MSRB Files to Establish an Electronic Official Statement Dissemination Standard and to Launch the Permanent Primary Market Disclosure Service of the MSRB's Electronic Municipal Market Access System ("EMMA")
The Municipal Securities Rulemaking Board (the “MSRB”) has filed with the Securities and Exchange Commission (the “SEC”) a proposed rule change to implement an electronic system for free public access to primary market disclosure documents and transaction price information for the municipal securities market through the MSRB’s Electronic Municipal Market Access system (“EMMA”).[1] The proposed rule change would
● establish EMMA’s permanent primary market disclosure service (the “primary market disclosure service”) for electronic submission and public availability on EMMA’s Internet portal (the “EMMA portal”) of official statements, advance refunding documents and related primary market documents and information (the “EMMA primary market disclosure proposal”)
● establish EMMA’s permanent transparency service (the “trade price transparency service”) making municipal securities transaction price data publicly available on the EMMA portal (the “EMMA trade price transparency proposal”)
● establish a real-time subscription to the primary market document collection (the “primary market disclosure subscription proposal”)
● terminate the existing pilot EMMA facility of the Municipal Securities Information Library (MSIL) system (the “primary market pilot”) and suspend submissions of official statements, advance refunding documents and Forms G-36(OS) and G-36(ARD) to the MSIL system (the “system transition proposal”)
● amend and consolidate current Rules G-32 and G-36 into new Rule G-32 on disclosures in connection with primary offerings, replace current Forms G-36(OS) and G-36(ARD) with new Form G-32, provide transitional submission requirements, and amend certain related recordkeeping requirements, to establish an “access equals delivery” standard for electronic official statement dissemination in the municipal securities market (the “rule change proposal”)
The MSRB has requested that the SEC approve commencement of operation of EMMA’s primary market disclosure service and trade price transparency service on a permanent basis, and make the provisions of the rule change proposal effective, on the later of (i) May 11, 2009 or (ii) the date announced by the MSRB in a notice published on the MSRB website, which date shall be no earlier than ten business days after SEC approval of the proposed rule change and shall be announced no fewer than five business days prior to such date (the “effective date”).
BACKGROUND – CURRENT DELIVERY REQUIREMENTS
Under current Rule G-32, a broker, dealer or municipal securities dealer (“dealer”) selling a new issue municipal security to a customer during the period ending 25 days after bond closing (the “new issue disclosure period”) must, with certain limited exceptions, deliver the official statement (“OS”) to the customer on or prior to trade settlement. In cases where an OS is not produced by the issuer, the dealer is required to instead provide a preliminary official statement (“POS”), if available. The dealer also must provide certain additional information about the underwriting (including initial offering prices and information about underwriter compensation) if the issue was purchased by the underwriter in a negotiated sale. These additional items of information typically are disclosed in the OS but must be provided separately by the selling dealer if not included in the OS. Furthermore, selling dealers and the managing underwriter must send OSs to purchasing dealers promptly upon request, and dealer financial advisors that prepare the OS must provide it to the managing underwriter promptly.
Current Rule G-36 requires dealers acting as underwriters, placement agents or remarketing agents for primary offerings of municipal securities (“underwriters”) to submit OSs, accompanied by Form G-36(OS), for most primary offerings of municipal securities to the MSRB. For offerings subject to Exchange Act Rule 15c2-12, the OS must be sent within one business day after receipt from the issuer but no later than ten business days after the bond sale. With limited exceptions, OSs prepared for any other offerings must be sent by the later of one business day after receipt from the issuer or one business day after bond closing. Amendments to the OS during the new issue disclosure period also must be submitted to the MSRB. In addition, if the offering is an advance refunding and an advance refunding document (“ARD”) has been prepared, the ARD and Form G-36(ARD) must be sent by the underwriter to the MSRB within five business days after bond closing. OSs and ARDs may currently be submitted in either paper or electronic format. These submissions are collected by the Municipal Securities Information Library (MSIL) system into a comprehensive library. The MSRB makes these documents available to paid subscribers as portable document format (PDF) files on a compact disk sent daily to subscribers, and also makes them available to the public, subject to copying charges, at the MSRB’s public access facility in Alexandria, Virginia.
MSRB NOTICES FOR COMMENT
The MSRB previously published a series of notices seeking comment on the establishment of an “access equals delivery” standard for official statement dissemination.[2] These notices, the comments received, and the MSRB’s responses are described in the rule filing.
DESCRIPTION OF THE EMMA PRIMARY MARKET DISCLOSURE PROPOSAL
The EMMA primary market disclosure proposal would establish, as a component of EMMA, the EMMA primary market disclosure service for the receipt of, and for making available to the public of, OSs, POSs and ARDs, including amendments thereto (collectively, “primary market disclosure documents”), and related information, to be submitted by or on behalf of underwriters under revised Rule G-32, as proposed in the rule change proposal described below.[3] As proposed, all primary market disclosure documents would be submitted to the MSRB, free of charge, through an Internet-based electronic submitter interface or electronic computer-to-computer data connection, at the election of the submitter. Public access to the documents and information would be provided through the EMMA primary market disclosure service on the Internet through the EMMA portal at no charge, as well as through a paid real-time data stream subscription service.[4] In connection with each primary offering for which information is required to be submitted to EMMA pursuant to revised Rule G-32, the submitter would provide, at the time of submission, information required to be included on new Form G-32. The items of information to be included on new Form G-32 and the timing requirements for providing such information are set forth in the description of the rule change proposal below.
The MSRB proposes that submissions of primary market disclosure documents to the EMMA primary market disclosure service be made as portable document format (PDF) files configured to permit documents to be saved, viewed, printed and retransmitted by electronic means. If the submitted file is a reproduction of the original document, the submitted file must maintain the graphical and textual integrity of the original document. For any document submitted to the EMMA primary market disclosure service on or after January 1, 2010, such PDF file must be word-searchable (that is, allowing the user to search for specific terms used within the document through a search or find function available in most standard software packages), provided that diagrams, images and other non-textual elements would not be required to be word-searchable due to current technical hurdles to uniformly producing such elements in word-searchable form without incurring undue costs. Although the MSRB would strongly encourage submitters to immediately begin making submissions as word-searchable PDF files (preferably as native PDF or PDF normal files, which generally produce smaller and more easily downloadable files as compared to scanned PDF files), implementation of this requirement would be deferred as noted above to provide issuers, underwriters and other relevant market participants with sufficient time to adapt their processes and systems to provide for the routine creation or conversion of primary market disclosure documents as word-searchable PDF files.
All submissions to the EMMA primary market disclosure service pursuant to this proposal would be made through password protected accounts on EMMA by: (i) underwriters, which may submit any documents with respect to municipal securities which they have underwritten; and (ii) designated agents, which may be designated by underwriters to make submissions on their behalf. Underwriters would be permitted under the proposal to designate agents to submit documents and information on their behalf, and would be able to revoke the designation of any such agents, through the EMMA on-line account management utility. Such designated agents would be required to register to obtain password-protected accounts on EMMA in order to make submissions on behalf of the designating underwriters.
As proposed, electronic submissions of primary market disclosure documents through the EMMA primary market disclosure service would be made by underwriters and their agents, at no charge, through secured, password-protected interfaces. Submitters would have a choice of making submissions to the proposed EMMA primary market disclosure service either through a web-based electronic submission interface or through electronic computer-to-computer data connections with EMMA designed to receive submissions on a bulk or continuous basis.
All documents and information submitted through the EMMA primary market disclosure service pursuant to this proposal would be available to the public for free through the EMMA portal on the Internet, with documents made available for the life of the securities as PDF files for viewing, printing and downloading.[5] As proposed, the EMMA portal would provide on-line search functions to enable users to readily identify and access documents that relate to specific municipal securities based on a broad range of search parameters. The EMMA portal also would permit users to request to receive alerts, at no charge, if a primary market disclosure document has become available on the EMMA portal or has been updated or amended[6] and may also provide, at the election of the MSRB, summary data/statistical snapshots relating to documents and information submitted to the EMMA primary market disclosure service. In addition, the MSRB proposes that real-time data stream subscriptions to primary market disclosure documents submitted to EMMA would be made available for a fee as established under the primary market disclosure subscription proposal described below. The MSRB would not be responsible for the content of the information or documents submitted by submitters displayed on the EMMA portal or distributed to subscribers through the EMMA primary market disclosure subscription service.
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 would monitor usage levels in order to assure continued capacity in the future.
The MSRB may 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. Such usage may include, without limitation, usage intended to cause the EMMA portal to become inaccessible by other users, to cause the EMMA database or operational components to become corrupted or otherwise unusable, to alter the appearance or functionality of the EMMA portal, or to hyperlink to or otherwise use the EMMA portal or the information provided through the EMMA portal in furtherance of fraudulent or other illegal activities (such as, for example, creating any inference of MSRB complicity with or approval of such fraudulent or illegal activities or creating a false impression that information used to further such fraudulent or illegal activities has been obtained from the MSRB or EMMA). Measures taken by the MSRB in response to such unacceptable usage shall be designed to minimize any potentially negative impact on the ability to access the EMMA portal.
DESCRIPTION OF THE EMMA TRADE PRICE TRANSPARENCY PROPOSAL
The EMMA trade price transparency proposal would establish, as a component of EMMA, the EMMA trade price transparency service to make available to the public historical and real-time transaction price information provided through the MSRB’s Real-Time Transaction Reporting System (“RTRS”), together with related summary and statistical information. Free public access to the transaction price information would be provided through the EMMA trade price transparency service on the Internet through the EMMA portal.[7] The transaction price information provided through the EMMA trade price transparency service would consist of all data available through RTRS for public dissemination since the inception of RTRS on January 31, 2005. This information could be expanded to include historical price data available through earlier MSRB transaction reporting systems.
As proposed, the EMMA portal would provide on-line search functions to enable users to readily access transaction price information based on a broad range of search parameters. The MSRB may elect to expand its alert function on the EMMA portal to permit users to request to receive periodic alerts, at no charge, regarding whether trades have been reported in a specific security[8] and to provide on the EMMA portal summary data/statistical snapshots of price data available through RTRS. The MSRB would not be responsible for the information reported by dealers to RTRS that is displayed on the EMMA portal.
DESCRIPTION OF THE PRIMARY MARKET DISCLOSURE SUBSCRIPTION PROPOSAL
The real-time data stream subscription to the EMMA primary market disclosure service to be provided through a web service would be made available for an annual fee of $20,000.[9] The primary market disclosure subscription service would make available to subscribers all primary market disclosure documents and related information provided by submitters through the EMMA submission process that is posted on the EMMA portal. Such documents and information would be made available to subscribers simultaneously with the posting thereof on the EMMA portal.
Data with respect to the EMMA primary market disclosure service to be provided through the real-time data stream would consist of the following elements, among others and as applicable, as would be more specifically set forth in the EMMA Primary Market Subscriber Manual posted on the EMMA portal: (i) submission data, including submission ID, submission type, submission status and submission transaction date/time; (ii) offering data, including offering type, underwriting spread/disclosure indicator, and OS/POS availability status; (iii) issue data, including issue type, security type, issuer name, issue description, state of issuer, six-digit CUSIP (for commercial paper issues), expected closing date, dated date and original dated date (for certain remarketings); (iv) security data, including nine-digit CUSIP, security-specific dated date (for certain securities not having CUSIP numbers), principal amount at maturity, initial offering price or yield, maturity date, interest rate, partial underwriting data and refunded security CUSIP numbers; (v) document data, including document ID, document type, document description, document posting date, document status indicators and refunding and refunded issue identifiers (for ARDs); (vi) file data, including file ID, file posting date and file status indicators; and (vii) limited offering contact data, including contact name, address and phone number (for obtaining OSs not available on EMMA for certain primary offerings not subject to Rule 15c2-12 by virtue of paragraph (d)(1)(i) thereof).
The EMMA Primary Market Subscriber Manual would set forth a complete, up-to-date listing of all data elements made available through the primary market disclosure subscription service, including detailed definitions of each data element, specific data format information, and information about technical data elements to support transmission and data-integrity processes between EMMA and subscribers.
Subscriptions would be provided through computer-to-computer data streams utilizing XML files for data and files in a designated electronic format (consisting of PDF files) for documents. Appropriate schemas and other technical specifications for accessing the web services through which the real-time data stream are to be provided would be set forth in the EMMA Primary Market Subscriber Manual.
The MSRB would make the primary market disclosure subscription service available on an equal and non-discriminatory basis. In addition, the MSRB would not impose any limitations on or additional charges for redistribution of such documents by subscribers to their customers, clients or other end-users. Subscribers would be subject to all of the terms of the subscription agreement to be entered into between the MSRB and each subscriber, including proprietary rights of third parties in information provided by such third parties that is made available through the subscription. The MSRB would not be responsible for the content of the information or documents submitted by submitters distributed to subscribers through the primary market disclosure subscription service.
