MSRB Amends Pending Proposal on Additional Voluntary Submissions by Issuers and Obligated Persons to the MSRB'S Electronic Municipal Market Access System (EMMA)

MSRB AMENDS PENDING PROPOSAL ON ADDITIONAL VOLUNTARY SUBMISSIONS BY ISSUERS AND OBLIGATED PERSONS TO THE MSRB'S ELECTRONIC MUNICIPAL MARKET ACCESS SYSTEM (EMMA)

On December 18, 2009, the Municipal Securities Rulemaking Board (the “MSRB”) filed with the Securities and Exchange Commission (the “SEC”) an amendment (the “Amendment”) to its pending filing (the “Original Proposal”) relating to additional voluntary submissions by issuers and obligated persons to the MSRB’s Electronic Municipal Market Access system (“EMMA”).[1]  The Original Proposal, as modified by the Amendment (as modified, the “Revised Proposal”), permits issuers to submit preliminary official statements and other primary market documents to EMMA and permits issuers and obligated persons to submit information relating to the preparation and submission of audited financial statements and annual financial information and to post links to other disclosure information, as described below.

The MSRB has requested an effective date for the Revised Proposal of a date to be announced by the MSRB in a notice published on the MSRB Web site, which date shall be no later than nine months after SEC approval of the Revised Proposal and shall be announced no later than sixty (60) days prior to the effective date.

SUMMARY OF AMENDMENTS TO THE ORIGINAL PROPOSAL

The MSRB filed the Original Proposal with the SEC on July 14, 2009 and the SEC received comments from a number of commentators.[2]  Based on consideration of the comments and further discussion with SEC staff, the MSRB determined to file the Amendment to make the following key revisions to the Original Proposal.  A full description of the Revised Proposal is also provided below.[3]

voluntary annual filing undertaking – The Original Proposal would permit issuers and obligated persons to undertake that they will submit annual financial information as contemplated under Exchange Act Rule 15c2-12 to EMMA within 120 calendar days after the end of the fiscal year.  As described in greater detail below under “Description of Revised Proposal,” the Amendment would modify the Original Proposal to make available, to and including December 31, 2013, a transitional option for issuers and obligated persons to elect a 150 day undertaking as an alternative to the 120 day undertaking.  An issuer or obligated person could elect to make a voluntary annual filing undertaking based on either the original 120 day timeframe or the new transitional 150 day timeframe.  An issuer or obligated person could convert its initial transitional 150 day undertaking to a 120 day undertaking at any time.  On and after January 1, 2014, the transitional 150 day undertaking option would no longer be available for selection. A transitional 150 day undertaking would continue to be displayed on the EMMA web portal through June 30, 2014, and would automatically cease to be displayed on the EMMA web portal after such date, unless the issuer or obligated person has previously changed or rescinded such undertaking.

The MSRB acknowledges and appreciates the detailed explanations provided by commentators on the Original Proposal with respect to the existing difficulties and barriers to meeting the 120 day timeframe of the voluntary annual filing undertaking as proposed in the Original Proposal.  The MSRB understands that a significant portion of the issuer and obligated person community is likely unable to make such a 120 day undertaking at this time and that such inability does not necessarily reflect problems with the issuer’s or obligated person’s credit or the quality of disclosures that they make.  As the MSRB had previously noted, this voluntary undertaking was originally proposed after consultation between the MSRB and SEC staff.[4]  After a careful review of the comments and further discussions with SEC staff on the voluntary annual filing undertaking, the MSRB understands that the SEC staff strongly believes that, given its voluntary nature, the undertaking to provide annual financial information within the originally proposed 120 day timeframe remains the appropriate undertaking for display on the EMMA web portal.

