Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of a Proposed Rule Change To Amend MSRB Rules G-8, G-11 and G-32 To Include Provisions Specifically Tailored for Retail Order Periods, 39038-39046 [2013-15492]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Notices]
[Pages 39038-39046]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15492]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69834; File No. SR-MSRB-2013-05]


Self-Regulatory Organizations; Municipal Securities Rulemaking 
Board; Notice of Filing of a Proposed Rule Change To Amend MSRB Rules 
G-8, G-11 and G-32 To Include Provisions Specifically Tailored for 
Retail Order Periods

June 24, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on June 17, 2013, the Municipal Securities Rulemaking Board (the 
``MSRB'' or ``Board'') filed with the Securities and Exchange 
Commission (the ``SEC'' or ``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by the MSRB. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The MSRB is filing with the Commission a proposed rule change 
consisting of amendments to MSRB Rules G-8, G-11 and G-32, and 
conforming changes to Form G-32 (the ``proposed rule change'').
    The text of the proposed rule change is available on the MSRB's Web 
site at www.msrb.org/Rules-and-Interpretations/SEC-Filings/2013-Filings.aspx, at the MSRB's principal office, and at the Commission's 
Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the MSRB included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The MSRB has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The proposed rule change amends Rules G-8, G-11 and G-32 to include 
provisions specifically tailored for retail order periods. These 
provisions will establish basic protections for issuers and customers 
and provide additional tools to assist with the administration and 
examinations of retail order period requirements, as further described 
below under ``Summary of Proposed Rule Change'' and under ``Discussion 
of Comments.''
    The MSRB previously issued guidance to dealers on the subject of 
retail order periods. In 2010, the MSRB stated that Rule G-17 requires 
an underwriter to follow an issuer's directions in any applicable 
retail order period.\3\ Most recently, the MSRB stated that fair 
dealing requires an underwriter to take reasonable steps to ensure that 
retail clients are bona fide; that an underwriter that knowingly 
accepts an order that has been improperly designated as a retail order 
violates Rule G-17; and that a dealer placing a non-qualifying order 
under a retail order period violates Rule G-17.\4\ In that same notice, 
the MSRB indicated that it will continue to monitor retail order period 
practices to ensure that they are conducted in a fair and orderly 
manner consistent with the intent of the issuer and the MSRB's investor 
protection mandate. The proposed rule change reflects the MSRB's 
determination that additional rulemaking in this area is necessary and 
appropriate.
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    \3\ See MSRB Notice 2010-26 (August 15, 2010).
    \4\ See MSRB Notice 2012-25 (May 7, 2012) (the ``G-17 
Underwriters' Notice'').
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    The MSRB believes that the proposed rule change is necessary in 
consideration of its mandate to protect municipal entities and 
investors. The proposed rule change addresses

[[Page 39039]]