DESCRIPTION OF SYSTEM TRANSITION PROPOSAL
The system transition proposal would terminate the existing primary market pilot[10] by deleting the pilot provisions from the MSIL facility and would suspend the MSIL system’s functions of receiving submissions of OSs and ARDs.
DESCRIPTION OF THE RULE CHANGE PROPOSAL
The rule change proposal would effect extensive revisions to the OS submission and dissemination requirements set forth in current MSRB rules in order to implement an “access equals delivery” model based on rules for final prospectus delivery for registered securities offerings adopted by the SEC in 2005.[11] The rule change proposal would consolidate and amend existing provisions of current Rules G-32 and G-36 into revised Rule G-32, on disclosures in connection with primary offerings, and would make conforming changes to Rule G-8, on recordkeeping, and Rule G-9, on preservation of records. Rule G-36 would be rescinded by the proposal. In addition, the rule change proposal would establish a new electronic Form G-32 in connection with submissions made by underwriters to EMMA and would discontinue current Form G-36(OS) and Form G-36(ARD).
Underwriters would be required under revised Rule G-32 to submit all primary market disclosure documents and related information to EMMA in electronic format, replacing the current submission process through the MSIL system pursuant to existing Rule G-36. Dealers selling most municipal securities in a primary offering to customers would be required under revised Rule G-32 to notify customers of the availability of OSs through EMMA (and, at the election of the dealer, any qualified portals) and to provide written copies of OSs to any customers requesting such copies. Except in the case of sales of municipal fund securities, dealers would no longer be required to provide printed copies of OSs to customers in primary offerings.
Underwriters should be especially sensitive to the necessity of timely and accurate submissions to EMMA of OSs, POSs (when required), any amendments thereto, and all related information to be supplied through Form G-32. In particular, with the adoption of the “access equals delivery” standard, submissions to EMMA will become the lynchpin to the municipal securities primary market disclosure system that ensures that OSs are available to investors and the general public in a timely manner. Thus, any failure by the underwriter to make the required submission to EMMA within one business day after receipt from the issuer, but in no event later than the closing date,[12] would have significant repercussions to the ability of investors to access the document. The MSRB expects that the timing requirements of revised Rule G-32 will be strictly adhered to and enforced to promote the purposes of the rule and the protection of investors.
The MSRB’s disclosure rules with respect to newly issued municipal securities are multifaceted and require diligence on the part of dealers to ensure that mandated disclosures are made at certain key points in the process of selling such securities to customers. Thus, dealers are reminded that, in addition to their obligations under Rule G-32, they are required under Rule G-17, on fair practice, to provide to the customer, at or prior to the time of trade, all material facts about the transaction known by the dealer as well as material facts about the security that are reasonably accessible to the market.[13] The time of trade is generally the time at which an enforceable agreement is reached to execute a municipal securities transaction (sometimes referred to as trade execution). Disclosures made at or prior to the time of trade are intended to provide the customer with material information that he or she may use in making an investment decision.
The proposed rule change does not alter the time of trade disclosure obligation under Rule G-17. Disclosures made after the time of trade, such as by delivery of the OS or by customer access to the OS on EMMA at or near trade settlement, do not substitute for the required material disclosures that must be made at or prior to the time of trade pursuant to Rule G-17. In the new issue market, the POS, when available, often is used by dealers marketing new issues to customers and can serve as a primary vehicle for providing the required time-of-trade disclosures under Rule G-17, depending upon the accuracy and completeness of the POS as of the time of trade. Dealers should note that additional or revised material information provided to the customer subsequent to the time of trade (such as in a revised preliminary official statement, the final official statement or through any other means) cannot cure a failure to provide the required material information at or prior to the time of trade.[14] However, a revised preliminary official statement or other supplemental information provided to customers after delivery of the original preliminary official statement, but at or prior to the time of trade, can be used to comply with the time-of-trade disclosure obligation under Rule G-17. The MSRB has previously emphasized the importance of making material disclosures available to customers in sufficient time to make use of the information in coming to an investment decision, such as through earlier delivery of the POS.[15] The MSRB urges dealers to make POSs available to their potential customers in a timeframe that provides an adequate opportunity to make the appropriate assessments in coming to an investment decision.
The rule change proposal is described in more detail below.
Submissions to EMMA
Official Statement and Form G-32 Submission Requirement. Under revised Rule G-32(b)(i)(A), underwriters would be required to submit information through the electronic Form G-32 for all primary offerings of municipal securities, regardless of whether an OS is produced for such offering.[16] The specific items of information to be submitted through Form G-32, and the manner and timing of such submission, are described below.
Under revised Rule G-32(b)(i)(B), except as described below, all submissions by underwriters of OSs would be required to be made within one business day after receipt from the issuer but by no later than the closing date[17] for the offering. Rule G-36 currently has separate submission timing for OSs based on whether the primary offering is subject to or exempt from Exchange Act Rule 15c2-12. For issues subject to such rule, current Rule G-36 establishes a final deadline of ten business days after the issuer agrees to sell the offering to the underwriter. This current timeframe does not ensure that OSs are always available by the closing date, particularly in those cases where an offering may be closed fewer than ten business days after the offering is sold. For issues exempt from Exchange Act Rule 15c2-12, current Rule G-36 requires submission of the OS to the MSRB by the later of one business day after receipt from the issuer or one business day after the closing date. The revised provision is designed to ensure that the OS is always available by the closing date, regardless of the type of offering.
If an OS is being prepared for a primary offering but it is not submitted to EMMA by the closing date, the underwriter would be required under revised Rule G-32(b)(i)(B)(2) to provide notice of such failure to file and to submit the POS, if any, by the closing date, along with notice that the OS will be submitted to EMMA when it becomes available.[18] Once an OS becomes available, the underwriter would be required to submit the OS within one business day after receipt from the issuer. The submission of the POS would not be a cure for a failure to submit the OS in a timely manner but instead would be an additional obligation of the underwriter incurred upon failing to make timely submission of the OS.
Exceptions from Official Statement Submission Requirement. If no OS is prepared for an offering exempt from Exchange Act Rule 15c2-12, revised Rule G-32(b)(i)(C) would require the underwriter to provide notice of that fact to EMMA, together with the POS, if any, by the closing date.[19] In the case of certain limited offerings,[20] revised Rule G-32(b)(i)(E) would permit the underwriter to elect not to submit the OS to EMMA if it instead submits to EMMA, by no later than closing: (i) notice that the offering is not subject to Exchange Act Rule 15c2-12 by virtue of paragraph (d)(1)(i) and that an OS has been prepared but is not being submitted to EMMA, and (ii) specific contact information for underwriter personnel to whom requests for copies of the OS should be made.[21] An underwriter withholding the OS for a limited offering would be required to deliver the OS to each customer purchasing the offered securities from the underwriter or from any other dealer, upon request, by the later of one business day after request or the settlement of the customer’s transaction. In addition, submissions to EMMA in connection with roll-overs of commercial paper or remarketings of outstanding issues exempt from Rule 15c2-12 would not be required under revised Rule G-32(b)(i)(F) if no new OS is prepared for the roll-over or remarketing or if an OS has previously been submitted to EMMA in connection with such securities and no amendments or supplements to the OS have been made since such submission.[22]
Advance Refunding Submissions Requirement. As under current Rule G-36, revised Rule G-32(b)(ii) would require that underwriters submit ARDs by no later than five business days after the closing date for primary offerings that advance refund an outstanding issue and for which an ARD has been prepared. This proposed requirement would apply whenever an ARD has been prepared in connection with a primary offering, not just for those offerings in which an OS also has been prepared as under current Rule G-36.
Amendments and Cancellations. Underwriters would be required by revised Rule G-32(b)(iii) to submit amendments to OSs and ARDs during the primary offering disclosure period[23] within one business day of receipt. In addition, underwriters would be required under revised Rule G-32(b)(iv) to submit prompt notice of any cancellation of an offering for which a submission of a document or information relating to the offering has previously been made to EMMA. If only a portion of an offering is cancelled, the underwriter’s submission in connection with the remaining portion of the offering would be required to be corrected by no later than the closing date to reflect the partial cancellation of the offering. If the entire offering is cancelled, notice of such cancellation would be deemed under paragraph (vi)(C) of Rule G-32 to have been submitted to EMMA promptly under paragraph (vi)(C) of Rule G-32 if submitted by no later than five business days after the underwriter cancels its trades with customers and other dealers.[24]
Transitional Submissions. Revised Rule G-32(e) establishes transitional provisions for submitting OSs during the five business days preceding the effective date of revised Rule G-32 and the primary market disclosure service. In general, any submission to the MSRB of an OS, ARD or amendment thereto under current Rule G-36 becoming due during the five business days prior to the effective date may be held by the underwriter for submission to EMMA on the first two business days on which the primary market disclosure service is effective. The MSRB would reserve the right to require an underwriter that has sent a document in paper form to the MSRB during the five business days prior to the effective date that is received by the MSRB after the effective date to resubmit such document in a designated electronic format through EMMA and the MSRB would require such resubmission through EMMA for any documents sent in paper form to the MSRB on or after the effective date.
Designated Electronic Format of Submitted Documents
Revised Rule G-32(b)(vi)(A) would prescribe the format in which documents would be required to be submitted to EMMA as a designated electronic format. Revised Rule G-32(d)(iii) would establish PDF files as the initial sole designated electronic format, with files configured to permit documents to be saved, viewed, printed and retransmitted by electronic means. If the submitted file is a reproduction of the original document, the submitted file must maintain the graphical and textual integrity of the original document. In addition, starting on January 1, 2010, such PDF files must be word-searchable (that is, allowing the user to search for specific terms used within the document through a search or find function available in most standard software packages), provided that diagrams, images and other non-textual elements would not be required to be word-searchable due to current technical hurdles to uniformly producing such elements in word-searchable form without incurring undue costs. Although, the MSRB would strongly encourage submitters to immediately begin making submissions as word-searchable PDF files (preferably as native PDF or PDF normal files, which generally produce smaller and more easily downloadable files as compared to scanned PDF files), implementation of this requirement would be deferred as noted above to provide issuers, obligated persons and their agents with sufficient time to adapt their processes and systems to provide for the routine creation or conversion of continuing disclosure documents as word-searchable PDF files.
The MSRB may in the future designate additional computerized formats as acceptable electronic formats for submission or preparation of documents under Revised Rule G-32 by means of a filing with the Commission. The MSRB supports the SEC’s Interactive Data and XBRL Initiatives for registered offerings and would consider designating XBRL as a designated electronic format for purposes of submissions to the EMMA primary market disclosure service at such time in the future as appropriate taxonomies for the municipal marketplace have been developed and as issuers begin the process of producing primary market disclosure documents using XBRL.
Submission of Documents as Multiple Files
Underwriters would be permitted to submit OSs and other required documents in the form of one or more electronic files. EMMA permits such submissions as multiple files as an accommodation for those situations where technical or other difficulties preclude or substantially impair the production and submission of the OS or other document as a single electronic file. Barring such circumstances, underwriters, issuers and investors would be best served if all submissions of documents are made as a single electronic file rather than multiple files. In particular, underwriters should consider the risk of potentially disseminating to the public incomplete disclosure should they, inadvertently or otherwise, fail to submit on a simultaneous or immediately sequential basis all of the required files of a multi-file OS submission.[25]
Form G-32
General . New Form G-32, which would replace current Form G-36(OS) and Form G-36(ARD), would include all information required to be submitted by underwriters under revised Rule G-32(b)(i)(A) and (b)(vi).[26] Form G-32 would consist of a collection of data elements provided to EMMA in connection with a primary offering of municipal securities. When making primary market submissions using the web-based interface, related indexing information would be entered into an on-line form or uploaded through an extensible markup language (XML) file, and documents would be uploaded in a designated electronic format. Computer-to-computer submissions would utilize XML files for data and PDF files for documents. The proposal would permit Form G-32 to be completed in a single session or in multiple sessions, with the initiation of the Form G-32 submission process generally occurring earlier than the current Form G-36 submission process.[27] Appropriate procedures and schemas for on-line and computer-to-computer submissions would be published on the EMMA portal and MSRB website and would be described in detail in the EMMA Dataport Manual.
As proposed, underwriters would be required to make a submission through Form G-32 in connection with each OS (or POS, where no OS exists), as well as in connection with each offering for which no OS or POS is to be made available through EMMA.[28] Information relating to ARDs executed in connection with a primary offering also would be submitted under the proposal through the Form G-32 submission process. Submissions during the primary offering disclosure period of amendments to previously submitted documents would be made through the same Form G-32 submission initiated in connection with the original documents.
