EMMA Enhancements on Voluntary Issuer Submissions Effective May 23, 2011

As previously announced, on May 26, 2010 the Securities and Exchange Commission (“SEC”) approved a proposal to permit issuers, on a voluntary basis, to submit to Municipal Securities Rulemaking Board’s (“MSRB”) Electronic Municipal Market Access system (“EMMA”) preliminary official statements and other related pre-sale documents, official statements and advance refunding documents (“primary market documents”), as well as information relating to the preparation and submission of audited financial statements and/or annual financial information and hyperlinks to other disclosure information available from the issuer’s website (the “Issuer Amendment”).[1]  Disclosures submitted under the Issuer Amendment will be made available on the EMMA web portal at http://emma.msrb.org and through EMMA subscription services.  The Issuer Amendment is effective Monday, May 23, 2011.  Prior to this date, the MSRB will announce the availability of educational webinars reviewing, and instructional materials for making, the additional voluntary submissions. 

DESCRIPTION OF THE ISSUER AMENDMENT

Since July 1, 2009, EMMA has served as the central submission venue for continuing disclosure documents submitted by issuers and obligated persons pursuant to continuing disclosure undertakings entered into consistent with Exchange Act Rule 15c2-12, as well as for other continuing disclosures submitted by issuers and obligated persons on a voluntary basis.  These submissions are made available to the public on the EMMA web portal and through real-time subscription services.

Preliminary Official Statements and Other Primary Market Documents

The Issuer Amendment amends the EMMA primary market disclosure service to permit issuers and their designated agents to make voluntary submissions to the primary market disclosure service of primary market documents.[2]  Pre-sale documents other than a preliminary official statement (including but not limited to notices of sale or supplemental disclosures) will be accepted only if accompanied or preceded by the preliminary official statement.[3]  An issuer seeking to make submissions of primary market documents to the EMMA primary market disclosure service will be able to use the same type of accounts established with respect to submissions of continuing disclosure documents to the EMMA continuing disclosure service, subject to additional verification procedures to affirmatively establish the account holder’s authority to act on behalf of the issuer in connection with such primary market disclosure submissions.

Submissions of primary market documents by issuers and their designated agents will be accepted on a voluntary basis if, at the time of submission, they are accompanied by information necessary to identify accurately:  (i) the category of document being submitted; (ii) the issues or specific securities to which such document is related; and (iii) in the case of an advance refunding document, the specific securities being refunded pursuant thereto.  The primary market documents and related indexing information will be displayed on the EMMA web portal and also will be included in EMMA’s primary market disclosure subscription service.  The MSRB expects to provide search capabilities tailored to the types of indexing information that would be available for preliminary official statements, including issuer name, issue description, state, and appropriate date ranges, among other things.  Submissions made by issuers will be noted as such on the EMMA web portal.

Additional Continuing Disclosure Submissions and Undertakings

The Issuer Amendment also amends the EMMA continuing disclosure service to permit issuers, obligated persons and their agents to make voluntary submissions to the continuing disclosure service of additional categories of disclosures, as well as information about their continuing disclosure undertakings.  Such additional continuing disclosures and related indexing information will be displayed on the EMMA web portal and also will be included in EMMA’s continuing disclosure subscription service.  Such additional items are:

• an issuer’s or obligated person's undertaking to submit annual financial information to EMMA within 120 calendar days after the end of the fiscal year or, as a transitional alternative that may be elected through December 31, 2013, within 150 calendar days after the end of the applicable fiscal year, as further described below (the “voluntary annual filing undertaking”);
• an issuer’s or obligated person’s undertaking to prepare audited financial statements pursuant to generally accepted accounting principles (“GAAP”) as established by the Governmental Accounting Standards Board (“GASB”), or pursuant to GAAP as established by the Financial Accounting Standards Board (“FASB”), as applicable to such issuer or obligated person and as further described below (the “voluntary GAAP undertaking”); and
• the uniform resource locator (URL) of the issuer’s or obligated person’s Internet-based investor relations or other repository of financial/operating information.

