Suspension of the Duty To File Reports for Classes of Asset-Backed Securities Under Section 15(D) of the Securities Exchange Act of 1934, 52549-52556 [2011-21500]
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List of Subjects in 9 CFR Part 161
Reporting and recordkeeping
requirements, Veterinarians.
Accordingly, we are amending 9 CFR
part 161 as follows:
PART 161—REQUIREMENTS AND
STANDARDS FOR ACCREDITED
VETERINARIANS AND SUSPENSION
OR REVOCATION OF SUCH
ACCREDITATION
1. The authority citation for part 161
continues to read as follows:
■
Authority: 7 U.S.C. 8301–8317; 15 U.S.C.
1828; 7 CFR 2.22, 2.80, and 371.4.
§ 161.3
[Amended]
2. In § 161.3, paragraph (d) is
amended by removing the words
‘‘within 3 months of the end of the
notification period’’ and adding the
words ‘‘by October 1, 2011’’ in their
place.
■
Done in Washington, DC, this 17th day of
August 2011.
Gregory L. Parham,
Administrator, Animal and Plant Health
Inspection Service.
[FR Doc. 2011–21526 Filed 8–22–11; 8:45 am]
BILLING CODE 3410–34–P
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Parts 240 and 249
[Release No. 34–65148; File No. S7–02–11]
RIN 3235–AK89
Suspension of the Duty To File
Reports for Classes of Asset-Backed
Securities Under Section 15(D) of the
Securities Exchange Act of 1934
Securities and Exchange
Commission.
ACTION: Final rule.
AGENCY:
Section 942(a) of the DoddFrank Wall Street Reform and Consumer
Protection Act eliminated the automatic
suspension of the duty to file under
Section 15(d) of the Securities Exchange
Act of 1934 for asset-backed securities
issuers and granted the Commission the
authority to issue rules providing for the
suspension or termination of such duty.
We are adopting rules to provide certain
thresholds for suspension of the
reporting obligations for asset-backed
securities issuers. We are also amending
our rules relating to the Exchange Act
reporting obligations of asset-backed
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SUMMARY:
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securities issuers in light of these
statutory changes.
DATES: Effective Date: September 22,
2011.
FOR FURTHER INFORMATION CONTACT:
Steven Hearne, Special Counsel, in the
Office of Rulemaking, at (202) 551–3430
or Kathy Hsu, Chief, Office of
Structured Finance, Division of
Corporation Finance, at (202) 551–3850,
U.S. Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–3628.
SUPPLEMENTARY INFORMATION: We are
adopting amendments to Rules 12h–3,
12h–6, and 15d–22 1 and Form 15 2
under the Securities Exchange Act of
1934 (‘‘Exchange Act’’).3
I. Background and Overview of the
Amendments
Section 942(a) of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act (the ‘‘Act’’) 4 eliminated the
automatic suspension of the duty to file
under Section 15(d) 5 of the Exchange
Act for asset-backed securities (‘‘ABS’’)
issuers and granted the Commission the
authority to issue rules providing for the
suspension or termination of such duty.
We proposed amendments on January 6,
2011 to provide for the suspension of
reporting obligations for ABS issuers
under certain circumstances and to
revise our rules in light of the
amendment of Exchange Act Section
15(d).6 In this release, we are adopting
the rule amendments with some
changes to reflect comments we
received on the proposed amendments.
Exchange Act Section 15(d) generally
requires an issuer with a registration
statement that has become effective
pursuant to the Securities Act of 1933 7
(‘‘Securities Act’’) to file ongoing
Exchange Act reports with the
Commission. Prior to enactment of the
Act, Exchange Act Section 15(d)
provided that for issuers without a class
of securities registered under the
Exchange Act the duty to file ongoing
reports is automatically suspended as to
any fiscal year, other than the fiscal year
within which the registration statement
for the securities became effective, if the
securities of each class to which the
registration statement relates are held of
1 17 CFR 240.12h–3, 17 CFR 240.12h–6, and 17
CFR 240.15d–22.
2 17 CFR 249.323.
3 15 U.S.C. 78a et seq.
4 Pub. L. 111–203 (July 21, 2010).
5 15 U.S.C. 78o(d).
6 Suspension of the Duty to File Reports for
Classes of Asset-Backed Securities Under Section
15(d) of the Securities Exchange Act of 1934,
Release No. 34–63652 (Jan. 6, 2011) [76 FR 2049]
(the ‘‘Proposing Release’’).
7 15 U.S.C. 77a et seq.
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52549
record by less than 300 persons. As a
result, the reporting obligations of ABS
issuers,8 other than those with master
trust structures,9 were generally
suspended after the ABS issuer filed one
annual report on Form 10–K because the
number of record holders was below,
often significantly below, the 300 record
holder threshold.10
The Act removed any class of ABS
from the automatic suspension provided
in Exchange Act Section 15(d) by
inserting the phrase, ‘‘other than any
class of asset-backed securities.’’
Consequently, ABS issuers no longer
automatically suspend reporting under
Exchange Act Section 15(d). Instead, the
Act granted the Commission authority
to ‘‘provide for the suspension or
termination of the duty to file under this
subsection for any class of asset-backed
security, on such terms and conditions
and for such period or periods as the
Commission deems necessary or
appropriate in the public interest or for
the protection of investors.’’ 11
We proposed new Exchange Act Rule
15d–22(b) to provide for suspension of
the reporting obligations for a given
class of ABS pursuant to Exchange Act
Section 15(d) under certain limited
circumstances. In addition, we proposed
to update Exchange Act Rule 15d–22 to
indicate when annual and other reports
need to be filed and when starting and
suspension dates are determined with
respect to a takedown.
We received seven comment letters in
response to the proposed
8 ABS offerings are typically registered on shelf
registration statements and each ABS offering is
typically sold in a separate ‘‘takedown’’ off of the
shelf. In 2004, the Commission adopted Exchange
Act Rule 15d–22 relating to ABS reporting under
Exchange Act Section 15(d). Exchange Act Rule
15d–22 codified the staff position regarding the
starting and suspension dates for any reporting
obligation with respect to a takedown of ABS and
clarified that a new takedown for a new ABS
offering off the same shelf registration statement did
not necessitate continued reporting for a class of
securities from a prior takedown that was otherwise
eligible to suspend reporting. See Asset-Backed
Securities, Release No. 33–8518 (Dec. 22, 2004) [70
FR 1506] (the ‘‘ABS Adopting Release’’).
9 In a securitization using a master trust structure,
the ABS transaction contemplates future issuances
of ABS backed by the same, but expanded, asset
pool that consists of revolving assets. Pre-existing
and newly issued securities would therefore be
backed by the same expanded asset pool. Thus,
given their continued issuance, master trust ABS
issuers typically continue to report, even after the
first annual report is filed.
10 One source noted that in a survey of 100
randomly selected asset-backed transactions, the
number of record holders provided in reports on
Form 15 ranged from two to more than 70. The
survey did not consider beneficial owner numbers.
See Committee on Capital Markets Regulation, The
Global Financial Crisis: A Plan for Regulatory
Reform, May 2009, at fn. 349.
11 15 U.S.C. 78o(d)(2).
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
amendments.12 These letters came from
four professional associations, a law
firm, an individual and an institutional
investor. We have reviewed and
considered all of the comments that we
received on the proposed amendments.
Most commentators supported the
Commission’s goal of providing full and
transparent disclosure to investors in
ABS. Comments on the proposal were
mixed. Two commentators supported
the proposed standard without
revisions.13 Other commentators
suggested revisions to the proposed
standard, which are described below.14
Further, two commentators
recommended permitting commercial
mortgage-backed securities to suspend
reporting after one year.15 The adopted
rules reflect changes made in response
to comments. We explain our revisions
with respect to each proposed rule
amendment in more detail throughout
this release.
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II. Discussion of the Amendments
As indicated above, Exchange Act
Section 15(d), as amended by the Act,
establishes an ongoing reporting
obligation for each class of ABS for
which an issuer has filed a registration
statement that has become effective
pursuant to the Securities Act. Exchange
Act Section 15(d) also grants the
Commission authority to provide for the
suspension or termination of the duty to
file. We are adopting amendments with
changes made in response to comments
to provide limited relief from these
reporting obligations in a manner that
we believe is appropriate in the public
interest and consistent with the
protection of investors. In addition, we
are adopting rule and form
amendments, substantially as proposed,
12 The public comments we received are available
on our Web site at https://www.sec.gov/comments/
s7-02-11/s70211.shtml. See letters from the
American Securitization Forum (‘‘ASF’’), Chris
Barnard (‘‘Barnard’’), Cleary, Gottlieb, Steen, &
Hamilton LLP (‘‘Cleary’’), CRE Finance Council
(‘‘CREFC’’), Investment Company Institute (‘‘ICI’’),
MetLife, Inc. (‘‘MetLife’’), and Mortgage Bankers
Association (‘‘MBA’’).
13 See letters from ICI and Barnard.
14 See letters from ASF, Cleary and MetLife.
15 See letters from CREFC and MBA. These
commentators recommended that such securities be
permitted to suspend reporting under the old
Section 15(d) standard, which previously allowed
issuers of securities to suspend Exchange Act
reporting typically after the first year of reporting.
In support of differential treatment, the
commentators pointed to the ‘‘Annex A’’ initial
disclosure package and the ‘‘Investor Reporting
Package’’ used in the commercial mortgage-backed
securities market, suggesting these materials, along
with certain ‘‘best practices’’ projects, provide most,
if not all, of the information that would be required
to be included in the Section 15(d) reports, and
such materials are required to be provided to
investors on a timely basis under the Investor
Reporting Package standards.
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to update our rules relating to ABS
takedowns under a shelf registration
statement.
A. Suspension of Exchange Act Section
15(d) Reporting Obligation
1. Proposed Amendments
In the Proposing Release, we
proposed amended Exchange Act Rule
15d–22(b) to provide for suspension of
the reporting obligations for a given
class of ABS pursuant to Exchange Act
Section 15(d) under certain limited
circumstances.16 As revised by the Act,
Exchange Act Section 15(d) no longer
provides for the automatic suspension
of the duty to file periodic and other
reports for issuers of a class of ABS.
Without action by the Commission, ABS
issuers that have filed a registration
statement that has become effective
pursuant to the Securities Act or that
have conducted a takedown off of a
shelf registration statement, would be
obligated to continue to file such reports
for the life of the security.
In the Proposing Release, we noted
that post-issuance reporting of
information by an ABS issuer provides
investors and the market with
transparency regarding many aspects of
the ongoing performance of the
securities and the servicer in complying
with servicing criteria and that such
transparency is valuable in evaluating
transaction performance and making
ongoing investment decisions. We also
indicated our belief that the benefits of
ongoing reporting to investors and the
market where there are only affiliated
holders of the ABS are limited and
would not justify the burden of
reporting by those issuers.
Consequently, we proposed amended
Exchange Act Rule 15d–22(b), which
would provide that the reporting
obligation regarding any class of ABS is
suspended for any fiscal year, other than
the fiscal year within which the
registration statement became effective,
if, at the beginning of the fiscal year
there are no longer any securities of
such class held by non-affiliates of the
depositor that were sold in the
registered transaction. We also proposed
to amend Form 15 to add a checkbox for
ABS issuers to indicate that they are
relying on proposed Exchange Act Rule
15d–22(b) to suspend their reporting
obligation alerting the market and the
Commission of the change in reporting
status.
16 See
PO 00000
the Proposing Release supra note 6.
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2. Comments on the Proposed
Amendments
Commentators generally supported an
amendment that would provide for the
suspension of the reporting obligation
for ABS.17 The commentators expressed
varying levels of support for the
Commission’s proposed Exchange Act
Rule 15d–22(b):
• Two commentators supported the
proposal without changes; 18
• One commentator recommended a
more stringent standard; 19
• One commentator expressed general
support for the proposal subject to
specific comments on the language of
the proposal; 20
• One commentator suggested
expanding the set of circumstances
when ABS issuers may suspend
reporting; 21 and
• Two commentators suggested
allowing suspension for commercial
mortgage-backed securities issuers after
one year in keeping with the Section
15(d) standard as it existed prior to the
adoption of Section 942(a) of the Act
amending Exchange Act Section 15(d).22
The proposed rule would have
required an issuer to assess whether
there were any securities held by nonaffiliates of the depositor at the
beginning of the fiscal year. One
commentator recommended accelerating
the timing of when an issuer may assess
whether it may suspend reporting to
enable an issuer to suspend reporting
once there are no non-affiliated holders
or in the alternative, monthly.23 In
addition, this commentator
recommended that the Commission
amend the proposed rule to clarify that,
at such time as none of an issuer’s
registered ABS remain outstanding, the
issuer may immediately cease ongoing
Exchange Act reporting.24 In contrast,
some commentators supported the
17 See letters from ASF, Barnard, Cleary, CREFC,
ICI, MetLife, and MBA.