In light of the commentators’ widespread concerns regarding the attainability of the 120 day timeframe, the MSRB determined to provide a transitional option for issuers and obligated persons to elect a 150 day undertaking as an alternative to the 120 day undertaking.  This alternative election would provide issuers and obligated persons seeking to make the voluntary annual filing undertaking, but that are not currently able to meet a 120 day timeframe, with a reasonable opportunity to overcome existing barriers in an orderly and cost-effective manner.  SEC staff has indicated that an alternative election of 150 days after fiscal year end would be an appropriate transitional alternative but that this option would be available only on a temporary basis to provide a pathway toward achieving the 120 day timeframe.  The MSRB has accordingly proposed to modify the Original Proposal to allow the election, through December 31, 2013, of a transitional 150 day alternative, which election would be displayed on the EMMA web portal through June 30, 2014 unless the issuer or obligated person changes or rescinds such undertaking.  On and after January 1, 2014, the transitional 150 day undertaking option would no longer be available for selection.

voluntary GAAP undertaking – The Original Proposal would permit issuers and obligated persons to undertake that they will prepare audited financial statements pursuant to generally accepted accounting principles (“GAAP”) as established by the Governmental Accounting Standards Board (“GASB”).  As described in greater detail below under “Description of Revised Proposal,” the Amendment would modify the Original Proposal to provide for an election to prepare financial statements pursuant to GAAP as established by either GASB or the Financial Accounting Standards Board (“FASB”), as applicable.

The MSRB agrees with commentators on the Original Proposal that observed that many obligated persons may be subject to FASB standards rather than GASB standards.  Therefore, the MSRB has proposed to make this modification to the Original Proposal to permit an issuer or obligated person to select either the GASB or FASB standard for GAAP when making the voluntary GAAP undertaking.

GFOA’s CAFR certificate – The Original Proposal would permit issuers to submit the Certificate of Achievement for Excellence in Financial Reporting awarded by the Government Finance Officers Association (“GFOA”) in connection with the preparation of its Comprehensive Annual Financial Report (“CAFR”).  The Amendment would modify the Original Proposal to eliminate this item.

The MSRB notes that CAFRs are already frequently submitted to EMMA by issuers as the issuer’s audited financial statements, and in most cases the issuers include the GFOA certificate in the submitted CAFR.  As part of the MSRB’s standard EMMA update and maintenance process, the MSRB expects to modify the input process for all continuing disclosure submissions to permit issuers and obligated persons to input specific document titles and/or subcategories, which would permit submitters of CAFRs to indicate that their submitted audited financial statements are CAFRs.  This document title/subcategory would be displayed on the EMMA web portal.

DESCRIPTION OF REVISED PROPOSAL

The Revised Proposal, consisting of the Original Proposal as modified by the Amendment, is summarized below:

Preliminary Official Statements and Other Primary Market Documents

The Revised Proposal would amend the EMMA primary market disclosure service to permit issuers and their designated agents to make voluntary submissions to the primary market disclosure service of preliminary official statements, related pre-sale documents and other primary market documents.[5]  Pre-sale documents other than a preliminary official statement (including but not limited to notices of sale or supplemental disclosures) would be accepted only if accompanied or preceded by the preliminary official statement.[6]  An issuer seeking to make submissions of primary market documents to the EMMA primary market disclosure service would use the same accounts established with respect to submissions of continuing disclosure documents to the EMMA continuing disclosure service, subject to additional verification procedures to affirmatively establish the account holder’s authority to act on behalf of the issuer in connection with such primary market disclosure submissions.

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

Additional Continuing Disclosure Submissions and Undertakings

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

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

Voluntary Annual Filing Undertaking .  The voluntary annual filing undertaking would consist of a voluntary undertaking by an issuer or obligated person, either at the time of a primary offering or at any time thereafter, that the issuer or obligated person, as appropriate, will submit to EMMA its annual financial information as contemplated under Exchange Act Rule 15c2-12 by no later than 120 calendar days after the end of such issuer’s or obligated person’s fiscal year (the “120 day undertaking”).[7]  Alternatively, to and including December 31, 2013, the EMMA continuing disclosure service will provide the option for an issuer or obligated person to indicate its undertaking to submit to EMMA its annual financial information by no later than 150 calendar days after the end of such issuer’s or obligated person’s fiscal year (the “transitional 150 day undertaking”).[8]  An issuer or obligated person that has made a transitional 150 day undertaking may convert such election to a 120 day undertaking at any time.  On and after January 1, 2014, the transitional 150 day undertaking option would no longer be available for selection.  An issuer or obligated person that believes it is able to meet the 120 day timeframe could make the 120 day undertaking immediately upon the effectiveness of the Revised Proposal.

