[Federal Register: March 7, 2006 (Volume 71, Number 44)]
[Proposed Rules]
[Page 11351-11366]
[DOCID:fr07mr06-28]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 270

[Release No. IC-27255; File No. S7-06-06; File No. 4-512]
RIN 3235-AJ51

Mutual Fund Redemption Fees

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'' or
``SEC'') is proposing amendments to the redemption fee rule we recently
adopted. The rule, among other things, requires most open-end
investment companies (``funds'') to enter into agreements with
intermediaries, such as broker-dealers, that hold shares on behalf of
other investors in so called ``omnibus accounts.'' These agreements
must provide funds access to information about transactions in these
accounts to enable the funds to enforce restrictions on market timing
and similar abusive transactions. The Commission is proposing to amend
the rule to clarify the operation of the rule and reduce the number of
intermediaries with which funds must negotiate information-sharing
agreements. The amendments are designed to address issues that came to
our attention after we had adopted the rule, and are designed to reduce
the costs to funds (and fund shareholders) while still achieving the
goals of the rulemaking.

DATES: Comments must be received on or before April 10, 2006.

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number S7-06-06 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov
). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.
    All submissions should refer to File Number S7-06-06. This file
number should be included on the subject line if e-mail is used. To
help us process and review your comments more efficiently, please use
only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml
). Comments are also available for public inspection and

copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549. All comments received will be posted without
change; we do not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly.

FOR FURTHER INFORMATION CONTACT: Thoreau Bartmann, Staff Attorney, or
C. Hunter Jones, Assistant Director, Office of Regulatory Policy, (202)
551-6792, Division of Investment Management, Securities and Exchange
Commission, 100 F Street, NE., Washington, DC 20549-5041.

SUPPLEMENTARY INFORMATION: The Commission today is proposing amendments
to rule 22c-2 \1\ under the Investment Company Act of 1940 \2\ (the
``Investment Company Act'' or the ``Act'').\3\
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    \1\ 17 CFR 270.22c-2.
    \2\ 15 U.S.C. 80a.
    \3\ Unless otherwise noted, all references to statutory sections
are to the Investment Company Act, and all references to ``rule 22c-
2'' or any paragraph of the rule will be to 17 CFR 270.22c-2.
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Table of Contents

I. Background
II. Discussion
    A. Small Intermediaries
    B. Intermediary Chains
    C. Effect of Lacking an Agreement
III. Compliance Date
IV. Current Industry Efforts Regarding Shareholder Information
V. Ongoing Monitoring of Implementation
VI. Cost-Benefit Analysis
VII. Consideration of Promotion of Efficiency, Competition, and
Capital Formation
VIII. Paperwork Reduction Act
IX. Initial Regulatory Flexibility Analysis
X. Statutory Authority
Text of Rule

I. Background

    On March 11, 2005, the Commission adopted rule 22c-2 under the
Investment Company Act.\4\ We adopted the rule to help address abuses
associated with short-term trading of fund shares. Rule 22c-2 provides
that if a fund redeems its shares within seven days,\5\ its board must
consider whether to impose a fee of up to two percent of the value of
shares redeemed shortly after their purchase (``redemption fee'').\6\
The rule also requires such a fund to enter into agreements with its
intermediaries that provide fund management the ability to identify
investors whose trading violates fund restrictions on short-term
trading.\7\
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    \4\ See Mutual Fund Redemption Fees, Investment Company Act
Release No. 26782 (Mar. 11, 2005) [70 FR 13328 (Mar. 18, 2005)]
(``Adopting Release'').
    \5\ Because the large majority of funds redeem shares within
seven days of purchase, the practical effect of rule 22c-2, and
these proposed amendments, would be to require most funds to comply
with the rule's requirements. Therefore, throughout this Release we
may describe funds as being ``required to comply'' with a provision
of the rule, when the actual requirement only applies if a fund
redeems its shares within seven days. A fund that does not redeem
its shares within seven days would not be required to comply with
those provisions of rule 22c-2.
    \6\ Rule 22c-2(a)(1). Under the rule, the board of directors
must either (i) approve a fee of up to 2% of the value of shares
redeemed, or (ii) determine that the imposition of a fee is not
necessary or appropriate. Id.
    \7\ Under the rule, the fund (or its principal underwriter) must
enter into a written agreement with each of its financial
intermediaries under which the intermediary agrees to (i) provide,
at the fund's request, identity and transaction information about
shareholders who hold their shares through an account with the
intermediary, and (ii) execute instructions from the fund to
restrict or prohibit future purchases or exchanges. The fund must
keep a copy of each written agreement for six years. Rule 22c-
2(a)(2),(3).
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    When we adopted rule 22c-2 last March, we asked for additional
comment on (i) whether the rule should include uniform standards for
redemption fees,\8\ and (ii) any problems with the rule that might
arise during the course of implementation.\9\ We received over 100
comment letters in response to the request for comment.\10\ Commenters
expressed various views on the need for uniform standards, but a number
of commenters also raised concerns with the basic requirements of the
rule.
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    \8\ See Adopting Release, supra note 4, at Section II.C. As we
noted when we adopted the rule, ``[a]lthough we received comment on
these [uniform standards] issues during the initial comment period,
those comments were offered in the context of a mandatory redemption
fee'' rather than in the context of the voluntary approach that we
adopted. See id.
    \9\ See id.
    \10\ Comment letters on the 2004 proposal and the 2005 adoption
are available in File No. S7-11-04, which is accessible at http://www.sec.gov/rules/proposed/s71104.shtml.
 References to comment

letters are to letters in that file.
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    In their letters in response to the rule's adoption, commenters
representing fund managers and other

market participants stated that implementing the rule would be more
costly than we had anticipated, and requested that we address certain
interpretive issues that arose in connection with the implementation of
the rule.\11\ The amendments we are proposing today address concerns
and questions regarding rule 22c-2 that commenters have brought to our
attention. These amendments are designed to reduce the costs of
complying with the rule and clarify its application in certain
circumstances.\12\
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    \11\ For example, a number of commenters in their 2005 letters
objected to the definition of ``financial intermediary'' and to the
requirement that funds enter into agreements with these
intermediaries to receive transaction information upon request. See,
e.g., Comment Letters of OppenheimerFunds, Inc. (May 9, 2005), T.
Rowe Price Associates, Inc. (May 24, 2005), and the Vanguard Group
(June 1, 2005).
    \12\ We received a number of comments from insurance companies
and other market participants that sell variable insurance products.
Many of these commenters were concerned that rule 22c-2 could expose
insurance companies to increased liability. These commenters stated
that variable insurance product contracts typically include clauses
that specify the maximum charges and fees that an insurance company
can assess against an annuity holder. We do not believe that
redemption fees charged pursuant to rule 22c-2 should be interpreted
to cause insurance companies to breach their contracts with annuity
holders. Redemption fees are not fees that the insurance companies
are themselves imposing pursuant to the contract between the
insurance company and its customer. Instead, the funds underlying
the separate accounts will impose any redemption fees that are
charged. See Miller v. Nationwide Life Ins. Co., 2003 WL 22466236
(E.D. La.) (Oct. 29, 2003), aff'd on other grounds, 391 F.3d 698
(5th Cir. 2004).
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    We also received comments on whether we should provide for a
uniform redemption fee applicable to those funds whose directors
determined to impose a redemption fee. While most commenters asserted
that funds and intermediaries would likely achieve certain benefits or
cost savings if the Commission mandated uniform redemption fee
standards,\13\ others disagreed, asserting that the best way to serve
funds, intermediaries, and investors was by allowing each fund to adopt
redemption fee policies that best fit its particular circumstances.\14\
Among the commenters who argued that uniform standards would benefit
market participants, no consensus emerged as to what those uniforms
standards should be, if they were adopted. We are taking the
commenters' views under advisement, but are not proposing uniform
redemption fee standards at this time.
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    \13\ Comment Letter of Flexible Plan Investments Ltd., at 2 (May
9, 2005) (``[O]ne of the most complicating factors caused by
redemption fees is the lack of uniformity in their calculation and
imposition * * * When intermediaries and advisors are dealing with
many platforms and fund families, sorting out the requirements of
each is a tremendous burden on the industry, adding costs that are
simply passed on to investors.''); Comment Letter of Horton, Lantz &
Low at 1 (May 24, 2005) (``[T]he lack of uniformity may result in
increased costs associated with our retirement plan. Such higher
costs could arise through higher plan administration costs * * * or
higher mutual fund expenses.'').
    \14\ See Comment Letter of the Vanguard Group at 6 (June 1,
2005) (``[M]andatory redemption fee standards are not appropriate or
necessary in the context of a voluntary fee. We believe that
standardization under these circumstances would create significant
disincentives to the adoption of redemption fees that might
otherwise benefit a fund.'').
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II. Discussion

    The amendments to rule 22c-2 we are proposing today (i) limit the
types of intermediaries with which funds must negotiate information-
sharing agreements, (ii) address the rule's application when there are
chains of intermediaries, and (iii) clarify the effect of a fund's
failure to obtain an agreement with any of its intermediaries.

A. Small Intermediaries

    Rule 22c-2 prohibits a fund from redeeming shares within seven days
unless, among other things, the fund enters into written agreements
with its financial intermediaries (such as broker-dealers and
retirement plan administrators) \15\ that hold shares on behalf of
other investors.\16\ Under those agreements, the intermediaries must
agree to provide, at the fund's request, the shareholder identity
(i.e., taxpayer identification number) and transaction information,\17\
and carry out instructions from the fund to restrict or prohibit
further purchases or exchanges by a shareholder (as identified by the
fund) that has engaged in trading that violates the fund's market
timing policies.\18\ We designed this provision to enable funds to
obtain the information that they need to monitor short-term trading in
omnibus accounts and enforce their market timing policies.\19\
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    \15\ ``Financial intermediary'' is defined in rule 22c-2(c)(1)
as: (i) Any broker, dealer, bank, or other entity that holds
securities of record issued by the fund, in nominee name; (ii) a
unit investment trust or fund that invests in the fund in reliance
on section 12(d)(1)(E) of the Act (15 U.S.C. 80a-12(d)(1)(E)); and
(iii) in the case of a participant-directed employee benefit plan
that owns the securities issued by the fund, a retirement plan's
administrator under section 3(16)(A) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1002(16)(A)) or any entity
that maintains the plan's participant records.
    \16\ Rule 22c-2(a)(2). Some commenters expressed concern about
the ability of financial intermediaries to provide information to
funds, in light of applicable privacy laws. See, e.g., 15 U.S.C.
6801-09, 6821-27 (privacy provisions of Gramm-Leach-Bliley Act);
Regulation S-P, 17 CFR part 248 (Commission rules implementing
privacy provisions for funds, broker-dealers, and registered
investment advisers). Under those laws, financial institutions such
as funds, broker-dealers, and banks must provide a notice describing
the institution's privacy policies and an opportunity for consumers
to opt out of the sharing of information with nonaffiliated third
parties. These privacy laws also contain important exceptions to the
notice and opt-out requirements. Under the Commission's privacy
rules, for example, these requirements do not apply to the
disclosure of information that is ``necessary to effect, administer,
or enforce a transaction that a consumer requests or authorizes,''
which includes a disclosure that is ``[r]equired, or is a usual,
appropriate, or acceptable method * * * [t]o carry out the
transaction or the product or service business of which the
transaction is a part * * *'' 17 CFR 248.14(a), (b)(2). See also 17
CFR 248.15(a)(7)(i) (notice and opt-out requirements not applicable
to disclosure of information to comply with law). Financial privacy
rules that are substantially identical to these rules apply to
financial intermediaries other than broker-dealers, and contain
comparable exceptions. See, e.g., 12 CFR part 40 (rules applicable
to national banks, adopted by the Comptroller of the Currency).
    We believe that the disclosure of information under shareholder
information agreements, and the fund's request and receipt of
information under those agreements, are covered by these exceptions.
We also note that financial institutions often state in their
privacy policy notices that the institution makes ``disclosures to
other nonaffiliated third parties as permitted by law.'' See 17 CFR
248.6(b). Therefore we believe it will not be necessary for
intermediaries such as broker-dealers and banks to provide new
privacy notices or opt-out opportunities to their customers, in
order to comply with rule 22c-2, both as adopted and as we propose
to amend it.
    \17\ One commenter expressed concern that the contract provision
of rule 22c-2, requiring that agreements with intermediaries mandate
the disclosure of shareholder information at the fund's request,
conflicts with Commission rules governing proxy solicitations. See
Comment Letter of the American Bankers Association (June 6, 2005).
The Commission's proxy solicitation rules are set forth in
Regulation 14A under the Exchange Act, 17 CFR 240.14A. The proxy
rules govern the disclosure of information in the context of proxy
solicitations. They do not prohibit banks, broker-dealers and other
intermediaries from complying with agreements entered into pursuant
to rule 22c-2.
    \18\ See proposed rule 22c-2(c)(5) (defining ``shareholder
information agreement,'' which is discussed further below in Section
II.B).
    \19\ As we noted when we adopted rule 22c-2 in 2005, a fund that
receives shareholder information for a purpose permitted by the
privacy rules under the exceptions to consumer notice and opt out
requirements may not disclose that information for other purposes,
such as marketing. See Adopting Release, supra note 4, at n.47
(``Our privacy rule prevents a fund that receives this [shareholder]
information from using the information for its own marketing
purposes, unless permitted under the intermediary's privacy
policies. See 17 CFR 248.11(a) and 248.15(a)(7).'').
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    Many fund commenters expressed concern that the requirement would
necessitate reviewing a large number of their shareholder accounts in
order to determine which shareholders meet the definition of
``financial intermediary.'' \20\ They noted that because the definition
encompasses any entity that holds securities in nominee

