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[Federal Register Volume 90, Number 19 (Thursday, January 30, 2025)]
[Notices]
[Pages 8545-8546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01934]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-188, OMB Control No. 3235-0212]

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

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

    Notice is hereby given that, pursuant to the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange 
Commission (the ``Commission'') is soliciting comments on the 
collection of information summarized below. The Commission plans to 
submit this existing collection of information to the Office of 
Management and Budget (``OMB'') for extension and approval.
    Section 12(b) of the Investment Company Act of 1940 (the ``Act'') 
\1\ prohibits a registered open-end investment company (``fund''), 
other than a fund complying with Section 10(d) of the Act,\2\ from 
acting as a distributor of securities that it has issued, except 
through an underwriter, in contravention of Commission rules.\3\ Rule 
12b-1 under the Act permits a fund to bear expenses associated with the 
distribution of its shares, provided that the fund complies with 
certain requirements.\4\
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    \1\ 15 U.S.C. 80a-1 et seq.
    \2\ 15 U.S.C. 80a-10(d).
    \3\ 15 U.S.C. 80a-12(b).
    \4\ 17 CFR 270.12b-1.
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    Rule 12b-1 requires, among other things, that the fund adopt a 
written plan describing all material aspects of the proposed financing 
of distribution (``rule 12b-1 plan'').\5\ The rule 12b-1 plan must be 
in writing and approved by the fund's board of directors, and 
separately by the ``independent'' directors (as described in the 
rule).\6\ If the rule 12b-1 plan is being adopted after public offering 
of the fund's voting securities, it must also be approved initially by 
a vote of at least a majority of the fund's outstanding voting 
securities.\7\ Similarly, any material amendments to the rule 12b-1 
plan must be approved by the fund's directors, including the 
independent directors, and any material increase in the amount to be 
spent under the rule 12b-1 plan must be approved by the fund's 
shareholders.\8\ In considering the implementation or continuance of a 
rule 12b-1 plan, the fund's board must request and evaluate information 
reasonably necessary to make an informed decision.\9\ The board also 
must conclude, in the exercise of reasonable business judgment and in 
light of the directors' fiduciary duties, that there is a reasonable 
likelihood that the rule 12b-1 plan will benefit the fund and its 
shareholders.\10\
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    \5\ 17 CFR 270.12b-1(b).
    \6\ 17 CFR 270.12b-1(b)(2).
    \7\ 17 CFR 270.12b-1(b)(1).
    \8\ 17 CFR 270.12b-1(b)(4).
    \9\ 17 CFR 270.12b-1(d).
    \10\ 17 CFR 270.12b-1(e).
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    The rule 12b-1 plan and, in certain instances, any related 
agreements must incorporate certain specified provisions, including 
that: (i) the plan or agreement will continue in effect for more than 
one year only if the board, including the independent directors, 
approve the continuance at least annually; \11\ (ii) the fund's board 
will review quarterly reports of the amounts spent under the plan; \12\ 
and (iii) the plan may be terminated at any time by a majority vote of 
the independent directors or outstanding voting securities.\13\ Rule 
12b-1 also requires the fund to preserve for six years copies of the 
rule 12b-1 plan and any related agreements and reports, as well as 
minutes of board meetings that describe the factors considered and the 
basis for implementing or continuing the rule 12b-1 plan.\14\
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    \11\ 17 CFR 270.12b-1(b)(3)(i).
    \12\ 17 CFR 270.12b-1(b)(3)(ii).
    \13\ 17 CFR 270.12b-1(b)(3)(iii).
    \14\ 17 CFR 270.12b-1(f).
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    Rule 12b-1 also prohibits funds from paying for distribution of 
fund shares with brokerage commissions on their portfolio 
transactions.\15\ The rule requires funds that use broker-dealers that 
sell their shares to also execute their portfolio securities 
transactions, to implement policies and procedures reasonably designed 
to prevent: (i) the persons responsible for selecting broker-dealers to 
effect transactions in fund portfolio securities from taking into 
account broker-dealers' promotional or sales efforts when making those 
decisions; and (ii) a fund, its adviser, or its principal underwriter, 
from entering into any agreement under which the fund directs brokerage 
transactions or revenue generated by those transactions to a broker-
dealer to pay for distribution of the fund's (or any other fund's) 
shares.\16\
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    \15\ 17 CFR 270.12b-1(h)(1).
    \16\ 17 CFR 270.12b-1(h)(2)(ii).
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    The board and shareholder approval requirements of the rule are 
designed to ensure that fund shareholders and directors receive 
adequate information to evaluate and approve a rule 12b-1 plan and, 
thus, are necessary for investor protection. The provisions that 
require the board to be provided with quarterly reports and termination 
authority are designed to ensure that the rule 12b-1 plan continues to 
benefit the fund and its shareholders. The recordkeeping requirements 
of the rule are necessary to enable Commission staff to oversee 
compliance with the rule. The requirement that funds or their advisers 
implement, and fund boards approve, policies and procedures in order to 
prevent persons charged with allocating fund brokerage from taking 
distribution efforts into account is designed to ensure that funds' 
selection of brokers to effect portfolio securities transactions is not 
influenced by considerations about the sale of fund shares.
    Commission staff estimates that there are approximately 5,246 funds 
(for purposes of this estimate, registered open-end investment 
companies or series thereof) that have at least one share class subject 
to a rule 12b-1 plan and approximately 250 fund families with common 
boards of directors that have at least one fund with a 12b-1 plan. The 
Commission further estimates that the annual hour burden for complying 
with the rule is 425 hours for

[[Page 8546]]

each fund family with a portfolio that has a rule 12b-1 plan. We 
therefore estimate that the total hourly burden per year for all funds 
to comply with current information collection requirements under rule 
12b-1 is 106,250 hours. Commission staff estimates that approximately 
three funds per year prepare a proxy in connection with the adoption or 
material amendment of a rule 12b-1 plan. The staff further estimates 
that the cost of each fund's proxy is $30,000. Thus, the total annual 
cost burden of rule 12b-1 to the fund industry is $90,000.
    Estimates of average burden hours and costs are made solely for 
purposes of the Paperwork Reduction Act and are not derived from a 
comprehensive or even representative survey or study of the costs of 
Commission rules and forms. The collections of information required by 
rule 12b-1 are necessary to obtain the benefits of the rule. Notices to 
the Commission will not be kept confidential.
    Written comments are invited on: (a) whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
estimate of the burden of the collection of information; (c) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (d) ways to minimize the burden of the collection of information on 
respondents, including through the use of automated collection 
techniques or other forms of information technology. Consideration will 
be given to comments and suggestions submitted by March 31, 2025.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information under the PRA unless it 
displays a currently valid OMB control number.
    Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Tanya 
Ruttenberg, 100 F Street NE, Washington, DC 20549 or send an email to: 
[email protected].

    Dated: January 24, 2025.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2025-01934 Filed 1-29-25; 8:45 am]
BILLING CODE 8011-01-P
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