Request for Comments on the Processing Fees Charged by Intermediaries for Distributing Materials Other Than Proxy Materials To Fund Investors, 27055-27061 [2018-12422]

Download as PDF Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices SECURITIES AND EXCHANGE COMMISSION [Release No. 34–83383; File No. SR– NASDAQ–2017–087] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Withdrawal of Proposed Rule Change To Modify the Listing Requirements Related to Special Purpose Acquisition Companies Listing Standards To Reduce Round Lot Holders on Nasdaq Capital Market for Initial Listing From 300 to 150 and Eliminate Public Holders for Continued Listing From 300 to Zero, Require $5 Million in Net Tangible Assets for Initial and Continued Listing on Nasdaq Capital Market, and Impose a Deadline To Demonstrate Compliance With Initial Listing Requirements on All Nasdaq Markets Within 30 Days Following Each Business Combination June 5, 2018. On September 20, 2017, The NASDAQ Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to modify the listing requirements for securities of Special Purpose Acquisition Companies (‘‘SPACs’’) listed on the Nasdaq Capital Market by reducing the number of round lot holders required for initial listing from 300 to 150, and eliminating the continued listing requirement for a minimum number of holders, which is also currently 300, that applies until the SPAC completes one or more business combinations.3 Nasdaq also proposed to require that a SPAC maintain at least $5 million net tangible assets for initial and continued listing of its securities on the Nasdaq Capital Market. Finally, Nasdaq proposed to allow SPACs listed on any of its three listing tiers (Nasdaq Global Select Market, Nasdaq Global Market, and Nasdaq Capital Market) 30 days to demonstrate compliance with initial listing requirements following each business combination.4 The proposed rule change was published for comment in the Federal Register on October 11, 2017.5 In daltland on DSKBBV9HB2PROD with NOTICES 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Nasdaq Rule IM–5101–2(b). 4 The Exchange also proposed to delete a duplicative paragraph from the rule text and alter the paragraph’s formatting within certain provisions in order to enhance the rule’s readability. 5 See Securities Exchange Act Release No. 81816 (October 4, 2017), 82 FR 47269 (October 11, 2017) (‘‘Notice’’). 2 17 VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 response, the Commission received six comments on the proposal.6 On November 22, 2017, the Commission extended the time period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to approve or disapprove the proposed rule change, to January 9, 2018.7 On January 9, 2018, the Commission issued an order instituting proceedings under Section 19(b)(2)(B) of the Act to determine whether to approve or disapprove the proposed rule change (‘‘OIP’’).8 The Commission received three additional comments, one of which included a response from Nasdaq.9 On April 6, 2018, the Commission designated a longer period for the Commission to issue an order approving or disapproving the proposed rule change.10 On June 1, 2018, the Exchange withdrew the proposed rule change (SR–NASDAQ–2017–087). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2018–12431 Filed 6–8–18; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meetings 12:00 p.m. on Wednesday, June 13, 2018. PLACE: SEC’s Atlanta Regional Office, Multipurpose Room 1061. TIME AND DATE: 6 See Letters to Brent J. Fields, Secretary, Commission, from Jeffrey M. Solomon, Chief Executive Officer, Cowen and Company, LLC, dated October 19, 2017 (‘‘Cowen Letter’’); Jeffrey P. Mahoney, General Counsel, Council of Institutional Investors, dated October 25, 2017 (‘‘CII Letter’’); Sean Davy, Managing Director, Capital Markets Division, SIFMA, dated October 31, 2017 (‘‘SIFMA Letter’’); Akin Gump Strauss Hauer & Feld LLP, dated November 1, 2017 (‘‘Akin Gump Letter’’); Steven Levine, Chief Executive Officer, EarlyBirdCapital, Inc., dated November 3, 2017 (‘‘EarlyBird Letter’’); and Christian O. Nagler and David A. Curtiss, Kirkland & Ellis LLP, dated November 9, 2017 (‘‘Kirkland Letter’’). 7 See Securities Exchange Act Release No. 82142 (November 22, 2017), 82 FR 56293 (November 28, 2017). 8 See Securities Exchange Act Release No. 82478 (January 9, 2018), 83 FR 2278 (January 16, 2018). 9 See Letters to Brent J. Fields, Secretary, Commission, from Jeffrey P. Mahoney, General Counsel, Council of Institutional Investors, dated January 25, 2018 (‘‘CII Letter II’’); Paul D. Tropp, Freshfields Bruckhaus Deringer US LLP, dated January 30, 2018 (‘‘Freshfields Letter’’); and Arnold Golub, Deputy General Counsel, Nasdaq, dated February 23, 2018 (‘‘Nasdaq Response Letter’’ or ‘‘Response Letter’’). 10 See Securities Exchange Act Release No. 83010 (April 6, 2018), 83 FR 15880 (April 12, 2018). 11 17 CFR 200.30–3(a)(12). PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 27055 This meeting will be closed to the public. MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present. The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting. Commissioner Jackson, as duty officer, voted to consider the items listed for the closed meeting in closed session. The subject matters of the closed meeting will be: Institution and settlement of injunctive actions; Institution and settlement of administrative proceedings; and Other matters relating to enforcement proceedings. At times, changes in Commission priorities require alterations in the scheduling of meeting items. CONTACT PERSON FOR MORE INFORMATION: For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400. STATUS: Dated: June 6, 2018. Brent J. Fields, Secretary. [FR Doc. 2018–12547 Filed 6–7–18; 11:15 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release Nos. 33–10505; 34–83379; IC– 33114; File No. S7–13–18] Request for Comments on the Processing Fees Charged by Intermediaries for Distributing Materials Other Than Proxy Materials To Fund Investors Securities and Exchange Commission. ACTION: Request for comment. AGENCY: The Securities and Exchange Commission is seeking public comment on the framework under which intermediaries may charge fees for distributing certain non-proxy disclosure materials to fund investors, such as shareholder reports and SUMMARY: E:\FR\FM\11JNN1.SGM 11JNN1 27056 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices prospectuses (‘‘Fund Materials’’), particularly where those fees may be borne by the fund and, in turn, its investors. Comments should be received by October 31, 2018. DATES: Comments may be submitted by any of the following methods: ADDRESSES: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/other.shtml); or • Send an email to rule-comments@ sec.gov. Please include File No. S7–13– 18 on the subject line. Paper Comments • Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number S7–13–18. This 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). 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 10:00 a.m. and 3:00 p.m. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make publicly available. J. Matthew DeLesDernier and John Lee, Senior Counsels, or Michael C. Pawluk, Senior Special Counsel, at (202) 551– 6792, Investment Company Regulation Office, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–8549. FOR FURTHER INFORMATION CONTACT: The Securities and Exchange Commission (‘‘Commission’’) is seeking public comment on the framework for fees charged by intermediaries for the distribution of Fund Materials to investors that are beneficial owners of registered investment company (‘‘fund’’) shares held in ‘‘street name’’ through an intermediary. daltland on DSKBBV9HB2PROD with NOTICES SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 I. Introduction In a contemporaneous release, the Commission adopted rule 30e–3 under the Investment Company Act of 1940 (‘‘Investment Company Act’’).1 The rule provides certain funds with the ability to satisfy their obligations under the Investment Company Act to transmit shareholder reports by making the report and other materials accessible at a website address specified in a notice to investors. In connection with the proposal of rule 30e–3,2 some commenters expressed concerns about the rules of the New York Stock Exchange (‘‘NYSE’’) and other self-regulatory organizations (‘‘SROs’’) such as the Financial Industry Regulatory Authority (‘‘FINRA’’) under which intermediaries are permitted to seek reimbursement for forwarding shareholder reports and other fund materials to investors that are beneficial owners of shares held in ‘‘street name’’ through the intermediary.3 One commenter particularly noted that the NYSE rules could result in increased processing fees that could negate potential costs savings related to the implementation of rule 30e–3.4 In light of these concerns, in 2016 the NYSE submitted certain amendments to its 1 15 U.S.C. 80a–1 et seq.; Optional internet Availability of Investment Company Shareholder Reports, Investment Company Act Release No. 33115 (June 5, 2018). 2 Investment Company Reporting Modernization, Investment Company Act Release No. 31610 (May 20, 2015) [80 FR 33590 (June 12, 2015)]. 3 FINRA has noted that its rules ‘‘correspond, in virtually identical language’’ to NYSE rules already adopted. FINRA Regulatory Notice 14–03 (Jan. 2014), available at https://finra.complinet.com/net_ file_store/new_rulebooks/f/i/FINRANotice_14_ 03.pdf. As discussed below, these rules establish the maximum amount that a member of the respective organization may receive for distributing fund materials to beneficial owners as ‘‘reasonable expenses’’ eligible for reimbursement under rules 14b–1 and 14b–2 under the Exchange Act of 1934 (‘‘Exchange Act’’) [15 U.S.C. 78a et seq.]. See infra Part II.B. Rules of other SROs also correspond to NYSE rules 451 and 465 and FINRA rule 2251 governing the maximum reimbursement that intermediaries are permitted to seek for forwarding Fund Materials, and throughout this Release unless the context requires otherwise, when referring to NYSE and/or FINRA rules, we are also referring to these related SRO rules. See, e.g., NASDAQ rule 2251; NYSE MKT rule 576. Historically when NYSE initiates a rule change with respect to these fees, other SROs, including FINRA, follow with corresponding changes. Additionally, non-broker intermediaries, such as banks, generally rely on the NYSE rule 451 fee schedule. See internet Availability of Proxy Materials, Securities Exchange Act Release No. 55146 (Jan. 22, 2007) [72 FR 4147, 4157 n.118 (Jan. 29, 2007)]. 4 See Comment Letter of the Investment Company Institute (Mar. 14, 2016) on File No. S7–08–15, available at https://www.sec.gov/comments/s7-0815/s70815.shtml (‘‘2016 ICI Comment Letter’’). Stakeholders have also discussed many of the concerns raised in connection with proposed rule 30e–3 in connection with other Commission releases. See infra Parts II–III. PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 rules concerning the application of these processing fees.5 As part of that submission, the NYSE stated that the amendments were intended solely to facilitate the new delivery method for fund shareholder reports permitted by rule 30e–3 as proposed by the Commission.6 The NYSE did not, at that time, propose to make additional changes to its rules to address the other concerns expressed by the commenter and further stated that those concerns should be given separate consideration.7 In the past when we have approved changes to the NYSE’s rules governing processing fees, we have emphasized that we expected the NYSE to continue to periodically review these fees to ensure they are related to reasonable expenses.8 In particular, we observed that such monitoring is essential because technological advances should help to reduce processing costs in the future.9 With the adoption of rule 30e–3, we believe it is appropriate to consider more broadly the overall framework for the fees that broker-dealers and other intermediaries charge funds, as reimbursement for distributing Fund Materials to investors. A number of industry participants have expressed views regarding the appropriateness of the current framework as it relates to Fund Materials—which was designed primarily for delivery of operating company proxy materials. Specifically, commenters have raised issues including the clarity of SRO rules as they apply to Fund Materials; the value of the services provided in exchange for the processing fees assessed; the degree 5 See Exchange Act Release No. 78589 (Aug. 16, 2016) [81 FR 56717 (Aug. 22, 2016)] (Notice) (‘‘2016 Amendments Notice’’). We discuss below the changes made to the NYSE rule. See infra note 30 and accompanying text. 6 2016 Amendments Notice, supra note 5, at 56720. 7 Id.; see also infra note 10 and accompanying text. 8 See Order Approving Proposed Rule Change and Amendment No. 1 Thereto by the New York Stock Exchange, Inc. Amending Its Rules Regarding the Transmission of Proxy and Other Shareholder Communication Material and the Proxy Reimbursement Guidelines, Exchange Act Release No. 45644 (Mar. 25, 2002) [67 FR 15440, 15444 (Apr. 1, 2002)] (‘‘2002 Amendments Approval’’); Order Granting Approval to Proposed Rule Change Amending NYSE Rules 451 and 465, and the Related Provisions of Section 402.10 of the NYSE Listed Company Manual, Which Provide a Schedule for the Reimbursement of Expenses by Issuers to NYSE Member Organizations for the Processing of Proxy Materials and Other Issuer Communications Provided to Investors Holding Securities in Street Name, and to Establish a FiveYear Fee for the Development of an Enhanced Brokers internet Platform, Exchange Act Release No. 70720 (Oct. 18, 2013) [78 FR 63530, 63531 (Oct. 24, 2013)] (‘‘2013 Amendments Approval’’). 