Designated Agents . Underwriters would be permitted under revised Rule G-32(b)(vi)(C) to designate agents to make submissions on their behalf through the MSRB’s user account management and authentication system known as MSRB Gateway.[29] All submissions made on behalf of an underwriter by a designated agent would be the responsibility of the designating underwriter, and any failure by the designated agent to provide documents or information in a complete, timely and conforming manner would be deemed to be a failure by the designating underwriter.
The MSRB notes that Rule G-34(a)(ii)(C)(1) requires underwriters for most new issues of municipal securities to provide certain information regarding the new issue to an automated electronic new issue information dissemination system (“NIIDS”) within two hours of the time of formal award of the issue. The MSRB may consider in the future permitting an underwriter to designate to the MSRB that information it has submitted to NIIDS under revised Rule G-34 should also be used for purposes of completing new Form G-32, although it would not be anticipated that NIIDS would provide documents to EMMA and such submissions would be the responsibility of the underwriter or another designated agent. The MSRB would publish a notice advising if such functionality becomes available.
Standard of Care With Respect to Information Submitted by Underwriters . Much of the information to be provided by underwriters and their agents on new Form G-32 normally would be made available to the public through the EMMA portal on a real-time basis under the rule change proposal. The underwriter must exercise due care with respect to the accuracy of the items of information provided on Form G-32, although it is understood that much of this information would be subject to change until an issue has reached closing. Until closing, the underwriter would be expected to update promptly any information previously provided by it on Form G-32 which may have changed or to correct promptly any inaccuracies in such information, and would be responsible for ensuring that such information provided by it is accurate as of the closing date. Except with regard to the submission of ARDs or amendments to the OS as described below, the underwriter would not be obligated to update information provided by it on Form G-32 due to changes in such information occurring after the closing date, although the underwriter would remain responsible for correcting any information it provided that was erroneous as of the later of the time the information was submitted or the closing date. Information would be deemed to be provided by the underwriter if it has been supplied by the underwriter or a designated agent of the underwriter directly to EMMA or it has been pre-populated by the EMMA web-based interface to the extent that such information is editable on the EMMA web-based interface by the underwriter or its designated agent.[30]
As noted above, the MSRB expects that the requirement that all information to be supplied through Form G-32 be accurately and completely submitted by the applicable deadlines, and particularly by the closing date, will be strictly enforced to promote the purposes of the revised Rule G-32 and the protection of investors.
Use of Form G-32 in Connection With Offerings and Issues . For purposes of submitting Form G-32 under the proposal, an offering would consist of all securities described in the OS, and the offering could consist of one or more issues.[31] An issue generally would consist of all securities in an offering having the same issuer, the same issue description (including same series designation or named obligor, if applicable) and the same dated date. In cases where no OS is produced, each issue not described in an OS would be considered a separate offering for purposes of Form G-32.
Basic Submission Process for Form G-32 . The basic information to be provided through Form G-32 and the timing of the submission of such information for a typical submission to EMMA under revised Rule G-32 would be as set forth below. An underwriter would be responsible for providing all information described below to the extent so required for all maturities of any issue underwritten in whole or in part by such underwriter.[32] In the case in which an underwriter does not underwrite any portion of one or more issues in an offering, the underwriter would be responsible for providing only the nine-digit CUSIP number for the latest maturity of any such non-underwritten issue.[33]
Information on date of first execution of transaction . The underwriter would be required under revised Rule G-32(b)(i)(A) and (b)(vi)(C)(1)(a) to initiate the Form G-32 submission process by no later than the date of first execution of transactions in securities sold in the offering, at which time the underwriter would provide the following items of information with respect to each issue it underwrites:
● Issue-specific information consisting of the full issuer name and issue description, as such items are expected to appear in the OS,[34] and the expected closing date of the issue;[35] and
● Security-specific information consisting of the nine-digit CUSIP number, the principal amount at maturity of each security, and the initial offering price or yield for each security in the issue (including initial offering price or yield of any securities otherwise considered not-reoffered).[36]
Document and information at time of submission of official statement . The OS would be required under revised Rule G-32(b)(i)(B)(1) to be submitted to EMMA, along with related Form G-32 information, within one business day after receipt from the issuer or its designated agent, but by no later than the closing date. The underwriter would be required to submit, along with or prior to the submission of the OS, the following items with respect to each issue:
● OS document as a PDF file, as well as information on the date the OS was received from the issuer and confirmation of the full issuer name and issue description, as such items actually appear in the OS;[37] and
● Underwriting spread or agency fee paid by the issuer to the underwriter for a negotiated offering, if not disclosed within the OS.[38]
In the typical offering, the submission of the document to EMMA within one business day of receipt from the issuer would be preceded by the required initial submission of information on or prior to the date of first execution of a transaction in the securities. However, in those cases where the OS submission deadline precedes the date of first execution (for example, if the underwriter has received the OS in advance of the date of first execution), the underwriter would be required to submit, along with or prior to the submission of the OS and the items of information identified above, the following additional items with respect to each issue (which otherwise would be required to be submitted by no later than the date of first execution):[39]
● Issue-specific information consisting of the full issuer name and issue description, as such items appear in the OS, and the expected closing date of the issue;[40] and
● Security-specific information consisting of the nine-digit CUSIP number for each security in the issue, if then available.[41]
Summary of Basic Information Requirements. The items of information to be submitted and the timing of such submissions through Form G-32 under revised Rule G-32 for submissions not requiring additional information (as described below) is summarized in the following table:
|
Item |
Timing |
|
full issuer name/issue description |
earlier of (i) date of first execution and |
|
9-digit CUSIP number |
earlier of (i) date of first execution and |
|
principal amount |
date of first execution |
|
initial offering price/yield |
date of first execution |
|
expected closing date |
date of first execution |
|
OS document |
date of OS submission |
|
date OS received |
date of OS submission |
|
underwriting spread/agency fee |
date of OS submission |
Additional Items in Connection With Special Cases. No additional information would be required beyond the information described above unless (i) the OS is not available for submission by closing, (ii) the offering consists solely of one or more limited offerings for which the OS will not be made available by the underwriter through EMMA, (iii) any issue in the offering advance refunds outstanding securities, (iv) the underwriter underwrote only a portion of an issue, (v) the offering qualifies for an exemption from the MSRB’s underwriting assessment under Rule A-13(a) or a reduced underwriting assessment rate under Rule A-13(b), (vi) the OS is amended, or (vii) corrections are necessary to information previously provided. Additional information that the underwriter would be required to submit through Form G-32 and the timing of the submission of such information for these special cases are as set forth below:
Information and/or document by closing for special cases. Additional information, as applicable, would be required to be submitted by no later than closing as follows:
● If an OS will be produced but is not yet available, the POS document as a PDF file, if available, or a notice that no POS has been prepared, as required under revised Rule G-32(b)(i)(B)(2)(c) and (b)(i)(D)(1), and notice that the OS document will be submitted when it becomes available, as required under revised Rule G-32(b)(i)(B)(2)(a);
● If an OS will not be produced, the POS document as a PDF file, if available, or a notice that no POS has been prepared, as required under revised Rule G-32(b)(i)(C)(2) and (b)(i)(D)(1), notice that no official statement has been prepared, as required under revised Rule G-32(b)(i)(C)(1), and an indication of which exception under Rule 15c2-12 applies with regard to the OS;
● If an underwriter elects to withhold an OS from EMMA for a limited offering under Exchange Act Rule 15c2-12(d)(1)(i), notice that the offering is a limited offering and that the OS will not be made available through EMMA, as required under revised Rule G-32(b)(i)(E)(2)(a), and contact information for requests for copies of the OS, as required under revised Rule G-32(b)(i)(E)(2)(b);
● If an issue advance refunds outstanding securities, notice to that effect; or
● If an underwriter believes that it is entitled to an exemption from the underwriting assessment or a reduced assessment rate, information as to the basis for such modified assessment.[42]
Document and information at time of submission of advance refunding document. If an issue advance refunds outstanding securities, the ARD would be required under revised Rule G-32(b)(ii) to be submitted to EMMA, along with related Form G-32 information, by no later than five business days after the closing on the refunding issue. The underwriter would be required to submit, along with or prior to the submission of the ARD, the following items:
● ARD as a PDF file, as well as information on the date the ARD was received from the issuer;
● Information identifying the refunding issues relating to the ARD; and
● Security-specific information for the refunded securities, consisting of the original nine-digit CUSIP number for each security refunded and, if any new CUSIP numbers are assigned in connection with any refunded or unrefunded portions of the security, the maturity date of such security and any such newly issued CUSIP numbers.[43]
Document and information at time of submission of amendment to official statement or preliminary official statement. Amendments to the OS or POS occurring during the primary offering disclosure period would be required under revised Rule G-32(b)(iii) to be submitted by the underwriter to EMMA within one business day of receipt from the issuer.[44] The underwriter would be required to submit, along with or prior to the submission of the amendment to the official statement, the following items:
● The amendment document as a PDF file, as well as information on the date the amendment was received from the issuer;[45] and
● Information on whether the submitted document supplements the original OS or POS and should be displayed by EMMA along with the original, or the submitted document is the complete disclosure document and should replace the original OS or POS as the document to be displayed by EMMA.[46]
Disclosures to Customers
Subsection (a)(i) of revised Rule G-32 would retain the basic OS dissemination requirements for dealers selling offered municipal securities[47] to customers as set forth in current Rule G-32. However, under subsection (a)(ii), dealers selling offered municipal securities, other than municipal fund securities, would be deemed to have satisfied this basic requirement for delivering OSs to customers by trade settlement since such OSs would be publicly available for free through the EMMA portal. In the case of a dealer that is the underwriter for the primary offering, such satisfaction would be conditioned on the underwriter having submitted the OS to EMMA. Dealers selling municipal fund securities would remain subject to the existing OS delivery requirement.
Under subsection (a)(iii) of revised Rule G-32, a dealer selling offered municipal securities with respect to which the OS delivery obligation is deemed satisfied as described above would be required to provide or send to the customer, by no later than trade settlement, either a copy of the OS or a written notice[48] advising how to obtain the OS from the EMMA portal and that a copy of the OS would be provided upon request.[49] Dealers may include in such notice additional information about obtaining the OS from a qualified portal.[50] Dealers may, but are not required to, provide such notice on or with the trade confirmation. Under Rule G-15(a)(i), confirmations are required to be given or sent to customers at or prior to trade settlement. If the customer requests a copy of the OS, the dealer would be required to send it within one business day of the request by first class mail or by such other equally prompt means. Dealers would be required to honor any customer’s explicit standing request for copies of OSs for all of his or her transactions with the dealer.
The MSRB would view the obligation to provide the first portion of the customer notice regarding the availability of the OS as having been presumptively fulfilled if the notice provides the uniform resource locator (URL) for the specific EMMA portal page from which the OS may be viewed and downloaded[51] or the 9-digit CUSIP number for the security and the URL for the EMMA portal search page through which a search based on such CUSIP number may be undertaken.
Revised Rule G-32(a)(iv) would not substantially change the delivery obligation with respect to sales of municipal fund securities from those that exist under current Rule G-32(a).[52] The selling dealer would be required to deliver the OS (e.g., program disclosure document, information statement, etc.) to the customer by trade settlement, provided that the dealer could satisfy this delivery obligation for its repeat customers (i.e., customers participating in periodic municipal fund security plans or non-periodic municipal fund security programs) by promptly sending any updated disclosure material to the customer as it becomes available, as set forth in paragraph (a)(iv)(A).[53] In addition, the dealer would continue to be required under revised paragraph (a)(iv)(B) to disclose any distribution-related fee received as agent for the issuer.[54]
Recordkeeping
Subsections (a)(xiii) and (a)(xv) of Rule G-8 currently require that records be maintained in connection with deliveries of OSs to customers and submissions of OSs, ARDs and Forms G-36(OS) and (ARD) to the MSRB. The rule change proposal would modify certain of these requirements to reflect the changes to Rule G-32 and consolidate the requirements of revised Rule G-32 into subsection (a)(xiii). Subsection (b)(x) of Rule G-9 relating to preservation of such records would also be modified to conform to the changes to Rule G-8. In general, underwriters would be required to retain electronic copies of documents and XML data files they submit to EMMA, and EMMA would provide underwriters with the ability to save for their records copies of data entered into EMMA’s web-based electronic submission interface.[55]
* * * * *
Questions on the proposed rule change may be directed to Ernesto A. Lanza, General Counsel, Peg Henry, Associate General Counsel, or Leslie Carey, Associate General Counsel, at (703) 797-6600. Written comments on the proposed rule change should be submitted to the SEC.
March 23, 2009
* * * * *
TEXT OF PROPOSED RULE CHANGE[56]
PRIMARY MARKET DISCLOSURE PROPOSAL
MUNICIPAL SECURITIES RULEMAKING BOARD
ELECTRONIC MUNICIPAL MARKET ACCESS SYSTEM –
EMMA®The Electronic Municipal Market Access system (“EMMA”) is a facility of the Municipal Securities Rulemaking Board (“MSRB”) for receiving electronic submissions of municipal securities disclosure and other key documents and related information and for making such documents and information available to the public, at no charge on an Internet website (the “EMMA portal”) or by paid subscription feed. The specific documents and information processed through EMMA are established through services filed with the Securities and Exchange Commission.
