[Federal Register Volume 75, Number 137 (Monday, July 19, 2010)]
[Notices]
[Pages 41909-41911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17492]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-62489; File No. SR-MSRB-2010-05]
Self-Regulatory Organizations; Municipal Securities Rulemaking
Board; Notice of Filing of Proposed Rule Change Relating to the
Continuing Disclosure Service of the MSRB Electronic Municipal Market
Access (EMMA) System
July 13, 2010.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on June 30, 2010, the Municipal Securities Rulemaking Board (``MSRB'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the MSRB. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The MSRB has filed with the Commission a proposed rule change to
amend the continuing disclosure service of its Electronic Municipal
Market Access (``EMMA'') system to reflect recent Commission amendments
to Securities Exchange Act Rule 15c2-12 (``Exchange Act Rule 15c2-
12''). The MSRB requests an effective date for the proposed rule change
of a date to be announced by the MSRB in a notice published on the MSRB
Web site, which date shall be no later than December 1, 2010 and shall
be announced no later than five (5) business days prior to the
effective date.
The text of the proposed rule change is available on the MSRB's Web
site at www.msrb.org/Rules-and-Interpretations/SEC-Filings.aspx, at the
MSRB's principal office, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis For, the Proposed Rule Change
In its filing with the Commission, the MSRB included statements
concerning the purpose of and basis for the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The MSRB has prepared summaries, set
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forth in Sections A, B, and C below, of the most significant aspects of
such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Currently Exchange Act Rule 15c2-12 provides that an underwriter
for a primary offering of municipal securities subject to Exchange Act
Rule 15c2-12 is prohibited from underwriting the offering unless the
underwriter has determined that the issuer or an obligated person for
whom financial information or operating data is presented in the final
official statement has undertaken in writing to provide certain items
of information to the MSRB. Such items include: (A) Annual financial
information; (B) audited financial statements if available and if not
included in the annual financial information; (C) notices of certain
events (``Rule 15c2-12 Event Notices''); \3\ and (D) notices of
failures to provide annual financial information on or before the date
specified in the written undertaking. Written undertakings are to
provide that all continuing disclosure documents submitted to the MSRB
shall be accompanied by identifying information as prescribed by the
MSRB. Such submissions are made by issuers, obligated persons and their
agents to the MSRB through the EMMA continuing disclosure service and
are made available to the public through the EMMA Web site for free and
through paid subscriptions.
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\3\ Under Exchange Act Rule 15c2-12(b)(5)(i)(C), notices of the
following events currently are required to be submitted to the MSRB,
if material: principal and interest payment delinquencies; non-
payment related defaults; unscheduled draws on debt service reserves
reflecting financial difficulties; unscheduled draws on credit
enhancements reflecting financial difficulties; substitution of
credit or liquidity providers, or their failure to perform; adverse
tax opinions or events affecting the tax-exempt status of the
security; modifications to rights of security holders; bond calls;
defeasances; release, substitution, or sale of property securing
repayment of the securities; and rating changes.
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The Commission has recently amended Exchange Act Rule 15c2-12 to
modify several provisions relating to the submission of continuing
disclosures to the MSRB (the ``Rule 15c2-12 Amendment'').\4\ The Rule
15c2-12 Amendment, among other things: (1) Removes the exemption from
the continuing disclosure provisions of Exchange Act Rule 15c2-12 for
demand securities; \5\ (2) modifies Exchange Act Rule 15c2-12 to
establish a timeliness standard for submission of Rule 15c2-12 Event
Notices of ten business days after the occurrence of the event; (3)
deletes the general materiality condition for certain of the Rule 15c2-
12 Event Notices; (4) modifies the language of the Rule 15c2-12 Event
Notice regarding adverse tax events; \6\ and (5) adds new Rule 15c2-12
Event Notices.\7\
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\4\ See Release No. 34-62184A; File No. S7-15-09 (May 26, 2010).
\5\ Currently primary offerings for demand securities as
described in Exchange Act Rule 15c2-12(d)(1)(iii) are exempt from
the requirements of Exchange Act Rule 15c2-12.
