersecurity threats voluntarily, with larger firms 
being

[[Page 13546]]

more likely to do so.\122\ Other surveys paint a similar picture; a 
recent survey of financial firms found that while recognition of the 
value of information-sharing arrangements is widespread, a majority of 
firms report hesitance to participate due to regulatory restrictions or 
privacy concerns.\123\
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    \117\ The Commission does not currently collect data from 
registrants regarding the presence of such arrangements. We are also 
not aware of any third-party data providers that tabulate this 
information.
    \118\ See President Decision Directive/NSC-63, Critical 
Infrastructure Protection (May 22, 1998); Presidential Decision 
Directive 63 on Critical Infrastructure Protection: Sector 
Coordinators, 98 FR 41804 (Aug. 5, 1998) (notice and request for 
expressions of interest). See also National Council of ISACs, 
available at https://www.nationalisacs.org.
    \119\ More information about the FS-ISAC is available at https://www.fsisac.com.
    \120\ Denise E. Zheng and James A. Lewis, Cyber Threat 
Information Sharing, Center for Strategic and International Studies 
62 (2015).
    \121\ See Executive Order 13691, Promoting Private Sector 
Cybersecurity Information Sharing (Feb. 13, 2015).
    \122\ FINRA, Report on Cybersecurity Practices (Feb. 2015), 
available at https://www.finra.org/sites/default/files/2020-07/2015-report-on-cybersecurity-practices.pdf. Survey respondents included 
large investment banks, clearing firms, online brokerages, high-
frequency traders, and independent dealers. Thus, the results should 
be taken as suggestive of practices that may be in place at advisers 
and funds.
    \123\ See Reshaping the Cybersecurity Landscape, supra footnote 
107. Survey respondents consisted of CISOs (or equivalent) of 53 
members of the FS-ISAC. Of the respondents, twenty-four reported 
being in the retail/corporate banking sector, twenty reported being 
in the consumer/financial services (non-banking) sector, and 
seventeen reported being in the insurance sector. Other respondents 
included IT service providers, financial utilities, trade 
associations, and credit unions. Some respondents reported being in 
multiple sectors.
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2. Regulation
    As discussed in greater detail in section I.B above, although 
existing rules and regulations do not impose explicit cybersecurity 
requirements on advisers and funds, advisers' duties as fiduciaries, as 
well as several existing rules and regulations applicable to advisers 
and funds indirectly implicate cybersecurity. As fiduciaries, advisers 
are required to act in the best interest of their clients at all 
times.\124\ This fiduciary obligation includes taking steps to minimize 
cybersecurity risks that could lead to significant business disruptions 
or a loss or misuse of client data.\125\ Additionally, the Advisers Act 
compliance rule requires advisers to consider their fiduciary and 
regulatory obligations and formulate policies and procedures to address 
them.\126\ While the Advisers Act compliance rule does not enumerate 
specific cybersecurity elements that an adviser must include in its 
compliance program,\127\ the Commission has previously stated that 
advisers should consider factors creating risk exposure for the firm 
and its clients and design policies and procedures that address those 
risks.\128\ As the potential for a cybersecurity incident to create 
significant operational disruptions is well understood at this point, 
we understand that larger advisers with significant IT infrastructures 
are assessing cybersecurity risks when developing their compliance 
policies and procedures.\129\
---------------------------------------------------------------------------

    \124\ See supra footnote 9.
    \125\ See supra section I.B (discussing fiduciary obligations).
    \126\ See supra section I.B (discussing Advisers Act compliance 
rule).
    \127\ According to the rule, an adviser should identify 
conflicts of interest and other compliance factors creating risk 
exposure for the firm and its clients in light of the firm's 
particular operations. See supra footnote 10 and accompanying text.
    \128\ See Compliance Program Release, supra footnote 10, at n.22 
and accompanying text.
    \129\ See, e.g., Chuck Seets, Jamie Smith, and Steve Klemash, 
What Companies Are Disclosing About Cybersecurity Risk and 
Oversight, The Harvard Law School Forum on Corporate Governance 
(blog), (Aug. 25, 2020), available at https://corpgov.law.harvard.edu/2020/08/25/what-companies-are-disclosing-about-cybersecurity-risk-and-oversight/ (finding that 100 percent of 
Fortune 100 companies list cybersecurity as a risk factor in 2020 
SEC disclosures, and 93 percent referenced efforts to mitigate such 
risks).
---------------------------------------------------------------------------

    One potential risk for an adviser's client stemming from the 
cybersecurity threats faced by the adviser, is that a cybersecurity 
incident at the adviser could lead to the client's information \130\ 
being compromised or the loss of the client's assets. Nominally, the 
risk of outright loss should be limited for assets subject to 17 CFR 
275.206(4)-2 (the ``Custody Rule''),\131\ which are--by effect of said 
rule--generally held by ``qualified custodians.'' Qualified custodians 
are typically large financial institutions.\132\ Such financial 
institutions generally enjoy significant economies of scale, have large 
franchise (and reputation) values, and are subject to numerous 
additional regulatory requirements.\133\ For these reasons, 
cybersecurity protections provided by qualified custodians may be well-
developed, and could help mitigate the risk of outright loss of client 
funds and securities in advisers' custody.\134\
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    \130\ Advisers may possess a wide range of potentially sensitive 
information relating to their clients, including personally 
identifiable information, portfolio composition, transaction 
histories, and confidential correspondence.
    \131\ The Custody Rule applies only to client funds and 
securities. 17 CFR 275.206(4)-2. In practice, staff has observed 
that many advisers treat all assets in the same way.
    \132\ 17 CFR 275.206(4)-2(a) and (d). A qualified custodian can 
be a bank, broker-dealer, futures commission merchant, or certain 
foreign financial institutions. The qualified custodian maintains 
client's funds and securities in a separate account for each client. 
Alternatively, the adviser's clients' funds and securities can be 
held in an account under the adviser's name as agent or trustee for 
the clients.
    \133\ See, e.g., Interagency Guidelines Establishing Information 
Security Standards, 12 CFR 225 Appendix F; see also Information 
Technology Risk Examination (``InTREx'') Program, FDIC Financial 
Institution Letter FIL-43-2016 (June 30, 2016).
    \134\ See id. The qualified custodian industry is dominated by 
large U.S. banking entities which are subject to various 
regulations, guidance, and examinations relating to cybersecurity.
---------------------------------------------------------------------------

    Although protection provided by qualified custodians can mitigate 
risk to certain client assets to some extent, they cannot replace 
cybersecurity hygiene at the adviser level. As an adviser's ``custody'' 
of client assets implies a degree of control over those assets, 
compromise of adviser's systems--or the adviser's service providers' 
systems--could lead to unauthorized actions being taken with respect to 
those assets--including assets maintained with qualified custodians. 
Moreover, as observed by Commission staff, advisers may fail to realize 
that they have ``custody'' of client funds and securities, and may not 
place these assets with a qualified custodian.\135\ Such problems can 
occur when, for example, an adviser holds login credentials to clients' 
accounts or when the adviser or a related person of the adviser serves 
as trustee of, or has been granted power of attorney for, client 
accounts.\136\
---------------------------------------------------------------------------

    \135\ See SEC, EXAMS Risk Alert, Significant Deficiencies 
Involving Adviser Custody and Safety of Client Assets, (Mar. 4, 
2013), available at https://www.sec.gov/about/offices/ocie/custody-risk-alert.pdf.
    \136\ Id.
---------------------------------------------------------------------------

    The Investment Company Act compliance rule requires a fund to adopt 
and implement written policies and procedures reasonably designed to 
prevent violations of the Federal securities laws by the fund and named 
service providers.\137\ We believe that operating a fund today 
generally requires considerable IT sophistication, especially in the 
case of open-end funds.\138\ Therefore, we believe that all but the 
smallest funds likely take into account cybersecurity risks when 
developing their compliance policies and procedures under the 
Investment Company Act compliance rule.
---------------------------------------------------------------------------

    \137\ 17 CFR 270.38a-1. The Investment Company Act compliance 
rule also requires the fund to: (1) Designate a CCO responsible for 
administering the policies and procedures, subject to certain 
requirements, including providing the fund's board with an annual 
report; and (2) review the adequacy of the policies and procedures 
and the effectiveness of their implementation at least annually.
    \138\ The logistics of dealing with daily redemption requests, 
producing daily NAVs, and complying with the Commission's N-PORT 
filing requirements and liquidity rule (rule 22e-4 under the 
Investment Company Act) are not feasible without significant 
investments in IT infrastructure. See, e.g., Investment Company 
Reporting Modernization, Investment Company Act Release No. 32314 
(Oct. 13, 2016) [81 FR 81870 (Nov. 18, 2016)], at 360.
---------------------------------------------------------------------------

    A number of other Commission rules also implicate cybersecurity. 
Regulation S-P requires advisers and funds to adopt written policies 
and procedures that address protection of customer records and 
information, which likely would include reasonably designed 
cybersecurity policies and procedures.\139\ In addition, advisers and

[[Page 13547]]

funds subject to Regulation S-ID must develop and implement a written 
identity theft program that includes policies and procedures to 
identify and detect relevant red flags.\140\ Compliance with one or 
both of the aforementioned requirements requires certain reasonably 
designed cybersecurity policies and procedures to be in place.\141\
---------------------------------------------------------------------------

    \139\ See Regulation S-P Release, supra footnote 14; see also 
Disposal of Consumer Report Information Release, supra footnote 14 
(requiring written policies and procedures under Regulation S-P). 
See Compliance Program Release, supra footnote 10 (stating 
expectation that policies and procedures would address safeguards 
for the privacy protection of client records and information and 
noting the applicability of Regulation S-P).
    \140\ See Identity Theft Release, supra footnote 16.
    \141\ The scope of the Regulation S-ID differs from Regulation 
S-P. Regulation S-P applies to the protection of customer records 
and information by advisers and funds, whereas Regulation S-ID 
applies to funds and advisers that meet the definition of 
``financial institution'' or ``creditor'' that offers or maintains 
``covered accounts.'' See Regulation S-P Release, supra footnote 14; 
see also Identity Theft Release, supra footnote 16 ( ).
---------------------------------------------------------------------------

    Some affected registrants may also be subject to other regulators' 
rules implicating cybersecurity. We understand that private funds may 
be subject to the Federal Trade Commission's recently amended 16 CFR 
314.1 through 16 CFR 314.5 (Standards for Safeguarding Customer 
Information (``FTC Safeguards Rule'')) that contains a number of 
modifications to the existing rule with respect to data security 
requirements to protect customer financial information.\142\ To the 
extent that a private fund subject to the FTC Safeguards Rule is 
managed by an adviser that is registered with the Commission, our 
proposed rule would result in some overlapping regulatory 
requirements.\143\ As recently amended, the FTC Safeguards Rule 
generally requires financial institutions to develop, implement, and 
maintain a comprehensive information security program that consists of 
the administrative, technical, and physical safeguards the financial 
institution uses to access, collect, distribute, process, protect, 
store, use, transmit, dispose of, or otherwise handle customer 
information.\144\ The key provision of the rule is the requirement to 
design and implement a comprehensive information security program with 
safeguards for access controls, data inventory and classification, 
encryption, secure development practices, authentication, information 
disposal procedures, change management, testing, and incident 
response.\145\ It also requires written periodic risk assessments, and 
that the safeguards' be designed so as to address risks identified 
through such assessments.\146\ In addition, it requires financial 
institutions to take reasonable steps to select and retain service 
providers capable of maintaining appropriate safeguards for customer 
information and require those service providers by contract to 
implement and maintain such safeguards.\147\ Although narrower in scope 
than the rules being proposed here \148\ and generally more 
prescriptive,\149\ the FTC Safeguards Rule provisions are congruent 
with the requirements for cybersecurity policies and procedures,\150\ 
annual review,\151\ and board oversight being proposed here.\152\ The 
FTC Safeguards Rule does not currently include disclosure, regulatory 
reporting, or recordkeeping requirements.\153\
---------------------------------------------------------------------------

    \142\ See Federal Trade Commission, Standards for Safeguarding 
Customer Information (Oct. 27, 2021) [86 FR 70272 (Dec. 9, 2021)]. 
Although the amended rule became formally effective on January 10, 
2022, a number of detailed measures must generally be adopted by 
December 9, 2022. Id.
    \143\ The Gramm Leach Bliley Act (``GLBA'') delegates the 
authority to create privacy and security standards to specified 
financial regulators. Public Law 106-102, 113 Stat. 1338, Sec. Sec.  
501-527 (1999) (codified at 15 U.S.C. 6801 et seq.). The GLBA gives 
the FTC the regulatory authority for financial institutions that are 
not subject to the jurisdiction of any other regulator under that 
Act. Id. (defining ``financial institution'' to mean ``any 
institution the business of which is engaging in financial 
activities as described in section 4(k) of the Bank Holding Company 
Act of 1956'').
    \144\ 16 CFR 314.2(c).
    \145\ 16 CFR 314.4(c), (d), and (h). These ``safeguard'' 
elements of the FTC rule are effectively more prescriptive versions 
of the User Security and Access, Information Protection, and 
Cybersecurity Incident Response and Recovery elements being proposed 
here. See supra sections II.A.1.b, II.A.1.c, and II.A.1.e.
    \146\ 16 CFR 314.4(b), (c). These elements of the FTC rule are 
analogous to the Risk Assessment and Threat and Vulnerability 
Management elements being proposed here. See supra sections II.A.1.a 
and II.A.1.d.
    \147\ 16 CFR 314.4(d). Similar to the rules being proposed here, 
the FTC Safeguards Rule requires oversight of third-party service 
providers. See proposed rules 38a-2(a)(3)(ii) and 206(4)-
9(a)(3)(ii).
    \148\ The scope of the FTC Safeguards Rule is limited to 
protecting customer information. 16 CFR 314.3(a).
    \149\ The FTC Safeguards Rule imposes various technical 
requirements such as the use of encryption and multi-factor 
authentication. 16 CFR 314.4(c)(3) and (c)(5).
    \150\ See supra footnotes 145 and 146.
    \151\ See proposed rule 38a-2(b) and 16 CFR 314.4(i); see also 
supra section II.A.2.
    \152\ See proposed rule 38a-2(c) and 16 CFR 314.4(i); see also 
supra section II.A.3.
    \153\ The FTC, however, issued a supplemental notice of proposed 
rulemaking requesting comment on further amending the Safeguards 
Rule to require regulatory reporting of certain security events. See 
FTC, Standards for Safeguarding Customer Information (Oct. 27, 2021) 
[86 FR 70062 (Dec. 9, 2021)].
---------------------------------------------------------------------------

3. Market Structure
    Advisers that would be subject to the proposed rules provide a 
variety of services to their clients, including: Financial planning 
advice, portfolio management, pension consulting, selecting other 
advisers, publication of periodicals and newsletters, security rating 
and pricing, market timing, and educational seminars.\154\ Although 
advisers can expose clients to cybersecurity threats through any of 
these activities, the potential for harm can vary widely across 
advisers. A cybersecurity breach at an adviser that only offers advice 
on wealth allocation strategies may not have a significant negative 
effect on its clients: Such adviser may not hold much client 
information beyond address, payment details, and the client's overall 
financial condition. On the other hand, a breach at an adviser that 
performs portfolio management services exposes clients to much greater 
risk: Such an adviser will not only hold client personally identifiable 
information and records, but also typically have some degree of control 
over client assets. In addition, even a brief disruption to the 
services offered by advisers performing portfolio management services 
(e.g., a ransomware attack) could have large negative repercussions on 
the adviser's clients (e.g., inability to access funds and securities).
---------------------------------------------------------------------------

    \154\ See Form ADV.
---------------------------------------------------------------------------

    Based on Form ADV filings up to October 31, 2021, there were 14,774 
advisers with a total of $113 trillion in assets under management.\155\ 
Practically all (97%) of the advisers reported providing portfolio 
management services to their clients.\156\ Over half (55%) reported 
having custody \157\ of clients' cash or securities either directly or 
through a related person with client funds in custody totaling $39 
trillion.\158\
---------------------------------------------------------------------------

    \155\ Broadly, regulatory assets under management is the current 
value of assets in securities portfolios for which the adviser 
provides continuous and regular supervisory or management services. 
See Form ADV, Item 5F.
    \156\ Form ADV, Items 5G(2-5) (as of Oct. 4, 2021).
    \157\ Here, ``custody'' means ``holding, directly or indirectly, 
client funds or securities, or having any authority to obtain 
possession of them.'' An adviser also has ``custody'' if ``a related 
person holds, directly or indirectly, client funds or securities, or 
has any authority to obtain possession of them, in connection with 
advisory services [the adviser] provide[s] to clients.'' See 17 CFR 
275.206(4)-2(d)(2).
    \158\ Form ADV, Items 9A and 9B (as of Oct. 4, 2021).
---------------------------------------------------------------------------

BILLING CODE 8011-01-P

[[Page 13548]]

[GRAPHIC] [TIFF OMITTED] TP09MR22.064

    Figure 1 plots the distribution of client assets for which advisers 
have custody as defined in rule 206(4)-2. The distribution is highly 
skewed: Four advisers have custody over more than $1 trillion, while 
half of advisers have custody over less than $10 million. Approximately 
two thirds of advisers have custody of over $100 million. Many such 
advisers are quite small, with half reporting fewer than 15 
employees.\159\ Nearly all (97%) advisers rely on an unrelated person 
to act as a qualified custodian for customer assets.\160\ The qualified 
custodian industry is dominated by a small number of large U.S. 
entities.\161\
---------------------------------------------------------------------------

    \159\ Form ADV, Item 5A (as of Oct. 4, 2021).
    \160\ Form ADV, Item 9D (as of Oct. 4, 2021).
    \161\ Deloitte, The Evolution of a Core Financial Service 
Custodian & Depository Banks (2019), available at https://www2.deloitte.com/content/dam/Deloitte/lu/Documents/financial-services/lu-the-evolution-of-a-core-financial-service.pdf. See also 
Eva Su, Digital Assets and SEC Regulation (CRS Report No. R46208) 
(updated June 23, 2021), available at https://crsreports.congress.gov/product/pdf/R/R46208/5 (stating that four 
large banks service around $114 trillion of global assets under 
custody).
---------------------------------------------------------------------------

    The funds that would be directly subject to the proposed rules 
include open-end funds, registered closed-end funds, business 
development companies, and unit investment trusts.\162\ Table 1 
presents the breakdown of funds registered with the Commission in 2020. 
In 2020, there were 15,750 registered funds, with over $25 trillion in 
net assets.\163\ The vast majority of the registered funds (13,248) are 
open-end funds. Many of the funds (82%) are part of a fund family. 
There are 290 such fund families. As shown in Figure 2, fund families 
exhibit considerable variation in size: Some families consist of 
hundreds of funds, while others consist of just a handful of funds, 
with the median family consisting of 10 funds. The larger-than-median 
families represented the majority (10,389) of funds, and nearly all 
($23 trillion) industry NAV.\164\
---------------------------------------------------------------------------

    \162\ See supra footnote 22.
    \163\ This amount represents a subset of the $113 trillion of 
assets under management of advisers. See supra footnote 155 and 
accompanying text.
    \164\ Form N-CEN. ``Family of investment companies'' means, 
except for insurance company separate accounts, any two or more 
registered investment companies that (1) share the same investment 
adviser or principal underwriter, and (2) hold themselves out to 
investors as related companies for purposes of investment and 
investor services.

[[Page 13549]]



                     Table 1--Funds Subject to Proposed Rule Amendments, Summary Statistics
 [For each type of fund, this table presents estimates of the number, net asset value (NAV), and the percentage
of funds belonging to some fund family. It also presents the number and NAV of each type of fund that is part of
 one of the larger (above median) fund families. Data sources: 2020 N-1A, N-2, N-3, N-4, N-6, N-8B-2, S6, and N-
    CEN filings, Division of Investment Management Investment Company Series and Class Information (2020),\a\
                Division of Investment Management Business Development Company Report (2020).\b\]
----------------------------------------------------------------------------------------------------------------
                                                                                          Larger families
                                     Number of        NAV \c\      In family \d\ -------------------------------
            Fund type                  funds        ($billion)          (%)          Number of          NAV
                                                                                     funds \b\      ($billion)
----------------------------------------------------------------------------------------------------------------
Open-End \e\....................          13,248         $24,837              82           9,944         $22,613
Closed-End \f\..................             691             321              81             431             221
BDC \g\.........................              95             135  ..............  ..............  ..............
UIT \h\.........................           1,716  ..............  ..............  ..............  ..............
                                 -------------------------------------------------------------------------------
    Total.......................          15,750          25,378              82          10,389          23,052
----------------------------------------------------------------------------------------------------------------
\a\ SEC, Commission Investment Company Series and Class Information, available at https://www.sec.gov/open/datasets-investment_company.html.
\b\ SEC, Business Development Company Report, available at https://www.sec.gov/open/datasets-bdc.html.
\c\ NAV totals based on year 2020 Form N-CEN filings (as of Oct. 4, 2021) and Business Development Company
  Report.
\d\ Family affiliation information is from Form N-CEN filings. Note that there are minor discrepancies in
  estimates of the total number of funds based on N-CEN filings and estimates (reported elsewhere in this table)
  based on fund registration forms.
\e\ Form N-1A filers; includes all open-end funds, including ETFs registered on Form N-1A.
\f\ Form N-2 filers not classified as BDCs.
\g\ Form N-2 filers classified as BDCs.
\h\ Form N-3, N-4, N-6, N-8B-2, and S-6 filers.

[GRAPHIC] [TIFF OMITTED] TP09MR22.065

    Although private funds would not be directly subject to the 
proposed rules, they would be indirectly affected through the proposed 
provisions on advisers. Approximately one third of advisers (5,231) 
report advising private funds.\165\ Private funds have grown 
dramatically over the past decade. As plotted in Figure 3, advisers' 
reported assets under management of private funds more than doubled 
from $8 trillion to $17 trillion, while the reported number of private 
funds grew from 24 thousand to 44 thousand.\166\
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    \165\ Form ADV, Item 7B (as of Oct. 4, 2021).
    \166\ Form ADV, Schedule D (as of Sept. 30, 2021).

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[[Page 13550]]

[GRAPHIC] [TIFF OMITTED] TP09MR22.066

BILLING CODE 8011-01-C

D. Benefits and Costs of the Proposed Rule and Form Amendments

    The proposed rules would impose four types of new requirements on 
advisers and funds: (1) Cybersecurity policies and procedures; (2) 
cybersecurity disclosures; (3) regulatory reporting of cybersecurity 
incidents; and (4) recordkeeping of cybersecurity incidents. The new 
requirements would be substantially similar for both advisers and 
funds. In this section, we consider the benefits and costs of each of 
these in turn.\167\
---------------------------------------------------------------------------

    \167\ Throughout the following, we also consider benefits and 
costs related to potential effects on economic efficiency, 
competition, and capital formation. We summarize these effects in 
section III.E.
---------------------------------------------------------------------------

1. Cybersecurity Policies and Procedures
    The Commission's proposed risk management rules \168\ would require 
all advisers and funds registered with the Commission to implement 
reasonably designed cybersecurity policies and procedures addressing 
key elements of cybersecurity preparedness: (1) Risk assessment, 
including assessment of risks associated with certain service 
providers, oversight of such providers, and appropriate written 
contracts with such providers; (2) user security and access; (3) 
information protection; (4) cybersecurity threat and vulnerability 
management; and (5) cybersecurity incident response and recovery.\169\ 
Advisers and funds would need to review these policies and procedures 
at least annually and to prepare a written report of the review's 
findings; for funds the policies and reviews would be subject to board 
oversight.\170\
---------------------------------------------------------------------------

    \168\ See proposed rules 206(4)-9 and 38a-2; see also supra 
section II.A (discussing proposed risk management rules).
    \169\ See supra section II.A.1 (discussing elements of proposed 
cybersecurity policies and procedures).
    \170\ In the case of funds, the initial cybersecurity policies 
and procedures would need to be approved by the fund's board, 
including a majority of its independent directors; the board would 
also be provided annual written reports detailing the findings of 
the reviews. See supra sections II.A.2 and II.A.3 (discussing annual 
written reports and fund board oversight).
---------------------------------------------------------------------------

    As discussed in section III.C.2, it can be argued that the 
fiduciary obligations of advisers, existing rules applicable to 
advisers and funds, the modern technological context, and commonly 
employed best practices that forms the baseline, may require funds and 
advisers to implement reasonably designed cybersecurity policies and 
procedures.\171\ However, as noted earlier, Commission staff has 
observed that some funds and advisers practices in the cybersecurity 
area raise concerns, and there is reason \172\ and evidence \173\ to 
suggest that underinvestment in cybersecurity may be a fairly 
widespread problem.
---------------------------------------------------------------------------

    \171\ See supra section III.C.2 (discussing existing rules).
    \172\ See supra section III.C.1.
    \173\ See IIF/McKinsey Report, supra footnote 95.
---------------------------------------------------------------------------

a. Benefits
    We believe that the Commission's proposed risk management rules 
would, by imposing comprehensive, explicit requirements to address key 
elements of cybersecurity preparedness, generally improve the 
cybersecurity policies and procedures of advisers and funds, and in so 
doing reduce registrants'--and hence their clients' and investors'--
exposure to cybersecurity incidents, as well as reduce the costs 
incurred by registrants (and their clients and investors) in dealing 
with such incidents.
    Because unaddressed cybersecurity risks impose externalities on the 
broader financial system, the proposed risk management rules would also 
likely reduce systemic risk in the economy.\174\ In addition, we expect 
that by imposing explicit cybersecurity requirements on registrants, 
the proposed rules would enhance the Commission's ability to oversee 
and enforce rules designed to protect client and investor information 
and assets.
---------------------------------------------------------------------------

    \174\ See supra footnote 97 and accompanying text.
---------------------------------------------------------------------------

    Registrants that have already implemented cybersecurity policies 
and

[[Page 13551]]

procedures that adhere to best practices and are consistent with the 
proposed rules are not expected to undertake material changes to their 
existing policies and procedures, in which instance the proposed rules 
would have limited added benefits. Conversely, registrants who do not 
currently have cybersecurity policies and procedures or have policies 
and procedures that lack one or more of the enumerated elements, such 
as those that are not reasonably designed or not reviewed on an annual 
basis would need to improve their policies and procedures to comply 
with the proposed rules with attendant benefits to registrants, 
investors, the broader financial system, and regulators. As we do not 
currently have reliable data on the extent to which registrants' 
existing policies and procedures follow industry best practices, 
address cybersecurity risks, their ``reasonableness,'' or the frequency 
at which they are reviewed, it is not possible for us to quantify the 
scale of the benefits arising from the proposed requirements.\175\
---------------------------------------------------------------------------

    \175\ Generally, quantification in areas that involve 
``reasonableness'' criteria is difficult as establishing 
reasonableness requires case-by-case consideration.
---------------------------------------------------------------------------

b. Costs
    We believe that the costs associated with the proposed amendments 
related to cybersecurity policies and procedures would primarily result 
from compliance costs borne by advisers and funds in the adoption and 
implementation of ``reasonably designed'' cybersecurity policies. In 
addition to the aforementioned direct compliance costs faced by 
registrants, the proposed requirements would likely impose indirect 
costs to service providers catering to advisers and funds. Under the 
proposal, the cybersecurity practices of these service providers would 
need to be evaluated by advisers and funds subject to the proposed 
amendments to help ensure that service providers implement and maintain 
cybersecurity measures that address the required elements of the 
policies and procedures provisions of this proposal.\176\ Some of the 
cost of such evaluations, as well as the costs of resulting remedial 
actions may fall on service providers. Moreover, because the proposal 
requires registrants to include contractual provisions in its 
agreements with service providers to guarantee adherence to the 
required measures, the costs associated with negotiating such 
contractual provisions may also be partly borne by service 
providers.\177\ Ultimately, all these costs may be passed on--in whole 
or in part--to clients and investors.
---------------------------------------------------------------------------

    \176\ See proposed rules 206(4)-9(a)(3)(ii) and 38a-2(a)(3)(ii).
    \177\ Id.
---------------------------------------------------------------------------

    As discussed above, we believe that advisers and funds that 
currently follow cybersecurity best practices will likely find that 
their existing policies and procedures are largely consistent with the 
requirement of this proposal and as such, would not need to be 
materially altered. Similarly, we believe that advisers of private 
funds subject to the FTC Safeguards Rule will have already developed 
policies and procedures consistent with the requirements of the current 
proposal.\178\ Consequently, for such registrants, the compliance costs 
associated with the proposed policies and procedures requirements would 
likely be minimal.\179\ Conversely, registrants who currently do not 
have policies and procedures in place meeting the proposed requirement 
would bear compliance costs related to improving them. In the extreme, 
we expect that registrants with no current cybersecurity policies and 
procedures would have to bear substantial costs. Typical estimates of 
cybersecurity spending in the financial industry are on the order of 
0.5% of revenue; \180\ assuming that levels of spending of this order 
are required to obtain ``reasonably designed'' policies and procedures, 
registrants who have no such policies would need to bear costs of that 
order. Of course, as discussed above, it is unlikely that a fund or 
adviser operating today completely lacks cybersecurity policies and 
procedures. Here, the same issues that make quantifying the benefits 
impracticable also render quantification of compliance costs 
impracticable.\181\ However, as discussed in section III.C.1 we believe 
that existing adviser and fund rules require certain cybersecurity 
practices to be substantially in place; consequently, the largest 
compliance costs resulting from the proposed policies and procedures 
requirement are likely to be borne by registrants not currently 
following industry noted best practices.\182\ We also anticipate that 
the bulk of any compliance costs associated with developing and 
implementing policies and procedures would be incurred at the level of 
an advisory firm (or parent firm) and fund family, rather than by each 
adviser and fund individually.\183\
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    \178\ See supra section III.C.2.
    \179\ We separately consider direct costs associated with 
information collection burdens within the meaning of the Paperwork 
Reduction Act in section IV. See also supra footnote 86.
    \180\ See supra footnote 107.
    \181\ As noted earlier, we do not currently have reliable data 
on the extent to which registrants address cybersecurity risks, 
their ``reasonableness,'' or the frequency at which they are 
evaluated.
    \182\ See supra section III.C.2.
    \183\ See supra section III.C.3 (noting that 82% of funds belong 
to 290 fund families).
---------------------------------------------------------------------------

    The proposed provisions require registrants to consider the 
cybersecurity risks resulting from their reliance on third-party 
service providers that receive, maintain, or process adviser or fund 
information, or are otherwise permitted to access their information 
systems and any information residing therein.\184\ Thus, the proposed 
requirements would affect a broad range of service providers: Not only 
entities such as custodians, brokers, and valuation services, but also 
email providers, customer relationship management systems, cloud 
applications, and other technology vendors that meet this criterion. 
Registrants would be required to document that such service providers 
implement and maintain appropriate measures to protect information of 
clients and investors and the systems hosting said information, 
pursuant to a written contract between the registrant and its service 
provider.\185\ As a result, practically all service providers providing 
business-critical services would face market pressure to (and thus bear 
costs related to) document and, in some cases, enhance their 
cybersecurity practices so as to satisfy affected registrants' 
requirements.\186\ Some funds and advisers may find that one or several 
of their existing service providers may not be able to--or wish to--
support compliance with the proposed rule. Similarly, some funds and 
advisers may find that one or several of their existing service 
providers may not be able to--or wish to--enter into suitable written 
contracts. In these cases, the fund or adviser would need to switch 
service providers and bear the associated switching costs, while the 
service providers would suffer loss of their fund and adviser 
customers.\187\ In other cases, a fund or adviser may determine that a 
service provider can be used subject to renegotiation of service 
agreements,

[[Page 13552]]

potentially imposing substantial contracting costs on the parties.\188\
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    \184\ See proposed rules 206(4)-9 and 38a-2.
    \185\ See supra section II.A.1.c.
    \186\ We note that a service provider involved in any business-
critical function would likely need to receive, maintain, or process 
either adviser or fund information.
    \187\ If for example the fund or adviser has insufficient market 
power to affect changes in the service provider's cybersecurity 
policies. This is most likely to occur with smaller advisers and 
funds employing generic service providers who do not specialize in 
providing services to funds or advisers.
    \188\ These costs include the direct costs associated with 
reviewing and renegotiating existing agreements as well as indirect 
costs arising from service providers requiring additional 
compensation for providing the required contractual provisions.
---------------------------------------------------------------------------

    We expect that for service providers that offer specialized 
services to the adviser and fund industry, the proposed rule amendments 
would impose additional costs related to remediating and/or documenting 
the provider's cybersecurity practices so as to satisfy advisers and 
funds subject to the proposed amendments. These costs may be passed on 
to advisers and funds and ultimately to clients and investors. However, 
we do not generally expect these costs to be large, as we believe that 
the nature of service provider business models and resulting economies 
of scale give service providers motivation for and advantages in the 
development of robust cybersecurity measures and that such measures 
would generally address the elements required in this proposal.\189\
---------------------------------------------------------------------------

    \189\ For such service providers, the delivery of services via 
communication networks is often at the core of the business, 
practically necessitating reasonably designed cybersecurity 
policies. Moreover, such service providers generally deliver their 
products (or some customizations thereof) to multiple customers, 
resulting in economies of scale in the development of cybersecurity 
measures.
---------------------------------------------------------------------------

    Providers of more generic services (e.g., customer relationship 
management systems, cloud storage, or email systems) may also bear some 
costs related to satisfying requests from large funds and advisers 
attempting to assess service providers' cybersecurity risk. For 
example, such providers may be asked to provide additional 
documentation of their cybersecurity practices, to offer additional 
guarantees, or to change some aspect of their practices during contract 
negotiations. Even if satisfying the intent of these additional 
customer requirements would not represent a significant expense for 
service providers, contracting frictions are likely to prevent some 
service providers from doing so.\190\ In such cases, registrants would 
bear costs related to finding alternative service providers while 
existing service providers would suffer lost revenue.\191\
---------------------------------------------------------------------------

    \190\ For example, the costs associated with legal review of 
alterations to standard contracts may not be worth bearing if 
affected registrants represent a small segment of the service 
provider's business.
    \191\ At the same time, these frictions would benefit service 
providers that cater to customers in regulated industries.
---------------------------------------------------------------------------

    The aforementioned costs would be particularly acute for smaller 
advisers and funds that rely on generic service providers. Smaller 
registrants may not have sufficient bargaining power with service 
providers of more generic services to effect meaningful changes in 
cybersecurity practices or contractual provisions.\192\ Thus, to the 
extent that the existing cybersecurity practices of generic service 
providers cannot be reconciled with the proposed requirements, some 
advisers and funds may be forced to switch providers and bear the 
associated switching costs; at the same time, the former service 
providers would suffer loss of revenue from these customers.
---------------------------------------------------------------------------

    \192\ For example, it is highly unlikely that a small investment 
adviser would be able to effect any changes in its contracts with 
providers of generic services such as Amazon or Google.
---------------------------------------------------------------------------

2. Disclosures of Cybersecurity Risks and Incidents
    Proposed amendments to part 2A for Form ADV and proposed amendments 
to fund registration statements would require a narrative description 
of the cybersecurity risks advisers' face, how they assess, prioritize, 
and address cybersecurity risks and any significant adviser or fund 
cybersecurity incidents that had occurred in the past two years.\193\ 
Under the proposed amendments, significant cybersecurity incidents 
would need to be disclosed either by filing an amendment to Form ADV 
promptly (in the case of advisers) or by amending a prospectus by 
filing a supplement with the Commission (in the case of funds).\194\ 
For fund registration statements, the proposed amendments would require 
the disclosures to be submitted using the Inline XBRL structured data 
language.\195\
---------------------------------------------------------------------------