18 See letters from Barnard and ICI.
19 See letter from MetLife recommending
permitting suspension ‘‘only if (a) ABS of a
particular class are no longer held by non-affiliates
of the depositor and (b) the transaction has matured
(i.e. the collateral has been liquidated from the trust
or otherwise been fully amortized) or been
redeemed or called by the servicer.’’
20 See letter from ASF recommending various
changes to the proposed language discussed in
more detail below.
21 See letter from Cleary recommending
permitting suspension or termination of reporting
in two additional circumstances: (1) Where an ABS
is backed by a sufficient concentration of
obligations of an entity (e.g., repackagings) and
reference information under Item 1100(c)(2) of
Regulation AB (17 CFR 229.1100(c)(2)) is
unavailable and (2) where investors voted for
termination after a period of public reporting.
22 See letters from CREFC and MBA.
23 See letter from ASF.
24 Id.
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
timing of the assessment,25 and one
commentator recommended requiring
an issuer to re-assess its reporting
obligation, including after suspension,
every six months and further
recommended including an antiavoidance provision.26
Some commentators recommended
specific revisions to the proposed text of
the rule. The proposed rule would have
provided that the issuer may not
suspend reporting in the ‘‘fiscal year
within which the registration statement
became effective.’’ One commentator
recommended that the Commission
revise the language to instead refer to
the ‘‘fiscal year within which the
takedown occurred’’ to provide
additional clarity on the application of
the rule as it relates to shelf offerings.27
In addition, the proposed rule would
provide for suspension of reporting
obligations in any fiscal year when there
‘‘are no longer any securities of such
class held by non-affiliates of the
depositor.’’ Two commentators noted
that ABS are often held of record by a
custodian or broker on behalf of
underlying beneficial owners and
suggested that the test should look to
the underlying beneficial owners of the
securities.28 In addition, one
commentator recommended using the
term ‘‘are not’’ rather than saying there
‘‘are no longer’’ any securities of such
class held by non-affiliates of the
depositor that were sold in the
registered transaction to avoid any
implication that the ABS must have
been previously held by one or more
non-affiliates.29
3. Final Rule
After considering the comments, we
are adopting amendments to our rules to
provide for suspension of the reporting
obligations for a given class of ABS
pursuant to Exchange Act Section 15(d)
as proposed with some changes as
recommended by commentators. As
adopted, Exchange Act Rule 15d–22(b)
provides that the duty to file annual and
other reports under Section 15(d) is
suspended:
• As to any semi-annual fiscal period,
if, at the beginning of the semi-annual
fiscal period, other than a period in the
25 See
letters from Barnard and ICI.
letter from MetLife. MetLife expressed
concern that there are possible scenarios where a
depositor or its affiliates could potentially acquire
all registered ABS securities of a particular class
that were not held by such entities prior to the
Section 15(d) re-assessment determination date and
then re-sell such securities to non-affiliates in
secondary transactions during the course of the
fiscal year.
27 See letter from ASF.
28 See letters from ASF and MetLife.
29 See letter from ASF.
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26 See
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fiscal year within which the registration
statement became effective or, for shelf
offerings, the takedown occurred, there
are no ABS of such class that were sold
in a registered transaction held by nonaffiliates of the depositor and a
certification on Form 15 has been
filed; 30 or
• When there are no ABS of such
class that were sold in a registered
transaction still outstanding,
immediately upon the filing with the
Commission of a certification on Form
15 if the issuer has filed all required
reports for the most recent three fiscal
years.31
In addition, the final rule amends
Form 15 to add a checkbox for ABS
issuers to indicate that they are relying
on Exchange Act Rule 15d–22(b) to
suspend their reporting obligation and
adds two Notes to paragraph (b). Note 1
indicates that securities held of record
by a broker, dealer, bank or nominee
shall be considered as held by the
separate accounts for which the
securities are held. Note 2 includes an
anti-avoidance provision, as described
below.
In response to comments, Exchange
Act Rule 15d–22(b) has been changed
from the proposal in the following ways:
• The final rule provides for the
timing of the suspension of the duty to
file to be tested at the beginning of the
semi-annual fiscal period rather than
annually as proposed. The semi-annual
assessment provided in the final rule
requires an issuer to assess whether it is
required to report more often than the
proposed rule. The increased frequency
of the required assessment seeks to
alleviate concerns regarding reporting
and information gaps that could occur
with annual assessments by making it
harder to evade the reporting
requirements as well as reduce costs
imposed by requiring reporting for the
remainder of the year when the ABS are
held solely by affiliates of the
depositor.32 We do not believe more
30 The final rule clarifies that the issuer must
make its determination as of the beginning of the
semi-annual fiscal period and file a certification on
Form 15 in the semi-annual fiscal period within
which the issuer suspends its reporting obligation.
31 The final rule, consistent with Exchange Act
Rule 12h–3, also states that if the certification on
Form 15 is withdrawn or denied, the issuer is
obligated, within 60 days, to file all reports that
would have been required if such certification had
not been filed. The final rule provides conditions
for the immediate suspension of reporting that are
not required when the issuer suspends reporting
after its semi-annual assessment that may help to
reduce confusion or gaps in reporting upon
immediate suspension and are consistent with the
conditions established under Exchange Act Rule
12h–3.
32 See letters from ASF and MetLife. The final
rule requires ABS issuers, like other issuers that
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52551
frequent assessments to allow
suspension are appropriate because if
conducted more frequently, these
assessments might result in an ABS
issuer frequently changing its reporting
status and thereby result in less
continuity in its annual and other
reports and the creation of disclosure
gaps that could be detrimental to
investors’ ability to evaluate ABS
performance and make ongoing
investment decisions.
• The final rule provides that an
issuer of ABS may not suspend
reporting ‘‘in the fiscal year within
which the registration statement became
effective, or, for offerings conducted
pursuant to § 230.415(a)(1)(vii) or
§ 230.415(a)(1)(x), the takedown for the
offering occurred.’’ The language was
revised in response to comments to
provide additional clarity on the
application of the rule as it relates to
shelf offerings.33
• The final rule uses the term ‘‘there
are no asset-backed securities’’ rather
than the proposed ‘‘there are no longer
any asset-backed securities’’ to avoid
any implication that the ABS must have
been held by one or more nonaffiliates.34
• The final rule specifically provides
for the immediate suspension upon
filing of a Form 15 of the duty to file
when there are no ABS of a class that
were sold in a registered transaction still
outstanding subject to conditions that
are consistent with similar conditions in
Exchange Act Rule 12h–3.35 As
requested, the final rule makes clear that
an issuer may immediately suspend
reporting when the securities have been
retired or fully paid. In providing for
immediate suspension in our rules, we
have also added obligations that are
consistent with similar conditions in
Exchange Act Rule 12h–3 and may help
reduce possible confusion or gaps in
reporting that could occur with an
immediate suspension of reporting.
• The final rule adds a Note to
paragraph (b) of Exchange Act Rule
15d–22 clarifying that securities held of
record by a broker, dealer, bank or
nominee for any of them for the
accounts of customers are considered
held by the separate accounts for which
they are held. Thus, if an investment
bank is an ABS issuer and holds
must comply with Section 15(d), to assess
periodically whether they may suspend their duty
to file. Pursuant to Section 15(d) and our rules,
issuers may be permitted to suspend their duty to
file after one assessment, but may be required to
recommence reporting after a subsequent
assessment.
33 See letter from ASF.
34 See letter from ASF.
35 See letter from ASF.
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securities in its name for the benefit of
other non-affiliated investors, it cannot
suspend reporting. Conversely, if an
unaffiliated bank or broker holds ABS
for affiliates of the ABS issuer, the
unaffiliated status of the broker or bank
will not preclude suspension of
reporting.36
• The final rule adds a Note to
paragraph (b) of Exchange Act Rule
15d–22(b) providing that an issuer may
not suspend reporting if securities are
acquired and resold by affiliates as part
of a plan or scheme to evade the
reporting obligations of Section 15(d).37
The proposal and the final rules that
we are adopting today sought to provide
for the suspension of the reporting
obligation for a given class of ABS
under limited circumstances. Two
commentators requested that
commercial mortgage-backed securities
issuers be permitted to suspend
reporting based on the use of their
industry reporting standards.38 We are
not adopting those recommendations
because we believe that there are
benefits to investors and the market of
uniform disclosure standards provided
by Regulation AB and public access to
such uniform disclosure, and that such
an approach is more consistent with
Exchange Act Section 15(d), as amended
by the Act. In addition, we are not
adopting another commentator’s
recommendations to permit suspension
of reporting for repackaging ABS where
reference issuers stop reporting or to
permit suspension where requested by a
majority of holders.39 We are not
adopting the recommendation regarding
repackaging transactions because the
concentration of the significant obligor
in the asset pool makes the information
material. The need for the information
about the underlying issuer in the
reports for the ABS does not change due
to a change in the reporting status of the
underlying issuer.40 In addition, we are
not adopting the recommendation to
permit suspension where requested by a
majority of investors because any such
suspension would limit the information
available to investors and the
marketplace for ABS with non-affiliated
holders and could result in a reduction
of the minority holders ability to sell
and the price at which they may be able
to sell their securities.
36 See
letter from ASF and MetLife.
letter from MetLife and note 26. This
change should address the concern described by
MetLife.
38 See letters from CREFC and MBA.
39 See letter from Cleary.
40 See the ABS Adopting Release at 1554.
37 See
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B. Revisions to Existing Exchange Act
Rule Provisions
In light of the statutory changes to
Exchange Act Section 15(d), we
proposed to revise Exchange Act Rule
15d–22 to indicate when annual and
other reports need to be filed and when
starting and suspension dates are
determined with respect to a takedown.
We also proposed to amend Exchange
Act Rule 12h–3(b)(1) to conform the rule
to the language of amended Exchange
Act Section 15(d) and to add a clarifying
note.
1. Proposed Amendments
We proposed to amend Exchange Act
Rule 15d–22 to retain the approach
relating to separate takedowns in
current Exchange Act Rules 15d–22(a)
and 15d–22(b) in a revised Exchange
Act Rule 15d–22(a). Under the
amendments we proposed, Exchange
Act Rule 15d–22(a)(1) would provide
that with respect to an offering of ABS
sold off the shelf pursuant to Securities
Act Rule 415(a)(1)(x),41 the requirement
to file annual and other reports pursuant
to Exchange Act Section 15(d) regarding
a class of securities commences upon
the first bona fide sale in a takedown of
securities under the registration
statement. Under the amendments we
proposed, Exchange Act Rule 15d–
22(a)(2) would establish that the
requirement to file annual and other
reports pursuant to Exchange Act
Section 15(d) regarding a class of
securities is determined separately for
each takedown of securities under the
registration statement. Exchange Act
Rule 15d–22(c) would remain
substantially unchanged, except for
minor revisions to reflect the
amendments discussed above. Finally,
under the amendments we proposed,
Exchange Act Rule 12h–3(b)(1) would
exclude ABS from the classes of
securities eligible for suspension
(tracking the language of the Exchange
Act) and a note would be added to
Exchange Act Rule 12h–3 to direct ABS
issuers to Exchange Act Rule 15d–22 for
the requirements regarding suspension
of reporting for ABS.
2. Comments on the Proposed
Amendments
Commentators expressed general
support, and no commentators provided
specific comment on these proposed
revisions.42
3. Final Rule
After further consideration, we are
adopting the amendments to our rules
41 17
CFR 230.415(a)(1)(x).
letters from ASF and Barnard.
42 See
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relating to when annual and other
reports need to be filed and when
starting and suspension dates are
determined with respect to a takedown
substantially as proposed.43 We are also
adopting the changes to Exchange Act
Rule 12h–3(b)(1) to conform the rule to
the language of amended Exchange Act
Section 15(d), and provide a clarifying
note to Exchange Act Rule 12h–3(b)(1)
as proposed. In addition to the changes
to Exchange Act Rule 12h–3 that we
proposed, we are adding a clarifying
note to Exchange Act Rule 12h–6
directing foreign private issuers that are
ABS issuers to Exchange Act Rule 15d–
22 for the requirements regarding
suspension of reporting of ABS.