9 2002 Amendments Approval, supra note 8, at 63531. E:\FR\FM\11JNN1.SGM 11JNN1 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES to which SROs have tailored fees to reflect delivery of Fund Materials—as distinct from operating company proxy or other materials; the degree to which competition or its absence may affect the amount of the fees assessed; and the appropriate SRO to maintain oversight of such fees.10 The SRO rules governing processing fees and related out-of-pocket expenses are meant to reimburse intermediaries for the ‘‘reasonable expenses’’ they incur in forwarding materials to beneficial shareholders. These reimbursable amounts include the amounts intermediaries pay under contract to third-party service providers who deliver shareholder materials on their behalf. We understand that funds generally pay these reimbursements from their own assets as expenses of the fund.11 We are seeking public comment and additional data on the framework for the fees charged by broker-dealers and other intermediaries for the distribution of Fund Materials to investors to better understand the potential effects on funds and their investors. 10 See, e.g., 2016 ICI Comment Letter, supra note 4; Comment Letter of Ariel Investment Trust (Sept. 8, 2016) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse-2016-55/ nyse201655.shtml (‘‘2016 Ariel Letter’’); Comment Letter of AST Fund Solutions (May 16, 2013) on File No. SR–NYSE–2013–07, available at https:// www.sec.gov/comments/sr-nyse-2013-07/ nyse201307.shtml (‘‘2013 AST Letter’’); Comment Letter of Columbia Mutual Funds (Sept. 15, 2016) on File No. SR–NYSE–2016–55, available at https:// www.sec.gov/comments/sr-nyse-2016-55/ nyse201655.shtml (‘‘2016 Columbia Letter’’); Comment Letter of Dimensional Fund Advisors LP (Sept. 12, 2016) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse2016-55/nyse201655.shtml (‘‘2016 Dimensional Letter’’); Comment Letter of Invesco Advisers, Inc. (Sept. 12, 2016) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse2016-55/nyse201655.shtml (‘‘2016 Invesco Letter’’); Comment Letter of the Investment Company Institute (Sept. 12, 2016) on File No. SR–NYSE– 2016–55, available at https://www.sec.gov/ comments/sr-nyse-2016-55/nyse201655.shtml (‘‘2016 ICI Letter II’’); Comment Letter of the Investment Company Institute (Mar. 15, 2013) on File No. SR–NYSE–2013–07, available at https:// www.sec.gov/comments/sr-nyse-2013-07/ nyse201307.shtml (‘‘2013 ICI Letter’’); Comment Letter of MFS Investment Management (Sept. 12, 2016) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse-2016-55/ nyse201655.shtml (‘‘2016 MFS Letter’’); Comment Letter of T. Rowe Price Associates (Sept. 12, 2016) on File No. SR–NYSE–2016–55, available at https:// www.sec.gov/comments/sr-nyse-2016-55/ nyse201655.shtml (‘‘2016 T. Rowe Letter’’). 11 See Comment Letter of the Independent Directors of the BlackRock Equity-Liquidity Funds (Sept. 27, 2016) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse2016-55/nyse201655.shtml; 2016 ICI Letter II, supra note 10. VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 II. Overview of Current Framework for Forwarding Fund Materials A. ‘‘Street Name’’ Account Arrangements Today, most fund investors are beneficial owners of shares held in ‘‘street name’’ through a ‘‘securities intermediary,’’ such as a broker-dealer or bank.12 When investors hold shares directly with their fund as registered or ‘‘record’’ owners, the fund’s transfer agent maintains the names and addresses of the investors in its records. On the other hand, when an investor’s shares are held in street name through an intermediary, the intermediary maintains the records of beneficial ownership. Such an investor has the ability to instruct its intermediary to withhold his or her personally identifying information from the issuers of securities that he or she owns. A fund required or wishing to communicate with those investors has to rely on the intermediary to either forward the materials to the investor or, at the fund’s request, the intermediary provides a list of non-objecting investors to the fund so that it may do so. To promote direct communication between funds (and other issuers of securities) and their investors, we have adopted rules to require intermediaries to provide funds, at their request, with lists of the names and addresses of investors who did not object to having such information provided to issuers, often referred to as ‘‘non-objecting beneficial owners’’ (or ‘‘NOBOs’’).13 However, many investors whose shares are held in street name accounts are ‘‘objecting beneficial owners’’ (or ‘‘OBOs’’) and may be contacted only through the intermediary (or its agent) 12 For purposes of this release, we use the terms ‘‘intermediary’’ to refer to a ‘‘securities intermediary’’ and ‘‘investors’’ to refer to beneficial owners of fund shares held through intermediaries. See 17 CFR 240.17Ad–20; Concept Release on the U.S. Proxy System, Exchange Act Release No. 62495 (July 14, 2010) [75 FR 42982, 42985 n.30 (July 22, 2010)] (‘‘Proxy Mechanics Concept Release’’); compare rule 22c–2 under the Investment Company Act (recognizing a number of different types of ‘‘financial intermediaries,’’ such as broker-dealers, banks, insurance companies, and retirement plan administrators). Approximately 75 percent of accounts in mutual funds are estimated to be held in street name. See Comment Letter of the Securities Industry and Financial Markets Association (Aug. 11, 2015) on Investment Company Reporting Modernization, File No. S7–08–15, available at https://www.sec.gov/ comments/s7-08-15/s70815.shtml. In 2010, we estimated that 70 to 80 percent of all public issuers’ shares are held in street name. Proxy Mechanics Concept Release, at 42999. 13 17 CFR 240.14b–1(b); 17 CFR 240.14b–2(b). PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 27057 that has the relationship with and is servicing the investor.14 Intermediaries generally outsource their fund delivery obligations to a third-party service provider that provides fulfillment services.15 The fulfillment service provider enters into a contract with the intermediary and acts as a billing and collection agent for that intermediary. B. Current Commission Rules Concerning Delivery or Transmission of Issuer Materials to Intermediated Accounts Under Exchange Act rules 14b–1 and 14b–2, respectively, broker-dealers and banks must distribute certain materials received from an issuer or other soliciting party to their customers who are beneficial owners of securities of that issuer only if the broker-dealers and banks are assured reimbursement of reasonable expenses, both direct and indirect, from the issuer. These rules provide that such materials may include proxy statements, information statements, annual reports, proxy cards, and other proxy soliciting materials.16 In addition, NYSE rule 465 requires NYSE member firms to forward interim reports and other material being sent to stockholders by issuers if the member firm is assured it will be reimbursed for all out-of-pocket costs, including reasonable clerical expenses.17 In the 14 See Proxy Mechanics Concept Release, supra note 12, at 42999. Estimates of shares held by OBOs range from 52 to 60 percent of all shares. Id. Rule 22c–2 under the Investment Company Act, which we adopted to help address abuses associated with short-term trading of fund shares, generally requires funds to enter into shareholder information agreements with certain intermediaries that submit orders to purchase or redeem fund shares on behalf of beneficial owners, but the rule and such agreements do not require the information that would be necessary to enable the fund to deliver or transmit materials directly to beneficial owners. 17 CFR 270.22c–2(a)(2)(i). These agreements provide the fund with certain limited information about transactions by beneficial owners whose shares are held in street name or ‘‘omnibus’’ accounts through those financial intermediaries. 17 CFR 270.22c–2(c)(5). However, the rule does not require this information provided under the terms of a shareholder information agreement to include, for example, the name and address of the beneficial owner. We excepted money market funds, funds that issue securities that are listed on a national securities exchange, and funds that affirmatively permit short-term trading of their securities from the requirements of 22c–2 unless they elect to impose a redemption fee under the rule. 17 CFR 270.22c–2(b). 15 In the proxy context, these service providers are sometimes characterized as ‘‘proxy service providers.’’ See 2013 Amendments Approval, supra note 8. Because the scope of this Request for Comment does not include delivery of fund proxy materials, we generally refer to this type of service provider as a ‘‘fulfillment service provider.’’ 16 17 CFR 240.14b–1(b); 17 CFR 240.14b–2(b). 17 See NYSE rule 465 of listed company manual. E:\FR\FM\11JNN1.SGM 11JNN1 27058 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices fund context, we understand that industry participants have used the framework established by the Exchange Act rules and NYSE rules to deliver materials including prospectuses, summary prospectuses, and annual and semiannual reports to investors. In adopting our rules, we did not determine what constituted ‘‘reasonable expenses’’ that were eligible for reimbursement.18 Rather, as discussed below, the rules of SROs set forth these amounts.19 We believed at the time that SROs would be best positioned to make a fair evaluation and allocation of the costs associated with the distribution of shareholder materials.20 Accordingly, it is the SRO rules that establish the maximum amount that an SRO member may receive for distributing materials to beneficial owners. C. Current NYSE Regulation of Fees for Forwarding Fund Materials to Investors daltland on DSKBBV9HB2PROD with NOTICES Currently, NYSE rules 451 and 465 establish the fee structure for which an NYSE member organization may be reimbursed for expenses incurred in connection with the forwarding of certain issuer materials to investors. Under these rules, members may request reimbursement of expenses at less than the approved rates; however, no member may seek reimbursement at rates higher than the approved rates or for items or services not specifically listed without the prior notification to and consent of the issuer.21 Issuers reimburse the vast majority of firms that distribute their material to investors at the NYSE fee schedule rates because the vast majority of the intermediaries are NYSE members or members of FINRA, which has a rule that is similar to the NYSE’s rules.22 18 Proxy Mechanics Concept Release, supra note 12, at 42995. 19 See, e.g., NYSE rule 451.90(3); Supplementary Material .01(a)(4) to FINRA rule 2251. 20 See Order Granting Accelerated Approval to Amendment No. 1 to Proposed Rule Change Relating to a One-Year Pilot Program for Transmission of Proxy and Other Shareholder Communication Material, Exchange Act Release No. 38406 (Mar. 14, 1997) [62 FR 13922 (Mar. 24, 1997)]. This belief was in part attributed to SRO exchanges acting as ‘‘representatives of both issuers and brokers,’’ however we recognize that FINRA, as the sole national securities association, has often led in promulgating fund-specific SRO rules in certain areas that govern broker-dealers. See id.; infra note 36 and accompanying text. 21 See NYSE Supplementary Material to rule 451.93. Since 1937, the NYSE has required issuers, as a matter of policy, to reimburse its members for out of pocket costs of forwarding materials. See Proxy Mechanics Concept Release, supra note 12, at 42995. Rules formally established reimbursement rates in 1952, and such rules have been revised periodically since then. Id. 22 See Proxy Mechanics Concept Release, supra note 12, at 42995. VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 Currently, the NYSE rules set forth the following processing and other fees that are applied to the forwarding of Fund Materials: • Interim Report Fee. A processing fee up to 15 cents for each account for fund annual reports processed separately from proxy materials, for ‘‘interim reports,’’ and for ‘‘other material.’’ 23 In the fund context, we understand that this rule has been interpreted to apply, for example, to each distribution of fund annual and semiannual reports, as well as annual mailings of summary prospectuses, statutory prospectuses, and other materials sent to investors that are not proxy distributions. • Preference Management Fee. A fee of up to 10 cents per distribution of Fund Materials listed above for each ‘‘suppressed’’ account for which the intermediary has eliminated the need to send the materials in paper format through the mails.24 This may include, for example, documents delivered electronically 25 and ‘‘householded’’ accounts where no distribution takes place.26 This fee is in addition to, and 23 See NYSE rule 451.90(3); Supplementary Material .01(a)(4) to FINRA rule 2251. 24 See NYSE rule 451.90(4); Supplementary Material .01(a)(5) to FINRA rule 2251. For additional discussion of the preference management fee, see infra Part III.D. The preference management fee is, however, higher—up to 32 cents—for certain proxy materials. NYSE rule 451.90(4). 