Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2049 

1 17 CFR 240.12h–3 and 17 CFR 240.15d–22. 

2 17 CFR 249.323. 

3 15 U.S.C. 78a et seq. 

4Public Law 111–203 (July 21, 2010). 

5 15 U.S.C. 78o(d). 

6 15 U.S.C. 77a et seq. 

7 17 CFR 249.310. 

8 17 CFR 249.312. 

9 17 CFR 249.308. 

10 In a securitization using a master trust 

structure, the ABS transaction contemplates future 

issuances of ABS backed by the same, but 

expanded, asset pool that consists of revolving 

assets. Pre-existing and newly issued securities 

would therefore be backed by the same expanded 

asset pool. Thus, given their continued issuance, 

master trust ABS issuers typically continue to 

report, even after the first annual report is filed. 

11One source noted that in a survey of 100 

randomly selected asset-backed transactions, the 

number of record holders provided in reports on 

Form 15 ranged from two to more than 70. The 

survey did not consider beneficial owner numbers. 

See Committee on Capital Markets Regulation, The 

Global Financial Crisis: A Plan for Regulatory 

Reform, May 2009, at fn. 349. 

12See Asset-Backed Securities, Release No. 33– 

8518 (Dec. 22, 2004) [70 FR 1506] (‘‘2004 ABS 

Adopting Release’’). 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 240 and 249 

[Release No. 34–63652; File No. S7–02–11] 

RIN 3235–AK89 

Suspension of the Duty To File 

Reports for Classes of Asset-Backed 

Securities Under Section 15(d) of the 

Securities Exchange Act of 1934 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Proposed rule. 

SUMMARY: Section 942(a) of the DoddFrank Wall Street Reform and Consumer 

Protection Act eliminated the automatic 

suspension of the duty to file under 

Section 15(d) of the Securities Exchange 

Act of 1934 for asset-backed securities 

issuers and granted the Commission the 

authority to issue rules providing for the 

suspension or termination of such duty. 

We are proposing to permit suspension 

of the reporting obligations for assetbacked securities issuers when there are 

no longer asset-backed securities of the 

class sold in a registered transaction 

held by non-affiliates of the depositor. 

We are also proposing to amend our 

rules relating to the Exchange Act 

reporting obligations of asset-backed 

securities issuers in light of these 

statutory changes. 

DATES: Comments should be received on 

or before February 7, 2011. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/proposed.shtml); 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number S7–02–11 on the subject line; 

or 

• Use the Federal Rulemaking Portal 

(http://www.regulations.gov). Follow the 

instructions for submitting comments. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number S7–02–11. This file number 

should be included on the subject line 

if e-mail is used. To help us process and 

review your comments more efficiently, 

please use only one method. The 

Commission will post all comments on 

the Commission’s Internet Web site 

(http://www.sec.gov/rules/ 

proposed.shtml). Comments are also 

available for website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 

10 a.m. and 3 p.m. All comments 

received will be posted without change; 

we do not edit personal identifying 

information from submissions. You 

should submit only information that 

you wish to make available publicly. 

FOR FURTHER INFORMATION CONTACT: 

Steven Hearne, Special Counsel, or 

Kathy Hsu, Senior Special Counsel, in 

the Office of Rulemaking, at (202) 551– 

3430, Division of Corporation Finance, 

U.S. Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–3628. 

SUPPLEMENTARY INFORMATION: We are 

proposing amendments to Rules 12h–3 

and 15d–22 1 and Form 15 2 under the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’).3

I. Background 

This release is one of several that the 

Commission is issuing to implement 

provisions of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (the ‘‘Act’’) 4 related to asset-backed 

securities (‘‘ABS’’). Section 942(a) of the 

Act eliminated the automatic 

suspension of the duty to file under 

Section 15(d) 5 of the Exchange Act for 

ABS issuers and granted the 

Commission the authority to issue rules 

providing for the suspension or 

termination of such duty. In this release, 

we propose rule amendments to permit 

the suspension of reporting obligations 

for ABS issuers under certain 

circumstances and to update our rules 

in light of the amendment of Exchange 

Act Section 15(d). 