concerns related to retail order periods presented from issuers, 
dealers, and municipal advisors. Those concerns include the 
mischaracterization of orders as ``retail'' and the failure of 
syndicate managers to disseminate timely notice of the terms and 
conditions of a retail order period to all dealers, including selling 
group members,\5\ or that pricing information that had been requested 
was not delivered or had not been delivered in sufficient time to allow 
for communication with the requesting dealer's ``retail'' customers to 
determine whether the investor would like to purchase the bonds.\6\
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    \5\ In some cases the length of a retail order period may be 
less than five hours.
    \6\ In some jurisdictions, it is not common practice to 
advertise the issuer's intention to conduct retail order periods on 
the radio, television or in the newspaper to inform the investing 
public of upcoming issuances and terms related to a retail order 
period. Advertisements to notify the investing public of retail 
order periods in connection with primary offerings of municipal 
securities can be very expensive and often issuers do not wish to 
incur this cost or reimburse dealers for this expense.
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    To address these concerns, the proposed rule change establishes 
specific obligations on the senior syndicate manager to disseminate to 
the syndicate and selling group members detailed information about the 
terms and conditions of any retail order period. The proposed rule 
change also requires dealers to capture certain additional information 
in connection with orders placed under a retail order period designed 
to ensure that such orders are from bona fide retail customers. In 
addition, the MSRB proposes to increase transparency for regulators 
regarding the use of retail order periods by amending Form G-32 to 
require an underwriter to report to the Electronic Municipal Market 
Access (EMMA[supreg]) \7\ system when a retail order period was 
conducted.
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    \7\ EMMA is a registered trademark of the MSRB.
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    The MSRB proposed, but thereafter reconsidered a decision to issue 
interpretive guidance related to Rules G-17 and G-30 in connection with 
the proposed rule change. The proposed interpretive guidance, among 
other things, emphasized that during a retail order period, an issuer 
may require underwriters to make a bona fide public offering to retail 
customers at the initial offering price for the securities, either 
directly or through other dealers, and that dealers must follow the 
issuer's instructions for retail order periods. The particular 
statement that a duty of fair dealing includes following an issuer's 
instructions for retail order periods is inherent in a rule on fair 
dealing, and, as mentioned earlier, was recently addressed in the G-17 
Underwriters' Notice.
    The proposed guidance also addressed pricing differentials, 
including that large differences between institutional and individual 
prices that exceed the price/yield variance that normally applies to 
transactions of different sizes in the primary market provide evidence 
that the duty of fair pricing to individual clients may not have been 
met. This statement repeated guidance previously provided by the 
MSRB.\8\ The discussion that followed sought to apply that previously 
articulated guidance to a few specific factual scenarios but did not 
provide any analysis or guidance that did not fairly and reasonably 
flow from the MSRB's prior guidance. As discussed below, the limited 
scope of the discussion and the perception that only those items 
discussed would justify a pricing differential was of concern to some 
commenters. The thrust of this proposed rule change is to provide 
mechanisms by which issuers can have greater assurance that a dealer 
has, when directed to do so by the issuer, made a bona fide public 
offering of the securities to retail customers at their initial 
offering prices, as well as provide regulators with enhanced 
information to monitor the activities of dealers participating in 
retail order periods. A further discussion for the reasons the MSRB has 
not included the interpretive guidance is set forth below under ``Self-
Regulatory Organization's Statement on Comments on the Proposed Rule 
Change Received from Members, Participants, or Others.''
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    \8\ See Guidance of Disclosure and Other Sales Practice 
Obligations to Individual and Other Retail Investors in Municipal 
Securities (July 14, 2009) (the ``Sales Practice Notice'').
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    The MSRB proposes to establish two separate implementation dates 
for the proposed rule change. The amendments to Rules G-11 and G-8, the 
core of the proposal, would be implemented six months after the SEC 
approval date to allow dealers sufficient time to make necessary 
software or systems modifications. It also would allow time for the 
MSRB to create educational materials, host webinars and conduct 
outreach to the dealer and issuer communities, as appropriate, 
regarding the new rules.
    The second implementation date would relate to the amendments to 
Rule G-32 that require syndicate managers or sole underwriters to 
designate to EMMA whether a retail order period was conducted. The 
implementation date would be not later than March 31, 2014, or such 
earlier date to be announced by the MSRB in a notice published on the 
MSRB Web site with at least a thirty day advance notification prior to 
the effective date. This time frame would allow for the MSRB to design 
an automated system for dealers to report to the EMMA system. It would 
include approximately six months of lead time for Rule G-32 submitters 
to design automated interfaces and allow time for both Rule G-32 
submitters and FINRA to test all of these changes.
    Certain proposed rule changes are intended to be clarifying changes 
only and are not related to retail order periods, as further described 
below under ``Summary of Proposed Rule Change.''
Summary of Proposed Rule Change
Rule G-11
    MSRB Rule G-11 addresses syndicate practices and management of the 
syndicate, and among other things, requires syndicates to establish 
priorities for different categories of orders and requires certain 
disclosures to syndicate members, which are intended to assure that 
allocations are made in accordance with those priorities.
    The proposed addition of provisions addressing retail order periods 
necessitates several new definitions in Rule G-11. First, the term 
``retail order period'' is defined in subparagraph (a)(vii) to mean an 
order period during which solely going away orders will be solicited 
solely from customers that meet the issuer's designated eligibility 
criteria. Second, the term ``going away order'' is defined in 
subparagraph (a)(xii) to mean an order for which a customer is already 
conditionally committed. Third, the term ``selling group'' is defined 
in subparagraph (a)(xiii) to mean a group of brokers, dealers, or 
municipal securities dealers formed for the purpose of assisting in the 
distribution of a new issue of municipal securities for the issuer 
other than members of the syndicate. Selling groups are sometimes 
included by issuers in the distribution of new issues of municipal 
securities to expand the distribution channel beyond the customers of 
syndicate members.
    Rule G-11(f) requires that the senior syndicate manager furnish in 
writing to the other members of the syndicate a written statement of 
all terms and conditions required by the issuer. The proposed rule 
change expands these requirements to require expressly that such 
written statement must be delivered to selling group members and that 
the statement must include all of

[[Page 39040]]