25 See, e.g., Use of Electronic Media for Delivery Purposes, Investment Company Act Release No. 21399 (Oct. 6, 1995) [60 FR 53458 (Oct. 13, 1995)] (providing Commission views on the use of electronic media to deliver information to investors, with a focus on electronic delivery of prospectuses, annual reports, and proxy solicitation materials); Use of Electronic Media by Broker-Dealers, Transfer Agents, and Investment Advisers for Delivery of Information, Investment Company Act Release No. 21945 (May 9, 1996) [61 FR 24644 (May 15, 1996)] (providing Commission views on electronic delivery of required information by broker-dealers, transfer agents, and investment advisers); Use of Electronic Media, Investment Company Act Release No. 24426 (Apr. 28, 2000) [65 FR 25843 (May 4, 2000)] (providing updated interpretive guidance on the use of electronic media to deliver documents on matters such as telephonic and global consent, issuer liability for website content, and legal principles that should be considered in conducting online offerings). 26 See, e.g., rule 154 under the Securities Act of 1933 (permitting householding of prospectuses) [17 CFR 230.154]; rules 30e–1(f) and 30e–2(b) under the Investment Company Act (permitting householding of shareholder reports); rules 14a–3(e) and 14c–3(c) under the Exchange Act (permitting householding of annual reports to security holders, proxy statements and information statements, and Notices of internet Availability of Proxy Statements) [17 CFR 240.14a–3(e); 17 CFR 240.14c–3(c)]. See generally Delivery of Disclosure Documents to Households, Investment Company Act Release No. 24123 (Nov. 4, 1999) [64 FR 62540 (Nov. 16, 1999)] (adopting householding rules with respect to prospectuses and shareholder reports); Delivery of Proxy Statements and Information Statements to Households, Investment Company Act Release No. 24715 (Oct. 27, 2000) [65 FR 65736 (Nov. 2, 2000)] PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 not in lieu of, other fees permitted under the NYSE rule, including the interim report fee.27 Thus, the aggregate processing fee for distributing Fund Materials to suppressed accounts is 25 cents per distribution (15 cents for an interim report fee plus 10 cents for a preference management fee). • Notice and Access Fee. When a fund elects to send proxy materials via the notice and access method, the rules permit an additional notice and access fee.28 The notice and access fee is a tiered fee based on the number of accounts per distribution with a schedule that begins at 25 cents per account and ultimately declines to 5 cents per account.29 The Commission approved amendments specifying the applicability of notice and access fees to distributions of fund shareholder reports under Investment Company Act rule 30e–3.30 For distribution of fund shareholder reports under rule 30e–3, an intermediary may not charge a notice and access fee for any account with respect to which a fund pays a preference management fee for the same distribution.31 In addition to the processing, preference management, and notice and access fees described above, the NYSE rules provide for reimbursement for actual postage costs, the actual cost of envelopes unless they are provided by the fund, and any actual communication expenses incurred in receiving voting returns (in the case of proxy distributions). The NYSE rules also provide for the form of a billing document to be used (adopting householding rules with respect to proxy statements and information statements). 27 See NYSE rule 451.90(4); Supplementary Material .01(a)(5) to FINRA rule 2251. 28 See NYSE rule 451.90(5); Supplementary Material .01(a)(6) to FINRA rule 2251. The notice and access model for the delivery of proxy materials permits issuers to send investors a ‘‘notice of internet availability of proxy materials’’ in lieu of the traditional paper mailing of proxy materials. See 2013 Amendments Approval, supra note 15, at 63535. 29 See NYSE rule 451.90(5); Supplementary Material .01(a)(6) to FINRA rule 2251. Under the schedule, every fund will pay the highest rate (i.e., 25 cents) for the first 10,000 accounts, or portion thereof, with decreasing rates applicable only on additional accounts in the additional tiers, with rates gradually falling to the fee of 5 cents for each account over 500,000 accounts. See id. 30 See Exchange Act Release Nos. 83378 (June 5, 2018) (Order Affirming Action by Delegated Authority Approving SR–NYSE–2016–55 and Discontinuing Stay); 79370 (Nov. 21, 2016) [81 FR 85655 (Nov. 28, 2016)] (Stay Order); 79355 (Nov. 18, 2016) [81 FR 85291 (Nov. 25, 2016)] (Approval Order) (‘‘2016 Amendments Approval’’); supra note 5. For purposes of calculating rates for distribution of fund shareholder reports under rule 30e–3, all accounts holding shares of any class of stock of the applicable fund are aggregated in determining the appropriate pricing tier. See NYSE rule 451.90(5). 31 Id. E:\FR\FM\11JNN1.SGM 11JNN1 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices by its members to seek reimbursement.32 For each category of distribution, such as ‘‘interim reports,’’ the NYSE member specifies the number of reports mailed, the service fee, the number of envelopes not supplied by the issuer used, the U.S. postage, the foreign postage, the cost of mail, and the total cost assessed. III. Discussion and Request for Comment daltland on DSKBBV9HB2PROD with NOTICES A. General Framework As discussed above, we are seeking public comment and additional data on the framework for fees charged by intermediaries for the distribution of shareholder reports and other Fund Materials to investors. Request for Comment • Should the current rules regulating processing fees for distributing materials to beneficial owners apply to forwarding Fund Materials? Do the differences between proxy distributions and nonproxy distributions create significant differences in the costs? Would considering those types of fees separately help improve the evaluation of what constitutes ‘‘reasonable expenses’’ in situations other than proxy distributions? • Are our rules under Section 14 of the Exchange Act (e.g., rules 14b–1 and 14b–2) well-tailored for the distribution of Fund Materials? Would additional or other Commission rules be preferable? If so, what should they provide? For example, should there be a different set of rules that applies to the distribution of all types of fund materials, including proxy materials? Should these rules apply only to certain materials such as shareholder reports and/or prospectuses? • We understand that processing fees and other expenses connected with distributing Fund Materials to investors are considered and treated as direct fund expenses. Is our understanding correct? If not, who pays these fees and expenses and under what circumstances? How are fund payments for forwarding material to beneficial shareholders different from similar payments made by operating companies? Are fund investors more directly affected by the payments than operating company investors? • Is the current fee and remittance structure for the distribution of Fund Materials to investors reasonable? Should the fees be presented differently to better explain how they are applied and allow funds to verify that they are correct? 32 NYSE rule 465.30. VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 27059 • Does the current fee framework encourage, discourage, or not affect fund communications with investors beyond those communications that are required? • Do intermediaries and their agents provide funds with invoices for processing fees assessed on Fund Material distributions? If so, are they sufficiently detailed and transparent for the fund to be able to evaluate their accuracy and whether they have been assessed in a manner consistent with SRO rules? If such invoices are not sufficiently detailed or transparent, what additional information should be provided? Does a fund need information about any remittances that the fulfillment service provider will pay to the intermediary in connection with the services encompassed by the invoice? • Do funds challenge fees assessed by intermediaries or their agents for distribution of Fund Materials on the basis that the fees are not reasonable? If so, under what circumstances? If not, what are the impediments, if any, to doing so? How, if at all, would withholding fees deemed to be unreasonable affect the fund or its investors? • With what frequency do funds make requests for the names and addresses of NOBOs? What percentage of fund beneficial accounts are NOBO accounts? Would low percentages of NOBOs relative to all fund beneficial owners be a disincentive to use such lists? With what frequency do funds make such requests to facilitate the distribution of Fund Materials, or for other purposes? How can more direct communication between funds and NOBOs be facilitated? Do funds currently rely on intermediaries to forward materials to investors rather than requesting a list of NOBOs? Does the current NYSE NOBO fee structure discourage funds from directly sending Fund Materials to NOBOs? noted above, FINRA has adopted rules that generally mirror the previously adopted NYSE rules.35 FINRA also has adopted rules governing broker-dealers’ sales practices and other conduct with respect to funds.36 B. SRO Rules Although the NYSE’s rules currently apply to the forwarding of Fund Materials to investors, the NYSE has observed that it ‘‘has no involvement in the mutual fund industry’’ and that it ‘‘may not be best positioned to take on the regulatory role in setting fees for mutual funds.’’ 33 The NYSE and some commenters have recommended that FINRA should take on this role.34 As MFS Letter, supra note 10; 2016 T. Rowe Letter, supra note 10. 35 Compare FINRA rule 2251 with NYSE rule 451; see supra note 19 and accompanying text. 36 For example, FINRA rules bar broker-dealers who are members from selling funds that impose combined sales charges that exceed certain limits, including ‘‘asset-based sales charges’’ and shareholder servicing fees. FINRA rule 2341; see also Mutual Fund Distribution Fees, Investment Company Act Release No. 29367 (July 21, 2010) [75 FR 47064, 47069 (Aug. 4, 2010)]. FINRA also requires the filing of certain fund advertising material. FINRA rule 2210. 37 See Proxy Mechanics Concept Release, supra note 12, at 42997. 38 See 2013 ICI Letter, supra note 10; Comment Letter of the Securities Transfer Association (Mar. 4, 2013) on File No. SR–NYSE–2013–07, available at https://www.sec.gov/comments/sr-nyse-2013-07/ nyse201307.shtml (‘‘2013 STA Letter’’); but see 33 2016 Amendments Notice, supra note 5, at 56718. 34 Id.; see also 2016 Ariel Letter, supra note 10; 2016 Columbia Letter, supra note 10; 2016 Dimensional Letter, supra note 10; 2016 Invesco Letter, supra note 10; 2016 ICI Comment Letter, supra note 4; 2016 ICI Letter II, supra note 10; 2016 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 Request for Comment • Should FINRA be the SRO for setting the structure and level of processing fees for funds? If not, should another entity other than an SRO be responsible? If so, who? • Are there particular areas of expertise such as funds’ operations, distribution methods, and sales practices that would be most relevant in setting processing fees? If so, what expertise and does this expertise vary from one SRO to another? C. Fulfillment Service Providers We understand that while the fund typically pays the processing fees charged by an intermediary’s fulfillment service provider, the fund has little or no control over the process by which the fulfillment service provider is selected, the terms of the contract between the intermediary and the service provider, or the fees that are ultimately incurred and billed for the distribution of Fund Materials to investors.37 It remains our understanding that the fulfillment service provider generally bills funds the maximum fees allowed by the NYSE rules, and in some cases, the fulfillment service provider is contractually obligated to its intermediary clients to do so. However, commenters have stated that the fees that the fulfillment service provider charges certain intermediary clients for its services sometimes are less than the fees charged to funds on the intermediaries’ behalf. The result is a remittance or rebate from the fulfillment service provider to those intermediaries.38 Some commenters E:\FR\FM\11JNN1.SGM Continued 11JNN1 27060 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices have asserted that fees charged for distribution of materials to intermediated accounts ‘‘far exceed’’ the costs a fund incurs for distributing the same materials to investors whose shares are registered directly with the fund’s transfer agent.39 We are interested in commenters’ views on such remittance and rebate practices. Request for Comment daltland on DSKBBV9HB2PROD with NOTICES • Is the current framework for the distribution of Fund Materials to fund investors—in which the fulfillment service provider is selected by an intermediary but costs incurred are paid by the fund—appropriate? Does the current framework encourage intermediaries to reduce costs for funds? Should funds have more control over the selection of, services billed to, and payments made to fulfillment service providers? What are the potential benefits and drawbacks of such alternatives? • How do fees charged to funds on an intermediary’s behalf for delivery of Fund Materials compare with fees negotiated for comparable services between funds and their service providers for distributions of similar materials to investors holding shares directly with the fund or NOBOs known to the fund? If they are different, are they higher or lower, and by how much? If they are different, why are they different? For example, are the services provided also different, such as in quality or complexity? If so, is the magnitude of the difference in processing methods or services provided commensurate with the difference in fees? Does the magnitude of the difference vary depending on the manner in which the materials are delivered, such as in paper through the mail, by electronic delivery, or through a notice and access system? • What factors may affect the level of competition in the market for fulfillment service providers and their fees? Does the presence or absence of competition affect the level of fees assessed or the size of remittances? • What steps, if any, should the Commission take to promote competition in the market for the distribution of Fund Materials to investors? Comment Letter of Broadridge Financial Solutions (Sep. 12, 2106) on File No. SR–NYSE–2016–55, available at https://www.sec.gov/comments/sr-nyse2016-55/nyse201655-8.pdf. Under rule 14b–1 under the Exchange Act, intermediaries are permitted to seek reimbursement of not only ‘‘direct’’ reasonable expenses but also ‘‘indirect’’ reasonable expenses. See 17 CFR 240.14b–1(c)(2)(i). 