III. Paperwork Reduction Act
A. Background
Certain provisions of the disclosure
rules and forms applicable to ABS
issuers contain ‘‘collection of
information’’ requirements within the
meaning of the Paperwork Reduction
Act of 1995 (‘‘PRA’’).44 The Commission
published a notice requesting comment
on the collection of information
requirements in the Proposing Release
for the amendments, and submitted
these requirements to the Office of
Management and Budget for review in
accordance with the PRA.45 An agency
may not conduct or sponsor, and a
person is not required to comply with,
a collection of information unless it
displays a currently valid control
number. The titles for the affected
collections of information are:
(1) ‘‘Form 10–K’’ (OMB Control No.
3235–0063);
(2) ‘‘Form 10–D’’ (OMB Control No.
3235–0604);
(3) ‘‘Form 8–K’’ (OMB Control No.
3235–0288); and
(4) ‘‘Form 15’’ (OMB Control No.
3235–0167).
Compliance with the information
collections is mandatory. Responses to
the information collections are not kept
confidential and there is no mandatory
retention period for the collections of
information.
Our PRA burden estimate for Form
10–K, Form 8–K and Form 15 is based
on an average of the time and cost
incurred by all types of public
companies, not just ABS issuers, to
prepare the collection of information.
Form 10–D is a form that is only
prepared and filed by ABS issuers. Form
10–D is filed within 15 days of each
required distribution date on the ABS,
43 As adopted we are including a reference to
Securities Act Rule 415(a)(1)(vii).
44 44 U.S.C. 3501 et seq.
45 44 U.S.C. 3507(d) and 5 CFR 1320.11.
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as specified in the governing documents
for such securities, containing periodic
distribution and pool performance
information.
Our PRA burden estimates for the
collections of information are based on
information that we receive on entities
assigned to Standard Industrial
Classification Code 6189, the code used
by ABS issuers, as well as information
from outside data sources.46 In the
Proposing Release, we based our
estimates on an average of the data that
we have available for years 2004
through 2009. In some cases, our
estimates for the number of ABS issuers
that file Form 10–D with the
Commission are based on an average of
the number of ABS offerings in 2006
through 2009.47
In the Proposing Release we requested
comment on the PRA analysis. No
commentators responded to our request
for comment on the PRA analysis.
Subsequent to the enactment of the Act,
the number of Forms 10–K, 8–K and 10–
D filed by ABS issuers is expected to
increase each year by the number of
ABS registered offerings and the number
of Forms 15 filed by ABS issuers is
expected to decrease by a similar
number.
The amendments provide for ABS
issuers to suspend their reporting
obligation under certain circumstances.
While we expect that some issuers will
be able to suspend their reporting
obligations in the future as a result of
the rules we adopt today, for purposes
of the PRA, we estimated that the
proposal will not affect our PRA
estimates over the next three years.48
We also estimated that the amendments
to Exchange Act Rule 15d–22 relating to
reporting and shelf registration and
Exchange Act Rule 12h–3 to conform
the rule to Exchange Act Section 15(d)
will not affect our PRA estimates.
The amendments are generally
consistent with our proposals, although
the amendments do provide for semi46 We rely on two outside sources of ABS
issuance data. We use the ABS issuance data from
Asset-Backed Alert on the initial terms of offerings,
and we supplement that data with information from
Securities Data Corporation (SDC).
47 Form 10–D was not implemented until 2006.
Before implementation of Form 10–D, ABS issuers
often filed their distribution reports under cover of
Form 8–K.
48 Since historical data on the numbers of classes
of ABS that reduce their non-affiliated holders to
zero is not generally available, we are using
statistics relating to average expected deal life to
establish our PRA estimate. Statistics compiled
from SDC Platinum suggest that the average
expected deal life of a class of ABS is over 5 years.
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annual assessment, rather than an
annual assessment, and provide for
immediate suspension of reporting
when there are no outstanding ABS. We
do not believe that the changes from our
proposal will affect our PRA estimates.
As indicated above, we do not
estimate that the final rules will affect
our PRA estimates over the next three
years, however, as explained in further
detail in the Proposing Release, the
Act’s amendment to Section 15(d) is
expected to effect the number of
periodic and current reports and Forms
15 filed by ABS issuers each year.
We are revising our estimates to
reflect 2010 data regarding ABS filings.
In the Proposing Release we based our
estimates for the number of ABS issuers
on an average of the data that we have
available for years 2004 through 2009.
The yearly average of ABS registered
offerings with the Commission over the
period from 2004 to 2009 was 958. The
yearly average of ABS registered
offerings with the Commission over the
period from 2005 to 2010, a similar 6year period, was 751.49 As a result, for
PRA purposes, we are updating our
estimates of annual increases in Form
10–K filings to 751 filings,50 in Form
10–D filings to 4,506 filings,51 and in
Form 8–K to 1,127 filings 52 and
49 We have chosen to continue using a six year
average to estimate the number of ABS registered
offerings despite the significant drop off in filings
after 2007. As discussed in the Proposing Release,
in order to estimate the number of Forms 10–K,
Forms 10–D, Forms 8–K, and Forms 15 filed by
ABS issuers for PRA purposes, we average the
estimate of the number of those forms over three
years. For the first year of our average, we are using
an updated number of 751 as an estimate for the
number of issuers we expect to file Forms 10–K,
Forms 10–D and Forms 8–K. In the second year, we
increase our estimate by 751 to a total of 1,502 and
in the third year, the addition of another 751 brings
the total to 2,253. The average number of issuers
that we expect to file forms over three years would,
therefore, be 1,502, however 751 of those issuers
would have filed forms prior to the statutory
change. We reduce the estimated increase by 751
to account for those issuers. We are therefore
increasing our estimate by 751 issuers to account
for the increase in the number of issuers that will
be required to file reports as a result of the statutory
change. See the Proposing Release supra note 6 at
note 30.
50 As discussed above, we estimate that an
additional 751 issuers will be required to file
reports as a result of the statutory change. We
continue to estimate that each ABS issuer would
have one annual Form 10–K filing.
51 We continue to estimate that each ABS issuer
would have six annual Form 10–D filings resulting
in 4,506 additional Form 10–D filings (751 ABS
issuers x 6 filings) as a result of the statutory
change.
52 We continue to estimate that each ABS issuer
would have 1.5 annual Form 8–K filings resulting
in 1,127 additional Form 8–K filings (751 ABS
PO 00000
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Fmt 4700
Sfmt 4700
52553
reducing the annual decrease in Form
15 filings to 751 filings.53 In addition,
consistent with our estimate in the
Proposing Release that an average of six
Form 10–D filings will be filed annually
instead of ten Form 10–D filings, which
forms the basis of the current PRA
inventory for Form 10–D, we are
reducing our current inventory of
annual responses to Form 10–D to
reflect the new annual estimate.
In summation, we estimate, for PRA
purposes, increases of 90,120 total
burden hours for Form 10–K (751 Forms
10–K times 120 burden hours per filing),
135,180 total burden hours for Form 10–
D (4,506 Forms 10–D times 30 burden
hours per filing), and 5,635 total burden
hours for Form 8–K (1,127 Forms 8–K
times 5 burden hours per filing), as well
as a decrease of 1,127 total burden hours
for Form 15 (751 Forms 15 times 1.5
burden hours per filing) as a result of
the statutory changes to Exchange Act
Section 15(d).54 We allocate 75% of
those hours (an increase of 67,590 hours
for Form 10–K, 101,385 hours for Form
10–D, and 4,226 hours for Form 8–K) to
internal burden and the remaining 25%
to external costs using a rate of $400 per
hour (an increase of $9,012,000 for Form
10–K, $13,518,000 for Form 10–D and
$563,500 for Form 8–K). In addition, we
estimate, for PRA purposes, a decrease
in total burden hours due to a change in
agency estimate of the number of annual
Form 10–D filings of 120,000 (4,000
Form 10–D filings times 30 burden
hours per filing). We allocate 75% of
those hours to internal burden (a
decrease of 90,000) and the remaining
25% to external costs using a rate of
$400 per hour (a decrease of
$12,000,000).
The table below illustrates the
changes in annual compliance burden
in the collection of information in hours
and costs for existing reports for ABS
issuers as a result of the statutory
changes mandated by the Act as well as
the reduction in the estimated number
of Form 10–D filings described above.
issuers x 1.5 filings) as a result of the statutory
change.
53 As indicated in the Proposing Release, we
assume that in any given year the issuers of all
registered ABS issued in the prior year would have
suspended reporting using Form 15. After the
implementation of the Act, issuers are no longer
able to automatically suspend reporting; therefore,
Form 15 will no longer be used by these ABS
issuers as it was in the past. As a result, for the
purposes of PRA, we estimate a decrease in Form
15 filings of 751.
54 We allocate all of the burden for Form 15
filings to internal burden hours.
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Form
10–K ..........................................
10–D ..........................................
8–K ............................................
15 ..............................................
Current
annual
responses
Proposed
annual
responses
13,545
10,000
115,795
3,000
14,296
10,506
116,922
2,249
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IV. Benefit-Cost Analysis
Exchange Act Section 15(d) generally
establishes an ongoing reporting
obligation for issuers with a registration
statement that has become effective
pursuant to the Securities Act. Prior to
enactment of the Act, Exchange Act
Section 15(d) provided that for issuers
without a class of securities registered
under the Exchange Act the duty to file
ongoing reports is automatically
suspended as to any fiscal year, other
than the fiscal year within which the
registration statement for the securities
became effective, if the securities of
each class to which the registration
statement relates are held of record by
less than 300 persons. The Act amended
Exchange Act Section 15(d) to eliminate
the automatic suspension of the duty to
file ongoing Exchange Act reports for
ABS issuers and granted the
Commission authority to issue rules
providing for the suspension or
termination of such duty. The
Commission is exercising its authority
under the Exchange Act, as amended by
the Act, by amending Exchange Act
Rules 12h–3, 12h–6 and 15d–22 to
provide for the suspension of the duty
to file for certain ABS issuers and
reduce their compliance costs as
discussed in this release.55
The Commission is sensitive to the
benefits and costs imposed by the rules
it is amending. The discussion below
focuses on the benefits and costs of the
decisions made by the Commission in
the exercise of its new exemptive
authority provided by the Act, rather
than the costs and benefits of the Act
itself.
A. Benefits
The amendments the Commission is
adopting allow an issuer to suspend
reporting under certain circumstances
and update certain provisions relating to
reporting obligations under a shelf
registration statement. Providing for
issuers to suspend reporting would
provide the benefit of allowing those
issuers that are now required by the Act
to continue reporting to avoid the costs
55 The proposed amendments to Exchange Act
Rules 12h–3, 12h–6 and 15d–22(a) and (c) do not
substantively alter the current requirements and
should help issuers comply with their obligations
and avoid confusion.
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Current
burden
hours
21,363,548
225,000
493,436
4,500
Decrease or
increase in
burden hours
Proposed
burden
hours
67,590
11,385
4,226
(1,127)
21,431,138
236,385
497,662
3,373
of preparing and filing annual and
periodic reports with the Commission
when only affiliates of the depositor
hold any outstanding securities of the
classes sold in registered transactions.
We believe that reporting of the
ongoing performance of an ABS is
useful to investors and the market by
providing readily accessible information
upon which investors may evaluate
performance and make ongoing
investment decisions. We also
recognize, however, that there are
circumstances where the costs do not
justify the benefits of reporting to
investors and the market. In adopting
rules to provide for the suspension or
termination of the duty to file for certain
ABS issuers, we have sought to balance
the value of the information to investors
and the market with the burden on the
issuers of preparing the reports. More
specifically, we believe that when there
are only affiliated holders of the ABS,
those affiliates will generally be able to
receive relevant information because of
their relationship with the depositor.
Therefore, we are adopting new
Exchange Act Rule 15d–22(b) to provide
for issuers to suspend their reporting
obligation under Section 15(d), as to any
semi-annual fiscal period, if, at the
beginning of the semi-annual fiscal
period, there are no longer ABS of the
class that were sold in a registration
statement held by non-affiliates of the
depositor and a certification on Form 15
has been filed.