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

The MSRB would not review or confirm the compliance of an issuer or obligated person with its voluntary annual filing undertaking.  The MSRB contemplates that  the making of a voluntary annual filing undertaking through EMMA by an issuer or obligated person would reflect the bona fide intent of the issuer or obligated person to perform as undertaken but would not, by itself, necessarily create a contractual obligation of such issuer or obligated person.  Unless the issuer or obligated person incorporates the 120 day undertaking or transitional 150 day undertaking as an obligation under its continuing disclosure agreement, the MSRB would view such issuer’s or obligated person’s performance pursuant to such undertaking as distinct from any performance obligations under its continuing disclosure agreement entered into consistent with Rule 15c2-12, although the MSRB believes that successful performance in accordance with a voluntary annual filing undertaking generally should also satisfy the obligation under a continuing disclosure agreement, depending on the specific terms of such agreement, if the agreement provides a longer timeframe for such submission.  By making a voluntary annual filing undertaking, an issuer that has a contractual obligation under its continuing disclosure agreement to provide its annual financial information within a longer timeframe would be indicating its intent to make a good faith effort to submit its annual financial information to EMMA more rapidly than it is otherwise obligated under the continuing disclosure agreement.

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

Voluntary GAAP Undertaking .  The voluntary GAAP undertaking would consist of a voluntary undertaking by an issuer or obligated person, either at the time of a primary offering or at any time thereafter, that the issuer or obligated person will prepare its audited financial statements in accordance with GAAP.  The MSRB contemplates that state or local governments or any other entities to which GASB standards are applicable would apply GAAP as established by GASB and that any other entities to which FASB standards are applicable would apply GAAP as established by FASB.

The voluntary GAAP undertaking would assist investors and other market participants in understanding how audited financial statements were prepared.  The fact that an issuer or obligated person has entered into a voluntary GAAP undertaking, and the standard under which audited financial statements are to be prepared, would be prominently disclosed on the EMMA web portal as a distinctive characteristic of the securities to which such undertaking applies.  An issuer or obligated person that has made a voluntary GAAP undertaking may later rescind such undertaking, which would be disclosed through EMMA.  The MSRB would not review whether an entity has selected the appropriate accounting standard and would not review or confirm the conformity of submitted audited financial statements to GAAP.  The MSRB contemplates that the making of a voluntary GAAP undertaking through EMMA by an issuer or obligated person would reflect the bona fide intent of the issuer or obligated person to perform as undertaken but would not, by itself, necessarily create a contractual obligation of such issuer or obligated person.

The EMMA web portal would not include information regarding the availability or existence of the voluntary GAAP undertaking in those cases where an issuer or obligated person does not make a voluntary GAAP undertaking. The MSRB would include an explanation of the nature of the voluntary GAAP undertaking on the EMMA web portal.  In particular, the MSRB would disclose that the voluntary GAAP undertaking is voluntary, is solely indicative of the accounting standards that the issuer or obligated person intends to use in preparing its financial statements and is not indicative of the accuracy or completeness of the financial statements or of the financial health of the issuer or obligated person.  Further, the MSRB would disclose that a decision by an issuer or obligated person not to make such an undertaking does not raise a negative inference in regard to the accuracy or completeness of its financial statements or of the financial health of the issuer or obligated person. The MSRB contemplates that the making of a voluntary GAAP undertaking through EMMA by an issuer or obligated person would reflect the bona fide intent of the issuer or obligated person to perform as undertaken but would not, by itself, necessarily create a contractual obligation of such issuer or obligated person.

