Securities Exchange Act of 1934; Release No. 34-84440/October 16, 2018; Investment Company Act of 1940; Release No. IC-33272/October 16, 2018; Order Under Section 15b, Section 17a and Section 36 of the Securities Exchange Act of 1934 Granting Exemptions From Specified Provisions of the Exchange Act and Certain Rules Thereunder; Order Under Section 6(C) and Section 38(A) of the Investment Company Act of 1940 Granting Exemptions From Specified Provisions of the Investment Company Act and Certain Rules Thereunder, 53326-53329 [2018-22931]
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53326
Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Notices
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
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. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. 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 available publicly. All
submissions should refer to File
Number SR–NYSE–2018–48 and should
be submitted on or before November 13,
2018.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.17
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–22905 Filed 10–19–18; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
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Securities Exchange Act of 1934;
Release No. 34–84440/October 16,
2018; Investment Company Act of
1940; Release No. IC–33272/October
16, 2018; Order Under Section 15b,
Section 17a and Section 36 of the
Securities Exchange Act of 1934
Granting Exemptions From Specified
Provisions of the Exchange Act and
Certain Rules Thereunder; Order
Under Section 6(C) and Section 38(A)
of the Investment Company Act of
1940 Granting Exemptions From
Specified Provisions of the Investment
Company Act and Certain Rules
Thereunder
On October 10, 2018, Hurricane
Michael made landfall on the Florida
Panhandle. The storm and subsequent
flooding has displaced individuals and
businesses and disrupted
communications and transportation
across the affected region. We are
issuing this Order to address the needs
17 17
1 Section 3(a)(34)(B) of the Exchange Act defines
‘‘appropriate regulatory authority.’’
CFR 200.30–3(a)(12).
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of companies and individuals with
obligations under the federal securities
laws who have been directly or
indirectly affected by Hurricane Michael
and its aftermath.
Section 15B(a)(4) of the Securities
Exchange Act of 1934 (the ‘‘Exchange
Act’’) provides that the Securities and
Exchange Commission (the
‘‘Commission’’), by rule or order, upon
its own motion or upon application,
may conditionally or unconditionally
exempt any broker, dealer, municipal
securities dealer or municipal advisor,
or class of brokers, dealers, municipal
securities dealers, or municipal advisors
from any provision of Section 15B or the
rules or regulations thereunder, if the
Commission finds that such exemption
is consistent with the public interest,
the protection of investors and the
purposes of Section 15B.
Section 36 of the Exchange Act
authorizes the Commission, by rule,
regulation or order, to exempt, either
conditionally or unconditionally, any
person, security or transaction, or any
class or classes of persons, securities or
transactions, from any provision or
provisions of the Exchange Act or any
rule or regulation thereunder, to the
extent that such exemption is necessary
or appropriate in the public interest,
and is consistent with the protection of
investors.
Section 17A(c)(1) of the Exchange Act
provides that the appropriate regulatory
agency, by rule or by order, upon its
own motion or upon application, may
conditionally or unconditionally
exempt any person or security or class
of persons or securities from any
provision of Section 17A or any rule or
regulation prescribed under Section
17A, if the appropriate regulatory
agency 1 finds that such exemption is in
the public interest and consistent with
the protection of investors and the
purposes of Section 17A, including the
prompt and accurate clearance and
settlement of securities transactions and
the safeguarding of securities and funds.
Section 17A(c)(1) also requires that the
Commission not object to the use of
exemptive authority in instances where
an appropriate regulatory authority
other than the Commission is providing
exemptive relief.
Section 6(c) of the Investment
Company Act of 1940 (the ‘‘Company
Act’’) provides that the Commission
may conditionally or unconditionally
exempt any person, security or
transaction, or any class or classes of
persons, securities or transactions, from
any provision or provisions of the
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Company Act, or any rule or regulation
thereunder, if and to the extent that
such exemption is necessary or
appropriate in the public interest and
consistent with the protection of
investors and the purposes fairly
intended by the policy and provisions of
the Company Act. Section 38(a) of the
Company Act provides that the
Commission may make, issue, amend
and rescind such rules and regulations
and such orders as are necessary or
appropriate to the exercise of the
powers conferred upon the Commission
under the Company Act.
The necessity for prompt action of the
Commission does not permit prior
notice of the Commission’s action.
I. Time Period for the Relief
The time period for the relief
specified in Sections II and VI of this
Order is as follows:
• With respect to those persons or
entities affected by Hurricane Michael,
for the period from and including
October 10, 2018 to November 21, 2018,
all reports, schedules or forms must be
filed on or before November 23, 2018.
II. Filing Requirements for Registrants
and Other Persons
The lack of communications,
transportation, electricity, facilities and
available staff and professional advisors
as a result of Hurricane Michael could
hamper the efforts of public companies
and other persons with filing obligations
to meet their filing deadlines. At the
same time, investors have an interest in
the timely availability of required
information about these companies and
the activities of persons required to file
schedules and reports with respect to
these companies. While the Commission
believes that the relief from filing
requirements provided by the
exemption below is necessary and
appropriate in the public interest and
consistent with the protection of
investors, we remind public companies
and other persons who are the subjects
of this Order to continue to evaluate
their obligations to make materially
accurate and complete disclosures in
accordance with the anti-fraud
provisions of the federal securities laws.