    \193\ See supra section II.C.
    \194\ See proposed rule 204-3; see also supra footnotes 80 and 
81 and accompanying text.
    \195\ See supra section II.C.4.
---------------------------------------------------------------------------

a. Benefits
    As discussed in section III.B there exists an information asymmetry 
between clients and investors vis-[agrave]-vis advisers and funds. This 
information asymmetry, together with limitations to private 
contracting,\196\ inhibits clients' and investors' ability to screen 
and discipline advisers and funds based on the effectiveness of their 
cybersecurity policies. In principle, the proposed disclosure 
requirements would help alleviate this information asymmetry, and in so 
doing enable clients and investors to better assess the effectiveness 
of advisers' and funds' cybersecurity preparations and the 
cybersecurity risks of different advisers and funds. For example, 
clients and investors could use the frequency or nature of significant 
cybersecurity incidents--as disclosed under the proposed amendments--to 
infer an adviser's or fund's effort toward preventing cyberattacks. 
Likewise, clients and investors could use the narrative descriptions of 
cybersecurity incident handling procedures to avoid advisers and funds 
with less well-developed procedures.
---------------------------------------------------------------------------

    \196\ See Tirole, supra footnote 94.
---------------------------------------------------------------------------

    The scale of an information asymmetry mitigation benefit would 
depend on the degree to which the proposed disclosures reveal 
information useful to clients and investors about risks and on their 
ability to use it to infer the level of cybersecurity preparations 
implemented by advisers and funds. Even when cybersecurity preparations 
are high, a cybersecurity attack may succeed.\197\ If some types of 
reportable cybersecurity incidents are largely the result of chance 
while other types are a result of insufficient cybersecurity 
preparation, the client or investor would need to be able to 
differentiate between the two types of incidents to extract useful 
information about a fund's or adviser's level of cybersecurity 
preparations.\198\ Many clients and investors are unlikely to be 
experts on cybersecurity, and their ability to make these distinctions 
could be limited.\199\
---------------------------------------------------------------------------

    \197\ Although ``adequate'' cybersecurity preparations can be 
expected to reduce cybersecurity incidents, they are unlikely to 
eliminate them entirely. For example, a firm may suffer a 
cybersecurity breach due to an attacker discovering a ``zero-day 
exploit'' (i.e., an exploit that is not generally known to exist) in 
some underlying IT system. As a practical matter, even the best 
preparation (e.g., keeping up to date with vendor patches, quickly 
addressing vulnerabilities, etc.) may not be effective against such 
exploits. Similarly, for many firms, it may not be feasible to fix a 
known vulnerability immediately (e.g., weakness in an encryption 
algorithm) as the fix may require upgrades to numerous systems. In 
this case, many firms could be exposed to a vulnerability for some 
time. Because the time it takes for an attacker to exploit such a 
vulnerability successfully is likely to involve some element of 
chance, firms that ultimately suffer an incident resulting from such 
a vulnerability may simply be ``unlucky.''
    \198\ For example, incidents resulting from advanced persistent 
threats may be unavoidable, or avoidable only through very high 
level of effort. See supra footnote 100. On the other hand, 
incidents arising from brute force password attacks can be avoided 
with minimal effort. Observers unable to differentiate between these 
two types of incidents would have difficulty drawing correct 
inference about the relative effort of different incident reporters.
    \199\ They may however rely on experts for such assessments.
---------------------------------------------------------------------------

    To the extent such information asymmetry reduction effects result 
from the proposed cybersecurity incident disclosures in fund 
registration statements, an Inline XBRL requirement would likely 
augment those effects by

[[Page 13553]]

making the proposed disclosures more easily retrievable and usable for 
aggregation, comparison, filtering, and other analysis.\200\ As a point 
of comparison, XBRL requirements for public operating company financial 
statement disclosures have been observed to mitigate information 
asymmetry by reducing information processing costs, thereby making the 
disclosures easier to access and analyze.\201\ This reduction in 
information processing cost has been observed to facilitate the 
monitoring of companies by external parties, and, as a result, to 
influence companies' behavior, including their disclosure choices.\202\
---------------------------------------------------------------------------

    \200\ The proposed Inline XBRL requirement would apply to 
cybersecurity risks and incidents disclosures in fund registration 
statements on Forms N-1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6. See 
supra section II.C.4. Advisers would not be required to tag the 
proposed Form ADV disclosures in Inline XBRL. See supra section 
II.C.1.
    \201\ See., e.g., Joung W. Kim, Jee-Hae Lim, and Won Gyun No, 
The Effect of First Wave Mandatory XBRL Reporting Across the 
Financial Information Environment, 26.1 Journal of Information 
Systems 127-153 (Spring 2012) (finding evidence that ``mandatory 
XBRL disclosure decreases information risk and information asymmetry 
in both general and uncertain information environments''); Yuyun 
Huang, Jerry T. Parwada, Yuan George Shan, and Joey Wenling Yang, 
Insider Profitability and Public Information: Evidence From the XBRL 
Mandate (Working Paper) (Sept. 17, 2019) (finding that XBRL levels 
the playing field between insiders and non-insiders, in line with 
the hypothesis that ``the adoption of XBRL enhances the processing 
of financial information by investors and hence reduces information 
asymmetry'').
    \202\ See, e.g., Jeff Zeyun Chen, Hyun A. Hong, Jeong-Bon Kim, 
and Ji Woo Ryou, Information Processing Costs and Corporate Tax 
Avoidance: Evidence from the SEC's XBRL Mandate, 40 Journal of 
Accounting and Public Policy 2 (Mar.-Apr. 2021) (finding XBRL 
reporting decreases likelihood of firm tax avoidance because ``XBRL 
reporting reduces the cost of IRS monitoring in terms of information 
processing, which dampens managerial incentives to engage in tax 
avoidance behavior''); Paul A. Griffin, Hyun A. Hong, Jeong-Bon Kim, 
and Jee-Hae Lim, The SEC's XBRL Mandate and Credit Risk: Evidence on 
a Link between Credit Default Swap Pricing and XBRL Disclosure 
(finding XBRL reporting enables better outside monitoring of firms 
by creditors, leading to a reduction in firm default risk), 2014 
American Accounting Association Annual Meeting (2014); Elizabeth 
Blankespoor, The Impact of Information Processing Costs on Firm 
Disclosure Choice: Evidence from the XBRL Mandate, 57 Journal of 
Accounting Research 4 (Sept. 2019) (finding ``firms increase their 
quantitative footnote disclosures upon implementation of XBRL 
detailed tagging requirements designed to reduce information users' 
processing costs,'' and ``both regulatory and non-regulatory market 
participants play a role in monitoring firm disclosures,'' 
suggesting that the ``processing costs of market participants can be 
significant enough to impact firms' disclosure decisions'').
---------------------------------------------------------------------------

    While these observations are specific to operating company 
financial statement disclosures, and not to disclosures from funds that 
are outside the financial statements, such as the proposed 
cybersecurity incident disclosures, they indicate that the proposed 
Inline XBRL requirements could directly or indirectly (i.e., through 
information intermediaries such as financial media, data aggregators, 
and academic researchers), provide fund investors with increased 
insight into cybersecurity-related incidents at specific funds and 
across funds, fund managers, and time periods.\203\ Also, in contrast 
to XBRL financial statements (including footnotes), which consist of 
tagged quantitative and narrative disclosures, the proposed incident 
disclosures would consist largely of tagged narrative disclosures.\204\ 
Tagging narrative disclosures can facilitate analytical benefits such 
as automatic comparison/redlining of these disclosures against prior 
periods and the performance of targeted artificial intelligence/machine 
learning assessments (tonality, sentiment, risk words, etc.) of 
specific cybersecurity disclosures rather than the entire unstructured 
document.\205\
---------------------------------------------------------------------------

    \203\ See, e.g., Nina Trentmann, Companies Adjust Earnings for 
Covid-19 Costs, but Are They Still a One-Time Expense? The Wall 
Street Journal (Sept. 4, 2020) (citing an XBRL research software 
provider as a source for the analysis described in the article); 
Bloomberg Lists BSE XBRL Data, XBRL.org (Mar. 17, 2019); Rani 
Hoitash, and Udi Hoitash, Measuring Accounting Reporting Complexity 
with XBRL, 93 The Accounting Review 259-287 (2018).
    \204\ The proposed fund disclosure requirements do not expressly 
require the disclosure of any quantitative values in the discussion 
of cybersecurity incidents; if a fund includes any quantitative 
values as nested within the required discussion (e.g., disclosing 
the number of days until containment), those values would be 
individually detail tagged, in addition to the block text tagging of 
the narrative disclosures.
    \205\ To illustrate, using the search term ``remediation'' to 
search through the text of all fund registration statements over a 
certain period of time, so as to analyze the trends in funds' 
disclosures related to cybersecurity incident remediation efforts 
during that period, could return many narrative disclosures outside 
of the cybersecurity incident discussion (e.g., disclosures related 
to potential environmental liabilities in the risk factors section).
---------------------------------------------------------------------------

    The markets for advisory services and funds present clients and 
investors with a complex, multi-dimensional, choice problem. In 
choosing an adviser or fund, clients and investors may consider 
investment strategy, ratings or commentaries, return histories, fee 
structures, risk exposures, reputations, etc. While we are not aware of 
any studies that examine the role perceptions of cybersecurity play in 
this choice problem, the extant academic literature suggests that 
investors focus on salient, attention-grabbing information such as past 
performance and commissions when making such choices.\206\ Moreover, to 
the extent that cybersecurity disclosures are ``boilerplate'' they may 
be less informative.\207\ Conversely, cybersecurity incidents--
especially those that involve loss of customer data or assets--are 
likely to garner attention. Thus, we expect that the proposed 
requirement to disclose significant cybersecurity incidents would have 
more of a direct effect on clients' and investors' choices. In 
addition, third parties such as rating services, journalists, or 
``adviser advisers'' \208\--who may be more capable of extracting 
useful information out of the proposed disclosures--may incorporate it 
in assessments ultimately provided to clients and investors. Whether 
directly or indirectly, registrants with subpar cybersecurity policies 
and procedures--as revealed by ``excess'' cybersecurity incidents--
could face pressure to improve said policies to reduce such excess 
incidents. Similarly, with respect to the proposed disclosures of 
cybersecurity incident handling procedures, funds and advisers that 
disclose having substandard procedures could face market pressure to 
improve the quality of their cybersecurity incident handling 
procedures.\209\
---------------------------------------------------------------------------

    \206\ See, e.g., Brad M. Barber, Terrance Odean, and Lu Zheng, 
Out of Sight, Out of Mind: The Effects of Expenses on Mutual Fund 
Flows, 78 (6) The Journal of Business 2095-2120 (2005).
    \207\ However, the process of adopting ``boilerplate'' language 
by advisers and funds may itself affect improvements in policies and 
procedures.
    \208\ ``Adviser advisers'' are advisers who assist clients in 
selecting other advisers to manage some subset of the client's 
portfolio.
    \209\ Here we are assuming that clients, investors, or third 
parties evaluating advisers and funds would favor advisers and funds 
that include standard language relating to cybersecurity procedures 
in their disclosures. Further, we assume that registrants with 
``superior'' procedures could adopt standard disclosures with no 
cost; conversely registrants with ``substandard'' procedures would 
need to affect improvements in their procedures to be able to 
furnish the standard disclosure.
---------------------------------------------------------------------------

    The proposed incident disclosure requirement should also benefit 
the current clients and investors of advisers and funds that experience 
a cybersecurity incident by providing notice that personal information, 
assets, or funds may have been compromised. Based on the notice, the 
clients and investors could take timely remedial actions such as 
auditing financial statements, blocking accounts that may have been 
compromised, or monitoring account activity.
b. Costs
    Because reasonably designed cybersecurity policies and procedures 
would--in practice--require the collection of information that make up 
the proposed disclosures, we do not believe that the disclosure 
requirement

[[Page 13554]]

itself would impose significant compliance costs beyond those already 
discussed.\210\ However, these disclosures may impose costs due to 
market reactions, and due to the information they reveal to 
cybercriminals.
---------------------------------------------------------------------------

    \210\ See supra section III.D.1. Administrative costs related to 
disclosure, including costs associated with legal reviews of such 
disclosures and costs attendant to tagging an additional section of 
a fund registration statement that is already subject to Inline XBRL 
requirements, are covered in the Paperwork Reduction Act analysis in 
section IV. See also supra footnote 86.
---------------------------------------------------------------------------

    Funds and advisers that report many cybersecurity incidents and--to 
a lesser extent--those who report less well-developed cybersecurity 
incident handling procedures may bear costs arising from reactions in 
the marketplace: They may lose business or suffer harm to their 
reputations and brand values.\211\ These costs would likely be borne 
not only by advisers and funds with inadequate cybersecurity policies, 
but also those who experience cybersecurity incidents despite having 
made reasonable efforts to prevent them. In addition, to the extent 
that clients and investors ``overreact'' \212\ to disclosures of 
cybersecurity breaches, advisers and funds may pursue a strategy of 
``overinvestment'' in cybersecurity precautions (to avoid such 
overreactions) resulting in reduced efficiency.
---------------------------------------------------------------------------

    \211\ We expect that clients and investors will be more likely 
to act in response to realized cybersecurity incidents than in 
response to advisers and funds descriptions of their policies and 
procedures.
    \212\ Such overreactions can be the result of overconfidence 
about the precision of the signal. See, e.g., Kent Daniel, David 
Hirshleifer, and Avanidhar Subrahmanyam, Investor Psychology and 
Security Market Under- and Overreactions, 53 (6) The Journal of 
Finance 1839-85 (Dec. 1998).
---------------------------------------------------------------------------

    Mandating disclosure about cybersecurity incidents entails a 
tradeoff. While disclosure can inform clients and investors, disclosure 
can also inform cyber attackers that they have been detected. Also, 
disclosing too much (e.g., the types of systems that were affected, how 
they were compromised) could be used by cybercriminals to better target 
their attacks, imposing costs on registrants. For example, announcing a 
cybersecurity incident naming a specific piece of malware and the 
degree of compromise can imply a trove of details about the structure 
of the victim's computer systems, the security measures employed (or 
not employed), and potentially suggest promising attack vectors for 
future attacks by other would-be attackers. Under the proposed 
amendments, registrants would be required to disclose cybersecurity 
incidents through filing of amendments to From ADV or registration 
statements in a timely manner.\213\ In so doing, the registrants would 
need to identify the entity or entities affected, when the incidents 
were discovered and whether they are ongoing, whether any data was 
stolen, altered, or accessed or used for any other unauthorized 
purpose, the effect of the incident on the adviser's operations, and 
whether the adviser or service provider has remediated or is currently 
remediating the incident.\214\ Thus, registrants would generally not be 
required to disclose technical details about incidents that could 
compromise their cybersecurity going forward. As before, the costs 
associated with conveying this information to attackers is 
impracticable to estimate.\215\
---------------------------------------------------------------------------

    \213\ See supra section II.C.
    \214\ Id.
    \215\ As noted in the Broad Economic Considerations section 
(supra section III.B), firms are generally hesitant to provide 
information about cyberattacks. Similarly, cybercriminals are not 
generally forthcoming with data on attacks, their success, or 
factors that made the attacks possible. Consequently, data from 
which plausible estimates could be made is not available.
---------------------------------------------------------------------------

    In addition, for one type of registrant--unit investment trusts--
the requirement to tag the cybersecurity incident disclosures in Inline 
XBRL would create additional compliance costs. Unlike the other funds 
subject to the proposed cybersecurity incident disclosure requirements, 
unit investment trusts that register on Form N-8B-2 and file post-
effective amendments on Form S-6 are not currently subject to Inline 
XBRL requirements.\216\ As such, for these unit investment trusts, the 
proposed Inline XBRL requirement would entail compliance costs beyond 
the marginal administrative costs associated with tagging an additional 
section of a filing that is already partially tagged.\217\ For example, 
these unit investment trusts could incur implementation costs 
associated with licensing Inline XBRL compliance software and training 
staff to use the software to tag the cybersecurity incident 
disclosures. To the extent a unit investment trust outsources its 
tagging to a third-party service provider, any costs that such a 
service provider would incur in developing the capability to tag unit 
investment trust filings could be passed on to the unit investment 
trust. Given the improvements in technology and the increased 
familiarity with XBRL tagging at advisers and service providers since 
fund XBRL requirements were first adopted in 2009, we expect these 
costs would be diminished relative to the compliance costs that funds 
incurred at the time of initial XBRL adoption.\218\
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    \216\ See supra footnote 83.
    \217\ Such administrative costs are covered in the Paperwork 
Reduction Act analysis in section IV.
    \218\ As a point of comparison, an AICPA survey of small 
reporting companies found a 45% decline in the average annual cost 
and a 69% decline in the median annual cost of fully outsourced XBRL 
tagging services from 2014 to 2017. See Michael Cohn, AICPA Sees 45% 
Drop in XBRL Costs for Small Companies, Acct. Today, (Aug. 15, 
2018), available at https://www.accountingtoday.com/news/aicpa-sees-45-drop-in-xbrl-costs-for-small-reporting-companies.
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3. Regulatory Reporting of Cybersecurity Incidents
    Under the proposed rules, advisers would be required to report 
significant cybersecurity incidents to the Commission within 48 
hours.\219\ The reporting requirement would extend to significant 
cybersecurity incidents at an adviser's ``covered client''--a client 
that is a registered investment company or business development 
company, or a private fund.\220\ Cybersecurity incident reports would 
be submitted on proposed new Form ADV-C, and amended when information 
reported previously becomes materially inaccurate or if new material 
information is discovered.\221\ Under the proposed rules, significant 
cybersecurity incidents are those that significantly affect the 
critical operations of an adviser or fund or lead to unauthorized 
access or use of information that results in substantial harm to the 
adviser or its clients or a fund or its investors.\222\ Form ADV-C 
reports would be treated as confidential by the Commission.\223\
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    \219\ See proposed rule 204-6; see also supra section II.B.
    \220\ Id.; see also proposed rule 38a-2.
    \221\ See proposed rule 204-6; see also supra section II.B.
    \222\ See proposed rule 204-6(b); see also proposed rule 206(4)-
9.
    \223\ See supra section II.B.
---------------------------------------------------------------------------

a. Benefits
    Confidential, regulatory reporting of significant cybersecurity 
incidents would allow the Commission staff to assess trends, identify 
emerging risks in cybersecurity, and facilitate information sharing 
among advisers and funds. It would also allow the Commission to better 
coordinate a response to cybersecurity incidents which have the 
potential to cause broader disruptions to the financial markets, 
undermine financial stability, and contribute to systemic risk.
    As discussed in section III.B, advisers and funds have incentives 
to not disclose information about cybersecurity incidents. Such 
incentives reduce the information available about cybersecurity threats 
and thereby inhibit the efficacy of collective (i.e., an

[[Page 13555]]

industry's or a society's) cybersecurity measures.\224\ At the same 
time, complete transparency in this area likely runs the risk of 
facilitating future attacks.\225\ As discussed in section III.C.1, the 
challenge of effective information sharing has long been recognized, 
and government efforts at encouraging such sharing on a voluntary basis 
have had only limited success.\226\ The proposed reporting requirement, 
by channeling incident reports through the Commission, would create the 
opportunity for sharing of information valuable in preventing future 
cyberattacks, while preserving confidentiality and limiting the 
cybersecurity risks of public disclosure. For example, a series of 
reports detailing the compromise of a system commonly employed by small 
advisers could result in the Commission issuing a notice to similar 
advisers of the risks of the particular system. On the other hand, a 
general uptick in ``phishing'' style attacks using particular language 
and originating from similar addresses could lead the Commission to 
issue a risk alert to all registrants. Of course, in some cases, it may 
not be possible for the Commission to disclose any information 
discovered from a report without violating the confidentiality of the 
reporting entity or without exacerbating cybersecurity risks for some 
entities.\227\ In such cases, the Commission may still be able to share 
information with relevant law enforcement or national security 
agencies.
---------------------------------------------------------------------------

    \224\ See, e.g., Denise E. Zheng and James A. Lewis, Cyber 
Threat Information Sharing, Center for Strategic and International 
Studies (Mar. 2015), available at https://www.csis.org/analysis/cyber-threat-information-sharing (recommending that regulators 
encourage information sharing).
    \225\ Although ``security through obscurity'' as a cybersecurity 
philosophy has long been derided, ``obscurity,'' or more generally 
``deception,'' has been recognized as an important cyber resilience 
technique. See Ross, Ron, Victoria Pillitteri, Richard Graubart, 
Deborah Bodeau, and Rosalie McQuaid, Developing Cyber Resilient 
Systems: A Systems Security Engineering Approach, National Institute 
of Standards and Technology (Dec. 2021), available at https://doi.org/10.6028/NIST.SP.800-160v2r1. See also supra section III.D.2 
(discussion of costs associated with disclosure).
    \226\ See supra section III.C.1 (discussion of information 
sharing).
    \227\ For example, sharing information about the type of attack 
can be used to draw inferences about the type of system that was 
targeted, which may imply a particular target entity (i.e., the 
entity known to use that system).
---------------------------------------------------------------------------

    In addition to facilitating information sharing, the proposed 
reporting requirements could also allow the Commission to coordinate 
market-wide responses to cybersecurity incidents. For example, an 
incident that affects the ability of an important money market fund 
could be used by the Commission to initiate an inter-agency response 
aimed at ensuring stability in the money markets.\228\ Alternatively, 
patterns discovered through the reports may trigger referral to 
national security agencies for further investigation.
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    \228\ Depending on the circumstances, such responses could be 
coordinated through FSOC or through bilateral contacts with other 
regulators.
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    The aforementioned benefits arising from improved information 
sharing and response coordination are contingent on the Commission 
creating effective schemes to do so as well as the utility of the 
required reports in mounting effective regulatory responses. In 
particular, delays in registrants' discovery of cybersecurity incidents 
may hinder the utility of such reports in triggering a ``real-time'' 
regulatory response.\229\ Thus the utility of such reports may be 
confined to information sharing and referrals to law enforcement and 
national security agencies.
---------------------------------------------------------------------------

    \229\ Under the proposed rules registrants would have to report 
incidents within 48 hours. See proposed rule 204-6(a).
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b. Costs
    The proposed requirements for advisers and funds to adopt and 
implement reasonably designed cybersecurity policies and procedures 
include provisions related to ongoing monitoring of threats and 
vulnerabilities \230\ as well as provisions related to cybersecurity 
incident response and recovery.\231\ Compliance with the aforementioned 
provisions effectively requires the collection of information that is 
solicited on proposed Form ADV-C.\232\ Thus, we do not believe that the 
proposed reporting requirement would impose compliance costs beyond 
those related to developing and implementing reasonably designed 
policies and procedures discussed in section III.D.1. The proposed 
filing requirements would entail certain administrative costs, and 
these are discussed in the Paperwork Reduction Act analysis in section 
IV. Other costs that could arise from the reporting provisions would be 
the potential for the unintended release of information disclosed on 
Form ADV-C through the Commission's response to such disclosures. 
Unintended release of such details could facilitate future cyberattacks 
against funds and advisers as well as against advisers and fund with 
similar vulnerabilities.
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    \230\ See supra section II.A.1.d.
    \231\ See supra section II.A.1.e.
    \232\ See proposed rules 206(4)-9(a)(5) and 38a-2(a)(5).
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4. Recordkeeping
    Under the new recordkeeping requirements advisers and funds would 
be required to maintain, for five years records of: (1) Cybersecurity 
policies and procedures; \233\ (2) annual reviews thereof; (3) 
documents related to the annual reviews; (4) regulatory filings \234\ 
related to cybersecurity incidents required under the proposed 
amendments; \235\ (5) any cybersecurity incident; and (6) cybersecurity 
risk assessments.
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    \233\ See proposed rules 204-2 and 38a-2(e).
    \234\ For advisers, copies of any Form ADV-C filed. For funds, 
reports provided to the Commission pursuant to proposed rule 38a-
2(a)(5).
    \235\ See proposed rules 204-2 and 38a-2(e).
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a. Benefits
    These proposed amendments would help facilitate the Commission's 
inspection and enforcement capabilities. As a result, the Commission 
would be better able to detect deficiencies in the advisers' and funds' 
cybersecurity hygiene so that such deficiencies could be remedied. 
Insofar as correcting deficiencies results in material improvement in 
the cybersecurity practices of individual advisers and funds that would 
reduce the risk and/or magnitude of future cybersecurity incidents, the 
proposed amendments would benefit clients and investors.
b. Costs
    We do not expect the proposed recordkeeping requirements to impose 
additional compliance costs not covered elsewhere in this analysis. The 
compliance costs related to the creation of records subject to the 
recordkeeping provisions are covered in section III.D.1. As advisers 
and funds are currently subject to substantially similar recordkeeping 
requirements applicable to other required policies and procedures, we 
do not expect registrants will need to invest in new recordkeeping 
staff, systems, or procedures to satisfy the new recordkeeping 
requirements.\236\ The marginal administrative costs arising from 
maintaining additional records related to these provisions using 
existing systems are covered in the Paperwork Reduction Act analysis in 
section IV.
---------------------------------------------------------------------------

    \236\ See proposed rules 204-2(a)(17) and 38-2(e).
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E. Effects on Efficiency, Competition, and Capital Formation

    As discussed in the foregoing sections, market imperfections could 
lead to underinvestment in cybersecurity by advisers and funds, and 
information asymmetry could

[[Page 13556]]

contribute to inefficient production of cybersecurity defenses. The 
proposed rules and amendments aim to mitigate the inefficiencies 
resulting from these imperfections by: (1) Imposing mandates on 
cybersecurity policies and procedures that could reduce cybersecurity 
underinvestment; \237\ (2) providing additional disclosure to inform 
clients and investors about advisers' and funds' cybersecurity efforts, 
reducing information asymmetry; \238\ and (3) creating a reporting 
framework that could improve information sharing and improved 
cybersecurity defense production.\239\ While the proposed rules and 
amendments have the potential to mitigate inefficiencies resulting from 
market imperfections, the scale of the overall effect will depend on 
numerous factors, including: The state of existing of cybersecurity 
preparations,\240\ the degree to which the proposed provisions induce 
increases to these preparations,\241\ the effectiveness of additional 
preparations at reducing cybersecurity risks,\242\ the degree to which 
clients and investors value additional cybersecurity preparations,\243\ 
the degree of information asymmetry and bargaining power between 
clients and investors vis-[agrave]-vis advisers and funds,\244\ the 
bargaining power of registrants vis-[agrave]-vis service 
providers,\245\ service providers' willingness to provide bespoke 
contractual provisions to registrants,\246\ the informativeness of the 
proposed disclosures, the scale of the negative externalities on the 
broader financial system,\247\ the effectiveness of existing 
information sharing arrangements, and the informativeness of the 
required regulatory reports (as well as the Commission's ability to 
make use of them).\248\ As discussed earlier in this section, it is not 
practicable to measure most of these factors. As such, it is also not 
practicable to quantify the overall effect of the proposed provisions 
on economic efficiency. Although any increased efficiency resulting 
from the proposed provisions can generally be expected to lead to 
improved capital formation,\249\ quantifying such effects is similarly 
impracticable.\250\
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    \237\ See supra footnotes 92-96 and accompanying text; section 
III.D.1.
    \238\ See supra footnotes 92-96 and accompanying text; section 
III.D.2.
    \239\ See supra footnotes 118-123 and accompanying text; section 
III.D.3.
    \240\ See supra section III.C.1. Here, we are concerned about 
the degree to which registrants' state of cybersecurity preparations 
diverge from socially optimal levels.
    \241\ See supra footnote 175 and accompanying text.
    \242\ Formally, the marginal product of the proposed policies 
and procedures in the production of cybersecurity defenses.
    \243\ Formally, clients' and investors' utility functions--
specifically the marginal utilities of advisers' and funds' 
cybersecurity hygiene.
    \244\ In other words, the degree to which clients and investors 
can affect the policies of advisers and funds. Generally, we expect 
that fund investors will typically be small and dispersed and thus 
be subject to large information asymmetry and have limited ability 
to affect the policies of funds. For clients of advisers the 
situation is likely to involve more heterogeneity, with some clients 
wielding very little power over adviser policies (e.g., small retail 
clients) while others wield considerable power (e.g., large pension 
funds).
    \245\ See supra footnotes 184-192 and accompanying text.
    \246\ Id.
    \247\ See supra section III.B.
    \248\ See supra section III.D.3.a.
    \249\ The proposed provisions do not implicate channels 
typically associated with capital formation (e.g., taxation policy, 
financial innovation, capital controls, investor disclosure, 
intellectual property, rule-of-law, and diversification). Thus, the 
proposed rule amendments are likely to have only indirect, second 
order effects on capital formation arising from any improvements to 
economic efficiency.
    \250\ Id. Qualitatively, these effects are expected to be small.
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    Because the proposed rules and amendments are likely to have 
differential effects on registrants along a number of dimensions, their 
overall effect on competition among registrants is difficult to 
predict. For example, smaller registrants--who we believe are less 
likely to have extensive cybersecurity measures already in place--are 
likely to face disproportionately higher costs resulting from the 
proposed rules and amendments.\251\ Thus, the proposed rules and 
amendments could tilt the competitive playing field in favor of larger 
registrants. On the other hand, if clients and investors believe that 
the proposed rules and amendments effectively induce the appropriate 
level of cybersecurity effort among registrants, smaller registrants 
would likely benefit most from these improved perceptions. Similar 
differential effects could apply to registrants and service providers 
that are more (or less) focused on their digital business.
---------------------------------------------------------------------------

    \251\ See supra footnote 97 and accompanying text.
---------------------------------------------------------------------------

    With respect to competition among registrants' service providers, 
the overall effect of the proposed rules and amendments is similarly 
ambiguous. It is likely that requiring affected registrants to provide 
oversight of service providers' cybersecurity practices pursuant to a 
written contract would lead some service providers to cease offering 
services to affected registrants.\252\ This would almost certainly 
``reduce'' competition in a crude sense: The number of potential 
service providers available to registrants would likely be diminished. 
However, this may ``improve'' competition in another sense: Service 
providers with ``inadequate'' cybersecurity practices (i.e., those 
unwilling to commit contractually to implementing cybersecurity 
practices deemed ``reasonably designed'' by the registrant) would be 
unable to undercut service providers with ``adequate'' cybersecurity 
practices.
---------------------------------------------------------------------------

    \252\ See supra footnotes 184-192 and accompanying text.
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F. Alternatives Considered

    In formulating our proposal, we have considered various 
alternatives. Those alternatives are discussed below and we have also 
requested comments on certain of these alternatives.
1. Alternatives to the Proposed Policies and Procedures Requirement
a. Require Only Disclosure of Cybersecurity Policies and Procedures 
Without Prescribing Elements
    Rather than requiring registrants to adopt cybersecurity policies 
and procedures with specific enumerated elements, the Commission 
considered requiring advisers and funds to only provide explanations or 
summaries of their cybersecurity practices to their clients or 
investors.
    We believe that such an approach would create weaker incentives to 
address potential underspending in cybersecurity measures as it would 
rely entirely on clients' and investors' (or third parties' providing 
analysis to clients and investors) \253\ ability to assess the 
effectiveness of registrants' cybersecurity practices from registrants' 
explanations. Given the cybersecurity risks of disclosing detailed 
explanations of cybersecurity practices,\254\ it is likely that such 
explanations would include only vague boilerplate language and provide 
little information that could be used by observers to infer the degree 
of cybersecurity preparedness. Such a ``disclosure-only'' regime is 
unlikely to be effective at resolving the underlying information 
asymmetry and would therefore be unlikely to affect meaningful change 
in registrants' cybersecurity practices.\255\ Moreover, not requiring 
specific enumerated elements in cybersecurity policies and procedures 
would likely result in less uniform cybersecurity preparedness across 
registrants, undermining clients'

[[Page 13557]]

and investors' broader confidence in the fund and adviser industries. 
At the same time, the costs associated with this alternative would 
likely be minimal, as registrants would be unlikely to face pressure to 
adjust practices as a result of such disclosures.
---------------------------------------------------------------------------

    \253\ See supra footnote 208 and accompanying text.
    \254\ See supra section III.D.2.B (discussing tradeoffs of 
cybersecurity disclosure).
    \255\ Here changes in cybersecurity practices would depend 
entirely on market discipline exerted by relatively uninformed 
market participants.
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b. Require Cybersecurity Policies and Procedures With More Limited 
Prescribed Elements
    We also considered paring down some enumerated elements from the 
proposed cybersecurity policies and procedures requirement, more 
specifically the oversight of service providers component of the 
information protection element. In this regard, we considered narrowing 
the scope of the types of service providers to named service providers 
discussed further above and requiring a periodic review and assessment 
of a named service provider's cybersecurity policies and procedures in 
lieu of a written contract. We further considered requiring service 
providers that receive, maintain, or process adviser or fund 
information to provide security certifications in lieu of the written 
contract requirement.
    Narrowing the scope of the types of service providers affected by 
the proposal could lower costs for registrants, especially smaller 
registrants who rely on generic service providers and would have 
difficulty effecting changes in contractual terms with such service 
providers.\256\ However, given that in the current technological 
context \257\ cybersecurity risk exposure of registrants is unlikely to 
be limited to (or even concentrated in) certain named service 
providers, narrowing the scope of service providers would likely lead 
to lower costs only insofar as it reduces effectiveness of the 
regulation. In other words, absent a written contractual arrangement 
with a service provider relating to the provider's cybersecurity 
practices, it is unlikely that registrants could satisfy their 
overarching obligations under the proposed rules.
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    \256\ See supra section III.D.1.b (discussing service 
providers).
    \257\ Specifically, a context where businesses increasingly rely 
on third-party ``cloud services'' that effectively place business 
data out of the business' immediate control.
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    Alternatively, maintaining the proposed scope but only requiring a 
standard, recognized, certification in lieu of a written contract could 
also lead to cost savings for registrants.\258\ However, we 
preliminarily believe that it would be difficult to prescribe a set of 
characteristics for such a ``standard'' certification that would 
sufficiently address the varied types of advisers and funds and their 
respective service providers.\259\
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    \258\ Service providers may currently be providing 
certifications as part of an adviser's or fund's policies and 
procedures.
    \259\ See supra section III.C.3 (discussing the variety of 
affected registrants); see also infra section III.F.1.c (discussing 
limitation of uniform prescriptive requirements).
---------------------------------------------------------------------------

c. Require Specific Prescriptive Requirements for Addressing 
Cybersecurity Risks
    The Commission considered including more prescriptive elements in 
the cybersecurity policies and procedures requirement of the current 
proposal. For example, advisers and funds could have been required to 
implement particular controls (e.g., specific encryption protocols, 
network architecture, or authentication procedures) designed to address 
each general element of the required cybersecurity policies and 
procedures. Given the considerable diversity in the size, focus, and 
technical sophistication of affected registrants,\260\ any specific 
requirements would result in some registrants needing to substantially 
alter their cybersecurity policies and procedures.
---------------------------------------------------------------------------

    \260\ See supra section III.C.3.
---------------------------------------------------------------------------