name for other investors, it would therefore include, for example, a
small business retirement plan that holds mutual fund shares on behalf
of only a few employees. These commenters emphasized that the task of
identifying these intermediaries, as well as negotiating agreements
with them, will be costly and burdensome. The effect of the rule with
respect to these small intermediaries was an unintended consequence of
the rule, which we did not foresee when we modified the definition of
`financial intermediary' in response to the concerns that commenters
raised with us.
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    \20\ See, e.g., Comment Letter of OppenheimerFunds, Inc. (May 9,
2005). At the suggestion of several commenters, we broadened the
definition of ``financial intermediary'' in the final rule.
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    We propose to revise rule 22c-2 to exclude from the definition of
``financial intermediary'' any intermediary that the fund treats as an
individual investor for purposes of the fund's policies intended to
eliminate or reduce dilution of the value of fund shares.\21\ These
types of policies include restrictions on frequent purchases and
redemptions, as well as a fund's redemption fee program.\22\ As a
result, if a fund, for example, applies a redemption fee or exchange
limits to transactions by a retirement plan (an intermediary) rather
than to the purchases and redemptions of the employees in the plan,
then the plan would not be considered a ``financial intermediary''
under the rule, and the fund would not be required to enter into an
agreement with that plan.\23\
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    \21\ Proposed rule 22c-2(c)(1)(iv).
    \22\ The rule excepts a fund from the requirement to enter into
written agreements if, among other things, the fund ``affirmatively
permits short-term trading of its securities.'' See rule 22c-
2(b)(3).
    \23\ Proposed rule 22c-2(c)(1)(iv) would exclude from the
definition of ``financial intermediary'' any person the fund treats
as an individual for purposes of the fund's policies on eliminating
or reducing dilution in the value of fund shares. If a fund has not
established such policies and thus determined which persons it
treats as individuals, this exclusion would not apply, and the fund
would need to identify those shareholder accounts that are
``financial intermediaries.''
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    Our proposed approach, which was suggested by several
commenters,\24\ has advantages over the rule as initially adopted,
while still achieving the goals of the initial rulemaking. First, when
a fund places restrictions on transactions at the intermediary level
(rather than the individual shareholder level), the fund is unlikely to
need data about frequent trading by individual shareholders, because
abusive short-term trading by the shareholders holding through the
omnibus account would ordinarily trigger application of those policies
to the intermediary's trades.\25\ Therefore, transparency regarding
underlying shareholder transactions executed through these accounts is
unnecessary to achieve the goals of the rule. Second, our proposed
approach would substantially eliminate the need for funds to devote
resources to identifying intermediaries, because the funds will have
already identified the relevant intermediaries in the course of
administering their policies on short-term trading.
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    \24\ See, e.g., Comment Letter of the Securities Industry
Association (May 9, 2005).
    \25\ Individual transactions (e.g., by plan beneficiaries) in
omnibus accounts (e.g., self-directed defined contribution plans)
trigger corresponding transactions by the omnibus accounts with
funds in which the plan invests on behalf of plan beneficiaries. In
other words, when a plan participant allocates an investment to Fund
A, the plan must buy an equivalent number of shares of Fund A. If
the plan has not identified itself to the fund as an intermediary
(so that a fund will not apply its redemption fee or market timing
policies to plan transactions) even harmless transactions by a
number of participants (as well as market timing transactions) will
cause the plan to effect transactions with the fund that will
trigger application of a fund's redemption fee or market timing
policies to the plan. Plans that do not identify themselves as
intermediaries will likely either have very few participants and/or
restrict their transactions so that transactions by participants do
not trigger application of a redemption fee or violate fund market
timing policies.
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    We request comment on this proposed amendment to the definition of
financial intermediary.
     Should additional entities be excluded or included as
financial intermediaries? Should funds be required to enter into
agreements with any other types of entities? Should the definition of
financial intermediary be revised in any other way to further the
purposes of the rule or to reduce the cost of its implementation in a
manner consistent with these purposes? \26\ Should the rule contain
additional (or different) exclusions?
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    \26\ See, e.g., rule 17Ad-20 under the Securities Exchange Act
of 1934 [17 CFR 240.17Ad-20] (defining ``securities intermediary''
as a registered ``clearing agency * * * or a person, including a
bank, broker, or dealer, that in the ordinary course of its business
maintains securities accounts for others in its capacity as
such.'').
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     Is the proposed approach of allowing funds to determine
which entities are financial intermediaries practical? Will this result
in funds being more (or less) likely to impose redemption fees and
restrictions on inappropriate short-term trading? Would the revised
definition of financial intermediary create an incentive for funds to
modify their market timing or redemption fee policies to treat more
shareholders as individual investors?
     What are the costs to funds and financial intermediaries
of the requirement to enter into agreements? How many new agreements
will funds need to enter into with their intermediaries after the
proposed revisions? How much will it cost to enter into a new agreement
or modify an existing agreement to accommodate the requirement of rule
22c-2? Are there any other costs related to the agreement requirement?
     Should the definition of ``shareholder'' be revised? \27\
For example, the definition excludes funds that rely on section
12(d)(1)(G) of the Act in order to invest in other funds in the same
fund complex.\28\ The Commission has proposed new rule 12d1-2 which, if
adopted as proposed, would expand the ability of funds to rely on
section 12(d)(1)(G). In light of this proposal, should the definition
include these types of funds as shareholders (i.e., should the
exclusion be deleted)? \29\ Should the definition provide for different
circumstances in which these types of funds will not be considered
shareholders? For example, should the definition be revised to limit
the exclusion to funds that rely on section 12(d)(1)(G), but that do
not rely on rule 12d1-2 (if adopted)?
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    \27\ See rule 22c-2(c)(4).
    \28\ See Adopting Release, supra note 4, at n.55.
    \29\ See Fund of Funds Investments, Investment Company Act
Release No. 26198 (Oct. 1, 2003) [68 FR 58226 (Oct. 8, 2003)]
(proposing rule 12d1-2).
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B. Intermediary Chains

    In some cases, a brokerage firm may hold its shares of a mutual
fund not only on behalf of individual investors, but also on behalf of
other intermediaries, such as pension plans or other broker-
dealers.\30\ Fund commenters said that they were uncertain how rule
22c-2 applied to these arrangements, and expressed concern how, as a
practical matter, a