Accordingly, it is ordered, pursuant to
Section 36 of the Exchange Act, that a
registrant (as defined in Exchange Act
Rule 12b–2) subject to the reporting
requirements of Exchange Act Section
13(a) or 15(d), and any person required
to make any filings with respect to such
a registrant, is exempt from any
requirement to file or furnish materials
with the Commission under Exchange
Act Sections 13(a), 13(d), 13(f), 13(g),
14(a), 14(c), 14(f), 15(d) and 16(a),
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Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Notices
Regulations 13A, 13D–G, 14A, 14C and
15D, and Exchange Act Rules 13f–1,
14f–1 and 16a–3, as applicable, where
the conditions below are satisfied.
Conditions
(a) The registrant or person other than
a registrant is not able to meet a filing
deadline due to Hurricane Michael and
its aftermath;
(b) The registrant or person other than
a registrant files with the Commission
any report, schedule or form required to
be filed during the applicable period of
relief on or before the applicable
deadline set forth in Section I; and
(c) In any such report, schedule or
form filed pursuant to this Order, the
registrant or person other than a
registrant must disclose that it is relying
on this Order and state the reasons why,
in good faith, it could not file such
report, schedule or form on a timely
basis.
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III. Furnishing of Proxy and
Information Statements
The conditions in the areas affected
by Hurricane Michael, including
displacement of thousands of
individuals and the destruction of
property, have prevented and will
continue to prevent the delivery of mail
to the affected areas. In light of these
conditions, we believe that relief is
warranted for those seeking to comply
with our rules imposing requirements to
furnish materials to security holders
when mail delivery is not possible and
that the following exemption is
necessary and appropriate in the public
interest and consistent with the
protection of investors.
Accordingly, it is ordered, pursuant to
Section 36 of the Exchange Act, that a
registrant or any other person is exempt
from the requirements to furnish proxy
statements, annual reports and other
soliciting materials, as applicable (the
‘‘Soliciting Materials’’), and the
requirements of the Exchange Act and
the rules thereunder to furnish
information statements and annual
reports, as applicable (the ‘‘Information
Materials’’), where the conditions below
are satisfied.
Conditions
(a) The registrant’s security holder has
a mailing address located within a zip
code where, as a result of Hurricane
Michael, the registrant’s common carrier
has suspended delivery service of the
type or class customarily used by the
registrant;
(b) The registrant or other person
making a solicitation has followed
normal procedure when furnishing the
Soliciting Materials to the security
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holder in order to ensure that the
Soliciting Materials preceded or
accompanied the proxy, as required by
the rules applicable to the particular
form of Soliciting Materials, or, in the
case of Information Materials, the
registrant has followed normal
procedure when furnishing the
Information Materials to the security
holder in accordance with the rules
applicable to Information Materials; and
(c) If requested by the security holder,
the registrant or other person provides
the Soliciting Materials or Information
Materials by a means reasonably
designed to furnish the Soliciting
Materials or Information Materials to the
security holder.
Any registrant or other person in need
of additional assistance related to
deadlines, delivery obligations or their
public filings, should contact the
Division of Corporation Finance at (202)
551–3500 or at https://tts.sec.gov/cgibin/corp_fin_interpretive.
IV. Transmittal of Annual and SemiAnnual Reports to Investors Required
by the Company Act and the Rules
Thereunder
For reasons similar to those cited in
Section III, we believe that relief is
warranted for the transmittal by
registered management investment
companies and registered unit
investment trusts (collectively,
‘‘registered investment companies’’) of
annual and semi-annual reports to
investors and that the following
exemption is necessary and appropriate
in the public interest and consistent
with the protection of investors.
Accordingly, it is ordered, pursuant to
Sections 6(c) and 38(a) of the Company
Act that for the period from and
including October 10, 2018 to November
21, 2018, a registered investment
company is exempt from the
requirements of Section 30(e) of the
Company Act and Rule 30e–1
thereunder to transmit annual and semiannual reports to investors affected by
Hurricane Michael; and
For the period from and including
October 10, 2018 to November 21, 2018,
a registered unit investment trust is
exempt from the requirements of
Section 30(e) of the Company Act and
Rule 30e–2 thereunder to transmit
annual and semi-annual reports to
unitholders affected by Hurricane
Michael,
Provided that:
(a) The affected investor’s mailing
address for transmittal as listed in the
records of the registered investment
company has a zip code for which the
registered investment company’s
common carrier has suspended mail
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53327
service, as a result of Hurricane
Michael, of the type or class customarily
used by the registered investment
company for transmittal of reports; and
(b) The registered investment
company or other person promptly
transmits the reports to affected
investors: Either (a) if requested by the
investor; or (b) at the earlier of (i)
November 23, 2018 or (ii) the
resumption of the applicable mail
service.
Registered investment companies who
are unable to meet a deadline as
extended by this relief, or in need of
additional assistance regarding issues
under the Company Act, should contact
the Division of Investment Management,
Office of Chief Counsel, at (202) 551–
6825 or IMOCC@sec.gov.
Registered investment advisers in
need of additional assistance regarding
issues under the Investment Advisers
Act of 1940 should contact the Division
of Investment Management, Investment
Adviser Regulation Office, at (202) 551–
6999 or IARDLive@sec.gov.