We originally proposed that ABS
issuers assess annually whether nonaffiliates hold the ABS sold in registered
transactions. We recognize that there is
a trade-off between allowing the
assessment to take place too frequently
or not frequently enough. If the
assessment is conducted frequently, it
might result in an ABS issuer changing
its reporting status often with the effect
of less continuity in its annual and other
reports. Reporting gaps could be
detrimental to investors’ ability to
evaluate ABS performance and make
ongoing investment decisions. However,
more frequent assessments will allow an
ABS issuer to report less and cease
reporting as soon as non-affiliates no
longer hold its securities, thus reducing
the issuer’s reporting burden and
associated costs. Less frequent
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Current
professional
costs
$2,848,473,000
30,000,000
54,212,000
0
Decrease or
increase in
professional
costs
$9,012,000
1,518,000
563,500
0
Proposed
professional
costs
$2,857,485,000
31,518,000
54,775,500
0
assessment of whether only affiliates
hold the registered ABS issued, might
result in unnecessary continued
reporting until the assessment is made,
up to 12 months for an annual
assessment. The new Exchange Act Rule
15d–22(b) allows for semi-annual
assessment, which we believe
appropriately balances these competing
interests.
B. Costs
In revising Exchange Act Section
15(d), Congress exhibited an intent to
increase the continued reporting by ABS
issuers, but gave the Commission
authority to place limitations on that
reporting in the public interest. The
Commission exercised this authority
and is adopting amendments allowing
ABS issuers to suspend their reporting
obligation under certain limited
conditions. Providing for the suspension
of reporting limits the ability of market
participants to access and review
information for those ABS that suspend
reporting. We believe that this cost is
mitigated under these conditions, since
affiliates will generally be able to
receive relevant information because of
their relationship with the depositor.
Thus, only non-holders of a particular
ABS are affected. Furthermore, the
utility of the information to market
participants is limited since ABS owned
solely by affiliates generally have no
public market.
We recognize that there are additional
costs to assessing holders semi-annually
and preparing ongoing disclosure for
registered transactions relative to the
costs of issuing in the private markets.
An issuer’s decision about whether to
issue registered ABS may be affected by
the threshold at which issuers may
suspend their reporting obligations
under Section 15(d). We solicited
comments on whether an alternative
suspension threshold might mitigate
this effect or be more appropriate for
other reasons. Although three
commentators responded to our request
with suggested alternatives, we are not
adopting those alternatives, as discussed
in Section II.A.3. above. No
commentator provided us with data or
analysis that would support an
alternative threshold. Thus, we continue
to believe that a threshold of zero non-
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affiliates is consistent with the Act and
presents an appropriate balance
between the value of the reported
information to investors and the market,
and the costs of preparing the reports.
V. Consideration of Burden on
Competition and Promotion of
Efficiency, Competition and Capital
Formation
Section 23(a) of the Exchange Act 56
requires the Commission, when making
rules and regulations under the
Exchange Act, to consider the impact a
new rule would have on competition.
Section 23(a)(2) prohibits the
Commission from adopting any rule that
would impose a burden on competition
not necessary or appropriate in
furtherance of the purposes of the
Exchange Act. Section 3(f) of the
Exchange Act 57 requires the
Commission, when engaging in
rulemaking that requires it to consider
whether an action is necessary or
appropriate in the public interest, to
consider, in addition to the protection of
investors, whether the action would
promote efficiency, competition, and
capital formation. The discussion below
focuses on the effects of the decisions
made by the Commission in the exercise
of its new exemptive authority provided
by the Act, rather than the effects of the
Act itself.
The Act amended Exchange Act
Section 15(d) to eliminate the automatic
suspension of the duty to file ongoing
Exchange Act reports for ABS issuers
and granted the Commission authority
to issue rules providing for the
suspension or termination of such duty.
The Commission is exercising its
authority under the Act by amending
Exchange Act Rules 12h–3, 12h–6 and
15d–22 to provide for the suspension of
the duty to file for certain ABS issuers
and reduce their compliance costs as
discussed in this release.
The amendments update the reporting
requirements for takedowns from shelf
registration in Exchange Act Rule 15d–
22 and provide for the suspension of the
duty to file for certain ABS issuers as
discussed in this release. Providing for
ABS issuers with only affiliated holders
to suspend their duty to file decreases
transparency regarding those issuers.
The suspension of the duty to file
reduces compliance costs for issuers,
which could increase efficiency and
facilitate capital formation.
An inability to suspend the duty to
file may encourage some issuers to offer
ABS privately or not to issue ABS at all,
rather than registering those ABS and
56 15
57 15
U.S.C. 78w(a).
U.S.C. 78c(f).
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incurring the ongoing reporting costs. If
issuers register fewer ABS, this would
reduce liquidity, decrease transparency
in the ABS market and decrease capital
formation. The amendments provide for
ABS issuers to suspend their duty to file
when they have only affiliated investors
remaining and provide issuers certainty
regarding when they may suspend
reporting, which may encourage some
ABS issuers to register ABS and offer
ABS in the public markets. These
changes are intended to mitigate the
aforementioned incentives to offer ABS
privately or not to issue ABS at all.
The clarifications provided in
Exchange Act Rule 15d–22, 12h–3, and
12h–6 may have a beneficial effect on
the efficiency of managing ABS
offerings, especially takedowns from
ABS shelf registration, by providing
issuers with a better understanding of
their Exchange Act reporting obligations
and facilitating compliance.
We do not believe the amendments
will have an impact or burden on
competition.
VI. Regulatory Flexibility Act
Certification
U.S.C. 1350 and 12 U.S.C. 5221(e)(3), unless
otherwise noted.
*
*
*
*
*
2. Amend § 240.12h–3 by:
a. In paragraph (b)(1) introductory text
adding ‘‘, other than any class of assetbacked securities,’’ in the first sentence
after ‘‘Any class of securities’’; and
■ b. Adding a Note to paragraph (b).
The addition reads as follows:
■
■
§ 240.12h–3 Suspension of duty to file
reports under section 15(d).
*
VII. Statutory Authority and Text of
Rule and Form Amendments
*
*
(b) * * *
(2) * * *
*
*
Note to Paragraph (B): The suspension of
classes of asset-backed securities is addressed
in § 240.15d–22.
*
*
*
*
*
3. Amend § 240.12h–6 by adding a
Note after paragraph (i) to read as
follows:
■
§ 240.12h–6 Certification by a foreign
private issuer regarding the termination of
registration of a class of securities under
section 12(g) or the duty to file reports
under section 13(a) or section 15(d).
*
Under Section 605(b) of the
Regulatory Flexibility Act, we certified
that, when adopted, the proposals
would not have a significant economic
impact on a substantial number of small
entities. We included the certification in
Part IX of the Proposing Release, but
received no comment.
52555
*
*
(i) * * *
*
*
Note to § 240.12h–6: The suspension of
classes of asset-backed securities is addressed
in § 240.15d–22.
*
*
*
*
*
4. Revise § 240.15d–22 to read as
follows:
■
§ 240.15d–22 Reporting regarding assetbacked securities under section 15(d) of the
Act.
(a) With respect to an offering of assetbacked securities registered pursuant to
§ 230.415(a)(1)(vii) or § 230.415(a)(1)(x)
of this chapter:
(1) Annual and other reports need not
be filed pursuant to section 15(d) of the
List of Subjects in 17 CFR Parts 240 and Act (15 U.S.C. 78o(d)) regarding any
249
class of securities to which such
registration statement relates until the
Reporting and recordkeeping
first bona fide sale in a takedown of
requirements, Securities.
securities under the registration
For the reasons set out above, Title 17,
statement; and
Chapter II of the Code of Federal
(2) The starting and suspension dates
Regulations is amended as follows:
for any reporting obligation under
section 15(d) of the Act (15 U.S.C.
PART 240—GENERAL RULES AND
78o(d)) with respect to a takedown of
REGULATIONS, SECURITIES
any class of asset-backed securities are
EXCHANGE ACT OF 1934
determined separately for each
takedown of securities under the
■ 1. The authority citation for part 240
registration statement.
continues to read in part as follows:
(b) The duty to file annual and other
Authority: 15 U.S.C. 77c, 77d, 77g, 77j,
reports pursuant to section 15(d) of the
77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn,
Act (15 U.S.C. 78o(d)) regarding any
77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j,
78j–1, 78k, 78k–1, 78l, 78m, 78n, 78n–1, 78o, class of asset-backed securities is
suspended:
78o–4, 78p, 78q, 78s, 78u–5, 78w, 78x, 78ll,
(1) As to any semi-annual fiscal
78mm, 80a–20, 80a–23, 80a–29, 80a–37, 80b–
period, if, at the beginning of the semi3, 80b–4, 80b–11, and 7201 et seq.; and 18
We are adopting the amendments
contained in this document under the
authority set forth in Sections 3(b), 12,
13, 15, 23(a), and 36 of the Exchange
Act.
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
annual fiscal period, other than a period
in the fiscal year within which the
registration statement became effective,
or, for offerings conducted pursuant to
§ 230.415(a)(1)(vii) or § 230.415(a)(1)(x),
the takedown for the offering occurred,
there are no asset-backed securities of
such class that were sold in a registered
transaction held by non-affiliates of the
depositor and a certification on Form 15
(17 CFR 249.323) has been filed; or
(2) When there are no asset-backed
securities of such class that were sold in
a registered transaction still
outstanding, immediately upon filing
with the Commission a certification on
Form 15 (17 CFR 249.323) if the issuer
of such class has filed all reports
required by Section 13(a), without
regard to Rule 12b–25 (17 CFR 249.322),
for the shorter of its most recent three
fiscal years and the portion of the
current year preceding the date of filing
Form 15, or the period since the issuer
became subject to such reporting
obligation. If the certification on Form
15 is subsequently withdrawn or
denied, the issuer shall, within 60 days,
file with the Commission all reports
which would have been required if such
certification had not been filed.
Note 1 to Paragraph (b): Securities held of
record by a broker, dealer, bank or nominee
for any of them for the accounts of customers
shall be considered as held by the separate
accounts for which the securities are held.
Note 2 to Paragraph (b): An issuer may not
suspend reporting if the issuer and its
affiliates acquire and resell securities as part
of a plan or scheme to evade the reporting
obligations of Section 15(d).
(c) This section does not affect any
other reporting obligation applicable
with respect to any classes of securities
from additional takedowns under the
same or different registration statements
or any reporting obligation that may be
applicable pursuant to section 12 of the
Act (15 U.S.C. 78l).
PART 249—FORMS, SECURITIES
EXCHANGE ACT OF 1934
5. The authority citation for part 249
continues to read in part as follows:
■
Authority: 15 U.S.C. 78a et seq. and 7201
et seq.; and 18 U.S.C. 1350, unless otherwise
noted.
*
*
*
*
*
6. Amend Form 15 (referenced in
§ 249.323) by:
■ a. Adding a checkbox referring to
‘‘Rule 15d–22(b)’’ after the checkbox
referring to ‘‘Rule 15d–6’’; and
■ b. By revising the first sentence of the
Instruction to read: ‘‘This form is
required by Rules 12g–4, 12h–3, 15d–6
and 15d–22 of the General Rules and
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■
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14:22 Aug 22, 2011
Jkt 223001
Regulations under the Securities
Exchange Act of 1934.’’
Note: The text of Form 15 does not and this
amendment will not appear in the Code of
Federal Regulations.
By the Commission.
Dated: August 17, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011–21500 Filed 8–22–11; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1 and 602
[TD 9547]
RIN 1545–BF05
Election To Expense Certain Refineries
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations and removal of
temporary regulations.
AGENCY:
This document provides final
regulations relating to the election to
expense qualified refinery property
under section 179C of the Internal
Revenue Code (Code). These final
regulations adopt the temporary
regulations with certain modifications
to reflect changes to the law made by
the Energy Improvement and Extension
Act of 2008.
DATES: Effective Date: These regulations
are effective August 22, 2011.
FOR FURTHER INFORMATION CONTACT:
Philip Tiegerman (202) 622–3110 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
SUMMARY:
Paperwork Reduction Act
The collection of information
contained in these regulations has been
reviewed and approved by the Office of
Management and Budget in accordance
with the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)) under control
number (1545–2103). Responses to this
collection of information are mandatory.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless the collection of information
displays a valid OMB control number.
Books or records relating to a
collection of information must be
retained as long as their contents may
become material in the administration
of any internal revenue law. Generally,
tax returns and tax return information
are confidential, as required by 26
U.S.C. 6103.
