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Securities and Exchange Commission.
Final rule; technical amendments.
The Securities and Exchange Commission (“Commission”) is adopting technical amendments to various rules and forms under the Securities Act of 1933 (the “Securities Act”), the Investment Company Act of 1940 (the “Investment Company Act”), and the Investment Advisers Act of 1940 (the “Investment Advisers Act”). These revisions make technical changes to correct typographical errors and erroneous cross-references, as well as to clarify instructions.
Effective April 15, 2022.
For the rules and forms under the Investment Advisers Act, Christopher Staley, Branch Chief, at (202) 551-6999, Investment Adviser Regulation Office, Division of Investment Management; and for the rules and forms under the Investment Company Act, Mykaila DeLesDernier or James Maclean, Senior Counsel, at (202) 551-6792, Investment Company Regulation Office, Division of Investment Management, at the Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
The Commission is amending the following rules and forms:
| Commission reference | CFR citation (17 CFR) |
|---|---|
| Regulation S-T: | |
| Rule 405 | 232.405 |
| Securities Act and Investment Company Act 1 : | |
| Form N-2 | 239.14 and 274.11a-1 |
| Form N-1A | 239.15A and 274.11A |
| Form N-3 | 239.17a and 274.11b |
| Form N-5 | 239.24 and 274.5 |
| Investment Company Act: | |
| Rule 18f-4 | 270.18f-4 |
| Rule 20a-1 | 270.20a-1 |
| Rule 22c-1 | 270.22c-1 |
| Rule 22e-3 | 270.22e-3 |
| Rule 32a-1 | 270.32a-1 |
| Form N-CEN | 274.101 |
| Form N-PX | 274.129 |
| Form N-MFP | 274.201 |
| Investment Advisers Act 2 : | |
| Form ADV | 279.1 |
| Rule 204-2 | 275.204-2 |
| Rule 204-3 | 275.204-3 |
| ( printed page 22445) | |
| Rule 204-5 | 275.204-5 |
| Rule 206(4)-1 | 275.206(4)-1 |
The amendments make a number of technical changes to Commission rules and forms. Several of the amendments update or correct cross-references to rules or provisions. For example, the Commission is amending rule 22c-1 to clarify an internal cross-reference in the rule. Likewise, the Commission is amending rule 18f-4, which it adopted in late 2020, to clarify an internal cross-reference in the rule.[3] Similarly, the amendment to rule 22e-3 clarifies cross-references to certain definitions in 17 CFR 270.2a-7 (Investment Company Act rule 2a-7). In addition, we are amending rule 405 to correct an error in provision (b)(3)(iii), which was adopted by the Commission in 2020.[4] This amendment would add a cross-reference to the statutory provisions cited in corresponding Form N-2 instructions that specify structured data tagging requirements. Finally, we are also amending Form N-5 to clarify cross-references to Regulation S-X and to update the reference to Commission fees under section 6(b) of the Securities Act and 17 CFR 230.457 (rule 457 thereunder).
In addition, the Commission is updating forms to clarify instructions and to make typographical and other corrections, including removing outdated information.[5] For example, when the Commission previously amended Form N-CEN to add additional reporting items, the form did not accurately reflect the reporting entities that must respond to the additional items adopted by the Commission.[6] Similarly, when the Commission previously amended Form N-3, it inadvertently omitted the paragraph on the cover page of this form specifying that a registrant is required to disclose the information that the form specifies, that the Commission will make this information public, and that a registrant is not required to respond to the collection of information that the form contains unless the form displays a currently valid Office of Management and Budget control number.[7] This release also makes a technical correction to clarify that the scope of the amendments to the General Instructions to Item 25.2 of Form N-2 described in the Filing Fee Disclosure and Payment Methods Modernization Adopting Release did not remove existing Instructions 6 and 7.[8] Additionally, the Commission is amending the general instructions to Form ADV with respect to when an adviser is required to file an updating amendment to accurately reflect that advisers are required to file an other than annual updating amendment in the event any information reported with respect to relying advisers in Section 4 of Schedule R of Form ADV becomes materially inaccurate. The current instructions incorrectly reference Section 10 of Schedule R, which does not exist.[9]
With respect to the amendments to Forms N-2, N-1A, N-3, N-5, N-CEN, N-PX, N-MFP, and ADV, the text of these forms do not, and these amendments will not, appear in the Code of Federal Regulations.