fund could obtain shareholder information through multiple layers of
intermediaries.\31\ They pointed out that the rule did not specify, in
such a ``chain of intermediaries,'' how the written agreement
requirement would apply to any second tier (or additional tiers) of
financial intermediaries. Two of these commenters recommended that the
Commission revise the rule to limit the written agreement requirement
to those entities that trade directly with the fund.\32\ Two other
commenters recommended that the rule mandate that a fund's contract
with its intermediaries require them to provide information to the
fund, and also require that those intermediaries contract with other
intermediaries to agree to provide information to the fund, through
chains of agreements.\33\
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    \30\ One commenter questioned whether, in the context of
insurance company separate accounts, a holder of a variable annuity
contract is a ``shareholder'' of a mutual fund in which the
insurance company separate account invests. See Comment Letter of
American General Life Insurance Co. at 12 (May 9, 2005) (submitted
on behalf of the company and certain affiliated companies). The term
``shareholder'' does encompass these investors. See rule 22c-2(c)(4)
(defining ``shareholder'' to include, among others, ``a holder of
interests in a fund or unit investment trust that has invested in
the fund in reliance on section 12(d)(1)(E) of the Act''). We also
noted, when we adopted rule 22c-2, that the term ``shareholder''
includes, among others, ``a holder of interests in * * * an
insurance company separate account organized as a unit investment
trust.'' Adopting Release, supra note 4, at n.55. Insurance company
separate accounts are susceptible to many of the same short-term
trading abuses as mutual funds, and the investor protection goals of
rule 22c-2 apply equally to them as well. See In the Matter of
Millennium Partners, L.P., Investment Advisers Act Release No. 2453,
Administrative Proceeding File No. 3-12116 (Dec. 1, 2005) (ordering
fees and penalties of $180 million and finding that Millennium
Partners had, among other things, engaged in market timing trading
through variable annuity contracts, employing a number of deceptive
practices to avoid detection as a market timer).
    \31\ See, e.g., Comment Letter of T. Rowe Price Associates, Inc.
(May 24, 2005).
    \32\ See id.; Comment Letter of the ICI (May 9, 2005).
    \33\ See Comment Letter of American Society of Pension
Professionals & Actuaries (May 9, 2005); Comment Letter of Charles
Schwab & Co., Inc. (May 9, 2005).
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    In light of these comments, we propose to revise the rule to
provide that a fund must enter into a written agreement only with those
financial intermediaries that submit orders to purchase or redeem
shares directly to the fund, its principal underwriter or transfer
agent, or a registered clearing agency \34\ (``first-tier
intermediaries'').\35\ We are proposing to define this written
agreement as a ``shareholder information agreement.'' \36\ The proposed
rule would include transfer agents and registered clearing agencies
among the entities that may enter into shareholder information
agreements with financial intermediaries on behalf of funds.\37\ In
practice, it is often the transfer agent that may have preexisting
agreements with a fund's financial intermediaries, and to avoid
potentially duplicative agreements or inefficiencies in the process, we
propose to permit transfer agents to enter into agreements on behalf of
the funds that they serve.\38\
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    \34\ Currently, the National Securities Clearing Corporation
(``NSCC'') is the only registered clearing agency for funds. A
``clearing agency'' is a person that acts as an intermediary in
making payments or deliveries (or both) in connection with
transactions in securities, or that provides facilities for
comparing data with respect to the terms of securities transactions
to reduce the number of settlements or the allocation of securities
settlement responsibilities. See 15 U.S.C. 78c(a)(23)(A). A clearing
agency is a self-regulatory organization, and its rules of operation
are subject to approval by the appropriate federal regulatory
agency. See 15 U.S.C. 78c(a)(26), 78s(b).
    \35\ Proposed amendment to rule 22c-2(a)(2). We understand that
retirement plan administrators and other persons that maintain the
plan's participant records typically submit transactions in fund
shares to the fund or to its transfer agent, principal underwriter,
or to a registered clearing agency. The rule we adopted last spring
specifically includes these administrators and recordkeepers within
the definition of a ``financial intermediary.'' See rule 22c-
2(c)(1)(iii).
    \36\ Proposed rule 22c-2(c)(5). The agreement may be part of
another contract or agreement, such as a distribution agreement.
    \37\ If a transfer agent or clearing agency enters into an
agreement on behalf of the fund, the agreement must require the
financial intermediary to provide the requested information to the
fund upon the fund's request, as provided in the definition of
shareholder information agreement.
    \38\ We have also included registered clearing agencies as an
entity that may enter into agreements on behalf of funds. This
amendment could allow funds and intermediaries to utilize the
registered clearing agency as a central agreement repository, if
such an arrangement is feasible.
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    The shareholder information agreement must obligate the first-tier
intermediary to provide, promptly upon the fund's request,
identification and transaction information for any shareholder accounts
held directly with the first-tier intermediary.\39\ If the first-tier
intermediary maintains a shareholder account for another financial
intermediary, the shareholder information agreement must obligate the
first-tier intermediary to use its best efforts to identify, upon
request by the fund, those accountholders who are themselves
intermediaries, and obtain and forward (or have forwarded) the
underlying shareholder identity and transaction information from those
intermediaries farther down the chain (i.e., second-or third-tier
intermediaries, or ``indirect intermediaries''). If an intermediary
that holds an account with a first-tier intermediary refuses to honor
the request, the agreement must obligate the first-tier intermediary to
prohibit, upon the fund's request, an indirect intermediary from
purchasing additional shares of the fund through the first-tier
intermediary.
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    \39\ As discussed further below, if a fund does not enter into a
shareholder information agreement with an intermediary, it must
restrict future purchases of fund shares by the intermediary. See
infra Section II.C.
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    These proposed rule amendments are designed to enable funds to
request the information they need to enforce their market timing and
redemption fee policies, while reducing the costs of complying with the
rule.\40\ The rule therefore relies upon the initiative of the fund to
determine whether to request that first-tier intermediaries identify
and collect information from specific indirect intermediaries, and to
request that an indirect intermediary be restricted from further
trading in fund shares due to its failure to provide requested
information on shareholder transactions. We believe that this targeted
approach would allow a fund to collect and analyze the most relevant
information from intermediaries and enable it to efficiently and
effectively enforce its short-term trading policies. This approach is
also designed to permit a fund to look through multiple levels of
intermediaries to reach relevant information about trading by ultimate
shareholders.\41\ These proposed amendments do not require first-tier
intermediaries to enter into formalized information-sharing agreements
with indirect intermediaries, although they would not prohibit any such
agreements.
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    \40\ A number of intermediaries have already developed or are
developing systems that will allow for transmission of this
information. For example, Charles Schwab & Co. has developed a
system that allows fund companies to view and download information
regarding the identity and transaction history of accountholders
that trade through Schwab. Julie Segal, Schwab Makes Omnibus Data
Available to Fund Companies, Fund Action (Dec. 2, 2005). See also
Tom Leswing, SunGard Creating Redemption Fee Rule Service, Ignites
(Sept. 30, 2005) (discussing SunGard's development of a similar
system allowing funds to impose redemption fees and access
underlying shareholder identity and transaction information through
omnibus accounts). We also understand that the NSCC is developing
enhancements to its Fund/SERV order processing and clearing systems
that should allow members to request and transmit shareholder
identity and transaction information.
    \41\ We anticipate that intermediaries may use a variety of
arrangements with indirect intermediaries to ensure that the
requested information is provided to the fund, ranging from
formalized contracts to informal communications in response to a
specific fund inquiry.
---------------------------------------------------------------------------

    We request comment on how we propose to address chains of
intermediaries.
     Would the proposed amendments result in funds receiving
enough information from intermediaries to effectively address
inappropriate short-term trading? Should the shareholder information
agreement include any other requirements?
     Should the rule require that the agreement between the
fund and each first-tier intermediary include a provision requiring
first-tier intermediaries to enter into explicit agreements with all of
their indirect intermediaries, or will the arrangements envisioned by
the proposed rule be sufficient? Should the rule require funds to
collect information from indirect intermediaries instead of having the
shareholder information agreement require first-tier intermediaries to
assume this role? Do the proposed amendments strike the proper balance
of duties and costs between funds and intermediaries?
     Is there another approach that we should take in
addressing the chains of intermediaries issue? For example, should the
rule require that first-tier

intermediaries collect information only from second-tier
intermediaries, without addressing the need for further information
from more distant intermediaries? Would this approach allow investors
to mask short-term trading activity by acting though multiple layers of
intermediaries?
     What steps are funds and intermediaries already taking to
share information? Are there systems in place (or in development) that
could be used to reduce the costs of collecting and sharing this
information?
     What are the costs of collecting shareholder information
from intermediaries? How often do funds anticipate requesting
shareholder information from intermediaries? How much would it cost to
establish and maintain systems to collect and transmit the shareholder
information between funds and intermediaries? What would it cost for
first-tier intermediaries to ensure that funds receive the shareholder
information from indirect intermediaries and restrict indirect
intermediaries' trading upon the fund's request?
     Under the proposed amendments, a fund could enter into a
shareholder information agreement through its principal underwriter,
transfer agent, or registered clearing agency. Should the rule include
any other types of entities?

C. Effect of Lacking an Agreement

    Some commenters questioned the effect under the rule of a fund's
failure (or inability) to obtain agreements with all of its
intermediaries.\42\ The rule could be interpreted to mean that in such
a circumstance, the fund would be precluded from redeeming the shares
of any of its shareholders within seven days of purchase.\43\ In order
to prevent a fund's lack of agreements with certain intermediaries from
affecting the redeemability of shares that investors own through other
intermediaries, we propose to revise the rule to provide that, if a
fund does not have an agreement with a particular intermediary, the
fund must thereafter prohibit the intermediary from purchasing, on
behalf of itself or other persons, securities issued by the fund.\44\
We intend this change to focus the remedy (prohibition of future
purchases) on the particular intermediary that fails to execute an
agreement with the fund.
---------------------------------------------------------------------------

    \42\ See, e.g,. Comment Letter of T. Rowe Price Associates, Inc.
(May 24, 2005).
    \43\ Comment Letter of OppenheimerFunds, Inc. (May 9, 2005).
    \44\ Proposed rule 22c-2(a)(2)(ii).
---------------------------------------------------------------------------

    We request comment on the proposed amendment clarifying the effect
of a fund's lacking a shareholder information agreement with a
financial intermediary.
     Instead of restricting any further purchases by a
financial intermediary that does not have an agreement with a fund,
would precluding an intermediary without an agreement from redeeming
purchased shares within seven days serve the purposes of the
rulemaking? Would this alternative preclusion on redemption within
seven days effectively encourage intermediaries to enter into
agreements with funds? Would this alternative of precluding redemption
within seven days by intermediaries without agreements impose hardships
on shareholders in financial emergencies, or implicate other
shareholder redemption issues?
     Is there another approach available to us that would
further the goals of this rulemaking?

III. Compliance Date

    When the Commission adopted rule 22c-2 in March 2005, we
established a compliance date of October 16, 2006. Commenters pointed
out that they would need significant time to revise agreements with
intermediaries and change their systems to accommodate the transmission
and receipt of trading information. That compliance date remains in
effect, although we may revise or extend that compliance date if and
when we adopt the amendments we are proposing today. We request comment
on whether additional time would be needed to comply with the
amendments.

IV. Current Industry Efforts Regarding Shareholder Information

    We understand that representatives of mutual funds, transfer
agents, and broker-dealers are currently engaged in an effort, in order
to implement the information-sharing provisions of rule 22c-2, to
develop standardized contractual terms and information exchange
protocols.\45\ We support the work of the representatives in developing
these standards, and urge others involved with the distribution of
mutual fund shares to become involved in this effort. We direct our
staff to provide appropriate assistance.
---------------------------------------------------------------------------

    \45\ See Comment Letter of the Securities Industry Association
(May 9, 2005) (noting that the SIA has been ``exploring with ICI the
possible development of prototype contractual terms and approved
methodologies for transmission of fund transactions data between
intermediaries and funds'').
---------------------------------------------------------------------------

V. Ongoing Monitoring

    As discussed above, this release addresses only certain technical
issues that have arisen to date. We intend, however, to monitor
implementation of the rule, and accordingly we are interested in
hearing on an ongoing basis from funds with experience complying with
the rule, and other interested parties, about any further
implementation issues or developments. In this regard, we encourage
fund shareholders, funds and other interested parties to submit
feedback as they develop experience with the rule. For example, we
understand that the industry is developing a number of initiatives to
streamline the flow of shareholder data between funds and
intermediaries. If those initiatives are implemented, we would be
interested in knowing whether they have assisted funds in complying
with the rule. We also would be interested in hearing feedback with
respect to issues such as the following:
     How have the required board findings with respect to the
necessity and propriety of a redemption fee worked in practice?
     How has the rule affected the use of redemption fees by
funds?
     How has the rule affected the level of redemption fees and
the percentage of funds imposing redemption fees?
     How has the rule affected the length of redemption
periods?
     Has the rule resulted in any unexpected benefits or
adverse consequences for fund shareholders?
    Feedback may be provided to the Commission by any of the following
methods:

Electronic Submissions

     Use the Commission's Internet submission form at http://www.sec.gov/rules/proposed.shtml.
; or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number 4-512 on the subject line.

Paper Submissions

     Send paper submissions in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.

All submissions should refer to File Number 4-512. This file number
should be included on the subject line if e-mail is used. To help us
process and review your submissions more efficiently, please use only
one method. The Commission will post all submissions on the
Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml
). Submissions are also available for public inspection

and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549. All submissions received will be posted
without change;

we do not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly.

VI. Cost-Benefit Analysis

    The Commission is sensitive to the costs and benefits imposed by
its rules. As discussed above, the amendments we are proposing today
would (i) limit the types of persons with which funds must negotiate
agreements, (ii) address the rule's application to chains of
intermediaries, and (iii) clarify the effect of a fund's failure to
obtain an agreement with any of its intermediaries. These proposed
amendments are designed to respond to concerns that commenters
identified during the course of implementing rule 22c-2. We believe
that the changes would result in substantial cost savings to funds,
financial intermediaries, and investors, and provide clarification of
the rule's requirements.