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
Background
Section 179C was added to the Code
by section 1323(a) of the Energy Policy
Act of 2005, Public Law 109–58 (119
Stat. 594), to encourage the construction
of new refineries and the expansion of
existing refineries to enhance the
nation’s refinery capacity. Section
179C(a) allows a taxpayer to elect to
deduct as an expense 50 percent of the
cost of any qualified refinery property.
The remaining 50 percent of the
taxpayer’s qualifying expenditures
generally are recovered under section
168 and section 179B, if applicable. All
costs properly capitalized into qualified
refinery property are includable in the
cost of the qualified refinery property.
As originally enacted, section
179C(c)(1)(B) required that qualified
refinery property be placed in service by
a taxpayer after August 8, 2005, and
before January 1, 2012. Under section
179C(c)(1)(F) as originally enacted, (i)
the construction of the property must
have been subject to a written binding
construction contract entered into
before January 1, 2008, (ii) the property
must have been placed in service before
January 1, 2008, or (iii) in the case of
self-constructed property, the
construction of the property must have
begun after June 14, 2005, and before
January 1, 2008. Section 179C(d)(1)
originally required that a qualified
refinery be designed to serve the
primary purpose of processing liquid
fuel from crude oil or qualified fuels (as
defined in section 45K(c)). Under
section 179C(e) as originally enacted,
qualified refinery property must have
enabled the existing qualified refinery to
increase total volume output
(determined without regard to asphalt or
lube oil) by 5 percent or more on an
average daily basis or to process
qualified fuels (as defined in section
45K(c)) at a rate that is equal to or
greater than 25 percent of the total
throughput of the qualified refinery on
an average daily basis.
Section 209 of the Energy
Improvement and Extension Act of 2008
(the ‘‘2008 Act’’), Division B, Public
Law 110–343 (122 Stat. 3765), amended
section 179C in several respects. The
2008 Act extended the placed in service
date of section 179C(c)(1)(B) to January
1, 2014. In addition, the 2008 Act
amended section 179C(c)(1)(F) to
provide that (i) the construction of the
property must be subject to a written
binding construction contract entered
into before January 1, 2010, (ii) the
property must be placed in service
before January 1, 2010, or (iii) in the
case of self-constructed property, the
construction of the property must begin
E:\FR\FM\23AUR1.SGM
23AUR1
]]>Agencies
[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52549-52556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21500]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 240 and 249
[Release No. 34-65148; File No. S7-02-11]
RIN 3235-AK89
Suspension of the Duty To File Reports for Classes of Asset-
Backed Securities Under Section 15(D) of the Securities Exchange Act of
1934
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Section 942(a) of the Dodd-Frank Wall Street Reform and
Consumer Protection Act eliminated the automatic suspension of the duty
to file under Section 15(d) of the Securities Exchange Act of 1934 for
asset-backed securities issuers and granted the Commission the
authority to issue rules providing for the suspension or termination of
such duty. We are adopting rules to provide certain thresholds for
suspension of the reporting obligations for asset-backed securities
issuers. We are also amending our rules relating to the Exchange Act
reporting obligations of asset-backed securities issuers in light of
these statutory changes.
DATES: Effective Date: September 22, 2011.
FOR FURTHER INFORMATION CONTACT: Steven Hearne, Special Counsel, in the
Office of Rulemaking, at (202) 551-3430 or Kathy Hsu, Chief, Office of
Structured Finance, Division of Corporation Finance, at (202) 551-3850,
U.S. Securities and Exchange Commission, 100 F Street, NE., Washington,
DC 20549-3628.
SUPPLEMENTARY INFORMATION: We are adopting amendments to Rules 12h-3,
12h-6, and 15d-22 \1\ and Form 15 \2\ under the Securities Exchange Act
of 1934 (``Exchange Act'').\3\
---------------------------------------------------------------------------
\1\ 17 CFR 240.12h-3, 17 CFR 240.12h-6, and 17 CFR 240.15d-22.
\2\ 17 CFR 249.323.
\3\ 15 U.S.C. 78a et seq.
---------------------------------------------------------------------------
I. Background and Overview of the Amendments
Section 942(a) of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (the ``Act'') \4\ eliminated the automatic suspension of
the duty to file under Section 15(d) \5\ of the Exchange Act for asset-
backed securities (``ABS'') issuers and granted the Commission the
authority to issue rules providing for the suspension or termination of
such duty. We proposed amendments on January 6, 2011 to provide for the
suspension of reporting obligations for ABS issuers under certain
circumstances and to revise our rules in light of the amendment of
Exchange Act Section 15(d).\6\ In this release, we are adopting the
rule amendments with some changes to reflect comments we received on
the proposed amendments.
---------------------------------------------------------------------------
\4\ Pub. L. 111-203 (July 21, 2010).
\5\ 15 U.S.C. 78o(d).
\6\ Suspension of the Duty to File Reports for Classes of Asset-
Backed Securities Under Section 15(d) of the Securities Exchange Act
of 1934, Release No. 34-63652 (Jan. 6, 2011) [76 FR 2049] (the
``Proposing Release'').
---------------------------------------------------------------------------
Exchange Act Section 15(d) generally requires an issuer with a
registration statement that has become effective pursuant to the
Securities Act of 1933 \7\ (``Securities Act'') to file ongoing
Exchange Act reports with the Commission. Prior to enactment of the
Act, Exchange Act Section 15(d) provided that for issuers without a
class of securities registered under the Exchange Act the duty to file
ongoing reports is automatically suspended as to any fiscal year, other
than the fiscal year within which the registration statement for the
securities became effective, if the securities of each class to which
the registration statement relates are held of record by less than 300
persons. As a result, the reporting obligations of ABS issuers,\8\
other than those with master trust structures,\9\ were generally
suspended after the ABS issuer filed one annual report on Form 10-K
because the number of record holders was below, often significantly
below, the 300 record holder threshold.\10\
---------------------------------------------------------------------------
\7\ 15 U.S.C. 77a et seq.
\8\ ABS offerings are typically registered on shelf registration
statements and each ABS offering is typically sold in a separate
``takedown'' off of the shelf. In 2004, the Commission adopted
Exchange Act Rule 15d-22 relating to ABS reporting under Exchange
Act Section 15(d). Exchange Act Rule 15d-22 codified the staff
position regarding the starting and suspension dates for any
reporting obligation with respect to a takedown of ABS and clarified
that a new takedown for a new ABS offering off the same shelf
registration statement did not necessitate continued reporting for a
class of securities from a prior takedown that was otherwise
eligible to suspend reporting. See Asset-Backed Securities, Release
No. 33-8518 (Dec. 22, 2004) [70 FR 1506] (the ``ABS Adopting
Release'').
\9\ In a securitization using a master trust structure, the ABS
transaction contemplates future issuances of ABS backed by the same,
but expanded, asset pool that consists of revolving assets. Pre-
existing and newly issued securities would therefore be backed by
the same expanded asset pool. Thus, given their continued issuance,
master trust ABS issuers typically continue to report, even after
the first annual report is filed.
\10\ One source noted that in a survey of 100 randomly selected
asset-backed transactions, the number of record holders provided in
reports on Form 15 ranged from two to more than 70. The survey did
not consider beneficial owner numbers. See Committee on Capital
Markets Regulation, The Global Financial Crisis: A Plan for
Regulatory Reform, May 2009, at fn. 349.
---------------------------------------------------------------------------
The Act removed any class of ABS from the automatic suspension
provided in Exchange Act Section 15(d) by inserting the phrase, ``other
than any class of asset-backed securities.'' Consequently, ABS issuers
no longer automatically suspend reporting under Exchange Act Section
15(d). Instead, the Act granted the Commission authority to ``provide
for the suspension or termination of the duty to file under this
subsection for any class of asset-backed security, on such terms and
conditions and for such period or periods as the Commission deems
necessary or appropriate in the public interest or for the protection
of investors.'' \11\
---------------------------------------------------------------------------
\11\ 15 U.S.C. 78o(d)(2).
---------------------------------------------------------------------------
We proposed new Exchange Act Rule 15d-22(b) to provide for
suspension of the reporting obligations for a given class of ABS
pursuant to Exchange Act Section 15(d) under certain limited
circumstances. In addition, we proposed to update Exchange Act Rule
15d-22 to indicate when annual and other reports need to be filed and
when starting and suspension dates are determined with respect to a
takedown.
We received seven comment letters in response to the proposed
[[Page 52550]]
amendments.\12\ These letters came from four professional associations,
a law firm, an individual and an institutional investor. We have
reviewed and considered all of the comments that we received on the
proposed amendments. Most commentators supported the Commission's goal
of providing full and transparent disclosure to investors in ABS.
Comments on the proposal were mixed. Two commentators supported the
proposed standard without revisions.\13\ Other commentators suggested
revisions to the proposed standard, which are described below.\14\
Further, two commentators recommended permitting commercial mortgage-
backed securities to suspend reporting after one year.\15\ The adopted
rules reflect changes made in response to comments. We explain our
revisions with respect to each proposed rule amendment in more detail
throughout this release.
---------------------------------------------------------------------------
\12\ The public comments we received are available on our Web
site at https://www.sec.gov/comments/s7-02-11/s70211.shtml. See
letters from the American Securitization Forum (``ASF''), Chris
Barnard (``Barnard''), Cleary, Gottlieb, Steen, & Hamilton LLP
(``Cleary''), CRE Finance Council (``CREFC''), Investment Company
Institute (``ICI''), MetLife, Inc. (``MetLife''), and Mortgage
Bankers Association (``MBA'').
\13\ See letters from ICI and Barnard.
\14\ See letters from ASF, Cleary and MetLife.
\15\ See letters from CREFC and MBA. These commentators
recommended that such securities be permitted to suspend reporting
under the old Section 15(d) standard, which previously allowed
issuers of securities to suspend Exchange Act reporting typically
after the first year of reporting. In support of differential
treatment, the commentators pointed to the ``Annex A'' initial
disclosure package and the ``Investor Reporting Package'' used in
the commercial mortgage-backed securities market, suggesting these
materials, along with certain ``best practices'' projects, provide
most, if not all, of the information that would be required to be
included in the Section 15(d) reports, and such materials are
required to be provided to investors on a timely basis under the
Investor Reporting Package standards.
---------------------------------------------------------------------------
II. Discussion of the Amendments
As indicated above, Exchange Act Section 15(d), as amended by the
Act, establishes an ongoing reporting obligation for each class of ABS
for which an issuer has filed a registration statement that has become
effective pursuant to the Securities Act. Exchange Act Section 15(d)
also grants the Commission authority to provide for the suspension or
termination of the duty to file. We are adopting amendments with
changes made in response to comments to provide limited relief from
these reporting obligations in a manner that we believe is appropriate
in the public interest and consistent with the protection of investors.
In addition, we are adopting rule and form amendments, substantially as
proposed, to update our rules relating to ABS takedowns under a shelf
registration statement.
A. Suspension of Exchange Act Section 15(d) Reporting Obligation
1. Proposed Amendments
In the Proposing Release, we proposed amended Exchange Act Rule
15d-22(b) to provide for suspension of the reporting obligations for a
given class of ABS pursuant to Exchange Act Section 15(d) under certain
limited circumstances.\16\ As revised by the Act, Exchange Act Section
15(d) no longer provides for the automatic suspension of the duty to
file periodic and other reports for issuers of a class of ABS. Without
action by the Commission, ABS issuers that have filed a registration
statement that has become effective pursuant to the Securities Act or
that have conducted a takedown off of a shelf registration statement,
would be obligated to continue to file such reports for the life of the
security.
---------------------------------------------------------------------------
\16\ See the Proposing Release supra note 6.
---------------------------------------------------------------------------
In the Proposing Release, we noted that post-issuance reporting of
information by an ABS issuer provides investors and the market with
transparency regarding many aspects of the ongoing performance of the
securities and the servicer in complying with servicing criteria and
that such transparency is valuable in evaluating transaction
performance and making ongoing investment decisions. We also indicated
our belief that the benefits of ongoing reporting to investors and the
market where there are only affiliated holders of the ABS are limited
and would not justify the burden of reporting by those issuers.
Consequently, we proposed amended Exchange Act Rule 15d-22(b), which
would provide that the reporting obligation regarding any class of ABS
is suspended for any fiscal year, other than the fiscal year within
which the registration statement became effective, if, at the beginning
of the fiscal year there are no longer any securities of such class
held by non-affiliates of the depositor that were sold in the
registered transaction. We also proposed to amend Form 15 to add a
checkbox for ABS issuers to indicate that they are relying on proposed
Exchange Act Rule 15d-22(b) to suspend their reporting obligation
alerting the market and the Commission of the change in reporting
status.