\6\ The Rule 15c2-12 Amendment expands the current language of
such Rule 15c2-12 Event Notice category to include adverse tax
opinions, the issuance by the IRS of proposed or final
determinations of taxability, Notices of Proposed Issue (IRS Form
5701-TEB) or other material notices or determinations with respect
to the tax status of the security or other material events affecting
the tax status of the security.
\7\ The Rule 15c2-12 Amendment includes the following new Rule
15c2-12 Event Notices: tender offers; bankruptcy, insolvency,
receivership, or similar event of the issuer or obligated person;
the consummation of a merger, consolidation, or acquisition
involving an obligated person or the sale of all or substantially
all of the assets of the obligated person, other than in the
ordinary course of business, the entry into a definitive agreement
to undertake such an action or the termination of a definitive
agreement relating to any such actions, other than pursuant to its
terms, if material; and the appointment of a successor or additional
trustee, or the change of name of a trustee, if material.
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To permit issuers and obligated persons to meet the provisions of
the Rule 15c2-12 Amendment on or prior to the compliance date of
December 1, 2010 established under the Rule 15c2-12 Amendment, this
proposed rule change would modify the language of the EMMA continuing
disclosure service to reflect the materiality standard changes under
the Rule 15c2-12 Amendment and would modify the list of voluntary
event-based disclosures that may be submitted to the EMMA continuing
disclosure service to reflect changes in the list of Rule 15c2-12 Event
Notices made by the Rule 15c2-12 Amendment.\8\
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\8\ The existing language of the EMMA continuing disclosure
service would incorporate the changed list of Rule 15c2-12 Event
Notices made by the Rule 15c2-12 Amendment by reference to the then-
current provisions of Exchange Act Rule 15c2-12 and therefore no
change in the language of the EMMA continuing disclosure service
would be made. In addition, the removal of the exemption for demand
securities from the continuing disclosure provisions of Exchange Act
Rule 15c2-12 does not require changes to the EMMA continuing
disclosure service in order to permit submission of disclosures in
connection with demand securities.
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Upon this proposed rule change becoming effective, the continuing
disclosure service of EMMA would accept submissions of, and make
publicly available through EMMA, the following categories of event-
based continuing disclosure documents: \9\
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\9\ This proposed rule change does not modify the existing
categories of financial/operating data disclosures available through
the EMMA continuing disclosure service.
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Rule 15c2-12 Event Notices
Principal and interest payment delinquencies.
Non-payment related defaults, if material.
Unscheduled draws on debt service reserves reflecting
financial difficulties.
Unscheduled draws on credit enhancements reflecting
financial difficulties.
Substitution of credit or liquidity providers or their
failure to perform.
Adverse tax opinions, IRS notices or events affecting the
tax status of the security.\10\
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\10\ This category would represent the expansion in the 15c2-12
Amendment of the prior category of ``adverse tax opinions or events
affecting the tax-exempt status of the security'' to ``adverse tax
opinions, the issuance by the Internal Revenue Service of proposed
or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701-TEB) or other material notices or determinations with
respect to the tax status of the security, or other material events
affecting the tax status of the security.'' See amended Exchange Act
Rule 15c2-12(b)(5)(i)(C)(6).
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Modifications to rights of security holders, if material.
Bond calls, if material.\11\
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\11\ The Rule 15c2-12 Amendment expands this category to include
tender offers. See amended Exchange Act Rule 15c2-12(b)(5)(i)(C)(8).
The EMMA continuing disclosure service currently provides a
voluntary event-based notice category of ``tender offers/secondary
market purchases.'' The EMMA continuing disclosure service will
continue to utilize ``bond call'' as a separate category from
``tender offer.''
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Defeasances.
Release, substitution or sale of property securing
repayment of the securities, if material.
Rating changes.
Tender offers.\12\
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\12\ Id. The existing ``tender offers/secondary market
purchases'' category of voluntary event-based notice will be split
into a new Rule 15c2-12 Event Notice category of ``tender offers''
and a voluntary event-based category of ``secondary market
purchases.''
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Bankruptcy, insolvency, receivership or similar event of
the obligated person \13\.