    The potential benefit of such an approach would be to provide 
assurance that advisers and funds have implemented certain specific 
cybersecurity hygiene practices. But this approach would also entail 
considerably higher costs as many registrants would need to adjust 
their existing practices. Considering the variety of advisers and funds 
registered with the Commission, it would be exceedingly difficult for 
the Commission to devise specific requirements that are appropriately 
suited for all registrants: A uniform set of requirements would 
certainly be both over- and under-inclusive, while providing varied 
requirements based on the circumstances of the registrant would be 
complex and impractical. For example, uniform prescriptive requirements 
that ensure reasonably designed cybersecurity policies and procedures 
for the largest, most sophisticated advisers and funds would likely be 
overly burdensome for smaller, less sophisticated advisers with more 
limited cybersecurity exposures. Conversely, if these uniform 
prescriptive requirements were tailored to advisers and funds with more 
limited operations or cybersecurity risk, such requirements likely 
would be inadequate to address larger registrants' cybersecurity risks 
appropriately. Alternatively, providing different requirements for 
different categories of registrants would involve considerable 
regulatory complexity in delineating the classes of advisers and 
defining the appropriate requirements for each class. More broadly, 
imposing detailed prescriptive requirements would effectively place the 
Commission in the role of dictating details of the IT practices of 
registrants without the benefit of the registrants' knowledge of their 
own particular circumstances. Moreover, given the complex and 
constantly evolving cybersecurity landscape, detailed regulatory 
requirements for cybersecurity practices would likely limit 
registrants' ability to adapt quickly to changes in the cybersecurity 
landscape.\261\
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    \261\ If as in the previous example, the Commission were to 
require registrants to adopt a specific encryption algorithm, future 
discovery of vulnerabilities in that algorithm would prevent 
registrants from fully mitigating the vulnerability (i.e., switching 
to improved algorithms) in the absence of Commission action.
---------------------------------------------------------------------------

d. Require Audits of Internal Controls Regarding Cybersecurity
    Instead of requiring advisers and funds to adopt and implement 
cybersecurity policies and procedures, the Commission considered 
requiring advisers and funds to obtain audits of the effectiveness of 
their existing cybersecurity controls--for example, by obtaining 
service organization control audits with respect to their cybersecurity 
practices. This approach would not have required advisers and funds to 
adopt and implement cybersecurity policies and procedures as proposed, 
but instead would have required advisers and funds to engage an 
independent qualified third party to assess their cybersecurity 
controls and prepare a report describing its assessment and any 
potential deficiencies.
    Under this alternative, an independent third party (e.g., an 
auditing firm) would certify to the effectiveness of the adviser's or 
fund's cybersecurity practices. If the firms providing such 
certifications have sufficient reputational motives to issue credible 
assessment,\262\ and if the scope of such certifications is not overly 
circumscribed,\263\ it is likely that registrants' cybersecurity 
practices

[[Page 13558]]

would end up being more robust under this alternative than under the 
current proposal. By providing certification of a registrant's 
cybersecurity practices, a firm would--in effect--be ``lending'' its 
reputation to the registrant. Because ``lenders'' are naturally most 
sensitive to down-side risks (here, loss of reputation, lawsuits, 
damages, regulatory enforcement actions), one would expect them to 
avoid ``lending'' to registrants with cybersecurity practices whose 
effectiveness is questionable.\264\
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    \262\ This would be the case if there was sufficient market 
pressure or regulatory requirements to obtain certification from 
``reputable'' third-parties with business models premised on 
operating as a going-concern and maintaining a reputation for 
honesty.
    \263\ We are assuming that in this alternative, certification 
would not be limited to only evaluating whether a registrant's 
stated policies and procedures are reasonably designed, but rather 
also would include an assessment of whether the policies and 
procedures are actually implemented in an effective manner.
    \264\ Under the proposal it is the registrant itself that 
effectively ``certifies'' its own cybersecurity policies and 
procedures. Like the third-party auditor, the registrant faces down-
side risks from ``certifying'' inadequate cybersecurity practices 
(i.e., Commission enforcement actions). However, unlike the auditor, 
the registrant also realizes the potential up-side: Cost savings 
through reduced cybersecurity expenditures.
---------------------------------------------------------------------------

    While certification by credible third parties could lead to more 
robust cybersecurity practices, the costs of such an approach would 
likely be considerably higher. Because of the aforementioned 
sensitivity to down-side risk, firms would likely be hesitant to 
provide cybersecurity certifications without a thorough understanding 
of a registrant's systems and practices; in many cases, developing such 
an understanding would involve considerable effort.\265\ In addition, 
it is possible that the inherent ambiguity of what represents 
``effective'' practices in an evolving context like cybersecurity would 
lead to a reluctance among third parties to provide the necessary 
certification services.\266\
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    \265\ It would be difficult for an auditor to provide a credible 
assessment of the effectiveness of the registrant's cybersecurity 
practices without first understanding the myriad of systems involved 
and how those practices are implemented. Presumably, a registrant 
would not bear these costs as it is likely to possess such an 
understanding.
    \266\ What constitutes ``effective'' practices with respect to 
cybersecurity is likely not as universally accepted as what 
constitutes ``adequate'' internal controls with respect to 
accounting or financial disclosure. Thus certifying a firm's 
cybersecurity practices would likely involve more litigation risk 
and uncertainty than traditional financial auditing.
---------------------------------------------------------------------------

e. Vary Requirements of the Proposed Rules on Cybersecurity and 
Procedures for Different Subsets of Advisers and Funds
    The Commission considered requiring different elements in an 
adviser's or fund's cybersecurity policies and procedures based on 
characteristics of the adviser or fund. For example, advisers or funds 
with assets under management below a certain threshold or with only a 
limited number of clients or investors could have been required to 
implement more limited cybersecurity policies and procedures.
    This approach could have scaled based on adviser or fund size, 
business or other criteria, with larger firms, for example, being 
required to address more elements in their cybersecurity policies and 
procedures or being required to implement more prescriptive 
cybersecurity measures. However, as discussed above, cybersecurity 
risks and vulnerabilities are likely to be unique to each adviser and 
fund depending on its particular operations, which could make it 
difficult to use any specific characteristics such as firm size, for 
example, as an effective proxy to determine the scope of their 
cybersecurity policies and procedures.
f. Administration and Oversight of Cybersecurity Policies and 
Procedures
    The Commission considered various alternative requirements with 
respect to administration and oversight of an adviser's or fund's 
cybersecurity policies and procedures such as requiring advisers and 
funds to designate a CISO or requiring funds' boards to oversee 
directly a fund's cybersecurity policies and procedures. There is a 
broad spectrum of potential approaches to this alternative, ranging 
from the largely nominal (e.g., requiring registrants to designate 
someone to be a CISO) to the stringent (e.g., requiring a highly 
qualified CISO to attest to the effectiveness of the registrant's 
policies).
    While employee designations and similar nominal requirements may 
improve accountability and enhance compliance in certain contexts, they 
are unlikely to lead to material improvements in highly technical 
aspects of business operations. Given the technical complexity of 
cybersecurity issues, imposing such nominal requirements is unlikely to 
do much to further the policy objectives or provide substantial 
economic benefit. At the same time, while such an approach would 
increase regulatory complexity, it would likely entail minimal costs 
for registrants.
    On the other hand, stringent requirements such as requiring an 
attestation from a highly qualified CISO as to the effectiveness of a 
registrant's cybersecurity practices in specific enumerated areas could 
be quite effective. Expert practitioners in cybersecurity are in high 
demand and command high salaries.\267\ Thus, such an approach would 
impose substantial ongoing costs on registrants who do not already have 
appropriately qualified individuals on staff. This burden would be 
disproportionately borne by smaller registrants, for whom keeping a 
dedicated CISO on staff would be cost prohibitive. Allowing registrants 
to employ part-time CISOs would mitigate this cost burden, but such 
requirements would likely create a de facto ``audit'' regime. Such an 
audit regime would certainly be more effective if explicitly designed 
to function as such.\268\
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    \267\ A recent survey reports CISO median total compensation of 
$668,903 for CISOs at companies with revenues of $5 billion or less. 
See Matt Aiello and Scott Thompson, 2020 North American Chief 
Information Security Officer (CISO) Compensation Survey, Heidrick & 
Struggles (2020), available at https://www.heidrick.com/-/media/heidrickcom/publications-and-reports/2020-north-american-chief-information-security-officer-ciso-compensation-survey.pdf.
    \268\ In designing an effective audit regime, aligning 
incentives of auditors to provide credible assessments is a central 
concern. In the context of audit regimes, barriers to entry and the 
reputation motives of auditing firms helps align incentives. It 
would be considerably more difficult to obtain similar incentive 
alignment with itinerant part-time CISOs. See supra section 
III.F.1.d (describing the audit regime alternative).
---------------------------------------------------------------------------

2. Modify Requirements for Structuring Disclosure of Cybersecurity 
Risks and Incidents
    The Commission considered changing the scope of the tagging 
requirements for the proposed fund cybersecurity incident disclosures, 
such as by removing the requirements for all or a subset of funds. For 
example, the tagging requirements could have excluded unit investment 
trusts, which are not currently required to tag any filings in Inline 
XBRL.\269\ Under such an alternative, unit investment trusts would 
submit their cybersecurity disclosures in unstructured HTML or ASCII, 
and forego the initial Inline XBRL implementation costs (such as the 
cost of training in-house staff to prepare filings in Inline XBRL, and 
the cost to license Inline XBRL filing preparation software from 
vendors) and ongoing Inline XBRL compliance burdens that would result 
from the proposed tagging requirement.\270\ However, narrowing the 
scope of tagging requirements, whether based on fund structure, fund 
size, or other criteria, would diminish the

[[Page 13559]]

extent of any informational benefits that would accrue as a result of 
the proposed disclosure requirements by making the excluded funds' 
cybersecurity incident disclosures comparatively costlier to process 
and analyze.
---------------------------------------------------------------------------

    \269\ By contrast, funds that file Forms N-1A, N-2, N-3, N-4, 
and N-6 are currently subject to Inline XBRL tagging requirements 
for portions of those filings. See supra footnote 85.
    \270\ See infra section III.D.3.b. Funds file registration 
statements and amendments using the Commission's EDGAR electronic 
filing system, which generally requires filers to use ASCII or HTML 
for their document submissions, subject to certain exceptions. See 
Regulation S-T, 17 CFR 232.101(a)(1)(iv); 17 CFR 232.301; EDGAR 
Filer Manual (Volume II) version 60 (Dec. 2021), at 5-1. To the 
extent unit investment trusts are part of the same fund family as 
other types of funds that are subject to Inline XBRL requirements, 
they may be able to leverage those other funds' existing Inline XBRL 
tagging experience and software, which would mitigate the initial 
Inline XBRL implementation costs that unit investment trusts would 
incur under the proposal.
---------------------------------------------------------------------------

    The scope of structuring requirements for the proposed disclosures 
could also have been expanded to cover advisers in addition to funds. 
Under the proposal, advisers would provide the required cybersecurity 
disclosures as part of their narrative brochures, which advisers must 
file electronically with the Commission as a text-searchable PDF file 
using the FINRA-administered IARD system.\271\ Alternatively, the 
Commission could require advisers to structure the cybersecurity 
disclosures in IARD-specific XML. Such a requirement would not impose 
additional incremental compliance costs on advisers, who would use an 
online form provided by the IARD system to submit their disclosures and 
would not be required to develop technical expertise to comply with the 
structuring requirement.\272\ However, such an alternative would result 
in investors receiving most of the narrative brochure disclosures in 
PDF format and the remaining cybersecurity disclosures--outside the PDF 
brochure--in IARD-specific XML, which could lead to investor confusion 
about the location of the disclosures.
---------------------------------------------------------------------------

    \271\ See 17 CFR 275.203(a)(1); General Instruction 5 of Form 
ADV Part 2. The proposed requirement is also more technically 
feasible than an Inline XBRL requirement for the advisers' 
disclosures, because the IARD system does not currently accommodate 
Inline XBRL filings.
    \272\ See FINRA Form ADV Guide, available at https://www.iard.com/sites/iard/files/formADV_guide.pdf.
---------------------------------------------------------------------------

3. Public Disclosure of Form ADV-C
    The Commission considered requiring the public disclosure of Form 
ADV-C in the proposal. Assuming that the information submitted by 
registrants through Form ADV-C filings does not change, making Form 
ADV-C filings public would increase clients' and investors' information 
about cybersecurity incidents and thus improve their ability to draw 
inferences about an adviser's or fund's level of cybersecurity 
preparations. At the same time, doing so would also assist would-be 
attackers, who would gain additional insight into the vulnerabilities 
of a victim's systems. As discussed in section III.D.2.b, release of 
too much detail about a cybersecurity incident could further compromise 
cybersecurity of the victim, especially in the short term. Given these 
risks, requiring public disclosure of Form ADV-C filings would likely 
have the effect of significantly reducing the detail provided by 
registrants in these filings. As a result, the information set of 
clients, investors, and would-be attackers would remain largely 
unchanged (vis-[agrave]-vis the proposal), while the ability of the 
Commission to facilitate information sharing and to coordinate 
responses aimed at reducing systemic risks to the financial system 
would be diminished.

IV. Paperwork Reduction Act Analysis

A. Introduction

    Certain provisions of the proposed amendments contain ``collection 
of information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\273\ We are submitting the proposed 
collections of information to the Office of Management and Budget 
(``OMB'') for review in accordance with the PRA.\274\ The proposed 
rules 206(4)-9, 38a-2, 204-6, and proposed new Form ADV-C would include 
new information collection burdens, and the proposed amendments would 
have an effect on the current collection of information burdens of rule 
204-2 and rule 204-3 under the Investment Advisers Act and Form ADV, as 
well as Form N-1A and other registration forms with respect to the 
Investment Company Act.
---------------------------------------------------------------------------

    \273\ 44 U.S.C. 3501 through 3521.
    \274\ 44 U.S.C. 3507(d); 5 CFR 1320.11.
---------------------------------------------------------------------------

    Certain funds have current requirements to submit to the Commission 
information included in their registration statements, or information 
included in or amended by any post-effective amendments to such 
registration statements, in response to certain form items in 
structured data language (``Investment Company Interactive 
Data'').\275\ This also includes the requirement for funds to submit 
interactive data to the Commission for any form of prospectus filed 
pursuant to 17 CFR 230.497(c) or 17 CFR 230.497(e) under the Securities 
Act that includes information in response to certain form items. The 
proposed amendments to fund registration forms include new structured 
data requirements to tag information about significant fund 
cybersecurity incidents using Inline XBRL. Although the interactive 
data filing requirements are included in the instructions to each form, 
we are separately reflecting the hour and cost burdens for these 
requirements in the burden estimate for Investment Company Interactive 
Data and not in the estimate for each registration statement form.
---------------------------------------------------------------------------

    \275\ The paperwork burdens for the rules under section 8(b) of 
the Investment Company Act are imposed through the forms and reports 
that are subject to the requirements in these rules and are 
reflected in the PRA burdens of those documents.
---------------------------------------------------------------------------

    The titles of new collections of information we are proposing are 
``Rule 206(4)-9 under the Investment Advisers Act,'' ``Rule 38a-2 under 
the Investment Company Act,'' ``Rule 204-6 under the Investment 
Advisers Act,'' and ``Form ADV-C.'' OMB has not yet assigned control 
numbers for these titles. The titles for the existing collections of 
information are: (1) ``Rule 204-2 under the Investment Advisers Act of 
1940'' (OMB control number 3235-0278); (2) Rule 204-3 under the 
Investment Advisers Act of 1940'' (OMB control number 3235-0047); (3) 
``Form ADV'' (OMB control number 3235-0049); (4) ``Form N-1A, 
Registration Statement under the Securities Act and under the 
Investment Company Act for Open-End Management Investment Companies'' 
(OMB control number 3235-0307); (5) ``Form N-2, Registration Statement 
of Closed-End Management Investment Companies'' (OMB control number 
3235-0026); (6) ``Form N-3, Registration of Separate Accounts Organized 
as Management Investment Companies'' (OMB control number 3235-0316); 
(7) ``Form N-4, Registration Statement of Separate Accounts Organized 
as Unit Investment Trust'' (OMB control number 3235-0318); (8) ``Form 
N-6, Registration Statement of Separate Accounts Organized as Unit 
Investment Trust'' (OMB control number 3235-0503); (9) ``Form N-8B-2, 
Registration Statement of Unit Investment Trusts Which Are Currently 
Issuing Securities'' (OMB control number 3235-0186); (10) ``Form S-6, 
for Registration under the Securities Act of Unit Investment Trusts 
registered on Form N-8B-2'' (OMB control number 3235-0184); and (11) 
``Investment Company Interactive Data'' (OMB control number 3235-0642).
    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 OMB control number.
    Each requirement to disclose information, offer to provide 
information, or adopt policies and procedures constitutes a collection 
of information requirement under the PRA. These collections of 
information would help increase the likelihood that advisers and funds 
are prepared to respond to a cybersecurity incident, and collectively 
would serve the Commission's interest in protecting investors by 
reducing the risk that a cybersecurity incident could significantly 
affect a firm's operations and lead to significant harm to clients

[[Page 13560]]

and investors. The Commission staff would also use the collection of 
information in its examination and oversight program in identifying 
patterns and trends across registrants. We discuss below the collection 
of information burdens associated with the proposed rules and rule 
amendments.

B. Rule 206(4)-9

    Proposed rule 206(4)-9 would require an adviser to adopt and 
implement written policies and procedures that are reasonably designed 
to address cybersecurity risks.\276\ These cybersecurity policies and 
procedures would need to be tailored based on the complexity of the 
adviser's business operations and attendant cybersecurity risks. The 
proposed rule would require policies and procedures that address: (1) 
Risk assessment, (2) user security and access, (3) information 
protection, (4) cybersecurity threat and vulnerability management, and 
(5) cybersecurity incident response and recovery. The proposed rule 
includes certain minimum activities associated with each of these 
elements, including requirements for an adviser to identify and oversee 
any service providers that receive, maintain, or process adviser 
information, or are otherwise permitted to access its information 
systems and any information residing therein.
---------------------------------------------------------------------------

    \276\ See proposed rule 206(4)-9; supra section II.A (discussing 
the cybersecurity policies and procedures requirements).
---------------------------------------------------------------------------

    In addition to adopting and implementing such policies and 
procedures, the proposed rule would require advisers to review and 
assess, at least annually, the design and effectiveness of their 
cybersecurity policies and procedures. More specifically, proposed rule 
206(4)-9 would require that an adviser at least annually: (1) Review 
and assess the design and effectiveness of the cybersecurity policies 
and procedures; and (2) prepare a written report that, at a minimum, 
describes the review, assessment, and any control tests performed, 
explains their results, documents any cybersecurity incident that 
occurred since the date of the last report, and discusses any material 
changes to the policies and procedures since the date of the last 
report.\277\
---------------------------------------------------------------------------

    \277\ See proposed rule 206(4)-9(b).
---------------------------------------------------------------------------

    The respondents to these collection of information requirements 
would be investment advisers that are registered or required to be 
registered with the Commission. As of October 31, 2021, there were 
14,774 investment advisers registered with the Commission. As noted 
above, these requirements are mandatory, and all registered investment 
advisers would be subject to the requirements of the proposed rule. 
Responses provided to the Commission in the context of its examination 
and oversight program concerning proposed rule 206(4)-9 would be kept 
confidential subject to the provisions of applicable law. These 
collections of information would help increase the likelihood that 
advisers and funds are prepared to respond to a cybersecurity incident, 
and help protect investors from being significantly harmed by a 
cybersecurity incident. These collections would also help facilitate 
the Commission's inspection and enforcement capabilities. We have made 
certain estimates of the burdens associated with the proposed rule 
solely for the purpose of this PRA analysis. The table below summarizes 
the initial and ongoing annual burden and cost estimates associated 
with the proposed rule's policies and procedures and review and report 
requirements.

                                                          Table 1--Rule 206(4)-9 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                              initial      Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                           burden hours                                                                        costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            PROPOSED RULE 206(4)-9 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Adopting and implementing policies and                50  21.67 hours \4\...................  $396 (blended rate for           $8,581.32      \5\ $1,488
 procedures \3\.                                                                               compliance attorney and
                                                                                               assistant general
                                                                                               counsel).
Annual review of policies and procedures               0  10 hours \6\......................  $396 (blended rate for              $3,960      \7\ $1,984
 and report of review.                                                                         compliance attorney and
                                                                                               assistant general
                                                                                               counsel).
Total new annual burden per adviser.....  ..............  31.67 hours.......................  ..........................      $12,541.32          $3,472
Number of advisers......................  ..............  x 14,774..........................  ..........................        x 14,774        x 14,774
                                                         -----------------------------------------------------------------------------------------------
    Total new annual aggregate burden...  ..............  320,152.58 hours..................  ..........................    $185,285,462     $51,295,328
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on salary information for the securities industry compiled by Securities Industry
  and Financial Markets Association's Office Salaries in the Securities Industry 2013, as modified by Commission staff for 2020 (``SIFMA Wage Report'').
  The estimated figures are modified by firm size, employee benefits, overhead, and adjusted to account for the effects of inflation.
\3\ These estimates are based on an average. Some firms may have a lower burden in the case they will be evaluating exiting policies and procedures with
  respect to any cybersecurity risks and/or incidents, while other firms may be creating new cybersecurity policies and procedures altogether.
\4\ Includes initial burden estimates annualized over a three-year period, plus 5 ongoing annual burden hours. The estimate of 25 hours is based on the
  following calculation: ((50 initial hours/3) + 5 additional ongoing burden hours) = 21.67 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 3 hours, for outside legal services.
The Commission's estimates of the relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a
  variety of sources including general information websites, and adjustments for inflation.
\6\ We estimate 10 additional ongoing burden hours.
\7\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. See supra note 5 (regarding wage
  rates with respect to external cost estimates).


[[Page 13561]]

C. Rule 38a-2

    Proposed rule 38a-2 would require a fund to adopt and implement 
written policies and procedures reasonably designed to address 
cybersecurity risks.\278\ These cybersecurity policies and procedures 
would address: Risk assessment, user security and access, information 
protection, threat and vulnerability management, and incident response 
and recovery. The proposed rule includes certain minimum activities 
associated with each of these elements, including requirements for the 
fund to identify and oversee any service providers that receive, 
maintain, or process fund information, or are otherwise permitted to 
access its information systems and any information residing therein.
---------------------------------------------------------------------------

    \278\ See proposed rule 38a-2; supra section II.A (discussing 
the cybersecurity policies and procedures requirements).
---------------------------------------------------------------------------

    Under the rule, a fund would also, at least annually: (1) Review 
and assess the design and effectiveness of those policies and 
procedures; and (2) prepare and provide to the fund's board a written 
report.\279\ The written report would also include an explanation of 
any control tests performed, any cybersecurity incident that occurred 
since the date of the last report, and any material changes to the 
policies and procedures since the date of the last report.
---------------------------------------------------------------------------

    \279\ For unit investment trusts, the written report would be 
provided to the principal underwriter or depositor.
---------------------------------------------------------------------------

    Finally, a fund would need to keep records related to the policies 
and procedures, written reports, annual review, and any reports 
provided to the Commission. Specifically, the fund would have to 
maintain copies for at least five years, the first two years in an 
easily accessible place, of: (1) Its cybersecurity policies and 
procedures; (2) copies of written reports provided to its board; (3) 
records documenting the fund's cybersecurity annual review; (4) any 
report of a significant fund cybersecurity incident provided to the 
Commission by its adviser that the proposed rule would require; (5) 
records documenting the occurrence of a cybersecurity incident, 
including records related to any response and recovery from such an 
incident; and (6) and records documenting a fund's cybersecurity risk 
assessments.\280\
---------------------------------------------------------------------------

    \280\ For unit investment trusts, copies of materials provided 
the principal underwriter or depositor similarly would be required 
to be maintained for at least five years after the end of the fiscal 
year in which the documents were provided.
---------------------------------------------------------------------------

    Each requirement to disclose information, offer to provide 
information, or to adopt policies and procedures constitutes a 
collection of information requirement under the PRA. The respondents to 
proposed rule 38a-2 would be registered investment companies and 
BDCs.\281\ We estimate that 14,749 funds would be subject to these 
proposed rule requirements.\282\ The collections of information 
associated with these requirements would be mandatory, and responses 
provided to the Commission in the context of its examination and 
oversight program concerning proposed rule 38a-2 would be kept 
confidential subject to the provisions of applicable law. These 
collections of information would help increase the likelihood that 
funds are prepared to respond to a cybersecurity incident, and help 
protect investors from being significantly harmed by a cybersecurity 
incident. These collections would also help facilitate the Commission's 
inspection and enforcement capabilities. We have made certain estimates 
of the burdens associated with the proposed rule, as discussed below, 
solely for the purpose of this PRA analysis. The table below summarizes 
the initial and ongoing annual burden and cost estimates associated 
with the proposed rule.
---------------------------------------------------------------------------

    \281\ See proposed rule 38a-2(f) (defining ``fund'').
    \282\ As of December 2020, we estimate 14,654 registered 
investment companies and 95 BDCs.

                                                           Table 2--Rule 38a-2: PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                              initial      Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                           burden hours                                                                        costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              PROPOSED RULE 38A-2 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Adopting and implementing policies and                60  25 hours \3\......................  $425 (blended rate for             $10,625      \4\ $5,952
 procedures.                                                                                   compliance attorney and
                                                                                               assistant general
                                                                                               counsel).
Annual review of policies and procedures               9  6 hours \5\.......................  $425 (blended rate for              $2,550        \6\ $992
 and report.                                                                                   compliance attorney and
                                                                                               assistant general
                                                                                               counsel).
Recordkeeping...........................               1  1 hour............................  $356 (blended rate for                $356              $0
                                                                                               compliance attorney and
                                                                                               senior programmer).
Total new annual burden per fund........  ..............  32 hours..........................  ..........................         $13,531          $6,944
Number of funds.........................  ..............  x 14,749 funds \7\................  ..........................  x 14,749 funds       \8\ 7,375
                                                         -----------------------------------------------------------------------------------------------
    Total new annual aggregate burden...  ..............  471,968 hours.....................  ..........................    $199,568,719     $51,212,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ Includes initial burden estimates annualized over a three-year period, plus 5 ongoing annual burden hours. The estimate of 25 hours is based on the
  following calculation: ((60 initial hours/3) + 5 additional ongoing burden hours) = 25 hours.
\4\ This estimated burden is based on the estimated wage rate of $496/hour, for 12 hours, for outside legal services.
The Commission's estimates of the relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a
  variety of sources including general information websites, and adjustments for inflation.
\5\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 6 hours is based on the
  following calculation: ((9 initial hours/3) + 3 additional ongoing burden hours) = 6 hours.
\6\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. See supra footnote 4 (regarding
  wage rates with respect to external cost estimates).
\7\ Includes all registered investment companies, plus BDCs.

[[Page 13562]]

 
\8\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

D. Rule 204-2

    Under section 204 of the Advisers Act, investment advisers 
registered or required to register with the Commission under section 
203 of the Advisers Act must make and keep for prescribed periods such 
records (as defined in section 3(a)(37) of the Exchange Act), furnish 
copies thereof, and make and disseminate such reports as the 
Commission, by rule, may prescribe as necessary or appropriate in the 
public interest or for the protection of investors. Rule 204-2 sets 
forth the requirements for maintaining and preserving specified books 
and records. This collection of information is found at 17 CFR 275.204-
2 and is mandatory. The Commission staff uses the collection of 
information in its examination and oversight program. As noted above, 
responses provided to the Commission in the context of its examination 
and oversight program concerning the proposed amendments to rule 204-2 
would be kept confidential subject to the provisions of applicable law.
    As part of the proposed cybersecurity risk management rules, we are 
proposing corresponding amendments to rule 204-2, the books and records 
rule. The proposed amendments would require advisers to retain: (1) A 
copy of their cybersecurity policies and procedures formulated pursuant 
to proposed rule 206(4)-9 that is in effect, or at any time within the 
past five years was in effect; (2) a copy of the adviser's written 
report documenting the annual review of its cybersecurity policies and 
procedures pursuant to proposed rule 206(4)-9 in the last five years; 
(3) a copy of any Form ADV-C filed by the adviser under rule 204-6 in 
the last 5 years; (4) records documenting the occurrence of any 
cybersecurity incident, as defined in rule 206(4)-9(c), occurring in 
the last five years, including records related to any response and 
recovery from such an incident; and (5) records documenting any risk 
assessment conducted pursuant to the cybersecurity policies and 
procedures required by rule 206(4)-9(a)(1) in the last five years.\283\ 
These proposed amendments would help facilitate the Commission's 
inspection and enforcement capabilities.
---------------------------------------------------------------------------

    \283\ See proposed rule 204-2(a)(17)(i) through (vii).
---------------------------------------------------------------------------

    The respondents to this collection of information are investment 
advisers registered or required to be registered with the Commission. 
All such advisers will be subject to the proposed amendments to rule 
204-2. As of October 31, 2021, there were 14,774 advisers that would be 
subject to these policies and procedures requirement. In our most 
recent Paperwork Reduction Act submission for rule 204-2, we estimated 
for rule 204-2 a total annual aggregate hour burden of 2,764,563 hours, 
and the total annual aggregate external cost burden is 
$175,980,426.\284\ The table below summarizes the initial and ongoing 
annual burden estimates associated with the proposed amendments to rule 
204-2.\285\
---------------------------------------------------------------------------

    \284\ Supporting Statement for the Paperwork Reduction Act 
Information Collection Submission for Revisions to Rule 204-2, OMB 
Report, OMB 3235-0278 (Aug. 2021).
    \285\ We estimate the hourly wage rate for compliance clerk is 
$70 and a general clerk is $62. The hourly wages used are from the 
SIFMA Wage Report.

                                        Table 3--Rule 204-2 PRA Estimates
----------------------------------------------------------------------------------------------------------------
                                                                                                      Annual
                                  Internal hour burden             Wage rate       Internal time   external cost
                                                                                       costs          burden
----------------------------------------------------------------------------------------------------------------
                                  PROPOSED ESTIMATES FOR RULE 204-2 AMENDMENTS
----------------------------------------------------------------------------------------------------------------
Retention of cybersecurity      1.......................   x   $68 (blended rate             $68              $0
 policies and procedures.                                       for general
                                                                clerk and
                                                                compliance
                                                                clerk).
Total burden per adviser......  ........................  ...  .................             $68               0
Total number of affected        x 14,774................  ...  .................        x 14,774               0
 advisers.
                               ---------------------------------------------------------------------------------
    Sub-total burden..........  14,774 hours............  ...  .................      $1,004,632               0
----------------------------------------------------------------------------------------------------------------
Retention of written report     1.......................   x   $68 (blended rate             $68               0
 documenting annual review.                                     for general
                                                                clerk and
                                                                compliance
                                                                clerk).
Total annual burden per         1.......................  ...  .................             $68               0
 adviser.
Total number of affected        x 14,774................  ...  .................        x 14,774               0
 advisers.
                               ---------------------------------------------------------------------------------
    Sub-total burden..........  14,774 hours............  ...  .................      $1,004,632               0
----------------------------------------------------------------------------------------------------------------
Retention of copy of any Form   1.......................   x   $68 (blended rate             $68               0
 ADV-C filed in last 5 years.                                   for general
                                                                clerk and
                                                                compliance
                                                                clerk).
Total annual burden per         1.......................  ...  .................             $68               0
 adviser.
Total number of affected        x 14,774................  ...  .................        x 14,774               0
 advisers.
                               ---------------------------------------------------------------------------------
    Sub-total burden..........  14,774 hours............  ...  .................      $1,004,632               0
----------------------------------------------------------------------------------------------------------------
Retention of records            1.......................   x   $68 (blended rate             $68               0
 documenting a cybersecurity                                    for general
 incident.                                                      clerk and
                                                                compliance
                                                                clerk).
Total annual burden per         1.......................  ...  .................             $68               0
 adviser.
Total number of affected        x 14,774................  ...  .................        x 14,774               0
 advisers.
                               ---------------------------------------------------------------------------------
    Sub-total burden..........  14,774 hours............  ...  .................      $1,004,632               0
----------------------------------------------------------------------------------------------------------------

[[Page 13563]]

 
Retention of records            1.......................   x   $68 (blended rate             $68               0
 documenting an adviser's                                       for general
 cybersecurity risk assessment.                                 clerk and
                                                                compliance
                                                                clerk).
Total annual burden per         1.......................  ...  .................             $68               0
 adviser.
Total number of affected        x 14,774................  ...  .................        x 14,774               0
 advisers.
                               ---------------------------------------------------------------------------------
    Sub-total burden..........  14,774 hours............  ...  .................      $1,004,632               0
----------------------------------------------------------------------------------------------------------------
Total annual aggregate burden   73,870 hours............  ...  .................      $5,023,160               0
 of rule 204-2 amendments.
Current annual estimated        2,764,563 hours.........  ...  .................    $175,980,426               0
 aggregate burden of rule 204-
 2.
Total annual aggregate burden   2,838,433 hours.........  ...  .................    $181,003,586               0
 of rule 204-2.
----------------------------------------------------------------------------------------------------------------

E. Rule 204-6

    Proposed rule 204-6 would require investment advisers to report on 
new Form ADV-C a significant adviser cybersecurity incident or a 
significant fund cybersecurity incident. The rule would define a 
significant adviser cybersecurity incident as a cybersecurity incident, 
or a group of related incidents, that significantly disrupts or 
degrades the adviser's ability, or the ability of a private fund client 
of the adviser, to maintain critical operations, or leads to the 
unauthorized access or use of adviser information, where the 
unauthorized access or use of such information results in: (1) 
Substantial harm to the adviser, or (2) substantial harm to a client, 
or an investor in a private fund, whose information was accessed.\286\ 
Proposed rule 204-6 would also require advisers to amend promptly any 
previously filed Form ADV-C in the event information reported on the 
form becomes materially inaccurate; if new material information about a 
previously reported incident is discovered; and after resolving a 
previously reported incident or closing an internal investigation 
pertaining to pertaining to a previously disclosed incident.
---------------------------------------------------------------------------

    \286\ See proposed rule 204-6(b).
---------------------------------------------------------------------------

    The respondents to this collection of information are investment 
advisers registered or required to be registered with the Commission. 
As noted above, this requirement is mandatory, and all registered 
investment advisers will be subject to the requirements of the proposed 
rule. Responses provided to the Commission would be kept confidential 
subject to the provisions of applicable law. This collection of 
information would help the Commission's examination and oversight 
program efforts in identifying patterns and trends across registrants 
regarding such incidents. As of October 31, 2021, there were 14,774 
registered advisers that would be subject to this reporting 
requirement. The table below summarizes the initial and ongoing annual 
burden and cost estimates associated with the proposed rule's reporting 
requirement.

                                                            Table 4--Rule 204-6 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Internal                                                                                           Annual
                                        initial burden    Internal annual burden hours                 Wage rate           Internal time   external cost
                                             hours                                                                             costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           PROPOSED ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Making a determination of significant                3  3 hours \1\.....................   x   $353 (blended rate for             $1,059      \2\ $1,488
 cybersecurity incident.                                                                        assistant general
                                                                                                counsel, compliance
                                                                                                manager and systems
                                                                                                analyst).
Amending Form ADV-C as required (e.g.,               1  1 hour..........................   x   $396 (blended rate for               $396        \3\ $496
 if any of the information previously                                                           assistant general
 filed on Form ADV-C becomes                                                                    counsel and compliance
 materially inaccurate).                                                                        manager).
Total new annual burden per adviser...  ..............  4 hours.........................  ...  .........................          $1,455          $1,984
Number of advisers....................  ..............  x 14,774........................  ...  .........................        x 14,774        x 14,774
                                       -----------------------------------------------------------------------------------------------------------------
    Total new aggregate annual burden.  ..............  59,096 hours....................  ...  .........................     $21,496,170     $29,311,616
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a three-year period, plus 2 ongoing annual burden hours. The estimate of 6 hours is based on the
  following calculation: ((3 initial hours/3) + 2 additional ongoing burden hours) = 3 hours.
\2\ This estimated burden is based on the estimated wage rate of $496/hour, for 3 hours, for outside legal services.
The Commission's estimates of the relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a
  variety of sources including general information websites, and adjustments for inflation.
\3\ This estimated burden is based on the estimated wage rate of $496/hour, for 1 hour, for outside legal services.