2. Comments on the Proposed Amendments
Commentators generally supported an amendment that would provide
for the suspension of the reporting obligation for ABS.\17\ The
commentators expressed varying levels of support for the Commission's
proposed Exchange Act Rule 15d-22(b):
---------------------------------------------------------------------------
\17\ See letters from ASF, Barnard, Cleary, CREFC, ICI, MetLife,
and MBA.
---------------------------------------------------------------------------
Two commentators supported the proposal without changes;
\18\
---------------------------------------------------------------------------
\18\ See letters from Barnard and ICI.
---------------------------------------------------------------------------
One commentator recommended a more stringent standard;
\19\
---------------------------------------------------------------------------
\19\ See letter from MetLife recommending permitting suspension
``only if (a) ABS of a particular class are no longer held by non-
affiliates of the depositor and (b) the transaction has matured
(i.e. the collateral has been liquidated from the trust or otherwise
been fully amortized) or been redeemed or called by the servicer.''
---------------------------------------------------------------------------
One commentator expressed general support for the proposal
subject to specific comments on the language of the proposal; \20\
---------------------------------------------------------------------------
\20\ See letter from ASF recommending various changes to the
proposed language discussed in more detail below.
---------------------------------------------------------------------------
One commentator suggested expanding the set of
circumstances when ABS issuers may suspend reporting; \21\ and
---------------------------------------------------------------------------
\21\ See letter from Cleary recommending permitting suspension
or termination of reporting in two additional circumstances: (1)
Where an ABS is backed by a sufficient concentration of obligations
of an entity (e.g., repackagings) and reference information under
Item 1100(c)(2) of Regulation AB (17 CFR 229.1100(c)(2)) is
unavailable and (2) where investors voted for termination after a
period of public reporting.
---------------------------------------------------------------------------
Two commentators suggested allowing suspension for
commercial mortgage-backed securities issuers after one year in keeping
with the Section 15(d) standard as it existed prior to the adoption of
Section 942(a) of the Act amending Exchange Act Section 15(d).\22\
---------------------------------------------------------------------------
\22\ See letters from CREFC and MBA.
---------------------------------------------------------------------------
The proposed rule would have required an issuer to assess whether
there were any securities held by non-affiliates of the depositor at
the beginning of the fiscal year. One commentator recommended
accelerating the timing of when an issuer may assess whether it may
suspend reporting to enable an issuer to suspend reporting once there
are no non-affiliated holders or in the alternative, monthly.\23\ In
addition, this commentator recommended that the Commission amend the
proposed rule to clarify that, at such time as none of an issuer's
registered ABS remain outstanding, the issuer may immediately cease
ongoing Exchange Act reporting.\24\ In contrast, some commentators
supported the
[[Page 52551]]
timing of the assessment,\25\ and one commentator recommended requiring
an issuer to re-assess its reporting obligation, including after
suspension, every six months and further recommended including an anti-
avoidance provision.\26\
---------------------------------------------------------------------------
\23\ See letter from ASF.
\24\ Id.
\25\ See letters from Barnard and ICI.
\26\ See letter from MetLife. MetLife expressed concern that
there are possible scenarios where a depositor or its affiliates
could potentially acquire all registered ABS securities of a
particular class that were not held by such entities prior to the
Section 15(d) re-assessment determination date and then re-sell such
securities to non-affiliates in secondary transactions during the
course of the fiscal year.
---------------------------------------------------------------------------
Some commentators recommended specific revisions to the proposed
text of the rule. The proposed rule would have provided that the issuer
may not suspend reporting in the ``fiscal year within which the
registration statement became effective.'' One commentator recommended
that the Commission revise the language to instead refer to the
``fiscal year within which the takedown occurred'' to provide
additional clarity on the application of the rule as it relates to
shelf offerings.\27\ In addition, the proposed rule would provide for
suspension of reporting obligations in any fiscal year when there ``are
no longer any securities of such class held by non-affiliates of the
depositor.'' Two commentators noted that ABS are often held of record
by a custodian or broker on behalf of underlying beneficial owners and
suggested that the test should look to the underlying beneficial owners
of the securities.\28\ In addition, one commentator recommended using
the term ``are not'' rather than saying there ``are no longer'' any
securities of such class held by non-affiliates of the depositor that
were sold in the registered transaction to avoid any implication that
the ABS must have been previously held by one or more non-
affiliates.\29\
---------------------------------------------------------------------------
\27\ See letter from ASF.
\28\ See letters from ASF and MetLife.
\29\ See letter from ASF.
---------------------------------------------------------------------------
3. Final Rule
After considering the comments, we are adopting amendments to our
rules to provide for suspension of the reporting obligations for a
given class of ABS pursuant to Exchange Act Section 15(d) as proposed
with some changes as recommended by commentators. As adopted, Exchange
Act Rule 15d-22(b) provides that the duty to file annual and other
reports under Section 15(d) is suspended:
As to any semi-annual fiscal period, if, at the beginning
of the semi-annual fiscal period, other than a period in the fiscal
year within which the registration statement became effective or, for
shelf offerings, the takedown occurred, there are no ABS of such class
that were sold in a registered transaction held by non-affiliates of
the depositor and a certification on Form 15 has been filed; \30\ or
---------------------------------------------------------------------------
\30\ The final rule clarifies that the issuer must make its
determination as of the beginning of the semi-annual fiscal period
and file a certification on Form 15 in the semi-annual fiscal period
within which the issuer suspends its reporting obligation.
---------------------------------------------------------------------------
When there are no ABS of such class that were sold in a
registered transaction still outstanding, immediately upon the filing
with the Commission of a certification on Form 15 if the issuer has
filed all required reports for the most recent three fiscal years.\31\
---------------------------------------------------------------------------
\31\ The final rule, consistent with Exchange Act Rule 12h-3,
also states that if the certification on Form 15 is withdrawn or
denied, the issuer is obligated, within 60 days, to file all reports
that would have been required if such certification had not been
filed. The final rule provides conditions for the immediate
suspension of reporting that are not required when the issuer
suspends reporting after its semi-annual assessment that may help to
reduce confusion or gaps in reporting upon immediate suspension and
are consistent with the conditions established under Exchange Act
Rule 12h-3.
---------------------------------------------------------------------------
In addition, the final rule amends Form 15 to add a checkbox for
ABS issuers to indicate that they are relying on Exchange Act Rule 15d-
22(b) to suspend their reporting obligation and adds two Notes to
paragraph (b). Note 1 indicates that securities held of record by a
broker, dealer, bank or nominee shall be considered as held by the
separate accounts for which the securities are held. Note 2 includes an
anti-avoidance provision, as described below.
In response to comments, Exchange Act Rule 15d-22(b) has been
changed from the proposal in the following ways:
The final rule provides for the timing of the suspension
of the duty to file to be tested at the beginning of the semi-annual
fiscal period rather than annually as proposed. The semi-annual
assessment provided in the final rule requires an issuer to assess
whether it is required to report more often than the proposed rule. The
increased frequency of the required assessment seeks to alleviate
concerns regarding reporting and information gaps that could occur with
annual assessments by making it harder to evade the reporting
requirements as well as reduce costs imposed by requiring reporting for
the remainder of the year when the ABS are held solely by affiliates of
the depositor.\32\ We do not believe more frequent assessments to allow
suspension are appropriate because if conducted more frequently, these
assessments might result in an ABS issuer frequently changing its
reporting status and thereby result in less continuity in its annual
and other reports and the creation of disclosure gaps that could be
detrimental to investors' ability to evaluate ABS performance and make
ongoing investment decisions.
---------------------------------------------------------------------------
\32\ See letters from ASF and MetLife. The final rule requires
ABS issuers, like other issuers that must comply with Section 15(d),
to assess periodically whether they may suspend their duty to file.
Pursuant to Section 15(d) and our rules, issuers may be permitted to
suspend their duty to file after one assessment, but may be required
to recommence reporting after a subsequent assessment.
---------------------------------------------------------------------------
The final rule provides that an issuer of ABS may not
suspend reporting ``in the fiscal year within which the registration
statement became effective, or, for offerings conducted pursuant to
Sec. 230.415(a)(1)(vii) or Sec. 230.415(a)(1)(x), the takedown for
the offering occurred.'' The language was revised in response to
comments to provide additional clarity on the application of the rule
as it relates to shelf offerings.\33\
---------------------------------------------------------------------------
\33\ See letter from ASF.
---------------------------------------------------------------------------
The final rule uses the term ``there are no asset-backed
securities'' rather than the proposed ``there are no longer any asset-
backed securities'' to avoid any implication that the ABS must have
been held by one or more non-affiliates.\34\
---------------------------------------------------------------------------
\34\ See letter from ASF.
---------------------------------------------------------------------------
The final rule specifically provides for the immediate
suspension upon filing of a Form 15 of the duty to file when there are
no ABS of a class that were sold in a registered transaction still
outstanding subject to conditions that are consistent with similar
conditions in Exchange Act Rule 12h-3.\35\ As requested, the final rule
makes clear that an issuer may immediately suspend reporting when the
securities have been retired or fully paid. In providing for immediate
suspension in our rules, we have also added obligations that are
consistent with similar conditions in Exchange Act Rule 12h-3 and may
help reduce possible confusion or gaps in reporting that could occur
with an immediate suspension of reporting.
---------------------------------------------------------------------------
\35\ See letter from ASF.
---------------------------------------------------------------------------
The final rule adds a Note to paragraph (b) of Exchange
Act Rule 15d-22 clarifying that securities held of record by a broker,
dealer, bank or nominee for any of them for the accounts of customers
are considered held by the separate accounts for which they are held.
Thus, if an investment bank is an ABS issuer and holds
[[Page 52552]]
securities in its name for the benefit of other non-affiliated
investors, it cannot suspend reporting. Conversely, if an unaffiliated
bank or broker holds ABS for affiliates of the ABS issuer, the
unaffiliated status of the broker or bank will not preclude suspension
of reporting.\36\
---------------------------------------------------------------------------
\36\ See letter from ASF and MetLife.
---------------------------------------------------------------------------
The final rule adds a Note to paragraph (b) of Exchange
Act Rule 15d-22(b) providing that an issuer may not suspend reporting
if securities are acquired and resold by affiliates as part of a plan
or scheme to evade the reporting obligations of Section 15(d).\37\
---------------------------------------------------------------------------
\37\ See letter from MetLife and note 26. This change should
address the concern described by MetLife.
---------------------------------------------------------------------------
The proposal and the final rules that we are adopting today sought
to provide for the suspension of the reporting obligation for a given
class of ABS under limited circumstances. Two commentators requested
that commercial mortgage-backed securities issuers be permitted to
suspend reporting based on the use of their industry reporting
standards.\38\ We are not adopting those recommendations because we
believe that there are benefits to investors and the market of uniform
disclosure standards provided by Regulation AB and public access to
such uniform disclosure, and that such an approach is more consistent
with Exchange Act Section 15(d), as amended by the Act. In addition, we
are not adopting another commentator's recommendations to permit
suspension of reporting for repackaging ABS where reference issuers
stop reporting or to permit suspension where requested by a majority of
holders.\39\ We are not adopting the recommendation regarding
repackaging transactions because the concentration of the significant
obligor in the asset pool makes the information material. The need for
the information about the underlying issuer in the reports for the ABS
does not change due to a change in the reporting status of the
underlying issuer.\40\ In addition, we are not adopting the
recommendation to permit suspension where requested by a majority of
investors because any such suspension would limit the information
available to investors and the marketplace for ABS with non-affiliated
holders and could result in a reduction of the minority holders ability
to sell and the price at which they may be able to sell their
securities.
---------------------------------------------------------------------------
\38\ See letters from CREFC and MBA.
\39\ See letter from Cleary.
\40\ See the ABS Adopting Release at 1554.
---------------------------------------------------------------------------
B. Revisions to Existing Exchange Act Rule Provisions
In light of the statutory changes to Exchange Act Section 15(d), we
proposed to revise Exchange Act Rule 15d-22 to indicate when annual and
other reports need to be filed and when starting and suspension dates
are determined with respect to a takedown. We also proposed to amend
Exchange Act Rule 12h-3(b)(1) to conform the rule to the language of
amended Exchange Act Section 15(d) and to add a clarifying note.