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\13\ The existing ``merger/consolidation/reorganization/
insolvency/bankruptcy'' category of voluntary event-based notice
will be split into a new Rule 15c2-12 Event Notice category of
``bankruptcy, insolvency, receivership or similar event of the
issuer or obligated person'' and a second Rule 15c2-12 Event Notice
category of ``merger, consolidation or acquisition of the obligated
person.'' See amended Exchange Act Rule 15c2-12(b)(5)(i)(C)(12).
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Merger, consolidation, or acquisition of the obligated
person, if material \14\.
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\14\ Id. The full reference to this category under amended
Exchange Act Rule 15c2-12(b)(5)(i)(C)(13) is ``the consummation of a
merger, consolidation, or acquisition involving an obligated person
or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business, the
entry into a definitive agreement to undertake such an action or the
termination of a definitive agreement relating to any such actions,
other than pursuant to its terms, if material.''
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[[Page 41911]]
Appointment of a successor or additional trustee, or the
change of name of a trustee, if material.
Additional/Voluntary Event-Based Disclosures (certain
communications from the Internal Revenue Service, tender offers,
merger/consolidation/reorganization/insolvency/bankruptcy and change of
trustee are no longer reflected as additional/voluntary event-based
disclosures).
Amendment to continuing disclosure undertaking.
Change in obligated person.
Notice to investors pursuant to bond documents.
Certain communications from the Internal Revenue Service.
Secondary market purchases.
Bid for auction rate or other securities.
Capital or other financing plan.
Litigation/enforcement action .
Change of tender agent, remarketing agent, or other on-
going party.
Derivative or other similar transaction.
Other event-based disclosures.
2. Statutory Basis
The MSRB has adopted the proposed rule change pursuant to section
15B(b)(2)(C) of the Act,\15\ which provides that the MSRB's rules
shall:
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\15\ 15 U.S.C. 78o-4(b)(2)(C).
Be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect
to, and facilitating transactions in municipal securities, to remove
impediments to and perfect the mechanism of a free and open market
in municipal securities, and, in general, to protect investors and
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the public interest.
The MSRB believes that the proposed rule change is consistent with
the Act in that it effectuates the Commission's Rule 15c2-12 Amendment
under the Act. In addition, the proposed rule change serves to remove
impediments to and help perfect the mechanisms of a free and open
market in municipal securities and would serve to promote the statutory
mandate of the MSRB to protect investors and the public interest. The
proposed rule change would aid in providing additional information for
making investment decisions more easily accessible to all participants
in the municipal securities market on an equal basis throughout the
life of the securities without barriers to obtaining such information.
Broad access to additional continuing disclosure documents through the
continuing disclosure service of EMMA should assist in preventing
fraudulent and manipulative acts and practices by improving the
opportunity for public investors to access material information about
issuers and their securities.
B. Self-Regulatory Organization's Statement on Burden on Competition
The MSRB does not believe the proposed rule change will impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act. Documents and information provided through the
continuing disclosure service would be available to all persons
simultaneously. In addition to making the additional documents and
information available for free on the EMMA portal to all members of the
public, the MSRB would make such documents and information available by
subscription on an equal and non-discriminatory basis.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were neither solicited nor received on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period: (i) As the Commission
may designate up to 90 days of such date if it finds such longer period
to be appropriate and publishes its reasons for so finding; or (ii) as
to which the self-regulatory organization consents, the Commission
will:
A. By order approve such proposed rule change; or
B. institute proceedings to determine whether the proposed rule
change should be disapproved.
The MSRB has requested an effective date for the proposed rule
change of a date to be announced by the MSRB in a notice published on
the MSRB Web site, which date shall be no later than December 1, 2010
and shall be announced no later than five (5) business days prior to
the effective date.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File Number SR-MSRB-2010-05 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-MSRB-2010-05. This file
number should be included on the subject line if e-mail is used. To
help the Commission 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/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the MSRB. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-MSRB-2010-05 and should be
submitted on or before August 9, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-17492 Filed 7-16-10; 8:45 am]
BILLING CODE 8010-01-P