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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”), 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, 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. All documents submitted to the EMMA primary market disclosure service must be in portable document format (PDF), configured to permit documents to be saved, viewed, printed and retransmitted by electronic means. If the submitted file is a reproduction of the original document, the submitted file must maintain the graphical and textual integrity of the original document. For any document submitted to the EMMA primary market disclosure service on or after January 1, 2010, such PDF document shall be word-searchable (without regard to diagrams, images and other non-textual elements).
Method of Submission. Documents and related indexing information may be submitted to the EMMA primary market disclosure service through a secure, password-protected, web-based electronic submitter interface or through a secure, authenticated computer-to-computer data connection with EMMA, at the election of the submitter. When making submissions using the web-based interface, related indexing information is entered into an on-line form or uploaded through an extensible markup language (XML) file, and documents are uploaded as PDF files. Computer-to-computer submissions utilize XML files for data and PDF files for documents. Appropriate schemas for on-line and computer-to-computer submissions are published on the EMMA portal and the MSRB website.
Timing of Submissions. Submitters shall make submissions to EMMA of 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 OSs, POSs and ARDs, including any amendments to the foregoing, submitted pursuant to MSRB rules or on a voluntary basis.
Information to be Submitted. Submitters shall provide to EMMA related indexing information with respect to each document submitted. Submitters submitting 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. 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 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; and
● designated agent, which may submit the documents otherwise permitted to be submitted by the underwriter which has designated such agent, as provided below.
Underwriters may designate agents to submit 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 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.
Public Availability of Primary Market Disclosure Documents
EMMA Portal. Submissions made through the EMMA primary market 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. Primary market disclosure documents 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 primary market disclosure service. Basic identifying information relating to specific municipal securities and/or specific issues will accompany the display of primary market disclosure documents. The EMMA portal permits users to request alerts, at no charge, if a document has become available on the EMMA portal or has been updated or amended and may also provide, at the election of the MSRB, summary data/statistical snapshots relating to documents and information submitted to the EMMA primary market disclosure service.
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 primary market disclosure subscription service.
Subscriptions. Users wishing to obtain the primary market disclosure documents provided through the EMMA primary market disclosure service through a data stream rather than through viewing on and downloading from the EMMA portal may purchase a subscription for such documents from the MSRB. The EMMA primary market disclosure subscription service makes available to subscribers all primary market disclosure documents and related indexing information posted on the EMMA portal simultaneously with the posting thereof on the EMMA portal. The EMMA primary market disclosure service subscription is provided through a web service accessible by subscribers using various commercially available products. Data is streamed, depending on the subscriber’s own software settings, using XML files with embedded, or accompanying transmissions of, PDF files of primary market disclosure documents. The MSRB makes the EMMA primary market disclosure subscription service available on an equal and non-discriminatory basis. In addition, the MSRB does not impose any limitations on or additional charges for redistribution of such documents by subscribers to their customers, clients or other end-users.
* * * * * * * * *
EMMA TRADE PRICE TRANSPARENCY PROPOSAL
EMMA TRADE PRICE TRANSPARENCY SERVICE
The EMMA trade price transparency service, established as a service of EMMA, makes historical and real-time transaction price transparency information (“price transparency information”) from the MSRB’s Real-Time Transaction Reporting System (“RTRS”), available to the public, at no charge, on the EMMA portal.
Public Availability of Price Transparency Information
EMMA Portal. Price transparency information is posted on the EMMA portal within 5 minutes of receipt, although during peak traffic periods posting may occur within 15 minutes of receipt. The price transparency information available through the EMMA trade price transparency service represents the RTRS price transparency information for transactions since the inception of RTRS on January 31, 2005. The information made available through the EMMA portal may be expanded to include price transparency information from MSRB price transparency systems that preceded RTRS.
The EMMA portal provides on-line search functions utilizing available indexing information to allow users of the EMMA portal to readily access price transparency information. Basic identifying information relating to specific municipal securities and/or specific issues accompanies the display of price transparency information. The MSRB may elect to expand its alert function on the EMMA portal to permit users to request periodic alerts, at no charge, regarding whether trades have been reported in a specific security.
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 information reported by dealers to RTRS that is displayed on the EMMA portal.
Subscriptions. Users wishing to obtain price transparency information provided through the EMMA trade price transparency service other than by viewing on and downloading from the EMMA portal may obtain one or more subscription products offered by RTRS through existing RTRS mechanisms.
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PRIMARY MARKET DISCLOSURE SUBSCRIPTION PROPOSAL
EMMA SUBSCRIPTION SERVICES
EMMA Primary Market Disclosure Subscription Service
The real-time data stream subscription to the EMMA primary market disclosure service through the EMMA subscription web service will be available for an annual fee of $20,000. The EMMA primary market disclosure subscription service makes available to subscribers all primary market disclosure documents, including official statements, preliminary official statements, advance refunding documents, and any amendments thereto, together with related indexing information provided by submitters through the EMMA submission process that is posted on the EMMA portal. Such documents and information will be made available to subscribers simultaneously with the posting thereof on the EMMA portal. Underwriters and their agents submitting information and documents to EMMA may provide or modify such items for a particular submission in one or more sessions (“submission events”), and any such items provided or modified will be made available to subscribers upon posting to the EMMA portal.
Data elements with respect to the EMMA primary market disclosure service to be provided through the real-time data stream shall be set forth in the EMMA Primary Market Subscriber Manual posted on the EMMA portal. Each submission event will result in an XML data packet to be included in the subscription feed. Each submission event packet will include data organized in a hierarchical data relationship generally consisting of (to the extent applicable for a particular submission event) XML containers for submission data, offering data, issue data, security data, document data, file data, and limited offering contact data. These XML containers will contain some, all or none of the following types of data elements, as appropriate for each submission event being disseminated:
Submission Data:
submission ID; submission type; submission status; submission transaction date/timeOffering Data:
offering type; underwriting spread (agency fee)/disclosure indicator; OS/POS availability status; related issue identifierIssue Data:
issue type; security type; issuer name; issue description; state; closing date; dated dates; remarketing/commercial paper identifiersSecurity Data:
CUSIP number; maturity date; security-specific dated date; maturity principal amount; interest rate; initial offering price/yield; security status; partial underwriting data; refunded security CUSIP numbersDocument Data:
document ID; document type; document description; document posting dates; document status indicators; refunding/refunded issue identifiersFile Data:
file ID; file posting dates; file status indicatorsLimited Offering Contact Data:
contact name; address; phone number; e-mail addressThe EMMA Primary Market Subscriber Manual provides a complete, up-to-date listing of all data elements made available through the EMMA primary market disclosure subscription service, including any additions, deletions or modifications to disseminated data elements, detailed definitions of each data element, specific data format information, and information about technical data elements to support transmission and data-integrity processes between EMMA and subscribers.
Subscriptions will be provided through computer-to-computer data streams utilizing XML files for data and files in a designated electronic format (consisting of PDF files) for documents. Appropriate schemas and other technical specifications for accessing the web services through which the real-time data stream will be provided are set forth in the EMMA Primary Market Subscriber Manual posted on the EMMA portal.
The MSRB makes the EMMA primary market disclosure subscription service available on an equal and non-discriminatory basis. In addition, the MSRB does not impose any limitations on or additional charges for redistribution of such documents by subscribers to their customers, clients or other end-users. Subscribers shall be subject to all of the terms of the subscription agreement to be entered into between the MSRB and each subscriber, including proprietary rights of third parties in information provided by such third parties that is made available through the subscription. The MSRB is not responsible for the content of the information or documents submitted by submitters that is distributed to subscribers of the EMMA primary market disclosure subscription service.
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SYSTEM TRANSITION PROPOSAL
OS/ARD Facility – Official Statement and Advance Refunding Document system (OS/ARD) of the MUNICIPAL SECURITIES INFORMATION LIBRARY® system or MSIL® system
OS and ARD Submissions to Electronic Municipal Market Access System
Notwithstanding any other provision of this facility, upon the Electronic Municipal Market Access system’s primary market disclosure service becoming operational, the OS/ARD system of the MSIL system shall no longer accept submissions of OSs and ARDs, and all OSs and ARDs submitted to the MSRB shall thereafter be submitted to the Electronic Municipal Market Access system.
Pilot Portal for Internet-Based Dissemination of OS/ARD Collection
In anticipation of the expected adoption by the Board of an “access equals delivery” standard for OS dissemination under Rule G-32, on disclosures in connection with new issues, the Board is implementing, on a pilot basis, an Internet-based public access portal (the “pilot portal”) to provide free access to OSs and ARDs submitted by underwriters to the MSIL system. Copies of all OSs and ARDs received by the Board through existing document submission processes on or after implementation of the pilot portal will be made publicly available at the pilot portal, promptly after acceptance and processing, as PDF files for viewing, printing and downloading, and will remain publicly available for the life of the municipal securities. It is anticipated that OSs and ARDs submitted to the Board prior to implementation of the pilot portal also will become available through the pilot portal or the permanent system described below as such back-log collection is migrated to the pilot portal or permanent system platform. OSs and ARDs will continue to be available under current terms through the daily and back-log collections produced by the MSIL system and at the public access facility throughout the service life of the pilot portal.
The pilot portal will provide on-line search functions utilizing the MSIL system computer index to ensure that users of the pilot portal are able to readily identify and access documents that relate to specific municipal securities. Basic identifying information available from the MSIL system relating to specific municipal securities and/or specific issues will accompany the display of OSs and ARDs to help ensure that users have successfully accessed the materials they are seeking. It is anticipated that additional information relating to such municipal securities and/or issues available from other Board systems (including but not limited to the Board’s Real-Time Transaction Reporting System) also may be made available to users in conjunction with OSs and ARDs accessed through the pilot portal.
The pilot portal is expected to operate for a limited period of time as the Board transitions to a permanent integrated system of electronic submissions of disclosure documents to the Board and real-time availability of such documents through a full-function public portal. The permanent system (which will be the subject of a subsequent filing by the Board) will become operational by no later than the effective date for the Board’s proposed “access equals delivery” standard for OS dissemination under Rule G-32. At that time, the functions of the pilot portal, along with other key features of the current MSIL system and additional functional improvements (including but not limited to establishment of real-time subscriptions to the complete document collections processed through the permanent system for re-dissemination or other use by subscribers), will be incorporated into the permanent system. The permanent system is expected to replace the MSIL system once this transition is completed and all critical functions and information stores (including but not limited to the complete OS/ARD back-log collection) of the MSIL system have been transferred to the new permanent system or are able to be handled by other Board processes.* * * * * * * * *
RULE CHANGE PROPOSAL
Rule G-32. Disclosures In Connection With Primary Offerings
New Issues(a) Customer Disclosure Requirements.
(i) No broker, dealer or municipal securities dealer shall sell, whether as principal or agent, any offered
new issuemunicipal securities to a customer unless such broker, dealer or municipal securities dealer delivers to the customer by no later than the settlement of the transaction: (i)a copy of the official statementin final form prepared by or on behalf of the issueror, if an official statementin final formis not being preparedby or on behalf of the issuer, a written notice to that effect together with a copy of anpreliminary official statementin preliminary form, if any; provided, however, that: (A).(ii) Notwithstanding the provisions of subsection (a)(i) of this rule, the delivery obligation thereunder shall be deemed satisfied if the following conditions are met:
(A) the offered municipal securities being sold are not municipal fund securities; and
(B) the underwriter has made the submissions to EMMA required under paragraph (b)(i)(A) or (b)(i)(B)(1) of this rule; provided that the condition in this paragraph (B) shall apply solely to sales to customers by brokers, dealers and municipal securities dealers acting as underwriters in respect of the offered municipal securities being sold.
(iii) Any broker, dealer or municipal securities dealer that sells any offered municipal securities to a customer with respect to which the delivery obligation under subsection (a)(i) of this rule is deemed satisfied pursuant to subsection (a)(ii) of this rule shall provide or send to the customer, by no later than the settlement of such transaction, either:
(A) a copy of the official statement (or, if an official statement is not being prepared, a written notice to that effect together with a copy of a preliminary official statement, if any), and, in connection with offered municipal securities sold by the issuer on a negotiated basis to the extent not included in the official statement, (1) the underwriting spread, if any, (2) the amount of any fee received by the broker, dealer or municipal securities dealer as agent for the issuer in the distribution of the securities; and (3) the initial offering price for each maturity in the offering, including maturities that are not reoffered; or
(B) a notice advising the customer:
(1) how to obtain the official statement from EMMA, which notice may be combined, at the election of the broker, dealer or municipal securities dealer, with notice of the availability of the official statement from a qualified portal; and
(2) that a copy of the official statement will be provided by the broker, dealer or municipal securities dealer upon request.