Voluntary Annual Filing Undertaking.  The voluntary annual filing undertaking will consist of a voluntary undertaking by an issuer or obligated person, either at the time of a primary offering or at any time thereafter, that the issuer or obligated person, as appropriate, will submit to EMMA its annual financial information as contemplated under Exchange Act Rule 15c2-12 by no later than 120 calendar days after the end of such issuer’s or obligated person’s fiscal year (the “120 day undertaking”).  Alternatively, to and including December 31, 2013, the EMMA continuing disclosure service will provide the option for an issuer or obligated person to indicate its undertaking to submit to EMMA its annual financial information by no later than 150 calendar days after the end of such issuer’s or obligated person’s fiscal year (the “transitional 150 day undertaking”).[4]  An issuer or obligated person that has made a transitional 150 day undertaking may convert such election to a 120 day undertaking at any time.  On and after January 1, 2014, the transitional 150 day undertaking option will no longer be available for selection.  An issuer or obligated person that believes it is able to meet the 120 day timeframe will be able make the 120 day undertaking immediately upon the effective date of the Issuer Amendment.

The EMMA indicator with regard to the voluntary annual filing undertaking will be indicative of an issuer’s or obligated person’s voluntary undertaking, entered into as a contractual obligation, for the benefit of bondholders, under a continuing disclosure agreement or another contract, that it will submit to EMMA its annual financial information as contemplated under Exchange Act Rule 15c2-12 by the 120 day undertaking or the transitional 150 day undertaking.  If the issuer or obligated person later modifies the timeframe for submitting the annual financial information in its continuing disclosure agreement or other contractual arrangement to a period longer than contemplated by the voluntary annual filing undertaking, the issuer or obligated person would be expected to remove the indicator of its voluntary annual filing undertaking on EMMA.  The applicability of the voluntary annual filing undertaking is limited to situations where such an undertaking represents a contractual obligation of the issuer or obligated person to perform such undertaking. 

The MSRB will not review or confirm the compliance of an issuer or obligated person with its voluntary annual filing undertaking and will not review whether the information submitted by such entity to the EMMA continuing disclosure service regarding the voluntary annual filing undertaking accurately reflects the provisions of, or is included within, the continuing disclosure agreement or other contractual arrangement of such entity.

The voluntary annual filing undertaking will assist investors and other market participants in understanding when the annual financial information is expected to be available in the future.  The fact that an issuer or obligated person has entered into a voluntary annual filing undertaking will be prominently disclosed on the EMMA web portal as a distinctive characteristic of the securities to which such undertaking applies.  An issuer or obligated person that has made a voluntary annual filing undertaking may later rescind such undertaking, which will be reflected on the EMMA web portal.  A transitional 150 day undertaking will continue to be displayed on the EMMA portal through June 30, 2014, and will automatically cease to be displayed on the EMMA web portal after such date, unless the issuer or obligated person has previously changed or rescinded such undertaking.

The EMMA web portal will not include information regarding the availability or existence of the voluntary annual filing undertaking in those cases where an issuer or obligated person does not make a voluntary annual filing undertaking.  The MSRB will include an explanation of the nature of the voluntary annual filing undertaking on the EMMA web portal.  In particular, the MSRB will disclose that the voluntary annual filing undertaking is voluntary, is solely indicative of the timing by which the annual financial information is intended to be made available and is not indicative of the accuracy or completeness of the annual financial information or of the financial health of the issuer or obligated person.  Further, the MSRB will disclose that a decision by an issuer or obligated person not to make such an undertaking does not raise a negative inference in regard to the accuracy or completeness of its annual financial information or of the financial health of the issuer or obligated person.