V. Transfer Agent Compliance With
Sections 17A and 17(f) of the Exchange
Act
Exchange Act Section 17A and
Section 17(f), as well as the rules
promulgated under Sections 17A and
17(f), contain requirements for
registered transfer agents relating to,
among other things, processing
securities transfers, safekeeping of
investor and issuer funds and securities
and maintaining records of investor
ownership. Following the events of
Hurricane Michael, registered transfer
agents located in the affected regions
may have difficulty complying with
some or all of their obligations as
registered transfer agents. In addition,
registered transfer agents located
outside the affected regions may be
unable to conduct business with entities
or security holders inside the regions,
thereby making it difficult to process
securities transactions and corporate
actions in conformance with Section
17A, Section 17(f) and the rules
thereunder.
While the national clearance and
settlement system continues to operate
well in light of these emergencies, the
Commission recognizes that the need to
effect securities transfers and payments
to and from security holders in the
affected regions may present
compliance issues for affected transfer
agents. Therefore, the Commission is
using its authority under Section 17A
and Section 36 of the Exchange Act to
provide temporary relief from certain
regulatory provisions. This Order
temporarily exempts transfer agents
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Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Notices
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from the requirements of: (1) Section
17A of the Exchange Act and Rules
17Ad–1 through 17Ad–20 thereunder;
and (2) Section 17(f) of the Exchange
Act and Rules 17f–1 and 17f–2
thereunder. The Commission finds the
following exemption to be in the public
interest and consistent with the
protection of investors and the purpose
of Section 17A of the Exchange Act,
including the prompt and accurate
clearance and settlement of securities
transactions and the safeguarding of
securities and funds.
Accordingly, it is ordered, pursuant to
Sections 17A and 36 of the Exchange
Act, that any registered transfer agent
that is unable to comply with Section
17A and Section 17(f) of the Exchange
Act and the rules promulgated
thereunder, as applicable, due to
Hurricane Michael and its aftermath is
hereby temporarily exempted from
complying with such provisions for the
period from and including October 10,
2018 to November 21, 2018 where the
conditions below are satisfied.
Conditions
(a) A registered transfer agent relying
on this Order must notify the
Commission in writing by November 21,
2018 of the following:
(1) The transfer agent is relying on
this Order;
(2) A statement of the reasons why, in
good faith, the transfer agent is unable
to comply with Section 17A and Section
17(f) of the Exchange Act and the rules
promulgated thereunder, as applicable;
(3) If the transfer agent knows or
believes that the books and records it is
required to maintain pursuant to
Section 17A and the rules thereunder
were lost, destroyed or materially
damaged, information, to the extent
reasonably available, as to the type of
books and records that were maintained,
the names of the issuers for whom such
books and records were maintained, the
extent of the loss of, or damage to, such
books and records and the steps taken
to ameliorate any such loss or damage;
and
(4) If the transfer agent knows or
believes that funds or securities
belonging to either issuers or security
holders and within its possession were,
for any reason, lost, destroyed, stolen or
unaccounted for, information, to the
extent reasonably available, regarding
the dollar amount of any such funds and
the number of such securities and the
steps taken to ameliorate any such loss;
and
(b) Transfer agents that have custody
or possession of any security holder or
issuer funds or securities shall use all
reasonable means available to ensure
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that all such securities are held in
safekeeping and are handled, in light of
all facts and circumstances, in a manner
reasonably free from risk of theft, loss or
destruction and that all funds are
protected against misuse. To the extent
possible, all security holder or issuer
funds that remain in the custody of the
transfer agent shall be maintained in a
separate bank account held for the
exclusive benefit of security holders
until such funds are properly remitted.
The notification required under (a)
above shall be sent to:
U.S. Securities and Exchange Commission,
Division of Trading and Markets, Office of
Clearance and Settlement, 100 F Street NE,
Washington, DC 20549–7010
The Commission encourages
registered transfer agents and the issuers
for whom they act to inform affected
security holders whom they should
contact concerning their accounts, their
access to funds or securities and other
shareholder concerns. If feasible, issuers
and their transfer agents should place a
notice on their websites or providing
toll free numbers to respond to
inquiries.
Transfer agents who are unable to
meet a deadline as extended by this
relief, or in need of additional
assistance, should contact the Division
of Trading and Markets at (202) 551–
5777 or tradingandmarkets@sec.gov.
VI. Filing of Annual Update to Form
MA as Required by the Exchange Act
and the Rules Thereunder
Section 15B of the Exchange Act and
Rule 15Ba1–5(a)(1) thereunder requires
each registered municipal advisor to file
with the Commission an annual update
to its Form MA. For reasons similar to
those cited in Section II, the
Commission believes that relief is
warranted for the filing with the
Commission of annual updates to Form
MA by registered municipal advisors
and that such relief is consistent with
the public interest, the protection of
investors and the purposes of Section
15B of the Exchange Act.
Accordingly, it is so ordered, pursuant
to Section 15B(a)(4) of the Exchange
Act, that any registered municipal
advisor is exempt from the requirement
to file an annual update to Form MA
with the Commission, as required by
Section 15B of the Exchange Act and
Rule 15Ba1–5(a)(1) thereunder, where
the conditions below are satisfied.