39 See supra note 38. VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 • To what extent do intermediaries receive remittances or rebates from fulfillment service providers for nonproxy deliveries? What, if any, additional related costs do intermediaries incur in connection with non-proxy distributions? Do intermediaries and/or their fulfillment service providers inform funds as to the amounts and related costs and services associated with such remittances? D. Preference Management Fee Under the current framework, once a paper mailing is suppressed, the intermediary, or its agent, collects a preference management fee for each distribution of Fund Materials, even though the continuing role of the intermediary, or its agent, with respect to subsequent delivery of documents to investors, is limited to keeping track of the investor’s election. While corporate issuers typically only incur this fee annually in connection with soliciting proxies for their annual meeting, funds often pay this fee multiple times per year for the distribution of a fund’s annual and semiannual reports to shareholders, prospectuses, and other Fund Materials. We understand that tracking an investor’s preferences or elections typically occurs at the account level for all securities held for all types of issuers. The elections, moreover, may also apply to other customer communications, including account statements, confirmation statements, tax documents, and other materials. The costs of maintaining customer elections for those latter materials would not generally be subject to reimbursement by issuers under Exchange Act rules 14b–1 and 14b–2 and NYSE rules 451 and 465, but would instead be borne by the intermediaries themselves.40 In addition, we understand that this fee is applied for each distribution of Fund Materials, not only where the need to send materials in paper format has been eliminated due to the procurement by the intermediary of affirmative consent to electronic delivery of those materials, but also when our rules concerning ‘‘householding’’ are relied upon. Request for Comment 41 • Should the application of the preference management fee for Fund Materials be eliminated on an ongoing basis once an investor elects electronic 40 Rules 14b–1 and 14b–2 also do not require reasonable reimbursement for activities related to sending these materials. 41 None of the questions in this release should be interpreted to reflect any conclusion regarding the appropriate role, if any, of the Commission in setting fees in this area. PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 delivery? Should the fee continue to be permitted to be assessed on a perdistribution basis or with some other frequency, such as annually? How often does a typical investor change a delivery preference once paper deliveries have stopped with respect to that investor? Do delivery preferences depend on type of document? Does the difference in frequency between proxy deliveries and non-proxy deliveries justify separating preference management fees for forwarding of proxy materials from preference management fees for forwarding non-proxy materials? • How, if at all, does the application of the preference management fee affect overall electronic delivery rates for Fund Materials distributions? How, if at all, does it affect the level of processing fees and aggregate costs that funds pay? Is it appropriate that aggregate processing fees (exclusive of expenses such as printing and mailing) are greater for Fund Materials that are ‘‘suppressed’’ (e.g., sent by email or not sent at all in the case of householded accounts) than for those delivered in paper? • What proportion of the total expense of maintaining delivery preference elections is reimbursed by issuers in the context of individual distributions of forwarded materials? What proportion of those total expenses does the securities intermediary bear in the course of sending its own materials to its customers? Are those proportions commensurate with the effort and expense involved in carrying out each type of distribution? • Compared with other issuers, do funds pay more in preference management fees on either a peraccount or per-distribution basis? If so, why? E. Processing Fees to Managed Accounts For certain ‘‘managed accounts,’’ the processing fees are assessed for all accounts, even though the fund materials are only required to be distributed to the investment manager.42 The NYSE rules apply a smaller preference management fee for distributions of certain proxy materials to managed accounts than they do to other types of intermediated accounts. Also, the rules prohibit the application of any fees, including a preference 42 See Proxy Mechanics Concept Release. The NYSE rules provide that, for this purpose a ‘‘managed account’’ ‘‘shall mean an account at [an intermediary] which is invested in a portfolio of securities selected by a professional advisor, and for which the account holder is charged a separate asset-based fee for a range of services which may include ongoing advice, custody[,] and execution services.’’ See NYSE rule 451.90(6). E:\FR\FM\11JNN1.SGM 11JNN1 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Notices management fee, for managed accounts with five or fewer shares.43 Request for Comment • How are processing fees for Fund Materials assessed with respect to managed accounts? Should certain kinds of accounts, such as separately managed accounts, where multiple investors may delegate their investment decisions to a single investment manager, be eligible for further different treatment under the current fee structure? If so, why and how should they be treated differently? • Is the current application of processing fees for distributions of Fund Materials to managed account investors appropriate? Should such distributions to managed accounts be charged at a reduced rate as they are in the proxy distribution context? 44 If so, what rate? • What services do intermediaries or fulfillment service providers typically provide to managed account investors? daltland on DSKBBV9HB2PROD with NOTICES F. Other Arrangements Between a Fund and Intermediary As discussed above, unlike in the operating company context, a ‘‘securities intermediary’’ through which shares are held in street name is also generally a ‘‘financial intermediary’’ under Investment Company Act rule 22c–2. Therefore, a fund is required to contract with the financial intermediary to share information about the submission of purchase and redemption orders.45 In some cases, financial intermediaries may enter into ‘‘sub-transfer agent’’ or ‘‘sub-accounting’’ servicing arrangements with funds to provide administrative or shareholder services to investors whose shares are held in ‘‘omnibus accounts.’’ Many funds also have ‘‘selling’’ agreements with certain intermediaries for the distribution of fund shares.46 An operating company, 43 The preference management fee, which is otherwise permitted to be up to 32 cents for each such distribution per ‘‘suppressed’’ account, is 16 cents instead. NYSE rule 451.90(4). The preference management fee for distributing interim reports, annual reports mailed separately and other material is 10 cents irrespective of whether it is being charged for a regular account or a managed account. 44 See id. 45 See supra note 12. See rule 22c–2 under the Investment Company Act [17 CFR 270.22c–2] (permitting certain funds to impose redemption fees for holders redeeming securities within seven calendar days after purchase). We understand, however, that certain funds whose shares are traded in the secondary market, such as exchange-traded funds and closed-end funds, may be intermediated in the same manner as operating companies and thus do not have the same contractual relationships with the intermediary that many open-end funds do. 46 See generally Division of Investment Management Guidance Update No. 2016–01 (Jan. VerDate Sep<11>2014 19:19 Jun 08, 2018 Jkt 244001 27061 by contrast, may have no direct relationship with the intermediary. Some commenters have questioned whether fund payments under the SRO rules may be duplicative of payments made for similar services under contractual arrangements between a fund and an intermediary.47 to be considered. In addition to investors and funds, we welcome comment from other market participants and particularly welcome statistical, empirical, and other data from commenters that may support their views or support or refute the views or issues raised by other commenters. Request for Comment • Do funds present facts and circumstances that merit differentiating them from other types of issuers as to appropriate levels of processing fees for the distribution of Fund Materials to beneficial owners? How, if at all, are fund payments to intermediaries pursuant to plans adopted by funds pursuant to rule 12b–1 under the Investment Company Act (‘‘12b–1 plans’’), shareholder service agreements, or other similar arrangements with intermediaries relevant considerations in differentiating Fund Material distributions from distributions of operating company materials? • Does this framework result in duplicative payments from a fund to an intermediary for the same services? Does the presence of any such arrangement bear on the appropriateness of the practice of paying remittances? • Do operating companies have arrangements with intermediaries similar to agreements related to 12b–1 plans? • How does the presence of subtransfer agent, sub-accounting, or selling arrangements affect the appropriateness of the payment of a preference management fee or notice and access fees? Are such payments duplicative? • Would some funds be more adversely impacted by potential fee duplication than others? • Are the costs of distributing shareholder reports and other materials to fund investors covered by administrative services, recordkeeping, or other similar contractual arrangements? If the fee schedule did not apply in such cases, would the costs of distributing Fund Materials to fund investors increase or decrease? Why? By the Commission. Dated: June 5, 2018. Brent J. Fields, Secretary. IV. General Request for Comment This request for comment is not intended to limit the scope of comments, views, issues, or approaches 2016) (discussing mutual fund distribution and subaccounting fees); rule 12b–1 under the Investment Company Act [17 CFR 270.12b–1]. 47 See, e.g., 2013 ICI Letter, supra note 10 (questioning, ‘‘for example, the extent to which preference management fees might be duplicative in light of contractual arrangements between [funds] and broker-dealers holding street name accounts that already provide for compensation to the brokerdealer to maintain distribution preferences’’). PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 [FR Doc. 2018–12422 Filed 6–8–18; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–83384; File No. SR– NYSEAMER–2018–05] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Establish an Electronic Price Improvement Auction for Complex Orders June 5, 2018. I. Introduction On February 15, 2018, NYSE American LLC (the ‘‘Exchange’’ or ‘‘NYSE American’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to adopt new Exchange Rule 971.2NY to establish the Complex Customer Best Execution Auction (‘‘Complex CUBE Auction’’ or ‘‘Auction’’), a price improvement auction for Electronic Complex Orders (referred to herein as ‘‘Complex Orders’’), and to make related changes to other rules.3 The proposed rule change was published for comment in the Federal Register on March 7, 2018.4 On April 18, 2018, pursuant to 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 An Electronic Complex Order is any Complex Order, as defined in Exchange Rule 900.3NY(e), that is entered into the Exchange’s electronic order delivery, execution and reporting System. See Exchange Rules 980NY and 900.2NY(48). A Complex Order is ‘‘any order involving the simultaneous purchase and/or sale of two or more different option series in the same underlying security, for the same account, in a ratio that is equal to or greater than one-to-three (.333) and less than or equal to three-to-one (3.00) and for the purpose of executing a particular investment strategy.’’ See Exchange Rule 900.3NY(e). 4 See Securities Exchange Act Release No. 82802 (March 2, 2018), 83 FR 9769 (‘‘Notice’’). 2 17 E:\FR\FM\11JNN1.SGM 11JNN1