Voluntary GAAP Undertaking.  The voluntary GAAP undertaking will consist of a voluntary undertaking by an issuer or obligated person, either at the time of a primary offering or at any time thereafter, that the issuer or obligated person will prepare its audited financial statements in accordance with GAAP.  The MSRB contemplates that state or local governments or any other entities to which GASB standards are applicable would apply GAAP as established by GASB and that any other entities to which FASB standards are applicable would apply GAAP as established by FASB.  The EMMA indicator with regard to the voluntary GAAP undertaking would be indicative of an issuer’s or obligated person’s voluntary undertaking, entered into as a contractual obligation, for the benefit of bondholders, under a continuing disclosure agreement or another contract, that it will prepare its audited financial statements in accordance with GAAP, either based on GASB or FASB standards as appropriate.  If the issuer or obligated person later rescinds such undertaking through an amendment to its continuing disclosure agreement or other contractual arrangement, the issuer or obligated person would be expected to remove the indicator of its voluntary GAAP undertaking on EMMA.  The applicability of the voluntary annual filing undertaking is limited to situations where such an undertaking represents a contractual obligation of the issuer or obligated person to perform such undertaking. 

The MSRB will not review whether an entity has selected the appropriate accounting standard, will not review or confirm the conformity of submitted audited financial statements to GAAP, and will not review whether the information submitted by such entity to the EMMA continuing disclosure service regarding the voluntary GAAP undertaking accurately reflects the provisions of, or is included within, the continuing disclosure agreement or other contractual arrangement of such entity.

The voluntary GAAP undertaking will assist investors and other market participants in understanding how audited financial statements were prepared.  The fact that an issuer or obligated person has entered into a voluntary GAAP undertaking, and the standard under which audited financial statements are to be prepared, will be prominently disclosed on the EMMA web portal as a distinctive characteristic of the securities to which such undertaking applies.  An issuer or obligated person that has made a voluntary GAAP undertaking may later rescind such undertaking, which will be disclosed through EMMA.

The EMMA web portal will not include information regarding the availability or existence of the voluntary GAAP undertaking in those cases where an issuer or obligated person does not make a voluntary GAAP undertaking. The MSRB would include an explanation of the nature of the voluntary GAAP undertaking on the EMMA web portal.  In particular, the MSRB would disclose that the voluntary GAAP undertaking is voluntary, is solely indicative of the accounting standards that the issuer or obligated person intends to use in preparing its financial statements and is not indicative of the accuracy or completeness of the financial statements or of the financial health of the issuer or obligated person.  Further, the MSRB would disclose that a decision by an issuer or obligated person not to make such an undertaking does not raise a negative inference in regard to the accuracy or completeness of its financial statements or of the financial health of the issuer or obligated person.

Investor Relations URL Posting.  Issuers and obligated persons will be able to post to EMMA the URLs for their Internet-based investor relations or other repository of financial/operating information.  Issuers and obligated persons would be able to make appropriate changes to the URLs posted through EMMA.  The hyperlinks would be posted in a manner designed to segregate access to the URL from postings of official statements for new issues.  A posted URL of an issuer’s or obligated person’s Internet-based investor relations or other repository of financial/operating information will provide investors with an additional avenue for obtaining further financial, operating or other investment-related information about such issuer or obligated person.

Manner of Submission.  Issuers and obligated persons will be able to indicate the existence of a voluntary GAAP undertaking or voluntary annual filing undertaking through a data input election on EMMA.  Changes to or rescissions of such voluntary contractual undertakings will also be able to be indicated through the same EMMA interface process.  The URL of an issuer’s or obligated person’s investor relations or other repository of financial/operating information can also be entered through a text/data input field on EMMA.  No document would be required to be submitted to EMMA in connection with the voluntary GAAP undertaking, voluntary annual filing undertaking or the issuer/obligated person URL.  The input process for each of these additional items would include a free text input field permitting issuers and obligated persons to include limited additional information relating to each such item that they deem appropriate with respect thereto for public dissemination.  Further, the MSRB will include an explanation of the nature of the voluntary GAAP undertaking and voluntary annual filing undertaking on the EMMA web portal.

