MSRB NOTICE 2009-31 (JUNE 10, 2009)

MSRB RECEIVES APPROVAL TO ACCEPT FILINGS OF VOLUNTARY CONTINUING DISCLOSURES TO THE MSRB’S ELECTRONIC MUNICIPAL MARKET ACCESS (EMMA) SYSTEM

On June 3, 2009,[1] the Municipal Securities Rulemaking Board (the “MSRB”) received approval from the Securities and Exchange Commission (the “Commission”) for the Electronic Municipal Market Access system (“EMMA”) to accept, and to make publicly available on the EMMA web portal, voluntary electronic submissions by issuers, obligated persons and their agents, of continuing disclosure documents provided other than in connection with Exchange Act Rule 15c2-12.[2] EMMA’s continuing disclosure service will begin accepting such voluntary continuing disclosures effective July 1, 2009.[3]  Such voluntary continuing disclosures will be in addition to continuing disclosure documents described in Exchange Act Rule 15c2-12 and other disclosure documents specified in continuing disclosure undertakings, but not specifically described in Rule 15c2-12, that are currently accepted by the pilot phase of the EMMA continuing disclosure service.[4]

Thus, beginning on July 1, 2009, the continuing disclosure service of EMMA will accept submissions of, and make publicly available through the EMMA web portal, the following categories of continuing disclosure documents:

FINANCIAL/OPERATING DATA

Rule 15c2-12-Based Financial/Operating Data

  • annual financial information concerning obligated persons
  • audited financial statements for obligated persons if available and if not included in the annual financial information
  • notice of failure to provide annual financial information on or before the date specified in the continuing disclosure undertaking

Additional/Voluntary Financial/Operating Data

  • quarterly/monthly financial information
  • change in fiscal year/timing of annual disclosure
  • change in accounting standard
  • interim/additional financial information/operating data
  • budget
  • investment/debt/financial policy
  • information provided to rating agency, credit/liquidity provider or other third parties
  • consultant reports
  • other financial/operating data

EVENT-BASED DISCLOSURES

Rule 15c2-12 Material Event Notices

  • principal and interest payment delinquencies
  • non-payment related defaults
  • unscheduled draws on debt service reserves reflecting financial difficulties
  • unscheduled draws on credit enhancements reflecting financial difficulties
  • substitution of credit or liquidity providers or their failure to perform
  • adverse tax opinions or events affecting the tax-exempt status of the security
  • modifications to rights of security holders
  • bond calls
  • defeasances
  • release, substitution or sale of property securing repayment of the securities
  • rating changes

Additional/Voluntary Event-Based Disclosures

  • amendment to continuing disclosure undertaking
  • change in obligated person
  • notice to investors pursuant to bond documents
  • communication from the Internal Revenue Service
  • tender offer/secondary market purchases
  • bid for auction rate or other securities[5]
  • capital or other financing plan
  • litigation/enforcement action
  • merger/consolidation/reorganization/insolvency/bankruptcy
  • change of trustee, tender agent, remarketing agent, or other on-going party
  • derivative or other similar transaction
  • other event-based disclosures

There is no obligation upon any issuer or obligated person to make a submission of any voluntary continuing disclosure document.  The categories of voluntary disclosure listed above are for the convenience of submitters and users of such documents and do not represent the MSRB’s opinion as to the appropriate items of disclosure with respect to any specific municipal security.  The availability of such categories does not imply or create an obligation to make any such disclosures, and it will not be uncommon for one or many of the categories to be inapplicable to any particular security.  Further, the nature of the specific documents submitted for a particular category may vary widely. The MSRB believes that various factors appropriate to the particular facts and circumstances of a municipal security transaction should be assessed by issuers, obligated persons and their agents in coming to a decision on whether to make a voluntary submission of continuing disclosure to EMMA, regardless of the categories listed above, to the extent such parties are not otherwise obligated to make such disclosures.

With respect to the submission process through EMMA, the various categories of continuing disclosure described herein will be organized to differentiate between categories of items specified under Rule 15c2-12 and additional or voluntary categories not specifically identified under Rule 15c2-12. In most cases, submitters will be able to index a single submitted document into multiple applicable categories, including categories under both Rule 15c2-12 Disclosures and Additional/Voluntary Disclosures. Only those categories for which submissions have been made for a particular security will be displayed on the EMMA web portal page for such security.[6]  Over time, 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 in the “other financial/operating data” or “other event-based disclosures” general category, as appropriate, based on the types of documents received.

Questions about this notice may be directed to Leslie Carey, Associate General Counsel, Margaret C. Henry, Associate General Counsel, or Ernesto A. Lanza, General Counsel.

June 10, 2009



[2] Under Exchange Act 15c2-12, an underwriter for a primary offering of municipal securities subject to the rule is prohibited from underwriting the offering unless the underwriter has determined that the issuer or an obligated person for whom financial information or operating data is presented in the final official statement, or a designated agent, has undertaken in writing to provide certain items of information to the marketplace.

[3] The permanent continuing disclosure service has been previously approved by the Commission. See Exchange Act Release No. 59061 (December 5, 2008) 73 FR 75778 (December 12, 2008) (File No. SR-MSRB-2008-05). See also MSRB Notice 2008-47 (December 8, 2008).

[4] The pilot phase of the continuing disclosure service became operational on June 1, 2009. See Exchange Act Release No. 59964 (May 21, 2009) 74 FR 25778 (May 29, 2009) (File No. SR-MSRB-2009-03). See also MSRB Notice 2009-27 (June 1, 2009).

[5] This would include, but not be limited to, any notice pursuant to the SEC no-action letter regarding municipal auction rate securities dated March 14, 2008, available at http://www.sec.gov/divisions/corpfin/cf-noaction/2008/mars031408.pdf.

[6] Specific Rule 15c2-12 Disclosure and Additional/Voluntary Disclosure category headings will not be displayed on the EMMA web portal for a security or issue if there is no disclosure document available from EMMA for such category.