the issuer's retail order period terms and conditions and pricing 
information. The proposed rule change further requires that an 
underwriter furnish each dealer with which it has an arrangement to 
market the issuer's securities all of the information provided by the 
senior syndicate manager.\9\
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    \9\ This arrangement, commonly referred to as a ``distribution 
or marketing agreement,'' is used by some firms to enhance the 
firm's ability to ``reach'' retail customers, such as in the case 
where a firm does not have a significant retail distribution 
network. Under the proposed rule change, the onus to furnish the 
information is placed on the underwriter that has entered into such 
arrangement, rather than the senior syndicate manager, to circulate 
this information because the senior syndicate manager may not be 
aware that a given syndicate member has entered into this type of 
arrangement.
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    Rule G-11(f) also provides that if a senior syndicate manager 
prepares the statement of all of the terms and conditions required by 
the issuer (including those related to the issuer's retail order period 
requirements), the statement must be provided to the issuer. The 
proposed rule change adds the requirement to obtain the approval of the 
issuer of any statement prepared by the senior syndicate manager. This 
approval must be secured in all cases and is not solely limited to 
those instances when a retail order period is conducted. The MSRB 
believes that it is important to ensure that an issuer is aware of, and 
agrees with, any requirements imposed on the syndicate and selling 
group members in its name.
    New paragraph (k) requires any dealer placing an order during a 
retail order period to provide certain information to assist in the 
determination that such order is a bona fide retail order. 
Specifically, the order must provide (i) Whether the order met the 
issuer's eligibility criteria for participation in the retail order 
period; (ii) whether the order was a going away order; (iii) whether 
the dealer received more than one order from a single customer for a 
security for which the same CUSIP number has been assigned; (iv) any 
identifying information required by the issuer, or the senior syndicate 
manager on the issuer's behalf, in connection with such retail order 
(but not including customer names or social security numbers); and (v) 
the par amount of the order. This information must be submitted no 
later than the Time of Formal Award (as defined in Rule G-
34(a)(ii)(C)(1)(a)), and may be part of the order submitted to the 
senior syndicate manager through an electronic order entry system. 
Because a senior syndicate manager generally would not have independent 
knowledge of the details of an order placed on behalf of another 
dealer's customer, the proposed rule change provides that the senior 
syndicate manager may rely on the information furnished by such dealer, 
unless the senior syndicate manager knows, or has reason to know, that 
the information is not true, accurate or complete.
Rule G-8
    Under Rule G-8(a)(viii)(A), for each primary offering for which a 
syndicate has been formed for the purchase of municipal securities, the 
syndicate manager shall maintain a variety of records which show: the 
description and aggregate par value of the securities; the name and 
percentage of participation of each member of the syndicate; the terms 
and conditions governing the formation and operation of the syndicate; 
a statement of all terms and conditions required by the issuer 
(including whether there was a retail order period and the issuer's 
definition of ``retail,'' if applicable); all orders received for the 
purchase of the securities from the syndicate; \10\ all allotments of 
the securities and the price at which sold; those instances in which 
the syndicate manager allocated securities in a manner other than in 
accordance with the priority provisions, including those instances in 
which the syndicate manager accorded equal or greater priority over 
other orders to orders by syndicate members for their own accounts or 
their respective related accounts and the specific reason for doing so; 
the date and amount of any good faith deposit made to the issuer; the 
date of settlement with the issuer; the date of closing of the account; 
and a reconciliation of profits and expenses of the account. The 
proposed rule change to Rule G-8(a)(viii)(A) would add to the 
documentation that must be maintained in the files of the syndicate 
manager all orders received for the purchase of the securities from the 
selling group; the information required by Rule G-11(k) and all pricing 
information distributed pursuant to Rule G-11(f). Such changes will 
facilitate review by the examining authorities of all of the records 
related to a primary offering from files maintained by one underwriter 
\11\ (which is more efficient) rather than a review of the files of 
each dealer that participates in the primary offering. The proposed 
rule change to Rule G-8(a)(viii)(A) (and the identical provision found 
in subsection (B)) reflects a change in phraseology. The parenthetical 
would be revised in each case to delete the reference to ``whether 
there was a retail order period and the issuer's definition of retail'' 
and to replace it with ``those of any retail order period.'' This part 
of proposed rule change is not intended to be a substantive change.
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    \10\ See Rule G-8(a)(vii) relating to dealer records for 
principal transactions. Dealers are not required to retain records 
related to customer orders unless an order has been filled. The 
requirement in the rule for a memorandum of the transaction 
including a record of the customer's order applies only in the event 
such purchase or sale occurs with the customer.
    \11\ Records related to a successful primary offering are 
required to be maintained for a period of not less than six years. 
See Rule G-9(a)(iv).
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    Under Rule G-8(a)(viii)(B), for each primary offering for which a 
syndicate has not been formed for the purchase of municipal securities, 
the sole underwriter shall maintain a variety of records which show: 
the description and aggregate par value of the securities; all terms 
and conditions required by the issuer (including whether there was a 
retail order period and the issuer's definition of ``retail,'' if 
applicable); all orders received for the purchase of the securities 
from the underwriter; all allotments of the securities and the price at 
which sold; those instances in which the underwriter accorded equal or 
greater priority over other orders to orders for its own account or its 
related accounts and the specific reason for doing so; the date and 
amount of any good faith deposit made to the issuer; and the date of 
settlement with the issuer. The proposed rule change to Rule G-
8(a)(viii)(B) would add to the documentation that must be maintained in 
the files of the sole underwriter the information required by Rule G-
11(k).
Rule G-32
    Generally, Rule G-32(b) provides detailed requirements for 
underwriters submitting documents or disclosure-related information to 
EMMA. Rule G-32(b)(vi)(C)(1)(a) provides that an underwriter must 
submit data such as CUSIP numbers, initial offering prices or yields, 
if applicable, the expected closing date for the transaction and 
whether the issuer or other obligated persons have agreed to undertake 
to provide continuing disclosure information as contemplated by 
Securities Exchange Act Rule 15c2-12. The proposed rule change to Rule 
G-32(b)(vi)(C)(1)(a) adds to the data that must be submitted a 
requirement that the underwriter report to the EMMA system (for solely 
regulatory purposes) whether a primary offering of securities included 
a retail order period and each

[[Page 39041]]

date and time (beginning and end)\12\ it was conducted.\13\
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    \12\ All times would be required to be reported as Eastern Time 
to be consistent, for example, with the requirement to report time 
of trade under Rule G-14 as Eastern Time.
    \13\ Under the proposed rule change, the underwriter would be 
required to report to EMMA that a retail order period has occurred 
by no later than the closing date of the transaction. Under Rule G-
32(b)(vi)(C)(1)(a), Form G-32 submissions shall be ``initiated on or 
prior to the date of first execution . . . '' The ``date of first 
execution'' is defined in Rule G-32(d)(xi) and, for purposes of this 
report, is deemed to occur by no later than the closing date.
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Miscellaneous Clarifying Changes Unrelated to Retail Order Periods
    Rule G-11(h)(i) provides that discretionary fees for clearance 
costs to be imposed by a syndicate manager and management fees shall be 
disclosed to the syndicate members prior to submission of a bid. The 
proposed rule change would require the syndicate manager specifically 
to disclose to each syndicate member the amount of any discretionary 
fees for clearance costs or any management fees imposed by the 
syndicate manager. The proposed rule change addresses concerns that 
certain syndicate managers failed to disclose the amount of such fees.
    Rule G-32(a) provides requirements for the disclosure to customers 
of certain information in connection with primary offerings of 
municipal securities. Rule G-32(a)(i) provides, among other 
requirements, that no broker, dealer or municipal securities dealer 
shall sell, whether as a principal or agent, any offered securities to 
a customer unless such dealer delivers to the customer a copy of the 
official statement. The proposed rule change amends Rule G-32(a)(i) to 
clarify that all dealers, not just underwriters, are subject to the 
official statement delivery requirement of the rule during the primary 
offering disclosure period. This proposed change codifies the MSRB's 
long-standing position and would promote consistent application and 
reduce the number of interpretive questions surrounding this 
requirement.
    Rule G-32(b)(v) provides that in the event a syndicate or similar 
account has been formed for the underwriting of a primary offering, the 
managing underwriter shall take the actions required under the 
provisions of the rule and shall also comply with the recordkeeping 
requirements of Rule G-8(a)(xiii)(B). Subsection (B) of Rule G-
8(a)(xiii) addresses the recordkeeping requirements in the case of a 
primary offering in which a syndicate has not been formed. The proposed 
rule change would delete the reference to such recordkeeping 
requirements because the cross reference to ``(B)'' is incorrect.
2. Statutory Basis
    The MSRB believes that the proposed rule change is consistent with 
Section 15B(b)(2)(C) of the Act,\14\ which provides that the MSRB's 
rules shall:
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    \14\ 15 U.S.C. 78o-4(b)(2)(C).

be designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in 
regulating, clearing, settling, processing information with respect 
to, and facilitating transactions in municipal securities and 
municipal financial products, to remove impediments to and perfect 
the mechanism of a free and open market in municipal securities and 
municipal financial products, and, in general, to protect investors, 
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municipal entities, obligated persons, and the public interest.