We are adopting these technical amendments under the authority set forth in Section 19(a) of the Securities Act, Section 211(a) of the Investment Advisers Act and Section 38(a) of the Investment Company Act.
For reasons set forth in the preamble, title 17, chapter II of the Code of Federal Regulations is amended as follows:
1. The general authority citation for part 232 continues to read as follows:
2. Amend § 232.405 by revising paragraph (b)(3)(iii) to read as follows:
(b) * * *
(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, and 10.5 of Form N-2 in ( printed page 22446) any registration statement or post-effective amendment thereto filed on Form N-2; or any form of prospectus filed pursuant to § 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 documents filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, to the extent such information appears therein.
3. The authority for part 270 continues to read, in part, as follows:
Section 270.22c-1 also issued under secs. 6(c), 22(c), and 38(a) (15 U.S.C. 80a-6(c), 80a-22(c), and 80a-37(a))
4. Amend § 270.18f-4(a) by revising the definition of “Designated reference portfolio” to read as follows:
Designated reference portfolio means a designated index or the fund's securities portfolio. Notwithstanding the first sentence of the definition of designated index of this section, if the fund's investment objective is to track the performance (including a leverage multiple or inverse multiple) of an unleveraged index, the fund must use that index as its designated reference portfolio.
5. In § 270.20a-1 amend paragraph (a) by removing the words “registered Fund” and adding, in their place, the words “registered fund”.
6. In § 270.22c-1 amend paragraph (b)(1) by removing the words “paragraph (e)” and adding, in their place, the words “paragraph (d)”.
7. In § 270.22e-3 amend paragraph (a)(1) by:
a. Removing the reference “§ 270.2a-7(a)(16)” and adding, in its place, the reference “§ 270.2a-7(a)(14)”; and
b. Removing the reference “§ 270.2a-7(a)(25)” and adding, in its place, the reference “§ 270.2a-7(a)(21)”.
8. In § 270.32a-1 amend the introductory text by removing the words “independent public accounts” and adding, in their place, the words “independent public accountants”.
9. The authority for part 274 continues to read, in part, as follows:
The text of Form N-5 does not, and these amendments will not, appear in the Code of Federal Regulations
10. Amend Form N-5 (referenced in §§ 239.24 and 274.5) by:
a. In General Instruction B removing the first two sentences and adding in their place “Section 6(b) of the 1933 Act [ 15 U.S.C. 77f(b)] and Rule 457 thereunder [17 CFR 230.457] set forth the fee requirements under the 1933 Act. Please refer to the Commission's website at http://www.sec.gov for accurate fee rate information.”;
b. In Item 22(a) removing “Article 5 of Regulation S-X” and adding in its place “Article 6 of Regulation S-X”;
c. In Instruction to Item 27 removing “Subject to Rule 407, the” and adding in its place “The”; and
d. In Item 28 removing “, other than those prepared in accordance with Rule 12-16 of Regulation S-X,”.
The text of Form N-1A does not, and these amendments will not, appear in the Code of Federal Regulations.
11. Amend Form N-1A (referenced in §§ 239.15A and 274.11A) by:
a. In Instruction 2(d) to Item 4(b)(2) removing the term “Item 26(b)(2)” and adding, in its place, the term “Item 26(b)(4)”; and
b. In Item 26(b)(5) removing the term “paragraph (b)(2)” and adding, in its place, the term “paragraph (b)(4)”.
The text of Form N-2 does not, and these amendments will not, appear in the Code of Federal Regulations.