Agencies

[Federal Register Volume 83, Number 112 (Monday, June 11, 2018)]
[Notices]
[Pages 27055-27061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12422]


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SECURITIES AND EXCHANGE COMMISSION

[Release Nos. 33-10505; 34-83379; IC-33114; File No. S7-13-18]


Request for Comments on the Processing Fees Charged by 
Intermediaries for Distributing Materials Other Than Proxy Materials To 
Fund Investors

AGENCY: Securities and Exchange Commission.

ACTION: Request for comment.

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SUMMARY: The Securities and Exchange Commission is seeking public 
comment on the framework under which intermediaries may charge fees for 
distributing certain non-proxy disclosure materials to fund investors, 
such as shareholder reports and

[[Page 27056]]

prospectuses (``Fund Materials''), particularly where those fees may be 
borne by the fund and, in turn, its investors.

DATES: Comments should be received by October 31, 2018.

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/other.shtml); or
     Send an email to [email protected]. Please include 
File No. S7-13-18 on the subject line.

Paper Comments

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

All submissions should refer to File Number S7-13-18. This 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). 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 10:00 a.m. and 3:00 p.m. 
All comments received will be posted without change. Persons submitting 
comments are cautioned that we do not redact or edit personal 
identifying information from comment submissions. You should submit 
only information that you wish to make publicly available.

FOR FURTHER INFORMATION CONTACT: J. Matthew DeLesDernier and John Lee, 
Senior Counsels, or Michael C. Pawluk, Senior Special Counsel, at (202) 
551-6792, Investment Company Regulation Office, Division of Investment 
Management, Securities and Exchange Commission, 100 F Street NE, 
Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission 
(``Commission'') is seeking public comment on the framework for fees 
charged by intermediaries for the distribution of Fund Materials to 
investors that are beneficial owners of registered investment company 
(``fund'') shares held in ``street name'' through an intermediary.

I. Introduction

    In a contemporaneous release, the Commission adopted rule 30e-3 
under the Investment Company Act of 1940 (``Investment Company 
Act'').\1\ The rule provides certain funds with the ability to satisfy 
their obligations under the Investment Company Act to transmit 
shareholder reports by making the report and other materials accessible 
at a website address specified in a notice to investors.
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    \1\ 15 U.S.C. 80a-1 et seq.; Optional internet Availability of 
Investment Company Shareholder Reports, Investment Company Act 
Release No. 33115 (June 5, 2018).
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    In connection with the proposal of rule 30e-3,\2\ some commenters 
expressed concerns about the rules of the New York Stock Exchange 
(``NYSE'') and other self-regulatory organizations (``SROs'') such as 
the Financial Industry Regulatory Authority (``FINRA'') under which 
intermediaries are permitted to seek reimbursement for forwarding 
shareholder reports and other fund materials to investors that are 
beneficial owners of shares held in ``street name'' through the 
intermediary.\3\ One commenter particularly noted that the NYSE rules 
could result in increased processing fees that could negate potential 
costs savings related to the implementation of rule 30e-3.\4\ In light 
of these concerns, in 2016 the NYSE submitted certain amendments to its 
rules concerning the application of these processing fees.\5\ As part 
of that submission, the NYSE stated that the amendments were intended 
solely to facilitate the new delivery method for fund shareholder 
reports permitted by rule 30e-3 as proposed by the Commission.\6\ The 
NYSE did not, at that time, propose to make additional changes to its 
rules to address the other concerns expressed by the commenter and 
further stated that those concerns should be given separate 
consideration.\7\
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    \2\ Investment Company Reporting Modernization, Investment 
Company Act Release No. 31610 (May 20, 2015) [80 FR 33590 (June 12, 
2015)].
    \3\ FINRA has noted that its rules ``correspond, in virtually 
identical language'' to NYSE rules already adopted. FINRA Regulatory 
Notice 14-03 (Jan. 2014), available at https://finra.complinet.com/net_file_store/new_rulebooks/f/i/FINRANotice_14_03.pdf. As discussed 
below, these rules establish the maximum amount that a member of the 
respective organization may receive for distributing fund materials 
to beneficial owners as ``reasonable expenses'' eligible for 
reimbursement under rules 14b-1 and 14b-2 under the Exchange Act of 
1934 (``Exchange Act'') [15 U.S.C. 78a et seq.]. See infra Part 
II.B. Rules of other SROs also correspond to NYSE rules 451 and 465 
and FINRA rule 2251 governing the maximum reimbursement that 
intermediaries are permitted to seek for forwarding Fund Materials, 
and throughout this Release unless the context requires otherwise, 
when referring to NYSE and/or FINRA rules, we are also referring to 
these related SRO rules. See, e.g., NASDAQ rule 2251; NYSE MKT rule 
576. Historically when NYSE initiates a rule change with respect to 
these fees, other SROs, including FINRA, follow with corresponding 
changes. Additionally, non-broker intermediaries, such as banks, 
generally rely on the NYSE rule 451 fee schedule. See internet 
Availability of Proxy Materials, Securities Exchange Act Release No. 
55146 (Jan. 22, 2007) [72 FR 4147, 4157 n.118 (Jan. 29, 2007)].
    \4\ See Comment Letter of the Investment Company Institute (Mar. 
14, 2016) on File No. S7-08-15, available at https://www.sec.gov/comments/s7-08-15/s70815.shtml (``2016 ICI Comment Letter''). 
Stakeholders have also discussed many of the concerns raised in 
connection with proposed rule 30e-3 in connection with other 
Commission releases. See infra Parts II-III.
    \5\ See Exchange Act Release No. 78589 (Aug. 16, 2016) [81 FR 
56717 (Aug. 22, 2016)] (Notice) (``2016 Amendments Notice''). We 
discuss below the changes made to the NYSE rule. See infra note 30 
and accompanying text.
    \6\ 2016 Amendments Notice, supra note 5, at 56720.
    \7\ Id.; see also infra note 10 and accompanying text.
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    In the past when we have approved changes to the NYSE's rules 
governing processing fees, we have emphasized that we expected the NYSE 
to continue to periodically review these fees to ensure they are 
related to reasonable expenses.\8\ In particular, we observed that such 
monitoring is essential because technological advances should help to 
reduce processing costs in the future.\9\
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    \8\ See Order Approving Proposed Rule Change and Amendment No. 1 
Thereto by the New York Stock Exchange, Inc. Amending Its Rules 
Regarding the Transmission of Proxy and Other Shareholder 
Communication Material and the Proxy Reimbursement Guidelines, 
Exchange Act Release No. 45644 (Mar. 25, 2002) [67 FR 15440, 15444 
(Apr. 1, 2002)] (``2002 Amendments Approval''); Order Granting 
Approval to Proposed Rule Change Amending NYSE Rules 451 and 465, 
and the Related Provisions of Section 402.10 of the NYSE Listed 
Company Manual, Which Provide a Schedule for the Reimbursement of 
Expenses by Issuers to NYSE Member Organizations for the Processing 
of Proxy Materials and Other Issuer Communications Provided to 
Investors Holding Securities in Street Name, and to Establish a 
Five-Year Fee for the Development of an Enhanced Brokers internet 
Platform, Exchange Act Release No. 70720 (Oct. 18, 2013) [78 FR 
63530, 63531 (Oct. 24, 2013)] (``2013 Amendments Approval'').
    \9\ 2002 Amendments Approval, supra note 8, at 63531.
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    With the adoption of rule 30e-3, we believe it is appropriate to 
consider more broadly the overall framework for the fees that broker-
dealers and other intermediaries charge funds, as reimbursement for 
distributing Fund Materials to investors. A number of industry 
participants have expressed views regarding the appropriateness of the 
current framework as it relates to Fund Materials--which was designed 
primarily for delivery of operating company proxy materials. 
Specifically, commenters have raised issues including the clarity of 
SRO rules as they apply to Fund Materials; the value of the services 
provided in exchange for the processing fees assessed; the degree

[[Page 27057]]

to which SROs have tailored fees to reflect delivery of Fund 
Materials--as distinct from operating company proxy or other materials; 
the degree to which competition or its absence may affect the amount of 
the fees assessed; and the appropriate SRO to maintain oversight of 
such fees.\10\
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    \10\ See, e.g., 2016 ICI Comment Letter, supra note 4; Comment 
Letter of Ariel Investment Trust (Sept. 8, 2016) on File No. SR-
NYSE-2016-55, available at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml (``2016 Ariel Letter''); Comment Letter of 
AST Fund Solutions (May 16, 2013) on File No. SR-NYSE-2013-07, 
available at https://www.sec.gov/comments/sr-nyse-2013-07/nyse201307.shtml (``2013 AST Letter''); Comment Letter of Columbia 
Mutual Funds (Sept. 15, 2016) on File No. SR-NYSE-2016-55, available 
at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml 
(``2016 Columbia Letter''); Comment Letter of Dimensional Fund 
Advisors LP (Sept. 12, 2016) on File No. SR-NYSE-2016-55, available 
at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml 
(``2016 Dimensional Letter''); Comment Letter of Invesco Advisers, 
Inc. (Sept. 12, 2016) on File No. SR-NYSE-2016-55, available at 
https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml 
(``2016 Invesco Letter''); Comment Letter of the Investment Company 
Institute (Sept. 12, 2016) on File No. SR-NYSE-2016-55, available at 
https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml 
(``2016 ICI Letter II''); Comment Letter of the Investment Company 
Institute (Mar. 15, 2013) on File No. SR-NYSE-2013-07, available at 
https://www.sec.gov/comments/sr-nyse-2013-07/nyse201307.shtml 
(``2013 ICI Letter''); Comment Letter of MFS Investment Management 
(Sept. 12, 2016) on File No. SR-NYSE-2016-55, available at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml (``2016 MFS 
Letter''); Comment Letter of T. Rowe Price Associates (Sept. 12, 
2016) on File No. SR-NYSE-2016-55, available at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml (``2016 T. Rowe Letter'').
---------------------------------------------------------------------------