Exchange Act Section 15(d) generally 

requires an issuer with a registration 

statement that has become effective 

pursuant to the Securities Act of 1933 6

(‘‘Securities Act’’) to file ongoing 

Exchange Act reports with the 

Commission. In 2004, the Commission 

adopted an Exchange Act reporting 

regime specifically designed for ABS 

issuers. Under those rules, the Exchange 

Act reporting requirements for ABS 

issuers consist of: 

• Annual reports on Form 10–K 7 that 

include a report on the assessment of 

compliance with servicing criteria as 

well as an attestation report on 

assessments of compliance by a 

registered public accounting firm; 

• Distribution reports on Form 10–D 8

that include distribution and pool 

performance information for the 

distribution period and disclosure 

regarding the assets filed based on the 

frequency of distributions on the ABS; 

and 

• Current reports on Form 8–K.9

As discussed in more detail below, in 

April 2010, the Commission proposed 

changes to the ongoing reporting 

requirements for ABS issuers that would 

include, among other things, loan-level 

information in the distribution reports 

and revised triggering events for current 

reports. 

Prior to enactment of the Act, 

Exchange Act Section 15(d) provided 

that for issuers without a class of 

securities registered under the Exchange 

Act the duty to file ongoing reports is 

automatically suspended as to any fiscal 

year, other than the fiscal year within 

which the registration statement for the 

securities became effective, if the 

securities of each class to which the 

registration statement relates are held of 

record by less than three hundred 

persons. As a result, the reporting 

obligations of ABS issuers, other than 

those with master trust structures,10

were generally suspended after the ABS 

issuer filed one annual report on Form 

10–K because the number of record 

holders was below, often significantly 

below, the 300 record holder 

threshold.11

ABS offerings are typically registered 

on shelf registration statements and 

each ABS offering is typically sold in a 

separate ‘‘takedown’’ off of the shelf. In 

2004, the Commission adopted 

Exchange Act Rule 15d–22, relating to 

ABS reporting under Exchange Act 

Section 15(d).12 Exchange Act Rule 

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2050 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

13See Asset-Backed Securities, Release No. 33– 

9117 (April 7, 2010) [75 FR 23328]. 

14See proposed Item 512(a)(7)(ii) of Regulation 

S–K from the 2010 ABS Proposing Release. The 

issuer’s reporting obligation in the proposed 

undertaking would have extended as long as nonaffiliates of the depositor hold any of the issuer’s 

securities that were sold in registered transactions. 

15 15 U.S.C. 78o(d)(2). 

16One comment letter relating to the 

Commission’s 2010 ABS Proposing Release argues 

that Rule 15d–22(b) specifically provides 

suspension from reporting and is available to 

automatically suspend reporting obligations despite 

enactment of Section 942 of the Act. See comment 

letter from the American Securitization Forum to 

the 2010 ABS Proposing Release available on-line 

at http://sec.gov/comments/s7-08-10/s70810-70.pdf. 

See also comment letter from the American 

Securitization Forum on Implementing the DoddFrank Wall Street Reform and Consumer Protection 

Act available on-line at http://www.sec.gov/ 

comments/df-title-ix/asset-backed-securities/ 

assetbackedsecurities-10.pdf. However, as 

explained in the 2004 ABS Adopting Release, Rule 

15d–22(b) clarifies that the starting and suspension 

for any reporting obligation with regard to a 

takedown of ABS is determined separately for each 

takedown. See supra note 12 at 1563. It did not, and 

should not be read, to provide an independent basis 

for suspending the reporting obligation of Exchange 

Act Section 15(d). 

17We are also proposing to amend Form 15 to 

provide a checkbox referring to proposed Rule 15d– 

22(b). 

18See 2010 ABS Proposing Release, supra note 

13, at 23347. 

19 Id. In light of the Act, we are no longer 

pursuing our proposal relating to ongoing reporting 

as a condition to ABS shelf eligibility. However, we 

15d–22(b) codified the staff position 

that the starting and suspension dates 

for any reporting obligation with respect 

to a takedown of ABS is determined 

separately for each takedown. Exchange 

Act Rule 15d–22 also clarified that a 

new takedown for a new ABS offering 

off the same shelf registration statement 

did not necessitate continued reporting 

for a class of securities from a prior 

takedown that was otherwise eligible to 

suspend reporting. 