    The proposed rule change is consistent with Section 15B(b)(2)(C) of 
the Act. As summarized above, the proposed rule change protects, among 
others, investors and municipal entities by establishing certain basic 
regulatory standards to support the use of retail order periods. It 
would prevent fraudulent and manipulative acts and practices by 
requiring additional representations and disclosures to support whether 
the orders placed during a retail order period meet the eligibility 
criteria for retail orders established by issuers. It also provides 
enhanced recordkeeping to assist regulators in determining whether the 
requirements of Rule G-11 are being met. By ensuring that a syndicate 
manager must communicate an issuer's requirements for the retail order 
period and other syndicate information to all dealers, including 
selling group members, the proposed rule change should also foster 
cooperation and coordination among all dealers engaged in the marketing 
and sale of new issue municipal securities. In addition, the proposed 
rule change should minimize the opportunities for misrepresentation of 
orders as ``retail orders'' by requiring that certain information about 
each order is submitted in writing to the syndicate manager or sole 
underwriter in sufficient time so that the information can be examined 
by issuers and their financial advisors before bonds are allocated to 
dealers.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The MSRB does not believe that the proposed rule change would 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The MSRB solicited comment on 
the potential burdens of the proposed rule change in the most recent 
request for comment.\15\ Among the questions asked were:
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    \15\ See MSRB Notice 2012-50 (October 2, 2012) (the ``October 
Notice'').
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     Would the Revised Draft Proposal effectively further the 
MSRB's objective of protecting issuers and retail investors?
     Would any aspects of the Revised Draft Proposal have a 
negative effect on the protection of issuers, retail investors or the 
public interest, or on the fair and efficient operation of the 
municipal securities market?
     What would be the incremental additional burden, if any, 
to dealers resulting from the Revised Draft Proposal beyond the 
existing burden of compliance with Rule G-11?
     Are there alternative methods the MSRB should consider to 
providing the protections sought under the Revised Draft Proposal that 
would be more effective and/or less burdensome?
    The specific comments and responses thereto are discussed below 
under ``Discussion of Comments.'' The MSRB believes that the proposed 
rule change will benefit issuers, individual investors and the 
municipal market by improving the fairness and effectiveness of retail 
order periods. Specifically, the benefits of the proposed rule change 
should accrue to those issuers who have decided to conduct retail order 
periods by providing greater assurance that bonds will in fact be 
marketed to those ``retail'' investors that issuers have determined 
should have the opportunity to compete to buy their bonds in the 
primary market. Retail investors will benefit from the proposed rule 
change because they will have greater access to bonds sold in the 
primary market. Dealers will benefit through improved management of 
primary offerings and enhanced communication by and among syndicate 
members and selling group members. Also, improvements to the order 
taking process as a result of the proposed rule change will foster 
greater accuracy and fairness and limit opportunities for abuse. 
Finally, the proposed rule change will benefit the municipal market 
because it provides regulators with the necessary tools and information 
to ensure compliance with retail order period requirements.
    The MSRB could, as an alternative to the proposed rule change, 
determine to ``wait and see'' if earlier rulemaking related to retail 
order periods issued in 2010 and 2012 \16\ results in significant 
improvements in the conduct of

[[Page 39042]]