A. Benefits

    We anticipate that funds, financial intermediaries, and investors
will benefit from the proposed amendments to rule 22c-2. As discussed
more fully in the Adopting Release we issued in 2005, rule 22c-2 is
designed to allow a fund to deter, and to provide the fund and its
shareholders reimbursement for the costs of, short-term trading in fund
shares.\46\ The general benefits of rule 22c-2 therefore include the
deterrence of short-term trading, in which short-term traders cause the
fund to incur expenses that are ultimately borne by the long-term
shareholders in a fund. Short-term trading can disrupt funds' stated
portfolio management strategies, increase funds' transaction costs,
require the maintenance of elevated cash positions (thereby reducing
funds' returns), and dilute the value of fund shares held by long-term
shareholders. One benefit of discouraging short-term trading is to
increase the confidence of long-term investors in the capital markets
as a whole, and in funds in particular. Rule 22c-2 is also designed to
foster greater cooperation between funds and their intermediaries, and
may result in improved communication and transparency of information
between them.
---------------------------------------------------------------------------

    \46\ See Adopting Release, supra note 4, at Section IV.A.
---------------------------------------------------------------------------

    Rule 22c-2 explicitly allows funds to adopt redemption fees of up
to two percent as a means of recouping costs associated with short-term
trading in fund shares. If a fund's board adopts a redemption fee, the
resulting revenues will be returned to the fund and its investors. The
revenue that funds and investors receive from redemption fees
reimburses long-term shareholders for some, if not all, of the costs
caused by short-term traders. Many of the costs associated with rule
22c-2 discussed below are incidental to this purpose of better enabling
funds to collect redemption fees from short-term traders in order to
reimburse investors for any dilution of the fund. In many cases, the
revenue received from redemption fee proceeds may be enough to allow
funds to recoup both the direct and indirect costs associated with
short-term trading. For example, based on conversations with fund
representatives, we understand that one large fund complex collected
approximately $34 million in redemption fee revenue in 2004. Funds that
choose not to adopt redemption fees would not collect these fees, but
would continue to realize the other benefits discussed below.
    The amendments to rule 22c-2 that we are proposing today will
likely result in additional benefits to funds, financial
intermediaries, and investors. As discussed in the previous sections of
this Release, some commenters argued that the rule's definition of
``financial intermediary'' was too broad because it would have required
funds to identify and enter into agreements with a number of
intermediaries that may not pose a significant short-term trading risk
to funds, and may have imposed unnecessary costs to market
participants.\47\ For example, one large fund complex asserted that,
under the rule as adopted, identifying their ``financial
intermediaries'' could cost that fund complex $8.5 million or more.\48\
As discussed above, our proposed amendments would modify the definition
of financial intermediary to exclude entities that a fund treats as an
individual investor for purposes of the fund's policies on market
timing or frequent trading. We believe that these amendments would
reduce the burden on funds of identifying those entities that might
have qualified as financial intermediaries under the rule as adopted,
because a fund should already know which entities it treats as
intermediaries for purposes of its policies on market timing or
frequent trading. As further discussed in Section VIII below, for
purposes of the Paperwork Reduction Act we have estimated that, if
these amendments are adopted, identifying the intermediaries with which
a fund complex must enter into agreements may take the average fund
complex a total of 250 hours of a service representative's time, at a
cost of $40 per hour,\49\ for a total burden to all funds of 225,000
hours, at a total cost of $9 million. These amendments would likely
provide a significant benefit because they should reduce the costs
associated with the intermediary identification process.
---------------------------------------------------------------------------

    \47\ Comment Letter of the ICI at 3 (May 9, 2005). The ICI
stated in its comment letter that, under the rule as adopted last
March, three large fund complexes alone would have to evaluate 6.5
million accounts that are ``not in the name of a natural person and
thus could be held as an intermediary for purposes of the rule'' and
might have to enter into agreements with a significant portion of
those accounts that are held in nominee name. Id. at 3. The ICI
noted that many of these accounts are likely associated with small
retirement plans, small businesses, trusts, bank nominees and other
entities that are unlike typical financial intermediaries such as
broker-dealers. It added that funds typically do not have agreements
with such small entities, other than agreements incidental to the
opening of an account.
    \48\ This estimate is based on telephone conversations with
representatives of that fund complex.
    \49\ See infra note 69.
---------------------------------------------------------------------------

    By enabling funds to forego the cost of entering into agreements
with omnibus accountholders that they treat as individual investors, we
anticipate that the large majority of small omnibus accountholders
would now fall outside the shareholder information agreement provisions
of the rule. This would likely result in significant cost and time
savings to funds and financial intermediaries through reduction of the
expenses associated with these agreements. The reduction of these costs
also may benefit fund investors and fund advisers, to the extent that
these costs would have been passed on to them. We estimate that this
would significantly reduce the burden on many entities that would
otherwise qualify as intermediaries under the rule, since the excluded
entities would no longer need to enter into shareholder information-
sharing agreements, or develop and maintain systems to provide the
relevant information to funds.
    Commenters were also concerned that the rule as adopted might have
required funds to enter into agreements with intermediaries that hold
fund shares in the name of other intermediaries (a ``chain of
intermediaries''), potentially resulting in a fund having to enter into
agreements with intermediaries with which it may not have a direct
relationship (i.e., indirect intermediaries).\50\ The proposed
amendments would further clarify and define the operation of the rule
with respect to intermediaries that invest through other
intermediaries. As

proposed, the amendments to rule 22c-2 would define the term
``shareholder information agreement,'' and provide that funds need only
enter into shareholder information agreements with intermediaries that
directly submit orders to the fund, its principal underwriter, transfer
agent, or to a registered clearing agency. Accordingly, funds would not
need to enter into agreements with indirect intermediaries and may
incur lower systems development costs related to the collection of
underlying shareholder information, thereby reducing the costs of
compliance.
---------------------------------------------------------------------------

    \50\ See Comment Letter of T. Rowe Price Associates, Inc. at 2
(May 24, 2005); Comment Letter of OppenheimerFunds, Inc. at 3 (May
9, 2005).
---------------------------------------------------------------------------

    Under the proposed amendments, a first-tier intermediary, in its
agreement with the fund, must agree, upon further request by the fund,
to: (i) Provide the fund with the underlying shareholder identification
and transaction information of any other intermediary that trades
through the first-tier intermediary (i.e., indirect intermediary); or
(ii) prohibit the indirect intermediary from purchasing, on behalf of
itself or others, securities issued by the fund. This approach is
designed to preserve the investor protection goals of the rule by
ensuring that funds have the ability to identify short-term traders
that may attempt to evade the reach of the rule by trading through
chains of financial intermediaries. We considered not requiring the
collection of shareholder information from indirect intermediaries at
all, but are concerned that providing such an exemption might encourage
abusive short-term traders to conduct their activities through another
intermediary in order to avoid detection by the fund.
    By defining minimum standards for what must be included in these
shareholder information agreements, we have attempted to balance the
need for funds to acquire shareholder information from indirect
intermediaries who trade in fund shares, with practical concerns
regarding the difficulty that funds might face in identifying these
intermediaries and entering into agreements with them. Because the
intermediary that trades directly with the fund already has a
relationship with second-tier intermediaries, (and is likely to have a
closer relationship than the fund to any intermediary that is farther
down the ``chain'') the first-tier intermediary appears to be in the
best position to arrange for the provision of information to the fund
regarding the transactions of shareholders trading through its indirect
intermediaries. By providing a definition of the term ``shareholder
information agreement,'' the amended rule would more clearly explain
the balance of duties and obligations between funds and financial
intermediaries. Because first-tier intermediaries may already have
access to the shareholder transaction and identification information of
their indirect intermediaries, they will likely be able to provide this
information to funds at a minimal cost, especially compared to the
significant costs that funds would incur if they were required to
collect the same information from indirect intermediaries themselves.
Although first-tier intermediaries may incur some costs in collecting
and gathering this information from indirect intermediaries, there is a
benefit in having the entity that has the easiest access to the
relevant information have the responsibility for arranging for its
delivery to funds.
    As discussed in the previous sections, these proposed amendments
clarify the result if a fund lacks an agreement with a particular
intermediary. In such a situation, the fund may continue to redeem
securities within seven calendar days, but it must prohibit that
financial intermediary from purchasing fund shares, on behalf of itself
or any other person. Some commenters had stated that the rule, as
adopted in 2005, could be interpreted to require a different approach
to these situations.\51\ The proposed amendments would provide the
benefit of certainty regarding the duties of funds and financial
intermediaries under the rule, and clarity concerning the intent of the
Commission, without imposing additional costs.
---------------------------------------------------------------------------

    \51\ See Comment Letter of the ICI at 4 (May 9, 2005).
---------------------------------------------------------------------------

B. Costs

    Many commenters expressed concerns about the costs of rule 22c-2 as
we adopted it in 2005. As discussed above, we anticipate that the
proposed amendments would allow funds, financial intermediaries, and
investors to incur significantly reduced costs under the rule as we
propose to amend it, compared to the rule as it was originally adopted.
Although these proposed amendments would reduce many of the costs of
the rule, they should nonetheless maintain the investor protections
afforded by the rule.
    The primary result of these proposed amendments would be to reduce
the number of financial intermediaries with which funds must enter into
shareholder information agreements. This should reduce costs to all
participants by allowing funds to enter into shareholder information
agreements only with those intermediaries that hold omnibus accounts
that are most likely to trade fund shares frequently. The rule's
investor protections will be maintained because funds will continue to
monitor the short-term trading activity of the rest of the fund's
omnibus accounts as if they were individual investors in the fund,
according to the fund's policies on short-term trading.
    A number of costs are associated with the shareholder information
agreement provision of the rule, both as adopted and as we propose to
revise it. These costs are incurred by both funds and financial
intermediaries, and include: (i) Identifying those accounts that
qualify as financial intermediaries; (ii) modifying existing agreements
with intermediaries to cover the shareholder collection requirements of
the rule or, if no agreement exists, entering into a new agreement;
(iii) developing systems that assemble and transmit shareholder
information between funds and intermediaries; and (iv) maintaining and
monitoring the systems and the shareholder information collected on an
ongoing basis. The specific costs incurred by each fund and financial
intermediary may vary widely. Among other factors, these costs will
vary based upon the size of each entity, the number of accounts
handled, the number of shareholder agreements that must be modified or
entered into, the size and complexity of the systems developed to
handle the information, whether or not a fund determines that it needs
a redemption fee, whether the fund has policies on the intermediaries
it treats as individual investors, and the specific policies on short-
term trading that a fund has adopted.
    The proposed amendments would reduce the number of entities that
would be considered financial intermediaries under the rule. Commenters
raised concerns about the costs of identifying which accountholders are
financial intermediaries, but did not identify specific costs related
to this review.\52\ In any event, the costs related to this

review would be greatly reduced under the rule as we propose to revise
it, because we expect that a fund will generally already have
identified those accountholders that it does not treat as an individual
investor for purposes of its restrictions on short-term trading. As
discussed above in the benefits section, for purposes of the Paperwork
Reduction Act, we have estimated that completion of this identification
process will cost all funds a total of approximately $9 million.
---------------------------------------------------------------------------

    \52\ As discussed above, the ICI noted that, between just three
large fund complexes, 6.5 million accounts may need to be reviewed,
and estimated that the total number of accounts which would be
evaluated by all funds could be in the ``tens of millions.'' Comment
Letter of the ICI at 3 (May 9, 2005). OppenheimerFunds noted that,
although it has more than 7.5 million shareholder accounts in its
records, 137,000 or fewer of those accounts may qualify as financial
intermediaries under the rule as adopted last spring. See Comment
Letter of OppenheimerFunds, Inc. at 8 (May 9, 2005). Neither
commenter estimated the costs of performing this review.
---------------------------------------------------------------------------

    We received a few comments regarding the number of accounts
maintained by funds that qualify as financial intermediaries.\53\
Commenters indicated that revising the rule in the manner that we are
proposing today would significantly reduce the costs of entering into
or modifying these agreements, as well as the costs of developing,
maintaining and monitoring the systems that will collect the
shareholder information related to these agreements for funds.\54\
Omnibus accountholders that previously would have qualified as
financial intermediaries are also likely to realize substantial savings
under the amended rule. When an omnibus accountholder is treated as an
individual investor (or does not trade directly with the fund), such an
omnibus account will no longer be treated as a financial intermediary
and will not incur the costs of entering into or modifying agreements
with that fund. There will also no longer be the start-up and ongoing
costs of developing and maintaining shareholder information-sharing
systems for those accountholders.
---------------------------------------------------------------------------

    \53\ OppenheimerFunds estimated that it has 137,000 omnibus
accounts that might qualify as financial intermediaries, USAA
Investment Management Company stated that it has ``thousands'' of
these accounts, and T. Rowe Price estimated 1.3 million accounts
that are not registered as natural persons. See Comment Letter of
OppenheimerFunds, Inc. at 8 (May 9, 2005); Comment Letter of USAA
Investment Management Company at 2 (May 9, 2005); Comment Letter of
T. Rowe Price Associates, Inc. at 2 (May 24, 2005).
    \54\ See Comment Letter of USAA Investment Management Company at
2 (May 9, 2005); Comment Letter of the ICI at 3 (May 9, 2005).
---------------------------------------------------------------------------