Prior to enactment of the Act, in April 

of 2010, we proposed rules that would 

revise the disclosure, reporting and 

offering process for ABS (the ‘‘2010 ABS 

Proposing Release’’).13 Among other 

things, the 2010 ABS Proposing Release 

proposed to replace the investment 

grade ratings conditions to ABS shelf 

eligibility with four new eligibility 

conditions. One of the proposed new 

conditions would require an ABS issuer 

to undertake to file the same Exchange 

Act reports with the Commission as 

would be required by Section 15(d) of 

the Exchange Act and rules thereunder, 

if the issuer were subject to the 

reporting requirements of that section.14

Before we acted on that proposal, the 

Act rendered that proposed shelf 

eligibility condition unnecessary by 

removing any class of ABS from the 

automatic suspension provided in 

Exchange Act Section 15(d) by inserting 

the phrase, ‘‘other than any class of 

asset-backed securities.’’ Consequently, 

ABS issuers no longer automatically 

suspend reporting under Exchange Act 

Section 15(d). Instead, the Act granted 

the Commission authority to ‘‘provide 

for the suspension or termination of the 

duty to file under this subsection for 

any class of asset-backed security, on 

such terms and conditions and for such 

period or periods as the Commission 

deems necessary or appropriate in the 

public interest or for the protection of 

investors.’’ 15

As noted, by adding the exception for 

ABS, the amendment removed the 

automatic suspension for any class of 

ABS. The effect is that the Exchange Act 

Section 15(d) reporting obligation now 

requires ongoing reporting for ABS 

issuers. As a result, we are proposing to 

update our rules consistent with the 

changes to Exchange Act Section 15(d), 

as amended by Section 942(a) of the 

Act.16 Our proposal to amend Exchange 

Act 15d–22 is described below. In 

addition, because ABS issuers no longer 

automatically suspend reporting absent 

Commission action, we are proposing 

relief where there are no longer ABS of 

a class that were sold in a registered 

transaction held by non-affiliates of the 

depositor. 

II. Discussion of Proposals 

As indicated above, Exchange Act 

Section 15(d), as amended by the Act, 

establishes an ongoing reporting 

obligation for each class of ABS for 

which an issuer has filed a registration 

statement which has become effective 

pursuant to the Securities Act. Exchange 

Act Section 15(d) also grants the 

Commission authority to provide for the 

suspension or termination of the duty to 

file. We believe that post-issuance 

reporting of information by an ABS 

issuer provides investors and the 

markets with transparency regarding 

many aspects of the ongoing 

performance of the securities and the 

servicer in complying with servicing 

criteria, among other things, and further 

believe this transparency is important 

for investors and the market in 

evaluating transaction performance and 

making ongoing investment decisions. 

We recognize, however, the costs 

imposed by ongoing reporting 

obligations and are proposing limited 

relief from these reporting obligations 

that we believe is appropriate in the 

public interest and consistent with the 

protection of investors. In addition, we 

are proposing rule and form 

amendments to update our rules relating 

to ABS takedowns under a shelf 

registration statement. 

A. Suspension of Exchange Act Section 

15(d) Reporting Obligation 

We are proposing in new Exchange 

Act Rule 15d–22(b) to permit 

suspension of the reporting obligations 

for a given class of ABS pursuant to 

Exchange Act Section 15(d) for any 

fiscal year, other than the fiscal year 

within which the registration statement 

became effective, if, at the beginning of 

the fiscal year, there are no longer ABS 

of the class that were sold in a registered 

transaction held by non-affiliates of the 

depositor.17 As revised by the Act, 

Exchange Act Section 15(d) no longer 

provides for the automatic suspension 

of the duty to file periodic and other 

reports for issuers of a class of ABS. 

Without action by the Commission, ABS 

issuers that have filed a registration 

statement that has become effective 

pursuant to the Securities Act or that 

have conducted a takedown off of a 

shelf registration statement as described 

above, would be obligated to continue to 

file such reports for the life of the 

security. 

In the 2010 ABS Proposing Release, 

we noted the importance to investors of 

post-issuance reporting of information 

regarding an ABS transaction in 

understanding transaction performance 

and in making ongoing investment 

decisions.18 We also believe, however, 

that there is a point at which the 

benefits to investors and the market of 

reporting significantly diminish, such as 

the limited benefit provided by 

reporting of an issuer that has no nonaffiliated holders of its securities. Where 

an issuer has only affiliated holders of 

its securities, there is no public market 

for the securities and the affiliated 

holders typically have access to 

comparable information to that 

provided by public reports. In addition, 

preparation of reports under such 

circumstances would add to the cost of 

offering and maintaining the ABS and 

therefore to the cost of capital 

formation. 