If a broker, dealer or municipal securities dealer provides notice to a customer pursuant to paragraph (a)(iii)(B), such broker, dealer or municipal securities dealer shall, upon request from the customer, send a copy of the official statement to the customer, together with the information required pursuant to paragraph (a)(iii)(A) in connection with a negotiated offering to the extent not included in the official statement, within one business day of request by first class mail or other equally prompt means.
(iv) In the case of a sale by a broker, dealer or municipal securities dealer of municipal fund securities to a customer, the following additional provisions shall apply:
(A) notwithstanding the provisions of subsection (a)(i) of this rule, if a customer who participates in a periodic municipal fund security plan or a non-periodic municipal fund security program has previously received a copy of the official statement
in final formin connection with the purchase of municipal fund securities under such plan or program, a broker, dealer or municipal securities dealer thatmaysells additional shares or units of the municipal fund securities under such plan or program to the customer will be deemed to have satisfied the delivery obligation under subsection (a)(i) of this rule if such broker, dealer or municipal securities dealer sends to the customer a copy of any new, supplemented, amended or “stickered” official statementin final form, by first class mail or other equally prompt means, promptly upon receipt thereof; provided that, if the broker, dealer or municipal securities dealer sends a supplement, amendment or sticker without including the remaining portions of the official statementin final form, such broker, dealer or municipal securities dealer includes a written statement describing which documents constitute the complete official statementin final formand stating that the complete official statementin final formis available upon request; andor(B) the broker, dealer or municipal securities dealer shall provide to the customer, by no later than the settlement of the transaction, written disclosure of the amount of any fee received by the broker, dealer or municipal securities dealer as agent for the issuer in the distribution of the municipal fund securities; provided, however, that if a broker, dealer or municipal securities dealer selling municipal fund securities provides periodic statements to the customer pursuant to Rule G-15(a)(viii) in lieu of individual transaction confirmations, this paragraph (iv)(B) shall be deemed to be satisfied if the broker, dealer or municipal securities dealer provides this information to the customer at least annually and provides information regarding any change in such fee on or prior to the sending of the next succeeding periodic statement to the customer.
if an official statement in final form is being prepared for new issue municipal securities issued in a primary offering that qualifies for the exemption set forth in paragraph (iii) of section (d)(1) of Securities Exchange Act Rule 15c2-12, a broker, dealer or municipal securities dealer may sell such new issue municipal securities to a customer if such broker, dealer or municipal securities dealer:
(1) delivers to the customer no later than the settlement of the transaction a copy of an official statement in preliminary form, if any, and written notice that the official statement in final form will be sent to the customer within one business day following receipt thereof by the broker, dealer or municipal securities dealer, and
(2) sends to the customer a copy of the official statement in final form, by first class mail or other equally prompt means, no later than the business day following receipt thereof by the broker, dealer or municipal securities dealer;(v) If
(C) iftwo or more customers share the same address, a broker, dealer or municipal securities dealer may satisfy the delivery obligations set forth in this section (a)(i)by complying with the requirements set forth in Rule 154 of the Securities Act of 1933, on delivery of prospectuses to investors at the same address. In addition, any such broker, dealer or municipal securities dealer shall comply with section (c) of Rule 154, on revocation of consent, to the extent that the provisions of paragraph (a)(iv)(A) relating toif subject to the delivery requirements in section (a)(i)(A) of this rule, concerninga customer who participates in a periodic municipal fund security plan or a non-periodic municipal fund security program apply.; and
(ii) in connection with a negotiated sale of new issue municipal securities, the following information concerning the underwriting arrangements:
(A) the underwriting spread, if any;
(B) the amount of any fee received by the broker, dealer or municipal securities dealer as agent for the issuer in the distribution of the securities; provided, however, that if a broker, dealer or municipal securities dealer selling municipal fund securities provides periodic statements to the customer pursuant to rule G-15(a)(viii) in lieu of individual transaction confirmations, this paragraph (ii)(B) shall be deemed to be satisfied if the broker, dealer or municipal securities dealer provides this information to the customer at least annually and provides information regarding any change in such fee on or prior to the sending of the next succeeding periodic statement to the customer; and
(C) except with respect to an issue of municipal fund securities, the initial offering price for each maturity in the issue that is offered or to be offered in whole or in part by the underwriters, including maturities that are not reoffered.(b) Underwriter Submissions to EMMA.
(i) Official Statements, Preliminary Official Statements, and Information Concerning Exempt Offerings.
(A) Form G-32 Information Submission. Except as otherwise provided in paragraph (F) of this subsection (i), the underwriter of a primary offering of municipal securities shall initiate the submission of Form G-32 information relating to the offering on or prior to the date of first execution, and shall, in a timely and accurate manner, complete the submission of all information required to be submitted by Form G-32 relating to such offering at such times and in such manner as required under subsection (b)(vi) of this rule and as set forth in the EMMA Dataport Manual.
(B) Official Statement Submission.
(1) Except as otherwise provided in paragraph (C), (E) or (F) of this subsection (i), the underwriter of a primary offering of municipal securities shall submit the official statement for such offering to EMMA within one business day after receipt of the official statement from the issuer or its designee, but by no later than the closing date.
(2) If for any reason the official statement for a primary offering of municipal securities subject to this paragraph (B) is not submitted by the underwriter to EMMA by the closing date, the underwriter shall submit to EMMA:
(a) by no later than the closing date, notice to the effect that the official statement has not been submitted by the underwriter to EMMA by the closing date and that the official statement will be submitted to EMMA when it becomes available;
(b) within one business day after receipt from the issuer or its designee, the official statement; and
(c) the preliminary official statement or notice required pursuant to paragraph (D) of this subsection (i);
provided, however, that compliance with the requirements of this subparagraph (2) will not cure the failure to comply with subparagraph (1) of this paragraph (B).
(C) No Official Statement Prepared for Offering Exempt from Exchange Act Rule 15c2-12. If an official statement will not be prepared for a primary offering of municipal securities exempt from Securities Exchange Act Rule 15c2-12, the underwriter shall submit to EMMA, by no later than the closing date:
(1) notice to the effect that no official statement will be prepared; and
(2) the preliminary official statement or notice required pursuant to paragraph (D) of this subsection (i).
(D) Preliminary Official Statement Submission. The underwriter of a primary offering of municipal securities to which subparagraph (B)(2) or paragraph (C) of this subsection (i) applies shall submit to EMMA, by no later than the closing date, either:
(1) the preliminary official statement for such offering; or
(2) if no preliminary official statement has been prepared for such offering, notice that no preliminary official statement has been prepared.
(E) Exemption for Certain Limited Offerings. The underwriter of a primary offering of municipal securities not subject to Securities Exchange Act Rule 15c2-12 by virtue of paragraph (d)(1)(i) thereof for which an official statement has been prepared shall not be required to submit the official statement or any preliminary official statement to EMMA if the underwriter:
(1) complies with the requirements of paragraph (A) of this subsection (i);
(2) submits to EMMA, by no later than the closing date:
(a) notice that such primary offering is not subject to Securities Exchange Act Rule 15c2-12 by virtue of paragraph (d)(1)(i) thereof and that an official statement has been prepared but is not being submitted to EMMA; and
(b) contact information, including mailing address, telephone number, e-mail address and name of an associated person of the underwriter from whom customers may request the official statement; and
(3) delivers the official statement to each customer purchasing the offered municipal securities from the underwriter or from any other broker, dealer or municipal securities dealer, upon request, by the later of one business day after request or the settlement of the customer’s transaction.
(F) Exemption for Certain Commercial Paper Offerings or Remarketings. The underwriter of a primary offering of municipal securities that consists of commercial paper not subject to Securities Exchange Act Rule 15c2-12 by virtue of paragraph (d)(1)(ii) thereof or of a remarketing of municipal securities not subject to Securities Exchange Act Rule 15c2-12 by virtue of paragraph (d)(1)(iii) thereof shall not be required to comply with the requirements of paragraph (A) of this subsection (i) or to submit the official statement or any preliminary official statement to EMMA if:
(1) no official statement is prepared for the offering; or
(2) the official statement used in connection with such offering:
(a) has previously been properly submitted to EMMA in connection with a prior primary offering; and
(b) has not been supplemented or amended subsequent to such prior submission.
(ii) Advance Refunding Documents. If a primary offering advance refunds outstanding municipal securities and an advance refunding document is prepared, each underwriter in such offering shall, by no later than five business days after the closing date, submit:
(A) the advance refunding document to EMMA; and
(B) all information required to be submitted by Form G-32 relating to the advance refunding document as required under subsection (b)(vi) of this rule and as set forth in the EMMA Dataport Manual.
(iii) Amendments to Official Statements, Preliminary Official Statements and Advance Refunding Documents. In the event the underwriter for a primary offering has previously submitted to EMMA an official statement, preliminary official statement or advance refunding document and such document is amended by the issuer during the primary offering disclosure period, the underwriter for such primary offering must, within one business day after receipt of the amendment from the issuer or an agent of the issuer, submit:
(A) the amendment to EMMA; and
(B) all information required to be submitted by Form G-32 relating to the amendment as required under subsection (b)(vi) of this rule and as set forth in the EMMA Dataport Manual.
(iv) Cancellation of All or Part of Primary Offering. In the event an underwriter provides to EMMA the documents and information referred to in subsection (i), (ii) or (iii) above, but the primary offering is later cancelled, the underwriter shall notify EMMA of this fact promptly through Form G-32. If only a portion of a primary offering is cancelled, the underwriter shall amend or supplement information submitted to EMMA to reflect such partial cancellation by no later than the closing date.
(v) Underwriting Syndicate. 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 this rule and comply with the recordkeeping requirements of Rule G-8(a)(xiii)(B).
(vi) Procedures for Submitting Documents and Form G-32 Information.
(A) All official statements, preliminary official statements, advance refunding documents and amendments thereto submitted to EMMA under this rule shall be in a designated electronic format.
(B) All submissions of information required under this rule shall be made by means of Form G-32 submitted electronically to EMMA in such format and manner, and including such items of information provided at such times, as specified herein, in Form G-32 and in the EMMA Dataport Manual.
(C) The underwriter in any primary offering of municipal securities for which a document or information is required to be submitted to EMMA under this section (b) shall submit such information in a timely and accurate manner as follows:
(1) Form G-32 information submissions pursuant to paragraph (b)(i)(A) hereof with respect to a primary offering shall be:
(a) initiated on or prior to the date of first execution with the submission of CUSIP numbers (except if such CUSIP numbers are not required under Rule G-34 and have not been assigned), initial offering prices or yields (including prices or yields for maturities designated as not reoffered), if applicable, and the expected closing date, together with such other items of information as set forth in Form G-32 and the EMMA Dataport Manual; and
(b) completed by no later than the closing date, except to the extent that the provisions of subsection (b)(i) otherwise require a submission after the closing date.
Specific items of information required by Form G-32 shall be submitted at such times and in such manners as set forth in the EMMA Dataport Manual.
(2) Form G-32 information submissions pursuant to paragraph (b)(ii)(B) hereof with respect to an advance refunding shall be completed by no later than five business days after the closing date with the submission of CUSIP numbers, if any, of the advance refunded municipal securities (including any CUSIP numbers newly assigned to some or all of the advance refunded municipal securities), together with such other items of information as set forth in Form G-32 and the EMMA Dataport Manual.
(3) Form G-32 information submissions pursuant to paragraph (b)(iii)(B) hereof with respect to an amendment to a previously submitted document shall be completed by no later than one business day after receipt of such amendment from the issuer or an agent of the issuer with the submission of such items of information as set forth in Form G-32 and the EMMA Dataport Manual.
(4) Form G-32 information submissions pursuant to subsection (b)(iv) hereof with respect to a cancellation of a primary offering shall be completed:
(a) in the case of a partial cancellation, by no later than the closing date for the remaining portion of such primary offering; and
(b) in the case of a cancellation of the entire primary offering, promptly after a final determination by the issuer that such offering is cancelled, provided that such information shall be deemed to have been submitted on a timely basis if submitted within five business days after cancellation by the underwriter of its transactions with customers or other brokers, dealers and municipal securities dealers in connection with such cancelled offering.
(D) Form G-32 and any related documents shall be submitted by the underwriter or by any submission agent designated by the underwriter pursuant to procedures set forth in the EMMA Dataport Manual. The failure of a submission agent designated by an underwriter to comply with any requirement of this rule shall be considered a failure by such underwriter to so comply.
(b) Inter-Dealer Disclosure Requirements. Every broker, dealer or municipal securities dealer shall send, upon request, the documents and information referred to in section (a) to any broker, dealer or municipal securities dealer to which it sells new issue municipal securities no later than the business day following the request or, if an official statement in final form is being prepared but has not been received from the issuer or its agent, no later than the business day following such receipt. Such items shall be sent by first class mail or other equally prompt means, unless the purchasing broker, dealer or municipal securities dealer arranges some other method of delivery and pays or agrees to pay for such delivery.