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Questions regarding this notice may be directed to Justin Pica, Director, Uniform Practice Policy, at (703) 797-6716.

March 23, 2011

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TEXT OF AMENDMENTS TO EMMA PRIMARY MARKET DISCLOSURE SERVICE[5]

EMMA PRIMARY MARKET DISCLOSURE SERVICE

The EMMA primary market disclosure service, established as a service of EMMA, receives submissions of official statements (“OSs”), preliminary official statements (“POSs”) and related pre-sale documents (“POS-related documents”), advance refunding documents (“ARDs”), and any amendments thereto (collectively, “primary market documents”), together with related indexing information to allow the public to readily identify and access such documents, from brokers, dealers and municipal securities dealers (“dealers”), acting as underwriters, placement agents or remarketing agents for primary offerings of municipal securities (“underwriters”), and their agents pursuant to MSRB rules, and from issuers and their designated agents, at no charge to the submitter.  Submissions may be made through a choice of an Internet-based electronic submission interface or electronic computer-to-computer streaming connections.  The EMMA primary market disclosure service makes primary market documents available to the public, at no charge, on the Internet through the EMMA portal.  The EMMA primary market disclosure service also makes primary market documents available by subscription for a fee.

Submissions to the EMMA Primary Market Disclosure Service

Designated Electronic Format for Documents.  No change.

Method of Submission.  No change.

Timing of Submissions.  Underwriters and their agents Submitters shall make submissions to EMMA of primary market documents OSs, POSs, ARDs and related information within the timeframes set forth in MSRB rules and related MSRB procedures.  The EMMA primary market disclosure service’s submission processes are available for submissions throughout the day, subject to the right of the MSRB to make such processes unavailable between the hours of 3:00 am and 6:00 am each day, Eastern time, for required maintenance, upgrades or other purposes, or at other times as needed to ensure the integrity of EMMA and its systems.  The MSRB shall provide advance notice on the EMMA portal of any planned periods of unavailability and shall endeavor to provide information on the EMMA portal as to the status of the submission interface during unanticipated periods of unavailability, to the extent technically feasible.

Document Types.  The EMMA primary market disclosure service accepts submissions of primary market documents, OSs, POSs and ARDs, including any amendments to the foregoing, submitted pursuant to MSRB rules or on a voluntary basis.  POS-related documents, including but not limited to notices of sale or supplemental disclosures, will be accepted only if accompanied or preceded by a POS.

Information to be Submitted.  Underwriters and their agents Submitters shall provide to EMMA related indexing information with respect to each document submitted.  Underwriters and their agents Submitters submitting primary market documents OSs, POSs or ARDs under MSRB rules, or providing information under MSRB rules regarding a primary offering where no such document is required to be submitted, shall provide such items of information as are required by MSRB rule or the EMMA Dataport Manual to be included on Form G-32.  Submissions of primary market documents by issuers and their designated agents will be accepted on a voluntary basis if, at the time of submission, they are accompanied by information necessary to accurately identify:  (i) the category of document being submitted (such as OS, POS, POS-related document, ARD); (ii) the issues or specific securities to which such document is related (including CUSIP number to the extent then available, issuer name, state, issue description/securities name, dated date, maturity date, and/or coupon rate); and (iii) in the case of an ARD, the specific securities being refunded pursuant to the ARD (including original CUSIP number and any newly assigned CUSIP number).

Submitters shall be responsible for the accuracy and completeness of all information submitted to EMMA.

Submitters.  Submissions to the EMMA primary market disclosure service may be made solely by authorized submitters using password-protected accounts in the MSRB’s user account management and authentication system known as MSRB Gateway.  Submissions may be made by the following classes of submitters:

● underwriter, which may submit primary market documents OSs, POSs, ARDs and related information, as well as such other documents or information as provided under MSRB rules, with respect to municipal securities which the underwriter has underwritten;

●  issuer, which may submit primary market documents and related information with respect to such issuer’s municipal securities; and

●  designated agent, which may submit the documents otherwise permitted to be submitted by the underwriter or issuer, as appropriate, which has designated such agent, as provided below.