    We received a few comments regarding the costs of modifying or
entering into shareholder information agreements. The only commenter
that gave specific numbers indicated that it would take approximately
four hours to modify and/or enter into, follow-up on, and maintain an
agreement on its systems for each account identified as a financial
intermediary.\55\ The same commenter indicated that it may have as many
as 137,000 accounts that might qualify as financial intermediaries
under the rule as adopted. We anticipate that if we adopt the proposed
revisions, the large majority of the omnibus accountholders that would
have qualified as financial intermediaries under the rule as adopted,
would instead be treated as individual investors by funds, and
therefore no new agreements would be required. Based on conversations
with fund representatives, we anticipate that in most cases complying
with the amended rule will require a very limited number of new
agreements between funds and intermediaries (in many cases virtually no
new agreements would be required). We understand that the number of
existing agreements that funds have with their intermediaries can vary
greatly, from less than 10 agreements for a small direct-sold fund, to
more than 3000 for a very large fund sold through various channels.
Although funds will still need to modify the existing agreements that
they have with their intermediaries (i.e., distribution agreements), we
believe that these proposed revisions would greatly reduce or eliminate
the need for most funds to identify and negotiate new agreements. Funds
are also likely to incur lower costs when modifying existing agreements
than when entering into new agreements, and the actual hours required
to modify an existing agreement thus may be significantly less than the
four hour figure suggested by the commenter.\56\ Accordingly, under the
cost estimates provided by this commenter, the cost reduction that may
result if the proposed amendments were adopted for a fund complex in a
similar position as the commenter could be 536,000 hours.\57\
---------------------------------------------------------------------------

    \55\ See Comment Letter of OppenheimerFunds, Inc. at 8 (May 9,
2005).
    \56\ See Section VIII below for a discussion, in the context of
the Paperwork Reduction Act, of some of the estimated costs of the
shareholder information agreement and information-sharing system
development and operations aspects of the rule as we propose to
amend it.
    \57\ See Comment Letter of OppenheimerFunds, Inc. (May 9, 2005).
This estimate is based on the following calculations: 137,000
potential accounts times 4 hours per account equals 548,000
potential hours. However, the proposed amendments might eliminate
the burden of reviewing and modifying those 137,000 potential
accounts, and could limit the burden to a far reduced number,
perhaps 3000 agreements for a very large fund. (3000 agreements to
be modified times 4 hours equals 12,000 hours.) Instead of
potentially incurring 548,000 hours complying with the agreement
portion of the rule, a similar fund might incur 12,000 hours in
modifying its existing agreements, for a savings of 536,000 hours.
(548,000 potential hours minus 12,000 hours equals 536,000 hours
saved).
---------------------------------------------------------------------------

    Based on further information that our staff has obtained, for
purposes of the Paperwork Reduction Act as discussed below, we have
estimated that it will cost all funds and financial intermediaries a
total of approximately $53,550,000 to enter into and/or modify the
agreements required under the amended rule.\58\ This represents a
significant cost reduction from the most recent estimates provided to
us in response to the rule's adoption.\59\
---------------------------------------------------------------------------

    \58\ See infra Section VIII.
    \59\ However, this revised estimate is an increase over the
amount we estimated in the Adopting Release ($3,353,279) for funds
and intermediaries to enter into information-sharing agreements. See
Adopting Release, supra note 4, at n.108. In response to our request
for comment on any aspect of the rule's implementation, we received
new information and updated estimates that noted that the cost of
entering into agreements for funds and intermediaries would be
significantly higher than the estimate included in the Adopting
Release. After reviewing the comments we received in response to the
Adopting Release, as well as other information received from fund
representatives, we now estimate that on average, a fund complex
might incur $250,000 or more in expenses related to entering into or
modifying the agreements required under the rule as adopted. With
approximately 900 fund complexes currently operating, we now
estimate that the agreement portion of the rule as adopted could
potentially cost all funds a total of approximately $225,000,000.
Despite the increase in estimated costs for entering into agreements
that we have included here over the cost estimates included in the
Adopting Release, we anticipate that the proposed amendments would
reduce the costs of the agreement portion of the rule as adopted by
approximately $171,450,000 ($225,000,000 (updated cost estimate)
minus $53,550,000 (cost estimate after proposed amendments) equals
$171,450,000 (total potential cost reduction)).
---------------------------------------------------------------------------

    There will also be some costs related to the amendments we are
proposing to make in the context of chains of intermediaries. By
clearly defining the duties that a fund's agreement must impose on
intermediaries in the ``chain of intermediaries'' context, the proposed
rule amendments may result in first-tier intermediaries incurring some
costs that might otherwise have been borne by funds. These may include
costs related to negotiating agreements (if necessary) with indirect
intermediaries, processing requests from funds to investigate accounts,
costs related to collecting and providing the underlying shareholder
information to funds from the indirect intermediaries and restricting
further trading by indirect intermediaries if the fund requests it. We
believe that first-tier intermediaries are in a better position than
funds to fulfill these obligations. Unlike funds, first-tier
intermediaries have a direct relationship with second-tier
intermediaries (and may be in a better position than funds to collect
information from other indirect intermediaries), and will thus be able
to identify, communicate with, and collect information from these
indirect intermediaries at a lower cost than if funds were to conduct
such activities. First-tier intermediaries are also in a better
position than funds to identify and gather shareholder

information from more distant indirect intermediaries because of their
relationships with second-tier intermediaries.
    As further discussed in connection with the Paperwork Reduction
Act, we have estimated that the costs of entering into arrangements
between first-tier and more indirect intermediaries would be
approximately $63 million.\60\ We anticipate that intermediaries will
generally use the same systems that they use to provide the required
underlying shareholder identity and transaction information directly to
funds to process the information that first-tier intermediaries will
forward (or have forwarded) to funds from indirect intermediaries, thus
resulting in significant cost efficiencies.
---------------------------------------------------------------------------

    \60\ See infra Section VIII.
---------------------------------------------------------------------------

    Funds and intermediaries may also incur some costs related to
drafting or revising terms for the agreements required by rule 22c-2.
We have been informed that industry representatives are working
together to develop a uniform set of model terms, and anticipate that
such model terms may significantly reduce the costs related to
developing individualized agreement terms for each fund and
intermediary. As further discussed in Section VIII, for purposes of the
Paperwork Reduction Act, we estimate that a typical fund complex will
incur a total of 5 hours of legal time at $300 per hour in drafting
these agreement terms, for a total of 4500 hours for all 900 fund
complexes at a total cost of $1,350,000.
    We understand that several service providers are developing systems
to accommodate the transmission and receipt of transaction information
between funds and intermediaries pursuant to contracts negotiated to
comply with rule 22c-2.\61\ At least one of these organizations is
revising the infrastructure that it already has in place, in order to
facilitate the communication of fund trades and other ``back office''
information between funds and financial intermediaries, including the
information required under the rule. Based on information from industry
representatives, we understand that, with the exception of some smaller
to mid-sized funds and intermediaries, the large majority of funds and
intermediaries currently use the organization's existing infrastructure
to process fund trades. In addition, some funds and intermediaries may
develop their own competing or complementary information-sharing
systems.
---------------------------------------------------------------------------

    \61\ See supra note 40.
---------------------------------------------------------------------------

    As further described in connection with the Paperwork Reduction
Act, we estimate that all funds will incur a total of approximately
$47,500,000 in one-time capital costs to develop or upgrade their
software and other technological systems to collect, store, and receive
the required identity and transaction information from intermediaries,
and a total of $21,515,000 each year thereafter in operation costs
related to the transmission and receipt of the information.\62\ We
further estimate that financial intermediaries may incur $227,500,000
in one-time capital costs to develop or upgrade their software and
other technological systems to collect, store, and transmit the
required identity and transaction information to funds and from other
intermediaries, and a total of $140,000,000 each year thereafter in
operation costs related to the transmission and receipt of the
information.
---------------------------------------------------------------------------

    \62\ See infra Section VIII.
---------------------------------------------------------------------------

    For the reasons discussed above, we anticipate that the proposed
amendments would not create additional costs beyond the rule as
adopted. In fact, we anticipate that the amendments may significantly
reduce costs to most market participants.\63\
---------------------------------------------------------------------------

    \63\ See infra note 105.
---------------------------------------------------------------------------

C. Request for Comments

    We request comment on the potential costs and benefits of the
proposed amendments to rule 22c-2. We encourage commenters to identify,
discuss, analyze, and supply relevant data regarding any additional
costs and benefits. For purposes of the Small Business Regulatory
Enforcement Fairness Act of 1996,\64\ we also request information
regarding the potential impact of the proposals on the U.S. economy on
an annual basis.
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    \64\ Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
---------------------------------------------------------------------------

VII. Consideration of Promotion of Efficiency, Competition and Capital
Formation

    Section 2(c) of the Investment Company Act requires the Commission,
when engaging in rulemaking that requires it to consider or determine
whether an action is necessary or appropriate in the public interest,
to consider whether the action will promote efficiency, competition,
and capital formation. As discussed in the Cost-Benefit Analysis above,
the proposed amendments to rule 22c-2 are designed to reduce the
burdens of the rule as adopted, while maintaining its investor
protections. Funds would no longer be required to incur the expense of
modifying or entering into agreements with omnibus accounts that they
already effectively monitor by treating as individual investors, and
would not need to enter into agreements with intermediaries that do not
trade directly with the fund. The proposed amendments would promote
efficiency in the capital markets by enabling funds to focus their
short-term trading deterrence efforts on those omnibus accounts that
could be used to disguise this type of trading. The amendments would
also promote efficiency by reducing the number of omnibus
accountholders that would otherwise incur the expenses of entering into
agreements, and of establishing and maintaining systems for collecting
and sharing shareholder information.
    We do not anticipate that the proposed amendments would harm
competition. They would apply to all market participants and, as
discussed in the Cost-Benefit Analysis above, serve to reduce cost
burdens for large funds as well as small funds.\65\ Some commenters
expressed concern that the rule as adopted may disproportionately
burden small intermediaries, and thus hinder competition. We anticipate
that under the proposed amendments, most omnibus accounts that are
treated by the fund as individual investors would be small
intermediaries. By excluding these small intermediaries from the rule's
requirements, the amendments would serve to alleviate potential anti-
competitive effects on small intermediaries.
---------------------------------------------------------------------------

    \65\ See supra Section IV.
---------------------------------------------------------------------------

    Even if the proposed amendments are adopted, the competitive
pressure of marketing funds, especially smaller funds, coupled with the
costs of imposing redemption fees in omnibus accounts, may deter some
funds from imposing redemption fees. Intermediaries may use their
market power to prevent funds from applying the fees, or provide
incentives for fund groups to waive fees. However, by reducing the
costs of imposing redemption fees for both funds and intermediaries, we
believe that any such anti-competitive effects will likely be reduced.
    We anticipate that the proposed amendments will indirectly foster
capital formation by continuing to bolster investor confidence, because
the rule is designed to permit funds to deter, and recoup the costs of,
abusive short-term trading. To the extent that the rule enhances
investor confidence in funds, investors are more likely to make assets
available through intermediaries for investment in the capital markets.
The proposed amendments may also

foster capital formation by reducing the costs of the rule for funds
and intermediaries.
    We request comments on whether the proposed rule amendments, if
adopted, would promote efficiency, competition, and capital formation.
Will the proposed amendments or their resulting costs materially affect
the efficiency, competition, and capital formation of funds and other
businesses? Comments will be considered by the Commission in satisfying
its responsibilities under section 2(c) of the Investment Company Act.
Commenters are requested to provide empirical data and other factual
support for their views to the extent possible.