In the 2010 ABS Proposing Release 

we sought to balance the value of the 

information to investors and the market 

with the burden to issuers of preparing 

the reports. We proposed in the 2010 

ABS Proposing Release to require, as a 

condition to ABS shelf eligibility, that 

the issuer undertake to file reports 

providing disclosure as would be 

required pursuant to Exchange Act 

Section 15(d) and the rules thereunder 

as long as non-affiliates of the depositor 

hold any of the issuer’s securities that 

were sold in a registered transaction.19

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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2051 

found comments on the proposed shelf eligibility 

condition helpful in preparing proposed Exchange 

Act Rule 15d–22. Some commentators supported 

the proposed ongoing reporting requirements. See, 

for example, comment letters to the 2010 ABS 

Proposing Release from American Bar Association, 

Council of Institutional Investors, Metropolitan Life 

Insurance Company, and Prudential Investment 

Management, Inc. One commentator, the Council of 

Institutional Investors, asserted that transparency is 

related to asset quality and that ongoing reporting 

would facilitate due diligence by investors. Other 

commentators noted the burdens of reporting and 

suggested alternatives to filing reports with the 

Commission as a condition to shelf eligibility. See, 

for example, comment letters to the 2010 ABS 

Proposing Release from Bank of America 

Corporation (suggesting automatic suspension be 

continued but on a more delayed basis such as three 

years), Cleary Gottlieb Steen & Hamilton (suggesting 

that investors be permitted to opt the class of ABS 

out of reporting), and Kutak Rock LLP (suggesting 

a higher threshold below which ABS issuers could 

suspend reporting pursuant to Section 15(d) such 

as 50 investors or $3 million). Comments on the 

2010 ABS Proposing Release are available on-line 

at http://www.sec.gov/comments/s7-08-10/ 

s70810.shtml. 

20 17 CFR 230.415(a)(1)(x). 

21Current Exchange Act Rule 15d–22(b) states: 

‘‘Regarding any class of asset-backed securities in a 

takedown off of a registration statement pursuant to 

§ 230.415(a)(1)(x) of this chapter, no annual and 

other reports need be filed pursuant to section 15(d) 

of the Act regarding such class of securities as to 

any fiscal year, other than the fiscal year within 

which the takedown occurred, if at the beginning 

of such fiscal year the securities of each class in the 

takedown are held of record by less than three 

hundred persons.’’ As is currently the case, 

proposed Rule 15d–22(a)(2) would only require a 

registrant to file reports after a takedown of 

securities under the registration statement. If the 

registrant has filed a registration statement but has 

not conducted a takedown, the registrant would not 

Continued 

While our proposal to require ongoing 

reporting as a condition to ABS shelf 

eligibility and the comments we 

received on that proposal are 

informative, the Act no longer provides 

for the automatic suspension of the duty 

to file periodic and other reports for 

issuers of a class of ABS. 

We believe that the limited benefits of 

ongoing reporting to investors and the 

market where there are only affiliated 

holders of the ABS would not justify the 

burden of reporting by issuers. 

Consequently, we are proposing new 

Exchange Act Rule 15d–22(b) which 

would provide that the reporting 

obligation regarding any class of ABS is 

suspended for any fiscal year, other than 

the fiscal year within which the 

registration statement became effective, 

if, at the beginning of the fiscal year 

there are no longer any securities of 

such class held by non-affiliates of the 

depositor that were sold in the 

registered transaction. We are also 

proposing to amend Form 15 to add a 

checkbox for ABS issuers to indicate 

that they are relying on proposed 

Exchange Act Rule 15d–22(b) to 

suspend their reporting obligation to 

alert the market and the Commission of 

the change in reporting status. 

Request for Comment 

• Is it appropriate to suspend the 

Exchange Act Section 15(d) reporting 

obligation regarding a class of ABS for 

any fiscal year, other than the fiscal year 

within which the registration statement 

became effective, if, at the beginning of 

the fiscal year there are no longer any 

securities of such class held by nonaffiliates of the depositor that were sold 

in a registered transaction? 

• Should we instead consider 

allowing suspension of the reporting 

obligation dependent on a limited 

number of non-affiliates of the depositor 

holding the securities? If so, what would 

be an appropriate number and why? 

Please provide data establishing a basis 

for such a limit. 