[[Page 13564]]

F. Form ADV-C

    The Commission is proposing a new Form ADV-C to require an adviser 
to provide information regarding a significant cybersecurity incident 
in a structured format through a series of check-the-box and fill-in-
the-blank questions. Proposed Form ADV-C would require advisers to 
report certain information regarding a significant cybersecurity 
incident in order to allow the Commission and its staff to understand 
the nature and extent of the cybersecurity incident and the adviser's 
response to the incident. We believe that collecting information in a 
structured format would enhance the Commission's and its staff's 
ability to effectively carry out the risk-based examination program and 
other risk assessment and monitoring activities. The structured format 
would also assist the Commission and its staff in assessing trends in 
cybersecurity incidents across the industry.
    The respondents to this collection of information are investment 
advisers registered or required to be registered with the Commission. 
As noted above, the collection of this information is mandatory for all 
registered advisers. Information filed on Form ADV-C would be kept 
confidential subject to the provisions of applicable law. As of October 
31, 2021, there were 14,774 registered advisers that would be subject 
to this reporting requirement. The table below summarizes the initial 
and ongoing annual burden and cost estimates associated with filing 
proposed Form ADV-C.

                                                            Table 5--Form ADV-C PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Internal                                                                                           Annual
                                        initial burden    Internal annual burden hours                 Wage rate           Internal time   external cost
                                             hours                                                                             costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              PROPOSED FORM ADV-C ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form ADV-C............................               3  1.5 hours \1\...................   x   $396 (blended rate for               $594        \2\ $496
                                                                                                assistant general
                                                                                                counsel and compliance
                                                                                                manager).
Total new annual burden per adviser...  ..............  1.5 hours.......................  ...  .........................  ..............            $496
Number of advisers....................  ..............  x 14,774........................  ...  .........................        x 14,774        x 14,774
                                                       -------------------------------------------------------------------------------------------------
    Total new aggregate annual burden.  ..............  22,161 hours....................  ...  .........................      $8,775,756      $7,327,904
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a three-year period, plus 0.5 ongoing annual burden hours. The estimate of 1.5 hours is based on
  the following calculation: ((3 initial hours/3) + 0.5 additional ongoing burden hours) = 1.5 hours.
\2\ This estimated burden is based on the estimated wage rate of $496/hour, for 1 hour, for outside legal services.
The Commission's estimates of the relevant wage rates for external time costs, such as outside legal services, takes into account staff experience, a
  variety of sources including general information websites, and adjustments for inflation.

G. Form ADV

    Form ADV is the investment adviser registration form under the 
Advisers Act. Part 1 of Form ADV contains information used primarily by 
Commission staff, and Part 2A is the client brochure. Part 2B requires 
advisers to create brochure supplements containing information about 
certain supervised persons. Part 3: Form CRS (relationship summary) 
requires certain registered investment advisers to prepare and file a 
relationship summary for retail investors. We use the information on 
Form ADV to determine eligibility for registration with us and to 
manage our regulatory and examination programs. Clients and investors 
use certain of the information to determine whether to hire or retain 
an investment adviser, as well as what types of accounts and services 
are appropriate for their needs. The collection of information is 
necessary to provide advisory clients, prospective clients, other 
market participants and the Commission with information about the 
investment adviser and its business, conflicts of interest and 
personnel. Rule 203-1 under the Advisers Act requires every person 
applying for investment adviser registration with the Commission to 
file Form ADV. Rule 204-4 under the Advisers Act requires certain 
investment advisers exempt from registration with the Commission 
(``exempt reporting advisers'' or ``ERAs'') to file reports with the 
Commission by completing a limited number of items on Form ADV. Rule 
204-1 under the Advisers Act requires each registered and exempt 
reporting adviser to file amendments to Form ADV at least annually, and 
requires advisers to submit electronic filings through IARD. The 
paperwork burdens associated with rules 203-1, 204-1, and 204-4 are 
included in the approved annual burden associated with Form ADV and 
thus do not entail separate collections of information. These 
collections of information are found at 17 CFR 275.203-1, 275.204-1, 
275.204-4 and 279.1 (Form ADV itself) and are mandatory. Responses are 
not kept confidential.
    We are proposing amendments to Form ADV to provide clients and 
prospective clients with information regarding an adviser's 
cybersecurity risks and significant cybersecurity incidents that have 
occurred in the past two years. Specifically, the proposed amendments 
would add a new Item 20 entitled ``Cybersecurity Risks and Incidents'' 
to Form ADV's narrative brochure, or Part 2A. The brochure, which is 
publicly available and the primary client-facing disclosure document, 
contains information about the investment adviser's business practices, 
fees, risks, conflicts of interest, and disciplinary events. We believe 
the narrative format of the brochure would allow advisers to present 
clear and meaningful cybersecurity disclosure to their clients and 
prospective clients. Advisers would be required to, in plain English, 
describe cybersecurity risks that could materially affect the advisory 
services they offer and describe how they assess, prioritize, and 
address cybersecurity risks created by the nature and scope of their 
business. The proposed amendments would also require advisers to 
describe any significant adviser cybersecurity incidents that have 
occurred within the last two years.
    The collection of information is necessary to improve information 
available to us and to the general public about advisers' cybersecurity 
risks and

[[Page 13565]]

incidents. Our staff would use this information to help prepare for 
examinations of investment advisers. This information would be 
particularly useful for staff in reviewing an adviser's compliance with 
the proposed rulemakings and rule amendments. We are not proposing 
amendments to Parts 1 or 3 of Form ADV.
    The respondents to current Form ADV are investment advisers 
registered with the Commission or applying for registration with the 
Commission and exempt reporting advisers.\287\ Based on the IARD system 
data as of October 31, 2021, approximately 14,774 investment advisers 
were registered with the Commission, and 4,985 exempt reporting 
advisers file reports with the Commission. The amendments we are 
proposing would increase the information requested in Part 2A of Form 
ADV for registered investment advisers. Because exempt reporting 
advisers are not required to complete Form ADV Part 2A, they would not 
be subject to the proposed amendments to Form ADV Part 2A and would 
therefore not be subject to this collection of information.\288\ 
However, these exempt reporting advisers are included in the PRA for 
purposes of updating the overall Form ADV information collection. In 
addition, the burdens associated with completing Part 3 are included in 
the PRA for purposes of updating the overall Form ADV information 
collection.\289\ Based on the prior revision of Form ADV, we estimated 
the annual compliance burden to comply with the collection of 
information requirement of Form ADV is 433,004 burden hours and an 
external cost burden estimate of $14,125,083.\290\ We propose the 
following changes to our PRA methodology for Form ADV:
---------------------------------------------------------------------------

    \287\ An exempt reporting adviser is an investment adviser that 
relies on the exemption from investment adviser registration 
provided in either section 203(l) of the Advisers Act because it is 
an adviser solely to one or more venture capital funds or section 
203(m) of the Advisers Act because it is an adviser solely to 
private funds and has assets under management in the United States 
of less than $150 million.
    \288\ An exempt reporting adviser is not a registered investment 
adviser and therefore would not be subject to the proposed 
amendments to Item 5 of Form ADV Part 1A. Exempt reporting advisers 
are required to complete a limited number of items in Part 1A of 
Form ADV (consisting of Items 1, 2.B., 3, 6, 7, 10, 11, and 
corresponding schedules), and are not required to complete Part 2.
    \289\ See Updated Supporting Statement for PRA Submission for 
Amendments to Form ADV under the Investment Advisers Act of 1940 
(``Approved Form ADV PRA'').
    \290\ See Investment Adviser Marketing, Final Rule, Investment 
Advisers Act Release No. 5653 (Dec. 22, 2020) [81 FR 60418 (Mar. 5, 
2021)] and corresponding submission to the Office of Information and 
Regulatory Affairs at reginfo.gov (``2021 Form ADV PRA'').
---------------------------------------------------------------------------

    <bullet> Form ADV Parts 1 and 2. Form ADV PRA has historically 
calculated a per adviser per year hourly burden for Form ADV Parts 1 
and 2 for each of (1) the initial burden and (2) the ongoing burden, 
which reflects advisers' filings of annual and other-than-annual 
updating amendments. We noted in previous PRA amendments that most of 
the paperwork burden for Form ADV Parts 1 and 2 would be incurred in 
the initial submissions of Form ADV. However, recent PRA amendments 
have continued to apply the total initial hourly burden for Parts 1 and 
2 to all currently registered or reporting RIAs and ERAs, respectively, 
in addition to the estimated number of new advisers expected to be 
registering or reporting with the Commission annually. We believe that 
the total initial hourly burden for Form ADV Parts 1 and 2 going 
forward should be applied only to the estimated number of expected new 
advisers annually. This is because currently registered or reporting 
advisers have generally already incurred the total initial burden for 
filing Form ADV for the first time. On the other hand, the estimated 
expected new advisers will incur the full total burden of initial 
filing of Form ADV, and we believe it is appropriate to apply this 
total initial burden to these advisers. We propose to continue to apply 
any new initial burdens resulting from proposed amendments to Form ADV 
Part 2, as applicable, to all currently registered or reporting 
investment advisers plus all estimated expected new RIAs and ERAs 
annually.
    Table 6 below summarizes the burden estimates associated with the 
proposed amendments to Form ADV Part 2A. The proposed new burdens take 
into account changes in the numbers of advisers since the last approved 
PRA for Form ADV, and the increased wage rates due to inflation.

                                                             Table 6--Form ADV PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Internal annual
                                        Internal initial     amendment burden hours      Wage rate \2\       Internal time costs    Annual external cost
                                          burden hours                 \1\                                                               burden \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             PROPOSED AMENDMENTS TO FORM ADV
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        RIAs (burden for Parts 1 and 2, not including private fund reporting) \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed addition (per adviser) to   3 hours...............  0.2 hours.............  $279.50 per hour       3.2 hours x $279.50 =  1 hour of external
 Part 2A (Item 20).                                                                   (blended rate for      $894.4.                legal services
                                                                                      senior compliance                             ($496) for \1/4\ of
                                                                                      examiner and                                  advisers that
                                                                                      compliance manager)                           prepare Part 2; 1
                                                                                      \5\.                                          hour of external
                                                                                                                                    compliance
                                                                                                                                    consulting services
                                                                                                                                    ($739) for \1/2\ of
                                                                                                                                    advisers that
                                                                                                                                    prepare Part 2.\6\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current burden per adviser \7\.....  29.72 hours \8\.......  11.8 hours \9\........  $273 per hour          (29.72 + 11.8) x $273  $2,069,250 aggregated
                                                                                      (blended rate for      = $11,334.96.          (previously
                                                                                      senior compliance                             presented only in
                                                                                      examiner and                                  the aggregate) \10\
                                                                                      compliance manager).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revised burden per adviser.........  29.72 hours + 3 hours   0.2 hours + 11.8 hours  $279.50 (blended rate  (32.72 + 12) x $279.5  $4,689.50.\11\
                                      = 32.72 hours.          = 12 hours.             for senior             = $12,499.24.
                                                                                      compliance examiner
                                                                                      and compliance
                                                                                      manager).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total revised aggregate burden       61,140.08 \12\........  183,456 hours \13\....  Same as above........  (61,140.08 + 183,456)  $9,701,372.\14\
 estimate.                                                                                                   x $279.5 =
                                                                                                             $68,364,604.40.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 13566]]

 
                                                              RIAs (burden for Part 3) \15\
--------------------------------------------------------------------------------------------------------------------------------------------------------
No proposed changes................  ......................  ......................  .....................  .....................  .....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current burden per RIA.............  20 hours, amortized     1.58 hours \17\.......  $273 (blended rate     $273 x (6.67 + 1.71)   $2,433.74 per
                                      over three years =                              for senior             = $2,287.74.           adviser.\18\
                                      6.67 hours \16\.                                compliance examiner
                                                                                      and compliance
                                                                                      manager).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total updated aggregate burden       66,149.59 hours \19\..  14,573.92 hours \20\..  Same as above........  $22,562,221 (($279.50  $8,157,555.\21\
 estimate.                                                                                                   x (66,149.59 hours +
                                                                                                             14,573.92 hours)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          ERAs (burden for Part 1A, not including private fund reporting) \22\
--------------------------------------------------------------------------------------------------------------------------------------------------------
No proposed changes
Current burden per ERA.............  3.60 hours \23\.......  1.5 hours + final       $273 (blended rate     Wage rate x total      $0
                                                              filings \24\.           for senior             hours (see below).
                                                                                      compliance examiner
                                                                                      and compliance
                                                                                      manager).
Total updated aggregate burden       1,245.6 \25\..........  8,033.6 hours \26\....  Same as above........  $2,593,536.40 ($279.5  $0.
 estimate.                                                                                                   x (1,245.6 + 8,033.6
                                                                                                             hours)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Private Fund Reporting \27\
--------------------------------------------------------------------------------------------------------------------------------------------------------
No proposed changes................  ......................  ......................  .....................  .....................  .....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current burden per adviser to        1 hour per private      N/A-included in the     $273 (blended rate     .....................  Cost of $46,865.74
 private fund.                        fund \28\.              existing annual         for senior                                    per fund, applied to
                                                              amendment reporting     compliance examiner                           6% of RIAs that
                                                              burden for ERAs.        and compliance                                report private
                                                                                      manager).                                     funds.\29\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total updated aggregate burden       1,150 hours \30\......  N/A...................  Same as above........  $3,978,123.5 ($279.5   $15,090,768.30.\31\
 estimate.                                                                                                   x 14,233 hours)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS, INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current per adviser burden/external  23.82 hours \32\......  ......................  .....................  23.82 hours x $273 =   $777.\33\
 cost per adviser.                                                                                           $6,502.86 per
                                                                                                             adviser cost of the
                                                                                                             burden hour.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revised per adviser burden/external  16.28 hours \34\......  ......................  .....................  16.28 hours x $279.5   $1,598.03.\35\
 cost per adviser.                                                                                           = $4,550.26 per
                                                                                                             adviser cost of the
                                                                                                             burden hour.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate burden estimates.  433,004 initial and amendment hours annually \36\                      433,004 x $273 =       $14,125,083.\37\
                                                                                                             $118,210,092
                                                                                                             aggregate cost of
                                                                                                             the burden hour.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revised aggregate burden estimates.  335,748.793 \38\ Initial and amendment hours annually                  290,831.73 x $279.5 =  $32,949,695.30.\39\
                                                                                                             $81,287,468.54
                                                                                                             aggregate cost of
                                                                                                             the burden hour.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ This column estimates the hourly burden attributable to annual and other-than-annual updating amendments to Form ADV, plus RIAs' ongoing obligations
  to deliver codes of ethics to clients.
\2\ As with Form ADV generally, and pursuant to the currently approved PRA (see 2021 Form ADV PRA), we expect that for most RIAs and ERAs, the
  performance of these functions will most likely be equally allocated between a senior compliance examiner and a compliance manager, or persons
  performing similar functions. The Commission's estimates of the relevant wage rates are based on salary information for the securities industry
  compiled by the SIFMA Wage Report. The estimated figures are modified by firm size, employee benefits, overhead, and adjusted to account for the
  effects of inflation. For RIAs and ERAs that do not already have a senior compliance or a compliance manager, we expect that a person performing a
  similar function would have similar hourly costs. The estimated wage rates in connection with the proposed PRA estimates are adjusted for inflation
  from the wage rates used in the currently approved PRA analysis.
\3\ External fees are in addition to the projected hour per adviser burden. Form ADV has a one-time initial cost for outside legal and compliance
  consulting fees in connection with the initial preparation of Parts 2 and 3 of the form. In addition to the estimated legal and compliance consulting
  fees, investment advisers of private funds incur one-time costs with respect to the requirement for investment advisers to report the fair value of
  private fund assets.
\4\ Based on Form ADV data as of October 31, 2021, we estimate that there are 14,774 RIAs (``current RIAs'') and 514 advisers that are expected to
  become RIAs annually (``newly expected RIAs'').
\5\ The $279.50 wage rate reflects current estimates from the SIFMA Wage Report of the blended hourly rate for a senior compliance examiner ($243) and a
  compliance manager ($316). ($243 + $316) /2 = $279.5.
\6\ We estimate that a quarter of RIAs would seek the help of outside legal services and half would seek the help of compliance consulting services in
  connection with the proposed amendments to Form ADV Part 2. This is based on previous estimates and ratios we have used for advisers we expect to use
  external services for initially preparing various parts of Form ADV. See 2020 Form ADV PRA Renewal (the subsequent amendment to Form ADV described in
  the 2021 Form ADV PRA did not change that estimate). Because the SIFMA Wage Report does not include a specific rate for outside compliance consultant,
  we are proposing to use the rates in the SIFMA Wage Report for outside management consultant, as we have done in the past when estimating the rate of
  outside compliance counsel. We are adjusting these external costs for inflation, using the currently estimated costs for outside legal counsel and
  outside management consultants in the SIFMA Wage Report: $495 per hour for outside counsel, and $739 per hour for outside management consultant
  (compliance consultants).
\7\ Per above, we are proposing to revise the PRA calculation methodology to apply the full initial burden only to expected RIAs, as we believe that
  current RIAs have generally already incurred the burden of initially preparing Form ADV.
\8\ See 2020 Form ADV PRA Renewal (stating that the estimate average collection of information burden per adviser for Parts 1 and 2 is 29.22 hours,
  prior to the most recent amendment to Form ADV). See also 2021 Form ADV PRA (adding 0.5 hours to the estimated initial burden for Part 1A in
  connection with the most recent amendment to Form ADV). Therefore, the current estimated average initial collection of information hourly burden per
  adviser for Parts 1 and 2 is 29.72 hours (29.22 + 0.5 = 29.72).

[[Page 13567]]

 
\9\ The currently approved average total annual burden for RIAs attributable to annual and other-than-annual updating amendments to Form ADV Parts 1 and
  2 is 10.5 hours per RIA, plus 1.3 hours per year for each RIA to meet its obligation to deliver codes of ethics to clients (10.5 + 1.3 = 11.8 hours
  per adviser). See 2020 Form ADV PRA Renewal (these 2020 hourly estimates were not affected by the 2021 amendments to Form ADV). As we explained in
  previous PRAs, we estimate that each RIA filing Form ADV Part 1 will amend its form 2 times per year, which consists of one interim updating amendment
  (at an estimated 0.5 hours per amendment), and one annual updating amendment (at an estimated 8 hours per amendment), each year. We also explained
  that we estimate that each RIA will, on average, spend 1 hour per year making interim amendments to brochure supplements, and an additional 1 hour per
  year to prepare brochure supplements as required by Form ADV Part 2. See id.
\10\ See 2020 Form ADV PRA Renewal (the subsequent amendment to Form ADV described in the 2021 Form ADV PRA did not affect that estimate).
\11\ External cost per RIA includes the external cost for initially preparing Part 2, which we have previously estimated to be approximately 10 hours of
  outside legal counsel for a quarter of RIAs, and 8 hours of outside management consulting services for half of RIAs. See 2020 Form ADV Renewal (these
  estimates were not affected by subsequent amendments to Form ADV). We add to this burden the estimated external cost associated with the proposed
  amendment (an additional hour of each, bringing the total to 11 hours and 9 hours, respectively, for \1/4\ and \1/2\ of RIAs, respectively). (((.25 x
  14,774 RIAs) x ($496 x 11 hours)) + ((0.50 x 14,774 RIAs) x ($739 x 9 hours))) /14,774 RIAs = $4,689.50 per adviser.
\12\ Per above, we are proposing to revise the PRA calculation methodology for current RIAs to not apply the full initial burden to current RIAs, as we
  believe that current RIAs have generally already incurred the initial burden of preparing Form ADV. Therefore, we calculate the initial burden
  associated with complying with the proposed amendment of 3 initial hours x 14,774 current RIAs = 44,322 initial hours in the first year aggregated for
  current RIAs. We are not amortizing this burden because we believe current advisers will incur it in the first year. For expected RIAs, we estimate
  that they will incur the full revised initial burden, which is 32.72 hours per RIA. Therefore, 32.72 hours x 514 expected RIAs = 16,818.08 aggregate
  hours for expected RIAs. We do not amortize this burden for expected new RIAs because we expect a similar number of new RIAs to incur this initial
  burden each year. Therefore, the total revised aggregate initial burden for current and expected RIAs is 44,322 hours + 16,818.08 hours = 61,140.08
  aggregate initial hours.
\13\ 12 amendment hours x (14,774 current RIAs + 514 expected new RIAs) = 183,456 aggregate amendment hours.
\14\ Per above, for current RIAs, we are proposing to not apply the currently approved external cost for initially preparing Part 2, because we believe
  that current RIAs have already incurred that initial external cost. For current RIAs, therefore, we are applying only the external cost we estimate
  they will incur in complying with the proposed amendment. Therefore, the revised total burden for current RIAs is (((.25 x 14,774 RIAs) x ($496 x 1
  hour)) + ((0.50 x 14,774 RIAs) x ($739 x 1 hour))) /14,774 RIAs = $7,290,969 aggregated for current RIAs, We do not amortize this cost for current
  RIAs because we expect current RIAs will incur this initial cost in the first year. For expected RIAs, we apply the currently approved external cost
  for initially preparing Part 2 plus the estimated external cost for complying with the proposed amendment. Therefore, $4,689.50 per expected RIA x 514
  = $2,410,403 aggregated for expected RIAs. We do not amortize this cost for expected new RIAs because we expect a similar number of new RIAs to incur
  this external cost each year. $7,290,969 aggregated for current RIAs + $2,410,403 aggregated for expected RIAs = $9,701,372 aggregated external cost
  for RIAs.
\15\ Even though we are not proposing amendments to Form ADV Part 3 (``Form CRS''), the burdens associated with completing Part 3 are included in the
  PRA for purposes of updating the overall Form ADV information collection. Based on Form ADV data as of October 31, 2021, we estimate that 8,877
  current RIAs provide advice to retail investors and are therefore required to complete Form CRS, and we estimate an average of 347 expected new RIAs
  to be advising retail advisers and completing Form CRS for the first time annually.
\16\ See Form CRS Relationship Summary; Amendments to Form ADV, Investment Advisers Act Release No. 5247 (Jun. 5, 2019) [84 FR 33492 (Sep. 10, 2019)]
  (``2019 Form ADV PRA''). Subsequent PRA amendments for Form ADV have not adjusted the burdens or costs associated with Form CRS. Because Form CRS is
  still a new requirement for all applicable RIAs, we have, and are continuing to, apply the total initial amendment burden to all current and expected
  new RIAs that are required to file Form CRS, and amortize that initial burden over three years for current RIAs.
\17\ As reflected in the currently approved PRA burden estimate, we stated that we expect advisers required to prepare and file the relationship summary
  on Form ADV Part 3 will spend an average 1 hour per year making amendments to those relationship summaries and will likely amend the disclosure an
  average of 1.71 times per year, for approximately 1.58 hours per adviser. See 2019 Form ADV PRA (these estimates were not amended by the 2021
  amendments to Form ADV).
\18\ See 2020 Form ADV PRA Amendment (this cost was not affected by the subsequent amendment to Form ADV and was not updated in connection with that
  amendment; while this amendment did not break out a per adviser cost, we calculated this cost from the aggregate total and the number of advisers we
  estimated prepared Form CRS). Note, however, that in our 2020 Form ADV PRA Renewal, we applied the external cost only to expected new retail RIAs,
  whereas we had previously applied the external cost to current and expected retail RIAs. We believe that since Form CRS is still a newly adopted
  requirement, we should continue to apply the cost to both current and expected new retail RIAs. See 2019 Form ADV PRA.
\19\ 8,877 current RIAs x 6.67 hours each for initially preparing Form CRS = 59,209.59 aggregate hours for current RIAs initially filing Form CRS. For
  expected new RIAs initially filing Form CRS each year, we are not proposing to use the amortized initial burden estimate, because we expect a similar
  number of new RIAs to incur the burden of initially preparing Form CRS each year. Therefore, 347 expected new RIAs x 20 initial hours for preparing
  Form CRS = 6,940 aggregate initial hours for expected RIAs. 59,209.59 hours + 6,940 hours = 66,149.59 aggregate hours for current and expected RIAs to
  initially prepare Form CRS.
\20\ 1.58 hours x (8,877 current RIAs updating Form CRS + 347 expected new RIAs updating Form CRS) = 14,573.92 aggregate amendment hours per year for
  RIAs updating Form CRS.
\21\ We have previously estimated the initial preparation of Form CRS would require 5 hours of external legal services for an estimated quarter of
  advisers that prepare Part 3, and; 5 hours of external compliance consulting services for an estimated half of advisers that prepare Part 3. See 2020
  PRA Renewal (these estimates were not amended by the most recent amendment to Form ADV). The hourly cost estimate of $496 and $739 for outside legal
  services and management consulting services, respectively, are based on an inflation-adjusted figure in the SIFMA Wage Report. Therefore, (((.25 x
  8,877 current RIAs preparing Form CRS) x ($496 x 5 hours)) + ((0.50 x 8,877 current RIAs preparing Form CRS) x ($739 x 5 hours))) = $21,903,997.50.
  For current RIAs, since this is still a new requirement, we amortize this cost over three years for a per year initial external aggregated cost of
  $7,301,332.50. For expected RIAs that we expect would prepare Form CRS each year, we use the following formula: (((.25 x 347 expected RIAs preparing
  Form CRS) x ($496 x 5 hours)) + ((0.50 x 347 expected RIAs preparing Form CRS) x ($739 x 5 hours))) = $856,222.50 aggregated cost for expected RIAs.
  We are not amortizing this initial cost because we estimate a similar number of new RIAs would incur this initial cost in preparing Form CRS each
  year, $7,301,332.50 + $856,222.50 = $8,157,555 aggregate external cost for current and expected RIAs to initially prepare Form CRS.
\22\ Based on Form ADV data as of October 31, 2021, we estimate that there are 4,985 currently reporting ERAs (``current ERAs''), and an average of 346
  expected new ERAs annually (``expected ERAs'').
\23\ See 2021 Form ADV PRA.
\24\ The previously approved average per adviser annual burden for ERAs attributable to annual and updating amendments to Form ADV is 1.5 hours. See
  2021 Form ADV PRA. As we have done in the past, we add to this burden the burden for ERAs making final filings, which we have previously estimated to
  be 0.1 hour per applicable adviser, and we estimate that an expected 371 current ERAs will prepare final filings annually, based on Form ADV data as
  of December 2020.
\25\ For current ERAs, we are proposing to not apply the currently approved burden for initially preparing Form ADV, because we believe that current
  ERAs have already incurred this burden. For expected ERAs, we are applying the initial burden of preparing Form ADV of 3.6 hours. Therefore, 3.6 hours
  x 346 expected new ERAs per year = 1,245.6 aggregate initial hours for expected ERAs. For these expected ERAs, we are not proposing to amortize this
  burden, because we expect a similar number of new ERAs to incur this burden each year. Therefore, we estimate 1,245.6 aggregate initial annual hours
  for expected ERAs.
\26\ The previously approved average total annual burden of ERAs attributable to annual and updating amendments to Form ADV is 1.5 hours. See 2020 Form
  ADV Renewal (this estimate was not affected by the subsequent amendment to Form ADV). As we have done in the past, we added to this burden the
  currently approved burden for ERAs making final filings of 0.1 hour, and multiplied that by the number of final filings we are estimating ERAs would
  file per year (371 final filings based on Form ADV data as of December 2020). (1.5 hours x 4,985 currently reporting ERAs) + (0.1 hour x 371 final
  filings) = 7,514.6 updated aggregated hours for currently reporting ERAs. For expected ERAs, the aggregate burden is 1.5 hours for each ERA
  attributable to annual and other-than-annual updating amendments to Form ADV x 346 expected new ERAs = 519 annual aggregated hours for expected new
  ERAs updating Form ADV (other than for private fund reporting). The total aggregate amendment burden for ERAs (other than for private fund reporting)
  is 7,514.6 + 519 = 8,033.6 hours.
\27\ Based on Form ADV data as of October 31, 2021, we estimate that 5,232 current RIAs advise 43,501 private funds, and expect an estimated 136 new
  RIAs will advise 407 reported private funds per year. We estimate that 4,959 current ERAs advise 23,476 private funds, and estimate an expected 372
  new ERAs will advise 743 reported private funds per year. Therefore, we estimate that there are 66,977 currently reported private funds reported by
  current private fund advisers (43,501 + 23,476), and there will be annually 1,150 new private funds reported by expected private fund advisers (407 +
  743). The total number of current and expected new RIAs that report or are expected to report private funds is 5,368 (5,232 current RIAs that report
  private funds + 136 expected RIAs that would report private funds).
\28\ See 2020 Form ADV PRA Renewal (this per adviser burden was not affected by subsequent amendments to Form ADV).
\29\ We previously estimated that an adviser without the internal capacity to value specific illiquid assets would obtain pricing or valuation services
  at an estimated cost of $37,625 each on an annual basis. See Rules Implementing Amendments to the Investment Advisers Act of 1940, Investment Advisers
  Act Release No. IA-3221 (Jun. 22, 2011) [76 FR 42950 (Jul. 19, 2011)]. However, because we estimated that external cost in 2011, we are proposing to
  use an inflation-adjusted cost of $46,865.74, based on the CPI calculator published by the Bureau of Labor Statistics at https://www.bls.gov/data/inflation_calculator.htm. As with previously approved PRA methodologies, we continue to estimate that 6% of RIAs have at least one private fund client
  that may not be audited. See 2020 Form ADV PRA Renewal.
\30\ Per above, for currently reported private funds, we are proposing to not apply the currently approved burden for initially reporting private funds
  on Form ADV, because we believe that current private fund advisers have already incurred this burden. For the estimated 1,150 new private funds
  annually of expected private fund advisers, we calculate the initial burden of 1 hour per private fund. 1 hour per expected new private fund x 1,150
  expected new private funds = 1,150 aggregate hours for expected new private funds. For these expected new private funds, we are not proposing to
  amortize this burden, because we expect new private fund advisers to incur this burden with respect to new private funds each year. Therefore, we
  estimate 1,150 aggregate initial hours for expected private fund advisers.

[[Page 13568]]

 
\31\ As with previously approved PRA methodologies, we continue to estimate that 6% of registered advisers have at least one private fund client that
  may not be audited, therefore we estimate that the total number of audits for current and expected RIAs is 6% x 5,368 current and expected RIAs
  reporting private funds or expected to report private funds = 322.08 audits. We therefore estimate that approximately 322 registered advisers incur
  costs of $46,865.74 each on an annual basis (see note 29 describing the cost per audit), for an aggregate annual total cost of $15,090,768.30.
\32\ 433,004 currently approved burden hours /18,179 advisers (current and expected annually) = 23.82 hours per adviser. See 2021 Form ADV PRA.
\33\ $14,125,083 currently approved aggregate external cost /18,179 advisers (current and expected annually) = $777 blended average external cost per
  adviser.
\34\ 335,748.79 aggregate annual hours for current and expected new advisers (see infra note [38]) /(14,774 current RIAs + 514 expected RIAs + 4,985
  current ERAs + 346 expected ERAs) = 16.28 blended average hours per adviser.
\35\ $32,949,695.30 aggregate external cost for current and expected new advisers (see infra note [39]) /(20,619 advisers current and expected annually)
  = $1,598.03 blended average hours per adviser.
\36\ See 2021 Form ADV PRA.
\37\ See 2021 Form ADV PRA.
\38\ 61,140.08 hours + 183,456 hours + 66,149.59 hours + 14,573.92 hours + 1,245.6 + 8,033.6 hours + 1,150 hours = 335,748.79 aggregate annual hours for
  current and expected new advisers.
\39\ $9,701,372 + $8,157,555 + $15,090,768.30 = $32,949,695.30.

H. Rule 204-3

    Rule 204-3, the ``brochure rule,'' requires an investment adviser 
to deliver its brochure and brochure supplements to its new clients or 
prospective clients before or at the start of the advisory relationship 
and to deliver annually thereafter the full updated brochure or a 
summary of material changes to its brochure. The rule also requires 
that advisers deliver an amended brochure or brochure supplement (or 
just a statement describing the amendment) to clients only when 
disciplinary information in the brochure or supplement becomes 
materially inaccurate. The brochure assists the client in determining 
whether to retain, or continue employing, the adviser. Advisers 
registered with the Commission are required to prepare and 
electronically file firm brochures through the IARD.
    Our proposed amendments to rule 204-3 would require an adviser to 
deliver interim brochure amendments promptly to existing clients if the 
adviser adds disclosure of a cybersecurity incident to its brochure or 
materially revises information already disclosed in its brochure about 
such an incident. We believe that requiring an adviser to deliver the 
brochure amendment promptly would enhance investor protection by 
enabling clients to take protective or remedial measures to the extent 
appropriate. It would also assist investors in determining whether 
their engagement of that particular adviser remains appropriate and 
consistent with their investment objectives.
    The collection of information the brochure rule requires is 
necessary for several reasons. For example, it enables the client or 
prospective client to evaluate the adviser's background and 
qualifications, and to determine whether the adviser's services and 
practices are appropriate for that client. It also informs the client 
of the nature of the adviser's business, which may inform or limit the 
client's rights under the advisory contract. The information that rule 
204-3 requires to be contained in the brochure is used by the 
Commission and staff in its enforcement, regulatory, and examination 
programs.
    The respondents to this collection of information are investment 
advisers registered or required to be registered with the Commission. 
As noted above, the collection of this information is mandatory for all 
registered advisers. Responses are not kept confidential. As of October 
31, 2021, there were 14,774 registered advisers that would be subject 
to this brochure requirement. The table below summarizes the initial 
and ongoing annual burden and cost estimates associated with the 
proposed rule's reporting requirement.
    Table 7 below summarizes the initial and ongoing annual burden 
estimates associated with the proposed amendments to rule 204-3.