(c) Responsibility of Managing Underwriters, Sole Underwriters and Financial Advisors
(i) Managing Underwriters and Sole Underwriters. When an official statement in final form is prepared by or on behalf of an issuer, the managing underwriter or sole underwriter, upon request, shall:
(A) send to all brokers, dealers and municipal securities dealers that purchase the new issue municipal securities an official statement in final form and other information required by paragraph (a)(ii) of this rule and not less than one additional official statement in final form per $100,000 par value of the new issue purchased by the broker, dealer or municipal securities dealer and sold to customers. Such items shall be sent no later than the business day following the request or, if an official statement in final form is being prepared but has not been received from the issuer or its agent, no later than the business day following such receipt. Such items shall be sent by first class mail or other equally prompt means, unless the purchasing broker, dealer or municipal securities dealer arranges some other method of delivery and pays or agrees to pay for such delivery.
(B) provide all purchasing brokers, dealers and municipal securities dealers with instructions on how to order additional copies of the official statement in final form directly from the printer.
(C) provide promptly to all brokers, dealers and municipal securities dealers that purchase the new issue municipal securities a printable electronic version of the official statement in final form, but only if: (1) a printable electronic version has been prepared and the issuer does not object to distribution of such electronic version; and (2) the broker, dealer or municipal securities dealer requests to receive an electronic version and provides the managing underwriter or sole underwriter with an electronic mail address or other instructions acceptable to the managing underwriter or sole underwriter for electronic delivery of such version. With the consent of the purchasing broker, dealer or municipal securities dealer, sending of a printable electronic version of the official statement in final form to the purchasing broker, dealer or municipal securities dealer as provided in this subparagraph (C) shall fully satisfy the requirements of subparagraphs (A) and (B) of this paragraph (c)(i) with respect to the official statement in final form.
(c) Preparation of Official Statements By
(ii)Financial Advisors. A broker, dealer or municipal securities dealer that, acting as financial advisor, prepares an official statementin final formon behalf of an issuer,with respect to a primary offering of municipal securities shall make the official statementin final formavailable to the managing underwriter or sole underwriter in a designated electronic format promptly after the issuer approves its distribution.If a printable electronic version of the official statement in final form has been prepared and the issuer does not object to its distribution, such printable electronic version shall also be made available to the managing underwriter or sole underwriter promptly upon request and delivery to the financial advisor of an electronic mail address or other instructions acceptable to the financial advisor for electronic delivery of such version. With the consent of the managing underwriter or sole underwriter, such printable electronic version shall fully satisfy the requirement of this paragraph (c)(ii) with respect to the official statement in final form to be made available by the financial advisor.(d) Definitions. For purposes of this rule, the following terms have the following meanings:
(i) The term "advance refunding document" shall mean the refunding escrow trust agreement or its equivalent prepared by or on behalf of the issuer.
(ii) The term “closing date” shall mean the date of first delivery by the issuer to or through the underwriter of municipal securities sold in a primary offering.
(iii) The term “designated electronic format” shall mean portable document format, with files configured to permit documents to be saved, viewed, printed and retransmitted by electronic means. For files submitted to EMMA on or after January 1, 2010, documents in designated electronic format must be word-searchable (without regard to diagrams, images and other non-textual elements).
(iv) The term “EMMA” shall mean the Board’s Electronic Municipal Market Access system, or any other electronic municipal securities information access system designated by the Board for collecting and disseminating primary offering documents and information.
(v) The term “EMMA Dataport Manual” shall mean the document(s) designated as such published by the Board from time to time setting forth the processes and procedures with respect to submissions to be made to the primary market disclosure service of EMMA by underwriters under Rule G-32(b).
(vi) The term “offered
new issuemunicipal securities” shall mean municipal securities that are sold by a broker, dealer or municipal securities dealer during the securities’ primary offeringthe issue’s new issuedisclosure period, including but not limited to municipal securities reoffered in a remarketing that constitutes a primary offering and municipal securities sold in a primary offering but designated as not reoffered, but shall not include commercial paper.(vii)
(iii)The term “official statement” shall mean (A) for an offering subject to Securities Exchange Act Rule 15c2-12, a document or documents defined in Securities Exchange Act Rule 15c2-12(f)(3), or (B) for an offering not subject to Securities Exchange Act Rule 15c2-12, a document or documents prepared by or on behalf of the issueror its representatives settingthat is complete as of the date delivered to the underwriter and that sets forth, among other matters,information concerning the terms of the proposed offeringthe issuer and the proposed issueof securities. A notice of sale shall not be deemed to be an “official statement” for purposes of this rule.(viii)
(iv)The term “primary offering” shall mean an offering defined in Securities Exchange Act Rule 15c2-12(f)(7), including but not limited to any remarketing of municipal securities that constitutes a primary offering as such subsection (f)(7) may be interpreted from time to time by the Commission.(ix)
(ii)The term “primary offeringnew issuedisclosure period” shall mean, with respect to any primary offering, the period commencing with the first submission to an underwriter of an order for the purchase of offerednew issuemunicipal securities or the purchase of such securities from the issuer, whichever first occurs, and ending 25 days after the final delivery by the issuer or its agent of allthesecurities of the issue to or through the underwriting syndicate or sole underwriter.(x) The term “qualified portal” shall mean an Internet-based utility providing access by any purchaser or potential purchaser of offered municipal securities to the official statement for such offered municipal securities in a designated electronic format, and allowing such purchaser or potential purchaser to search for (using the nine-digit CUSIP number and other appropriate search parameters), view, print and save the official statement, at no charge, for a period beginning on the first business day after such official statement becomes available from EMMA and ending no earlier than 30 calendar days after the end of the primary offering disclosure period for such offered municipal securities; provided that any such utility shall not be a qualified portal unless notice to users that official statements are also available from EMMA and a hyperlink to EMMA are posted on the page on which searches on such utility for official statements may be conducted.
(xi) The term “date of first execution” shall mean the date on which the underwriter executes its first transactions with a customer or another broker, dealer or municipal securities dealer in any security offered in a primary offering; provided that, for offerings subject to Rule G-34(a)(ii)(C), “date of first execution” shall mean the date corresponding to the Time of First Execution as defined in Rule G-34(a)(ii)(C)(1)(b); further provided that, solely for purposes of this rule, the date of first execution shall be deemed to occur by no later than the closing date.
(xii) The term “underwriter” shall mean a broker, dealer or municipal securities dealer that is an underwriter as defined in Securities Exchange Act Rule 15c2-12(f)(8), including but not limited to a broker, dealer or municipal securities dealer that acts as remarketing agent for a remarketing of municipal securities that constitutes a primary offering.
(e) Transitional Provisions.
(i) Notwithstanding the provisions of former Rule G-36, an underwriter that would have been required under the provisions of former Rule G-36(b)(i) or (c)(i) to send to the Board, within the five business day period preceding the effective date of this rule, an official statement for a primary offering of municipal securities shall be deemed to have complied with former Rule G-36 if the underwriter:
(A) submits the official statement to EMMA in a designated electronic format, together with such items of information necessary for initiation of a Form G-32 information submission under subparagraph (vi)(C)(1)(a) of this rule, by the business day following the effective date of this rule; and
(B) completes the Form G-32 information submission as required under subparagraph (vi)(C)(1)(b) of this rule by the later of (1) the business day following the effective date of this rule or (2) the closing date, except to the extent that the provisions of subsection (b)(i) otherwise require a submission after the later of such two dates.
(ii) Notwithstanding the provisions of former Rule G-36, an underwriter that would have been required under the provisions of former Rule G-36(b)(ii) or (c)(ii) to send to the Board, within the five business day period preceding the effective date of this rule, an advance refunding document in connection with a primary offering of municipal securities that advance refunds an outstanding issue shall be deemed to have complied with former Rule G-36 if the underwriter submits the advance refunding document to EMMA in a designated electronic format, together with a completed Form G-32 information submission as required under subparagraph (vi)(C)(2) of this rule, by the later of (1) the business day following the effective date of this rule or (2) five business days after the closing date.
(iii) Notwithstanding the provisions of former Rule G-36, an underwriter that would have been required under the provisions of former Rule G-36(d) to send to the Board, within the five business day period preceding the effective date of this rule, an amendment to an official statement shall be deemed to have complied with former Rule G-36 if the underwriter submits the amendment to EMMA in a designated electronic format, together with a completed Form G-32 information submission as required under subparagraph (vi)(C)(3) of this rule, by the business day following the effective date of this rule.
(iv) The Board may require an underwriter that sends an official statement, advance refunding document or amendment thereto in paper form to the Board within the five business day period preceding the effective date of this rule that is received by the Board on or after the effective date of this rule to resubmit such document to EMMA in a designated electronic format within two business days after notice by the Board to the underwriter.
(v) The Board shall not be required to accept a submission of an official statement, advance refunding document or amendment thereto in paper form sent by an underwriter to the Board on or after the effective date of this rule.
(vi) For purposes of this section (e), the term “effective date of this rule” means [INSERT EFFECTIVE DATE] and the term “former Rule G-36” means Rule G-36 of the Board in effect on the day prior to the effective date of this rule.
* * * * * * * * *
Rule G-36. RESERVED
Delivery of Official Statements, Advance Refunding Documents and Forms G-36(OS) and G-36(ARD) to Board or Its Designee
(a) Definitions. For purposes of this rule, the following items have the following meanings:
(i) The term "final official statement" shall mean a document or documents defined in Securities Exchange Act rule 15c2-12(f)(3).]
(ii) The term "primary offering" shall mean an offering defined in Securities Exchange Act rule 15c2-12(f)(7).
(iii) The term "advance refunding documents" shall mean the refunding escrow trust agreement or its equivalent.
(iv) The term “new issue disclosure period” shall mean the period defined in Rule G-32(d)(ii).
(v) The term “underwriter” shall mean any person defined in Securities Exchange Act rule 15c2-12(f)(8).
(b) Delivery Requirements for Issues Subject to Securities Exchange Act Rule 15c2-12.
(i) Each broker, dealer or municipal securities dealer that acts as an underwriter in a primary offering of municipal securities subject to Securities Exchange Act rule 15c2-12 shall send to the Board or its designee, within one business day after receipt of the official statement from the issuer or its designated agent, but no later than 10 business days after any final agreement to purchase, offer, or sell the municipal securities, the final official statement and completed Form G-36(OS) prescribed by the Board, including the CUSIP number or numbers for the issue.
(ii) If the issue advance refunds an outstanding issue of municipal securities and an advance refunding document is prepared by or on behalf of the issuer, each broker, dealer or municipal securities dealer that acts as an underwriter in such issue also shall send to the Board or its designee, within five business days of delivery of the securities by the issuer to the broker, dealer, or municipal securities dealer, the advance refunding document and completed Form G-36(ARD) prescribed by the Board, including reassigned CUSIP number or numbers for the refunded issue, if any.
(c) Delivery Requirements for Issues not Subject to Securities Exchange Act Rule 15c2-12.
(i) Subject to paragraph (iii) below, each broker, dealer, or municipal securities dealer that acts as an underwriter in a primary offering of municipal securities not subject to Securities Exchange Act rule 15c2-12 for which an official statement in final form is prepared by or on behalf of the issuer shall send to the Board or its designee, by the later of one business day after delivery of the securities by the issuer to the broker, dealer, or municipal securities dealer or one business day after receipt of the official statement in final form from the issuer or its designated agent, the official statement in final form and completed Form G-36(OS) prescribed by the Board, including the CUSIP number or numbers for the issue.
(ii) if the issue advance refunds an outstanding issue of municipal securities and both an official statement in final form and an advance refunding document are prepared by or on behalf of the issuer, each broker, dealer, or municipal securities dealer that acts as an underwriter in such issue also shall send to the Board or its designee, within five business days of delivery of the securities by the issuer to the broker, dealer, or municipal securities dealer, the advance refunding document and completed Form G-36(ARD) prescribed by the Board, including reassigned CUSIP number or numbers for the refunded issue, if any.
(iii) This section shall not apply to a primary offering of municipal securities, regardless of the amount of the issue, if:
(A) the issue qualifies for an exemption set forth in paragraph (1)(i) of section (d) of Securities Exchange Act rule 15c2-12; or
(B) the issue consists of commercial paper that qualifies for an exemption set forth in paragraph (1)(ii) of section (d) of Securities Exchange Act rule 15c2-12, but only if the official statement in final form, if any, used in connection with such offering: (1) has previously been properly submitted to the Board or its designee in connection with a prior primary offering and (2) has not been supplemented, amended or "stickered" subsequent to such prior submission.