• If an issuer is unable to locate a 

security holder in order to provide 

information and make distributions to 

that security holder, such that the 

distributions are returned to the issuer 

without payment to the unknown 

security holder and the issuer or its 

agent has attempted to notify the 

unknown security holder within seven 

months of the failed distribution, should 

we allow the issuer not to count such 

security holders when determining the 

number of non-affiliates of the depositor 

that hold its securities? Should we 

allow an issuer to suspend the Exchange 

Act Section 15(d) reporting obligation 

regarding a class of ABS if, at the 

beginning of the fiscal year there are no 

longer any securities of such class, other 

than securities held by such lost or 

missing security holders, held by nonaffiliates of the depositor that were sold 

in a registered transaction? 

• Should we allow an issuer to 

suspend the Exchange Act Section 15(d) 

reporting obligation regarding a class of 

ABS if that issuer has effected legal or 

covenant defeasance of such class? Why 

or why not? Is legal or covenant 

defeasance typically provided for in 

ABS indentures or other governing 

instruments? Is legal or covenant 

defeasance effected with any 

meaningful frequency in the ABS 

market? Are there certain asset classes 

or tranches where it is more or less 

common? Please provide data to support 

your conclusions. 

• Is there another standard, such as 

one relying on the percentage of pool 

assets remaining or the percentage of 

pool assets held by non-affiliates of the 

depositor, that would be more 

appropriate? Should we permit 

suspension based on a mandatory 

period of time since the registered 

offering? If so, how long would be 

appropriate? Three years? Five years? 

Should the amount of time depend on 

the asset class? 

B. Revisions to Existing Exchange Act 

Rule Provisions 

In light of the statutory changes to 

Exchange Act Section 15(d), we are 

proposing to update Exchange Act Rule 

15d–22 to indicate when annual and 

other reports need to be filed and when 

starting and suspension dates are 

determined with respect to a takedown. 

We are also proposing to amend 

Exchange Act Rule 12h–3(b)(1) to add 

the language ‘‘, other than any class of 

asset-backed securities,’’ to conform the 

rule to the language of amended 

Exchange Act Section 15(d) and to add 

a clarifying note. 

Exchange Act Rule 15d–22 currently 

provides that: (1) No annual or other 

reports need be filed pursuant to 

Exchange Act Section 15(d) for ABS 

until the first bona fide sale in a 

takedown of securities under the 

registration statement; and (2) the 

starting and suspension dates for any 

reporting obligation with respect to a 

takedown of ABS is determined 

separately for each takedown. 

We are proposing to amend Exchange 

Act Rule 15d–22. The revised rule 

would retain the approach that the 

Exchange Act Section 15(d) reporting 

obligation relates to each separate 

takedown in current Exchange Act 

Rules 15d–22(a) and 15d–22(b) in a new 

Exchange Act Rule 15d–22(a). Proposed 

Rule 15d–22(a)(1) tracks the language in 

current Exchange Act Rule 15d–22(a) 

providing that with respect to an 

offering of ABS sold off the shelf 

pursuant to Securities Act Rule 

415(a)(1)(x),20 the requirement to file 

annual and other reports pursuant to 

Exchange Act Section 15(d) regarding a 

class of securities commences upon the 

first bona fide sale in a takedown of 

securities under the registration 

statement. Proposed Exchange Act Rule 

15d–22(a)(2) would restate the concept 

contained in current Exchange Act Rule 

15d–22(b) that the requirement to file 

annual and other reports pursuant to 

Exchange Act Section 15(d) regarding a 

class of securities is determined 

separately for each takedown of 

securities under the registration 

statement. Exchange Act Rule 15d–22(b) 

currently does this by relying on 

language relating to when an issuer may 

suspend reporting under Exchange Act 

Section 15(d). Because the Act 

eliminated the automatic suspension of 

reporting for ABS issuers, we are 

proposing to delete current Exchange 

Act Rule 15d–22(b) and replace it with 

new Exchange Act Rule 15d–22(a)(2).21

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2052 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

be required to file annual and other reports related 

to those securities. 

22 15 U.S.C. 78o(d). We note that our staff has 

previously stated in this regard, ‘‘If on the first day 

of any subsequent fiscal year the thresholds in Rule 

12h-3(b)(1) are exceeded, the suspension of 

reporting obligations under Section 15(d) will lapse, 

and the issuer would be required to resume 

periodic and current reporting under Section 15(d) 

in the manner specified in Rule 12h-3(e).’’ See Staff 

Legal Bulletin No. 18 (Mar. 15, 2010), fn. 7. 

23See comment letters from the American 

Securitization Forum supra note 16. 