VIII. Paperwork Reduction Act

    As discussed in the release in which we adopted rule 22c-2,\66\ the
rule includes ``collection of information'' requirements within the
meaning of the Paperwork Reduction Act of 1995.\67\ The Commission is
submitting the proposed collections of information to the Office of
Management and Budget (``OMB'') for review in accordance with 44 U.S.C.
3507(d) and 5 CFR 1320.11. The title for the collection of information
requirements associated with the rule is ``Rule 22c-2 under the
Investment Company Act of 1940, Redemption fees for redeemable
securities.'' An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid control number.
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    \66\ See Adopting Release, supra note 4, at Section VI.
    \67\ 44 U.S.C. 3501-3520.
---------------------------------------------------------------------------

    The proposed amendments would reduce the burdens associated with
the collections of information required by the rule, and would not
create new collections of information. The proposed amendments should
reduce the number of entities affected by the rule as adopted. We are
therefore proposing to revise our previous burden estimates under the
Paperwork Reduction Act to reflect (i) new cost and time burden
information that we have received from market participants, and (ii)
the revised number of entities that would be affected by the amended
rule.
    This revised Paperwork Reduction Act section contains a number of
new cost and hour estimates that are significantly altered from the
estimates made in the Adopting Release. Some of these estimates are
based on different methods, and different sources, from those in the
Adopting Release. Therefore there is not a strict comparability between
the estimates here and those made in the Adopting Release. These cost
estimates, hourly rate estimates, and the methodology used to make
these proposed estimates are based on comments we received in response
to the Adopting Release, and on information received from funds,
intermediaries, and other market participants during conversations
conducted while preparing these proposed amendments. We request comment
on any aspect of our staff's estimates regarding the costs of complying
with the rule as we propose to amend it.
    The amendments we are proposing to rule 22c-2 include two distinct
``collections of information'' for purposes of the Paperwork Reduction
Act. The first is related to shareholder information agreements,
including the costs and time related to identifying the relevant
intermediaries, drafting the agreements, negotiating new agreements or
modifying existing ones, and maintaining the agreements in an easily
accessible place. The second is related to the costs and time related
to developing, maintaining, and operating the systems to collect,
transmit, and receive the information required under the shareholder
information agreements.\68\
---------------------------------------------------------------------------

    \68\ This second collection of information does not include
potential costs or time that funds or intermediaries might choose to
incur in analyzing or using the provided information.
---------------------------------------------------------------------------

    Both collections of information are mandatory for funds that choose
to redeem shares within seven days of purchase. These funds will use
the information collected to ensure that shareholders comply with the
fund's policies on abusive short-term trading of fund shares. There is
a six year recordkeeping retention requirement for the shareholder
information agreements required under the rule.

A. Shareholder Information Agreements

    The Commission staff anticipates that most shareholder information
agreements will be entered into at the fund complex level, and
estimates that there are approximately 900 fund complexes. The
Commission staff understands that the number of intermediaries that
hold fund shares can vary for each fund complex, from less than 10 for
some fund complexes to more than 3000 for others. Based on
conversations with fund and financial intermediary representatives, our
staff estimates that, on average, under the revised definition of
financial intermediary, each fund complex would have approximately 300
financial intermediaries. Industry representatives have informed us
that funds would already know and have previously identified the
majority of their intermediaries. Therefore funds should expend a
limited amount of time and costs related to the identification of such
intermediaries. Our staff estimates that identifying the intermediaries
with which a fund complex must enter into agreements may take the
average fund complex 250 hours of a service representative's time at a
cost of $40 per hour,\69\ for a total of 225,000 hours at a cost of
$9,000,000.\70\ Our staff estimates that for a fund complex to prepare
the model agreement, or provisions modifying a preexisting agreement,
between the fund and the intermediaries, it will require a total of 5
hours of legal time at $300 per hour, for a total of 4500 hours \71\ at
a total cost of $1,350,000.
---------------------------------------------------------------------------

    \69\ The title and hourly cost of the person performing the
intermediary identification and entering into agreements may vary
depending on the fund or financial intermediary. This $40 per hour
cost is an average estimate for the hourly cost of employing the
person doing the relevant work, derived from conversations with
industry representatives.
    \70\ This estimate is based on the following calculations: 250
hours times 900 fund complexes equals 225,000 hours, and 225,000
hours times $40 equals $9,000,000.
    \71\ This estimate is based on the following calculation: 5
hours times 900 fund complexes equals 4500 hours of legal time.
---------------------------------------------------------------------------

    The Commission staff estimates that for a fund complex to enter
into or modify a shareholder information agreement with each existing
intermediary, it would require a total one-time expenditure of
approximately 2.5 hours of fund time and 1.5 hours of intermediary time
for each agreement, for a total of 4 hours expended per agreement.\72\
Therefore, for an average fund complex to enter into shareholder
agreements, the fund complex and its intermediaries may expend
approximately 1200 hours at a cost of $48,000,\73\ and all fund
complexes and intermediaries may incur a total one-time burden of
1,080,000 hours at a cost of $43,200,000.\74\ The Commission staff
understands that there are efforts under way (including an industry
task force

devoted to the project) to produce standardized shareholder
information-sharing model agreements and terms. If fruitful, these
efforts may reduce the costs associated with the agreement provision of
the rule for both funds and intermediaries.\75\ Finally, the Commission
staff does not anticipate that funds or intermediaries will incur any
new costs in maintaining these agreements in an easily accessible
place, because such maintenance is already done as a matter of course.
---------------------------------------------------------------------------

    \72\ The 4 hour figure represents time incurred by both the fund
and the financial intermediary for each agreement. The Commission
staff estimates that this 4 hour figure is comprised of
approximately 2.5 hours of a fund service representative's time at
$40 per hour and 1.5 hours of an intermediary representative's time
at $40 per hour.
    \73\ This estimate is based on the following calculations: 4
hours times 300 intermediaries equals 1200 hours; and 1200 hours
times $40 dollars per hour equals $48,000.
    \74\ This estimate is based on the following calculations: 1200
hours times 900 fund complexes equals 1,080,000 hours; and 1,080,000
hours times $40 per hour equals $43,200,000.
    \75\ See Tom Leswing, Redemption Rule Fuels Demand For New
Standards, Ignites (Oct. 26 2005).
---------------------------------------------------------------------------

    The staff therefore estimates that, for purposes of the Paperwork
Reduction Act, the shareholder information agreement provision of the
rule as proposed to be revised would require a total of 1,309,500 hours
at a total cost of $53,550,000.\76\
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    \76\ This estimate is based on the following calculation: 4,500
hours of legal drafting time plus 1,080,000 hours of agreement
negotiating time plus 225,000 hours of intermediary identification
time equals 1,309,500 total hours; and $43,200,000 plus $1,350,000
plus $9,000,000 equals $53,550,000.
---------------------------------------------------------------------------

B. Information-Sharing

    Some funds and intermediaries would incur the system development
costs discussed in this section, but many would not because they
already process all of their trades on a fully disclosed basis, use a
third party administrator to handle their back office work,\77\ or
already have systems in place that allow intermediaries to transmit the
shareholder identity and transaction information to funds. Other funds
and intermediaries may have special circumstances that could increase
the costs they may face in developing and operating systems to comply
with the rule. The estimates below represent the Commission staff's
understanding of the average costs that might be encountered by a
typical fund complex or intermediary in complying with the information-
sharing aspect of the rule as proposed to be amended.
---------------------------------------------------------------------------

    \77\ Third party administrators maintain accounts for many other
intermediaries, and therefore incur the costs to develop a single
system.
---------------------------------------------------------------------------

1. Funds
    The Commission staff understands that various organizations have
developed, or are in the process of developing, enhancements to their
systems that will allow funds and intermediaries to share the
information required by the rule without developing or maintaining
systems of their own.\78\ Our staff anticipates that most funds and
intermediaries will use these systems, and will generally make minor
changes to their back office systems to comply with the rule
requirements and to match their systems to those of the service
providers. Our staff estimates that most funds could adapt their in-
house systems to utilize these service providers' systems at a one-time
cost of approximately $10,000 or less.\79\ In general, our staff
understands that fees averaging 25 cents for every 100 account
transactions requested may be charged when funds request information
from intermediaries, and in response, intermediaries transmit the
information back to funds.
---------------------------------------------------------------------------

    \78\ These service providers systems include the NSCC's Fund/
SERV system, as well as other systems being developed by a number of
other providers such as SunGard and Charles Schwab. See supra note
40.
    \79\ We expect that, in many cases, upgrades to fund transfer
agents' as well as fund complex's systems will take place, and the
transfer agents' costs will be charged back to the fund complex.
These system development and operation costs include our staff's
estimates of the potential charges by transfer agents, but do not
include potential charges by intermediaries for providing the
information.
---------------------------------------------------------------------------

    As an example of the cost of using these services, if a fund
complex requests information for 100,000 transactions each week, then
it would incur costs of $250 each week, or $13,000 a year.\80\ Our
staff estimates that approximately 475 fund complexes would use these
systems (including substantially all of the largest, and most of the
medium-sized, fund families). If all of these complexes use these
service providers' systems at the rate described above, they would
incur a one-time system development cost of $4,750,000 \81\ and an
annual system use cost of approximately $6,175,000.\82\ Those 475 fund
complexes may also incur system development costs related to the
processing of information under the rule on trades that they receive
through other channels than these service providers' systems, which we
estimate to cost approximately $50,000 per fund complex, and $20,000
annually, for a total of $23,750,000 \83\ in system development costs
and $9,500,000 annually.\84\ Our staff estimates that the total system
development cost for these 475 fund complexes that are likely to use
these existing systems is $28,500,000 with annual operation costs of
$15,675,000.\85\
---------------------------------------------------------------------------

    \80\ This estimate is based on the following calculations:
100,000 transaction requests times one quarter of a cent (the charge
is 25 cents per 100 transactions requested, or one quarter of a cent
per transaction) equals $250; and $250 times 52 weeks equals
$13,000.
    \81\ This estimate is based on the following calculation: 475
fund complexes times $10,000 (one-time system update costs) equals
$4,750,000.
    \82\ This estimate is based on the following calculation: 475
fund complexes times $13,000 (annual costs) equals $6,175,000.
    \83\ This estimate is based on the following calculation: 475
fund complexes times $50,000 system development cost per fund
complex equals $23,750,000.
    \84\ This estimate is based on the following calculation: 475
fund complexes times $20,000 annual costs per fund complex equals
$9,500,000.
    \85\ This estimate is based on the following calculations:
$23,750,000 plus $4,750,000 (one-time system development costs)
equals $28,500,000 total start-up costs for fund complexes utilizing
existing systems; and $6,175,000 plus $9,500,000 equals $15,675,000
in annual costs.
---------------------------------------------------------------------------

    There are approximately 900 fund complexes currently operating, of
which approximately 475 may use these existing systems, leaving
approximately 425 fund complexes possibly needing to develop specific
systems to meet their own particular needs. Our staff understands that
approximately 75 percent of those fund complexes (or 319 complexes) are
small to medium-sized direct-sold funds that have a very limited number
of intermediaries. Our staff anticipates that those 319 fund complexes
would incur minimal system development costs to comply with the
information-sharing provisions of the rule, due to the limited number
of intermediaries with which they interact. Our staff estimates that
system development costs for handling information under the rule for
those 319 fund complexes will be approximately $25,000 each, with
annual operation costs of approximately $10,000, for a total system
development cost of $7,975,000 \86\ and an annual operations cost of
$3,190,000.\87\
---------------------------------------------------------------------------

    \86\ This estimate is based on the following calculations: 319
funds times $25,000 equals $7,975,000.
    \87\ This estimate is based on the following calculations: 319
funds times $10,000 equals $3,190,000.
---------------------------------------------------------------------------

    The remaining approximately 106 fund complexes may face additional
complexities or special circumstances in developing their systems. Our
staff estimates that the start-up costs for those fund complexes will
be approximately $100,000 per fund complex and the annual costs for
handling the information will be approximately $25,000, for a total
start-up cost of $10,600,000 and an annual cost of $2,650,000 for these
fund complexes.\88\
---------------------------------------------------------------------------