Issuers wishing to make submissions of primary market documents and related indexing information to the EMMA primary market disclosure service would use the same accounts established with respect to submissions of continuing disclosure documents to the EMMA continuing disclosure service, subject to additional verification procedures.  Underwriters and issuers may designate agents to submit primary market documents and related indexing information on their behalf, and may revoke the designation of any such agents, through MSRB Gateway.  Such designated agents must register to obtain password-protected accounts on EMMA in order to make submissions on behalf of the designating party. underwriters.  All actions taken on EMMA by a designated agent on behalf of an underwriter that has designated such agent shall be the responsibility of the underwriter.  The MSRB considers an agent designated by an issuer to make submissions of primary market documents and related indexing information as being authorized by the issuer to take actions on EMMA on behalf of such issuer.

Public Availability of Primary Market Disclosure Documents

No change.

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TEXT OF AMENDMENTS TO EMMA CONTINUING DISCLOSURE SERVICE

EMMA CONTINUING DISCLOSURE SERVICE

The EMMA continuing disclosure service, established as a service of EMMA, receives submissions of continuing disclosure documents, together with related information about continuing disclosures and indexing information to allow the public to readily identify and access such documents, from issuers, obligated persons and their agents pursuant to continuing disclosure undertakings entered into consistent with Exchange Act Rule 15c2-12, as well as other continuing disclosure documents concerning municipal securities, at no charge to the submitter.  Submissions may be made through a choice of an Internet-based electronic submission interface or electronic computer-to-computer streaming connections.  The EMMA continuing disclosure service makes continuing disclosures available to the public, at no charge, on the Internet through the EMMA portal.  The EMMA continuing disclosure service also makes continuing disclosures available by subscription for a fee.

Submissions to the EMMA Continuing Disclosure Service

Designated Electronic Format for Documents.  No change. 

Method of Submission.  No change.

Timing of Submissions.  No change.

Document Types.  The EMMA continuing disclosure service accepts submissions from issuers, obligated persons, and their agents of (i) the continuing disclosure documents described in Rule 15c2-12, and (ii) other continuing disclosure documents concerning municipal securities not specifically described in Rule 15c2-12.

The continuing disclosure documents described in Rule 15c2-12 consist of the following categories of documents:

• annual financial information concerning issuers or other obligated persons as described in paragraph (b)(5)(i)(A) of Rule 15c2-12, or other financial information and operating data provided by issuers or other obligated persons as described in paragraph (d)(2)(ii)(A) of Rule 15c2-12;
• financial statements for issuers or other obligated persons if not included in the annual financial information as described in paragraph (b)(5)(i)(B) of Rule 15c2-12;
• notices of certain events, if material, as described in paragraph (b)(5)(i)(C) of Rule 15c2-12; and
• notices of failures to provide annual financial information on or before the date specified in the written undertaking as described in paragraph (b)(5)(i)(D) of Rule 15c2-12.

Categories of other disclosure documents concerning municipal securities not specifically described in Rule 15c2-12 include:

• other financial or operating data disclosures, including but not limited to quarterly or monthly financial information; interim or additional financial information or operating data; budget documents; investment, debt or financial policies; consultant reports; information provided to rating agencies, credit or liquidity providers or other third parties; changes in accounting standards, fiscal year or timing of annual disclosure; contractual undertaking, for the benefit of bondholders, of an issuer or obligated person to prepare audited financial statements pursuant to generally accepted accounting principles as established by the Governmental Accounting Standards Board (GASB) or the Financial Accounting Standards Board (FASB), as applicable; contractual undertaking, for the benefit of bondholders, of an issuer or obligated person to submit annual financial information to EMMA within 120 calendar days after the end of the applicable fiscal year (provided that the EMMA continuing disclosure service will accept the submission, through December 31, 2013, of an alternative transitional undertaking of an issuer or obligated person to submit annual financial information to EMMA within 150 calendar days after the end of the applicable fiscal year); uniform resource locator (URL) of the issuer’s or obligated person’s Internet-based investor relations or other repository of financial/operating information; and other uncategorized financial or operating data; and
• other event-based disclosures, including but not limited to amendments to continuing disclosure undertakings; changes in obligated person; notices to investors pursuant to bond documents; communications from the Internal Revenue Service; tender offer or secondary market purchase notices; notices of bid for auction rate or other securities; capital or other financing plans; litigation or enforcement action documents; documents relating to mergers, consolidations, reorganizations, insolvency or bankruptcy; changes of trustee, tender agent, remarketing agent, or other on-going party; materials relating to derivative or other similar transactions; and other uncategorized event-based disclosures.