24See Staff no-action letter to American 

Securitization Forum (January 6, 2011). 

25 44 U.S.C. 3501 et seq. 

26 44 U.S.C. 3507(d) and 5 CFR 1320.11. 

As proposed, Exchange Act Rule 15d– 

22(c), which states that Exchange Act 

Rule 15d–22 does not affect other 

reporting obligations applicable to any 

class of securities from additional 

takedowns or reporting obligations that 

may be applicable pursuant to Exchange 

Act Section 12, such as for an ABS 

issuer’s non-ABS securities, would 

remain substantially unchanged, except 

for minor revisions to reflect the 

amendments discussed above. We 

believe it is appropriate to continue to 

apply this provision to all of proposed 

Exchange Act Rule 15d–22 to make 

clear that other reporting obligations 

applicable to a class of securities are not 

affected by the rules. 

Finally, we are proposing to amend 

Exchange Act Rule 12h–3(b)(1) to 

exclude ABS from the classes of 

securities eligible for suspension. 

Exchange Act Rule 12h–3(b) currently 

designates the classes of securities 

eligible for suspension of the duty to file 

reports under Exchange Act Section 

15(d). The Act explicitly removed ‘‘any 

class of asset-backed security’’ from the 

automatic suspension of Exchange Act 

Section 15(d). Since the language of 

Exchange Act Rule 12h–3 tracks the 

language of the Exchange Act, we are 

proposing to add the language from 

amended Exchange Act Section 15(d) to 

our rule. We are also proposing to add 

a note to direct ABS issuers to Exchange 

Act Rule 15d–22 for the requirements 

regarding suspension of reporting for 

ABS. 

Request for Comment 

• Does proposed Exchange Act Rule 

15d–22(a) effectively provide guidance 

relating to when an ABS issuer is 

required to file annual and other reports 

pursuant to Section 15(d) of the 

Exchange Act regarding a class of 

securities upon a takedown of securities 

from a shelf registration statement? Are 

there other changes that we should 

make to the Commission guidance 

relating to the application of Exchange 

Act Section 15(d) to registered ABS? 

• Do our proposed revisions to 

Exchange Act Rule 12h–3 appropriately 

modify the rule to give effect to the 

statutory change and provide clarity to 

ABS issuers regarding the reporting 

obligations and where to refer relating to 

the ability to suspend reporting? 

III. Reporting Obligation of ABS Whose 

Exchange Act Section 15(d) Obligation 

Was Suspended Prior to Enactment of 

the Act 

A suspension from reporting under 

Exchange Act Section 15(d) is 

applicable under the statute only for a 

year and needs to be reconsidered each 

subsequent year: 

The duty to file under this subsection shall 

also be automatically suspended as to any 

fiscal year, other than the fiscal year within 

which such registration statement became 

effective, if, at the beginning of such fiscal 

year, the securities of each class, other than 

any class of asset-backed securities, to which 

the registration statement relates are held of 

record by less than three hundred persons.22

(emphasis added) 