    The SRO rules governing processing fees and related out-of-pocket 
expenses are meant to reimburse intermediaries for the ``reasonable 
expenses'' they incur in forwarding materials to beneficial 
shareholders. These reimbursable amounts include the amounts 
intermediaries pay under contract to third-party service providers who 
deliver shareholder materials on their behalf. We understand that funds 
generally pay these reimbursements from their own assets as expenses of 
the fund.\11\ We are seeking public comment and additional data on the 
framework for the fees charged by broker-dealers and other 
intermediaries for the distribution of Fund Materials to investors to 
better understand the potential effects on funds and their investors.
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    \11\ See Comment Letter of the Independent Directors of the 
BlackRock Equity-Liquidity Funds (Sept. 27, 2016) on File No. SR-
NYSE-2016-55, available at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655.shtml; 2016 ICI Letter II, supra note 10.
---------------------------------------------------------------------------

II. Overview of Current Framework for Forwarding Fund Materials

A. ``Street Name'' Account Arrangements

    Today, most fund investors are beneficial owners of shares held in 
``street name'' through a ``securities intermediary,'' such as a 
broker-dealer or bank.\12\ When investors hold shares directly with 
their fund as registered or ``record'' owners, the fund's transfer 
agent maintains the names and addresses of the investors in its 
records. On the other hand, when an investor's shares are held in 
street name through an intermediary, the intermediary maintains the 
records of beneficial ownership. Such an investor has the ability to 
instruct its intermediary to withhold his or her personally identifying 
information from the issuers of securities that he or she owns.
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    \12\ For purposes of this release, we use the terms 
``intermediary'' to refer to a ``securities intermediary'' and 
``investors'' to refer to beneficial owners of fund shares held 
through intermediaries. See 17 CFR 240.17Ad-20; Concept Release on 
the U.S. Proxy System, Exchange Act Release No. 62495 (July 14, 
2010) [75 FR 42982, 42985 n.30 (July 22, 2010)] (``Proxy Mechanics 
Concept Release''); compare rule 22c-2 under the Investment Company 
Act (recognizing a number of different types of ``financial 
intermediaries,'' such as broker-dealers, banks, insurance 
companies, and retirement plan administrators).
    Approximately 75 percent of accounts in mutual funds are 
estimated to be held in street name. See Comment Letter of the 
Securities Industry and Financial Markets Association (Aug. 11, 
2015) on Investment Company Reporting Modernization, File No. S7-08-
15, available at https://www.sec.gov/comments/s7-08-15/s70815.shtml. 
In 2010, we estimated that 70 to 80 percent of all public issuers' 
shares are held in street name. Proxy Mechanics Concept Release, at 
42999.
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    A fund required or wishing to communicate with those investors has 
to rely on the intermediary to either forward the materials to the 
investor or, at the fund's request, the intermediary provides a list of 
non-objecting investors to the fund so that it may do so. To promote 
direct communication between funds (and other issuers of securities) 
and their investors, we have adopted rules to require intermediaries to 
provide funds, at their request, with lists of the names and addresses 
of investors who did not object to having such information provided to 
issuers, often referred to as ``non-objecting beneficial owners'' (or 
``NOBOs'').\13\ However, many investors whose shares are held in street 
name accounts are ``objecting beneficial owners'' (or ``OBOs'') and may 
be contacted only through the intermediary (or its agent) that has the 
relationship with and is servicing the investor.\14\
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    \13\ 17 CFR 240.14b-1(b); 17 CFR 240.14b-2(b).
    \14\ See Proxy Mechanics Concept Release, supra note 12, at 
42999. Estimates of shares held by OBOs range from 52 to 60 percent 
of all shares. Id.
    Rule 22c-2 under the Investment Company Act, which we adopted to 
help address abuses associated with short-term trading of fund 
shares, generally requires funds to enter into shareholder 
information agreements with certain intermediaries that submit 
orders to purchase or redeem fund shares on behalf of beneficial 
owners, but the rule and such agreements do not require the 
information that would be necessary to enable the fund to deliver or 
transmit materials directly to beneficial owners. 17 CFR 270.22c-
2(a)(2)(i). These agreements provide the fund with certain limited 
information about transactions by beneficial owners whose shares are 
held in street name or ``omnibus'' accounts through those financial 
intermediaries. 17 CFR 270.22c-2(c)(5). However, the rule does not 
require this information provided under the terms of a shareholder 
information agreement to include, for example, the name and address 
of the beneficial owner. We excepted money market funds, funds that 
issue securities that are listed on a national securities exchange, 
and funds that affirmatively permit short-term trading of their 
securities from the requirements of 22c-2 unless they elect to 
impose a redemption fee under the rule. 17 CFR 270.22c-2(b).
---------------------------------------------------------------------------

    Intermediaries generally outsource their fund delivery obligations 
to a third-party service provider that provides fulfillment 
services.\15\ The fulfillment service provider enters into a contract 
with the intermediary and acts as a billing and collection agent for 
that intermediary.
---------------------------------------------------------------------------

    \15\ In the proxy context, these service providers are sometimes 
characterized as ``proxy service providers.'' See 2013 Amendments 
Approval, supra note 8. Because the scope of this Request for 
Comment does not include delivery of fund proxy materials, we 
generally refer to this type of service provider as a ``fulfillment 
service provider.''
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B. Current Commission Rules Concerning Delivery or Transmission of 
Issuer Materials to Intermediated Accounts

    Under Exchange Act rules 14b-1 and 14b-2, respectively, broker-
dealers and banks must distribute certain materials received from an 
issuer or other soliciting party to their customers who are beneficial 
owners of securities of that issuer only if the broker-dealers and 
banks are assured reimbursement of reasonable expenses, both direct and 
indirect, from the issuer. These rules provide that such materials may 
include proxy statements, information statements, annual reports, proxy 
cards, and other proxy soliciting materials.\16\ In addition, NYSE rule 
465 requires NYSE member firms to forward interim reports and other 
material being sent to stockholders by issuers if the member firm is 
assured it will be reimbursed for all out-of-pocket costs, including 
reasonable clerical expenses.\17\ In the

[[Page 27058]]

fund context, we understand that industry participants have used the 
framework established by the Exchange Act rules and NYSE rules to 
deliver materials including prospectuses, summary prospectuses, and 
annual and semiannual reports to investors.
---------------------------------------------------------------------------

    \16\ 17 CFR 240.14b-1(b); 17 CFR 240.14b-2(b).
    \17\ See NYSE rule 465 of listed company manual.
---------------------------------------------------------------------------

    In adopting our rules, we did not determine what constituted 
``reasonable expenses'' that were eligible for reimbursement.\18\ 
Rather, as discussed below, the rules of SROs set forth these 
amounts.\19\ We believed at the time that SROs would be best positioned 
to make a fair evaluation and allocation of the costs associated with 
the distribution of shareholder materials.\20\ Accordingly, it is the 
SRO rules that establish the maximum amount that an SRO member may 
receive for distributing materials to beneficial owners.
---------------------------------------------------------------------------

    \18\ Proxy Mechanics Concept Release, supra note 12, at 42995.
    \19\ See, e.g., NYSE rule 451.90(3); Supplementary Material 
.01(a)(4) to FINRA rule 2251.
    \20\ See Order Granting Accelerated Approval to Amendment No. 1 
to Proposed Rule Change Relating to a One-Year Pilot Program for 
Transmission of Proxy and Other Shareholder Communication Material, 
Exchange Act Release No. 38406 (Mar. 14, 1997) [62 FR 13922 (Mar. 
24, 1997)]. This belief was in part attributed to SRO exchanges 
acting as ``representatives of both issuers and brokers,'' however 
we recognize that FINRA, as the sole national securities 
association, has often led in promulgating fund-specific SRO rules 
in certain areas that govern broker-dealers. See id.; infra note 36 
and accompanying text.
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C. Current NYSE Regulation of Fees for Forwarding Fund Materials to 
Investors

    Currently, NYSE rules 451 and 465 establish the fee structure for 
which an NYSE member organization may be reimbursed for expenses 
incurred in connection with the forwarding of certain issuer materials 
to investors. Under these rules, members may request reimbursement of 
expenses at less than the approved rates; however, no member may seek 
reimbursement at rates higher than the approved rates or for items or 
services not specifically listed without the prior notification to and 
consent of the issuer.\21\ Issuers reimburse the vast majority of firms 
that distribute their material to investors at the NYSE fee schedule 
rates because the vast majority of the intermediaries are NYSE members 
or members of FINRA, which has a rule that is similar to the NYSE's 
rules.\22\
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    \21\ See NYSE Supplementary Material to rule 451.93. Since 1937, 
the NYSE has required issuers, as a matter of policy, to reimburse 
its members for out of pocket costs of forwarding materials. See 
Proxy Mechanics Concept Release, supra note 12, at 42995. Rules 
formally established reimbursement rates in 1952, and such rules 
have been revised periodically since then. Id.
    \22\ See Proxy Mechanics Concept Release, supra note 12, at 
42995.
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    Currently, the NYSE rules set forth the following processing and 
other fees that are applied to the forwarding of Fund Materials:
     Interim Report Fee. A processing fee up to 15 cents for 
each account for fund annual reports processed separately from proxy 
materials, for ``interim reports,'' and for ``other material.'' \23\ In 
the fund context, we understand that this rule has been interpreted to 
apply, for example, to each distribution of fund annual and semiannual 
reports, as well as annual mailings of summary prospectuses, statutory 
prospectuses, and other materials sent to investors that are not proxy 
distributions.
---------------------------------------------------------------------------

    \23\ See NYSE rule 451.90(3); Supplementary Material .01(a)(4) 
to FINRA rule 2251.
---------------------------------------------------------------------------

