Text: S.327 — 115th Congress (2017-2018)All Information (Except Text)

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Public Law No: 115-66 (10/06/2017)

 
[115th Congress Public Law 66]
[From the U.S. Government Publishing Office]



[[Page 1195]]

             FAIR ACCESS TO INVESTMENT RESEARCH ACT OF 2017

[[Page 131 STAT. 1196]]

Public Law 115-66
115th Congress

                                 An Act


 
   To direct the Securities and Exchange Commission to provide a safe 
  harbor related to certain investment fund research reports, and for 
           other purposes. <<NOTE: Oct. 6, 2017 -  [S. 327]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Fair Access to 
Investment Research Act of 2017. 15 USC 77e note.>> 
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Access to Investment Research 
Act of 2017''.
SEC. 2. SAFE HARBOR FOR INVESTMENT FUND RESEARCH.

    (a) <<NOTE: Deadlines. Time periods. Effective 
date. Regulations.>> Expansion of the Safe Harbor.--Not later than the 
end of the 180-day period beginning on the date of enactment of this 
Act, the Securities and Exchange Commission shall propose, and not later 
than the end of the 270-day period beginning on such date, the 
Commission shall adopt, upon such terms, conditions, or requirements as 
the Commission may determine necessary or appropriate in the public 
interest, for the protection of investors, and for the promotion of 
capital formation, revisions to section 230.139 of title 17, Code of 
Federal Regulations, to provide that a covered investment fund research 
report that is published or distributed by a broker or dealer, other 
than a broker or dealer that is an investment adviser to the fund or an 
affiliated person of the investment adviser to the fund--
            (1) shall be deemed, for purposes of sections 2(a)(10) and 
        5(c) of the Securities Act of 1933 (15 U.S.C. 77b(a)(10), 
        77e(c)), not to constitute an offer for sale or an offer to sell 
        a security that is the subject of an offering pursuant to a 
        registration statement that is effective, even if the broker or 
        dealer is participating or will participate in the registered 
        offering of the covered investment fund's securities; and
            (2) shall be deemed to satisfy the conditions of paragraph 
        (1) or (2) of section 230.139(a) of title 17, Code of Federal 
        Regulations, or any successor provisions, for purposes of the 
        Commission's rules and regulations under the Federal securities 
        laws and the rules of any self-regulatory organization.

    (b) Implementation of Safe Harbor.--In implementing the safe harbor 
pursuant to subsection (a), the Commission shall--
            (1) not, in the case of a covered investment fund with a 
        class of securities in substantially continuous distribution, 
        condition the safe harbor on whether the broker's or dealer's 
        publication or distribution of a covered investment fund 
        research report constitutes such broker's or dealer's initiation 
        or reinitiation of research coverage on such covered investment 
        fund or its securities;

[[Page 131 STAT. 1197]]

            (2) not--
                    (A) require the covered investment fund to have been 
                registered as an investment company under the Investment 
                Company Act of 1940 (15 U.S.C. 80a-1 et seq.) or subject 
                to the reporting requirements of section 13 or 15(d) of 
                the Securities Exchange Act of 1934 (15 U.S.C. 78m, 
                78o(d)) for any period exceeding the period of time 
                referenced under section 230.139(a)(1)(i)(A)(1) of title 
                17, Code of Federal Regulations; or
                    (B) impose a minimum float provision exceeding that 
                referenced in section 230.139(a)(1)(i)(A)(1)(i) of title 
                17, Code of Federal Regulations;
            (3) provide that a self-regulatory organization may not 
        maintain or enforce any rule that would--
                    (A) prohibit the ability of a member to publish or 
                distribute a covered investment fund research report 
                solely because the member is also participating in a 
                registered offering or other distribution of any 
                securities of such covered investment fund; or
                    (B) prohibit the ability of a member to participate 
                in a registered offering or other distribution of 
                securities of a covered investment fund solely because 
                the member has published or distributed a covered 
                investment fund research report about such covered 
                investment fund or its securities; and
            (4) provide that a covered investment fund research report 
        shall not be subject to section 24(b) of the Investment Company 
        Act of 1940 (15 U.S.C. 80a-24(b)) or the rules and regulations 
        thereunder, except that such report may still be subject to such 
        section and the rules and regulations thereunder to the extent 
        that it is otherwise not subject to the content standards in the 
        rules of any self-regulatory organization related to research 
        reports, including those contained in the rules governing 
        communications with the public regarding investment companies or 
        substantially similar standards.

    (c) Rules of Construction.--Nothing in this Act shall be construed 
as in any way limiting--
            (1) the applicability of the antifraud or antimanipulation 
        provisions of the Federal securities laws and rules adopted 
        thereunder to a covered investment fund research report, 
        including section 17 of the Securities Act of 1933 (15 U.S.C. 
        77q), section 34(b) of the Investment Company Act of 1940 (15 
        U.S.C. 80a-33(b)), and sections 9 and 10 of the Securities 
        Exchange Act of 1934 (15 U.S.C. 78i, 78j); or
            (2) the authority of any self-regulatory organization to 
        examine or supervise a member's practices in connection with 
        such member's publication or distribution of a covered 
        investment fund research report for compliance with applicable 
        provisions of the Federal securities laws or self-regulatory 
        organization rules related to research reports, including those 
        contained in rules governing communications with the public, or 
        to require the filing of communications with the public the 
        purpose of which is not to provide research and analysis of 
        covered investment funds.