                                                            Table 7--Rule 204-3 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Annual
                                      Internal initial   Internal annual burden hours                 Wage rate            Internal time  external  cost
                                        burden hours                                                                           costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   PROPOSED ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual delivery of brochure........            \1\ 1.66  1.66 hours..................   x   $64 (general clerk).........         $106.24              $0
Interim delivery of updates to                  \3\ 0.1  0.1 hour....................   x   $64 (general clerk).........           $6.40               0
 disciplinary action \2\.
Interim delivery of updates to                  \4\ 0.1  0.1 hour....................   x   $64 (general clerk).........           $6.40               0
 cybersecurity incidents.
Supplement tracking systems \5\....             \6\ 200  200 hours...................   x   $64 (general clerk).........         $12,800               0
Total new annual burden per adviser  ..................  201.86 hours................  ...  ............................      $12,919.04  ..............
Number of advisers.................  ..................  x14,774.....................  ...  ............................         x14,774  ..............
                                                        ------------------------------------------------------------------------------------------------
    Total new aggregate annual       ..................  2,982,279.64 hours..........  ...  ............................    $190,865,897  ..............
     burden.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ We continue to estimate that, with a bulk mailing, an adviser will require no more than 0.02 hours to send the adviser's brochure or summary of
  material changes to each client, or an annual burden of 1.66 hours per adviser. (0.02 hours per client x 83 clients per adviser based on IARD data as
  of October 31, 2021) = approximately 1.66 hours per adviser. We note that the burden for preparing brochures is already incorporated into a separate
  burden estimate for Form ADV. We expect that most advisers will make their annual delivery as part of a mailing of an account statement or other
  periodic report they already make to clients; therefore, we estimate that the additional burden will be adding a few pages to the mailing.
\2\ See approved rule 204-3 PRA.
\3\ This is the previously approved burden estimate for interim delivery of updates to disciplinary action on Form ADV. We are not changing this
  estimate.
\4\ This relates only to the amount of time it will take advisers to deliver interim updates to clients, as required by the proposed rule amendments.
  The burden for preparing interim updates is already incorporated into a separate burden estimate for Form ADV. This mailing may not be included with a
  mailing of a statement or other periodic report; therefore, we estimate that it will take slightly more time to deliver interim updates than to
  deliver the annual brochure or summary of material changes.

[[Page 13569]]

 
\5\ We estimate that large advisers will need to design and implement systems to track changes in supervised persons providing investment advice to
  particular clients. We do not expect that such systems will be necessary for small advisers or medium advisers.
For purposes of the estimates in this section, we have categorized small advisers as those with 10 or fewer employees, medium-sized advisers as those
  with between 11 and 1,000 employees, and large advisers as those with over 1,000 employees. According to IARD data, only 1.70% of medium advisers
  report in response to Form ADV, Part 1A, Item 5.B.(1) that more than 250 employees perform investment advisory functions.
\6\ See approved rule 204-3 PRA. This includes estimated time for large advisers to design and implement systems to track that the right supplements are
  delivered to the right clients as personnel providing investment advice to those clients change.

I. Form N-1A

    The proposed amendments to Form N-1A would require a description of 
any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund or its service providers.
    Form N-1A generally imposes two types of reporting burdens on 
investment companies: (1) The burden of preparing and filing the 
initial registration statement; and (2) the burden of preparing and 
filing post-effective amendments to a previously effective registration 
statement. In our most recent Paperwork Reduction Act submission for 
Form N-1A, we estimated for Form N-1A a total aggregate annual hour 
burden of 1,672,077 hours, and a total annual aggregate annual external 
cost burden of $132,940,008.\291\ Compliance with the disclosure 
requirements of Form N-1A is mandatory, and the responses to the 
disclosure requirements will not be kept confidential. These 
collections of information would help increase the likelihood that 
funds are prepared to respond to a cybersecurity incident, and would 
provide Commission staff with information in its examination and 
oversight program in identifying patterns and trends across registrants 
regarding such incidents. Based on filing data as of December 30, 2020, 
we estimate that 13,248 funds would be subject to these proposed 
amendments.
---------------------------------------------------------------------------

    \291\ On September 9, 2021, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-1A.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-1A.

                                                            Table 8--Form N-1A PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Annual
                                          Internal initial   Internal annual burden hours \1\        Wage rate \2\         Internal time  external  cost
                                            burden hours                                                                       costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              PROPOSED FORM N-1A ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures \3\.                  21  15 hours \4\....................  $356 (blended rate for             $5,340        \5\ $992
                                                                                                compliance attorney and
                                                                                                senior programmer).
Number of funds........................  ..................  x 13,248 funds \6\..............  .........................  x 13,248 funds     \7\ x 6,624
                                                            --------------------------------------------------------------------------------------------
    Total new aggregate annual burden..  ..................  198,720 hours...................  .........................     $70,744,320      $6,571,008
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden          ..................  + 1,672,077 hours...............  .........................  ..............  + $132,940,008
 estimates.
Revised aggregate annual burden          ..................  1,870,797 hours.................  .........................  ..............    $139,511,016
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ Includes all open-end funds, including ETFs, registered on Form N-1A.
\7\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

J. Form N-2

    The proposed amendments to Form N-2 would require a description of 
any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund, any subsidiary, or the fund's service providers.
    Form N-2 generally imposes two types of reporting burdens on 
investment companies: (1) The burden of preparing and filing the 
initial

[[Page 13570]]

registration statement; and (2) the burden of preparing and filing 
post-effective amendments to a previously effective registration 
statement. In our most recent Paperwork Reduction Act submission for 
Form N-2, we estimated for Form N-2 a total aggregate annual hour 
burden of 94,350 hours, and a total aggregate annual external cost 
burden of $6,269,752.\292\ Compliance with the disclosure requirements 
of Form N-2 is mandatory, and the responses to the disclosure 
requirements will not be kept confidential. These collections of 
information would help increase the likelihood that funds are prepared 
to respond to a cybersecurity incident, and would provide Commission 
staff with information in its examination and oversight program in 
identifying patterns and trends across registrants regarding such 
incidents. Based on filing data as of December 30, 2020, we estimate 
that 786 funds, including BDCs, would be subject to these proposed 
amendments.
---------------------------------------------------------------------------

    \292\ On September 17, 2020, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-2.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-2.

                                                             Table 9--Form N-2 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                              initial      Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                           burden hours                                                                        costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               PROPOSED FORM N-2 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures \3\..              21  15 hours \4\......................  $356 (blended rate for              $5,340        $992 \5\
                                                                                               compliance attorney and
                                                                                               senior programmer).
Number of funds.........................  ..............  x 786 funds \6\...................  ..........................     x 786 funds       x 393 \7\
                                                         -----------------------------------------------------------------------------------------------
    Total new aggregate annual burden...  ..............  11,790 hours......................  ..........................      $4,197,240        $389,856
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden           ..............  + 94,350 hours....................  ..........................  ..............    + $6,269,752
 estimates.
Revised aggregate annual burden           ..............  106,140 hours.....................  ..........................  ..............      $6,659,608
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ Includes 691 registered closed-end funds and 95 BDCs.
\7\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

K. Form N-3

    The proposed amendments to Form N-3 would require a description of 
any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund, insurance company, or the fund's service providers.
    Form N-3 generally imposes two types of reporting burdens on 
investment companies: (1) The burden of preparing and filing the 
initial registration statement; and (2) the burden of preparing and 
filing post-effective amendments to a previously effective registration 
statement. In our most recent Paperwork Reduction Act submission for 
Form N-3, we estimated for Form N-3 a total aggregate annual hour 
burden of 2,836 hours, and a total aggregate annual external cost 
burden of $123,114.\293\ Compliance with the disclosure requirements of 
Form N-3 is mandatory, and the responses to the disclosure requirements 
will not be kept confidential. These collections of information would 
help increase the likelihood that funds are prepared to respond to a 
cybersecurity incident, and would provide Commission staff with 
information in its examination and oversight program in identifying 
patterns and trends across registrants regarding such incidents. Based 
on filing data as of December 30, 2020, we estimate that 14 funds would 
be subject to these proposed amendments.
---------------------------------------------------------------------------

    \293\ On August 13, 2020, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-3.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-3.

[[Page 13571]]



                                                            Table 10--Form N-3 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                          initial burden   Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                               hours                                                                           costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               PROPOSED FORM N-3 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures \3\..              21  15 hours \4\......................  $356 (blended rate for              $5,340        \5\ $992
                                                                                               compliance attorney and
                                                                                               senior programmer).
Number of funds.........................  ..............  x 14 funds........................  ..........................      x 14 funds         \6\ x 7
                                                         -----------------------------------------------------------------------------------------------
    Total new aggregate annual burden...  ..............  210 hours.........................  ..........................         $74,760          $6,944
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden           ..............  + 2,836 hours.....................  ..........................  ..............      + $123,114
 estimates.
Revised aggregate annual burden           ..............  3,046 hours.......................  ..........................  ..............        $130,058
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

L. Form N-4

    The proposed amendments to Form N-4 would require a description of 
any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund, depositor, or the fund's service providers.
    Form N-4 generally imposes two types of reporting burdens on 
investment companies: (1) The burden of preparing and filing the 
initial registration statement; and (2) the burden of preparing and 
filing post-effective amendments to a previously effective registration 
statement. In our most recent Paperwork Reduction Act submission for 
Form N-4, we estimated for Form N-4 a total aggregate annual hour 
burden of 292,487 hours, and a total aggregate annual external cost 
burden of $33,348,866.\294\ Compliance with the disclosure requirements 
of Form N-4 is mandatory, and the responses to the disclosure 
requirements will not be kept confidential. These collections of 
information would help increase the likelihood that funds are prepared 
to respond to a cybersecurity incident, and would provide Commission 
staff with information in its examination and oversight program in 
identifying patterns and trends across registrants regarding such 
incidents. Based on filing data as of December 30, 2020, we estimate 
that 418 funds would be subject to these proposed amendments.
---------------------------------------------------------------------------

    \294\ On October 26, 2021, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-4.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-4.

                                                            Table 11--Form N-4 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                          initial burden   Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                               hours                                                                           costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               PROPOSED FORM N-4 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures \3\..              21  15 hours \4\......................  $356 (blended rate for              $5,340        \5\ $992
                                                                                               compliance attorney and
                                                                                               senior programmer).
Number of funds.........................  ..............  x 418 funds.......................  ..........................     x 418 funds       \6\ x 209
                                                         -----------------------------------------------------------------------------------------------
    Total new aggregate annual burden...  ..............  6,270 hours.......................  ..........................      $2,232,120        $207,328
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 13572]]

 
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden           ..............  + 292,487 hours...................  ..........................  ..............   + $33,348,866
 estimates.
Revised aggregate annual burden           ..............  198,757 hours.....................  ..........................  ..............     $33,556,194
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

M. Form N-6

    The proposed amendments to Form N-6 would require a description of 
any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund, depositor, or the fund's service providers.
    Form N-6 generally imposes two types of reporting burdens on 
investment companies: (1) The burden of preparing and filing the 
initial registration statement; and (2) the burden of preparing and 
filing post-effective amendments to a previously effective registration 
statement. In our most recent Paperwork Reduction Act submission for 
Form N-6, we estimated for Form N-6 a total aggregate annual hour 
burden of 31,987 hours, and a total aggregate annual external cost 
burden of $3,816,692.\295\ Compliance with the disclosure requirements 
of Form N-6 is mandatory, and the responses to the disclosure 
requirements will not be kept confidential. These collections of 
information would help increase the likelihood that funds are prepared 
to respond to a cybersecurity incident, and would provide Commission 
staff with information in its examination and oversight program in 
identifying patterns and trends across registrants regarding such 
incidents. Based on filing data as of December 30, 2020, we estimate 
that 236 funds would be subject to these proposed amendments.
---------------------------------------------------------------------------

    \295\ On October 26, 2021, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-6.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-6.

                                                            Table 12--Form N-6 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Internal                                                                                         Annual
                                          initial burden   Internal annual burden hours \1\          Wage rate \2\         Internal time   external cost
                                               hours                                                                           costs          burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               PROPOSED FORM N-6 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures \3\..              21  15 hours \4\......................  $356 (blended rate for              $5,340        \5\ $992
                                                                                               compliance attorney and
                                                                                               senior programmer).
Number of funds.........................  ..............  x 236 funds.......................  ..........................     x 236 funds       \6\ x 118
                                                         -----------------------------------------------------------------------------------------------
    Total new aggregate annual burden...  ..............  3,540 hours.......................  ..........................      $1,260,240        $117,056
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden           ..............  + 31,987 hours....................  ..........................  ..............    + $3,816,692
 estimates.
Revised aggregate annual burden           ..............  35,527 hours......................  ..........................  ..............      $3,933,748
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.

[[Page 13573]]

 
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ We estimate that 50% of funds will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

N. Form N-8B-2 and Form S-6

    The proposed amendments to Form N-8B-2 would require a description 
of any significant cybersecurity incident that has occurred in a fund's 
last two fiscal years. The proposed disclosure amendments would require 
that a fund disclose to investors in its registration statement whether 
a significant fund cybersecurity incident has or is currently affecting 
the fund, depositor, or the fund's service providers. Form N-8B-2 is 
used by UITs to initially register under the Investment Company Act 
pursuant to section 8 thereof.\296\ UITs are required to file Form S-6 
in order to register offerings of securities with the Commission under 
the Securities Act.\297\ As a result, UITs file Form N-8B-2 only once 
when the UIT is initially created and then use Form S-6 to file all 
post-effective amendments to their registration statements in order to 
update their prospectuses.\298\
---------------------------------------------------------------------------

    \296\ See Form N-8B-2 [17 CFR 274.12].
    \297\ See Form S-6 [17 CFR 239.16]. Form S-6 is used for 
registration under the Securities Act of securities of any UIT 
registered under the Securities Act on Form N-8B-2.
    \298\ Form S-6 incorporates by reference the disclosure 
requirements of Form N-8B-2 and allows UITs to meet the filing and 
disclosure requirements of the Securities Act.
---------------------------------------------------------------------------

    In our most recent Paperwork Reduction Act submission for Form N-
8B-2, we estimated for Form N-8B-2 a total aggregate annual hour burden 
of 28 hours, and total aggregate annual external cost burden of 
$10,300.\299\ We currently estimate for Form S-6 a total aggregate 
annual hour burden of 107,359 hours, and an aggregate annual external 
cost burden estimate of $68,108,956.\300\ Compliance with the 
disclosure requirements of Form N-8B-2 and Form S-6 is mandatory, and 
the responses to the disclosure requirements will not be kept 
confidential. These collections of information would help increase the 
likelihood that funds are prepared to respond to a cybersecurity 
incident, and would provide Commission staff with information in its 
examination and oversight program in identifying patterns and trends 
across registrants regarding such incidents. Based on filing data as of 
December 30, 2020, we estimate that one filing would be subject to the 
proposed amendments under Form N-8B-2 and 1,047 filings would be 
subject to the proposed amendments under Form S-6.\301\
---------------------------------------------------------------------------

    \299\ On January 21, 2021, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form N-8B-2.
    \300\ On July 30, 2020, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Form S-6.
    \301\ The number of unit investment trusts that report being 
registered under the Investment Company Act on Form N-8B-2 is 47; 
however, we believe using the number of filings instead of 
registrants would form a more accurate estimate of annual burdens. 
This estimate is based on the average number of filings made on Form 
N-8B-2 and Form S-6 from 2018 to 2020.
---------------------------------------------------------------------------

    The table below summarizes our PRA annual burden estimates 
associated with the proposed amendments to Form N-8B-2 and Form S-6.

                                       Table 13--Form N-8B-2 PRA Estimates
----------------------------------------------------------------------------------------------------------------
                                                                                                      Annual
                                    Internal annual burden      Wage rate \2\      Internal time   external cost
                                           hour \1\                                    costs          burden
----------------------------------------------------------------------------------------------------------------
                                         PROPOSED FORM N-8B-2 ESTIMATES
----------------------------------------------------------------------------------------------------------------
Cybersecurity incident             1 hour.................  $356 (blended rate              $356        \4\ $992
 disclosures \3\.                                            for compliance
                                                             attorney and senior
                                                             programmer).
Number of filings................  x 1 filing.............  ....................      x 1 filing       \5\ x 0.5
    Total new aggregate annual     1 hour.................  ....................            $356            $496
     burden.
----------------------------------------------------------------------------------------------------------------
                                  TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
----------------------------------------------------------------------------------------------------------------
Current aggregate annual burden    + 28 hours.............  ....................  ..............       + $10,300
 estimates.
Revised aggregate annual burden    29 hours...............  ....................  ..............         $10,796
 estimates.
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated
  figures are modified by firm size, employee benefits, overhead, and adjusted to account for the effects of
  inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund
  cybersecurity incidents are expected to incur higher burdens.
\4\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal
  services. The Commission's estimates of the relevant wage rates for external time costs, such as outside legal
  services, take into account staff experience, a variety of sources including general information websites, and
  adjustments for inflation.
\5\ We estimate that 50% of funds will use outside legal services for these collections of information. This
  estimate takes into account that funds may elect to use outside legal services (along with in-house counsel),
  based on factors such as fund budget and the fund's standard practices for using outside legal services, as
  well as personnel availability and expertise.


[[Page 13574]]


                                                            Table 14--Form S-6 PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Internal
                                    initial burden  Internal annual burden hours      Wage rate \2\       Internal time costs     Annual  external cost
                                         hours                   \1\                                                                      burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               PROPOSED FORM S-6 ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident disclosures              21  15 hours \4\................  $356 (blended rate    $5,340.................  \5\ $992
 \3\.                                                                              for compliance
                                                                                   attorney and senior
                                                                                   programmer).
Number of filings.................  ..............  x 1,047 filings.............  ....................  x 1,047 filings........  x 524 \6\
                                                   -----------------------------------------------------------------------------------------------------
    Total new aggregate annual      ..............  15,705 hours................  ....................  $5,590,980.............  $519,312
     burden.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden     ..............  + 107,359 hours.............  ....................  .......................  + $68,108,956
 estimates.
Revised aggregate annual burden     ..............  123,064 hours...............  ....................  .......................  $68,628,268
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer. Filers that experience one or several fund cybersecurity incidents are expected to incur
  higher burdens.
\4\ Includes initial burden estimates annualized over a three-year period, plus 8 ongoing annual burden hours. The estimate of 15 hours is based on the
  following calculation: ((21 initial hours/3) + 8 additional ongoing burden hours) = 15 hours.
\5\ This estimated burden is based on the estimated wage rate of $496/hour, for 2 hours, for outside legal services. The Commission's estimates of the
  relevant wage rates for external time costs, such as outside legal services, take into account staff experience, a variety of sources including
  general information websites, and adjustments for inflation.
\6\ We estimate that 50% of filers will use outside legal services for these collections of information. This estimate takes into account that funds may
  elect to use outside legal services (along with in-house counsel), based on factors such as fund budget and the fund's standard practices for using
  outside legal services, as well as personnel availability and expertise.

O. Investment Company Interactive Data

    We are proposing to amend Form N-1A, Form N-2, Form N-3, Form N-4, 
Form N-6, Form N-8B-2, and Form S-6; rule 485 and rule 497 under the 
Securities Act; and rule 11 and rule 405 of Regulation S-T to require 
certain new structured data reporting requirements for funds.\302\ 
Specifically, the proposed amendments would include new structured data 
requirements that would require funds to tag the information that the 
proposal would require funds to include in their registration 
statements about significant fund cybersecurity incidents using Inline 
XBRL.\303\ The purpose of these information collections is to make 
information of significant fund cybersecurity incidents easier for 
investors to analyze and to help automate regulatory filings and 
business information processing, and to improve consistency between all 
types of funds with respect to the accessibility of cybersecurity 
information they provide to the market.
---------------------------------------------------------------------------

    \302\ The Investment Company Interactive Data collection of 
information do not impose any separate burden aside from that 
described in our discussion of the burden estimates for this 
collection of information.
    \303\ See supra section II.C.4; see also proposed rule 
405(b)(2)-(3) of Regulation of S-T; proposed rule 485(c)(3); 
proposed rule 497(c) and 497(e); proposed General Instruction 
C.3.(g)(i) and (ii) of Form N-1A; proposed General Instruction I.2 
and 3 of Form N-2; proposed General Instruction C.3(h)(i) and (ii) 
of Form N-3; proposed General Instruction C.3(h)(i) and (ii) of Form 
N-4; proposed General Instruction C.3(h)(i) and (ii) of Form N-6; 
proposed General Instruction 2.(l) of Form N-8B-2; and proposed 
General Instruction 5 of Form S-6.
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    Funds filing registration statements on Form N-1A, Form N-2, Form 
N-3, Form N-4, and Form N-6 already submit certain information using 
Inline XBRL. Based on filing data as of December 30, 2020, we estimate 
that 14,702 funds filing registration statements on these forms would 
be subject to the proposed interactive data amendments. UITs filing 
initial registration statements on Form N-8B-2 and post-effective 
amendments on Form S-6 are not currently subject to requirements to 
submit information in structured form. Because these UITs have not 
previously been subject to Inline XBRL requirements, we assume that 
these funds would experience additional burdens related to one-time 
costs associated with becoming familiarized with Inline XBRL reporting. 
These costs would include, for example, the acquisition of new software 
or the services of consultants, and the training of staff. Based on 
filing data as of December 30, 2020, we estimate that 1,048 filings 
would be subject to these proposed amendments. In our most recent 
Paperwork Reduction Act submission for Investment Company Interactive 
Data, we estimated a total aggregate annual hour burden of 252,602 
hours, and a total aggregate annual external cost burden of 
$15,350,750.\304\ Compliance with the interactive data requirements is 
mandatory, and the responses will not be kept confidential.
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    \304\ On November 9, 2020, the Office of Management and Budget 
approved without change a revision of the currently approved 
information collection estimate for Registered Investment Company 
Interactive Data.
---------------------------------------------------------------------------

    The table below summarizes our PRA initial and ongoing annual 
burden estimates associated with the proposed amendments to Form N-1A, 
Form N-2, Form N-3, Form N-4, Form N-6, Form N-8B-2, and Form S-6, as 
well as Regulation S-T.

[[Page 13575]]



                                               Table 15--Investment Company Interactive Data PRA Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Internal
                                    initial burden  Internal annual burden hours      Wage rate \2\       Internal time costs     Annual  external cost
                                         hours                   \1\                                                                      burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           PROPOSED INTERACTIVE DATA ESTIMATES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cybersecurity incident information               1  1 hour \4\..................  $356 (blended rate    $356...................  $50 \5\
 for current XBRL filers \3\.                                                      for compliance
                                                                                   attorney and senior
                                                                                   programmer).
Number of funds...................  ..............  x 14,702 funds \6\..........  ....................  x 14,702 funds.........  x 14,702 funds
Cybersecurity incident information               9  4 hours \8\.................  $356 (blended rate    $1,424.................  $900 \9\
 for new XBRL filers \7\.                                                          for compliance
                                                                                   attorney and senior
                                                                                   programmer).
Number of filings.................  ..............  x 1,048 filings \10\........  ....................  x 1,048 filings........  x 1,048 filings
                                   ---------------------------------------------------------------------------------------------------------------------
    Total new aggregate annual      ..............  18,894 hours \11\...........  ....................  $6,726,264 \12\........  $1,678,300 \13\
     burden.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      TOTAL ESTIMATED BURDENS INCLUDING AMENDMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current aggregate annual burden     ..............  + 252,602 hours.............  ....................  .......................  + $15,350,750
 estimates.
Revised aggregate annual burden     ..............  271,496 hours...............  ....................  .......................  $17,029,050
 estimates.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Includes initial burden estimates annualized over a 3-year period.
\2\ The Commission's estimates of the relevant wage rates are based on the SIFMA Wage Report. The estimated figures are modified by firm size, employee
  benefits, overhead, and adjusted to account for the effects of inflation.
\3\ This estimate represents the average burden for a filer on Form N-1A, Form N-2, Form N-3, Form N-4, and Form N-6 that is currently subject to
  interactive data requirements.
\4\ Includes initial burden estimates annualized over a three-year period, plus 0.67 ongoing annual burden hours. The estimate of 1 hour is based on the
  following calculation: ((1 initial hour/3) + 0.67 additional ongoing burden hours) = 1 hour.
\5\ We estimate an incremental external cost for filers on Form N-1A, Form N-2, Form N-3, Form N-4, and Form N-6 as they already submit certain
  information using Inline XBRL.
\6\ Based on filing data as of December 30, 2020, we estimate 13,248 funds filing on Form N-1A; 786 funds, including BDCs, filing on Form N-2; 14 funds
  filing on Form N-3; 418 funds filing on Form N-4; and 236 funds on Form N-6, totaling 14,702 funds.
\7\ This estimate represents the average burden for a filer on Form N-8B-2 and Form S-6 that is not currently subject to interactive data requirements.
\8\ Includes initial burden estimates annualized over a three-year period, plus 1 ongoing annual burden hour. The estimate of 4 hours is based on the
  following calculation: ((9 initial hours/3) + 1 additional ongoing burden hour) = 4 hours.
\9\ We estimate an external cost for filers on Form N-8B-2 and Form S-6 of $900 to reflect one-time compliance and initial set-up costs. Because these
  filers have not been previously been subject to Inline XBRL requirements, we estimate that these funds would experience additional burdens related to
  one time-costs associated with becoming familiar with Inline XBRL reporting. These costs would include, for example, the acquisition of new software
  or the services of consultants, or the training of staff.
\10\ The number of unit investment trusts that report being registered under the Investment Company Act on Form N-8B-2 is 47; however, we believe using
  the number of filings instead of registrants would form a more accurate estimate of annual burdens. This estimate is therefore based on the average
  number of filings made on Form N-8B-2 and Form S-6 from 2018 to 2020.
\11\ 18,894 hours = (14,702 funds x 1 hour) + (1,048 filings x 4 hours).
\12\ $6,726,264 internal time cost = (14,702 funds x $356) + (1,048 filings x $1,424).
\13\ $1,678,300 annual external cost = (14,702 funds x $50) + (1,048 filings x $900).

P. Request for Comment

    We request comment on whether these estimates are reasonable. 
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments 
in order to: (1) Evaluate whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information will have practical 
utility; (2) evaluate the accuracy of the Commission's estimate of the 
burden of the proposed collection of information; (3) determine whether 
there are ways to enhance the quality, utility, and clarity of the 
information to be collected; and (4) determine whether there are ways 
to minimize the burden of the collection of information on those who 
are to respond, including through the use of automated collection 
techniques or other forms of information technology.
    Persons wishing to submit comments on the collection of information 
requirements of the proposed amendments should direct them to the OMB 
Desk Officer for the Securities and Exchange Commission, 
<a href="/cdn-cgi/l/email-protection#3578776d1b7a78771b7a7c67741b6670766a5150465e6a5a53535c565047755a58571b505a451b525a43"><span class="__cf_email__" data-cfemail="723f302a5c3d3f305c3d3b20335c2137312d161701192d1d14141b111700321d1f105c171d025c151d04">[email protected]</span></a>, and should send a copy to 
Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 
100 F Street NE, Washington, DC 20549-1090, with reference to File No. 
S7-04-22. 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. S7-04-22, and be submitted to the Securities and Exchange 
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 
20549-2736.

V. Initial Regulatory Flexibility Act Analysis

    The Commission has prepared the following Initial Regulatory 
Flexibility Analysis (``IRFA'') in accordance with section 3(a) of the 
Regulatory Flexibility Act (``RFA'').\305\ It relates to: (1) Proposed 
rule 206(4)-9 under the Advisers Act; (2) proposed rule 38a-2 under the 
Investment Company Act; (3) proposed rule 204-6 under the Advisers

[[Page 13576]]

Act; (4) proposed amendments to rule 204-3 under the Investment 
Advisers Act; (5) proposed amendments to rule 204-2 under the Advisers 
Act; (6) proposed Form ADV-C; (7) proposed amendments to Form ADV Part 
2A; and (8) proposed amendments to Form N-1A, Form N-2, Form N-3, Form 
N-4, Form N-6, Form N-8B-2, and Form S-6 (``fund registration forms'') 
as well as proposed conforming amendments to rule 485 and rule 497 
under the Securities Act and rule 11 and rule 405 of Regulation S-T.
---------------------------------------------------------------------------

    \305\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------

A. Reason for and Objectives of the Proposed Action

    The reasons for, and objectives of, the proposed rules are 
discussed in more detail in sections I and II, above. The burdens of 
these requirements on small advisers and funds are discussed below as 
well as above in sections III and IV, which discuss the burdens on all 
advisers and funds. Sections II through IV also discuss the 
professional skills that we believe compliance with the proposed rules 
form amendments would require.
    We are proposing rule 206(4)-9 under the Advisers Act and rule 38a-
2 under the Investment Company Act to require all advisers and funds 
registered with the Commission to adopt and implement cybersecurity 
policies and procedures. Advisers and funds are increasingly relying on 
technology systems and networks and face increasing cybersecurity 
risks. These proposed rules would therefore require all advisers and 
funds to consider and mitigate cybersecurity risk to enhance investor 
protection.\306\
---------------------------------------------------------------------------

    \306\ See proposed rule 206(4)-9 and proposed rule 38a-2; supra 
section II.A (discussing the cybersecurity policies and procedures 
requirements).
---------------------------------------------------------------------------

    We are also proposing rules and amendments, discussed below, 
regarding recordkeeping, reporting, and disclosure.\307\ We are 
proposing amendments to recordkeeping requirements under rule 204-2 to: 
(1) Conform the books and records rule to the proposed cybersecurity 
risk management rules; (2) help ensure that an investment adviser 
retains records of all of its documents related to its cybersecurity 
risk management; and (3) facilitate the Commission's inspection and 
enforcement capabilities.
---------------------------------------------------------------------------

    \307\ See proposed rule 204-2 (recordkeeping); proposed rule 
204-6, and amendments to rule 204-3 and Form ADV (reporting); and 
amendments to Forms N-1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6 
(disclosure).
---------------------------------------------------------------------------

    We are proposing a new reporting requirement for advisers under 
proposed rule 204-6 using proposed Form ADV-C. We believe this 
requirement to provide prompt notice of significant cybersecurity 
incidents would help the Commission and its staff in its efforts to 
protect investors in connection with cybersecurity incidents by 
describing the nature and extent of a particular cybersecurity incident 
and the firm's response to the incident. The structured format of Form 
ADV-C would enhance the staff's ability to carry out our risk-based 
examination program and other risk assessment and monitoring activities 
effectively, including assessing trends in cybersecurity incidents 
across the industry.
    Finally, we are proposing disclosure amendments for advisers and 
funds as well as related amendments to the brochure delivery rule, rule 
204-3, for advisers. These proposed amendments are designed to enhance 
investor protection by ensuring cybersecurity risk or incident-related 
information is available to increase understanding and insight into an 
adviser's or fund's cybersecurity history and risks. For example, given 
the potential effect that significant cybersecurity incidents could 
have on an adviser's clients, we believe that requiring an adviser to 
deliver the brochure amendment under the proposed amendments to rule 
204-3 promptly would enhance investor protection by enabling clients to 
take protective or remedial measures to the extent appropriate.
    We believe that the proposed amendments discussed above would, 
together, improve the ability of clients and prospective clients to 
evaluate and understand relevant cybersecurity risks and incidents that 
advisers, funds and their personnel face and their potential effect on 
the advisers' and fund's services and operations.
1. Proposed Rule 206(4)-9
    Proposed rule 206(4)-9 would require policies and procedures that 
address: (1) Risk assessment; (2) user security and access; (3) 
information protection; (4) threat and vulnerability management; and 
(5) cybersecurity incident response and recovery. The proposed rule 
would also require an annual review of these cybersecurity policies and 
procedures, in which an adviser: (1) Reviews and assesses the design 
and effectiveness of the cybersecurity policies and procedures; and (2) 
prepares a written report that, at a minimum, describes the review, 
assessment, and any control tests performed, explains their results, 
documents any cybersecurity incident that occurred since the date of 
the last report, and discusses any material changes to the policies and 
procedures since the date of the last report. Proposed rule 206(4)-9 
would allow firms to tailor their cybersecurity policies and procedures 
to fit the nature and scope of their business and address their 
individual cybersecurity risks.
2. Proposed Rule 38a-2
    The policies and procedures proposed under rule 38a-2 under the 
Investment Company Act would address: (1) Risk assessment; (2) user 
security and access; (3) information protection; (4) threat and 
vulnerability management; and (5) cybersecurity incident response and 
recovery. The fund's cybersecurity policies and procedures would be 
reviewed and assessed at least annually. In addition, proposed rule 
38a-2 would require that a fund maintain a copy of its cybersecurity 
policies and procedures that are in effect, or at any time in the last 
five years were in effect, in an easily accessible place. The fund 
would also have to maintain copies for at least five years, the first 
two years in an easily accessible place, of: (1) Copies of written 
reports provided to its board; (2) records documenting the fund's 
cybersecurity review; (3) any report of a significant fund 
cybersecurity incident provided to the Commission by its adviser that 
the proposed rule would require; (4) records documenting the occurrence 
of any cybersecurity incident, including records related to any 
response and recovery from such an incident; and (5) records 
documenting a fund's cybersecurity risk assessment.
3. Proposed Amendments to Rule 204-2
    We are proposing related amendments to rule 204-2, the books and 
records rule, under the Advisers Act, which sets forth requirements for 
maintaining, making, and retaining advertisements. We are proposing to 
amend the current rule to require advisers to retain (1) a copy of 
their cybersecurity policies and procedures formulated pursuant to 
proposed rule 206(4)-9 that are in effect, or at any time within the 
past five years were in effect; (2) a copy of the adviser's written 
report documenting the annual review of its cybersecurity policies and 
procedures pursuant to proposed rule 206(4)-9; (3) a copy of any Form 
ADV-C filed by the adviser under rule 204-6 in the last five years; (4) 
records documenting the occurrence of any cybersecurity incident, as 
defined in rule 206(4)-9(c), occurring in the last five years, 
including records related to any response and recovery from such an 
incident; and (5) records documenting any risk assessment conducted 
pursuant to the cybersecurity policies and

[[Page 13577]]

procedures required by rule 206(4)-9(a)(1) in the last five years.\308\
---------------------------------------------------------------------------

    \308\ See proposed rule 204-2(a)(17)(i), (iv) through (vii).
---------------------------------------------------------------------------

4. Proposed Rule 204-6
    We are proposing a new reporting requirement under proposed rule 
204-6. Under the proposed rule, any adviser registered or required to 
be registered with the Commission as an investment adviser would be 
required to submit proposed Form ADV-C promptly, but in no event more 
than 48 hours, after having a reasonable basis to conclude that a 
significant adviser cybersecurity incident or a significant fund 
cybersecurity incident had occurred or is occurring.\309\ The proposed 
rule would also require advisers to amend any previously filed Form 
ADV-C promptly, but in no event more than 48 hours after, information 
reported on the form becomes materially inaccurate; if new material 
information about a previously reported incident is discovered; and 
after resolving a previously reported incident or closing an internal 
investigation pertaining to a previously disclosed incident.\310\
---------------------------------------------------------------------------

    \309\ See proposed rule 204-6.
    \310\ See id.
---------------------------------------------------------------------------

5. Form ADV-C
    As discussed above, we are proposing a new reporting requirement 
under proposed rule 204-6 using proposed Form ADV-C. This new Form ADV-
C would require an adviser to provide information regarding a 
significant cybersecurity incident in a structured format through a 
series of check-the-box and fill-in-the-blank questions. Proposed Form 
ADV-C would require advisers to report certain information regarding a 
significant cybersecurity incident in order to allow the Commission and 
its staff to understand the nature and extent of the cybersecurity 
incident and the adviser's response to the incident.
6. Proposed Amendments to Form ADV Part 2A
    We are proposing amendments to Form ADV that are designed to 
provide clients and prospective clients with information regarding 
cybersecurity risks and incidents that could materially affect the 
advisory relationship. The proposed amendments would add a new Item 20 
entitled ``Cybersecurity Risks and Incidents'' to Form ADV's narrative 
brochure, or Part 2A. The brochure, which is publicly available and the 
primary client-facing disclosure document, contains information about 
the investment adviser's business practices, fees, risks, conflicts of 
interest, and disciplinary information. Advisers would be required to, 
in plain English, describe cybersecurity risks that could materially 
affect the advisory services they offer and describe how they assess, 
prioritize, and address cybersecurity risks created by the nature and 
scope of their business.
    The proposed amendments would also require advisers to describe any 
cybersecurity incidents that have occurred within the last two years 
that have significantly disrupted or degraded the adviser's ability to 
maintain critical operations, or has led to the unauthorized access or 
use of adviser information, resulting in substantial harm to the 
adviser or its clients. The description of each incident, to the extent 
known, must include the following information: The entity or entities 
affected, when the incident was discovered and whether it is ongoing, 
whether any data was stolen, altered, or accessed or used for any other 
unauthorized purpose, the effect of the incident on the adviser's 
operations, and whether the adviser or a service provider has 
remediated or is currently remediating the incident.
7. Proposed Amendments to Rule 204-3
    Currently, rule 204-3(b) does not require advisers to deliver 
interim brochure amendments to existing clients unless the amendment 
includes certain disciplinary information in response to Item 9 Part 
2A. We are proposing amendments to rule 204-3 that would require an 
adviser to deliver interim brochure amendments to existing clients 
promptly if the adviser adds disclosure of a cybersecurity incident to 
its brochure or materially revises information already disclosed in its 
brochure about such an incident.\311\
---------------------------------------------------------------------------

    \311\ See proposed rule 204-3(b)(4).
---------------------------------------------------------------------------

8. Proposed Amendments to Fund Registration Forms, Rules Under the 
Securities Act, and Regulation S-T
    The Commission also is proposing disclosure requirements on funds' 
registration statements to enhance investor protection by requiring 
that cybersecurity incident-related information is available to 
increase understanding in these areas and help ensure that investors 
and clients are making informed investment decisions. Our proposal 
would require a fund to provide prospective and current investors with 
disclosure about significant fund cybersecurity incidents on Forms N-
1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6. Our proposal, including the 
proposed amendments to the fund registration forms and conforming 
amendments to rule 485 and rule 497 under the Securities Act, and rule 
11 and rule 405 of Regulation S-T, would also require a fund to tag 
information about significant fund cybersecurity incidents using Inline 
XBRL.