syndicate managers and other dealers participating in retail order 
periods. However, the Board believes that earlier rulemaking lacked 
specific, concrete requirements necessary to modify dealer practices 
and foster improvements in compliance. In addition, previous rulemaking 
did not address many of the issues associated with recordkeeping which 
the Board believes is necessary and appropriate to support enforcement 
of Rule G-11.
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    \16\ See MSRB Notices cited in footnotes 3 and 4 above.
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    The MSRB also considered whether education and training of issuers 
and dealers was a suitable regulatory alternative. However, the MSRB 
concluded that a significant and uniform regulatory response is needed 
to efficiently and effectively address widespread concerns involving 
retail order period practices.
    The MSRB recognizes that there are costs of compliance associated 
with the proposed rule change. The MSRB notes that the requirement to 
submit additional information about each order would apply equally to 
all dealers that participate in primary offerings that include retail 
order periods. At the present time, dealers routinely submit a number 
of details related to each order. Many dealers have utilized software 
platforms which can be modified to capture the newly required 
disclosures. Details about orders are reflected in a report created by 
the platform. The customer specific information required under the 
proposed rule change is consistent with the type of information dealers 
normally must obtain in performing appropriate diligence on a 
customer's order. The proposed rule change attempts to minimize the 
potential burden on dealers by allowing the required information about 
each order to be submitted electronically. Moreover, any dealer that 
believes that gathering this additional information is an undue burden 
does not need to participate in collecting orders for an issuer's 
retail order period. The burden on dealers to capture additional 
information on each customer order in a retail order period is balanced 
against the need for issuers to have confidence that orders placed 
during a retail order period are bona fide and meet the issuer's 
eligibility requirements for participation in the retail order period.
    The MSRB addressed concerns regarding the potential burdens to 
syndicate managers of auditing potentially large numbers of orders 
submitted to it by other dealers by expressly stating that a senior 
syndicate manager may rely upon the information furnished by each 
broker, dealer, or municipal securities dealer unless the senior 
syndicate manager knows, or has reason to know, that the information is 
not true, accurate or complete. The proposed rule change does not 
require that a syndicate manager undertake an exhaustive investigation 
of the disclosures about each order. Thus, the proposed rule change 
does not impose additional requirements on the senior syndicate manager 
other than those that would normally be required under principles of 
fair dealing that currently apply.
    The recordkeeping requirements in Rule G-8 would be expanded under 
the proposed rule change to require the syndicate manager or sole 
underwriter to maintain all of the new documentation required as a 
result of amendments to Rule G-11. The MSRB believes that the 
maintenance of this basic information is necessary to ensure the 
integrity of the primary offering process in general and the retail 
order period in particular. These burdens are incremental in that under 
current Rule G-8, these parties are already required to maintain 
comprehensive records relating to each primary offering including all 
of the terms and conditions required by the issuer and whether there 
was a retail order period. Any reports produced electronically can be 
easily printed or saved and included in the deal file for easy 
retrieval.
    Lastly, the amendments to Rule G-32 in the proposed rule change 
requiring the syndicate manager or sole underwriter to notify the MSRB 
of the date and time of each retail order period conducted presents 
only a modest, incremental burden to the existing requirements of Rule 
G-32, but provides significant regulatory value. Without this reporting 
requirement, neither the MSRB nor the examination authorities will have 
any notification of whether an offering contained a retail order 
period. To minimize the costs to dealers associated with this 
requirement, the MSRB would undertake to design an automated system for 
dealers to report to the EMMA system. The MSRB believes that it is 
reasonable to delay the implementation date for this part of the 
proposed rule change until such time as the automated system has been 
tested by the dealer community.
    The MSRB notes that one issuer \17\ has stated that the proposed 
rule change does not negatively impact the municipal securities market 
or its efficient operation and that, while there may be claims that the 
proposed rule change creates some additional burdens, in the opinion of 
that commenter, it is far outweighed by the benefit of an open, fair 
and efficient municipal marketplace.
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    \17\ See the comment letter submitted by the Executive Director 
of the Rhode Island Health and Educational Building Corp (RIHEBC)
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The proposed rule change was developed with input from a diverse 
group of market participants. On October 2, 2012, the MSRB requested 
comment on a revised proposal on retail order periods under Rules G-11, 
G-8 and G-32 and a draft interpretive notice concerning the application 
of Rules G-17 and G-30 to retail order periods.\18\ The revised 
proposal in the October Notice modified certain draft provisions of 
Rules G-11, Rule G-8 and the draft interpretive notice but did not 
further revise the provisions of Rule G-32 under the initial draft 
proposal.\19\ The MSRB received 24 comment letters in response to the 
March and October Notices.\20\
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    \18\ See the October Notice.
    \19\ See MSRB Notice 2012-13 (March 6, 2012) (the ``March 
Notice''), which contained the initial draft proposal regarding 
retail order periods under Rules G-11, G-8 and G-32 and a draft 
interpretive notice concerning the application of Rules G-17 and G-
30 to retail order periods.
    \20\ Comment letters were received from: Alamo Capital 
(``Alamo''); Bond Dealers of America (``BDA''); CFA Institute 
(``CFA''); Dorsey & Company, Inc. (``Dorsey''); Edward D. Jones & 
Co. (``Edward Jones''); Financial Planning Association (``FPA''); 
Full Life Financial LLC (``Full Life''); Government Finance Officers 
Association (``GFOA''); Investment Company Institute (``ICI''); 
Richard Li (``Li''); Chris Melton (``Melton''); National Association 
of Independent Public Finance Advisors (``NAIPFA''); Rhode Island 
Health and Educational Building Corp. (``RIHEBC''); Securities 
Industry and Financial Markets Association (``SIFMA''); Thornburg 
Investment Management (``Thornburg''); Vanguard (``Vanguard''); and 
Wells Fargo Advisors (``Wells Fargo''). Some of the commenters 
submitted comment letter responses to both notices.
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Discussion of Comments
Definition of Retail Customer for Purposes of a Retail Order Period
    Comments: MSRB Should Not Create a Definition of ``Retail:'' SIFMA 
generally supported the approach that it is an issuer's prerogative to 
determine whether there should be a retail order period and to define 
retail, but indicated concern on the part of some members that lack of 
uniformity as to the definition of retail may make it difficult to 
comply with the MSRB requirements to ensure that only qualifying orders 
are placed and to maintain adequate records. FPA agreed that there is 
no reason for the MSRB to create a uniform definition of retail but 
understood the appeal of a uniform base definition that could be 
modified by an issuer.

[[Page 39043]]