1. Proposed Amendments
We proposed to amend Exchange Act Rule 15d-22 to retain the
approach relating to separate takedowns in current Exchange Act Rules
15d-22(a) and 15d-22(b) in a revised Exchange Act Rule 15d-22(a). Under
the amendments we proposed, Exchange Act Rule 15d-22(a)(1) would
provide that with respect to an offering of ABS sold off the shelf
pursuant to Securities Act Rule 415(a)(1)(x),\41\ the requirement to
file annual and other reports pursuant to Exchange Act Section 15(d)
regarding a class of securities commences upon the first bona fide sale
in a takedown of securities under the registration statement. Under the
amendments we proposed, Exchange Act Rule 15d-22(a)(2) would establish
that the requirement to file annual and other reports pursuant to
Exchange Act Section 15(d) regarding a class of securities is
determined separately for each takedown of securities under the
registration statement. Exchange Act Rule 15d-22(c) would remain
substantially unchanged, except for minor revisions to reflect the
amendments discussed above. Finally, under the amendments we proposed,
Exchange Act Rule 12h-3(b)(1) would exclude ABS from the classes of
securities eligible for suspension (tracking the language of the
Exchange Act) and a note would be added to Exchange Act Rule 12h-3 to
direct ABS issuers to Exchange Act Rule 15d-22 for the requirements
regarding suspension of reporting for ABS.
---------------------------------------------------------------------------
\41\ 17 CFR 230.415(a)(1)(x).
---------------------------------------------------------------------------
2. Comments on the Proposed Amendments
Commentators expressed general support, and no commentators
provided specific comment on these proposed revisions.\42\
---------------------------------------------------------------------------
\42\ See letters from ASF and Barnard.
---------------------------------------------------------------------------
3. Final Rule
After further consideration, we are adopting the amendments to our
rules relating to when annual and other reports need to be filed and
when starting and suspension dates are determined with respect to a
takedown substantially as proposed.\43\ We are also adopting the
changes to Exchange Act Rule 12h-3(b)(1) to conform the rule to the
language of amended Exchange Act Section 15(d), and provide a
clarifying note to Exchange Act Rule 12h-3(b)(1) as proposed. In
addition to the changes to Exchange Act Rule 12h-3 that we proposed, we
are adding a clarifying note to Exchange Act Rule 12h-6 directing
foreign private issuers that are ABS issuers to Exchange Act Rule 15d-
22 for the requirements regarding suspension of reporting of ABS.
---------------------------------------------------------------------------
\43\ As adopted we are including a reference to Securities Act
Rule 415(a)(1)(vii).
---------------------------------------------------------------------------
III. Paperwork Reduction Act
A. Background
Certain provisions of the disclosure rules and forms applicable to
ABS issuers contain ``collection of information'' requirements within
the meaning of the Paperwork Reduction Act of 1995 (``PRA'').\44\ The
Commission published a notice requesting comment on the collection of
information requirements in the Proposing Release for the amendments,
and submitted these requirements to the Office of Management and Budget
for review in accordance with the PRA.\45\ An agency may not conduct or
sponsor, and a person is not required to comply with, a collection of
information unless it displays a currently valid control number. The
titles for the affected collections of information are:
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\44\ 44 U.S.C. 3501 et seq.
\45\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
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(1) ``Form 10-K'' (OMB Control No. 3235-0063);
(2) ``Form 10-D'' (OMB Control No. 3235-0604);
(3) ``Form 8-K'' (OMB Control No. 3235-0288); and
(4) ``Form 15'' (OMB Control No. 3235-0167).
Compliance with the information collections is mandatory. Responses to
the information collections are not kept confidential and there is no
mandatory retention period for the collections of information.
Our PRA burden estimate for Form 10-K, Form 8-K and Form 15 is
based on an average of the time and cost incurred by all types of
public companies, not just ABS issuers, to prepare the collection of
information. Form 10-D is a form that is only prepared and filed by ABS
issuers. Form 10-D is filed within 15 days of each required
distribution date on the ABS,
[[Page 52553]]
as specified in the governing documents for such securities, containing
periodic distribution and pool performance information.
Our PRA burden estimates for the collections of information are
based on information that we receive on entities assigned to Standard
Industrial Classification Code 6189, the code used by ABS issuers, as
well as information from outside data sources.\46\ In the Proposing
Release, we based our estimates on an average of the data that we have
available for years 2004 through 2009. In some cases, our estimates for
the number of ABS issuers that file Form 10-D with the Commission are
based on an average of the number of ABS offerings in 2006 through
2009.\47\
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\46\ We rely on two outside sources of ABS issuance data. We use
the ABS issuance data from Asset-Backed Alert on the initial terms
of offerings, and we supplement that data with information from
Securities Data Corporation (SDC).
\47\ Form 10-D was not implemented until 2006. Before
implementation of Form 10-D, ABS issuers often filed their
distribution reports under cover of Form 8-K.
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In the Proposing Release we requested comment on the PRA analysis.
No commentators responded to our request for comment on the PRA
analysis. Subsequent to the enactment of the Act, the number of Forms
10-K, 8-K and 10-D filed by ABS issuers is expected to increase each
year by the number of ABS registered offerings and the number of Forms
15 filed by ABS issuers is expected to decrease by a similar number.
The amendments provide for ABS issuers to suspend their reporting
obligation under certain circumstances. While we expect that some
issuers will be able to suspend their reporting obligations in the
future as a result of the rules we adopt today, for purposes of the
PRA, we estimated that the proposal will not affect our PRA estimates
over the next three years.\48\ We also estimated that the amendments to
Exchange Act Rule 15d-22 relating to reporting and shelf registration
and Exchange Act Rule 12h-3 to conform the rule to Exchange Act Section
15(d) will not affect our PRA estimates.
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\48\ Since historical data on the numbers of classes of ABS that
reduce their non-affiliated holders to zero is not generally
available, we are using statistics relating to average expected deal
life to establish our PRA estimate. Statistics compiled from SDC
Platinum suggest that the average expected deal life of a class of
ABS is over 5 years.
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The amendments are generally consistent with our proposals,
although the amendments do provide for semi-annual assessment, rather
than an annual assessment, and provide for immediate suspension of
reporting when there are no outstanding ABS. We do not believe that the
changes from our proposal will affect our PRA estimates.
As indicated above, we do not estimate that the final rules will
affect our PRA estimates over the next three years, however, as
explained in further detail in the Proposing Release, the Act's
amendment to Section 15(d) is expected to effect the number of periodic
and current reports and Forms 15 filed by ABS issuers each year.
We are revising our estimates to reflect 2010 data regarding ABS
filings. In the Proposing Release we based our estimates for the number
of ABS issuers on an average of the data that we have available for
years 2004 through 2009. The yearly average of ABS registered offerings
with the Commission over the period from 2004 to 2009 was 958. The
yearly average of ABS registered offerings with the Commission over the
period from 2005 to 2010, a similar 6-year period, was 751.\49\ As a
result, for PRA purposes, we are updating our estimates of annual
increases in Form 10-K filings to 751 filings,\50\ in Form 10-D filings
to 4,506 filings,\51\ and in Form 8-K to 1,127 filings \52\ and
reducing the annual decrease in Form 15 filings to 751 filings.\53\ In
addition, consistent with our estimate in the Proposing Release that an
average of six Form 10-D filings will be filed annually instead of ten
Form 10-D filings, which forms the basis of the current PRA inventory
for Form 10-D, we are reducing our current inventory of annual
responses to Form 10-D to reflect the new annual estimate.
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\49\ We have chosen to continue using a six year average to
estimate the number of ABS registered offerings despite the
significant drop off in filings after 2007. As discussed in the
Proposing Release, in order to estimate the number of Forms 10-K,
Forms 10-D, Forms 8-K, and Forms 15 filed by ABS issuers for PRA
purposes, we average the estimate of the number of those forms over
three years. For the first year of our average, we are using an
updated number of 751 as an estimate for the number of issuers we
expect to file Forms 10-K, Forms 10-D and Forms 8-K. In the second
year, we increase our estimate by 751 to a total of 1,502 and in the
third year, the addition of another 751 brings the total to 2,253.
The average number of issuers that we expect to file forms over
three years would, therefore, be 1,502, however 751 of those issuers
would have filed forms prior to the statutory change. We reduce the
estimated increase by 751 to account for those issuers. We are
therefore increasing our estimate by 751 issuers to account for the
increase in the number of issuers that will be required to file
reports as a result of the statutory change. See the Proposing
Release supra note 6 at note 30.
\50\ As discussed above, we estimate that an additional 751
issuers will be required to file reports as a result of the
statutory change. We continue to estimate that each ABS issuer would
have one annual Form 10-K filing.
\51\ We continue to estimate that each ABS issuer would have six
annual Form 10-D filings resulting in 4,506 additional Form 10-D
filings (751 ABS issuers x 6 filings) as a result of the statutory
change.
\52\ We continue to estimate that each ABS issuer would have 1.5
annual Form 8-K filings resulting in 1,127 additional Form 8-K
filings (751 ABS issuers x 1.5 filings) as a result of the statutory
change.
\53\ As indicated in the Proposing Release, we assume that in
any given year the issuers of all registered ABS issued in the prior
year would have suspended reporting using Form 15. After the
implementation of the Act, issuers are no longer able to
automatically suspend reporting; therefore, Form 15 will no longer
be used by these ABS issuers as it was in the past. As a result, for
the purposes of PRA, we estimate a decrease in Form 15 filings of
751.
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In summation, we estimate, for PRA purposes, increases of 90,120
total burden hours for Form 10-K (751 Forms 10-K times 120 burden hours
per filing), 135,180 total burden hours for Form 10-D (4,506 Forms 10-D
times 30 burden hours per filing), and 5,635 total burden hours for
Form 8-K (1,127 Forms 8-K times 5 burden hours per filing), as well as
a decrease of 1,127 total burden hours for Form 15 (751 Forms 15 times
1.5 burden hours per filing) as a result of the statutory changes to
Exchange Act Section 15(d).\54\ We allocate 75% of those hours (an
increase of 67,590 hours for Form 10-K, 101,385 hours for Form 10-D,
and 4,226 hours for Form 8-K) to internal burden and the remaining 25%
to external costs using a rate of $400 per hour (an increase of
$9,012,000 for Form 10-K, $13,518,000 for Form 10-D and $563,500 for
Form 8-K). In addition, we estimate, for PRA purposes, a decrease in
total burden hours due to a change in agency estimate of the number of
annual Form 10-D filings of 120,000 (4,000 Form 10-D filings times 30
burden hours per filing). We allocate 75% of those hours to internal
burden (a decrease of 90,000) and the remaining 25% to external costs
using a rate of $400 per hour (a decrease of $12,000,000).
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\54\ We allocate all of the burden for Form 15 filings to
internal burden hours.
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The table below illustrates the changes in annual compliance burden
in the collection of information in hours and costs for existing
reports for ABS issuers as a result of the statutory changes mandated
by the Act as well as the reduction in the estimated number of Form 10-
D filings described above.
[[Page 52554]]
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Decrease or
Current Proposed Current Decrease or Proposed Current increase in Proposed
Form annual annual burden increase in burden professional professional professional
responses responses hours burden hours hours costs costs costs
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10-K.............................. 13,545 14,296 21,363,548 67,590 21,431,138 $2,848,473,000 $9,012,000 $2,857,485,000
10-D.............................. 10,000 10,506 225,000 11,385 236,385 30,000,000 1,518,000 31,518,000
8-K............................... 115,795 116,922 493,436 4,226 497,662 54,212,000 563,500 54,775,500
15................................ 3,000 2,249 4,500 (1,127) 3,373 0 0 0
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IV. Benefit-Cost Analysis
Exchange Act Section 15(d) generally establishes an ongoing
reporting obligation for issuers with a registration statement that has
become effective pursuant to the Securities Act. Prior to enactment of
the Act, Exchange Act Section 15(d) provided that for issuers without a
class of securities registered under the Exchange Act the duty to file
ongoing reports is automatically suspended as to any fiscal year, other
than the fiscal year within which the registration statement for the
securities became effective, if the securities of each class to which
the registration statement relates are held of record by less than 300
persons. The Act amended Exchange Act Section 15(d) to eliminate the
automatic suspension of the duty to file ongoing Exchange Act reports
for ABS issuers and granted the Commission authority to issue rules
providing for the suspension or termination of such duty. The
Commission is exercising its authority under the Exchange Act, as
amended by the Act, by amending Exchange Act Rules 12h-3, 12h-6 and
15d-22 to provide for the suspension of the duty to file for certain
ABS issuers and reduce their compliance costs as discussed in this
release.\55\
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\55\ The proposed amendments to Exchange Act Rules 12h-3, 12h-6
and 15d-22(a) and (c) do not substantively alter the current
requirements and should help issuers comply with their obligations
and avoid confusion.