     Preference Management Fee. A fee of up to 10 cents per 
distribution of Fund Materials listed above for each ``suppressed'' 
account for which the intermediary has eliminated the need to send the 
materials in paper format through the mails.\24\ This may include, for 
example, documents delivered electronically \25\ and ``householded'' 
accounts where no distribution takes place.\26\ This fee is in addition 
to, and not in lieu of, other fees permitted under the NYSE rule, 
including the interim report fee.\27\ Thus, the aggregate processing 
fee for distributing Fund Materials to suppressed accounts is 25 cents 
per distribution (15 cents for an interim report fee plus 10 cents for 
a preference management fee).
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    \24\ See NYSE rule 451.90(4); Supplementary Material .01(a)(5) 
to FINRA rule 2251. For additional discussion of the preference 
management fee, see infra Part III.D. The preference management fee 
is, however, higher--up to 32 cents--for certain proxy materials. 
NYSE rule 451.90(4).
    \25\ See, e.g., Use of Electronic Media for Delivery Purposes, 
Investment Company Act Release No. 21399 (Oct. 6, 1995) [60 FR 53458 
(Oct. 13, 1995)] (providing Commission views on the use of 
electronic media to deliver information to investors, with a focus 
on electronic delivery of prospectuses, annual reports, and proxy 
solicitation materials); Use of Electronic Media by Broker-Dealers, 
Transfer Agents, and Investment Advisers for Delivery of 
Information, Investment Company Act Release No. 21945 (May 9, 1996) 
[61 FR 24644 (May 15, 1996)] (providing Commission views on 
electronic delivery of required information by broker-dealers, 
transfer agents, and investment advisers); Use of Electronic Media, 
Investment Company Act Release No. 24426 (Apr. 28, 2000) [65 FR 
25843 (May 4, 2000)] (providing updated interpretive guidance on the 
use of electronic media to deliver documents on matters such as 
telephonic and global consent, issuer liability for website content, 
and legal principles that should be considered in conducting online 
offerings).
    \26\ See, e.g., rule 154 under the Securities Act of 1933 
(permitting householding of prospectuses) [17 CFR 230.154]; rules 
30e-1(f) and 30e-2(b) under the Investment Company Act (permitting 
householding of shareholder reports); rules 14a-3(e) and 14c-3(c) 
under the Exchange Act (permitting householding of annual reports to 
security holders, proxy statements and information statements, and 
Notices of internet Availability of Proxy Statements) [17 CFR 
240.14a-3(e); 17 CFR 240.14c-3(c)]. See generally Delivery of 
Disclosure Documents to Households, Investment Company Act Release 
No. 24123 (Nov. 4, 1999) [64 FR 62540 (Nov. 16, 1999)] (adopting 
householding rules with respect to prospectuses and shareholder 
reports); Delivery of Proxy Statements and Information Statements to 
Households, Investment Company Act Release No. 24715 (Oct. 27, 2000) 
[65 FR 65736 (Nov. 2, 2000)] (adopting householding rules with 
respect to proxy statements and information statements).
    \27\ See NYSE rule 451.90(4); Supplementary Material .01(a)(5) 
to FINRA rule 2251.
---------------------------------------------------------------------------

     Notice and Access Fee. When a fund elects to send proxy 
materials via the notice and access method, the rules permit an 
additional notice and access fee.\28\ The notice and access fee is a 
tiered fee based on the number of accounts per distribution with a 
schedule that begins at 25 cents per account and ultimately declines to 
5 cents per account.\29\ The Commission approved amendments specifying 
the applicability of notice and access fees to distributions of fund 
shareholder reports under Investment Company Act rule 30e-3.\30\ For 
distribution of fund shareholder reports under rule 30e-3, an 
intermediary may not charge a notice and access fee for any account 
with respect to which a fund pays a preference management fee for the 
same distribution.\31\
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    \28\ See NYSE rule 451.90(5); Supplementary Material .01(a)(6) 
to FINRA rule 2251. The notice and access model for the delivery of 
proxy materials permits issuers to send investors a ``notice of 
internet availability of proxy materials'' in lieu of the 
traditional paper mailing of proxy materials. See 2013 Amendments 
Approval, supra note 15, at 63535.
    \29\ See NYSE rule 451.90(5); Supplementary Material .01(a)(6) 
to FINRA rule 2251. Under the schedule, every fund will pay the 
highest rate (i.e., 25 cents) for the first 10,000 accounts, or 
portion thereof, with decreasing rates applicable only on additional 
accounts in the additional tiers, with rates gradually falling to 
the fee of 5 cents for each account over 500,000 accounts. See id.
    \30\ See Exchange Act Release Nos. 83378 (June 5, 2018) (Order 
Affirming Action by Delegated Authority Approving SR-NYSE-2016-55 
and Discontinuing Stay); 79370 (Nov. 21, 2016) [81 FR 85655 (Nov. 
28, 2016)] (Stay Order); 79355 (Nov. 18, 2016) [81 FR 85291 (Nov. 
25, 2016)] (Approval Order) (``2016 Amendments Approval''); supra 
note 5. For purposes of calculating rates for distribution of fund 
shareholder reports under rule 30e-3, all accounts holding shares of 
any class of stock of the applicable fund are aggregated in 
determining the appropriate pricing tier. See NYSE rule 451.90(5).
    \31\ Id.
---------------------------------------------------------------------------

    In addition to the processing, preference management, and notice 
and access fees described above, the NYSE rules provide for 
reimbursement for actual postage costs, the actual cost of envelopes 
unless they are provided by the fund, and any actual communication 
expenses incurred in receiving voting returns (in the case of proxy 
distributions).
    The NYSE rules also provide for the form of a billing document to 
be used

[[Page 27059]]

by its members to seek reimbursement.\32\ For each category of 
distribution, such as ``interim reports,'' the NYSE member specifies 
the number of reports mailed, the service fee, the number of envelopes 
not supplied by the issuer used, the U.S. postage, the foreign postage, 
the cost of mail, and the total cost assessed.
---------------------------------------------------------------------------

    \32\ NYSE rule 465.30.
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III. Discussion and Request for Comment

A. General Framework

    As discussed above, we are seeking public comment and additional 
data on the framework for fees charged by intermediaries for the 
distribution of shareholder reports and other Fund Materials to 
investors.
Request for Comment
     Should the current rules regulating processing fees for 
distributing materials to beneficial owners apply to forwarding Fund 
Materials? Do the differences between proxy distributions and non-proxy 
distributions create significant differences in the costs? Would 
considering those types of fees separately help improve the evaluation 
of what constitutes ``reasonable expenses'' in situations other than 
proxy distributions?
     Are our rules under Section 14 of the Exchange Act (e.g., 
rules 14b-1 and 14b-2) well-tailored for the distribution of Fund 
Materials? Would additional or other Commission rules be preferable? If 
so, what should they provide? For example, should there be a different 
set of rules that applies to the distribution of all types of fund 
materials, including proxy materials? Should these rules apply only to 
certain materials such as shareholder reports and/or prospectuses?
     We understand that processing fees and other expenses 
connected with distributing Fund Materials to investors are considered 
and treated as direct fund expenses. Is our understanding correct? If 
not, who pays these fees and expenses and under what circumstances? How 
are fund payments for forwarding material to beneficial shareholders 
different from similar payments made by operating companies? Are fund 
investors more directly affected by the payments than operating company 
investors?
     Is the current fee and remittance structure for the 
distribution of Fund Materials to investors reasonable? Should the fees 
be presented differently to better explain how they are applied and 
allow funds to verify that they are correct?
     Does the current fee framework encourage, discourage, or 
not affect fund communications with investors beyond those 
communications that are required?
     Do intermediaries and their agents provide funds with 
invoices for processing fees assessed on Fund Material distributions? 
If so, are they sufficiently detailed and transparent for the fund to 
be able to evaluate their accuracy and whether they have been assessed 
in a manner consistent with SRO rules? If such invoices are not 
sufficiently detailed or transparent, what additional information 
should be provided? Does a fund need information about any remittances 
that the fulfillment service provider will pay to the intermediary in 
connection with the services encompassed by the invoice?
     Do funds challenge fees assessed by intermediaries or 
their agents for distribution of Fund Materials on the basis that the 
fees are not reasonable? If so, under what circumstances? If not, what 
are the impediments, if any, to doing so? How, if at all, would 
withholding fees deemed to be unreasonable affect the fund or its 
investors?
     With what frequency do funds make requests for the names 
and addresses of NOBOs? What percentage of fund beneficial accounts are 
NOBO accounts? Would low percentages of NOBOs relative to all fund 
beneficial owners be a disincentive to use such lists? With what 
frequency do funds make such requests to facilitate the distribution of 
Fund Materials, or for other purposes? How can more direct 
communication between funds and NOBOs be facilitated? Do funds 
currently rely on intermediaries to forward materials to investors 
rather than requesting a list of NOBOs? Does the current NYSE NOBO fee 
structure discourage funds from directly sending Fund Materials to 
NOBOs?

B. SRO Rules

    Although the NYSE's rules currently apply to the forwarding of Fund 
Materials to investors, the NYSE has observed that it ``has no 
involvement in the mutual fund industry'' and that it ``may not be best 
positioned to take on the regulatory role in setting fees for mutual 
funds.'' \33\ The NYSE and some commenters have recommended that FINRA 
should take on this role.\34\ As noted above, FINRA has adopted rules 
that generally mirror the previously adopted NYSE rules.\35\ FINRA also 
has adopted rules governing broker-dealers' sales practices and other 
conduct with respect to funds.\36\
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    \33\ 2016 Amendments Notice, supra note 5, at 56718.
    \34\ Id.; see also 2016 Ariel Letter, supra note 10; 2016 
Columbia Letter, supra note 10; 2016 Dimensional Letter, supra note 
10; 2016 Invesco Letter, supra note 10; 2016 ICI Comment Letter, 
supra note 4; 2016 ICI Letter II, supra note 10; 2016 MFS Letter, 
supra note 10; 2016 T. Rowe Letter, supra note 10.
    \35\ Compare FINRA rule 2251 with NYSE rule 451; see supra note 
19 and accompanying text.
    \36\ For example, FINRA rules bar broker-dealers who are members 
from selling funds that impose combined sales charges that exceed 
certain limits, including ``asset-based sales charges'' and 
shareholder servicing fees. FINRA rule 2341; see also Mutual Fund 
Distribution Fees, Investment Company Act Release No. 29367 (July 
21, 2010) [75 FR 47064, 47069 (Aug. 4, 2010)]. FINRA also requires 
the filing of certain fund advertising material. FINRA rule 2210.
---------------------------------------------------------------------------

Request for Comment
     Should FINRA be the SRO for setting the structure and 
level of processing fees for funds? If not, should another entity other 
than an SRO be responsible? If so, who?
     Are there particular areas of expertise such as funds' 
operations, distribution methods, and sales practices that would be 
most relevant in setting processing fees? If so, what expertise and 
does this expertise vary from one SRO to another?