    Comments: MSRB Should Create a Definition of ``Retail:'' Many 
commenters recommended, for a variety of reasons, that the MSRB 
establish a uniform definition of ``retail'' for use by issuers, or, in 
the alternative, create a ``model'' definition that issuers can use or 
modify as they deem appropriate.\21\ GFOA's comments were 
representative of those commenters that believed that a boilerplate 
definition would benefit infrequent issuers who do not have sufficient 
expertise or who do not engage a financial advisor and may avoid 
reliance on other parties to the transaction who do not have a 
fiduciary duty to the issuer. Wells Fargo, Li and CFA believed that a 
uniform definition would make compliance more effective and less 
costly. Li, Full Life, GFOA and Edward Jones also supported a standard 
definition created by the MSRB with the option provided to issuers to 
create their own definition.
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    \21\ CFA, Edward Jones, Full Life, GFOA, ICI, Li, NAIPFA, and 
Wells Fargo.
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    Comments: Divergent Views of ``Retail:'' Many commenters proffered 
specific proposals regarding definitions of retail that should be 
considered by the MSRB.\22\ Some commenters favored a more limited 
definition that would include only individuals (i.e., natural persons) 
while others would include orders from a trust department or registered 
investment advisor acting on behalf of a specifically identifiable 
natural person. Still others were either in favor of or against 
including mutual funds as ``retail'' customers. A few commenters 
offered arguments on behalf of or against the size of the customer 
order or locality of the customer as appropriate criteria for 
``retail.''
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    \22\ Dorsey, Edward Jones, FPA, Full Life, ICI, NAIPFA, 
Vanguard, and Wells Fargo.
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    MSRB Response: The current MSRB rules do not contain a definition 
of a ``retail'' customer and the MSRB has declined to create a 
definition in the proposed rule change in part because of concerns that 
an MSRB definition of ``retail'' may unduly influence certain issuers 
regarding the scope of eligible customers for a retail order period. 
The MSRB believes that issuers should designate the eligibility 
criteria for their retail order period on an issue-by-issue basis and 
issuers should have the flexibility to choose the criteria that best 
suits their unique circumstances even if this option results in lack of 
uniformity in the marketplace or challenges in compliance. As an 
alternative to a model MSRB definition, the MSRB believes that it is 
preferable to develop educational materials concerning retail order 
periods that would assist issuers in selecting their own definition. 
The MSRB can work with issuers and industry groups to develop model 
definitions and other best practices which would address this issue 
without the imprimatur of being a regulatory standard.
Communications Relating to Issuer Requirements
    Comments: CFA supported the need for better and honest 
communication between various parties involved in the initial sale of 
municipal securities to investors. Full Life supported the proposals in 
principal, in particular requiring syndicate managers to disseminate 
timely notice of issuer requirements to all dealers, including selling 
group members.
    MSRB Response: The MSRB appreciates these comments.
    Comments: SIFMA was supportive of the timing in the current rule 
which requires the dissemination of information ``prior to the first 
offer of any securities. . . .'' SIFMA stated that among the terms and 
conditions required by the issuer related to the retail order period 
would be any time parameters for which the retail order period would be 
conducted. SIFMA stated that this information is especially important 
to dealers contacting customers with non-discretionary accounts. GFOA 
was supportive of a specific time frame in which the syndicate manager 
must provide issuer terms and conditions for the retail order period to 
other dealers.
    MSRB Response: The MSRB is appreciative of SIFMA's comments. The 
MSRB does not agree that it is appropriate to impose a fixed time frame 
on dealers in a rule because of concerns that such a requirement could 
have unintended consequences. For example, it could hamper the 
marketing of a transaction if an issuer determines that an offering 
must come to market quickly.
Length of the Retail Order Period
    Comments: Full Life said that the length of a retail order period 
should be sufficiently long to fulfill the issuer's intent. Full Life 
and Dorsey said that it should afford a genuine opportunity for retail 
investor participation. FPA stated that the period should be 
meaningful--it should be sufficiently long to allow an individual 
investor to make an informed decision.
    Two commenters recommended that either the MSRB or the syndicate 
should fix the length of the retail order period. Dorsey said that the 
syndicate should specify a time reasonably sensible in length and 
should include the pricing structure. NAIPFA suggested that the MSRB 
establish a fixed timeframe for the retail order period.
    Edward Jones recommended that ``meaningful notice of the retail 
order period'' would include 24-hour notice with preliminary pricing 
terms (e.g., coupon, maturity, price and yield that an individual 
retail investor could use to form a reasoned investment decision) 
before the retail order period is to begin. Edward Jones suggested that 
an adequate retail order period should include a minimum of a full 
trading day with the issuer having the opportunity to extend the retail 
order period beyond a single trading day. Edward Jones supported a 
``full day retail order period'' even if an institutional order period 
runs concurrently for some portion of the day.
    MSRB Response: The MSRB believes that the current rule should not 
be revised because an issuer should retain control over the issuance 
process which includes the ability to adjust the length of time for the 
retail order period to suit its needs or market conditions.
Representations and Required Disclosures About Each Order
    Comments: GFOA was supportive of the requirement to provide 
additional information about each order. NAIPFA was also supportive and 
believed it would be beneficial to issuers because it would allow 
issuers to better assess the effectiveness of their underwriter's 
ability to sell the issuers' securities as well as the underwriter's 
adherence to the issuers' instructions and also may help curtail 
flipping. Li said that details regarding the order could possibly be 
required by the senior manager to be communicated during the order 
process not just afterwards in order to prevent inadvertent 
misrepresentations. RIHEBC stated that it already requires much of the 
same information listed in the proposed rule change in order for it to 
judge the performance of the senior manager and co-managers.
    MSRB Response: The MSRB appreciates these comments.
    Comments: Alamo and BDA generally did not support the additional 
disclosures about each order because it would be an unreasonable 
administrative burden, costly and inconsistent. BDA said that the 
requirements are particularly burdensome in cases in which the dealer 
obtains large numbers of retail orders during retail order periods. BDA 
stated that burdens on dealers could have unintended consequences for 
everyone and perhaps discourage the practice of retail order periods