    \88\ This estimate is based on the following calculations: 106
funds times $100,000 equals $10,600,00; and 106 funds times $25,000
equals $2,650,000.
---------------------------------------------------------------------------

    For purposes of the Paperwork Reduction Act, our staff therefore
estimates that the information-sharing provisions of the rule as
proposed to be amended would cost all fund complexes a total of
approximately $47,075,000 in one-time capital costs to develop or
upgrade their software and other technological systems to collect,
store, and receive the required identity and

transaction information from intermediaries, and a total of $21,515,000
each year thereafter in operation costs related to the transmission and
receipt of the information.\89\
---------------------------------------------------------------------------

    \89\ This estimate is based on the following calculations:
$28,500,000 ( funds' that use service providers start-up costs) plus
$7,975,000 (direct-traded funds' start-up costs) plus $10,600,000
(other funds' start-up costs) equals $47,075,000 system development
costs; and $15,675,000 (funds' that use service providers start-up
costs) plus $3,190,000 (direct-traded funds' annual costs) plus
$2,650,000 (other funds' annual costs) equals $21,515,000 annual
funds' costs.
---------------------------------------------------------------------------

2. Intermediaries
    The Commission staff estimates that there are approximately 7000
intermediaries that may provide information pursuant to the
information-sharing provisions of rule 22c-2.\90\ Of those 7000
intermediaries, our staff anticipates that approximately 350 of these
intermediaries are likely to primarily use the existing systems that
are in place or under development.\91\ The staff understands that these
approximately 350 intermediaries include several major ``clearing
brokers'' and third-party administrators that aggregate trades and
handle the back-end work for thousands of other smaller broker-dealers
and intermediaries, thereby likely providing access to these service
providers' information-sharing systems to a significant majority of all
intermediaries in the marketplace. Our staff estimates that these
approximately 350 intermediaries would provide access to systems that
will allow for the transmission of information required by the rule and
other processing for the transactions of approximately 80 percent of
the 7000 intermediaries (5600 intermediaries) effected by the rule,
leaving 1400 intermediaries that do not in some way utilize these
systems, and that may need to develop their own systems.\92\
---------------------------------------------------------------------------

    \90\ This 7000 number is a rounded estimate, based on the number
of intermediaries that may be affected by the rule as we propose to
revise it. It consists of the following: 2203 broker-dealers
classified as specialists in fund shares, 196 insurance companies
sponsoring registered separate accounts organized as unit investment
trusts, approximately 2400 banks that sell funds or variable
annuities (the number of banks is likely over inclusive as it may
include a number of banks that do not sell registered variable
annuities or funds and/or banks that do their business through a
registered broker-dealer on the same premises), and approximately
2000 retirement plans, third-party administrators, and other
intermediaries (this number may be either over or under inclusive,
as under the rule as we propose to revise it, the actual number of
intermediaries that funds have is dependent on the precise
application of varying fund policies on short-term trading).
    \91\ See supra note 40.
    \92\ This number is based on the following calculation: 7000
total intermediaries times 20% (the percentage of intermediaries do
not use these service providers systems or use the services of the
those 350 intermediaries that do) equals 1400 intermediaries that do
not use these service providers' systems.
---------------------------------------------------------------------------

    Our staff understands that in general, the providers who have
developed or are developing these information sharing systems charge
the fund, and not the intermediary for providing these systems to
transmit shareholder identity and transaction information, or else
include access to such systems as a complementary part of their other
processing systems, and do not charge additional fees to intermediaries
for its utilization. These intermediaries may be required to develop
systems to ensure that they are able to transmit the records to these
service providers in a standardized format.\93\ Our staff estimates
that it may cost each of these 350 intermediaries approximately
$200,000 to update its systems to record and transmit shareholder
identity and transaction records to these service providers, and an
additional $100,000 each year to operate their own systems for
communicating with the service providers, for a total start-up cost of
$70,000,000, and an annual cost of $35,000,000.\94\ We understand that
these approximately 350 intermediaries may also have to upgrade their
systems to handle rule 22c-2 information on trades that do not go
through the service providers' systems. Our staff estimates that it
will cost each of those 350 intermediaries \95\ an additional $250,000
\96\ to update their systems, and $100,000 annually to process rule
22c-2 information through non service provider networks, for a total
cost of $87,500,000 in system development costs and $35,000,000 in
annual costs to process data through non service provider networks. Our
staff therefore estimates that these approximately 350 intermediaries
will incur a total of approximately $157,500,000 in start-up costs and
$70,000,000 in annual costs associated with the information-sharing
provisions of the rule.\97\
---------------------------------------------------------------------------

    \93\ Our staff anticipates that in most cases, first-tier
intermediaries will use the same or slightly modified systems that
they have developed to identify and transmit shareholder identity
and transaction information to funds when collecting and
transmitting this information from indirect intermediaries.
Therefore, we have also included the costs of developing and
operating systems to collect information from indirect
intermediaries and providing the information to funds in these
estimates.
    \94\ This estimate is based on the following calculation: 350
broker-dealer times $200,000 (start-up costs) equals $70,000,000;
and 350 broker-dealer times $100,000 (start-up costs and annual
costs) equals $35,000,000.
    \95\ The estimate includes higher costs for these 350
intermediaries in developing systems to handle non service provider
information than for remaining intermediaries to handle the same
data due to our staff's understanding that, in general, these 350
intermediaries that utilize the service provider's networks
represent the largest intermediaries in the marketplace, and will
face the highest costs in complying with the rule.
    \96\ Many of the costs that intermediaries incur in developing
and operating systems to handle this information may be recouped
from fund complexes through a variety of methods. However, it is
unclear what recoupment might take place, and therefore the cost
estimates for funds and intermediaries are made here prior to any
potential recoupment.
    \97\ This estimate is based on the following calculations:
$70,000,000 (intermediary start-up costs for processing information
through service providers) plus $87,500,000 (intermediary start-up
costs for handling information through other channels) equals
$157,500,000; and $35,000,000 (intermediary annual costs for
processing information through service providers) plus $35,000,000
(intermediary annual costs for handling information through other
channels) equals $70,000,000.
---------------------------------------------------------------------------

    The fund complexes and intermediaries that do not use these service
providers' systems to process their trades would have to either develop
their own systems to share information under the rule or engage some
other third-party administrator to process the information. Our staff
estimates that approximately 1400 intermediaries will not utilize these
service provider systems to process this information, and estimates
that each of these intermediaries will incur $50,000 in system
development costs and $50,000 in annual costs in complying with the
rule, for a total of $70,000,000 in development costs and $70,000,000
in annual costs for those intermediaries.\98\ We understand that there
is a task force that is in the process of developing industry standards
for transmitting information under the rule between market participants
that do not use these service provider systems.\99\ This is likely to
reduce costs to both funds and intermediaries.
---------------------------------------------------------------------------

    \98\ This estimate is based on the following calculation: 1400
intermediaries times $50,000 (development costs) equals $70,000,000;
and 1400 intermediaries times $50,000 (annual costs) equals
$70,000,000.
    \99\ See Tom Leswing, Redemption Rule Fuels Demand For New
Standards, Ignites (Oct. 26 2005).
---------------------------------------------------------------------------

    Our staff estimates that the information-sharing provisions of the
rule will cost all intermediaries a total of approximately $227,500,000
in one-time capital costs to develop or upgrade their software and
other technological systems to collect, store, and transmit the
required identity and transaction information to funds and from other
intermediaries, and a total of $140,000,000 each year thereafter in
operation costs related to the transmission and receipt of the
information.\100\
---------------------------------------------------------------------------

    \100\ This estimate is based on the following calculations:
$157,500,000 (intermediaries that use service providers' start-up
costs) plus $70,000,000 (other intermediaries' start-up costs)
equals $227,500,000 in total intermediary start-up costs; and
$70,000,000 (intermediaries that use service providers annual costs)
plus $70,000,000 (other intermediaries' annual costs) equals
$140,000,000 in annual costs.

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

    Although the rule does not require first-tier intermediaries to
enter into an agreement with their indirect intermediaries to share the
indirect intermediaries' underlying shareholder data to funds upon a
fund's request, we anticipate that in many cases intermediaries will
nonetheless enter into such agreements, or at least enter into informal
arrangements and design methods by which to collect the shareholder
information. Our staff estimates that each of the 7000 intermediaries
potentially affected by the rule will spend approximately 150 hours of
service representatives' time at $40 per hour, and 10 hours of legal
counsel time at $300 per hour, for a total of 1,050,000 hours of
service representatives' time at a cost of $42,000,000, and 70,000
hours of in-house legal time at a cost of $21,000,000 to design and
enter into these arrangements with other intermediaries.\101\ The
Commission staff therefore estimates that intermediaries will expend a
total of approximately 1,120,000 hours at a cost of $63,000,000 to
enter into arrangements to ensure the proper transmittal of information
to funds through chains of intermediaries.\102\
---------------------------------------------------------------------------

    \101\ This estimate is based on the following calculations: 7000
intermediaries times 150 service representative hours at $40 per
hour equals 1,050,000 hours at a cost of $42,000,000; and 7000
intermediaries times 10 hours of in-house legal time at $300 per
hour equals 70,000 hours at a cost of $21,000,000.
    \102\ This estimate is based on the following calculations:
1,050,000 service representative hours at $42,000,000 plus 70,000
in-house counsel hours at $21,000,000 equals 1,120,000 hours at
$63,000,000.
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C. Total Costs and Hours Incurred

    For purposes of the Paperwork Reduction Act, our staff estimates
that the amended rule would have a total collection of information cost
in the first year to both funds and intermediaries of $274,575,000 in
one-time start-up costs, and annual operation costs of
$161,515,000.\103\ Our staff estimates that the weighted average annual
cost of the rule to funds and intermediaries for each of the first
three years would be $253,040,000.\104\ The total hours expended by
both funds and intermediaries in complying with the amended rule would
be a one-time expenditure of 2,429,500 hours at a total internal cost
of $116,550,000.\105\ We anticipate that there will be a total of
approximately 7900 \106\ respondents, with approximately 3,510,000
total responses in the first year, and 3,240,000 annual responses each
year thereafter.\107\
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    \103\ This estimate is based on the following calculation:
$47,075,000 (fund start-up costs) plus $227,500,000 (intermediary
start-up costs) equals $274,575,000 in total start-up costs; and
$21,515,000 (fund annual costs) plus $140,000,000 (intermediary
annual costs) equals $161,515,000 in total annual costs.
    \104\ This estimate is based on the following calculation:
$274,575,000 in total start-up costs plus $484,545,000 (3 years at
$161,515,000 in total annual costs) equals $759,120,000 in total
costs over a three year period. $759,545,000 divided by three years,
equals a weighted average cost of $253,040,000 per year.
    \105\ This estimate is based on the following calculations:
1,309,500 hours at a cost of $53,550,000 in agreement time plus
1,120,000 hours at a cost of $63,000,000 in chain of intermediary
arrangement time equals 2,429,500 hours at a cost of $116,550,000.
    For purposes of the Paperwork Reduction Act, the Adopting
Release included an estimate of the total start up costs to funds
and financial intermediaries in complying with the collection of
information aspect of the rule of approximately $1,111,500,000. We
estimate that if the proposed amendments are adopted, for purposes
of the Paperwork Reduction Act, funds and intermediaries would incur
the reduced amount of $274,575,000 in start-up costs, for a
potential cost reduction of approximately $836,925,000. In the
Adopting Release we also estimated that the ongoing annual costs
would be $390,556,800. We estimate that if the proposed amendments
are adopted, for purposes of the Paperwork Reduction Act, funds and
intermediaries would incur the reduced amount of $161,515,000 in
total annual costs, for a potential ongoing annual cost reduction of
approximately $229,041,800.
    \106\ This estimate is based on the following calculation: 7000
intermediaries plus 900 fund complexes equals 7900 respondents.
    \107\ This estimate is based on the following calculation: 900
fund complexes with an average of 300 intermediaries each, equals
270,000 one time responses for the shareholder information portion
of the collection (900 funds times 300 intermediaries equals
270,000). Assuming that each fund requests information from each of
its intermediaries once each month, the total number of annual
responses would be 3,240,000 (270,000 fund intermediaries times 12
months equals 3,240,000 annual responses). Therefore, in the first
year, there would be 3,510,000 total responses (3,240,000 monthly
responses plus the 270,000 initial responses required for the
agreements) and 3,240,000 annual responses thereafter.
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D. Request for Comments