12. Amend Form N-2 (referenced in §§ 239.14 and 274.11a-1) by revising Instruction 16 to Item 4.1 and amending the General Instructions to Item 25.2 by adding Instructions 6 and 7 to read as follows:
16. Compute the “ratio of expenses to average net assets” using the amount of expenses shown in the Registrant's statement of operations for the relevant fiscal year, including increases resulting from complying with paragraph 2(g) of Rule 6-07 of Regulation S-X, and including reductions resulting from complying with paragraphs 2(a) and (f) of Rule 6-07 regarding fee waivers and reimbursements.
6. The Registrant may redact specific provisions or terms of exhibits required to be filed by paragraph k. of this Item if the Registrant customarily and actually treats that information as private or confidential and if the omitted information is not material. If it does so, the Registrant should mark the exhibit index to indicate that portions of the exhibit have been omitted and include a prominent statement on the first page of the redacted exhibit that certain identified information has been excluded from the exhibit because it is both not material and the type that the Registrant treats as private or confidential. The Registrant also must include brackets indicating where the information is omitted from the filed version of the exhibit. If requested by the Commission or its staff, the Registrant must promptly provide on a supplemental basis an unredacted copy of the exhibit and its materiality and privacy or confidentiality analyses. Upon evaluation of the Registrant's supplemental materials, the Commission or its staff may require the Registrant to amend its filing to include in the exhibit any previously redacted information that is not adequately supported by the Registrant's analyses. The Registrant may request confidential treatment of the supplemental material submitted under this Instruction 6 pursuant to Rule 83 of the Commission's Organizational Rules [17 CFR 200.83] ( printed page 22447) while it is in the possession of the Commission or its staff. After completing its review of the supplemental information, the Commission or its staff will return or destroy it, if the Registrant complies with the procedures outlined in Rule 418 under the Securities Act [17 CFR 230.418].
7. Each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language) must include an active link to an exhibit that is filed with the registration statement or, if the exhibit is incorporated by reference, an active hyperlink to the exhibit separately filed on EDGAR. If the registration statement is amended, each amendment must include active hyperlinks to the exhibits required with the amendment.”
The text of Form N-3 does not, and these amendments will not, appear in the Code of Federal Regulations.
13. Amend Form N-3 (referenced in §§ 239.17a and 274.11b), Cover Page, by adding a new paragraph immediately after the sentence [“t]he Commission also may use the information provided on Form N-3 in its regulatory, disclosure review, inspection, and policy making roles” To read as follows:
A Registrant is required to disclose the information specified by Form N-3, and the Commission will make this information public. A Registrant is not required to respond to the collection of information contained in Form N-3 unless the Form displays a currently valid Office of Management and Budget (“OMB”) control number. Please direct comments concerning the accuracy of the information collection burden estimate and any suggestions for reducing the burden to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549. The OMB has reviewed this collection of information under the clearance requirements of 44 U.S.C. 3507.
The text of Form N-CEN does not, and these amendments will not, appear in the Code of Federal Regulations.
14. Amend Form N-CEN (referenced in § 274.101) by replacing the Instruction following Item F.3 and replacing Item F.18 to read as follows:
Item F.3. * * *
Instruction. If the answer to Item F.3 is yes, respond to Item F.12 through Item F.19. If the answer to Item F.3 is no, respond to Item F.4 through Item F.11, and Item F.17 through Item F.19.
Item F. 18. Reliance on rule 12d1-4. Did the Registrant rely on rule 12d1-4 under the Act (17 CFR 270.12d1-4) during the reporting period? [Y/N]
The text of Form N-PX does not, and these amendments will not, appear in the Code of Federal Regulations.
15. Amend Form N-PX (referenced in § 274.129), Cover Page by removing “§§ 239.24 and 274.5 of this chapter” and adding, in its place, “ 17 CFR 239.24 and 274.5”.
The text of Form N-MFP does not, and these amendments will not, appear in the Code of Federal Regulations.
16. Amend Form N-MFP (referenced in § 274.201), in Item A.14.c. by removing the term “A.14.a-c.” and adding, in its place, the term “A.14.a-b.”
