Final Rule: Investment Company Swing Pricing

SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 210, 270, 274 Release Nos. 33-10234; IC-32316; File No. S7-16-15 RIN 3235-AL61 Investment Company Swing Pricing AGENCY: Securities and Exchange Commission. ACTION: Final rule. SUMMARY: The Securities and Exchange Commission is adopting amendments to rule 22c-1 under the Investment Company Act to permit a registered open-end management investment company ("open-end fund" or "fund") (except a money market fund or exchange-traded fund), under certain circumstances, to use "swing pricing," the process of adjusting the fund's net asset value ("NAV") per share to effectively pass on the costs stemming from shareholder purchase or redemption activity to the shareholders associated with that activity, and amendments to rule 31a-2 to require funds to preserve certain records related to swing pricing. The Commission is also adopting amendments to Form N-1A and Regulation S-X and a new item in Form N-CEN, all of which address a fund's use of swing pricing. DATES: Effective Dates: November 19, 2018 Compliance Dates: See section II.C. FOR FURTHER INFORMATION CONTACT: Zeena Abdul-Rahman, John Foley, Andrea Ottomanelli Magovern, Naseem Nixon, Amanda Hollander Wagner, Senior Counsels; Thoreau Bartmann, Melissa Gainor, Senior Special Counsels; or Kathleen Joaquin, Senior Financial Analyst, Investment Company Rulemaking Office, at (202) 551-6792; Ryan Moore, Assistant Chief Accountant, or Matt Giordano, Chief Accountant, Office of the Chief Accountant, at (202)

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551-6918, Division of Investment Management, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-8549. SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission (the "Commission") is adopting amendments to rules 22c-1 [17 CFR 270.22c-1] and 31a-2 [17 CFR 270.31a-2] under the Investment Company Act of 1940 [15 U.S.C. 80a-1 et seq.] ("Investment Company Act" or "Act"); amendments to Form N-1A [referenced in 17 CFR 274.11A] under the Investment Company Act and the Securities Act of 1933 ("Securities Act") [15 U.S.C. 77a et seq.]; amendments to Article 6 [17 CFR 210.6-01 et seq.] of Regulation S-X [17 CFR 210]; and adopting a new item in Form N-CEN [referenced in 17 CFR 274.101] under the Investment Company Act.1 TABLE OF CONTENTS:

I. INTRODUCTION................................................................................................................. 3 II. DISCUSSION ........................................................................................................................ 6

A. SWING PRICING...................................................................................................................... 6 B. DISCLOSURE AND REPORTING REQUIREMENTS REGARDING SWING PRICING .................... 111 C. EFFECTIVE AND COMPLIANCE DATES ................................................................................ 116 III. ECONOMIC ANALYSIS ................................................................................................ 118 A. INTRODUCTION AND PRIMARY GOALS OF REGULATION .................................................... 118 B. ECONOMIC BASELINE ........................................................................................................ 121 C. BENEFITS AND COSTS, AND EFFECTS ON EFFICIENCY, COMPETITION, AND CAPITAL

FORMATION ....................................................................................................................... 126

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Unless otherwise noted, all references to statutory sections are to the Investment Company Act, and all

references to rules under the Investment Company Act are to Title 17, Part 270 of the Code of Federal

Regulations [17 CFR 270].

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D. REASONABLE ALTERNATIVES............................................................................................ 155 IV. PAPERWORK REDUCTION ACT ANALYSIS .......................................................... 162

A. INTRODUCTION .................................................................................................................. 162 B. RULE 22C-1 ....................................................................................................................... 163 C. RULE 31A-2 ....................................................................................................................... 171 D. FORM N-CEN .................................................................................................................... 174 E. FORM N-1A ....................................................................................................................... 176 V. FINAL REGULATORY FLEXIBILITY ACT ANALYSIS ........................................ 182 A. NEED FOR THE RULE .......................................................................................................... 182 B. SIGNIFICANT ISSUES RAISED BY PUBLIC COMMENT .......................................................... 183 C. SMALL ENTITIES SUBJECT TO THE RULE ............................................................................ 183 D. PROJECTED REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS .... 184 E. AGENCY ACTION TO MINIMIZE EFFECT ON SMALL ENTITIES ............................................ 187 VI. STATUTORY AUTHORITY AND TEXT OF PROPOSED AMENDMENTS......... 188 TEXT OF RULES AND FORMS............................................................................................ 189

I.

INTRODUCTION

Avoiding shareholder dilution is a key concern of the Investment Company Act.2 In

particular, section 22(c) gives the Commission broad powers to regulate the pricing of

redeemable securities for the purpose of eliminating or reducing so far as reasonably practicable

2

See Investment Trusts and Investment Companies Investment Trusts and Investment Companies: Hearings

on S. 3580 before a Subcomm. of the Senate Comm. on Banking and Currency, 76th Cong., 3d Sess.

(1940), at 37, 137-145 (stating that, among the abuses that served as a backdrop for the Act, were

"practices which resulted in substantial dilution of investors' interests", including backward pricing by fund

insiders to increase investment in the fund and thus enhance management fees, but causing dilution of

existing investors in the fund).