Conditions
(a) The registered municipal advisor
is not able to fulfill its obligation to file
an annual update to the registered
municipal advisor’s Form MA within 90
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days of the end of the registered
municipal advisor’s fiscal year due to
Hurricane Michael;
(b) The registered municipal advisor
files with the Commission its annual
update to Form MA required to be filed
during the applicable period of relief on
or before the applicable deadline set
forth in Section I; and
(c) In any such annual update to its
Form MA filing, the registered
municipal advisor must disclose that it
is relying on this Order and state the
reasons why, in good faith, it could not
file such annual update to Form MA on
a timely basis.
Registered municipal advisors who
are unable to meet a deadline as
extended by this relief or in need of
additional assistance, should contact the
Office of Municipal Securities at (202)
551–5680 or munis@sec.gov.
VII. Independence—Bookkeeping or
Other Services Related to the
Accounting Records or Financial
Statements of the Audit Client
The conditions in the areas affected
by Hurricane Michael, including
displacement of individuals, the
destruction of property and loss or
destruction of corporate records, may
require extraordinary efforts to
reconstruct lost or destroyed accounting
records. The Commission understands
that in these particularly challenging
situations an audit client may look to its
auditor for assistance in reconstruction
of its accounting records because of the
auditor’s knowledge of the client’s
financial systems and records. Under
Section 10A(g)(1) of the Exchange Act
and Rule 2–01(c)(4)(i) of Regulation S–
X, auditors are prohibited from
providing bookkeeping or other services
relating to the accounting records of the
audit client, and in Rule 2–01(c)(4)(i) of
Regulation S–X, these prohibited
services are described as including
‘‘maintaining or preparing the audit
client’s accounting records’’ or
‘‘preparing or originating source data
underlying the audit client’s financial
statements.’’ In light of the conditions in
areas affected by Hurricane Michael,
however, we believe that limited relief
from these prohibitions is warranted for
those registrants and other persons that
are required to comply with the
independence requirements of the
federal securities laws and the
Commission’s rules and regulations
thereunder and that are affected by
those conditions. The Commission finds
the following exemption to be necessary
and appropriate in the public interest
and consistent with the protection of
investors.
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Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Notices
Accordingly, it is ordered, pursuant to
Section 36 of the Exchange Act, that
independent certified public
accountants engaged to provide audit
services to registrants and other persons
required to comply with the
independence requirements of the
federal securities laws and the
Commission’s rules and regulations
thereunder are exempt from the
requirements of Section 10A(g)(1) of the
Exchange Act and Rule 2–01(c)(4)(i) of
Regulation S–X, where the conditions
below are satisfied.
Conditions
(a) Services provided by the auditor
are limited to reconstruction of
previously existing accounting records
that were lost or destroyed as a result of
Hurricane Michael and such services
cease as soon as the audit client’s lost
or destroyed records are reconstructed,
its financial systems are fully
operational and the client can effect an
orderly and efficient transition to
management or other service provider;
and
(b) Services provided by the auditor to
its audit client pursuant to this Order
are subject to pre-approval by the audit
client’s audit committee as required by
Rule 2–01(c)(7) of Regulation S–X.
Auditors or audit clients who are in
need of additional assistance or have
other questions relating to auditor
independence, should contact the Office
of the Chief Accountant at (202) 551–
5300 or OCARequest@sec.gov.
By the Commission.
Brent J. Fields,
Secretary.
[FR Doc. 2018–22931 Filed 10–19–18; 8:45 am]
BILLING CODE P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
33271; 812–14931]
Blackstone Real Estate Income Fund,
et al.
October 16, 2018.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice.
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AGENCY:
Notice of application for an order
under sections 17(d) and 57(i) of the
Investment Company Act of 1940 (the
‘‘Act’’) and rule 17d–1 under the Act to
permit certain joint transactions
otherwise prohibited by sections 17(d)
and 57(a)(4) of the Act and rule 17d–1
under the Act.
Summary of Application: Applicants
request an order to permit business
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development companies (‘‘BDCs’’) and
closed-end management investment
companies to co-invest in portfolio
companies with each other and with
certain affiliated investment funds and
accounts.
Applicants: Blackstone Real Estate
Income Fund (‘‘BREIF’’); Blackstone
Real Estate Income Fund (‘‘BREIF II’’);
Blackstone Real Estate Income Master
Fund (‘‘BREI Master Fund,’’ and,
together with BREIF and BREIF II, the
‘‘BREI Regulated Funds’’); Blackstone
Real Estate Income Advisors L.L.C.
(‘‘BREIA’’), the investment adviser to
the BREI Regulated Funds; the
investment advisers set forth in
Schedule A to the application (together
with BREIA, the ‘‘Blackstone RE
Advisers’’); and the Existing Affiliated
Funds set forth on Schedule A to the
application.1
Filing Dates: The application was
filed on July 20, 2018.
Applicants have agreed to file an
amendment during the notice period,
the substance of which is reflected in
this notice.
Hearing or Notification of Hearing: An
order granting the requested relief will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by writing to the
Commission’s Secretary and serving
applicants with a copy of the request,
personally or by mail. Hearing requests
should be received by the Commission
by 5:30 p.m. on November 12, 2018, and
should be accompanied by proof of
service on applicants, in the form of an
affidavit or, for lawyers, a certificate of
service. Pursuant to rule 0–5 under the
Act, hearing requests should state the
nature of the writer’s interest, any facts
bearing upon the desirability of a
hearing on the matter, the reason for the
request, and the issues contested.
Persons who wish to be notified of a
hearing may request notification by
writing to the Commission’s Secretary.