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

Manner of Submission .  The voluntary GAAP undertaking and voluntary annual filing undertaking could be included within the continuing disclosure undertaking entered into consistent with Rule 15c2-12 or could be made in a separate agreement.  Issuers and obligated persons would indicate the existence of such a contractual voluntary undertaking, and could make such a voluntary undertaking without entering into a separate contractual arrangement, through a data input election on EMMA.  Voluntary undertakings made by means of an EMMA data input election could later be rescinded through the same EMMA interface process, and issuers and obligated persons rescinding voluntary undertakings made through separate contractual arrangements also could disclose such contractual rescissions through the EMMA interface process.  The URL of an issuer’s or obligated person’s investor relations or other repository of financial/operating information also could be entered through a text/data input field on EMMA.  No document would be required to be submitted to EMMA in connection with the voluntary GAAP undertaking, voluntary annual filing undertaking or the issuer/obligated person URL.  The input process for each of these additional items would include a free text input field permitting issuers and obligated persons to include limited additional information relating to each such item that they deem appropriate with respect thereto for public dissemination.  Further, the MSRB would include an explanation of the nature of the voluntary GAAP undertaking and voluntary annual filing undertaking on the EMMA web portal.

Effective Date of Revised Proposal

The MSRB has requested an effective date for the Revised Proposal of a date to be announced by the MSRB in a notice published on the MSRB Web site, which date shall be no later than nine months after SEC approval thereof and shall be announced no later than sixty (60) days prior to the effective date.

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Questions on the proposals may be directed to Leslie Carey, Associate General Counsel, or Justin Pica, Director, Uniform Practice Policy, at (703) 797-6600. Written comments on the proposals should be submitted to the SEC.

December 21, 2009

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TEXT OF AMENDMENT TO ORIGINAL PROPOSAL [9] 

EMMA PRIMARY MARKET DISCLOSURE SERVICE

No additional changes.

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EMMA CONTINUING DISCLOSURE SERVICE

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

Submissions to the EMMA Continuing Disclosure Service

Designated Electronic Format for Documents.  No change.

Method of Submission.  No change.

Timing of Submissions.  No change.

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

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

• annual financial information concerning issuers or other obligated persons as described in paragraph (b)(5)(i)(A) of Rule 15c2-12, or other financial information and operating data provided by issuers or other obligated persons as described in paragraph (d)(2)(ii)(A) of Rule 15c2-12;
• financial statements for issuers or other obligated persons if not included in the annual financial information as described in paragraph (b)(5)(i)(B) of Rule 15c2-12;
• notices of certain events, if material, as described in paragraph (b)(5)(i)(C) of Rule 15c2-12; and
• notices of failures to provide annual financial information on or before the date specified in the written undertaking as described in paragraph (b)(5)(i)(D) of Rule 15c2-12.
• Categories of other disclosure documents concerning municipal securities not specifically described in Rule 15c2-12 include:
• other financial or operating data disclosures, including but not limited to quarterly or monthly financial information; interim or additional financial information or operating data; budget documents; investment, debt or financial policies; consultant reports; information provided to rating agencies, credit or liquidity providers or other third parties; changes in accounting standards, fiscal year or timing of annual disclosure;undertaking of an issuer or obligated person to prepare audited financial statements pursuant to generally accepted accounting principles as established by the Governmental Accounting Standards Board (GASB) or the Financial Accounting Standards Board (FASB), as applicable; undertaking of an issuer or obligated person to submit annual financial information to EMMA within 120 calendar days after the end of the applicable fiscal year (provided that the EMMA continuing disclosure service will accept the submission, through December 31, 2013, of an alternative transitional undertaking of an issuer or obligated person to submit annual financial information to EMMA within 150 calendar days after the end of the applicable fiscal year); Certificate of Achievement for Excellence in Financial Reporting awarded by the Government Finance Officers Association; uniform resource locator (URL) of the issuer’s or obligated person’s Internet-based investor relations or other repository of financial/operating information; and other uncategorized financial or operating data; and
• other event-based disclosures, including but not limited to amendments to continuing disclosure undertakings; changes in obligated person; notices to investors pursuant to bond documents; communications from the Internal Revenue Service; tender offer or secondary market purchase notices; notices of bid for auction rate or other securities; capital or other financing plans; litigation or enforcement action documents; documents relating to mergers, consolidations, reorganizations, insolvency or bankruptcy; changes of trustee, tender agent, remarketing agent, or other on-going party; materials relating to derivative or other similar transactions; and other uncategorized event-based disclosures.

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

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

Information to be Submitted .  No change.

Submitters .  No change.

Public Availability of Continuing Disclosure Documents

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

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

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

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

Subscriptions.  No change.

 

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