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any dilution of the value of outstanding fund shares.3 Under rule 22c-1 under the Investment Company Act, fund shareholders purchase and redeem fund shares at a price based on the current NAV next computed after the receipt of an order to purchase or redeem (the "forward price").4 Forward pricing addresses, in part, the risk of shareholder dilution posed by the "backward pricing" method used by funds prior to the adoption of the forward pricing rule.5 However, under rule 22c-1, the NAV price that a purchasing or redeeming shareholder receives when transacting shares typically does not take into account the transaction costs (including trading costs and changes in market prices) that may arise when the fund buys portfolio investments to

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Section 22(a) of the Act authorizes securities associations registered under section 15A of the Securities

Exchange Act of 1934 (the "Exchange Act") to prescribe rules related to the method of computing purchase

and redemption prices of redeemable securities and the minimum time period that must elapse after the sale

or issue of such securities before any resale or redemption may occur, for the purpose of "eliminating or

reducing so far as reasonably practicable any dilution of the value of other outstanding securities of such

company or any other result of such purchase, redemption, or sale which is unfair to holders of such other

outstanding securities."

Section 22(c) of the Act authorizes the Commission to make rules and regulations applicable to registered investment companies and to principal underwriters of, and dealers in, the redeemable securities of any registered investment company, whether or not members of any securities association, to the same extent, covering the same subject matter, and for the accomplishment of the same ends as are prescribed in section 22(a) in respect of the rules which may be made by a registered securities association governing its members.

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See rule 22c-1(a). Prior to adoption of rule 22c-1, investor orders to purchase and redeem could be

executed at a price computed before receipt of the order, allowing investors to lock-in a low price in a

rising market and a higher price in a falling market. The forward pricing provision of rule 22c-1 was

designed to eliminate these trading practices and the dilution to fund shareholders that occurred as a result

of backward pricing. See Pricing of Redeemable Securities for Distribution, Redemption, and Repurchase,

Investment Company Act Release No. 14244 (Nov. 21, 1984) [49 FR 46558 (Nov. 27, 1984)], at text

following n.2.

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See Pricing of Redeemable Securities for Distribution, Redemption and Repurchase and Time-Stamping of

Orders by Dealers, Investment Company Act Release No. 5519 (Oct. 16, 1968) [33 FR 16331 (Nov. 7,

1968)] ("Rule 22c-1 Adopting Release"), at 2 ("One purpose of [rule 22c-1] is to eliminate or reduce so far

as reasonably practicable any dilution of the value of outstanding redeemable securities of registered

investment companies through (i) the sale of such securities at a price below their net asset value or (ii) the

redemption or repurchase of such securities at a price above their net asset value. Dilution through the sale

of redeemable securities at a price below their net asset value may occur, for example, through the practice

of selling securities for a certain period of time at a price based upon a previously established net asset

value. This practice permits a potential investor to take advantage of an upswing in the market and an

accompanying increase in the net asset value of investment company shares by purchasing such shares at a

price which does not reflect the increase.").

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invest proceeds from purchasing shareholders or sells portfolio investments to meet shareholder redemptions.6

We sought to address the risk of shareholder dilution that can result from such transaction costs, along with the risk that a fund would be unable to meet its obligations to redeeming shareholders or other obligations under applicable law (while mitigating investor dilution) as a result of liquidity risk, with the proposal on fund liquidity risk management that we published in 2015.7 In order to provide funds with a tool to mitigate potential dilution and to manage fund liquidity, the proposal included amendments to rule 22c-1 under the Act to permit funds (except money market funds and exchange-traded funds ("ETFs")) to use "swing pricing," a process of adjusting the fund's NAV to effectively pass on more of the costs stemming from shareholder transaction flows into and out of the fund to shareholders associated with that activity.

We received more than 70 comment letters on the proposal,8 many of which addressed the swing pricing amendments.9 Today, we are adopting new rule 22c-1(a)(3) permitting funds

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See Open-End Fund Liquidity Risk Management Programs; Swing Pricing; Re-Opening of Comment

Period for Investment Company Reporting Modernization Release, Investment Company Act Release No.

31835 (Sept. 22, 2015) [80 FR 62273 (Oct. 15, 2015)] ("Proposing Release"), at section III.F, 184-187.

However, going forward, in a fund that swing prices, the NAV of the fund would reflect such costs, which

would be borne by redeeming and purchasing shareholders.

7

See id.

8

The comment letters on the Proposing Release (File No. S7-16-15) are available at

. We are adopting requirements for funds to adopt

liquidity risk management programs today in a companion release. See Investment Company Liquidity

Risk Management Programs, Investment Company Act Release No. 32315 (Oct. 13, 2106) ("Liquidity Risk

Management Programs Adopting Release").

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See, e.g., Comment Letter of the Mutual Fund Directors Forum (Jan. 13, 2016) ("MFDF Comment Letter")

(recommending that the Commission consider issuing a separate proposal for swing pricing due to the

difficult operational issues of swing pricing); Comment Letter of Investment Company Institute (Jan. 13,

2016) ("ICI Comment Letter I") (arguing that, for funds to adopt swing pricing, there must be widespread

changes in market practices and significant reengineering of fund operations). But see Comment Letter of

Eaton Vance Corp. (June 13, 2016) ("Eaton Vance Comment Letter") (expressing that there are investor

protection concerns associated with the implementation of swing pricing, but acknowledging the significant

costs to existing shareholders as a result of purchase and redemption activity).

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