ADDRESSES: Secretary, U.S. Securities
and Exchange Commission, 100 F St,
NE, Washington, DC 20549–1090.
Applicants: Leon Volchyok, Esq., 345
Park Avenue, New York, New York
10154.
FOR FURTHER INFORMATION CONTACT:
Asen Parachkevov, Senior Counsel, or
David J. Marcinkus, Branch Chief, at
(202) 551–6821 (Chief Counsel’s Office,
Division of Investment Management).
1 The Existing Affiliated Funds, together with
their direct and indirect wholly-owned subsidiaries,
are entities (i) whose primary investment adviser is
a Blackstone RE Adviser and (ii) that either (A)
would be an investment company but for section
3(c)(1), 3(c)(5)(C) or 3(c)(7) of the Act or (B) rely on
the rule 3a–7 exemption thereunder from
investment company status.
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53329
The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
website by searching for the file
number, or for an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
Applicants’ Representations:
1. Each BREI Regulated Fund is a
Delaware statutory trust and is
structured as an externally managed,
non-diversified, closed-end
management investment company. Each
BREI Regulated Fund’s investment
objective is to seek long-term total
return, with an emphasis on current
income, by primarily investing in a
broad range of real estate-related deb
investments. BREIF and BREIF II are
‘‘feeder’’ funds in a ‘‘master-feeder’’
structure and pursues their respective
investment objective by investing
substantially all of their assets in the
BREI Master Fund. Each BREI Regulated
Fund has a five-member Board, of
which four members are Non-Interested
Trustees.2
2. Each Adviser 3 is a subsidiary of
The Blackstone Group, L.P.
(‘‘Blackstone’’). Blackstone is a leading
global alternative asset manager, whose
alternative asset management businesses
include investment vehicles focused on
private equity, real estate, hedge fund
solutions, non-investment grade credit,
secondary private equity funds of funds
and multi-asset class strategies.
Blackstone’s four business segments are
(1) private equity, (2) real estate, (3)
hedge fund solutions and (4) credit.
3. The Blackstone RE Advisers
operate as a self-contained advisory
business within Blackstone’s real estate.
SUPPLEMENTARY INFORMATION:
2 ‘‘Board’’ means the board of trustees (or
equivalent) of the BREI Regulated Funds and any
other Regulated Fund (as defined below).
‘‘Non-Interested Trustees’’ means the NonInterested Trustees of the BREI Regulated Funds
and any other Regulated Fund who are not
‘‘interested persons’’ within the meaning of section
2(a)(19) of the Act.
3 The term ‘‘Adviser’’ means (i) the Blackstone RE
Advisers and (ii) any future investment adviser that
controls, is controlled by or is under common
control with a Blackstone RE Adviser and is
registered as an investment adviser under the
Investment Advisers Act of 1940 (the ‘‘Advisers
Act’’) that intends to participate in the CoInvestment Program (as defined below).
The term ‘‘Primary Adviser’’ means any future
investment adviser that (i) controls, is controlled by
or is under common control with an Adviser, (ii)
is registered as an investment adviser under the
Advisers Act, and (iii) is not an Adviser. For the
avoidance of doubt, a Primary Adviser will not be
treated as an Adviser under the requested Order,
but will be subject to conditions 2(c)(iv) and 13 of
the requested Order. A Primary Adviser will not
rely on the requested Order with respect to any
investment vehicles it manages other than to the
extent those vehicles are sub-advised by an Adviser.
E:\FR\FM\22OCN1.SGM
22OCN1
]]>Agencies
[Federal Register Volume 83, Number 204 (Monday, October 22, 2018)]
[Notices]
[Pages 53326-53329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22931]
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SECURITIES AND EXCHANGE COMMISSION
Securities Exchange Act of 1934; Release No. 34-84440/October 16,
2018; Investment Company Act of 1940; Release No. IC-33272/October 16,
2018; Order Under Section 15b, Section 17a and Section 36 of the
Securities Exchange Act of 1934 Granting Exemptions From Specified
Provisions of the Exchange Act and Certain Rules Thereunder; Order
Under Section 6(C) and Section 38(A) of the Investment Company Act of
1940 Granting Exemptions From Specified Provisions of the Investment
Company Act and Certain Rules Thereunder
On October 10, 2018, Hurricane Michael made landfall on the Florida
Panhandle. The storm and subsequent flooding has displaced individuals
and businesses and disrupted communications and transportation across
the affected region. We are issuing this Order to address the needs of
companies and individuals with obligations under the federal securities
laws who have been directly or indirectly affected by Hurricane Michael
and its aftermath.
Section 15B(a)(4) of the Securities Exchange Act of 1934 (the
``Exchange Act'') provides that the Securities and Exchange Commission
(the ``Commission''), by rule or order, upon its own motion or upon
application, may conditionally or unconditionally exempt any broker,
dealer, municipal securities dealer or municipal advisor, or class of
brokers, dealers, municipal securities dealers, or municipal advisors
from any provision of Section 15B or the rules or regulations
thereunder, if the Commission finds that such exemption is consistent
with the public interest, the protection of investors and the purposes
of Section 15B.
Section 36 of the Exchange Act authorizes the Commission, by rule,
regulation or order, to exempt, either conditionally or
unconditionally, any person, security or transaction, or any class or
classes of persons, securities or transactions, from any provision or
provisions of the Exchange Act or any rule or regulation thereunder, to
the extent that such exemption is necessary or appropriate in the
public interest, and is consistent with the protection of investors.
