MSRB NOTICE 2009-37 (JUNE 29, 2009)

PREPARATIONS BY ISSUERS AND OTHERS FOR THE JULY 1, 2009 LAUNCH OF THE CONTUNUING DISCLOSURE SERVICE OF THE MSRB'S ELECTRONIC MUNICIPAL MARKET ACCESS SYSTEM (EMMA)

The Municipal Securities Rulemaking Board (the “MSRB”) will launch the continuing disclosure service of the Electronic Municipal Market Access system (“EMMA”) on Wednesday, July 1, 2009. The launch occurs concurrently with the effectiveness of amendments to Exchange Act Rule 15c2-12, adopted by the Securities and Exchange Commission, that provide for the MSRB to serve as the central submission venue for continuing disclosures under the rule.

This notice outlines certain steps that issuers can begin to take today to prepare for making submissions and using certain features of the EMMA submission process on the July 1 launch date, and also provides information for underwriters, obligated persons and agents relating to usage of the EMMA continuing disclosure service.

How Underwriters Can Help

Underwriters can assist issuers and other obligated persons to begin the process of registering to make submissions of continuing disclosure documents to EMMA.  Underwriters are urged, but are not required, to log into the primary market disclosure service of EMMA and to click on the new “Invite Continuing Disclosure Users” link that now appears on the main official statement submission page in the EMMA Dataport Submission Portal.  Using the Invite Issuer and Invite Obligated Person(s) tabs, an underwriter can invite any issuers or obligated persons for which it is serving, or has previously served, as underwriter to register with EMMA to make continuing disclosure submissions.  An invitation requires the e-mail address of appropriate personnel of the issuer or obligated person.  EMMA will send an invitation to the issuer or obligated person to register as a submitter if such issuer or obligated person has not yet created an account.[1]

This invitation function serves to advise issuers and obligated persons of the availability of EMMA and to remind them of their continuing disclosure obligations.  This would greatly assist the municipal securities market to complete the transition to the EMMA continuing disclosure service in an efficient manner.

What Issuers Can Do Today

Listed below are a number of optional steps that issuers can take today to prepare for making submissions of continuing disclosure documents to EMMA beginning July 1, 2009.

  • Register to make submissions – An issuer will need to register to use EMMA, at https://www.msrb.org/msrb1/control/registration/cod/landing.asp,[2] if any of the following apply:
  • the issuer wishes to make its own submissions to EMMA of continuing disclosure documents;
  • the issuer wishes to receive notification of submissions to EMMA of continuing disclosure documents on the issuer’s securities by others (including other issuer, obligated person or agent accounts); or
  • the issuer wishes to control its securities in EMMA and thereby limit submissions made by agents to EMMA of continuing disclosure documents on the issuer’s securities solely to the issuer’s designated agents, which must be designated through EMMA in order to make submissions.[3]

An issuer need not register to use EMMA if none of the above apply – that is, if an issuer expects that all continuing disclosure submissions on its securities will be made by others (such as obligated persons or agents) and does not wish to actively manage the submission rights of agents or to receive notification of submissions by others.

    Register to make continuing disclosure submissions to EMMA at https://www.msrb.org/msrb1/control/registration/cod/landing.asp.

  • Become a confirmed submitter – During the registration process, you will be asked to take certain steps to confirm your identity as a submitter.  Although you are permitted to make a submission to EMMA prior to completing the confirmation process, you should complete the confirmation process as soon as possible.  Submissions by unconfirmed submitters are denoted as unconfirmed on the EMMA web portal (http://emma.msrb.org) until the confirmation process is completed.  Shortly after completing the confirmation process (usually by the next business day or earlier), prior submissions will no longer be denoted as made by an unconfirmed user.

  • Organize your securities to receive notices of submissions – You may claim your securities in EMMA to allow you to receive notices whenever a submitter makes a submission on your claimed securities.  In addition, claiming your securities is necessary if you wish to control which agents may make submissions of continuing disclosures on your securities, as described below.

    The “Claim Your Securities” function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Security Management tab.

  • Control which agents may submit on your securities – If you are a confirmed submitter and have determined to control through EMMA which agents may make continuing disclosure submissions on your behalf, you must make an election to control your claimed securities.[4]  Once you have elected to control your securities, you will need to designate any agents you wish to permit to make submissions on your behalf (see below).  Taking control of your securities generally will require active management of your continuing disclosure submission process to ensure that all entities that should be making submissions of continuing disclosure documents to EMMA on your behalf are properly designated to do so.  Issuers that elect to control their securities but fail to make timely designations of agents may impair the flow of continuing disclosure information to the marketplace on their securities.

    The “Control Your Securities” function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Security Management tab.

  • Designate agents if you control your securities – If you have elected to control your securities, designate any agents you wish to authorize to make submissions on EMMA as soon as possible.  Designation requires your agent’s e-mail address.  If you designate an agent that has not yet registered as a submitter to EMMA, EMMA will send an invitation to such agent to register as a submitter.  There likely will be a delay between the time you make your designation of an unregistered agent and the time that the agent is able to make a submission.  Issuers are advised to contact personnel at their designated agents to ensure their prompt registration and the use of the appropriate agent e-mail address.  Submissions on your controlled securities by any registered agents that have not been designated by you will be blocked.

    The designation function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Designated Agent Management tab.