17. The authority for part 275 continues to read, in part, as follows:
Section 275.204-2 is also issued under 15 U.S.C. 80b-6.
Section 275.204-5 is also issued under sec. 913, Public Law 111-203, sec. 124 Stat. 1827-28 (2010).
18. In § 275.204-2 amend paragraph (a)(15)(ii) by removing “.” and adding, in its place, “; and”.
19. In § 275.204-3 amend paragraph (b) by removing “Subject to paragraph (g), you” and adding, in its place, “You”.
20. In § 275.204-5 amend paragraph (e)(1) by removing “§ 275.204-1(b)(3)” and adding, in its place “§ 275.204-1(b)”.
21. In § 275.206(4)-1 amend paragraph (b)(2)(i) by removing “,” and adding in its place “;”.
22. The authority for part 279 continues to read, in part, as follows:
The text of Form ADV does not, and these amendments will not, appear in the Code of Federal Regulations.
23. Amend Form ADV (referenced in § 279.1) by:
a. In General Instruction 4 to Form ADV removing “Section 10 of Schedule R” and adding, in its place, “Section 4 of Schedule R”; and
b. In the Instruction to Section 4.B.7 of Schedule R removing “pre-fill Schedule B with the same indirect owners you have provided in Schedule B” and adding, in its place, “pre-fill the chart below with the same indirect owners you have provided in Schedule B for your filing adviser”.
Dated: March 29, 2022.
Vanessa A. Countryman,
Secretary.
3. See Use of Derivatives by Registered Investment Companies and Business Development Companies, Release No. IC-34084 (Nov. 2, 2020) [85 FR 83162 (Dec. 21, 2020)] (“2020 Derivatives Release”). The definition of “designated reference portfolio” in rule 18f-4 includes an erroneous reference to “paragraph (2) of the definition of designated index of this section.” Because the rule's definition of “designated index” includes no paragraph (2), we are adopting an amendment that will update the definition of “designated reference portfolio” to instead reference the first sentence of “designated index.” The 2020 Derivatives Release reflects the Commission's intent to cross-reference in the definition of “designated reference portfolio” this part of the definition of “designated index.” See 2020 Derivatives Release at paragraph accompanying nn.339-340.
Back to Citation4. See Securities Offering Reform for Closed-End Investment Companies, Release No. IC-33836 (Apr. 8, 2020) [85 FR 28853 (May 5, 2020)].
Back to Citation5. See amendments to § 270.20a-1(a); § 270.32a-1; Form N-5; Form ADV; Form N-1A; Form N-PX; Form N-MFP; Form N-CEN; and Form N-2.
Back to Citation6. See Fund of Funds Arrangements, Release No. IC-34045 (Oct. 7, 2020) [85 FR 73924 (Nov. 19, 2020)].
Back to Citation7. See Updated Disclosure Requirements and Summary Prospectus for Variable Annuity and Variable Life Insurance Contracts, Release No. IC-33814 (Mar. 11, 2020) [85 FR 25964 (May 1, 2020)] (“Variable Annuity Summary Prospectus Adopting Release”). The Commission proposed to include this paragraph in Form N-3, however, it was inadvertently omitted in the final rule. See Updated Disclosure Requirements and Summary Prospectus for Variable Annuity and Variable Life Insurance Contracts, Release, No. 33-10569 (Feb. 15, 2019) [83 FR 61730 (Nov. 30, 2018)]. The Commission also included a substantively similar paragraph in the amended versions of Form N-4 and Form N-6 that it adopted. See Variable Annuity Summary Prospectus Adopting Release.
Back to Citation8. See Filing Fee Disclosure and Payment Methods Modernization, Release No. 33-10997 (Oct. 13, 2021) [86 FR 70166 (Dec. 9, 2021)].
Back to Citation9. See Form ADV and Investment Adviser Rules, Release No. IA-4509 (Aug. 25, 2016) [81 FR 60471 (Sep. 1, 2016)].
Back to Citation[FR Doc. 2022-06972 Filed 4-14-22; 8:45 am]
BILLING CODE 8011-01-P