Section 17A(c)(1) of the Exchange Act provides that the appropriate
regulatory agency, by rule or by order, upon its own motion or upon
application, may conditionally or unconditionally exempt any person or
security or class of persons or securities from any provision of
Section 17A or any rule or regulation prescribed under Section 17A, if
the appropriate regulatory agency \1\ finds that such exemption is in
the public interest and consistent with the protection of investors and
the purposes of Section 17A, including the prompt and accurate
clearance and settlement of securities transactions and the
safeguarding of securities and funds. Section 17A(c)(1) also requires
that the Commission not object to the use of exemptive authority in
instances where an appropriate regulatory authority other than the
Commission is providing exemptive relief.
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\1\ Section 3(a)(34)(B) of the Exchange Act defines
``appropriate regulatory authority.''
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Section 6(c) of the Investment Company Act of 1940 (the ``Company
Act'') provides that the Commission may conditionally or
unconditionally exempt any person, security or transaction, or any
class or classes of persons, securities or transactions, from any
provision or provisions of the Company Act, or any rule or regulation
thereunder, if and to the extent that such exemption is necessary or
appropriate in the public interest and consistent with the protection
of investors and the purposes fairly intended by the policy and
provisions of the Company Act. Section 38(a) of the Company Act
provides that the Commission may make, issue, amend and rescind such
rules and regulations and such orders as are necessary or appropriate
to the exercise of the powers conferred upon the Commission under the
Company Act.
The necessity for prompt action of the Commission does not permit
prior notice of the Commission's action.
I. Time Period for the Relief
The time period for the relief specified in Sections II and VI of
this Order is as follows:
With respect to those persons or entities affected by
Hurricane Michael, for the period from and including October 10, 2018
to November 21, 2018, all reports, schedules or forms must be filed on
or before November 23, 2018.
II. Filing Requirements for Registrants and Other Persons
The lack of communications, transportation, electricity, facilities
and available staff and professional advisors as a result of Hurricane
Michael could hamper the efforts of public companies and other persons
with filing obligations to meet their filing deadlines. At the same
time, investors have an interest in the timely availability of required
information about these companies and the activities of persons
required to file schedules and reports with respect to these companies.
While the Commission believes that the relief from filing requirements
provided by the exemption below is necessary and appropriate in the
public interest and consistent with the protection of investors, we
remind public companies and other persons who are the subjects of this
Order to continue to evaluate their obligations to make materially
accurate and complete disclosures in accordance with the anti-fraud
provisions of the federal securities laws.
Accordingly, it is ordered, pursuant to Section 36 of the Exchange
Act, that a registrant (as defined in Exchange Act Rule 12b-2) subject
to the reporting requirements of Exchange Act Section 13(a) or 15(d),
and any person required to make any filings with respect to such a
registrant, is exempt from any requirement to file or furnish materials
with the Commission under Exchange Act Sections 13(a), 13(d), 13(f),
13(g), 14(a), 14(c), 14(f), 15(d) and 16(a),
[[Page 53327]]
Regulations 13A, 13D-G, 14A, 14C and 15D, and Exchange Act Rules 13f-1,
14f-1 and 16a-3, as applicable, where the conditions below are
satisfied.
Conditions
(a) The registrant or person other than a registrant is not able to
meet a filing deadline due to Hurricane Michael and its aftermath;
(b) The registrant or person other than a registrant files with the
Commission any report, schedule or form required to be filed during the
applicable period of relief on or before the applicable deadline set
forth in Section I; and
(c) In any such report, schedule or form filed pursuant to this
Order, the registrant or person other than a registrant must disclose
that it is relying on this Order and state the reasons why, in good
faith, it could not file such report, schedule or form on a timely
basis.
III. Furnishing of Proxy and Information Statements
The conditions in the areas affected by Hurricane Michael,
including displacement of thousands of individuals and the destruction
of property, have prevented and will continue to prevent the delivery
of mail to the affected areas. In light of these conditions, we believe
that relief is warranted for those seeking to comply with our rules
imposing requirements to furnish materials to security holders when
mail delivery is not possible and that the following exemption is
necessary and appropriate in the public interest and consistent with
the protection of investors.
Accordingly, it is ordered, pursuant to Section 36 of the Exchange
Act, that a registrant or any other person is exempt from the
requirements to furnish proxy statements, annual reports and other
soliciting materials, as applicable (the ``Soliciting Materials''), and
the requirements of the Exchange Act and the rules thereunder to
furnish information statements and annual reports, as applicable (the
``Information Materials''), where the conditions below are satisfied.
Conditions
(a) The registrant's security holder has a mailing address located
within a zip code where, as a result of Hurricane Michael, the
registrant's common carrier has suspended delivery service of the type
or class customarily used by the registrant;
(b) The registrant or other person making a solicitation has
followed normal procedure when furnishing the Soliciting Materials to
the security holder in order to ensure that the Soliciting Materials
preceded or accompanied the proxy, as required by the rules applicable
to the particular form of Soliciting Materials, or, in the case of
Information Materials, the registrant has followed normal procedure
when furnishing the Information Materials to the security holder in
accordance with the rules applicable to Information Materials; and
(c) If requested by the security holder, the registrant or other
person provides the Soliciting Materials or Information Materials by a
means reasonably designed to furnish the Soliciting Materials or
Information Materials to the security holder.