  • Invite obligated persons to register with EMMA – If some or all of your issues involve obligated persons (other than the issuer itself) that may have continuing disclosure submission obligations on your securities, you may invite such obligated persons to register with EMMA to make such submissions.  An invitation requires the e-mail address of the obligated person.  EMMA will send an invitation to the obligated person to register as a submitter if such obligated person has not yet created an account.  This function serves to advise obligated persons of the availability of EMMA and to remind them of their continuing disclosure obligations.

    The security grouping function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Security Group Management tab.

  • Create security groupings for making submissions – You may create groupings of your claimed securities in EMMA for which you expect to make repeated submissions of continuing disclosure documents.  In particular, you may wish to include all of your claimed securities in a global grouping to make any of your securities immediately available for selection, rather than requiring the entry of individual CUSIP numbers, each time you make a submission.  This will make your continuing disclosure submission process easier by making such groups available for selection, rather than requiring the entry of individual CUSIP numbers, each time you make a submission.

    Upon logging into EMMA, the “Claim Your Securities” function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Security Management tab.

What Obligated Persons Can Do Today

Obligated persons wishing to make continuing disclosure submissions must register to use EMMA and should complete the confirmation process.  Obligated persons are able to use the Submission Control Dashboard to organize their securities (including creating groups) to receive notices whenever a submitter makes a submission on a claimed security and to make the continuing disclosure submission process easier.  Obligated persons cannot control securities and cannot designate agents.

  • What if the issuer controls an obligated person’s securities? – Even if the issuer has elected to control securities for which an obligated person is required to provide continuing disclosure documents to EMMA, such obligated person may make such submissions without designation by the controlling issuer.  However, if the obligated person wishes to use an agent to make submissions on controlled securities, the obligated person must request that the controlling issuer designate such agent before such agent may make submissions of continuing disclosure documents to EMMA.

What Agents and Service Providers Can Do Today

Parties seeking to make continuing disclosure submissions on behalf of issuers or obligated persons as agents, or as service providers assisting agents, must register to use EMMA as agents and should complete the confirmation process.[5]  Agents are able to use the Submission Control Dashboard to organize their securities (including creating groups) to receive notices whenever a submitter makes a submission on a claimed security and to make the continuing disclosure submission process easier.  Agents cannot control securities.  Some agents that routinely have high volumes of submissions to make on a daily basis may designate service providers that assist such agents to make continuing disclosure submissions.  If an agent is designated by an issuer that has elected to control its securities and the agent wishes to use a service provider, such agent will need to select such service provider in EMMA in order to permit the service provider to make submissions on such controlled securities.[6]

  • What if the issuer controls securities for which the agent seeks to make a submission? – If the issuer has elected to control securities for which an agent seeks to provide continuing disclosure documents to EMMA, such agent must be designated by the issuer.  Otherwise, EMMA will reject the submission.  Agents should coordinate with the issuers on whose behalf they seek to make continuing disclosure submissions to determine whether the issuer will be taking control of their securities and, if so, to ensure that necessary designations of agents occur.

  • Register as agent as soon as possible – Although agents normally may make submissions as unconfirmed submitters immediately upon registering, this may not be the case if the issuer has elected to control its securities.  Depending upon the specific circumstances, the effectiveness of an issuer designation of an agent may be delayed by as much as 24 hours if the agent is not already registered at the time the issuer makes the designation.  Service providers register to use EMMA as agents.

  • Select service providers for controlled securities – If an issuer has elected to control securities for which an agent seeks to provide continuing disclosure documents to EMMA, an agent using a service provider must select such service provider in order to permit the service provider to successfully make a submission.[7]  Selection requires the service provider’s e-mail address.  If you select a service provider that has not yet registered as a submitter to EMMA, EMMA will send an invitation to such service provider to register as a submitter.  If an issuer controls securities and designates an agent to make submissions on such securities, any service providers selected by such designated agent also are permitted to make submissions on the issuer’s securities.  A designated agent may wish to inform a controlling issuer if it is using a service provider to ensure that such arrangement is acceptable to the issuer.

    The service provider selection function is available in the EMMA Dataport Submission Portal, after logging into EMMA, by clicking on the Submission Control Dashboard link and navigating to the Service Provider Management tab.

* * * *

Questions about the EMMA continuing disclosure service registration and submission process may be directed to the MSRB’s Market Information Department at (703) 797-6668.

June 29, 2009


[1] In most cases, EMMA will be able to determine whether such person has previously established an account and, in those cases, will not send an e-mail, thereby generally avoiding repeated e-mail invitations to the same person.

[2] The MSRB Gateway registration manual is available at http://www.msrb.org/msrb1/EMMA/pdfs/EMMACDManual.pdf.

[3] If an issuer elects to control its securities, designation of agents through EMMA is required; a designation by contract or otherwise outside of the EMMA systems is not sufficient in order to provide submission rights to the issuer’s agents to EMMA.

[4] An election to control an issuer’s municipal securities does not restrict the ability of other registered issuers or obligated persons to make submissions on such securities.

[5] Underwriters seeking to make submissions as agents on behalf of issuers should not create new accounts but instead should add the appropriate EMMA continuing disclosure submission rights to their existing MSRB accounts through their firms’ MSRB Gateway account managers.

[6] If the issuer does not control its securities, then an entity serving as a service provider would not need to be selected as such since the entity would already be registered as an agent with the ability to make submissions on non-controlled securities.

[7] There likely will be a delay between the time an agent selects an unregistered service provider and the time that the service provider is able to make a submission.  Agents are advised to contact personnel at their service providers to ensure their prompt registration and the use of the appropriate e-mail address.