The MSRB may combine two or more categories, may divide any category into two or more new categories or subcategories, or may form additional categories for purposes of indexing documents submitted as uncategorized financial/operating data or event-based disclosures, as appropriate, based on the types of documents received.

In addition, for the categories of continuing disclosures listed below, a submitter may provide, in lieu of or in addition to a continuing disclosure document, a statement of the information indicated below by means of a text/data input field: contractual undertaking of an issuer or obligated person to prepare audited financial statements pursuant to generally accepted accounting principles as established by GASB or FASB, as applicable; contractual undertaking of an issuer or obligated person to submit annual financial information to EMMA within 120 calendar days (or, through December 31, 2013, within 150 calendar days) after the end of the applicable fiscal year; and URL of the issuer’s or obligated person’s Internet-based investor relations or other repository of financial/operating information.  Submitters also may indicate any change or rescission of any such contractual undertaking or change or remove any such URL at any time by means of a text/data input field, and any such changes, rescissions or removals will be reflected on the EMMA portal; provided that a contractual undertaking of an issuer or obligated person to submit annual financial information to EMMA within 150 calendar days after the end of the applicable fiscal year will continue to be displayed on the EMMA portal through June 30, 2014, and will automatically cease to be displayed on the EMMA portal after such date, unless the issuer or obligated person has previously changed or rescinded such contractual undertaking and has indicated such change or rescission through the text/data input field.

Information to be Submitted.  No change.

Submitters.  No change.

Public Availability of Continuing Disclosure Documents

EMMA Portal.  Submissions made through the EMMA continuing disclosure service accepted during the hours of 8:30 am to 6:00 pm Eastern time on an MSRB business day are, in general, posted on the EMMA portal within 15 minutes of acceptance, although during peak traffic periods posting may occur within one hour of acceptance.  Submissions outside of such hours often are posted within 15 minutes although some submissions outside of the MSRB’s normal business hours may not be processed until the next business day.  Except as otherwise provided herein in connection with a specific category of document or information that may be submitted to the EMMA continuing disclosure service, continuing  Continuing disclosure documents, undertakings and related indexing information submitted to EMMA shall be made available to the public through the EMMA portal for the life of the related securities.

The EMMA portal provides on-line search functions utilizing available indexing information to allow users of the EMMA portal to readily identify and access documents and related information provided through the EMMA continuing disclosure service.  Basic identifying information relating to specific municipal securities and/or specific issues accompanies the display of continuing disclosure documents.

The EMMA portal is available without charge to all members of the public.  The MSRB has designed EMMA, including the EMMA portal, as a scalable system with sufficient current capacity and the ability to add further capacity to meet foreseeable usage levels based on reasonable estimates of expected usage, and the MSRB will monitor usage levels in order to assure continued capacity in the future.

The MSRB reserves the right to restrict or terminate malicious, illegal or abusive usage for such periods as may be necessary and appropriate to ensure continuous and efficient access to the EMMA portal and to maintain the integrity of EMMA and its operational components.  The MSRB is not responsible for the content of the information or documents submitted by submitters displayed on the EMMA portal or distributed to subscribers of the EMMA continuing disclosure subscription service.

Subscriptions.  No change.