Any registrant or other person in need of additional assistance
related to deadlines, delivery obligations or their public filings,
should contact the Division of Corporation Finance at (202) 551-3500 or
at https://tts.sec.gov/cgi-bin/corp_fin_interpretive.
IV. Transmittal of Annual and Semi-Annual Reports to Investors Required
by the Company Act and the Rules Thereunder
For reasons similar to those cited in Section III, we believe that
relief is warranted for the transmittal by registered management
investment companies and registered unit investment trusts
(collectively, ``registered investment companies'') of annual and semi-
annual reports to investors and that the following exemption is
necessary and appropriate in the public interest and consistent with
the protection of investors.
Accordingly, it is ordered, pursuant to Sections 6(c) and 38(a) of
the Company Act that for the period from and including October 10, 2018
to November 21, 2018, a registered investment company is exempt from
the requirements of Section 30(e) of the Company Act and Rule 30e-1
thereunder to transmit annual and semi-annual reports to investors
affected by Hurricane Michael; and
For the period from and including October 10, 2018 to November 21,
2018, a registered unit investment trust is exempt from the
requirements of Section 30(e) of the Company Act and Rule 30e-2
thereunder to transmit annual and semi-annual reports to unitholders
affected by Hurricane Michael,
Provided that:
(a) The affected investor's mailing address for transmittal as
listed in the records of the registered investment company has a zip
code for which the registered investment company's common carrier has
suspended mail service, as a result of Hurricane Michael, of the type
or class customarily used by the registered investment company for
transmittal of reports; and
(b) The registered investment company or other person promptly
transmits the reports to affected investors: Either (a) if requested by
the investor; or (b) at the earlier of (i) November 23, 2018 or (ii)
the resumption of the applicable mail service.
Registered investment companies who are unable to meet a deadline
as extended by this relief, or in need of additional assistance
regarding issues under the Company Act, should contact the Division of
Investment Management, Office of Chief Counsel, at (202) 551-6825 or
[email protected].
Registered investment advisers in need of additional assistance
regarding issues under the Investment Advisers Act of 1940 should
contact the Division of Investment Management, Investment Adviser
Regulation Office, at (202) 551-6999 or [email protected].
V. Transfer Agent Compliance With Sections 17A and 17(f) of the
Exchange Act
Exchange Act Section 17A and Section 17(f), as well as the rules
promulgated under Sections 17A and 17(f), contain requirements for
registered transfer agents relating to, among other things, processing
securities transfers, safekeeping of investor and issuer funds and
securities and maintaining records of investor ownership. Following the
events of Hurricane Michael, registered transfer agents located in the
affected regions may have difficulty complying with some or all of
their obligations as registered transfer agents. In addition,
registered transfer agents located outside the affected regions may be
unable to conduct business with entities or security holders inside the
regions, thereby making it difficult to process securities transactions
and corporate actions in conformance with Section 17A, Section 17(f)
and the rules thereunder.
While the national clearance and settlement system continues to
operate well in light of these emergencies, the Commission recognizes
that the need to effect securities transfers and payments to and from
security holders in the affected regions may present compliance issues
for affected transfer agents. Therefore, the Commission is using its
authority under Section 17A and Section 36 of the Exchange Act to
provide temporary relief from certain regulatory provisions. This Order
temporarily exempts transfer agents
[[Page 53328]]
from the requirements of: (1) Section 17A of the Exchange Act and Rules
17Ad-1 through 17Ad-20 thereunder; and (2) Section 17(f) of the
Exchange Act and Rules 17f-1 and 17f-2 thereunder. The Commission finds
the following exemption to be in the public interest and consistent
with the protection of investors and the purpose of Section 17A of the
Exchange Act, including the prompt and accurate clearance and
settlement of securities transactions and the safeguarding of
securities and funds.
Accordingly, it is ordered, pursuant to Sections 17A and 36 of the
Exchange Act, that any registered transfer agent that is unable to
comply with Section 17A and Section 17(f) of the Exchange Act and the
rules promulgated thereunder, as applicable, due to Hurricane Michael
and its aftermath is hereby temporarily exempted from complying with
such provisions for the period from and including October 10, 2018 to
November 21, 2018 where the conditions below are satisfied.
Conditions
(a) A registered transfer agent relying on this Order must notify
the Commission in writing by November 21, 2018 of the following:
(1) The transfer agent is relying on this Order;
(2) A statement of the reasons why, in good faith, the transfer
agent is unable to comply with Section 17A and Section 17(f) of the
Exchange Act and the rules promulgated thereunder, as applicable;
(3) If the transfer agent knows or believes that the books and
records it is required to maintain pursuant to Section 17A and the
rules thereunder were lost, destroyed or materially damaged,
information, to the extent reasonably available, as to the type of
books and records that were maintained, the names of the issuers for
whom such books and records were maintained, the extent of the loss of,
or damage to, such books and records and the steps taken to ameliorate
any such loss or damage; and
(4) If the transfer agent knows or believes that funds or
securities belonging to either issuers or security holders and within
its possession were, for any reason, lost, destroyed, stolen or
unaccounted for, information, to the extent reasonably available,
regarding the dollar amount of any such funds and the number of such
securities and the steps taken to ameliorate any such loss; and
(b) Transfer agents that have custody or possession of any security
holder or issuer funds or securities shall use all reasonable means
available to ensure that all such securities are held in safekeeping
and are handled, in light of all facts and circumstances, in a manner
reasonably free from risk of theft, loss or destruction and that all
funds are protected against misuse. To the extent possible, all
security holder or issuer funds that remain in the custody of the
transfer agent shall be maintained in a separate bank account held for
the exclusive benefit of security holders until such funds are properly
remitted.