    We request comment on whether these estimates are reasonable.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments
in order to: (i) Evaluate whether the proposed collections of
information are necessary for the proper performance of the functions
of the Commission, including whether the information will have
practical utility; (ii) evaluate the accuracy of the Commission's
estimate of the burden of the proposed collections of information;
(iii) determine whether there are ways to enhance the quality, utility,
and clarity of the information to be collected; and (iv) minimize the
burden of the collections of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology.
    Persons wishing to submit comments on the collection of information
requirements of the proposed amendments should direct them to the
Office of Management and Budget, Attention Desk Officer of the
Securities and Exchange Commission, Office of Information and
Regulatory Affairs, Room 10102, New Executive Office Building,
Washington, DC 20503, and should send a copy to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-0609 with reference to File No. S7-06-06. OMB is
required to make a decision concerning the collections of information
between 30 and 60 days after publication of this Release; therefore a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days after publication of this Release. Requests
for materials submitted to OMB by the Commission with regard to these
collections of information should be in writing, refer to File No. S7-
06-06, and be submitted to the Securities and Exchange Commission,
Records Management, Office of Filings and Information Services.

IX. Initial Regulatory Flexibility Analysis

    This Initial Regulatory Flexibility Analysis (``IRFA'') has been
prepared in accordance with 5 U.S.C. 603. It relates to amendments to
rule 22c-2 under the Investment Company Act, which we are proposing in
this Release.

A. Reasons for the Proposed Action

    Rule 22c-2 allows funds to recover some, if not all, of the direct
and indirect (e.g., market impact and opportunity) costs incurred when
shareholders engage in short-term trading of the fund's shares, and to
deter this short-term trading. As discussed more fully in Sections I
and II of this Release, the proposed amendments to rule 22c-2 are
necessary to clarify any potentially misleading interpretations of the
rule, to enable funds and intermediaries to reduce costs associated
with entering into agreements under the rule, and to enable funds to
focus their short-term trading deterrence efforts on the entities most
likely to violate fund policies. The proposed amendments would also set
forth the limitations on transactions between a fund and an
intermediary with whom the fund does not have an agreement.

B. Objectives of the Proposed Action

    As discussed more fully in Sections I and II of this Release, the
objective of the proposed rule amendments is to ensure that the
investor protections of rule 22c-2 are fully maintained, while reducing
costs to all participants, and addressing certain issues with the rule
as adopted.

C. Legal Basis

    As indicated in Section X of this Release, these amendments to rule
22c-2 are proposed pursuant to the authority set forth in sections
6(c), 22(c) and 38(a) of the Investment Company Act.\108\
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    \108\ 15 U.S.C. 80a-6(c), 80a-22(c) and 80a-37(a).
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D. Small Entities Subject to the Proposed Rule and Amendments

    A small business or small organization (collectively, ``small
entity'') for purposes of the Regulatory Flexibility Act is a fund
that, together with other funds in the same group of related investment
companies, has net assets of $50 million or less as of the end of its
most recent fiscal year.\109\ Of approximately 3,925 funds (2,700
registered open-end investment companies and 825 registered unit
investment trusts), approximately 163 are small entities.\110\ A
broker-dealer is considered a small entity if its total capital is less
than $500,000, and it is not affiliated with a broker-dealer that has
$500,000 or more in total capital.\111\ Of approximately 7,000
registered broker-dealers, approximately 880 are small entities.
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    \109\ 17 CFR 270.0-10.
    \110\ Some or all of these entities may contain multiple series
or portfolios. If a registered investment company is a small entity,
the portfolios or series it contains are also small entities.
    \111\ 17 CFR 240.0-10.
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    As discussed above, rule 22c-2 provides funds and their boards with
the ability to impose a redemption fee designed to reimburse the fund
for the direct and indirect costs incurred as a result of short-term
trading strategies, such as market timing. The proposed amendments are
designed to maintain these investor protections while reducing costs to
market participants and clarifying the Commission's intent as to the
proper interpretation of the rule. While we expect that the rule and
these proposed amendments would require some funds and intermediaries
to develop or upgrade software or other technological systems to
enforce certain market timing policies, or make trading information
available in omnibus accounts, the amendments we are proposing today
are specifically designed to reduce the costs incurred by small
entities. In particular, we anticipate that the changes we propose to
make to the definition of financial intermediary would significantly
reduce the number of small intermediaries that funds must enter into
agreements with, and reduce the burden of complying with the rule for
small funds and small intermediaries. We request that commenters
address the costs of complying with these amendments, including
specific data on costs when available and a description of the likely
technologies that may be used.

E. Reporting, Recordkeeping, and Other Compliance Requirements

    The proposed amendments do not introduce any new mandatory
reporting requirements. Rule 22c-2 already contains a mandatory
recordkeeping requirement for funds that redeem shares within seven
days of purchase. The fund must retain a copy of the written agreement
between the fund and financial intermediary under which the
intermediary agrees to provide the required shareholder information in
omnibus accounts.\112\ The proposed amendments reduce the number of
small entities that would otherwise be subject to this recordkeeping
requirement.
---------------------------------------------------------------------------

    \112\ Rule 22c-2(a)(3).
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F. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any federal rules that duplicate,
overlap, or conflict with the proposed rule amendments.

G. Significant Alternatives

    The Regulatory Flexibility Act directs the Commission to consider
significant alternatives that would accomplish the stated objective,
while minimizing any significant adverse impact on small entities.
Alternatives in this category would include: (i) Establishing different
compliance or reporting standards that take into account the resources
available to small entities; (ii) clarifying, consolidating, or
simplifying the compliance requirements under the rule for small
entities; (iii) using performance rather than design standards; and
(iv) exempting small entities from coverage of the rule, or any part of
the rule.
    The Commission does not presently believe that these proposed
amendments would require the establishment of special compliance
requirements or timetables for small entities. These proposed
amendments are specifically designed to reduce any unnecessary burdens
on all funds (including small funds) and on small intermediaries. To
establish special compliance requirements or timetables for small
entities may in fact disadvantage small entities by encouraging larger
market participants to focus primarily on the needs of larger entities
when establishing the information-sharing systems envisioned by the
rule and these proposed amendments, and possibly ignoring the needs of
smaller entities. Nevertheless, we request comment as to whether
establishing special timetables or compliance requirements would
benefit small entities, while accomplishing the goals of the
rulemaking. Would it benefit small entities to have additional time to
comply with these amendments? Should we further revise the rule to
reduce the compliance requirements for small entities? Are there other
compliance requirement alternatives?
    With respect to further clarifying, consolidating, or simplifying
the compliance requirements of the rule, using performance rather than
design standards, and exempting small entities from coverage of these
proposed amendments or any part of the rule, we believe such additional
changes would be impracticable. These proposed amendments would in
effect except a large number of smaller entities from the scope of the
rule, by revising the definition of financial intermediary. We have
designed these proposed amendments to reduce the cost and compliance
burden on small entities to the greatest extent practicable while still
maintaining the investor protections of the rule as adopted.
    Small entities are as vulnerable to the problems uncovered in
recent enforcement actions and settlements as large entities.
Therefore, shareholders of small entities are equally in need of
protection from short-term traders. We believe that the rule and these
proposed amendments will enable funds to more effectively discourage
short-term trading of all fund shares, including those held in omnibus
accounts. Further excepting small entities from coverage of the rule or
any part of the rule could compromise the effectiveness of the rule. We
anticipate that the proposed amendments would alleviate much of the
burden imposed by the rule on small entities, and result in a more cost
effective system for discouraging short-term trading for all entities.
Alternatives that we considered but are not proposing included, among
others, (i) fully exempting all small entities from complying with the
information-sharing aspect of the rule, (ii) not requiring that the
information-sharing agreement obligate first-tier intermediaries to
assist

in providing information from indirect intermediaries to funds, and
(iii) extending the compliance date for small entities.
    In light of the above discussion, we request comment on whether it
is feasible or necessary to make additional or different accommodations
for small entities for compliance with the proposed rule amendments.
Should the proposed rule amendments be further altered in order to ease
the regulatory burden on small entities, without sacrificing its
effectiveness? Are there additional alternatives that we have not
considered?

H. Solicitation of Comments

    The Commission encourages the submission of comments with respect
to any aspect of this IRFA. Comment is specifically requested on the
number of small entities that would be affected by the proposed rule,
and the likely impact of the proposals on small entities. Commenters
are asked to describe the nature of any impact and provide empirical
data supporting its extent. These comments will be considered in
connection with any adoption of the proposed rule and amendments, and
will be reflected in the Final Regulatory Flexibility Analysis.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number S7-06-06 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov
). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Securities and Exchange Commission, 100 F Street, NE., Washington, DC
20549-9303.

All submissions should refer to File Number S7-06-06. This file number
should be included on the subject line if e-mail is used. To help us
process and review your comments more efficiently, please use only one
method. The Commission will post all comments on the Commission's
Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments

are also available for public inspection and copying in the
Commission's Public Reference Room, 100 F Street, NE., Washington, DC
20549.

X. Statutory Authority

    The Commission is proposing amendments to rule 22c-2 pursuant to
the authority set forth in sections 6(c), 22(c) and 38(a) of the
Investment Company Act [15 U.S.C. 80a-6(c), 80a-22(c) and 80a-37(a)].

List of Subjects in 17 CFR Part 270

    Investment companies, Reporting and recordkeeping requirements,
Securities.

Text of Proposed Rule

    For reasons set out in the preamble, Title 17, Chapter II of the
Code of Federal Regulations is proposed to be amended as follows:

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

    1. The authority citation for part 270 continues to read in part as
follows:

    Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, and 80a-
39, unless otherwise noted.
* * * * *
    2. Section 270.22c-2 is revised to read as follows:

Sec.  270.22c-2  Redemption fees for redeemable securities.

    (a) Redemption fee. It is unlawful for any fund issuing redeemable
securities, its principal underwriter, or any dealer in such
securities, to redeem a redeemable security issued by the fund within
seven calendar days after the security was purchased, unless it
complies with the following requirements:
    (1) Board determination. The fund's board of directors, including a
majority of directors who are not interested persons of the fund, must
either:
    (i) Approve a redemption fee, in an amount (but no more than two
percent of the value of shares redeemed) and on shares redeemed within
a time period (but no less than seven calendar days), that in its
judgment is necessary or appropriate to recoup for the fund the costs
it may incur as a result of those redemptions or to otherwise eliminate
or reduce so far as practicable any dilution of the value of the
outstanding securities issued by the fund, the proceeds of which fee
will be retained by the fund; or
    (ii) Determine that imposition of a redemption fee is either not
necessary or not appropriate.
    (2) Shareholder information. With respect to each financial
intermediary that submits orders to purchase or redeem shares directly
to the fund, its principal underwriter or transfer agent, or to a
registered clearing agency, the fund (or on the fund's behalf, the
principal underwriter, transfer agent, or registered clearing agency),
must either:
    (i) Enter into a shareholder information agreement with the
financial intermediary; or
    (ii) Prohibit the financial intermediary from purchasing, on behalf
of itself or other persons, securities issued by the fund.