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The Commission is sensitive to the benefits and costs imposed by
the rules it is amending. The discussion below focuses on the benefits
and costs of the decisions made by the Commission in the exercise of
its new exemptive authority provided by the Act, rather than the costs
and benefits of the Act itself.
A. Benefits
The amendments the Commission is adopting allow an issuer to
suspend reporting under certain circumstances and update certain
provisions relating to reporting obligations under a shelf registration
statement. Providing for issuers to suspend reporting would provide the
benefit of allowing those issuers that are now required by the Act to
continue reporting to avoid the costs of preparing and filing annual
and periodic reports with the Commission when only affiliates of the
depositor hold any outstanding securities of the classes sold in
registered transactions.
We believe that reporting of the ongoing performance of an ABS is
useful to investors and the market by providing readily accessible
information upon which investors may evaluate performance and make
ongoing investment decisions. We also recognize, however, that there
are circumstances where the costs do not justify the benefits of
reporting to investors and the market. In adopting rules to provide for
the suspension or termination of the duty to file for certain ABS
issuers, we have sought to balance the value of the information to
investors and the market with the burden on the issuers of preparing
the reports. More specifically, we believe that when there are only
affiliated holders of the ABS, those affiliates will generally be able
to receive relevant information because of their relationship with the
depositor. Therefore, we are adopting new Exchange Act Rule 15d-22(b)
to provide for issuers to suspend their reporting obligation under
Section 15(d), as to any semi-annual fiscal period, if, at the
beginning of the semi-annual fiscal period, there are no longer ABS of
the class that were sold in a registration statement held by non-
affiliates of the depositor and a certification on Form 15 has been
filed.
We originally proposed that ABS issuers assess annually whether
non-affiliates hold the ABS sold in registered transactions. We
recognize that there is a trade-off between allowing the assessment to
take place too frequently or not frequently enough. If the assessment
is conducted frequently, it might result in an ABS issuer changing its
reporting status often with the effect of less continuity in its annual
and other reports. Reporting gaps could be detrimental to investors'
ability to evaluate ABS performance and make ongoing investment
decisions. However, more frequent assessments will allow an ABS issuer
to report less and cease reporting as soon as non-affiliates no longer
hold its securities, thus reducing the issuer's reporting burden and
associated costs. Less frequent assessment of whether only affiliates
hold the registered ABS issued, might result in unnecessary continued
reporting until the assessment is made, up to 12 months for an annual
assessment. The new Exchange Act Rule 15d-22(b) allows for semi-annual
assessment, which we believe appropriately balances these competing
interests.
B. Costs
In revising Exchange Act Section 15(d), Congress exhibited an
intent to increase the continued reporting by ABS issuers, but gave the
Commission authority to place limitations on that reporting in the
public interest. The Commission exercised this authority and is
adopting amendments allowing ABS issuers to suspend their reporting
obligation under certain limited conditions. Providing for the
suspension of reporting limits the ability of market participants to
access and review information for those ABS that suspend reporting. We
believe that this cost is mitigated under these conditions, since
affiliates will generally be able to receive relevant information
because of their relationship with the depositor. Thus, only non-
holders of a particular ABS are affected. Furthermore, the utility of
the information to market participants is limited since ABS owned
solely by affiliates generally have no public market.
We recognize that there are additional costs to assessing holders
semi-annually and preparing ongoing disclosure for registered
transactions relative to the costs of issuing in the private markets.
An issuer's decision about whether to issue registered ABS may be
affected by the threshold at which issuers may suspend their reporting
obligations under Section 15(d). We solicited comments on whether an
alternative suspension threshold might mitigate this effect or be more
appropriate for other reasons. Although three commentators responded to
our request with suggested alternatives, we are not adopting those
alternatives, as discussed in Section II.A.3. above. No commentator
provided us with data or analysis that would support an alternative
threshold. Thus, we continue to believe that a threshold of zero non-
[[Page 52555]]
affiliates is consistent with the Act and presents an appropriate
balance between the value of the reported information to investors and
the market, and the costs of preparing the reports.
V. Consideration of Burden on Competition and Promotion of Efficiency,
Competition and Capital Formation
Section 23(a) of the Exchange Act \56\ requires the Commission,
when making rules and regulations under the Exchange Act, to consider
the impact a new rule would have on competition. Section 23(a)(2)
prohibits the Commission from adopting any rule that would impose a
burden on competition not necessary or appropriate in furtherance of
the purposes of the Exchange Act. Section 3(f) of the Exchange Act \57\
requires the Commission, when engaging in rulemaking that requires it
to consider whether an action is necessary or appropriate in the public
interest, to consider, in addition to the protection of investors,
whether the action would promote efficiency, competition, and capital
formation. The discussion below focuses on the effects of the decisions
made by the Commission in the exercise of its new exemptive authority
provided by the Act, rather than the effects of the Act itself.
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\56\ 15 U.S.C. 78w(a).
\57\ 15 U.S.C. 78c(f).
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The Act amended Exchange Act Section 15(d) to eliminate the
automatic suspension of the duty to file ongoing Exchange Act reports
for ABS issuers and granted the Commission authority to issue rules
providing for the suspension or termination of such duty. The
Commission is exercising its authority under the Act by amending
Exchange Act Rules 12h-3, 12h-6 and 15d-22 to provide for the
suspension of the duty to file for certain ABS issuers and reduce their
compliance costs as discussed in this release.
The amendments update the reporting requirements for takedowns from
shelf registration in Exchange Act Rule 15d-22 and provide for the
suspension of the duty to file for certain ABS issuers as discussed in
this release. Providing for ABS issuers with only affiliated holders to
suspend their duty to file decreases transparency regarding those
issuers. The suspension of the duty to file reduces compliance costs
for issuers, which could increase efficiency and facilitate capital
formation.
An inability to suspend the duty to file may encourage some issuers
to offer ABS privately or not to issue ABS at all, rather than
registering those ABS and incurring the ongoing reporting costs. If
issuers register fewer ABS, this would reduce liquidity, decrease
transparency in the ABS market and decrease capital formation. The
amendments provide for ABS issuers to suspend their duty to file when
they have only affiliated investors remaining and provide issuers
certainty regarding when they may suspend reporting, which may
encourage some ABS issuers to register ABS and offer ABS in the public
markets. These changes are intended to mitigate the aforementioned
incentives to offer ABS privately or not to issue ABS at all.
The clarifications provided in Exchange Act Rule 15d-22, 12h-3, and
12h-6 may have a beneficial effect on the efficiency of managing ABS
offerings, especially takedowns from ABS shelf registration, by
providing issuers with a better understanding of their Exchange Act
reporting obligations and facilitating compliance.
We do not believe the amendments will have an impact or burden on
competition.
VI. Regulatory Flexibility Act Certification
Under Section 605(b) of the Regulatory Flexibility Act, we
certified that, when adopted, the proposals would not have a
significant economic impact on a substantial number of small entities.
We included the certification in Part IX of the Proposing Release, but
received no comment.
VII. Statutory Authority and Text of Rule and Form Amendments
We are adopting the amendments contained in this document under the
authority set forth in Sections 3(b), 12, 13, 15, 23(a), and 36 of the
Exchange Act.
List of Subjects in 17 CFR Parts 240 and 249
Reporting and recordkeeping requirements, Securities.
For the reasons set out above, Title 17, Chapter II of the Code of
Federal Regulations is amended as follows:
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
0
1. The authority citation for part 240 continues to read in part as
follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i,
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78p, 78q,
78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37,
80b-3, 80b-4, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350 and 12
U.S.C. 5221(e)(3), unless otherwise noted.
* * * * *
0
2. Amend Sec. 240.12h-3 by:
0
a. In paragraph (b)(1) introductory text adding ``, other than any
class of asset-backed securities,'' in the first sentence after ``Any
class of securities''; and
0
b. Adding a Note to paragraph (b).
The addition reads as follows:
Sec. 240.12h-3 Suspension of duty to file reports under section
15(d).
* * * * *
(b) * * *
(2) * * *
Note to Paragraph (B): The suspension of classes of asset-backed
securities is addressed in Sec. 240.15d-22.
* * * * *
0
3. Amend Sec. 240.12h-6 by adding a Note after paragraph (i) to read
as follows:
Sec. 240.12h-6 Certification by a foreign private issuer regarding
the termination of registration of a class of securities under section
12(g) or the duty to file reports under section 13(a) or section 15(d).
* * * * *
(i) * * *
Note to Sec. 240.12h-6: The suspension of classes of asset-
backed securities is addressed in Sec. 240.15d-22.
* * * * *
0
4. Revise Sec. 240.15d-22 to read as follows:
Sec. 240.15d-22 Reporting regarding asset-backed securities under
section 15(d) of the Act.
(a) With respect to an offering of asset-backed securities
registered pursuant to Sec. 230.415(a)(1)(vii) or Sec.
230.415(a)(1)(x) of this chapter:
(1) Annual and other reports need not be filed pursuant to section
15(d) of the Act (15 U.S.C. 78o(d)) regarding any class of securities
to which such registration statement relates until the first bona fide
sale in a takedown of securities under the registration statement; and
(2) The starting and suspension dates for any reporting obligation
under section 15(d) of the Act (15 U.S.C. 78o(d)) with respect to a
takedown of any class of asset-backed securities are determined
separately for each takedown of securities under the registration
statement.
(b) The duty to file annual and other reports pursuant to section
15(d) of the Act (15 U.S.C. 78o(d)) regarding any class of asset-backed
securities is suspended:
(1) As to any semi-annual fiscal period, if, at the beginning of
the semi-
[[Page 52556]]
annual fiscal period, other than a period in the fiscal year within
which the registration statement became effective, or, for offerings
conducted pursuant to Sec. 230.415(a)(1)(vii) or Sec.
230.415(a)(1)(x), the takedown for the offering occurred, there are no
asset-backed securities of such class that were sold in a registered
transaction held by non-affiliates of the depositor and a certification
on Form 15 (17 CFR 249.323) has been filed; or
(2) When there are no asset-backed securities of such class that
were sold in a registered transaction still outstanding, immediately
upon filing with the Commission a certification on Form 15 (17 CFR
249.323) if the issuer of such class has filed all reports required by
Section 13(a), without regard to Rule 12b-25 (17 CFR 249.322), for the
shorter of its most recent three fiscal years and the portion of the
current year preceding the date of filing Form 15, or the period since
the issuer became subject to such reporting obligation. If the
certification on Form 15 is subsequently withdrawn or denied, the
issuer shall, within 60 days, file with the Commission all reports
which would have been required if such certification had not been
filed.
Note 1 to Paragraph (b): Securities held of record by a broker,
dealer, bank or nominee for any of them for the accounts of
customers shall be considered as held by the separate accounts for
which the securities are held.
Note 2 to Paragraph (b): An issuer may not suspend reporting if
the issuer and its affiliates acquire and resell securities as part
of a plan or scheme to evade the reporting obligations of Section
15(d).
(c) This section does not affect any other reporting obligation
applicable with respect to any classes of securities from additional
takedowns under the same or different registration statements or any
reporting obligation that may be applicable pursuant to section 12 of
the Act (15 U.S.C. 78l).
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
0
5. The authority citation for part 249 continues to read in part as
follows:
Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C.
1350, unless otherwise noted.
* * * * *
0
6. Amend Form 15 (referenced in Sec. 249.323) by:
0
a. Adding a checkbox referring to ``Rule 15d-22(b)'' after the checkbox
referring to ``Rule 15d-6''; and
0
b. By revising the first sentence of the Instruction to read: ``This
form is required by Rules 12g-4, 12h-3, 15d-6 and 15d-22 of the General
Rules and Regulations under the Securities Exchange Act of 1934.''
Note: The text of Form 15 does not and this amendment will not
appear in the Code of Federal Regulations.
By the Commission.
Dated: August 17, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-21500 Filed 8-22-11; 8:45 am]
BILLING CODE 8011-01-P