C. Fulfillment Service Providers

    We understand that while the fund typically pays the processing 
fees charged by an intermediary's fulfillment service provider, the 
fund has little or no control over the process by which the fulfillment 
service provider is selected, the terms of the contract between the 
intermediary and the service provider, or the fees that are ultimately 
incurred and billed for the distribution of Fund Materials to 
investors.\37\
---------------------------------------------------------------------------

    \37\ See Proxy Mechanics Concept Release, supra note 12, at 
42997.
---------------------------------------------------------------------------

    It remains our understanding that the fulfillment service provider 
generally bills funds the maximum fees allowed by the NYSE rules, and 
in some cases, the fulfillment service provider is contractually 
obligated to its intermediary clients to do so. However, commenters 
have stated that the fees that the fulfillment service provider charges 
certain intermediary clients for its services sometimes are less than 
the fees charged to funds on the intermediaries' behalf. The result is 
a remittance or rebate from the fulfillment service provider to those 
intermediaries.\38\ Some commenters

[[Page 27060]]

have asserted that fees charged for distribution of materials to 
intermediated accounts ``far exceed'' the costs a fund incurs for 
distributing the same materials to investors whose shares are 
registered directly with the fund's transfer agent.\39\
---------------------------------------------------------------------------

    \38\ See 2013 ICI Letter, supra note 10; Comment Letter of the 
Securities Transfer Association (Mar. 4, 2013) on File No. SR-NYSE-
2013-07, available at https://www.sec.gov/comments/sr-nyse-2013-07/nyse201307.shtml (``2013 STA Letter''); but see Comment Letter of 
Broadridge Financial Solutions (Sep. 12, 2106) on File No. SR-NYSE-
2016-55, available at https://www.sec.gov/comments/sr-nyse-2016-55/nyse201655-8.pdf. Under rule 14b-1 under the Exchange Act, 
intermediaries are permitted to seek reimbursement of not only 
``direct'' reasonable expenses but also ``indirect'' reasonable 
expenses. See 17 CFR 240.14b-1(c)(2)(i).
    \39\ See supra note 38.
---------------------------------------------------------------------------

    We are interested in commenters' views on such remittance and 
rebate practices.
Request for Comment
     Is the current framework for the distribution of Fund 
Materials to fund investors--in which the fulfillment service provider 
is selected by an intermediary but costs incurred are paid by the 
fund--appropriate? Does the current framework encourage intermediaries 
to reduce costs for funds? Should funds have more control over the 
selection of, services billed to, and payments made to fulfillment 
service providers? What are the potential benefits and drawbacks of 
such alternatives?
     How do fees charged to funds on an intermediary's behalf 
for delivery of Fund Materials compare with fees negotiated for 
comparable services between funds and their service providers for 
distributions of similar materials to investors holding shares directly 
with the fund or NOBOs known to the fund? If they are different, are 
they higher or lower, and by how much? If they are different, why are 
they different? For example, are the services provided also different, 
such as in quality or complexity? If so, is the magnitude of the 
difference in processing methods or services provided commensurate with 
the difference in fees? Does the magnitude of the difference vary 
depending on the manner in which the materials are delivered, such as 
in paper through the mail, by electronic delivery, or through a notice 
and access system?
     What factors may affect the level of competition in the 
market for fulfillment service providers and their fees? Does the 
presence or absence of competition affect the level of fees assessed or 
the size of remittances?
     What steps, if any, should the Commission take to promote 
competition in the market for the distribution of Fund Materials to 
investors?
     To what extent do intermediaries receive remittances or 
rebates from fulfillment service providers for non-proxy deliveries? 
What, if any, additional related costs do intermediaries incur in 
connection with non-proxy distributions? Do intermediaries and/or their 
fulfillment service providers inform funds as to the amounts and 
related costs and services associated with such remittances?

D. Preference Management Fee

    Under the current framework, once a paper mailing is suppressed, 
the intermediary, or its agent, collects a preference management fee 
for each distribution of Fund Materials, even though the continuing 
role of the intermediary, or its agent, with respect to subsequent 
delivery of documents to investors, is limited to keeping track of the 
investor's election. While corporate issuers typically only incur this 
fee annually in connection with soliciting proxies for their annual 
meeting, funds often pay this fee multiple times per year for the 
distribution of a fund's annual and semiannual reports to shareholders, 
prospectuses, and other Fund Materials.
    We understand that tracking an investor's preferences or elections 
typically occurs at the account level for all securities held for all 
types of issuers. The elections, moreover, may also apply to other 
customer communications, including account statements, confirmation 
statements, tax documents, and other materials. The costs of 
maintaining customer elections for those latter materials would not 
generally be subject to reimbursement by issuers under Exchange Act 
rules 14b-1 and 14b-2 and NYSE rules 451 and 465, but would instead be 
borne by the intermediaries themselves.\40\ In addition, we understand 
that this fee is applied for each distribution of Fund Materials, not 
only where the need to send materials in paper format has been 
eliminated due to the procurement by the intermediary of affirmative 
consent to electronic delivery of those materials, but also when our 
rules concerning ``householding'' are relied upon.
---------------------------------------------------------------------------

    \40\ Rules 14b-1 and 14b-2 also do not require reasonable 
reimbursement for activities related to sending these materials.
---------------------------------------------------------------------------

Request for Comment \41\
---------------------------------------------------------------------------

    \41\ None of the questions in this release should be interpreted 
to reflect any conclusion regarding the appropriate role, if any, of 
the Commission in setting fees in this area.
---------------------------------------------------------------------------

     Should the application of the preference management fee 
for Fund Materials be eliminated on an ongoing basis once an investor 
elects electronic delivery? Should the fee continue to be permitted to 
be assessed on a per-distribution basis or with some other frequency, 
such as annually? How often does a typical investor change a delivery 
preference once paper deliveries have stopped with respect to that 
investor? Do delivery preferences depend on type of document? Does the 
difference in frequency between proxy deliveries and non-proxy 
deliveries justify separating preference management fees for forwarding 
of proxy materials from preference management fees for forwarding non-
proxy materials?
     How, if at all, does the application of the preference 
management fee affect overall electronic delivery rates for Fund 
Materials distributions? How, if at all, does it affect the level of 
processing fees and aggregate costs that funds pay? Is it appropriate 
that aggregate processing fees (exclusive of expenses such as printing 
and mailing) are greater for Fund Materials that are ``suppressed'' 
(e.g., sent by email or not sent at all in the case of householded 
accounts) than for those delivered in paper?
     What proportion of the total expense of maintaining 
delivery preference elections is reimbursed by issuers in the context 
of individual distributions of forwarded materials? What proportion of 
those total expenses does the securities intermediary bear in the 
course of sending its own materials to its customers? Are those 
proportions commensurate with the effort and expense involved in 
carrying out each type of distribution?
     Compared with other issuers, do funds pay more in 
preference management fees on either a per-account or per-distribution 
basis? If so, why?

E. Processing Fees to Managed Accounts

    For certain ``managed accounts,'' the processing fees are assessed 
for all accounts, even though the fund materials are only required to 
be distributed to the investment manager.\42\ The NYSE rules apply a 
smaller preference management fee for distributions of certain proxy 
materials to managed accounts than they do to other types of 
intermediated accounts. Also, the rules prohibit the application of any 
fees, including a preference

[[Page 27061]]

management fee, for managed accounts with five or fewer shares.\43\
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    \42\ See Proxy Mechanics Concept Release. The NYSE rules provide 
that, for this purpose a ``managed account'' ``shall mean an account 
at [an intermediary] which is invested in a portfolio of securities 
selected by a professional advisor, and for which the account holder 
is charged a separate asset-based fee for a range of services which 
may include ongoing advice, custody[,] and execution services.'' See 
NYSE rule 451.90(6).
    \43\ The preference management fee, which is otherwise permitted 
to be up to 32 cents for each such distribution per ``suppressed'' 
account, is 16 cents instead. NYSE rule 451.90(4). The preference 
management fee for distributing interim reports, annual reports 
mailed separately and other material is 10 cents irrespective of 
whether it is being charged for a regular account or a managed 
account.
---------------------------------------------------------------------------

Request for Comment
     How are processing fees for Fund Materials assessed with 
respect to managed accounts? Should certain kinds of accounts, such as 
separately managed accounts, where multiple investors may delegate 
their investment decisions to a single investment manager, be eligible 
for further different treatment under the current fee structure? If so, 
why and how should they be treated differently?
     Is the current application of processing fees for 
distributions of Fund Materials to managed account investors 
appropriate? Should such distributions to managed accounts be charged 
at a reduced rate as they are in the proxy distribution context? \44\ 
If so, what rate?
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    \44\ See id.
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     What services do intermediaries or fulfillment service 
providers typically provide to managed account investors?

F. Other Arrangements Between a Fund and Intermediary

    As discussed above, unlike in the operating company context, a 
``securities intermediary'' through which shares are held in street 
name is also generally a ``financial intermediary'' under Investment 
Company Act rule 22c-2. Therefore, a fund is required to contract with 
the financial intermediary to share information about the submission of 
purchase and redemption orders.\45\ In some cases, financial 
intermediaries may enter into ``sub-transfer agent'' or ``sub-
accounting'' servicing arrangements with funds to provide 
administrative or shareholder services to investors whose shares are 
held in ``omnibus accounts.'' Many funds also have ``selling'' 
agreements with certain intermediaries for the distribution of fund 
shares.\46\ An operating company, by contrast, may have no direct 
relationship with the intermediary. Some commenters have questioned 
whether fund payments under the SRO rules may be duplicative of 
payments made for similar services under contractual arrangements 
between a fund and an intermediary.\47\
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    \45\ See supra note 12. See rule 22c-2 under the Investment 
Company Act [17 CFR 270.22c-2] (permitting certain funds to impose 
redemption fees for holders redeeming securities within seven 
calendar days after purchase). We understand, however, that certain 
funds whose shares are traded in the secondary market, such as 
exchange-traded funds and closed-end funds, may be intermediated in 
the same manner as operating companies and thus do not have the same 
contractual relationships with the intermediary that many open-end 
funds do.
    \46\ See generally Division of Investment Management Guidance 
Update No. 2016-01 (Jan. 2016) (discussing mutual fund distribution 
and sub-accounting fees); rule 12b-1 under the Investment Company 
Act [17 CFR 270.12b-1].
    \47\ See, e.g., 2013 ICI Letter, supra note 10 (questioning, 
``for example, the extent to which preference management fees might 
be duplicative in light of contractual arrangements between [funds] 
and broker-dealers holding street name accounts that already provide 
for compensation to the broker-dealer to maintain distribution 
preferences'').
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Request for Comment
     Do funds present facts and circumstances that merit 
differentiating them from other types of issuers as to appropriate 
levels of processing fees for the distribution of Fund Materials to 
beneficial owners? How, if at all, are fund payments to intermediaries 
pursuant to plans adopted by funds pursuant to rule 12b-1 under the 
Investment Company Act (``12b-1 plans''), shareholder service 
agreements, or other similar arrangements with intermediaries relevant 
considerations in differentiating Fund Material distributions from 
distributions of operating company materials?
     Does this framework result in duplicative payments from a 
fund to an intermediary for the same services? Does the presence of any 
such arrangement bear on the appropriateness of the practice of paying 
remittances?
     Do operating companies have arrangements with 
intermediaries similar to agreements related to 12b-1 plans?
     How does the presence of sub-transfer agent, sub-
accounting, or selling arrangements affect the appropriateness of the 
payment of a preference management fee or notice and access fees? Are 
such payments duplicative?
     Would some funds be more adversely impacted by potential 
fee duplication than others?
     Are the costs of distributing shareholder reports and 
other materials to fund investors covered by administrative services, 
recordkeeping, or other similar contractual arrangements? If the fee 
schedule did not apply in such cases, would the costs of distributing 
Fund Materials to fund investors increase or decrease? Why?

IV. General Request for Comment

    This request for comment is not intended to limit the scope of 
comments, views, issues, or approaches to be considered. In addition to 
investors and funds, we welcome comment from other market participants 
and particularly welcome statistical, empirical, and other data from 
commenters that may support their views or support or refute the views 
or issues raised by other commenters.

    By the Commission.

    Dated: June 5, 2018.
Brent J. Fields,
Secretary.
[FR Doc. 2018-12422 Filed 6-8-18; 8:45 am]
 BILLING CODE 8011-01-P
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