[[Page 39044]]

altogether and this can hurt issuers and retail investors. BDA 
suggested that, at most, dealers should comply with requirements of 
issuers to document or represent that they have complied with retail 
order period requirements. Melton said that required detailed 
disclosures regarding each order is inconsistent with permitting 
issuers to define retail and may not be completely necessary.
    MSRB Response: The MSRB believes that the additional required 
disclosures will provide important information to the issuer. The MSRB 
understands that it is not uncommon for certain experienced issuers 
already to demand this additional information about orders. The MSRB 
believes it is essential to require the type of information contained 
in the rule because some issuers may not be sufficiently knowledgeable 
to ask for it or have appropriate leverage. Moreover, even when issuers 
have requested this information be gathered, it may not have been 
provided to them prior to the execution of the bond purchase agreement; 
this deadline is important so that the senior syndicate manager has all 
of the information it will need before committing the underwriters to 
the purchase of the bonds and before it allocates a share of securities 
to each dealer. In addition, one of the benefits of requiring written 
representations and disclosures is that it should help to minimize the 
likelihood of inadvertent misrepresentations related to whether or not 
a particular order meets the issuer's designated eligibility criteria.
    Comments: SIFMA said that the representation that an order meets 
the issuer's definition of retail is more appropriate for the master 
Agreement Among Underwriters (AAU). Rather than providing the 
information about each order, the MSRB could provide that a dealer is 
deemed to have made the required representations by virtue of 
submitting an order during a retail order period or the representations 
can be made in the AAU or Selling Group Agreement (SGA), and that, 
therefore, it is not necessary for the representation to be made 
separately for each order submitted during the retail order period.
    MSRB Response: SIFMA may wish to revise its standard form of AAU or 
SGA in support of the proposed rule change and the MSRB would be 
supportive of any agreement which seeks to bind members of the 
syndicate or selling group to honor the issuer's intentions. However, 
compliance with MSRB rules should stand independent of private 
agreements between parties.
    Comment: Melton noted privacy concerns that may have led the MSRB 
to require dealers to identify customers without providing names and 
social security numbers. Dorsey and Edward Jones supported the required 
disclosure of zip codes to support retail priority as adequate and 
stated this should be adopted as an industry standard practice. Edward 
Jones suggested that the MSRB revise the proposal to limit the 
identifying information that the issuer may require. Edward Jones also 
suggested that an issuer should not be allowed to require dealers to 
provide customer account numbers, addresses, phone numbers or tax 
identification numbers. SIFMA said the rule should specify that any 
identifying information required by the issuer may not include customer 
account numbers, names or taxpayer identification numbers.
    MSRB Response: Certain issuers have said to the MSRB that it would 
be helpful to have additional tools to verify orders. The MSRB believes 
that, if there are legitimate customer privacy protection issues 
associated with a specific request, particularly as it relates to 
certain identifying information or account numbers, an issuer may be 
amenable to allowing a dealer to truncate numbers before submission. 
The MSRB is aware that zip codes are often requested by issuers and 
usually provided by dealers in support of evidence that an order is 
from an individual or that the order is from a customer from a 
particular locality. Both issuers and dealers have acknowledged that it 
is easy to supply a zip code for a residential area and ``claim'' that 
it belongs to the order.
    Comment: SIFMA also recommended that the MSRB create a safe harbor 
for senior syndicate managers so that senior managers would satisfy 
their own fair dealing obligations to the issuer when relying on 
representations made to them by other dealers that any orders submitted 
are retail orders.
    MSRB Response: The MSRB agrees that a senior syndicate manager 
should, subject to certain exceptions, be entitled to rely on the 
information furnished by another dealer. However, the MSRB believes 
that a senior syndicate manager would not be entitled to rely on the 
information if the senior syndicate manager knows, or has reason to 
know, that the information is not true or accurate.
Recordkeeping
    Comments: GFOA supported the new recordkeeping requirements on 
syndicate managers. SIFMA said that the proposed amendments requiring 
the syndicate members to keep such records are not warranted as they 
would be duplicative of recordkeeping requirements already imposed upon 
dealers. Edward Jones sought clarification as to whether the 
recordkeeping requirements applied to a sole managed deal, i.e., a deal 
where there is no syndicate.
    MSRB Response: The MSRB does not agree that proposed revisions to 
the recordkeeping requirements would be duplicative of recordkeeping 
requirements already imposed on dealers. Rule G-8(a)(vii) provides that 
the dealer keep a record of the customer's order in the event of a 
purchase or sale of municipal securities (so that a record of orders 
need not be retained if the order is not filled). Existing Rule G-
8(a)(viii) requires that the records of all orders received (regardless 
of whether an order is filled) be maintained by the syndicate manager. 
The proposed rule change is necessary so that the additional 
information that must be provided by the senior syndicate manager or by 
each dealer as a result of the amendments to Rule G-11 will be retained 
in the centralized file maintained by the syndicate manager. The MSRB 
agrees and the proposed rule change applies to recordkeeping 
requirements in the case of a sole managed deal.
    Comment: SIFMA said that dealers should not be required to share 
customer specific information with syndicate managers, and that it 
would be more appropriate (and should be sufficient for recordkeeping 
and enforcement purposes) that these customer order details remain with 
the dealer that maintains the customer relationship.
    MSRB Response: The MSRB disagrees for the reasons stated above. 
Issuers will benefit from having access to customer specific 
information to verify orders and examinations will likely be more 
efficient due to centralized recordkeeping.
Revisions to Rule G-32 To Indicate That a Transaction Included a Retail 
Order Period
    Comments: SIFMA and Full Life supported the proposed revisions to 
Rule G-32. Full Life said that it provides an opportunity for 
regulatory oversight essential to fostering administration of bona fide 
retail order periods that actually result in retail participation. 
SIFMA also recommended that the dates and times of any retail order 
period be reported to EMMA.
    MSRB Response: The MSRB appreciates these comments. The MSRB agrees 
with SIFMA's recommendation and it is reflected in the proposed rule 
change to Rule G-32.