B. Legal Basis

    The Commission is proposing rule 206(4)-9, rule 204-6, and Form 
ADV-C under the Advisers Act under the authority set forth in sections 
203(d), 206(4), and 211(a) of the Advisers Act of 1940 [15 U.S.C. 80b-
3(d), 10b-6(4) and 80b-11(a)]. The Commission is proposing amendments 
to rule 204-3 under the Advisers Act under the authority set forth in 
sections 203(d), 206(4), 211(a) and 211(h) of the Advisers Act of 1940 
[15 U.S.C. 80b-3(d), 10b-6(4) and 80b-11(a) and (h)]. The Commission is 
proposing amendments to rule 204-2 under the Advisers Act under the 
authority set forth in sections 204 and 211 of the Advisers Act of 1940 
[15 U.S.C. 80b-4 and 80b-11]. The Commission is proposing amendments to 
Form ADV under section 19(a) of the Securities Act [15 U.S.C. 77s(a)], 
sections 23(a) and 28(e)(2) of the Exchange Act [15 U.S.C. 78w(a) and 
78bb(e)(2)], section 319(a) of the Trust Indenture Act of 1939 [15 
U.S.C. 7sss(a)], section 38(a) of the Investment Company Act [15 U.S.C. 
80a-37(a)], and sections 203(c)(1), 204, and 211(a) of the Advisers Act 
of 1940 [15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)]. The Commission 
is proposing rule 38a-2 under the authority set forth in sections 
31(a), and 38(a) of the Investment Company Act [15 U.S.C. 80a-30(a) and 
80a-37(a)]. The Commission is proposing amendments to Form N-1A, Form 
N-2, Form N-3, Form N-4, Form N-6, Form N-8B-2, and Form S-6 under the 
authority set forth in sections 8, 30, and 38 of the Investment Company 
Act [15 U.S.C. 80a-8, 80a-29, and 80a-37] and sections 6, 7(a), 10 and 
19(a) of the Securities Act [15 U.S.C. 77f, 77g(a), 77j, 77s(a)]. The 
Commission is proposing amendments to rule 232.11 and 232.405 under the 
authority set forth in section 23 of the Exchange Act [15 U.S.C. 78w]. 
The Commission is proposing amendments to rule 230.485 and rule 230.497 
under the authority set forth in sections 10 and 19 of the Securities 
Act [15 U.S.C. 77j and 77s].

C. Small Entities Subject to the Rules and Rule Amendments

    In developing these proposals, we have considered their potential 
effect on

[[Page 13578]]

small entities that would be subject to the proposed rules and 
amendments. The proposed rules and amendments would affect many, but 
not all, investment advisers registered with the Commission, including 
some small entities.
1. Small Entities Subject to Proposed Rule 206(4)-9, Proposed Rule 204-
6, Proposed Form ADV-C and Proposed Amendments to Rule 204-2, Rule 204-
3, and Form ADV Part 2A
    Under Commission rules, for the purposes of the Advisers Act and 
the RFA, an investment adviser generally is a small entity if it: (1) 
Has assets under management having a total value of less than $25 
million; (2) did not have total assets of $5 million or more on the 
last day of the most recent fiscal year; and (3) does not control, is 
not controlled by, and is not under common control with another 
investment adviser that has assets under management of $25 million or 
more, or any person (other than a natural person) that had total assets 
of $5 million or more on the last day of its most recent fiscal 
year.\312\ Our proposed rules and amendments would not affect most 
investment advisers that are small entities (``small advisers'') 
because they are generally registered with one or more state securities 
authorities and not with the Commission. Under section 203A of the 
Advisers Act, most small advisers are prohibited from registering with 
the Commission and are regulated by state regulators. Based on IARD 
data, we estimate that as of October 31, 2021, approximately 579 SEC-
registered advisers are small entities under the RFA.\313\
---------------------------------------------------------------------------

    \312\ Advisers Act rule 0-7(a) [17 CFR 275.0-7].
    \313\ Based on SEC-registered investment adviser responses to 
Items 5.F. and 12 of Form ADV.
---------------------------------------------------------------------------

    As discussed above in section III.C (the Economic Analysis), the 
Commission estimates that based on IARD data as of October 31, 2021, 
approximately 14,774 investment advisers would be subject to proposed 
rule 206(4)-9 and the related proposed amendments to rule 204-2 under 
the Advisers Act.
    All of the approximately 579 SEC-registered advisers that are small 
entities under the RFA would be subject to proposed rule 206(4)-9, 
proposed rule 204-6, and proposed Form ADV-C as well as the proposed 
amendments to rule 204-2, rule 204-3 and Form ADV Part 2A.
2. Small Entities Subject to Proposed Rule 38a-2 and Proposed 
Amendments to Fund Registration Forms
    For purposes of Commission rulemaking in connection with the 
Regulatory Flexibility Act, 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 (a ``small fund'').\314\ All of 
the approximately 27 registered open-end mutual funds, 6 registered 
ETFs, 23 registered closed-end funds, 5 UITs, and 9 BDCs (collectively, 
70 funds) that are small entities under the RFA would be subject to 
proposed rule 38a-2 and the proposed amendments to fund registration 
forms, including the structured data requirements.\315\
---------------------------------------------------------------------------

    \314\ See rule 0-10(a) under the Investment Company Act [17 CFR 
270.0-10(a)].
    \315\ This estimate is derived an analysis of data obtained from 
Morningstar Direct as well as data reported to the Commission for 
the period ending June 2021. We expect few, if any, separate 
accounts would be treated as small entities because state law 
generally treats separate account assets as the property of the 
sponsoring insurance company. Rule 0-10(b) under the Investment 
Company Act aggregates each separate account's assets with the 
assets of the sponsoring insurance company, together with assets 
held in other sponsored separate accounts.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping and Other Compliance Requirements

1. Proposed Rule 206(4)-9
    Proposed rule 206(4)-9 would impose certain reporting and 
compliance requirements on investment advisers, including those that 
are small entities. All registered investment advisers, including small 
entity advisers, would be required to comply with the proposed rule's 
policies and procedures and annual review requirement. The proposed 
requirements, including compliance and recordkeeping requirements, are 
summarized in this IRFA (section V.A. above). All of these proposed 
requirements are also discussed in detail, above, in sections I and II, 
and these requirements and the burdens on respondents, including those 
that are small entities, are discussed above in sections III and IV 
(the Economic Analysis and Paperwork Reduction Act Analysis, 
respectively) and below. The professional skills required to meet these 
specific burdens are also discussed in sections II through IV.
    There are different factors that would affect whether a smaller 
adviser incurs costs relating to these requirements that are higher or 
lower than the estimates discussed in section IV.B. For example, we 
would expect that smaller advisers may not already have cybersecurity 
programs that would meet all of the elements that would be required 
under the proposed amendments. Also, while we would expect larger 
advisers to incur higher costs related to this proposed rule in 
absolute terms relative to a smaller adviser, we would expect a smaller 
adviser to find it more costly, per dollar managed, to comply with the 
proposed requirements because it would not be able to benefit from a 
larger adviser's economies of scale.
    As discussed above, there are approximately 579 small advisers 
currently registered with us, and we estimate that 100 percent of 
advisers registered with us would be subject to the proposed rule 
206(4)-9. As discussed above in our Paperwork Reduction Act Analysis in 
section IV, the proposed rule 206(4)-9 under the Advisers Act, which 
would require advisers to prepare policies and procedures related to 
cybersecurity risks and incidents, as well as annual review of those 
policies and procedures, which would create a new annual burden of 
approximately 31.67 hours per adviser, or 18,336.93 hours in aggregate 
for small advisers. We therefore expect the annual monetized aggregate 
cost to small advisers associated with our proposed amendments would be 
$7,262,139.36.\316\
---------------------------------------------------------------------------

    \316\ $185,303,708 total cost x (579 small advisers/14,774 
advisers) = $7,262,139.36.
---------------------------------------------------------------------------

2. Proposed Rule 38a-2
    The proposed amendments contain compliance requirements regarding 
policies and procedures, reporting, recordkeeping, and other 
requirements to manage cybersecurity risks and incidents. All 
registered investment companies and BDCs, including small entities, 
would be required to comply with the proposed rule's requirements. We 
discuss the specifics of these burdens in the Economic Analysis and 
Paperwork Reduction Act sections above. The proposed requirements, 
including compliance and recordkeeping requirements, are summarized in 
this IRFA (section V.A. above). All of these proposed requirements are 
also discussed in detail in sections I and II above, and these 
requirements and the burdens on respondents, including those that are 
small entities, are discussed above in sections III and IV (the 
Economic Analysis and Paperwork Reduction Act Analysis, respectively) 
and below. The professional skills required to meet

[[Page 13579]]

these specific burdens are also discussed in sections II through IV.
    There are different factors that would affect whether a smaller 
fund incurs costs relating to these requirements that are higher or 
lower than the estimates discussed in section IV.C. For example, we 
would expect that smaller funds--and more specifically, smaller funds 
that are not part of a fund complex--may not have cybersecurity 
programs that would meet all the elements that would be required under 
the proposed amendments. Also, while we would expect larger funds or 
funds that are part of a large fund complex to incur higher costs 
related to this requirement in absolute terms relative to a smaller 
fund or a fund that is part of a smaller fund complex, we would expect 
a smaller fund to find it more costly, per dollar managed, to comply 
with the proposed requirement because it would not be able to benefit 
from a larger fund complex's economies of scale. Notwithstanding the 
economies of scale experienced by large versus small funds, we would 
not expect the costs of compliance associated with the new requirements 
to be meaningfully different for small versus large funds.
    As discussed above, there are approximately 70 funds that are small 
entities currently registered with us, and we estimate that 100 percent 
of funds registered with us would be subject to the proposed rule 38a-
2. As discussed above in our Paperwork Reduction Act Analysis in 
section IV, the proposed rule 38a-2 under the Investment Company Act, 
which would require funds to prepare policies and procedures related to 
cybersecurity risks and incidents, as well as annual review of those 
policies and procedures, would create a new annual burden of 
approximately 32 hours per fund, or 2,240 hours in aggregate for funds 
that are small entities. We therefore expect the annual monetized 
aggregate cost to small funds associated with our proposed amendments 
would be $947,170.\317\
---------------------------------------------------------------------------

    \317\ 70 small funds x $13,531 internal time cost per fund = 
$947,170.
---------------------------------------------------------------------------

3. Proposed Amendments to Rule 204-2
    The proposed amendments to rule 204-2 would impose certain 
recordkeeping requirements on investment advisers, including those that 
are small entities. All registered investment advisers, including small 
entity advisers, would be required to comply with the recordkeeping 
amendments, which are summarized in this IRFA (section V.C. above). The 
proposed amendments are also discussed in detail, above, in sections I 
and II, and the requirements and the burdens on respondents, including 
those that are small entities, are discussed above in sections III and 
IV (the Economic Analysis and Paperwork Reduction Act Analysis, 
respectively) and below. The professional skills required to meet these 
specific burdens are also discussed in sections II through IV.
    As discussed above, there are approximately 579 small advisers 
currently registered with us, and we estimate that 100 percent of 
advisers registered with us would be subject to the proposed amendments 
to rule 204-2. As discussed above in our Paperwork Reduction Act 
Analysis in section IV, the proposed amendments to rule 204-2 under the 
Advisers Act, which would require advisers to retain certain copies of 
documents required under proposed rule 206(4)-9 and proposed rule 204-
6, would create a new annual burden of approximately 5 hours per 
adviser, or 2,895 hours in aggregate for small advisers. We therefore 
expect the annual monetized aggregate cost to small advisers associated 
with our proposed amendments would be $196,860.\318\
---------------------------------------------------------------------------

    \318\ $5,023,160 total cost x (579 small advisers/14,774 
advisers) = $196,860.
---------------------------------------------------------------------------

4. Proposed Rule 204-6
    Proposed rule 204-6 would impose certain reporting and compliance 
requirements on investment advisers, including those that are small 
entities. Specifically, proposed rule 204-6 would require advisers to 
report significant cybersecurity incidents with the Commission by 
filing proposed Form ADV-C. All registered investment advisers, 
including small entity advisers, would be required to comply with the 
proposed rule's reporting requirement by filing proposed Form ADV-C. 
The proposed requirements, including reporting and compliance 
requirements, are summarized in this IRFA (section V.C. above). All of 
these proposed requirements are also discussed in detail, above, in 
sections I and II, and these requirements and the burdens on 
respondents, including those that are small entities, are discussed 
above in sections III and IV (the Economic Analysis and Paperwork 
Reduction Act Analysis, respectively) and below. The professional 
skills required to meet these specific burdens are also discussed in 
sections II through IV.
    As discussed above, there are approximately 579 small advisers 
currently registered with us, and we estimate that 100 percent of 
advisers registered with us would be subject to proposed rule 204-6. As 
discussed above in our Paperwork Reduction Act Analysis in section IV, 
proposed rule 204-6 under the Advisers Act, which would require 
advisers to report to the Commission any significant adviser 
cybersecurity incident or significant fund cybersecurity incident, 
would create a new annual burden of approximately 4 hours per adviser, 
or 2,316 hours in aggregate for small advisers. We therefore expect the 
annual monetized aggregate cost to small advisers associated with our 
proposed amendments would be $343,926.\319\
---------------------------------------------------------------------------

    \319\ $8,775,756 total cost x (579 small advisers/14,774 
advisers) = $343,926.
---------------------------------------------------------------------------

5. Form ADV-C
    Proposed Form ADV-C would impose certain reporting and compliance 
requirements on investment advisers, including those that are small 
entities. All registered investment advisers, including small entity 
advisers, would be required to comply with the proposed Form ADV-C's 
requirements. The proposed requirements, including reporting and 
compliance requirements, are summarized in this IRFA (section V.C. 
above). All of these proposed requirements are also discussed in 
detail, above, in sections I and II, and these requirements and the 
burdens on respondents, including those that are small entities, are 
discussed above in sections III and IV (the Economic Analysis and 
Paperwork Reduction Act Analysis, respectively) and below. The 
professional skills required to meet these specific burdens are also 
discussed in sections II through IV.
    As discussed above, there are approximately 579 small advisers 
currently registered with us, and we estimate that 100 percent of 
advisers registered with us would be subject to proposed Form ADV-C. As 
discussed above in our Paperwork Reduction Act Analysis in section IV, 
proposed Form ADV-C, which advisers would file to report any 
significant cybersecurity incidents, would create a new annual burden 
of approximately 1.5 hours per adviser, or 868.5 hours in aggregate for 
small advisers. We therefore expect the annual monetized aggregate cost 
to small advisers associated with our proposed amendments would be 
$343,926.\320\
---------------------------------------------------------------------------

    \320\ $8,775,756 total cost x (579 small advisers/14,774 
advisers) = $343,926.

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

[[Page 13580]]

6. Proposed Amendments to Form ADV Part 2A
    The proposed amendments to Form ADV would impose certain reporting 
and compliance requirements on investment advisers, including those 
that are small entities. All registered investment advisers, including 
small entity advisers, would be required to comply with the proposed 
amendments to Form ADV Part 2A. The proposed requirements are 
summarized in this IRFA (section V.C. above). They are also discussed 
in detail, above, in sections I and II, and these requirements and the 
burdens on respondents, including those that are small entities, are 
discussed above in sections III and IV (the Economic Analysis and 
Paperwork Reduction Act Analysis, respectively) and below. The 
professional skills required to meet these specific burdens are also 
discussed in sections II through IV.
    As discussed above, there are approximately 579 advisers currently 
registered with us, and we estimate that 100 percent of advisers 
registered with us would be subject to the proposed amendments to Form 
ADV Part 2A. As discussed above in our Paperwork Reduction Act Analysis 
in section IV, the proposed amendments, which would require advisers to 
disclose any cybersecurity risks and incidents in their brochure, would 
create a new annual burden of approximately 16.28 hours per adviser, or 
9,426.12 hours in aggregate for small advisers. We therefore expect the 
annual monetized aggregate cost to small advisers associated with our 
proposed amendments would be $3,185,694.08.\321\
---------------------------------------------------------------------------

    \321\ $81,287,468.54 total cost x (579 small advisers/14,774 
advisers) = $3,185,694.08.
---------------------------------------------------------------------------

7. Proposed Amendments to Rule 204-3
    The proposed amendments to rule 204-3 would impose certain 
reporting and compliance requirements on investment advisers, including 
those that are small entities. All registered investment advisers, 
including small entity advisers, would be required to comply with the 
proposed amendments to rule 204-3. The proposed amendments are 
summarized in this IRFA (section V.C. above). They are also discussed 
in detail, above, in sections I and II, and these requirements and the 
burdens on respondents, including those that are small entities, are 
discussed above in sections III and IV (the Economic Analysis and 
Paperwork Reduction Act Analysis, respectively) and below. The 
professional skills required to meet these specific burdens are also 
discussed in sections II through IV.
    As discussed above, there are approximately 579 small advisers 
currently registered with us, and we estimate that 100 percent of 
advisers registered with us would be subject to the proposed amendments 
to rule 204-3. As discussed above in our Paperwork Reduction Act 
Analysis in section IV, the proposed amendments, which would require 
advisers to deliver an amended brochure if the amendment adds 
disclosure of an event, or materially revises information already 
disclosed about an event that involves a cybersecurity incident, would 
create a new annual burden of approximately 0.1 hours per adviser, or 
57.9 hours in aggregate for small advisers. We therefore expect the 
annual monetized aggregate cost to small advisers associated with our 
proposed amendments would be $3,705.60.\322\
---------------------------------------------------------------------------

    \322\ $94,553.6 total cost x (579 small advisers/14,774 
advisers) = $3,705.60.
---------------------------------------------------------------------------

8. Proposed Amendments to Fund Registration Forms, Rule 485 and Rule 
497 Under the Securities Act, and Rule 11 and Rule 405 of Regulation S-
T
    The Commission also is proposing enhanced disclosure requirements 
on registration statements to enhance investor protection by requiring 
that cybersecurity incident-related information is available to 
increase understanding in these areas and help ensure that investors 
and clients can make informed investment decisions. Our proposal would 
require funds to provide prospective and current investors with 
disclosure about significant fund cybersecurity incidents on Forms N-
1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6, as applicable. Our proposal 
would also require a fund to tag information about significant fund 
cybersecurity incidents using Inline XBRL.
    These requirements will impose burdens on all funds, including 
those that are small entities. The proposed requirements, including 
compliance and recordkeeping requirements, are summarized in this IRFA 
(section V.A. above). All of these proposed requirements are also 
discussed in detail in sections I and II above, and these requirements 
and the burdens on respondents, including those that are small 
entities, are discussed above in sections III and IV (the Economic 
Analysis and Paperwork Reduction Act Analysis, respectively) and below. 
The professional skills required to meet these specific burdens are 
also discussed in sections II through IV.
    As discussed above, there are approximately 27 registered open-end 
mutual funds, 6 registered ETFs, 23 registered closed-end funds, 5 
UITs, and 9 BDCs (collectively, 70 funds) that are small entities under 
the RFA that would be subject to the proposed amendments to fund 
registration forms.\323\ As discussed above in our Paperwork Reduction 
Act Analysis in section IV, the proposed amendments to disclosure 
forms, which would require funds to provide disclosure about 
significant cybersecurity incidents, would create a new annual burden. 
We therefore expect the annual monetized aggregate cost to small funds 
associated with our proposed amendments would be $404,060.\324\
---------------------------------------------------------------------------

    \323\ This estimate is derived an analysis of data obtained from 
Morningstar Direct as well as data reported to the Commission for 
the period ending June 2021. We expect few, if any, separate 
accounts would be treated as small entities because state law 
generally treats separate account assets as the property of the 
sponsoring insurance company. Rule 0-10(b) under the Investment 
Company Act aggregates each separate account's assets with the 
assets of the sponsoring insurance company, together with assets 
held in other sponsored separate accounts.
    \324\ $404,060 = (70 funds x $5,340 disclosure form internal 
time cost) + (65 current XBRL filers x $356 interactive data 
internal time cost) + (5 new XBRL filers x $1,424 interactive data 
internal time cost).
---------------------------------------------------------------------------

    There are different factors that would affect whether a smaller 
fund incurs costs related to this requirement that are on the higher or 
lower end of the estimated range. For example, while we would expect 
larger funds or funds that are part of a large fund complex to incur 
higher costs related to this requirement in absolute terms relative to 
a smaller fund or a fund that is part of a smaller fund complex, we 
would expect a smaller fund to find it more costly, per dollar managed, 
to comply with the proposed requirement because it would not be able to 
benefit from a larger fund complex's economies of scale. For example, a 
large firm may have a business unit that manages cybersecurity for the 
whole firm, often led by a Chief Information Security Officer. The 
costs of that consolidated function, while substantial, would be spread 
across the whole firm, leading to economies of scale.
    Notwithstanding the economies of scale experienced by large versus 
small funds, we would not expect the costs of compliance associated 
with the new disclosure requirements to be meaningfully different for 
small versus large funds. The costs of compliance would likely vary 
based on the significant fund cybersecurity incident. For example, a 
fund, no matter the size,

[[Page 13581]]

would experience more burden if it experienced multiple significant 
fund cybersecurity incidents.
    We are proposing to require all funds, including small entities, to 
tag the disclosure about significant fund cybersecurity incidents in 
Inline XBRL in accordance with rule 405 of Regulation S-T and the EDGAR 
Filer Manual. Large and small funds would both incur the costs 
associated with the proposed structured data requirements on a 
proportional basis. Furthermore, as noted above, based on our 
experience implementing tagging requirements that use the XBRL, we 
recognize that some funds that would be affected by the proposed 
requirement, particularly filers with no Inline XBRL tagging 
experience, likely would incur initial costs to acquire the necessary 
expertise and/or software as well as ongoing costs of tagging required 
information in Inline XBRL. The incremental effect of any fixed costs, 
including ongoing fixed costs, of complying with the proposed Inline 
XBRL requirement may be greater for smaller filers. However, we believe 
that smaller funds in particular may benefit more from any enhanced 
exposure to investors that could result from these proposed 
requirements. If reporting the disclosures in a structured data 
language increases the availability of, or reduces the cost of 
collecting and analyzing, key information about funds, smaller funds 
may benefit from improved coverage by third-party information providers 
and data aggregators.

E. Duplicative, Overlapping, or Conflicting Federal Rules

1. Proposed Rule 206(4)-9
    Investment advisers do not have obligations under the Advisers Act 
specifically for policies and procedures related to cybersecurity risks 
and incidents. However, their fiduciary duties require them to take 
steps to protect client interests, which would include steps to 
minimize operational and other risks that could lead to significant 
business disruptions or a loss or misuse of client information. Since 
cybersecurity incidents can lead to significant business disruptions 
and loss or misuse of client information, advisers should already be 
taking steps to minimize cybersecurity risks in accordance with their 
fiduciary duties. In addition, rule 206(4)-7 under the Advisers Act 
already requires advisers to consider their fiduciary and regulatory 
obligations and formalize policies and procedures reasonably designed 
to address them. While rule 206(4)-7 does not enumerate specific 
elements that an adviser must include in its compliance program, 
advisers may already be assessing the cybersecurity risks created by 
their particular circumstances when developing their compliance 
policies and procedures to address such risks.
    Other Commission rules also require advisers to consider 
cybersecurity. For example, as described above, advisers subject to 
Regulation S-P are required to, among other things, adopt written 
policies and procedures that address administrative, technical, and 
physical safeguards for the protection of customer records and 
information.\325\ In addition, advisers subject to Regulation S-ID must 
develop and implement a written identity theft program.\326\ 
Nevertheless, while some advisers may have established effective 
cybersecurity programs under the existing regulatory framework, there 
are no Commission rules that explicitly require firms to adopt and 
implement comprehensive cybersecurity policies and procedures.
---------------------------------------------------------------------------

    \325\ See supra footnote 14 and accompanying text.
    \326\ See supra footnote 16.
---------------------------------------------------------------------------

    Recently, the Federal Deposit Insurance Corporation, the Board of 
Governors of the Federal Reserve System, and the Office of the 
Comptroller of the Currency adopted a new rule that would require 
certain banking organizations in the United States to notify Federal 
banking regulators of any cybersecurity incidents within 36 hours of 
discovering an incident (``bank cybersecurity rule'').\327\ To the 
extent that a bank or one of its subsidiaries is also registered with 
the Commission as an investment adviser, there may be overlapping 
notification requirements. Additionally, to the extent a firm is 
required to implement cybersecurity-related policies and procedures due 
to its status as a banking organization, if such a firm is also 
registered with the Commission, our proposed rules requiring advisers 
and funds to adopt and implement cybersecurity policies and procedures 
may result in some overlapping regulatory requirements with respect to 
cybersecurity. However, our proposed amendments related to 
cybersecurity are designed to address the cybersecurity risks created 
as a result of a firm's operations as an adviser or fund, which may not 
be sufficiently addressed under cybersecurity regulations applicable to 
banks.
---------------------------------------------------------------------------

    \327\ See Office of the Comptroller of the Currency, Federal 
Reserve System, and Federal Deposit Insurance Corporation, Computer-
Security Incident Notification Requirements for Banking 
Organizations and Their Bank Service Providers (Nov. 18, 2021) [86 
FR 66424 (Nov. 23, 2021)].
---------------------------------------------------------------------------

    In addition, the FTC recently amended their Standards for 
Safeguarding Customer Information that contains a number of 
modifications to the existing FTC Safeguards Rule with respect to data 
security requirements to protect customer financial information.\328\ 
We understand that private funds are generally subject to the FTC 
Safeguards Rule and to the extent that a private fund is managed by an 
adviser that is registered with Commission, our proposed rule requiring 
advisers to adopt and implement cybersecurity policies and procedures 
may result in some overlapping regulatory requirements with respect to 
protecting information. However, our proposed amendments related to 
cybersecurity are designed to address the cybersecurity risks created 
as a result of an adviser's operations and not specifically those 
related to the protection of customer financial information by private 
funds.
---------------------------------------------------------------------------

    \328\ See Federal Trade Commission, Standards for Safeguarding 
Customer Information (Oct. 27, 2021) [86 FR 70272 (Dec. 9, 2021)].
---------------------------------------------------------------------------

2. Proposed Rule 38a-2
    Commission staff have not identified any Federal rules that 
duplicate, overlap, or conflict with the proposed rule 38a-2.
3. Proposed Amendments to Rule 204-2
    As part of proposed rule 206(4)-9 and proposed rule 204-6, we are 
proposing corresponding amendments to the books and records rule. There 
are no duplicative, overlapping, or conflicting Federal rules with 
respect to the proposed amendments to rule 204-2.
4. Proposed Rule 204-6
    Proposed rule 204-6 would create a new reporting requirement for 
advisers to report significant cybersecurity incidents to the 
Commission. There are no duplicative, overlapping, or conflicting 
Federal rules with respect to proposed rule 204-6.
5. Form ADV-C
    Our proposed Form ADV-C would require advisers to provide 
information regarding a significant cybersecurity incident through a 
series of check-the-box and fill-in-the-blank questions related to the 
nature and extent of the cybersecurity incident and the adviser's 
response to the incident. The information requested on proposed Form 
ADV-C would not be duplicative of, overlap, or conflict with, other 
information advisers are required to provide on Form ADV.

[[Page 13582]]

6. Proposed Amendments to Form ADV
    Our proposed new Item 20 in Form ADV Part 2A would require advisers 
to: (1) Describe any cybersecurity risks that could materially affect 
the advisory services they offer and how they assess, prioritize, and 
address cybersecurity risks; and (2) describe any cybersecurity 
incidents that have occurred in the past two fiscal years that have 
significantly disrupted or degraded the adviser's ability to maintain 
critical operations, or has led to the unauthorized access or use of 
adviser information, resulting in substantial harm to the adviser or 
its clients. These proposed requirements would not be duplicative of, 
overlap, or conflict with, other information advisers are required to 
provide on Form ADV.
7. Proposed Amendments to Rule 204-3
    Our proposed amendments to rule 204-3(b) would require an adviser 
to promptly deliver interim brochure amendments to existing clients if 
the adviser adds disclosure of a cybersecurity incident to its brochure 
or materially revises information already disclosed in its brochure 
about such an incident. There are no duplicative, overlapping, or 
conflicting Federal rules with respect to the proposed amendments to 
rule 204-3.
8. Proposed Amendments to Fund Registration Forms, Rules Under the 
Securities Act, and Regulation S-T
    Commission staff have not identified any Federal rules that 
duplicate, overlap, or conflict with the proposed amendments to Forms 
N-1A, N-2, N-3, N-4, N-6, N-8B-2, and S-6, conforming amendments to 
rule 485 and 497 under the Securities Act, and rule 11 and rule 405 of 
Regulation S-T.