    (d) Interim Effectiveness of Safe Harbor.--
            (1) <<NOTE: Time period. Effective date.>>  In general.--
        From and after the 270-day period beginning on the date of 
        enactment of this Act, if the Commission

[[Page 131 STAT. 1198]]

        has not adopted revisions to section 230.139 of title 17, Code 
        of Federal Regulations, as required by subsection (a), and until 
        such time as the Commission has done so, a broker or dealer 
        distributing or publishing a covered investment fund research 
        report after such date shall be able to rely on the provisions 
        of section 230.139 of title 17, Code of Federal Regulations, and 
        the broker or dealer's publication of such report shall be 
        deemed to satisfy the conditions of paragraph (1) or (2) of 
        section 230.139(a) of title 17, Code of Federal Regulations, if 
        the covered investment fund that is the subject of such report 
        satisfies the reporting history requirements (without regard to 
        Form S-3 or Form F-3 eligibility) and minimum float provisions 
        of such subsections for purposes of the Commission's rules and 
        regulations under the Federal securities laws and the rules of 
        any self-regulatory organization, as if revised and implemented 
        in accordance with subsections (a) and (b).
            (2) Status of covered investment fund.--After such period 
        and until the Commission has adopted revisions to section 
        230.139 of title 17, Code of Federal Regulations, and FINRA has 
        revised rule 2210, for purposes of subsection (c)(7)(O) of such 
        rule, a covered investment fund shall be deemed to be a security 
        that is listed on a national securities exchange and that is not 
        subject to section 24(b) of the Investment Company Act of 1940 
        (15 U.S.C. 80a-24(b)).
            (3) Covered investment funds communications.--
                    (A) In general.--Except as provided in subparagraph 
                (B), communications that concern only covered investment 
                funds that fall within the scope of section 24(b) of the 
                Investment Company Act of 1940 (15 U.S.C. 80a-24(b)) 
                shall not be required to be filed with FINRA.
                    (B) Exception.--FINRA may require the filing of 
                communications with the public if the purpose of those 
                communications is not to provide research and analysis 
                of covered investment funds.

    (e) Exception.--The safe harbor under subsection (a) shall not apply 
to the publication or distribution by a broker or a dealer of a covered 
investment fund research report, the subject of which is a business 
development company or a registered closed-end investment company, 
during the time period described in section 230.139(a)(1)(i)(A)(1) of 
title 17, Code of Federal Regulations, except where expressly permitted 
by the rules and regulations of the Securities and Exchange Commission 
under the Federal securities laws.
    (f) Definitions.--For purposes of this Act:
            (1) The term ``affiliated person'' has the meaning given the 
        term in section 2(a) of the Investment Company Act of 1940 (15 
        U.S.C. 80a-2(a)).
            (2) The term ``covered investment fund'' means--
                    (A) an investment company registered under, or that 
                has filed an election to be treated as a business 
                development company under, the Investment Company Act of 
                1940 (15 U.S.C. 80a-1 et seq.) and that has filed a 
                registration statement under the Securities Act of 1933 
                (15 U.S.C. 77a et seq.) for the public offering of a 
                class of its securities, which registration statement 
                has been declared effective by the Commission; and
                    (B) a trust or other person--

[[Page 131 STAT. 1199]]

                          (i) issuing securities in an offering 
                      registered under the Securities Act of 1933 (15 
                      U.S.C. 77a et seq.) and which class of securities 
                      is listed for trading on a national securities 
                      exchange;
                          (ii) the assets of which consist primarily of 
                      commodities, currencies, or derivative instruments 
                      that reference commodities or currencies, or 
                      interests in the foregoing; and
                          (iii) that provides in its registration 
                      statement under the Securities Act of 1933 (15 
                      U.S.C. 77a et seq.) that a class of its securities 
                      are purchased or redeemed, subject to conditions 
                      or limitations, for a ratable share of its assets.
            (3) The term ``covered investment fund research report'' 
        means a research report published or distributed by a broker or 
        dealer about a covered investment fund or any securities issued 
        by the covered investment fund, but does not include a research 
        report to the extent that the research report is published or 
        distributed by the covered investment fund or any affiliate of 
        the covered investment fund, or any research report published or 
        distributed by any broker or dealer that is an investment 
        adviser (or an affiliated person of an investment adviser) for 
        the covered investment fund.
            (4) The term ``FINRA'' means the Financial Industry 
        Regulatory Authority.
            (5) The term ``investment adviser'' has the meaning given 
        the term in section 2(a) of the Investment Company Act of 1940 
        (15 U.S.C. 80a-2(a)).
            (6) The term ``research report'' has the meaning given that 
        term under section 2(a)(3) of the Securities Act of 1933 (15 
        U.S.C. 77b(a)(3)), except that such term shall not include an 
        oral communication.
            (7) The term ``self-regulatory organization'' has the 
        meaning given that term under section 3(a)(26) of the Securities 
        Exchange Act of 1934 (15 U.S.C. 78c(a)(26)).

    Approved October 6, 2017.

LEGISLATIVE HISTORY--S. 327:
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CONGRESSIONAL RECORD, Vol. 163 (2017):
            Sept. 11, considered and passed Senate.
            Sept. 27, considered and passed House.

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