The notification required under (a) above shall be sent to:
U.S. Securities and Exchange Commission, Division of Trading and
Markets, Office of Clearance and Settlement, 100 F Street NE,
Washington, DC 20549-7010
The Commission encourages registered transfer agents and the
issuers for whom they act to inform affected security holders whom they
should contact concerning their accounts, their access to funds or
securities and other shareholder concerns. If feasible, issuers and
their transfer agents should place a notice on their websites or
providing toll free numbers to respond to inquiries.
Transfer agents who are unable to meet a deadline as extended by
this relief, or in need of additional assistance, should contact the
Division of Trading and Markets at (202) 551-5777 or
[email protected].
VI. Filing of Annual Update to Form MA as Required by the Exchange Act
and the Rules Thereunder
Section 15B of the Exchange Act and Rule 15Ba1-5(a)(1) thereunder
requires each registered municipal advisor to file with the Commission
an annual update to its Form MA. For reasons similar to those cited in
Section II, the Commission believes that relief is warranted for the
filing with the Commission of annual updates to Form MA by registered
municipal advisors and that such relief is consistent with the public
interest, the protection of investors and the purposes of Section 15B
of the Exchange Act.
Accordingly, it is so ordered, pursuant to Section 15B(a)(4) of the
Exchange Act, that any registered municipal advisor is exempt from the
requirement to file an annual update to Form MA with the Commission, as
required by Section 15B of the Exchange Act and Rule 15Ba1-5(a)(1)
thereunder, where the conditions below are satisfied.
Conditions
(a) The registered municipal advisor is not able to fulfill its
obligation to file an annual update to the registered municipal
advisor's Form MA within 90 days of the end of the registered municipal
advisor's fiscal year due to Hurricane Michael;
(b) The registered municipal advisor files with the Commission its
annual update to Form MA required to be filed during the applicable
period of relief on or before the applicable deadline set forth in
Section I; and
(c) In any such annual update to its Form MA filing, the registered
municipal advisor must disclose that it is relying on this Order and
state the reasons why, in good faith, it could not file such annual
update to Form MA on a timely basis.
Registered municipal advisors who are unable to meet a deadline as
extended by this relief or in need of additional assistance, should
contact the Office of Municipal Securities at (202) 551-5680 or
[email protected].
VII. Independence--Bookkeeping or Other Services Related to the
Accounting Records or Financial Statements of the Audit Client
The conditions in the areas affected by Hurricane Michael,
including displacement of individuals, the destruction of property and
loss or destruction of corporate records, may require extraordinary
efforts to reconstruct lost or destroyed accounting records. The
Commission understands that in these particularly challenging
situations an audit client may look to its auditor for assistance in
reconstruction of its accounting records because of the auditor's
knowledge of the client's financial systems and records. Under Section
10A(g)(1) of the Exchange Act and Rule 2-01(c)(4)(i) of Regulation S-X,
auditors are prohibited from providing bookkeeping or other services
relating to the accounting records of the audit client, and in Rule 2-
01(c)(4)(i) of Regulation S-X, these prohibited services are described
as including ``maintaining or preparing the audit client's accounting
records'' or ``preparing or originating source data underlying the
audit client's financial statements.'' In light of the conditions in
areas affected by Hurricane Michael, however, we believe that limited
relief from these prohibitions is warranted for those registrants and
other persons that are required to comply with the independence
requirements of the federal securities laws and the Commission's rules
and regulations thereunder and that are affected by those conditions.
The Commission finds the following exemption to be necessary and
appropriate in the public interest and consistent with the protection
of investors.
[[Page 53329]]
Accordingly, it is ordered, pursuant to Section 36 of the Exchange
Act, that independent certified public accountants engaged to provide
audit services to registrants and other persons required to comply with
the independence requirements of the federal securities laws and the
Commission's rules and regulations thereunder are exempt from the
requirements of Section 10A(g)(1) of the Exchange Act and Rule 2-
01(c)(4)(i) of Regulation S-X, where the conditions below are
satisfied.
Conditions
(a) Services provided by the auditor are limited to reconstruction
of previously existing accounting records that were lost or destroyed
as a result of Hurricane Michael and such services cease as soon as the
audit client's lost or destroyed records are reconstructed, its
financial systems are fully operational and the client can effect an
orderly and efficient transition to management or other service
provider; and
(b) Services provided by the auditor to its audit client pursuant
to this Order are subject to pre-approval by the audit client's audit
committee as required by Rule 2-01(c)(7) of Regulation S-X.
Auditors or audit clients who are in need of additional assistance
or have other questions relating to auditor independence, should
contact the Office of the Chief Accountant at (202) 551-5300 or
[email protected].
By the Commission.
Brent J. Fields,
Secretary.
[FR Doc. 2018-22931 Filed 10-19-18; 8:45 am]
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