F. Significant Alternatives

    The Regulatory Flexibility Act directs the Commission to consider 
significant alternatives that would accomplish our stated objective, 
while minimizing any significant economic effect on small entities. We 
considered the following alternatives for small entities in relation to 
our proposal: (1) Exempting advisers and funds that are small entities 
from the proposed policies and procedures and disclosure requirements, 
to account for resources available to small entities; (2) establishing 
different requirements or frequency, to account for resources available 
to small entities; (3) clarifying, consolidating, or simplifying the 
compliance requirements under the proposal for small entities; and (4) 
using design rather than performance standards.
1. Proposed Rule 206(4)-9
    The RFA directs the Commission to consider significant alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse effect on small entities. We considered the 
following alternatives for small entities in relation to the proposed 
rule 206(4)-9: (1) Differing compliance or reporting requirements that 
take into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the proposed rule for such small entities; 
(3) the use of design rather than performance standards; and (4) an 
exemption from coverage of the proposed rule, or any part thereof, for 
such small entities.
    Regarding the first and fourth alternatives, the Commission 
believes that establishing different compliance or reporting 
requirements for small advisers, or exempting small advisers from the 
proposed rule, or any part thereof, would be inappropriate under these 
circumstances. Because the protections of the Advisers Act are intended 
to apply equally to clients of both large and small firms, it would be 
inconsistent with the purposes of the Advisers Act to specify 
differences for small entities under the proposed rule 206(4)-9 and 
corresponding changes to rule 204-2. As discussed above, we believe 
that the proposed rule would result in multiple benefits to clients. 
For example, having appropriate cybersecurity policies and procedures 
in place would help address any cybersecurity risks and incidents that 
occur at the adviser and help protect advisers and their clients from 
greater risk of harm. We believe that these benefits should apply to 
clients of smaller firms as well as larger firms. Establishing 
different conditions for large and small advisers even though advisers 
of every type and size rely on technology systems and networks and thus 
face increasing cybersecurity risks would negate these benefits. The 
corresponding changes to rule 204-2 are narrowly tailored to address 
proposed rule 206(4)-9.
    Regarding the second alternative, we believe the current proposal 
is clear and that further clarification, consolidation, or 
simplification of the compliance requirements is not necessary. As 
discussed above, the proposed rule would require advisers to adopt and 
implement cybersecurity policies and procedures that specifically 
address: (1) Risk assessment; (2) user security and access; (3) 
information protection; (4) cybersecurity threat and vulnerability 
management; and (5) cybersecurity incident response and recovery.\329\ 
Advisers would also be required under the rule to conduct an annual 
review and assessment of these policies and procedures. The proposed 
rule would provide clarity in the existing regulatory framework 
regarding cybersecurity and serve as an explicit requirement for firms 
to adopt and implement comprehensive cybersecurity programs.
---------------------------------------------------------------------------

    \329\ See proposed rule 206(4)-9. See also supra section II.A.
---------------------------------------------------------------------------

    Regarding the third alternative, we determined to use performance 
standards rather than design standards. Although the proposed rule 
requires policies and procedures that are reasonably designed to 
address a certain number of elements, we do not place certain 
conditions or restrictions on how to adopt and implement such policies 
and procedures. The general elements are designed to enumerate core 
areas that firms must address when adopting, implementing, reassessing 
and updating their cybersecurity policies and procedures. As discussed 
above, given the number and varying characteristics of advisers, we 
believe firms need the ability to tailor their cybersecurity policies 
and procedures based on their individual facts and circumstances. 
Proposed rule 206(4)-9 therefore allows advisers to address the general 
elements based on the particular cybersecurity risks posed by each 
adviser's operations and business practices. The proposed rule would 
also provide flexibility for the adviser to determine the personnel who 
would implement and oversee the effectiveness of its cybersecurity 
policies and procedures.
2. Proposed Rule 38a-2 and Proposed Amendments to the Fund Registration 
Forms, Rules Under the Securities Act, and Regulation S-T
    We do not believe that exempting small funds from the provisions of 
the proposed amendments would permit us to achieve our stated 
objectives. We believe funds of all sizes are subject to cybersecurity 
risks and may experience cybersecurity incidents. Cybersecurity 
incidents affecting funds also can cause substantial harm to their 
investors, including by interfering with the fund's ability to execute 
its investment strategy or theft of fund or client data. If the 
proposal did not include policies and procedures requirements for small 
funds, we believe the lack could raise investor protection concerns for 
investors in small funds, in that a small fund would not be subject to 
the same compliance framework and therefore

[[Page 13583]]

may not have as robust of a compliance program as funds that were 
subject to the required framework. For the same reasons, we also do not 
believe that it would be appropriate to establish different 
cybersecurity requirements, frequency of disclosure or reporting, or 
interactive data requirements for small funds.
    We also believe the current proposal is clear and that further 
clarification, consolidation, or simplification of the compliance 
requirements is not necessary. As discussed above, the proposed rule 
would require funds to adopt and implement cybersecurity policies and 
procedures that specifically address: (1) Risk assessment; (2) user 
security and access; (3) information protection; (4) cybersecurity 
threat and vulnerability management; and (5) cybersecurity incident 
response and recovery.\330\ Funds would also be required under the rule 
to conduct an annual review and assessment of these policies and 
procedures. The proposed rule would provide clarity in the existing 
regulatory framework regarding cybersecurity and serve as an explicit 
requirement for funds to adopt and implement comprehensive 
cybersecurity programs.
---------------------------------------------------------------------------

    \330\ See proposed rule 38a-2; see also supra section II.A.
---------------------------------------------------------------------------

    The costs associated with the proposed amendments would vary 
depending on the fund's particular circumstances, and on the number and 
severity of cybersecurity incidents that a fund experiences. These 
variations would result in different burdens on funds' resources. In 
particular, we expect that a fund that has experienced multiple 
cybersecurity incidents would bear more expense related to the proposed 
amendments. To protect investors of both small and large funds, we 
believe that it is appropriate for the costs associated with the 
proposed amendments to be based on the costs of: (1) Implementing a 
fund's cybersecurity policies and procedures; and (2) disclosing any 
significant fund cybersecurity incident, instead of adjusting these 
costs to account for a fund's size.
    Finally, with respect to the use of design rather than performance 
standards, the proposed amendments generally use design standards for 
all funds subject to the amendments, regardless of size. Although the 
proposed rule requires policies and procedures that are reasonably 
designed to address a certain number of elements, we do not place 
certain conditions or restrictions on how to adopt and implement such 
policies and procedures. The general elements are designed to enumerate 
core areas that firms must address when adopting, implementing, 
reassessing and updating their cybersecurity policies and procedures. 
We believe that providing funds with the flexibility permitted in the 
proposal to design the fund's own individual cybersecurity policies and 
procedures is appropriate, because the result would be compliance 
activities that are tailored to the particular cybersecurity risks 
posed by each fund's operations and business practices. The proposed 
rule would provide flexibility for a fund to determine the personnel 
who would implement and oversee the effectiveness of its cybersecurity 
policies and procedures. In addition, we are aware that cybersecurity 
threats and risk change to reflect current technology, and the proposed 
design standards for funds would permit them to be able to modify their 
cybersecurity programs in response to these developments.
3. Proposed Rule 204-6 and Form ADV-C
    The RFA directs the Commission to consider significant alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse effect on small entities. We considered the 
following alternatives for small entities in relation to the proposed 
rule 204-6 and the corresponding proposed Form ADV-C: (1) Differing 
compliance or reporting requirements that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance and reporting 
requirements under the proposed rule and Form ADV-C for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the proposed rule and Form ADV-C, or 
any part thereof, for such small entities.
    Regarding the first and fourth alternatives, the Commission 
believes that establishing different compliance or reporting 
requirements for small advisers, or exempting small advisers from the 
proposed rule, or any part thereof, would be inappropriate under these 
circumstances. Because the protections of the Advisers Act are intended 
to apply equally to clients of both large and small firms, it would be 
inconsistent with the purposes of the Advisers Act to specify 
differences for small entities under proposed rule 204-6 and proposed 
Form ADV-C, as well as corresponding changes to rule 204-2. As 
discussed above, we believe that the proposed rule and Form ADV-C would 
result in multiple benefits to clients. For example, having this 
reporting would help us in our efforts to protect investors in 
connection with cybersecurity incidents by providing prompt notice of 
these incidents. It would also help us better assess the potential 
effect of the cybersecurity incident on the adviser and its covered 
clients and whether there is the potential for client and investor 
harm. We believe that these benefits should apply to clients of smaller 
firms as well as larger firms. As mentioned above, establishing 
different conditions for large and small advisers even though advisers 
of every type and size rely on technology systems and networks and thus 
face increasing cybersecurity risks would negate these benefits.
    Regarding the second alternative, we believe the current proposal 
for rule 204-6 and Form ADV-C is clear and that further clarification, 
consolidation, or simplification of the compliance requirements is not 
necessary. As discussed above, proposed rule 204-6 would require 
advisers to report to the Commission through Form ADV-C, any 
significant cybersecurity incidents within 48 hours after having a 
reasonable basis to conclude that any such incident has occurred.\331\ 
These proposals would provide a new, clear opportunity in the existing 
regulatory framework for reporting to the Commission with respect to 
significant cybersecurity incidents.
---------------------------------------------------------------------------

    \331\ See proposed rule 204-6; see also supra section II.B.
---------------------------------------------------------------------------

    Regarding the third alternative, we determined to use a combination 
of performance and design standards. Our proposal requires all 
advisers, including small advisers, to report using Form ADV-C 
promptly, but in no event more than 48 hours after, having a reasonable 
basis to believe a significant cybersecurity incident has occurred. 
Once the adviser makes the determination that an incident would meet 
the definition of a significant cybersecurity incident, it is required 
to report on Form ADV-C within 48 hours. We believe this requirement 
should apply to all advisers, regardless of size, given that all types 
of advisers are susceptible to cybersecurity incidents, and obtaining 
such information from all advisers would help to ensure that the 
Commission has accurate and timely information with respect to adviser 
and fund cybersecurity incidents to better allocate resources when 
evaluating and responding to these incidents.
    We also considered an alternative that would have increased the 
scope of the proposed rule's performance standards

[[Page 13584]]

and removed the 48-hour threshold, solely relying on the word 
``promptly.'' However, we believe providing a specific time period 
would provide advisers, including small advisers, with the opportunity 
to confirm its determination and prepare the report while still 
providing the Commission with timely notice about the incident.
1. Proposed Amendments to Form ADV and Rule 204-3
    The RFA directs the Commission to consider significant alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse effect on small entities. We considered the 
following alternatives for small entities in relation to the proposed 
amendments to Form ADV and rule 204-3: (1) Differing compliance or 
reporting requirements that take into account the resources available 
to small entities; (2) the clarification, consolidation, or 
simplification of compliance and reporting requirements under the 
proposed amendments for such small entities; (3) the use of design 
rather than performance standards; and (4) an exemption from coverage 
of the proposed amendments, or any part thereof, for such small 
entities.
    Regarding the first and fourth alternatives, the Commission 
believes that establishing different compliance or reporting 
requirements for small advisers, or exempting small advisers from the 
proposed amendments, or any part thereof, would be inappropriate under 
these circumstances. Because the protections of the Advisers Act are 
intended to apply equally to clients of both large and small firms, it 
would be inconsistent with the purposes of the Advisers Act to specify 
differences for small entities under the proposed amendments to Form 
ADV and rule 204-3. As discussed above, we believe that the proposed 
amendments would result in multiple benefits to clients. For example, 
the proposed amendments to Form ADV would improve the ability of 
clients and prospective clients to evaluate and understand relevant 
cybersecurity risks and incidents that advisers and their personnel 
face and their potential effect on the advisers' services. Also, 
requiring advisers to deliver interim brochure amendments to existing 
clients promptly if the adviser adds or materially revises disclosure 
of a cybersecurity incident, would enhance investor protection by 
enabling clients to take protective or remedial measures as 
appropriate. Clients and investors may also be able to determine 
whether their engagement of an adviser remains appropriate and 
consistent with their investment objectives better. We believe that 
these benefits should apply to clients of smaller firms as well as 
larger firms. Establishing different conditions for large and small 
advisers even though all advisers, regardless of type and size, face 
cybersecurity risks would negate these benefits.
    Regarding the second alternative, we believe the current proposed 
amendments are clear and that further clarification, consolidation, or 
simplification of the compliance requirements is not necessary. As 
discussed above, the proposed amendments to Form ADV would require 
advisers to disclose information regarding cybersecurity risks that 
could materially affect the advisory relationship.\332\ The proposed 
amendments to rule 204-3 would also require prompt delivery of interim 
brochure supplements if an adviser adds or materially revises 
disclosure related to a cybersecurity incident.\333\ The proposed 
amendments to Form ADV would provide for advisers to present clear and 
meaningful cybersecurity disclosure to their clients and prospective 
clients, and the proposed amendments to rule 204-3 would assist in 
providing clients updated cybersecurity disclosures.
---------------------------------------------------------------------------

    \332\ See supra section II.C.
    \333\ See proposed rule 204-3; see also supra section II.C.
---------------------------------------------------------------------------

    Regarding the third alternative, we determined to use a mix of 
performance and design standards, regardless of size, with respect to 
the proposed amendments. We believe the amendments already 
appropriately use performance rather than design standards in many 
instances. The proposed amendments to Form ADV do not contain any 
specific limitations or restrictions on the disclosure of cybersecurity 
risks and incidents. As discussed above, given the number and varying 
types of advisers, as well as the types of cybersecurity risks and 
incidents that may be present or occur at a particular adviser, 
respectively, we believe firms need the ability to tailor their 
disclosures according to their own circumstances. The proposed 
amendments to rule 204-3 do not change the performance standard already 
present in rule 204-3. Advisers may, with client consent, deliver their 
brochures and supplements, along with any updates, to clients 
electronically.\334\ Advisers may also incorporate their supplements 
into the brochure or provide them separately.
---------------------------------------------------------------------------

    \334\ Use of Electronic Media by Broker-Dealers, Transfer 
Agents, and Investment Advisers for Delivery of Information, 
Investment Advisers Act Release No. 1562 (May 9, 1996) [61 FR 24644 
(May 15, 1996)].
---------------------------------------------------------------------------

G. Solicitation of Comments

    We encourage written comments on the matters discussed in this 
IRFA. We solicit comment on the number of small entities subject to the 
proposed rule 206(4)-9, proposed rule 38a-2, proposed rule 204-6, 
proposed Form ADV-C, and proposed amendments to rule 204-2, rule 204-3, 
Form ADV, and the fund registration forms. We also solicit comment on 
the potential effects discussed in this analysis; and whether this 
proposal could have an effect on small entities that has not been 
considered. We request that commenters describe the nature of any 
effect on small entities and provide empirical data to support the 
extent of such effect.

VI. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996, or ``SBREFA,''773 we 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 (1) an annual effect on the economy of $100 million or more; 
(2) a major increase in costs or prices for consumers or individual 
industries; or (3) significant adverse effects on competition, 
investment or innovation. We request comment on the potential effect of 
the proposed amendments on the U.S. economy on an annual basis; any 
potential increase in costs or prices for consumers or individual 
industries; and 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.

VII. Statutory Authority

    The Commission is proposing rule 38a-2 under the authority set 
forth in sections 31(a) and 38(a) of the Investment Company Act [15 
U.S.C. 80a-30(a), and 80a-37(a)]. The Commission is proposing 
amendments to rule 204-2 under the Advisers Act under the authority set 
forth in sections 204 and 211 of the Advisers Act of 1940 [15 U.S.C. 
80b-4 and 80b-11]. The Commission is proposing amendments to rule 204-3 
under the Advisers Act under the authority set forth in sections 
203(d), 206(4), 211(a) and 211(h) of the Advisers Act of 1940 [15 
U.S.C. 80b-3(d), 10b-6(4) and 80b-11(a) and (h)]. The Commission is 
proposing rule 204-6, rule 206(4)-9, and Form ADV-C under the Advisers 
Act under the authority set forth in sections 203(d),

[[Page 13585]]

206(4), and 211(a) of the Advisers Act of 1940 [15 U.S.C. 80b-3(d), 
10b-6(4) and 80b-11(a)]. The Commission is proposing amendments to Form 
N-1A, Form N-2, Form N-3, Form N-4, Form N-6, Form N-8B-2, and Form S-6 
under the authority set forth in sections 8, 30, and 38 of the 
Investment Company Act [15 U.S.C. 80a-8, 80a-29, and 80a-37] and 
sections 6, 7(a), 10 and 19(a) of the Securities Act [15 U.S.C. 77f, 
77g(a), 77j, 77s(a)]. The Commission is proposing amendments to Form 
ADV under section 19(a) of the Securities Act [15 U.S.C. 77s(a)], 
sections 23(a) and 28(e)(2) of the Exchange Act [15 U.S.C. 78w(a) and 
78bb(e)(2)], section 319(a) of the Trust Indenture Act of 1939 [15 
U.S.C. 7sss(a)], section 38(a) of the Investment Company Act [15 U.S.C. 
80a-37(a)], and sections 203(c)(1), 204, and 211(a) of the Advisers Act 
of 1940 [15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)]. The Commission 
is proposing amendments to rule 232.11 and 232.405 under the authority 
set forth in section 23 of the Exchange Act [15 U.S.C. 78w]. The 
Commission is proposing amendments to rule 230.485 and rule 230.497 
under the authority set forth in sections 10 and 19 of the Securities 
Act [15 U.S.C. 77j and 77s].

List of Subjects

17 CFR Part 230

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

17 CFR Part 232

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Securities.

17 CFR Part 239

    Reporting and recordkeeping requirements, Securities.

17 CFR Parts 270 and 274

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

17 CFR Parts 275 and 279

    Reporting and recordkeeping requirements, Securities.

Text of Proposed Rules and Rule and Form Amendments

    For the reasons set forth in the preamble, the Commission is 
proposing to amend title 17, chapter II of the Code of Federal 
Regulations as follows:

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
1. The authority citation for part 230 continues to read, in part, as 
follows:

    Authority:  15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 
77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-
7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-
30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 
Stat. 313 (2012), unless otherwise noted.
* * * * *
    Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48 
Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, 77s).
* * * * *
0
2. Amend Sec.  230.485 by revising paragraph (c)(3) to read as follows:


Sec.  230.485   Effective date of post-effective amendments filed by 
certain registered investment companies.

* * * * *
    (c) * * *
    (3) A registrant's ability to file a post-effective amendment, 
other than an amendment filed solely for purposes of submitting an 
Interactive Data File, under paragraph (b) of this section is 
automatically suspended if a registrant fails to submit any Interactive 
Data File (as defined in Sec.  232.11 of this chapter) required by the 
Form on which the registrant is filing the post-effective amendment. A 
suspension under this paragraph (c)(3) shall become effective at such 
time as the registrant fails to submit an Interactive Data File as 
required by the relevant Form. Any such suspension, so long as it is in 
effect, shall apply to any post-effective amendment that is filed after 
the suspension becomes effective, but shall not apply to any post-
effective amendment that was filed before the suspension became 
effective. Any suspension shall apply only to the ability to file a 
post-effective amendment pursuant to paragraph (b) of this section and 
shall not otherwise affect any post-effective amendment. Any suspension 
under this paragraph (c)(3) shall terminate as soon as a registrant has 
submitted the Interactive Data File required by the relevant Form.
* * * * *
0
3. Amend Sec.  230.497 by revising paragraphs (c) and (e) to read as 
follows:


Sec.  230.497   Filing of investment company prospectuses--number of 
copies.

* * * * *
    (c) For investment companies filing on Sec. Sec.  239.15A and 
274.11A of this chapter (Form N-1A), Sec. Sec.  239.17a and 274.11b of 
this chapter (Form N-3), Sec. Sec.  239.17b and 274.11c of this chapter 
(Form N-4), or Sec. Sec.  239.17c and 274.11d of this chapter (Form N-
6), within five days after the effective date of a registration 
statement or the commencement of a public offering after the effective 
date of a registration statement, whichever occurs later, 10 copies of 
each form of prospectus and form of Statement of Additional Information 
used after the effective date in connection with such offering shall be 
filed with the Commission in the exact form in which it was used. 
Investment companies filing on Forms N-1A, N-3, N-4, or N-6 must submit 
an Interactive Data File (as defined in Sec.  232.11 of this chapter) 
if required by the Form on which the registrant files its registration 
statement.
* * * * *
    (e) For investment companies filing on Sec. Sec.  239.15A and 
274.11A of this chapter (Form N-1A), Sec. Sec.  239.17a and 274.11b of 
this chapter (Form N-3), Sec. Sec.  239.17b and 274.11c of this chapter 
(Form N-4), or Sec. Sec.  239.17c and 274.11d of this chapter (Form N-
6), after the effective date of a registration statement, no prospectus 
that purports to comply with Section 10 of the Act (15 U.S.C. 77j) or 
Statement of Additional Information that varies from any form of 
prospectus or form of Statement of Additional Information filed 
pursuant to paragraph (c) of this section shall be used until five 
copies thereof have been filed with, or mailed for filing to the 
Commission. Investment companies filing on Forms N-1A, N-3, N-4, or N-6 
must submit an Interactive Data File (as defined in Sec.  232.11 of 
this chapter) if required by the Form on which the registrant files its 
registration statement.
* * * * *

PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR 
ELECTRONIC FILINGS

0
4. The authority citation for part 232 continues to read, in part, as 
follows:

    Authority:  15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 
80a-8, 80a-29, 80a-30, 80a-37, 7201 et seq.; and 18 U.S.C. 1350, 
unless otherwise noted.
* * * * *
0
5. Amend Sec.  232.11 by revising the definition of ``Related Official 
Filing'' to read as follows:


Sec.  232.11  Definition of terms used in this part.

* * * * *
    Related Official Filing. The term Related Official Filing means the 
ASCII or HTML format part of the official filing with which all or part 
of an Interactive Data File appears as an exhibit or, in the case of a 
filing on Form N-1A (Sec. Sec.  239.15A and 274.11A of this chapter), 
Form N-2 (Sec. Sec.  239.14 and 274.11a-1 of this chapter), Form N-3 
(Sec. Sec.  239.17a and 274.11b of this chapter), Form N-4 (Sec. Sec.  
239.17b and 274.11c of this chapter), Form N-6 (Sec. Sec.  239.17c and

[[Page 13586]]

274.11d of this chapter), Form N-8B-2 (Sec.  274.12 of this chapter), 
Form S-6 (Sec.  239.16 of this chapter), and Form N-CSR (Sec. Sec.  
249.331 and 274.128 of this chapter), and, to the extent required by 
Sec.  232.405 [Rule 405 of Regulation S-T] for a business development 
company as defined in Sec.  2(a)(48) of the Investment Company Act of 
1940 (15 U.S.C. 80a-2(a)(48)), Form 10-K (Sec.  249.310 of this 
chapter), Form 10-Q (Sec.  249.308a of this chapter), and Form 8-K 
(Sec.  249.308 of this chapter), the ASCII or HTML format part of an 
official filing that contains the information to which an Interactive 
Data File corresponds.
* * * * *
0
6. Amend Sec.  232.405 by revising the introductory text, paragraphs 
(a)(2), (a)(3) introductory text, (a)(3)(i) introductory text, and 
(3)(ii), (a)(4), (b)(1) introductory text, (b)(2), (b)(3)(iii), Note 1 
to Sec.  232.405(b)(1), and Note 2 to Sec.  232.405 to read as follows:


Sec.  232.405  Interactive Data File submissions.

    This section applies to electronic filers that submit Interactive 
Data Files. Section 229.601(b)(101) of this chapter (Item 601(b)(101) 
of Regulation S-K), paragraph (101) of Part II--Information Not 
Required to be Delivered to Offerees or Purchasers of Form F-10 (Sec.  
239.40 of this chapter), paragraph 101 of the Instructions as to 
Exhibits of Form 20-F (Sec.  249.220f of this chapter), paragraph 
B.(15) of the General Instructions to Form 40-F (Sec.  249.240f of this 
chapter), paragraph C.(6) of the General Instructions to Form 6-K 
(Sec.  249.306 of this chapter), General Instruction C.3.(g) of Form N-
1A (Sec. Sec.  239.15A and 274.11A of this chapter), General 
Instruction I of Form N-2 (Sec. Sec.  239.14 and 274.11a-1 of this 
chapter), General Instruction C.3.(h) of Form N-3 (Sec. Sec.  239.17a 
and 274.11b of this chapter), General Instruction C.3.(h) of Form N-4 
(Sec. Sec.  239.17b and 274.11c of this chapter), General Instruction 
C.3.(h) of Form N-6 (Sec. Sec.  239.17c and 274.11d of this chapter), 
General Instruction 2.(l) of Form N-8B-2 (Sec.  274.12 of this 
chapter), General Instruction 5 of Form S-6 (Sec.  239.16 of this 
chapter), and General Instruction C.4 of Form N-CSR (Sec. Sec.  249.331 
and 274.128 of this chapter) specify when electronic filers are 
required or permitted to submit an Interactive Data File (Sec.  
232.11), as further described in note 1 to this section. This section 
imposes content, format, and submission requirements for an Interactive 
Data File, but does not change the substantive content requirements for 
the financial and other disclosures in the Related Official Filing 
(Sec.  232.11).
    (a) * * *
    (2) Be submitted only by an electronic filer either required or 
permitted to submit an Interactive Data File as specified by Sec.  
229.601(b)(101) of this chapter (Item 601(b)(101) of Regulation S-K), 
paragraph (101) of Part II--Information Not Required to be Delivered to 
Offerees or Purchasers of Form F-10 (Sec.  239.40 of this chapter), 
paragraph 101 of the Instructions as to Exhibits of Form 20-F (Sec.  
249.220f of this chapter), paragraph B.(15) of the General Instructions 
to Form 40-F (Sec.  249.240f of this chapter), paragraph C.(6) of the 
General Instructions to Form 6-K (Sec.  249.306 of this chapter), 
General Instruction C.3.(g) of Form N-1A (Sec. Sec.  239.15A and 
274.11A of this chapter), General Instruction I of Form N-2 (Sec. Sec.  
239.14 and 274.11a-1 of this chapter), General Instruction C.3.(h) of 
Form N-3 (Sec. Sec.  239.17a and 274.11b of this chapter), General 
Instruction C.3.(h) of Form N-4 (Sec. Sec.  239.17b and 274.11c of this 
chapter), General Instruction C.3.(h) of Form N-6 (Sec. Sec.  239.17c 
and 274.11d of this chapter), General Instruction 2.(l) of Form N-8B-2 
(Sec.  274.12 of this chapter), General Instruction 5 of Form S-6 
(Sec.  239.16 of this chapter), or General Instruction C.4 of Form N-
CSR (Sec. Sec.  249.331 and 274.128 of this chapter), as applicable;
    (3) Be submitted using Inline XBRL:
    (i) If the electronic filer is not a management investment company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a et 
seq.), a separate account as defined in Section 2(a)(14) of the 
Securities Act (15 U.S.C. 77b(a)(14)) registered under the Investment 
Company Act of 1940, a business development company as defined in 
Section 2(a)(48) of the Investment Company Act of 1940 (15 U.S.C. 80a-
2(a)(48)), or a unit investment trust as defined in Section 4(2) of the 
Investment Company Act of 1940 (15 U.S.C. 80a-4), and is not within one 
of the categories specified in paragraph (f)(1)(i) of this section, as 
partly embedded into a filing with the remainder simultaneously 
submitted as an exhibit to:
* * * * *
    (ii) If the electronic filer is a management investment company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a et 
seq.), or a separate account (as defined in Section 2(a)(14) of the 
Securities Act (15 U.S.C. 77b(a)(14)) registered under the Investment 
Company Act of 1940, a business development company as defined in 
Section 2(a)(48) of the Investment Company Act of 1940 (15 U.S.C. 80a-
2(a)(48)), or a unit investment trust as defined in Section 4(2) of the 
Investment Company Act of 1940 (15 U.S.C. 80a-4) and is not within one 
of the categories specified in paragraph (f)(1)(ii) of this section, as 
partly embedded into a filing with the remainder simultaneously 
submitted as an exhibit to a filing that contains the disclosure this 
section requires to be tagged; and
    (4) Be submitted in accordance with the EDGAR Filer Manual and, as 
applicable, either Item 601(b)(101) of Regulation S-K (Sec.  
229.601(b)(101) of this chapter), paragraph (101) of Part II--
Information Not Required to be Delivered to Offerees or Purchasers of 
Form F-10 (Sec.  239.40 of this chapter), paragraph 101 of the 
Instructions as to Exhibits of Form 20-F (Sec.  249.220f of this 
chapter), paragraph B.(15) of the General Instructions to Form 40-F 
(Sec.  249.240f of this chapter), paragraph C.(6) of the General 
Instructions to Form 6-K (Sec.  249.306 of this chapter), General 
Instruction C.3.(g) of Form N-1A (Sec. Sec.  239.15A and 274.11A of 
this chapter), General Instruction I of Form N-2 (Sec. Sec.  239.14 and 
274.11a-1 of this chapter), General Instruction C.3.(h) of Form N-3 
(Sec. Sec.  239.17a and 274.11b of this chapter), General Instruction 
C.3.(h) of Form N-4 (Sec. Sec.  239.17b and 274.11c of this chapter), 
General Instruction C.3.(h) of Form N-6 (Sec. Sec.  239.17c and 274.11d 
of this chapter); General Instruction 2.(l) of Form N-8B-2 (Sec.  
274.12 of this chapter); General Instruction 5 of Form S-6 (Sec.  
239.16 of this chapter); or General Instruction C.4 of Form N-CSR 
(Sec. Sec.  249.331 and 274.128 of this chapter).
    (b) * * *
    (1) If the electronic filer is not a management investment company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a et 
seq.), a separate account (as defined in Section 2(a)(14) of the 
Securities Act (15 U.S.C. 77b(a)(14)) registered under the Investment 
Company Act of 1940, a business development company as defined in 
Section 2(a)(48) of the Investment Company Act of 1940 (15 U.S.C. 80a-
2(a)(48)), or a unit investment trust as defined in Section 4(2) of the 
Investment Company Act of 1940 (15 U.S.C. 80a-4), an Interactive Data 
File must consist of only a complete set of information for all periods 
required to be presented in the corresponding data in the Related 
Official Filing, no more and no less, from all of the following 
categories:
* * * * *
    Note 1 to Sec.  232.405(b)(1): It is not permissible for the 
Interactive Data File to present only partial face financial 
statements, such as by excluding

[[Page 13587]]

comparative financial information for prior periods.
    (2) If the electronic filer is an open-end management investment 
company registered under the Investment Company Act of 1940, a separate 
account (as defined in section 2(a)(14) of the Securities Act) 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a et 
seq.), or a unit investment trust as defined in Section 4(2) of the 
Investment Company Act of 1940 (15 U.S.C. 80a-4), an Interactive Data 
File must consist of only a complete set of information for all periods 
required to be presented in the corresponding data in the Related 
Official Filing, no more and no less, from the information set forth 
in:
(i) Items 2, 3, 4, and 10(a)(4) of Sec. Sec.  239.15A and 274.11A of 
this chapter (Form N-1A);
    (ii) Items 2, 4, 5, 11, 16A, 18 and 19 of Sec. Sec.  239.17a and 
274.11b of this chapter (Form N-3);
    (iii) Items 2, 4, 5, 10, 16A, and 17 of Sec. Sec.  239.17b and 
274.11c of this chapter (Form N-4);
    (iv) Items 2, 4, 5, 10, 11, 16A and 18 of Sec. Sec.  239.17c and 
274.11d of this chapter (Form N-6); or
    (v) Item 9A of Sec.  274.12 of this chapter (Form N-8B-2), 
including to the extent required by Sec.  239.16 of this chapter (Form 
S-6); as applicable.
    (3) * * *
    (iii) As applicable, all of the information provided in response to 
Items 3.1, 4.3, 8.2.b, 8.2.d, 8.3.a, 8.3.b, 8.5.b, 8.5.c, 8.5.e, 
10.1.a-d, 10.2.a-c, 10.2.e, 10.3, 10.5, and 13 of Form N-2 in any 
registration statement or post-effective amendment thereto filed on 
Form N-2; or any form of prospectus filed pursuant to Sec.  230.424 of 
this chapter (Rule 424 under the Securities Act); or, if a Registrant 
is filing a registration statement pursuant to General Instruction A.2 
of Form N-2, any filing on Form N-CSR, Form 10-K, Form 10-Q, or Form 8-
K to the extent such information appears therein.
* * * * *
    Note 2 to Sec.  232.405: Section 229.601(b)(101) of this chapter 
(Item 601(b)(101) of Regulation S-K) specifies the circumstances under 
which an Interactive Data File must be submitted and the circumstances 
under which it is permitted to be submitted, with respect to Sec.  
239.11 of this chapter (Form S-1), Sec.  239.13 of this chapter (Form 
S-3), Sec.  239.25 of this chapter (Form S-4), Sec.  239.18 of this 
chapter (Form S-11), Sec.  239.31 of this chapter (Form F-1), Sec.  
239.33 of this chapter (Form F-3), Sec.  239.34 of this chapter (Form 
F-4), Sec.  249.310 of this chapter (Form 10-K), Sec.  249.308a of this 
chapter (Form 10-Q), and Sec.  249.308 of this chapter (Form 8-K). 
Paragraph (101) of Part II--Information not Required to be Delivered to 
Offerees or Purchasers of Sec.  239.40 of this chapter (Form F-10) 
specifies the circumstances under which an Interactive Data File must 
be submitted and the circumstances under which it is permitted to be 
submitted, with respect to Form F-10. Paragraph 101 of the Instructions 
as to Exhibits of Sec.  249.220f of this chapter (Form 20-F) specifies 
the circumstances under which an Interactive Data File must be 
submitted and the circumstances under which it is permitted to be 
submitted, with respect to Form 20-F. Paragraph B.(15) of the General 
Instructions to Sec.  249.240f of this chapter (Form 40-F) and 
Paragraph C.(6) of the General Instructions to Sec.  249.306 of this 
chapter (Form 6-K) specify the circumstances under which an Interactive 
Data File must be submitted and the circumstances under which it is 
permitted to be submitted, with respect to Sec.  249.240f of this 
chapter (Form 40-F) and Sec.  249.306 of this chapter (Form 6-K). 
Section 229.601(b)(101) (Item 601(b)(101) of Regulation S-K), paragraph 
(101) of Part II--Information not Required to be Delivered to Offerees 
or Purchasers of Form F-10, paragraph 101 of the Instructions as to 
Exhibits of Form 20-F, paragraph B.(15) of the General Instructions to 
Form 40-F, and paragraph C.(6) of the General Instructions to Form 6-K 
all prohibit submission of an Interactive Data File by an issuer that 
prepares its financial statements in accordance with 17 CFR 210.6-01 
through 210.6-10 (Article 6 of Regulation S-X). For an issuer that is a 
management investment company or separate account registered under the 
Investment Company Act of 1940 (15 U.S.C. 80a et seq.), a business 
development company as defined in Section 2(a)(48) of the Investment 
Company Act of 1940 (15 U.S.C. 80a-2(a)(48)), or a unit investment 
trust as defined in Section 4(2) of the Investment Company Act of 1940 
(15 U.S.C. 80a-4), General Instruction C.3.(g) of Form N-1A (Sec. Sec.  
239.15A and 274.11A of this chapter), General Instruction I of Form N-2 
(Sec. Sec.  239.14 and 274.11a-1 of this chapter), General Instruction 
C.3.(h) of Form N-3 (Sec. Sec.  239.17a and 274.11b of this chapter), 
General Instruction C.3.(h) of Form N-4 (Sec. Sec.  239.17b and 274.11c 
of this chapter), General Instruction C.3.(h) of Form N-6 (Sec. Sec.  
239.17c and 274.11d of this chapter), General Instruction 2.(l) of Form 
N-8B-2 (Sec.  274.12 of this chapter), General Instruction 5 of Form S-
6 (Sec.  239.16 of this chapter), and General Instruction C.4 of Form 
N-CSR (Sec. Sec.  249.331 and 274.128 of this chapter), as applicable, 
specifies the circumstances under which an Interactive Data File must 
be submitted.

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
7. The authority citation for part 239 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 
77sss, 78c, 78l, 78m, 78n, 78o(d), 78o-7 note, 78u-5, 78w(a), 78ll, 
78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 
80a-29, 80a-30, and 80a-37; and sec. 107, Pub. L. 112-106, 126 Stat. 
312, unless otherwise noted.
* * * * *
0
8. Amend Form S-6 (referenced in Sec. Sec.  239.16) by adding General 
Instruction 5 as follows:

    Note:  The text of Form S-6 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

Form S-6

* * * * *

General Instructions

* * * * *

Instruction 5. Interactive Data

    (a) An Interactive Data File as defined in rule 11 of Regulation S-
T [17 CFR 232.11] is required to be submitted to the Commission in the 
manner provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement or post-effective amendment thereto on Form S-6 
that includes or amends information provided in response to item 9A of 
Form N-8B-2 (as provided pursuant to Instruction 1.(a) of the 
Instructions as to the Prospectus of this Form).
    (1) Except as required by paragraph (a)(2), the Interactive Data 
File must be submitted as an amendment to the registration statement to 
which the Interactive Data File relates. The amendment must be 
submitted on or before the date the registration statement or post-
effective amendment that contains the related information becomes 
effective.
    (2) In the case of a post-effective amendment to a registration 
statement filed pursuant to paragraphs (b)(1)(i), (ii), (v), or (vii) 
of rule 485 under the Securities Act [17 CFR 230.485(b)], the 
Interactive Data File must be submitted either with the filing, or as 
an amendment to the registration statement to which the Interactive 
Data Filing relates that is submitted on or before the date the post-
effective amendment that

[[Page 13588]]

contains the related information becomes effective.
    (b) All interactive data must be submitted in accordance with the 
specifications in the EDGAR Filer Manual.
* * * * *

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

0
9. 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
10. Section 270.38a-2 is added to read as follows:


Sec.  270.38a-2  Cybersecurity policies and procedures of certain 
investment companies.