(d) Amended Official Statements. In the event a broker, dealer, or municipal securities dealer provides to the Board or its designee an official statement pursuant to section (b) or (c) above, and the official statement is amended or “stickered” by the issuer during the new issue disclosure period, such broker, dealer, or municipal securities dealer must send to the Board or its designee, within one business day after receipt of the amended official statement from the issuer or its designated agent, the amended official statement and an amended Form G-36(OS) as prescribed by the Board, including: the CUSIP number or numbers for the issue; the fact that the official statement previously had been sent to the Board or its designee and that the official statement has been amended.
(e) Cancellation of Issue. In the event a broker, dealer or municipal securities dealer provides to the Board or its designee the documents and written information referred to in sections (b) or (c), above, but the issue is later cancelled, the broker, dealer, or municipal securities dealer shall notify the Board or its designee of this fact promptly in writing.
(f) Underwriting Syndicate. In the event a syndicate or similar account has been formed for the underwriting of a primary offering of municipal securities, the managing underwriter shall take the actions required under the provisions of this rule and comply with the recordkeeping requirements of rule G-8(a)(xv).
(g) Method of Delivery. A broker, dealer or municipal securities dealer that submits documents or forms required to be sent to the Board or its designee pursuant to section (b), (c) or (d) above shall either:
(i) send two copies of each such document or form to the Board or its designee by certified or registered mail, or some other equally prompt means that provides a record of sending; or
(ii) submit an electronic version of each such document or form to the Board or its designee in such format and manner specified in the current Form G-36 Manual.
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Rule G-8. Books and Records to be Made by Brokers, Dealers and Municipal Securities Dealers
(a) Description of Books and Records Required to be Made. Except as otherwise specifically indicated in this rule, every broker, dealer and municipal securities dealer shall make and keep current the following books and records, to the extent applicable to the business of such broker, dealer or municipal securities dealer:
(i)-(xii) No change.
(xiii) Records Concerning Disclosures in Connection With Primary Offerings Pursuant to Rule G-32.
Deliveries of Official Statements.A record:
(A) of all documents, notices or written disclosures provided by the broker, dealer or municipal securities dealer
deliveriesto purchasers of offerednew issuemunicipal securities under Rule G-32(a);, of official statements or other disclosures concerning the underwriting arrangements required under rule G-32 and,(B) if applicable, evidencing compliance with subsection (a)(v) of Rule G-32; and
section (a)(i)(C) of rule G-32.(C) of all documents, notices and information required to be submitted to the Board by the broker, dealer or municipal securities dealer, in the capacity of underwriter in a primary offering of municipal securities (or, in the event a syndicate or similar account has been formed for the purpose of underwriting the issue, the managing underwriter), under Rule G-32(b).
(xiv) No change.
(xv) Records Concerning Delivery of Official Statements, Advance Refunding Documents and Forms G-36(OS) and G-36(ARD) to the Board or its Designee Pursuant to Former Rule G-36. In connection with each primary offering of municipal securities subject to former Rule G-36 for which a
Abroker, dealer or municipal securities dealerthatactedactsas an underwriterin a primary offering of municipal securities subject to rule G-36(or, in the event a syndicate or similar account has been formed for the purpose of underwriting the issue, the managing underwriter) and was required under the provisions of former Rule G-36 to send to the Board an official statement preceding the effective date of Rule G-32, on disclosures in connection with primary offerings, such underwriter shall maintain, to the extent not maintained pursuant to subsection (a)(xiii) of this Rule G-8:
(A) a record of the name, par amount and CUSIP number or numbers for all such primary offerings of municipal securities; the dates that the documents and written information referred to in former Rule
ruleG-36 werearereceived from the issuer and werearesent to the Board or its designee; the date of delivery of the issue to the underwriters; and, for issues subject to Securities Exchange Act Rule 15c2-12, the date of the final agreement to purchase, offer or sell the municipal securities; and(B) copies of the Forms G-36(OS) and G-36(ARD) and documents submitted to the Board or its designee along with the certified or registered mail receipt or other record of sending such forms and documents to the Board or its designee.
For purposes of this subsection (a)(xv), the term “former Rule G-36” shall have the meaning set forth in Rule G-32(e)(iv) and the term “effective date of Rule G-32” shall have the same meaning as the term “effective date of this rule” as set forth in Rule G-32(e)(iv).
(xvi)-(xxii) No change.
(b)-(g) No change.
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Rule G-9. Preservation of Records
(a) No change.
(b) Records to be Preserved for Three Years. Every broker, dealer and municipal securities dealer shall preserve the following records for a period of not less than three years:
(i)-(ix) No change.
(x) all records relating to Rule
of deliveries of ruleG-32disclosures and, if applicable, a record evidencing compliance with section (a)(i)(C) of rule G-32] required to be retained as described in rule G-8(a)(xiii);(xi)-(xvi) No change.
(c) - (f) No change.
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PROPOSED FORM G-32
(Items to be provided electronically pursuant to Rule G-32(b)(vi)(B))
I. Underwriter/Submitter Identification
A. Name of managing underwriter
B. MSRB number of managing underwriter
C. Name of submitter company, if different than managing underwriter
D. MSRB number of submitter company, if different than managing underwriter
E. Name of individual making submission
F. Contact information for individual making submission
II. Submission Information
A. Submission type (primary market disclosure or advance refunding submission)
B. Submission identifier, only for supplements, modifications or amendments of prior submission
III. Information for Offering
A. Offering type (debt or municipal fund security)
B. Underwriting spread/agency (placement) fee, for negotiated offerings if not included in official statement
C. Underwriting assessment exemption/discount indicator, if applicable
D. Notice of cancellation of offering, if applicable
III. Information for Each Issue in Offering Underwritten by Underwriter
A. Issue type (new issue, remarketing)
B. Security type (CUSIP-based issue, commercial paper with 6-digit CUSIP information, ineligible for CUSIP number assignment)
C. Full issuer name
D. Full issue description
E. State, only for issues ineligible for CUSIP number assignment and municipal fund securities
F. Issue dated date
G. Closing date
H. Original dated date, for remarketings with new dated date assigned
I. Original nine-digit CUSIP number of remarketed issue, only if new CUSIP numbers assigned to a remarketed issue
J. Six-digit CUSIP number, for commercial paper issues
III. Information for Each Security in Issue Underwritten by Underwriter
A. Nine-digit CUSIP number, except issues with no CUSIP numbers, issues of commercial paper, or issues of municipal fund securities
B. Maturity date
C. Interest rate
D. Maturity principal amount, except issues of commercial paper or issues of municipal fund securities
E. Initial offering price or yield, except issues of commercial paper or issues of municipal fund securities
F. Partial underwriting indicator, if less than full principal amount of security is underwritten by underwriter
G. Security dated date, only for securities ineligible for CUSIP number assignment and if different from issue dated date
IV. Information for Issue Not Underwritten by Underwriter (if any)
A. Nine-digit CUSIP number for latest maturity of issue, only if a different underwriter underwrote an entire issue that is part of the offering
V. Advance Refunding Information
A. Advance refunding indicator
B. Original nine-digit CUSIP numbers of refunded securities
C. Maturity date of refunded securities
D. Refunded issuer name, only if refunded issue has no CUSIP numbers
E. Refunded issuer’s state, only if refunded issue has no CUSIP numbers
F. Refunded issue description, only if refunded issue has no CUSIP numbers
G. Newly assigned nine-digit CUSIP numbers of refunded securities, if any
H. Newly assigned nine-digit CUSIP numbers of unrefunded balances, if any
V. Document Information
A. Document type (official statement, preliminary official statement, advance refunding document)
B. Date document received from issuer
C. Notice of OS unavailability under Rule G-32(b)(i)(B)(2)(A) or (b)(i)(C)(1), if applicable
D. Notice of no OS submission for limited offering under SEC Rule 15c2-12(d)(1)(i), if applicable
E. Contact information for obtaining limited offering OS, if applicable
F. Notice of POS unavailability under Rule G-32(b)(i)(D)(2), if applicable
[1] File No. SR-MSRB-2009-02. Comments on the proposed rule change should be submitted to the SEC and should reference this file number.
[2] See MSRB Notice 2006-19 (July 27, 2006); MSRB Notice 2007-5 (January 25, 2007); MSRB Notice 2007-33 (November 15, 2007); and MSRB Notice 2008-40 (September 24, 2008).
[3] EMMA was originally established, and began operation on March 31, 2008, as a complementary pilot facility of the MSRB’s existing Official Statement and Advance Refunding Document (OS/ARD) system of the MSIL system. See Securities Exchange Act Release No. 57577 (March 28, 2008), 73 FR 18022 (April 2, 2008) (File No. SR-MSRB-2007-06) (approving operation of the EMMA pilot to provide free public access to the MSIL system collection of official statements and advance refunding documents and to the MSRB’s Real-Time Transaction Reporting System historical and real-time transaction price data) (the “Pilot Filing”). The pilot EMMA facility would be replaced, and EMMA would become a permanent facility of the MSRB, by the establishment of the EMMA primary market disclosure service and EMMA trade price transparency service pursuant to the proposed rule change, together with such other EMMA services established by the MSRB from time to time. See Securities Exchange Act Release No. 59061 (December 5, 2008), 73 FR 75778 (December 12, 2008) (File No. SR-MSRB-2008-05) (approving the continuing disclosure service of EMMA with an effective date of July 1, 2009). See also Securities Exchange Act Release No.59212 (January 7, 2009), 74 FR 1741 (January 13, 2009) (File No. SR-MSRB-2008-07) (approving the establishment of the short-term obligation rate transparency service of EMMA). Although the MSIL system would no longer accept and process submissions by underwriters upon establishment of the EMMA primary market disclosure service as provided in the system transition proposal, it would continue to operate for a period of time primarily to serve certain internal MSRB functions.
[4] The pilot EMMA portal currently is accessible at emma.msrb.org.
[5] The MSRB understands that software currently is generally available for free that permits users to save, view and print PDF files, as well as to conduct word searches in word-searchable PDF documents. The MSRB would provide links for downloading such software on the EMMA portal.
[6] The timing and reliability of users receiving alerts issued by EMMA is subject to limitations inherent in any e-mail-based system and users should not rely exclusively on such alerts.
[7] In addition to being made available to the public for free through the EMMA portal on the Internet, transaction price information is made available through various subscription products offered by RTRS through existing RTRS mechanisms. See www.msrb.org/msrb1/TRSweb/rtrssubscription.asp. The EMMA trade price transparency service would be distinct from any such services or products provided directly by RTRS.
[8] For example, a user could receive an end-of-day e-mail alert on any day during which a particular security has been reported as having traded. Such alerts would not be available on a real-time basis and would not provide trade-by-trade alerts. The timing and reliability of users receiving alerts issued by EMMA is subject to limitations inherent in any e-mail-based system and users should not rely exclusively on such alerts.
[9] The proposed subscription price would cover a portion of the administrative, technical and operating costs of the EMMA primary market disclosure subscription service but would not cover all costs of such subscription service or of the EMMA primary market disclosure service. The MSRB has proposed establishing the subscription price at a fair and reasonable level consistent with the MSRB’s objective that subscriptions be made available on terms that promote the broad dissemination of documents and data throughout the marketplace.
[10] In establishing the primary market pilot, the MSRB had requested that the SEC approve the primary market pilot for a period of one year from the date it became operational, which was March 31, 2008. The MSRB has requested in a separate filing that the SEC approve the extension of the primary market pilot to the earlier of July 1, 2009 or the effective date of the permanent primary market disclosure service. See File No. SR-MSRB-2009-01.
[11] See Securities Act Release No. 8591 (July 19, 2005), 70 FR 44722 (August 3, 2005). The rule change proposal would incorporate (with modifications adapted to the specific characteristics of the municipal securities market) many of the key “access equals delivery” provisions in Securities Act Rule 172, on delivery of prospectus, Rule 173, on notice of registration, and Rule 174, on delivery of prospectus by dealers and exemptions under Section 4(3) of the Securities Act of 1933, as amended.
[12] The MSRB views it as critical that official statements be available to investors by no later than the new issue’s closing date since such date represents the first time at which executed trades may be settled.
[13] See Rule G-17 Interpretation – Interpretive Notice Regarding Rule G-17, on Disclosure of Material Facts, March 20, 2002, reprinted in MSRB Rule Book.
[14] See Securities Act Rule 159(b) adopted under Section 17(a)(2) of the Securities Act of 1933. Rule 159(b) provides that, for purposes of determining whether a statement includes or represents any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading at the time of sale (including, without limitation, a contract of sale), any information conveyed to the purchaser only after such time of sale (including such contract of sale) will not be taken into account.
[15] See, e.g., MSRB Notice 2006-07 (March 31, 2006); MSRB Discussion Paper on Disclosure in the Municipal Securities Market (December 21, 2000), published in MSRB Reports, Vol. 21, No. 1 (May 2001); and Official Statement Deliveries Under Rules G-32 and G-36 and Exchange Act Rule 15c2-12 (July 15, 1999), published in MSRB Reports, Vol. 19, No. 3 (Sept. 1999).