[[Page 39045]]

Additional Rulemaking Regarding Retail Order Periods
    Comment: SIFMA stated that the G-17 Underwriters' Notice has 
adequately addressed the concerns regarding retail order periods so 
that additional rulemaking is not necessary.
    MSRB Response: The MSRB considers the G-17 Underwriters' Notice as 
an important step towards improving practices in this area but it did 
not address all of the issues associated with retail order periods. 
More specific, concrete requirements in the proposed rule change should 
assist in compliance. For example, the G-17 Underwriters' Notice does 
not address many of the issues associated with recordkeeping. The 
proposed rule change also will support efforts by the issuer and the 
syndicate manager to audit orders.
Alternatives to Rulemaking
    Comment: BDA suggested that if the MSRB produces educational 
materials, they should include specific guidance practices that issuers 
should consider in formulating effective retail order period rules. BDA 
recommended that issuers reserve the right to conduct an audit of 
compliance by the syndicate of retail order period rules. GFOA 
recommended that the MSRB seek to establish some type of protocol or 
system so that the issuer can have some comfort that retail orders meet 
the preset criteria set by the issuer.
    MSRB Response: The MSRB would consider working with issuer trade 
associations on best practices which may address these issues.
Other Comments
    Comment: Combined Order Periods: Vanguard said that all interested 
investors should be permitted to submit orders for municipal securities 
in the primary market and no priority should be given to retail orders, 
and that issuers would benefit from more accurate price discovery.
    MSRB Response: The MSRB does not wish to substitute its judgment in 
place of that of issuers who manage their debt issuances. Issuers may 
choose to conduct combined order periods and the proposed rule change 
does not prevent them from doing so.
    Comment: Definition of Selling Group: SIFMA suggested the 
definition of selling group be limited to those dealers that sign an 
SGA or substantially similar agreements for a particular new issue of 
municipal securities.
    MSRB Response: The MSRB does not wish to define selling group by 
reference to an agreement which may not be executed in all cases, 
although the MSRB recognizes that it may be customary practice for 
selling group members to execute an SGA. In addition, duties of selling 
group members and the duties of syndicate managers to selling group 
members should apply to a dealer in a selling group even if for some 
reason it does not become a party to an SGA since to provide otherwise 
might have the unintended consequence of subverting the intent of Rule 
G-11 to apply to all dealers.
    Comments: Definition of Going Away Orders: SIFMA suggested that the 
term going away order has not been previously defined under MSRB rules. 
Li included recommendations to address flipping.
    MSRB Response: The term going away order was defined in an approval 
order concerning a previous revision to Rule G-11.\23\ The proposed 
rule change was not directed at concerns related to flipping.
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    \23\ See Securities Exchange Act Release 34-62715 (August 13, 
2010); 75 FR 51128 (August 18, 2010); File No. SR-MSRB 2009-17.
---------------------------------------------------------------------------

    Comments: Interpretive Guidance related to Duties of All Dealers 
Placing Orders in Retail Order Periods and Fair Pricing: Wells Fargo 
suggested that the proposed guidance created a compliance challenge for 
firms, making almost any pricing difference subject to the whims and 
vagaries of which person is viewing the pricing and its fairness. 
SIFMA, BDA and Edward Jones raised concerns related to differential 
pricing between retail and institutional investors seeking specific 
examples of the characteristics of the securities that may fairly 
justify differences in pricing. SIFMA recommended that the MSRB clarify 
that the specific examples provided are not an exhaustive list and 
acknowledge that market conditions could shift within a day. GFOA 
suggested that the MSRB revise the interpretive guidance to state that 
price differences between the retail order period and the later 
institutional order period do not per se create an assumption of lack 
of fair dealing.
    BDA found that revisions to the guidance provided a helpful 
discussion of how prices and yields may legitimately differ on sales of 
the same security. Wells Fargo suggested that retail and institutional 
orders should not receive different pricing and Full Life was 
supportive of guidance that would discourage differences in pricing as 
between retail and institutional investors in the new issue market. 
GFOA and NAIPFA were not supportive of the guidance as it related to 
fair pricing because of concerns that it would hurt issuers and, in the 
long-term, retail customers may be forced from the market.
    MSRB Response: The MSRB is not proposing to issue additional 
guidance related to fair pricing at this time. The MSRB most recently 
issued guidance on the issue of fair pricing to individual clients in 
2009.\24\ The comments received on retail order periods and the Board's 
study of such programs does not establish a basis for additional 
pricing guidance at this time. In particular, that MSRB is mindful that 
any guidance should be grounded from further study and analysis and 
should consider the extent to which pricing differentials may affect an 
issuer's willingness to use a retail order period. As the MSRB 
continues to promote price transparency in the primary market, new 
issue pricing practices will be monitored to ascertain whether 
additional guidance is warranted.
---------------------------------------------------------------------------

    \24\ See the Sales Practice Notice.
---------------------------------------------------------------------------

Topics Related to Primary Offerings But Beyond the Scope of the 
Proposed Rule Change
    Comment: Takedown: Full Life suggested that the MSRB should 
discourage consideration of disparity in takedown as influencing 
dealers' motivation to exhibit greater effort to secure institutional 
customers versus retail.
    MSRB Response: The MSRB appreciates this comment but believes that 
at this time the MSRB should direct its rulemaking efforts towards 
ensuring that dealers submit orders only from retail customers.
    Comment: Disclosures of Sales by Underwriters Following the End of 
the Underwriting Period: Li requested that the MSRB consider 
promulgating a rule requiring disclosure to issuers of sales for a 
period of time (perhaps seven days) following the end of the 
underwriting period. Li believed that this might allow the issuer to 
identify any pricing problems and support fair dealing.
    MSRB Response: The MSRB appreciates this comment and will consider 
whether additional rulemaking is appropriate, but views this comment as 
outside the scope of the proposed rule change on retail order periods.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period of up to 90 days (i) as 
the Commission may designate if it finds such longer period

[[Page 39046]]

to be appropriate and publishes its reasons for so finding or (ii) as 
to which the self-regulatory organization consents, the Commission 
will:
    (A) By order approve or disapprove such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-MSRB-2013-05 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-MSRB-2013-05. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the MSRB. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-MSRB-2013-05 and should be 
submitted on or before July 19, 2013.
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    \25\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-15492 Filed 6-27-13; 8:45 am]
BILLING CODE 8011-01-P