    (a) Cybersecurity policies and procedures. Each fund must adopt and 
implement written policies and procedures that are reasonably designed 
to address cybersecurity risks, including policies and procedures that:
    (1) Risk assessment. (i) Require periodic assessments of 
cybersecurity risks associated with fund information systems and fund 
information residing therein including requiring the fund to:
    (A) Categorize and prioritize cybersecurity risks based on an 
inventory of the components of the fund information systems and fund 
information residing therein and the potential effect of a 
cybersecurity incident on the fund; and
    (B) Identify the fund's service providers that receive, maintain, 
or process fund information, or are otherwise permitted to access fund 
information systems and any fund information residing therein, and 
assess the cybersecurity risks associated with the fund's use of these 
service providers.
    (ii) Require written documentation of any risk assessments.
    (2) User security and access. Require controls designed to minimize 
user-related risks and prevent the unauthorized access to fund 
information systems and fund information residing therein including:
    (i) Requiring standards of behavior for individuals authorized to 
access fund information systems and any fund information residing 
therein, such as an acceptable use policy;
    (ii) Identifying and authenticating individual users, including 
implementing authentication measures that require users to present a 
combination of two or more credentials for access verification;
    (iii) Establishing procedures for the timely distribution, 
replacement, and revocation of passwords or methods of authentication;
    (iv) Restricting access to specific fund information systems or 
components thereof and fund information residing therein solely to 
individuals requiring access to such systems and information as is 
necessary for them to perform their responsibilities and functions on 
behalf of the fund; and
    (v) Securing remote access technologies.
    (3) Information protection.
    (i) Require measures designed to monitor fund information systems 
and protect fund information from unauthorized access or use, based on 
a periodic assessment of the fund information systems and fund 
information that resides on the systems that takes into account:
    (A) The sensitivity level and importance of fund information to its 
business operations;
    (B) Whether any fund information is personal information;
    (C) Where and how fund information is accessed, stored and 
transmitted, including the monitoring of fund information in 
transmission;
    (D) Fund information systems access controls and malware 
protection; and
    (E) The potential effect a cybersecurity incident involving fund 
information could have on the fund and its shareholders, including the 
ability for the fund to continue to provide services.
    (ii) Require oversight of service providers that receive, maintain, 
or process fund information, or are otherwise permitted to access fund 
information systems and any fund information residing therein and 
through that oversight document that such service providers, pursuant 
to a written contract between the fund and any such service provider, 
are required to implement and maintain appropriate measures, including 
the practices described in paragraphs (a)(1), (2), (3)(i), (4), and (5) 
of this section, that are designed to protect fund information and fund 
information systems.
    (4) Cybersecurity threat and vulnerability management. Require 
measures to detect, mitigate, and remediate any cybersecurity threats 
and vulnerabilities with respect to fund information systems and the 
fund information residing therein.
    (5) Cybersecurity incident response and recovery. (i) Require 
measures to detect, respond to, and recover from a cybersecurity 
incident, including policies and procedures that are reasonably 
designed to ensure:
    (A) Continued operations of the fund;
    (B) The protection of fund information systems and fund information 
residing therein;
    (C) External and internal cybersecurity incident information 
sharing and communications; and
    (D) Reporting of a significant fund cybersecurity incident by the 
fund's adviser under Sec.  275.204-6 (Rule 204-6 under the Investment 
Advisers Act of 1940).
    (ii) Require written documentation of any cybersecurity incident, 
including the fund's response to and recovery from such an incident.
    (b) Annual review. A fund must, at least annually, review and 
assess the design and effectiveness of the cybersecurity policies and 
procedures required by paragraph (a) of this section, including whether 
they reflect changes in cybersecurity risk over the time period covered 
by the review.
    (c) Board oversight. A fund must:
    (1) Obtain the initial approval of the fund's board of directors, 
including a majority of the directors who are not interested persons of 
the fund, of the fund's policies and procedures; and
    (2) Provide, for review by the fund's board of directors, a written 
report prepared no less frequently than annually by the fund that, at a 
minimum, describes the review, the assessment, and any control tests 
performed, explains their results, documents any cybersecurity incident 
that occurred since the date of the last report, and discusses any 
material changes to the policies and procedures since the date of the 
last report.
    (d) Unit investment trusts. If the fund is a unit investment trust, 
the fund's principal underwriter or depositor must:
    (i) Approve the fund's policies and procedures; and
    (ii) Receive all written reports required by paragraph (c) of this 
section.
    (e) Recordkeeping. The fund must maintain:
    (1) A copy of the policies and procedures that are in effect, or at 
any time within the past five years were in effect, in an easily 
accessible place;
    (2) Copies of written reports provided to the board of directors 
pursuant to paragraph (c)(2) of this section (or, if the fund is a unit 
investment trust, to the fund's principal underwriter or depositor, 
pursuant to paragraph (d) 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;
    (3) Any records documenting the review pursuant to paragraph (c)(2) 
of

[[Page 13589]]

this section for at least five years after the end of the fiscal year 
in which the annual review was conducted, the first two years in an 
easily accessible place;
    (4) Any report provided to the Commission pursuant to paragraph 
(a)(5) of this section for at least five years after the provision of 
the report, the first two years in an easily accessible place;
    (5) Records documenting the occurrence of any cybersecurity 
incident, including records related to any response and recovery from 
such incident pursuant to paragraph (a)(5) of this section, for at 
least five years after the date of the incident, the first two years in 
an easily accessible place; and
    (6) Records documenting the risk assessment pursuant to paragraph 
(a)(1) of this section for at least five years after the date of the 
assessment, the first two years in an easily accessible place.
    (f) Definitions. For purposes of this section:
    Cybersecurity incident means an unauthorized occurrence on or 
conducted through a fund's information systems that jeopardizes the 
confidentiality, integrity, or availability of a fund's information 
systems or any fund information residing therein.
    Cybersecurity risk means financial, operational, legal, 
reputational, and other adverse consequences that could result from 
cybersecurity incidents, threats, and vulnerabilities.
    Cybersecurity threat means any potential occurrence that may result 
in an unauthorized effort to adversely affect the confidentiality, 
integrity or availability of a fund's information systems or any fund 
information residing therein.
    Cybersecurity vulnerability means a vulnerability in a fund's 
information systems, information system security procedures, or 
internal controls, including vulnerabilities in their design, 
configuration, maintenance, or implementation that, if exploited, could 
result in a cybersecurity incident.
    Fund means a registered investment company or a business 
development company.
    Fund information means any electronic information related to the 
fund's business, including personal information, received, maintained, 
created, or processed by the fund.
    Fund information systems means the information resources owned or 
used by the fund, including physical or virtual infrastructure 
controlled by such information resources, or components thereof, 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of fund information to maintain or 
support the fund's operations.
    Personal information means any information that can be used, alone 
or in conjunction with any other information, to identify an 
individual, such as name, date of birth, place of birth, telephone 
number, street address, mother's maiden name, Social Security number, 
driver's license number, electronic mail address, account number, 
account password, biometric records or other nonpublic authentication 
information.
    Significant fund cybersecurity incident means a cybersecurity 
incident, or a group of related cybersecurity incidents, that 
significantly disrupts or degrades the fund's ability to maintain 
critical operations, or leads to the unauthorized access or use of fund 
information, where the unauthorized access or use of such information 
results in substantial harm to the fund or to an investor whose 
information was accessed.

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

0
11. The authority citation for part 274 is revised to read as follows:

    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, 80a-37, otherwise noted.

0
12. Amend Form N-1A (referenced in Sec. Sec.  239.15A and 274.11A) by 
revising General Instruction C.3.(g)(i) and (ii), and adding Item 
10(a)(4). The revisions read as follows:

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

Form N-1A

* * * * *

General Instructions

* * * * *

C. Preparation of the Registration Statement

* * * * *
    3. * * *
* * * * *
(g) Interactive Data File
    (i) An Interactive Data File (rule 232.11 of Regulation S-T [17 CFR 
232.11]) is required to be submitted to the Commission in the manner 
provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement or post-effective amendment thereto on Form N-1A 
that includes or amends information provided in response to Items 2, 3, 
4, or 10(a)(4).
* * * * *
    (ii) An Interactive Data File is required to be submitted to the 
Commission in the manner provided by rule 405 of Regulation S-T for any 
form of prospectus filed pursuant to paragraphs (c) or (e) of rule 497 
under the Securities Act [17 CFR 230.497(c) or (e)] that includes 
information provided in response to Items 2, 3, 4, or 10(a)(4) that 
varies from the registration statement. All interactive data must be 
submitted with the filing made pursuant to rule 497.
* * * * *

Part A--INFORMATION REQUIRED IN A PROSPECTUS

* * * * *

Item 10. Management, Organization, and Capital Structure

* * * * *
    (4) Significant Fund Cybersecurity Incidents. Provide a description 
of any significant fund cybersecurity incident as defined by rule 38a-2 
of the Investment Company Act (17 CFR 270.38a-2) that has or is 
currently affecting the Fund or its service providers.

Instructions

    1. The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    2. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the Fund's operations; and 
whether the Fund or service provider has remediated or is currently 
remediating the incident.
* * * * *
0
13. Amend Form N-2 (referenced in Sec. Sec.  239.14 and 274.11a-1) by 
revising General Instruction I.2 and 3, Item 13 is to read as follows:

    Note:  The text of Form N-2 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

Form N-2

* * * * *

General Instructions

* * * * *

I. Interactive Data

* * * * *
    2. An Interactive Data File is required to be submitted to the 
Commission in

[[Page 13590]]

the manner provided by Rule 405 of Regulation S-T for any registration 
statement or post-effective amendment thereto filed on Form N-2 or for 
any form of prospectus filed pursuant to Rule 424 under the Securities 
Act [17 CFR 230.424] that includes or amends information provided in 
response to Items 3.1, 4.3, 8.2.b, 8.2.d, 8.3.a, 8.3.b, 8.5.b, 8.5.c, 
8.5.e, 10.1.a-d, 10.2.a-c, 10.2.e, 10.3, 10.5, or 13. The Interactive 
Data File must be submitted either with the filing, or as an amendment 
to the registration statement to which it relates, on or before the 
date the registration statement or post-effective amendment that 
contains the related information becomes effective. Interactive Data 
Files must be submitted with the filing made pursuant to Rule 424.
    3. If a Registrant is filing a registration statement pursuant to 
General Instruction A.2, an Interactive Data File is required to be 
submitted to the Commission in the manner provided by Rule 405 of 
Regulation S-T for any of the documents listed in General Instruction 
F.3.(a) or General Instruction F.3.(b) that include or amend 
information provided in response to Items 3.1, 4.3, 8.2.b, 8.2.d, 
8.3.a, 8.3.b, 8.5.b, 8.5.c, 8.5.e, 10.1.a-d, 10.2.a-c, 10.2.e, 10.3, 
10.5, or 13. All interactive data must be submitted with the filing of 
the document(s) listed in General Instruction F.3.(a) or General 
Instruction F.3.(b).
* * * * *

Part A--INFORMATION REQUIRED IN A PROSPECTUS

* * * * *

Item 13. Significant Fund Cybersecurity Incidents

    Provide a description of any significant fund cybersecurity 
incident as defined by rule 38a-2 of the Investment Company Act (17 CFR 
270.38a-2) that has or is currently affecting the Registrant, any 
subsidiary of the Registrant, or the Registrant's service providers.

Instructions.

    1. The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    2. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the Registrant's operations; and 
whether the Registrant, any subsidiary of the Registrant, or any 
service provider of the Registrant has remediated or is currently 
remediating the incident.
0
14. Amend Form N-3 (referenced in Sec. Sec.  239.17a and 274.11b) by 
revising General Instruction C.3(h)(i) and (ii) and adding new Item 16A 
to reads as follows:

    Note:  The text of Form N-3 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

Form N-3

* * * * *

GENERAL INSTRUCTIONS

* * * * *

C. Preparation of the Registration Statement

* * * * *
3. Additional Matters
* * * * *
    (h) Interactive Data
    (i) An Interactive Data File (see rule 232.11 of Regulation S-T [17 
CFR 232.11]) is required to be submitted to the Commission in the 
manner provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement or post-effective amendment thereto on Form N-3 
that includes or amends information provided in response to Items 2, 4, 
5, 11, 16A, 18, or 19 with regards to Contracts that are being sold to 
new investors.
* * * * *
    (ii) An Interactive Data File is required to be submitted to the 
Commission in the manner provided by rule 405 of Regulation S-T for any 
form of prospectus filed pursuant to paragraphs (c) or (e) of rule 497 
under the Securities Act [17 CFR 230.497(c) or (e)] that includes 
information provided in response to Items 2, 4, 5, 11, 16A, 18 or 19 
that varies from the registration statement with regards to Contracts 
that are being sold to new investors. All interactive data must be 
submitted with the filing made pursuant to rule 497.
* * * * *

PART A--INFORMATION REQUIRED IN A PROSPECTUS

* * * * *

Item 16A. Significant Fund Cybersecurity Incidents

    Provide a description of any significant fund cybersecurity 
incident as defined by rule 38a-2 of the Investment Company Act (17 CFR 
270.38a-2) that has or is currently affecting the Registrant, Insurance 
Company or the Registrant's service providers.

Instructions.

    1. The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    2. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the Registrant's operations; and 
whether the Registrant, Insurance Company, or any service provider of 
the Registrant has remediated or is currently remediating the incident.
* * * * *
0
15. Amend Form N-4 (referenced in Sec. Sec.  239.17b and 274.11c) by 
revising General Instruction C.3(h)(i) and (ii) and adding new Item 16A 
to read as follows:

    Note: The text of Form N-4 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

Form N-4

* * * * *

GENERAL INSTRUCTIONS

* * * * *

C. Preparation of the Registration Statement

* * * * *
3. Additional Matters
* * * * *
    (h) Interactive Data
    (i) An Interactive Data File (see rule 232.11 of Regulation S-T [17 
CFR 232.11]) is required to be submitted to the Commission in the 
manner provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement or post-effective amendment thereto on Form N-4 
that includes or amends information provided in response to Items 2, 4, 
5, 10, 16A, or 17 with regards to Contracts that are being sold to new 
investors.
* * * * *
    (ii) An Interactive Data File is required to be submitted to the 
Commission in the manner provided by rule 405 of Regulation S-T for any 
form of prospectus filed pursuant to paragraphs (c) or (e) of rule 497 
under the Securities Act [17 CFR 230.497(c) or (e)] that includes 
information provided in response to Items 2, 4, 5, 10, 16A, or 17 that 
varies from the registration

[[Page 13591]]

statement with regards to Contracts that are being sold to new 
investors. All interactive data must be submitted with the filing made 
pursuant to rule 497.
* * * * *

PART A--INFORMATION REQUIRED IN A PROSPECTUS

* * * * *

Item 16A. Significant Fund Cybersecurity Incidents

    Provide a description of any significant fund cybersecurity 
incident as defined by rule 38a-2 of the Investment Company Act (17 CFR 
270.38a-2) that has or is currently affecting the Registrant, 
Depositor, or the Registrant's service providers.

Instructions.

    1. The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    2. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the Registrant's operations; and 
whether the Registrant, Depositor, or any service provider of the 
Registrant has remediated or is currently remediating the incident.
* * * * *
0
16. Amend Form N-6 (referenced in Sec. Sec.  239.17c and 274.11d) by 
revising General Instruction C.3(h)(i) and (ii) and adding new Item 16A 
to read as follows:

    Note:  The text of Form N-6 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

Form N-6

* * * * *

GENERAL INSTRUCTIONS

* * * * *

C. Preparation of the Registration Statement

* * * * *
3. Additional Matters
* * * * *
    (h) Interactive Data
    (i) An Interactive Data File (see rule 232.11 of Regulation S-T [17 
CFR 232.11]) is required to be submitted to the Commission in the 
manner provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement or post-effective amendment thereto on Form N-6 
that includes or amends information provided in response to Items 2, 4, 
5, 10, 11, 16A, or 18 with regards to Contracts that are being sold to 
new investors.
* * * * *
    (ii) An Interactive Data File is required to be submitted to the 
Commission in the manner provided by rule 405 of Regulation S-T for any 
form of prospectus filed pursuant to paragraphs (c) or (e) of rule 497 
under the Securities Act [17 CFR 230.497(c) or (e)] that includes 
information provided in response to Items 2, 4, 5, 10, 11, 16A, or 18 
that varies from the registration statement with regards to Contracts 
that are being sold to new investors. All interactive data must be 
submitted with the filing made pursuant to rule 497.
* * * * *

PART A--INFORMATION REQUIRED IN A PROSPECTUS

* * * * *

Item 16A. Significant Fund Cybersecurity Incidents

    Provide a description of any significant fund cybersecurity 
incident as defined by rule 38a-2 of the Investment Company Act (17 CFR 
270.38a-2) that has or is currently affecting the Registrant, the 
Depositor or the Registrant's service providers.

Instructions.

    1. The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    2. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the Registrant's operations; and 
whether the Registrant, Depositor, or any service provider of the 
Registrant has remediated or is currently remediating the incident.
0
17. Amend Form N-8B-2 (referenced in Sec.  274.12) by adding new 
General Instruction 2.(l) and new Item 9A to read as follows:
    Note: The text of Form N-8B-2 does not, and these amendments will 
not, appear in the Code of Federal Regulations.

FORM N-8B-2

* * * * *

GENERAL INSTRUCTIONS FOR FORM N-8B-2

* * * * *

2. Preparation and Filing of Registration Statement

* * * * *

(l) Interactive Data

    (1) An Interactive Data File as defined in rule 11 of Regulation S-
T [17 CFR 232.11] is required to be submitted to the Commission in the 
manner provided by rule 405 of Regulation S-T [17 CFR 232.405] for any 
registration statement on Form N-8B-2 that includes information 
provided in response to Item 9A pursuant to Instruction 2. The 
Interactive Data File must be submitted with the filing to which it 
relates on the date such filing becomes effective.
    (2) All interactive data must be submitted in accordance with the 
specifications in the EDGAR Filer Manual.
* * * * *

I. ORGANIZATION AND GENERAL INFORMATION

* * * * *
    9A. Provide a description of any significant fund cybersecurity 
incident as defined by rule 38a-2 of the Investment Company Act of 1940 
(17 CFR 270.38a-2) that has or is currently affecting the trust, the 
depositor, or the trust's service providers.
    Instructions:
    (a) The disclosure must include all significant fund cybersecurity 
incidents that have occurred within the last 2 fiscal years, as well as 
any currently ongoing.
    (b) The description of each incident must include the following 
information to the extent known: the entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered, or accessed or used for any other unauthorized 
purpose; the effect of the incident on the trust's operations; and 
whether the trust, the depositor, or any service provider of the trust 
has remediated or is currently remediating the incident.
* * * * *

PART 275--RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

0
18. The authority citation for part 275 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(11)(H), 80b-
2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless 
otherwise noted.
* * * * *

[[Page 13592]]

    Section 275.204-2 is also issued under 15 U.S.C. 80b-6.
* * * * *
0
19. Amend Sec.  275.204-2 by:
0
a. Revising paragraph (a)(17)(i);
0
b. Removing the period at the end of paragraph (a)(17)(iii) and adding 
a semicolon in its place; and
0
c. Adding paragraphs (a)(17)(iv) through (vii).
    The additions read as follows:


Sec.  275.204-2  Books and records to be maintained by investment 
advisers.

    (a) * * *
    (17) * * *
    (i) A copy of the investment adviser's policies and procedures 
formulated pursuant to Sec. Sec.  275.206(4)-7(a) and 275.206(4)-9 that 
are in effect, or at any time within the past five years were in 
effect;
* * * * *
    (iv) A copy of the investment adviser's written report documenting 
the investment adviser's annual review of the cybersecurity policies 
and procedures conducted pursuant to Sec.  275.206(4)-9(b) in the last 
five years;
    (v) A copy of any Form ADV-C, and amendments filed by the adviser 
under Sec.  275.204-6 in the last five years;
    (vi) Records documenting the occurrence of any cybersecurity 
incident, as defined in Sec.  275.206(4)-9(c), occurring in the last 
five years, including records related to any response and recovery from 
such an incident; and
    (vii) Records documenting any risk assessment conducted pursuant to 
the cybersecurity policies and procedures required by Sec.  275.206(4)-
9(a)(1) in the last five years.
* * * * *
0
20. Amend Sec.  275.204-3 by revising paragraph (b)(4) to read as 
follows:


Sec.  275.204-3  Delivery of brochures and brochure supplements.

* * * * *
    (b) * * *
    (4) Deliver the following to each client promptly after you create 
an amended brochure or brochure supplement, as applicable, if the 
amendment adds disclosure of an event or incident, or materially 
revises information already disclosed about an event or incident: in 
response to Item 9 of Part 2A of Form ADV or Item 3 of Part 2B of Form 
ADV (Disciplinary Information), or Item 20.B of Part 2A of Form ADV 
(Cybersecurity Risks and Incidents);
    (i) The amended brochure or brochure supplement, as applicable, 
along with a statement describing the material facts relating to the 
change in disciplinary information or information about a significant 
cybersecurity incident; or
    (ii) A statement describing the material facts relating to the 
change in disciplinary information or information about a significant 
cybersecurity incident.
* * * * *
0
21. Section 275.204-6 is added to read as follows:


Sec.  275.204-6   Cybersecurity incident reporting.

    (a) Every investment adviser registered or required to be 
registered under section 203 of the Act (15 U.S.C. 80b-3) shall:
    (1) Report to the Commission any significant adviser cybersecurity 
incident or significant fund cybersecurity incident, promptly, but in 
no event more than 48 hours, after having a reasonable basis to 
conclude that any such incident has occurred or is occurring by filing 
Form ADV-C electronically on the Investment Adviser Registration 
Depository (IARD).
    (2) Amend any previously filed Form ADV-C promptly, but in no event 
more than 48 hours after:
    (i) Any information previously reported to the Commission on Form 
ADV-C pertaining to a significant adviser cybersecurity incident or a 
significant fund cybersecurity becoming materially inaccurate;
    (ii) Any new material information pertaining to a significant 
adviser cybersecurity incident or a significant fund cybersecurity 
incident previously reported to the Commission on Form ADV-C being 
discovered; or
    (iii) Any significant adviser cybersecurity incident or significant 
fund cybersecurity incident being resolved or any internal 
investigation pertaining to such an incident being closed.
    (b) For the purposes of this section:
    Adviser information and cybersecurity incident have the same 
meanings as in Sec.  275.206(4)-9 (Rule 206(4)-9 under the Investment 
Advisers Act of 1940).
    Significant adviser cybersecurity incident means a cybersecurity 
incident, or a group of related cybersecurity incidents, that 
significantly disrupts or degrades the adviser's ability, or the 
ability of a private fund client of the adviser, to maintain critical 
operations, or leads to the unauthorized access or use of adviser 
information, where the unauthorized access or use of such information 
results in:
    (i) Substantial harm to the adviser; or
    (ii) Substantial harm to a client, or an investor in a private 
fund, whose information was accessed.
    Significant fund cybersecurity incident has the same meaning as in 
Sec.  270.38a-2 of this chapter (Rule 38a-2 under the Investment 
Company Act of 1940).
0
22. Section 275.206(4)-9 is added to read as follows:


Sec.  275.206(4)-9  Cybersecurity policies and procedures of investment 
advisers.

    (a) Cybersecurity policies and procedures. As a means reasonably 
designed to prevent fraudulent, deceptive, or manipulative acts, 
practices, or courses of business within the meaning of section 206(4) 
of the Act (15 U.S.C. 80b6(4)), it is unlawful for any investment 
adviser registered or required to be registered under section 203 of 
the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) to provide 
investment advice to clients unless the adviser adopts and implements 
written policies and procedures that are reasonably designed to address 
the adviser's cybersecurity risks, including policies and procedures 
that:
    (1) Risk assessment.
    (i) Require periodic assessments of cybersecurity risks associated 
with adviser information systems and adviser information residing 
therein, including requiring the adviser to:
    (A) Categorize and prioritize cybersecurity risks based on an 
inventory of the components of the adviser information systems and 
adviser information residing therein and the potential effect of a 
cybersecurity incident on the adviser; and
    (B) Identify the adviser's service providers that receive, 
maintain, or process adviser information, or are otherwise permitted to 
access adviser information systems and any adviser information residing 
therein, and assess the cybersecurity risks associated with the 
adviser's use of these service providers.
    (ii) Require written documentation of any risk assessments.
    (2) User security and access. Require controls designed to minimize 
user-related risks and prevent unauthorized access to adviser 
information systems and adviser information residing therein, 
including:
    (i) Requiring standards of behavior for individuals authorized to 
access adviser information systems and any adviser information residing 
therein, such as an acceptable use policy;
    (ii) Identifying and authenticating individual users, including 
implementing authentication measures that require users to present a 
combination of two or more credentials for access verification;
    (iii) Establishing procedures for the timely distribution, 
replacement, and revocation of passwords or methods of authentication;

[[Page 13593]]

    (iv) Restricting access to specific adviser information systems or 
components thereof and adviser information residing therein solely to 
individuals requiring access to such systems and information as is 
necessary for them to perform their responsibilities and functions on 
behalf of the adviser; and
    (v) Securing remote access technologies.
    (3) Information protection.
    (i) Require measures designed to monitor adviser information 
systems and protect adviser information from unauthorized access or 
use, based on a periodic assessment of the adviser information systems 
and adviser information that resides on the systems that takes into 
account:
    (A) The sensitivity level and importance of adviser information to 
its business operations;
    (B) Whether any adviser information is personal information;
    (C) Where and how adviser information is accessed, stored and 
transmitted, including the monitoring of adviser information in 
transmission;
    (D) Adviser information systems access controls and malware 
protection; and
    (E) The potential effect a cybersecurity incident involving adviser 
information could have on the adviser and its clients, including the 
ability for the adviser to continue to provide investment advice.
    (ii) Require oversight of service providers that receive, maintain, 
or process adviser information, or are otherwise permitted to access 
adviser information systems and any adviser information residing 
therein and through that oversight document that such service 
providers, pursuant to a written contract between the adviser and any 
such service provider, are required to implement and maintain 
appropriate measures, including the practices described in paragraphs 
(a)(1), (2), (3)(i), (4), and (5) of this section, that are designed to 
protect adviser information and adviser information systems.
    (4) Cybersecurity threat and vulnerability management. Require 
measures to detect, mitigate, and remediate any cybersecurity threats 
and vulnerabilities with respect to adviser information systems and the 
adviser information residing therein;
    (5) Cybersecurity incident response and recovery.
    (i) Require measures to detect, respond to, and recover from a 
cybersecurity incident, including policies and procedures that are 
reasonably designed to ensure:
    (A) Continued operations of the adviser;
    (B) The protection of adviser information systems and the adviser 
information residing therein;
    (C) External and internal cybersecurity incident information 
sharing and communications; and
    (D) Reporting of significant cybersecurity incidents under Sec.  
275.204-6 (Rule 204-6).
    (ii) Require written documentation of any cybersecurity incident, 
including the adviser's response to and recovery from such an incident.
    (b) Annual review. An adviser must, at least annually:
    (1) Review and assess the design and effectiveness of the 
cybersecurity policies and procedures required by paragraph (a) of this 
section, including whether they reflect changes in cybersecurity risk 
over the time period covered by the review; and
    (2) Prepare a written report that, at a minimum, describes the 
review, the assessment, and any control tests performed, explains their 
results, documents any cybersecurity incident that occurred since the 
date of the last report, and discusses any material changes to the 
policies and procedures since the date of the last report.
    (c) Definitions. For purposes of this section:
    Adviser information means any electronic information related to the 
adviser's business, including personal information, received, 
maintained, created, or processed by the adviser.
    Adviser information systems means the information resources owned 
or used by the adviser, including physical or virtual infrastructure 
controlled by such information resources, or components thereof, 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of adviser information to maintain or 
support the adviser's operations.
    Cybersecurity incident means an unauthorized occurrence on or 
conducted through an adviser's information systems that jeopardizes the 
confidentiality, integrity, or availability of an adviser's information 
systems or any adviser information residing therein.
    Cybersecurity risk means financial, operational, legal, 
reputational, and other consequences that could result from 
cybersecurity incidents, threats, and vulnerabilities.
    Cybersecurity threat means any potential occurrence that may result 
in an unauthorized effort to adversely affect the confidentiality, 
integrity, or availability of an adviser's information systems or any 
adviser information residing therein.
    Cybersecurity vulnerability means a vulnerability in an adviser's 
information systems, information system security procedures, or 
internal controls, including vulnerabilities in their design, 
configuration, maintenance, or implementation that, if exploited, could 
result in a cybersecurity incident.
    Personal information means:
    (i) Any information that can be used, alone or in conjunction with 
any other information, to identify an individual, such as name, date of 
birth, place of birth, telephone number, street address, mother's 
maiden name, Social Security number, driver's license number, 
electronic mail address, account number, account password, biometric 
records or other nonpublic authentication information; or
    (ii) Any other non-public information regarding a client's account.

PART 279--FORMS PRESCRIBED UNDER THE INVESTMENT ADVISERS ACT OF 
1940

0
23. The authority citation for part 279 continues to read as follows:

    Authority:  The Investment Advisers Act of 1940, 15 U.S.C. 80b-1 
et seq., Pub. L. 111203, 124 Stat. 1376.

0
24. Amend Form ADV (referenced in Sec.  279.1) by:
0
a. Adding Item 20 to Part 2A; and
0
b. Revising the instructions to the form, in the section entitled 
``Form ADV: Glossary of Terms.''
    The addition and revision read as follows:

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

FORM ADV (Paper Version)

UNIFORM APPLICATION FOR INVESTMENT ADVISER REGISTRATION

PART 2: Uniform Requirements for the Investment Adviser Brochure and 
Brochure Supplements

* * * * *

Item 20. Cybersecurity Risks and Incidents

    A. Risks. Describe the cybersecurity risks that could materially 
affect the advisory services you offer. Describe how you assess, 
prioritize, and address cybersecurity risks created by the nature and 
scope of your business.
    B. Incidents. Provide a description of any cybersecurity incident 
that that has occurred within the last two fiscal years that has 
significantly disrupted or degraded your ability to maintain

[[Page 13594]]

critical operations, or has led to the unauthorized access or use of 
adviser information, resulting in substantial harm to you or your 
clients. The description of each incident must include the following 
information to the extent known: The entity or entities affected; when 
the incident was discovered and whether it is ongoing; whether any data 
was stolen, altered or accessed or used for any other unauthorized 
purpose; the effect of the incident on the adviser's operations; and 
whether the adviser, or service provider, has remediated or is 
currently remediating the incident.
* * * * *

APPENDIX B: FORM ADV GLOSSARY OF TERMS

    Adviser information means any electronic information related to the 
adviser's business, including personal information, received, 
maintained, created, or processed by the adviser.
    Adviser information systems means the adviser information resources 
owned or used by the adviser, including physical or virtual 
infrastructure controlled by such information resources, or components 
thereof, organized for the collection, processing, maintenance, use, 
sharing, dissemination, or disposition of adviser information to 
maintain or support the adviser's operations.
    Cybersecurity incident means an unauthorized occurrence on or 
conducted through an adviser's information systems that jeopardizes the 
confidentiality, integrity, or availability of an adviser's information 
systems or any adviser information residing therein.
    Cybersecurity risk means financial, operational, legal, 
reputational, and other consequences that could result from 
cybersecurity incidents, threats, and vulnerabilities.
    Cybersecurity threat means any potential occurrence that may result 
in an unauthorized effort to adversely affect the confidentiality, 
integrity, or availability of an adviser's information systems or any 
adviser information residing therein.
    Cybersecurity vulnerability means a vulnerability in an adviser's 
information systems, information system security procedures, or 
internal controls, including vulnerabilities in their design, 
configuration, maintenance, or implementation that, if exploited, could 
result in a cybersecurity incident.
    Personal information means:
    (1) Any information that can be used, alone or in conjunction with 
any other information, to identify an individual, such as name, date of 
birth, place of birth, telephone number, street address, mother's 
maiden name, Social Security number, driver's license number, 
electronic mail address, account number, account password, biometric 
records or other nonpublic authentication information; or
    (2) Any other non-public information regarding a client's account.
* * * * *
0
25. Section 279.10 is added to read as follows:


Sec.  279.10  Form ADV-C, investment adviser cybersecurity incident 
reporting.

    This form shall be filed pursuant to Sec.  275.204-6 of this 
chapter (Rule 204-6) by investment advisers registered or required to 
register under section 203 of the Act (15 U.S.C. 80b-3).

    By the Commission.

    Dated: February 9, 2022.
Vanessa A. Countryman,
Secretary.
    Note: The following appendix will not, appear in the Code of 
Federal Regulations.

FORM ADV-C

INVESTMENT ADVISER CYBERSECURITY INCIDENT REPORT PURSUANT TO RULE 204-6 
[17 CFR 275.206(4)-6]

    You must submit this Form ADV-C if you are registered with the 
Commission as an investment adviser within 48 hours after having a 
reasonable basis to conclude that a significant adviser cybersecurity 
incident or a significant fund cybersecurity incident (collectively, 
``significant cybersecurity incident'') has occurred or is occurring in 
accordance with rule 204-6 under the Investment Advisers Act of 1940.

    Check the box that indicates what you would like to do (check all 
that apply):
    [cir] Submit an initial report for a significant cybersecurity 
incident.
    [cir] Submit an amended report for a significant cybersecurity 
incident.
    [cir] Submit a final amended report for a significant cybersecurity 
incident.

(1) Investment Advisers Act SEC File Number: 801-
(2) Your full legal name of investment adviser (if you are a sole 
proprietor, state last, first, middle name):
(3) Name under which your primarily conduct your advisory business, if 
different from above:
(4) Address of principal place of business (number, street, city, 
state, zip code):
(5) Contact information for an individual with respect to the 
significant cybersecurity incident being reported: (Name, title, 
address if different from above, phone, email address)
(6) Adviser reporting a:
    [ballot] Significant adviser cybersecurity incident
(a) If so, does the significant adviser cybersecurity incident involve 
any private funds?
    [ballot] Yes
    [ballot] No
    (1) If yes, list the private fund ID number(s)
    [ballot] Significant fund cybersecurity incident
    (b) If so, list each investment company registered under the 
Investment Company Act of 1940 or company that has elected to be a 
business development company pursuant to section 54 of that Act 
involved and their SEC file number(s) (811 or 814 number) and the 
series ID number of the specific fund if more than one series under the 
SEC file number.
(7) Approximate date(s) the significant cybersecurity incident 
occurred, if known:
(8) Approximate date the significant cybersecurity incident was 
discovered:
(9) Is the significant cybersecurity incident ongoing?
    [ballot] Yes
    [ballot] No
    (a) If not, approximate date the significant cybersecurity incident 
was resolved or any internal investigation pertaining to such incident 
was closed.
(10) Has law enforcement or a government agency (other than the 
Commission) been notified about the significant cybersecurity incident?
    [ballot] Yes
    [ballot] No
    (a) If yes, which law enforcement or government agencies have been 
notified?
(11) Describe the nature and scope of the significant cybersecurity 
incident, including any effect on the relevant entity's critical 
operations:
(12) Describe the actions taken or planned to respond to and recover 
from the significant cybersecurity incident:
(13) Was any data was stolen, altered, or accessed or used for any 
other unauthorized purpose?
    [ballot] Yes
    [ballot] No
    [ballot] Unknown
    (a) If yes, describe the nature and scope of such information, 
including whether it was adviser information or fund information.
(14) Was any personal information lost, stolen, modified, deleted,

[[Page 13595]]

destroyed, or accessed without authorization as a result of the 
significant cybersecurity incident?
    [ballot] Yes
    [ballot] No
    [ballot] Unknown
    (a) If yes, describe the nature and scope of such information.
    (b) If yes, has notification been provided to persons whose 
personal information was lost, stolen, damaged, or accessed without 
authorization?
    [ballot] Yes
    [ballot] No
    (i) If not, are such notifications planned?
    [ballot] Yes
    [ballot] No
    (15) Has disclosure about the significant cybersecurity incident 
been made to the adviser's clients and/or to investors in any 
investment company registered under the Investment Company Act of 1940 
or company that has elected to be a business development company 
pursuant to section 54 of that Act, or private funds advised by the 
adviser involved?
    [ballot] Yes
    [ballot] No
    (a) If yes, when was such disclosure made?
    (b) If not, explain why such disclosure has not be made?
(16) Is the significant cybersecurity incident covered under a 
cybersecurity insurance policy maintained by you or any investment 
company registered under the Investment Company Act of 1940 or company 
that has elected to be a business development company pursuant to 
section 54 of that Act, or any private fund?
    [ballot] Yes
    [ballot] No
    [ballot] Unknown
    (a) If yes, has the insurance company issuing the cybersecurity 
insurance policy been contacted about the significant cybersecurity 
incident?
    [ballot] Yes
    [ballot] No

Definitions

    For the purposes of this Form:
    Adviser information and adviser information systems have the same 
meanings as in rule 206(4)-9 under the Investment Advisers Act of 1940.
    Fund information, fund information systems, and significant fund 
cybersecurity incident have the same meaning as in rule 38a-2 under the 
Investment Company Act of 1940.
    Private fund has the same meaning as in section 202(a)(29) of the 
Investment Advisers Act of 1940.
    Personal information has the same meaning in rule 206(4)-9 under 
the Advisers Act of 1940 or rule 38a-2 under the Investment Company Act 
of 1940, as applicable.
    Significant adviser cybersecurity incident has the meaning as in 
rule 204-6 under the Advisers Act of 1940.

[FR Doc. 2022-03145 Filed 3-8-22; 8:45 am]
BILLING CODE 8011-01-P


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