[16] In contrast, submissions are required under current Rule G-36 only for primary offerings for which an official statement is produced.
[17] “Closing date” would be defined in revised Rule G-32(d)(ix) as the date of first delivery of the securities to the underwriter. For bond or note offerings, this would generally correspond to the traditional concept of the bond closing date. In the case of continuous offerings, such as for municipal fund securities, the closing date would be considered to occur when the first securities are delivered.
[18] Current Rule G-36 does not require submission of the POS. If no POS exists, the underwriter would be required to provide notice of that fact to EMMA under revised Rule G-32(b)(i)(D).
[19] Neither such notice nor the POS is required to be submitted under current Rule G-36. If no POS exists, the underwriter would be required to provide notice of that fact to EMMA under revised Rule G-32(b)(i)(D).
[20] Limited offerings consist of primary offerings under Exchange Act Rule 15c2-12(d)(1)(i) in which the securities have authorized denominations of $100,000 or more and are sold to no more than 35 persons who the underwriter reasonably believes: (a) have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the prospective investment, and (b) are not purchasing for more than one account or with a view to distributing the securities.
[21] Under current Rule G-36, underwriters may withhold submission to the MSRB of the OS for a limited offering without precondition.
[22] Revised Rule G-32 provides for the same treatment of commercial paper OSs as under current Rule G-36 but extends that treatment to remarketings exempt from Exchange Act Rule 15c2-12, to the extent that no new OS is produced in connection with such remarketing.
[23] The term “new issue disclosure period” under current Rule G-32 is renamed as “primary offering disclosure period” under revised Rule G-32(d)(ix) to emphasize that the rule applies to municipal securities remarketed in a primary offering, not just to new issues of municipal securities.
[24] See revised Rule G-32(b)(vi)(C).
[25] Underwriters should note that they are required to submit to EMMA, along with a document, the date such document is received from the issuer. In the case of the OS, the MSRB would not consider the underwriter to have received the OS until it has received the complete document. Thus, if the issuer were to provide the OS to the underwriter in the form of multiple files, the underwriter should not consider the OS to have been received from the issuer until the final file of such document necessary to complete the OS has been received. In that case, the underwriter would report the date on which such final file was received as the date on which the OS (including each file thereof, regardless of any earlier receipt of some such files) was received for purposes of the required information submission.
[26] New Form G-32 is included at the end of this notice.
[27] Under current Rule G-36, Form G-36 is submitted simultaneously with the OS. The rule change proposal would no longer require that the submission of information and the dissemination of such information on EMMA be delayed until the related OS has become available.
[28] Where no official statement or preliminary official statement is being submitted to EMMA, the underwriter would be required to provide notice thereof to EMMA. Such information would be designed in part to provide through the EMMA portal notice to customers and others that no official statement or preliminary official statement will be available. The proposal would provide for limited exceptions for commercial paper roll-overs and remarketings exempt from Rule 15c2-12 where no new disclosure document is prepared.
[29] Current Rule G-36 does not permit submissions to the MSRB by agents on behalf of underwriters.
[30] The underwriter would be obligated to review and make any necessary corrections to such editable data. The underwriter would not be responsible for any items of information pre-populated by EMMA which are not editable by the underwriter or its designated agent. With respect to the CUSIP numbers assigned by the CUSIP Service Bureau and other information that is presented during the submission process on EMMA as non-editable information, the underwriter would not be obligated to make corrections to such information. However, the underwriter would be obligated to ensure that each security in a primary offering is correctly associated with the submission the underwriter is making. Thus, pursuant to instructions to be included in the EMMA Dataport Manual, the underwriter would be required to review the collection of security-specific information pre-populated by EMMA during the submission process to ensure that all such securities have properly been associated with the submission, and the underwriter would be obligated to add additional information (including but not limited to any relevant CUSIP numbers) not pre-populated by EMMA to the extent necessary to fully associate all applicable securities with the submission and to indicate that information for a security that has been pre-populated by EMMA should be removed because such security is not in fact associated with the submission.
[31] As used in this context, an offering generally would correspond to the definition of a primary offering under revised Rule G-32 and Exchange Act Rule 15c2-12. Multiple issues (including but not limited to separately designated series of an offering) on a single OS would be treated as part of the same offering for purposes of Form G-32 submissions even if issued by different issuers and/or underwritten by different underwriters. However, to the extent that a primary offering is offered through more than one OS (e.g., separate OSs for separate issues within a single primary offering), offering-level information to be provided through a Form G-32 submission would relate solely to the portion of the primary offering described in the OS that is the subject of the specific submission, and the remainder of the information related to such primary offering would be provided through a separate Form G-32 submission for the other OS.
[32] For example, if an underwriter only underwrites two maturities of an issue consisting of ten maturities, the underwriter would be responsible for reporting information regarding all ten maturities in the issue. See also footnote 31 supra.
[33] For example, if an offering consists of three issues, only two of which were underwritten in any part by a particular underwriter, such underwriter would be responsible for providing the full information required under Form G-32 for the two issues it underwrites but would only be responsible for providing the nine-digit CUSIP number for the latest maturity of the issue it does not underwrite. See also footnotes 31 and 32 supra.
[34] For an issue that is ineligible for CUSIP number assignment, the state of the issuer and dated date also would be provided. For an issue of municipal fund securities, the state of the issuer also would be provided. For an issue of commercial paper, the six-digit CUSIP number assigned to the issue also would be provided in connection with the initiation of the commercial paper program (but not in connection with subsequent roll-overs, unless such information has changed). For a remarketed issue, the original dated date of the issue when originally issued also would be provided if a new dated date has been assigned to the remarketed issue.
[35] If the closing date has not yet been firmly established on the date of first execution, the underwriter would provide a reasonable estimate of such closing date at that time and would be obligated to update such estimated closing date when such date is determined. Thus, if the actual closing date differs from the expected closing date supplied on the date of first execution, the underwriter would be responsible to provide the correct closing date by no later than the actual closing date. For an issue of municipal fund securities, the expected closing date would be the date on which the first deliveries of securities in the issue are expected to be made.
[36] The initial offering price could be expressed either in terms of dollar price or yield. For an issue that is ineligible for CUSIP number assignment, the nine-digit CUSIP number would be omitted but the maturity date and interest rate would be provided. For issues of municipal fund securities and commercial paper, no security-specific information would be required. If the underwriter did not underwrite any portion of an issue in the offering, the underwriter would only be required to provide the nine-digit CUSIP number for the latest maturity of such non-underwritten issue.
[37] For an issue of commercial paper, the OS would be submitted in connection with the initiation of the commercial paper program but, pursuant to revised Rule G-32(b)(i)(F), would not be required in connection with subsequent roll-overs, unless the OS has been modified. For a remarketed issue, the underwriter/remarketing agent would be required to indicate whether the submitted document is the complete disclosure document or supplements the original OS produced in connection with the initial offering of the remarketed issue. Pursuant to revised Rule G-32(b)(i)(F), no OS is required in connection with a remarketing if no such document or supplement was created. The underwriter would also be required to make any corrections to the full issuer name and issue description provided at the time of first execution to the extent necessary to reflect the information as it actually appears on the OS.
[38] Thus, if such information is provided in the official statement as is currently the custom, the underwriter would not be required to enter it into Form G-32.
[39] Other items normally required to be submitted by no later than the time of first execution would continue to be required by such deadline.
[40] For an issue of commercial paper, the six-digit CUSIP number assigned to the issue also would be provided unless such CUSIP number has not yet been assigned, in which case such number would be required to be submitted promptly after assignment but by no later than the time of first execution.
[41] If CUSIP numbers have not yet been assigned, then such numbers would be required to be submitted promptly after assignment but by no later than the date of first execution, unless the issue is ineligible for CUSIP number assignment or the issue consists of municipal fund securities or commercial paper.
[42] Such information would include an indication (i) that the underwriter underwrote less than the full principal amount of an issue and the amount underwritten by the underwriter, (ii) as to which category of underwriting assessment exemption under Rule A-13(a) would apply to the entire offering, or (iii) as to which category of reduced underwriting assessment under Rule A-13(b) would apply to the entire offering.
[43] New CUSIP numbers are required to be obtained with respect to securities advance refunded in part pursuant to Rule G-34(a)(i)(D). For a refunded security that does not have a nine-digit CUSIP number, the issuer name, state of issuer, issue description and maturity date would be required to be provided.
[44] Revisions made to the POS in order to convert such document into the final OS would not be considered an amendment to the POS requiring submission to EMMA. Instead, the underwriter would submit the final OS itself as required under Rule G-32.
[45] A single submission of the PDF file of the amendment would meet the document submission requirement with respect to the original OS.
[46] In general, an OS submitted for an issue in which a POS was previously submitted to EMMA would replace the POS as the “active” disclosure document on EMMA, although the POS would continue to be accessible through the archive for the particular issue. Issues of municipal fund securities remain continuously in the primary offering disclosure period for so long as securities continue to be sold in connection with such issue and therefore numerous amendments may occur over the course of many years. Such amendments may initially supplement the original OS until such time as the issuer produces an entirely new OS, which new OS would be treated as an amendment that replaces the original document and all preceding supplements. Thereafter, this new OS may itself be supplemented by one or more amendments and, after a period of time, the new OS and supplements may again be replaced by a new OS. This sequence generally would continue for so long as the issuer continues selling securities in such issue.
[47] The term “new issue municipal securities” under current Rule G-32 is renamed as “offered municipal securities” under revised Rule G-32(d)(vi) to emphasize that the rule applies to municipal securities remarketed in a primary offering, not just to new issues of municipal securities.
[48] Dealers wishing to provide such notice in electronic form should consider guidance previously published by the MSRB concerning the use of electronic communications where standards for notice, access and evidence to show delivery are met. See Rule G-32 Interpretation – Notice Regarding Electronic Delivery and Receipt of Information by Brokers, Dealers and Municipal Securities Dealers, November 20, 1998, reprinted in MSRB Rule Book (the “1998 Electronic Delivery Notice”).
[49] Current Rule G-32 requires that the OS be delivered to customers by settlement, whereas revised Rule G-32 would require the OS or notice of availability of the OS to be provided or sent by settlement. The OS itself would continue to be available by settlement through EMMA but the timing of the notice is designed to permit such information to be included on or with the transaction confirmation.
[50] Revised Rule G-32(d)(x) would define qualified portal to mean an Internet-based utility providing access by any purchaser or potential purchaser of offered municipal securities to the OS for such offered municipal securities in a designated electronic format, and allowing such purchaser or potential purchaser to search for (using the nine-digit CUSIP number and other appropriate search parameters), view, print and save the OS, at no charge, for a period beginning on the first business day after such OS becomes available from EMMA and ending no earlier than 30 calendar days after the end of the primary offering disclosure period for such offered municipal securities; provided that any such utility shall not be a qualified portal unless notice to users that OSs are also available from EMMA is posted and a hyperlink to EMMA are posted on the page on which searches on such utility for OSs may be conducted.
[51] Currently, the page for such viewing and downloading on EMMA for a particular security to which a 9-digit CUSIP number has been assigned will have a URL of the format “http://emma.msrb.org/SecurityView/SecurityDetails.aspx?cusip=[ENTER 9-DIGIT CUSIP NUMBER]”. The MSRB will provide advance notice if the format of such URL is changed in the future.
[52] Although the “access equals delivery” model would not be available for municipal fund securities, underwriters (i.e., primary distributors) of such securities would be required to submit the OSs to EMMA electronically. Dealers wishing to fulfill their OS delivery requirements using electronic OSs should consider guidance previously published by the MSRB concerning the use of electronic communications where standards for notice, access and evidence to show delivery are met. See the 1998 Electronic Delivery Notice, supra footnote 48.
[53] This provision is substantially identical to the provisions of current Rule G-32(a)(i)(A).
[54] This is the same disclosure that currently is required in connection with sales of municipal fund securities under current Rule G-32(a)(ii)(B). With respect to municipal securities other than municipal fund securities sold on a negotiated basis, the underwriting spread, agency fee and initial offering prices required to be disclosed by dealers selling new issue municipal securities under current Rule G-32(a)(ii) would be disclosed on EMMA under revised Rule G-32 by means of the underwriter submitting such information through Form G-32.
[55] Underwriters would continue to maintain historical records under Rule G-36 pursuant to Rule G-8(a)(xv), as revised to reflect the rescission of Rule G-36, for so long as required under Rule G-9(b)(xi).
[56] All text of the primary market disclosure proposal, EMMA trade price transparency proposal, primary market disclosure subscription proposal and Form G-32 is new. For purposes of the system transition proposal and the rule change proposal, underlining indicates additions and strikethrough indicates deletions.