Consequently, once an issuer has 

registered an offering under the 

Securities Act it needs to consider at the 

beginning of each fiscal year whether it 

has a reporting obligation under 

Exchange Act Section 15(d). This is the 

case even if an issuer has previously 

been eligible to suspend reporting under 

Exchange Act Section 15(d). As a result, 

the revision to Exchange Act Section 

15(d) results in a ‘‘springing’’ Section 

15(d) reporting obligation for ABS 

issuers on the first day of their next 

fiscal year since, by its terms, Section 

15(d) as amended, does not provide for 

the suspension of reporting for ABS, 

unless the Commission exercises its 

authority to provide for a suspension or 

termination of such reporting. We note 

that unlike corporate issuers that can 

generate new revenue and actively 

manage their assets and business, ABS 

issuers by definition are a discrete pool 

of self-liquidating assets. One 

commentator has noted, among other 

things, that historically the transaction 

documents have not contained 

provisions necessary to support an 

ongoing reporting obligation, or provide 

for the funds to cover the costs of taking 

steps to recommence reporting.23 While 

the transaction documents may not 

provide for recommencing reporting, we 

note that most transaction documents 

require ABS issuers to provide periodic 

distribution reports to the trustee or 

security holders in order to provide 

information for investors for the life of 

the securitization. Taking into account 

all of these factors, the staff of the 

Division of Corporation Finance has 

issued a no-action letter applicable to all 

ABS issuers whose reporting obligations 

had been suspended prior to the date of 

enactment of the Act that states that, 

provided the issuer continues 

complying with requirements under the 

transaction agreements to make ongoing 

information regarding the ABS and the 

related pool assets available to security 

holders in the manner and to the extent 

required under those transaction 

agreements, the Division would not 

recommend enforcement action if the 

issuer continues to determine its 

reporting requirements based on the 

standards set forth in Section 15(d) of 

the Exchange Act immediately prior to 

enactment of the Act.24 The letter also 

requires as an additional condition to 

the no-action position that the issuer 

retain the information for at least five 

years after the ABS are no longer 

outstanding and provide copies of such 

information to the Commission or its 

staff upon request. 

IV. General Request for Comments 

We request comment on the specific 

issues we discuss in this release, and on 

any other approaches or issues that we 

should consider in connection with the 

proposed amendments. We seek 

comment from any interested persons, 

including investors, securitizers, ABS 

issuers, sponsors, originators, servicers, 

trustees, disseminators of EDGAR data, 

industry analysts, EDGAR filing agents, 

and any other members of the public. 

V. Paperwork Reduction Act 

A. Background 

Certain provisions of the disclosure 

rules and forms applicable to ABS 

issuers contain ‘‘collection of 

information’’ requirements within the 

meaning of the Paperwork Reduction 

Act of 1995 (‘‘PRA’’).25 While the 

amendments proposed today do not 

alter the disclosure requirements set 

forth in these rules and forms, the 

amendment to Exchange Act Section 

15(d) effected by the Act will increase 

the number of filings made pursuant to 

these rules and forms. Accordingly, the 

Commission is submitting revised 

burden estimates for certain of these 

collections of information to the Office 

of Management and Budget (‘‘OMB’’) for 

review in accordance with the PRA.26

An agency may not conduct or sponsor, 

and a person is not required to comply 

with, a collection of information unless 

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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2053 

27We are proposing to add a new check box to 

Form 15 (OMB Control No. 3235–0167) to allow 

ABS issuers to indicate that they are relying on 

proposed Rule 15d–22(b) to suspend their reporting 

obligation. We do not believe that the proposed 

changes will affect the burden estimates for Form 

15. 

28We rely on two outside sources of ABS 

issuance data. We use the ABS issuance data from 

Asset-Backed Alert on the initial terms of offerings, 

and we supplement that data with information from 

Securities Data Corporation (SDC). 

29Form 10–D was not implemented until 2006. 

Before implementation of Form 10–D, ABS issuers 

often filed their distribution reports under cover of 

Form 8–K. 

30See the 2010 ABS Proposing Release, supra 

note 13, at 23402. In order to estimate the number 

of Forms 10–K filed by ABS issuers for PRA 

purposes, we average the number of Forms 10–K 

over three years. In the first year after 

implementation, we use 958 as an estimate for the 

number of Forms 10–K we expect to receive. In the 

second year, we increase our estimate of the 

number of Forms 10–K expected by 958 to a total 

of 1,916 and in the third year, the addition of 

another 958 brings the total to 2,874. The average 

number of Forms 10–K over three years would, 

therefore, be 1,916. As a result, for PRA purposes, 

we estimate an increase in Form 10–K filings of 958 

filings. These estimates assume that the market for 

ABS returns to historic levels. 

31We are estimating that each ABS issuer would 

have an annual Form 10–K filing, six Form 10–D 

filings and 1.5 8–K filings consistent with our 

estimates in the 2010 ABS Proposing Release. See 

2010 ABS Proposing Release, supra note 13, at n. 

521. 

32We assume that in any given year the issuers 

of all 958 registered ABS issued in the prior year 

would have suspended reporting using Form 15. 

The average number of Form 15 over three years 

would, therefore, have been 958. After the 

implementation of the Act, Form 15 will no longer 

be used by these ABS issuers as it was in the past. 

As a result, for the purposes of PRA, we estimate 

a decrease in Form 15 filings of 958. 

33See 2010 ABS Proposing Release, supra note 

13, at 23402–23403. 

34We allocate all of the burden for Form 15 

filings to internal burden hours. 

35Since historical data on the numbers of classes 

of ABS that reduce their non-affiliated holders to 

zero is not generally available, we are using 

statistics relating to average expected deal life to 

establish our PRA estimate. Statistics compiled 

from SDC Platinum suggest that the average 

expected deal life of a class of ABS is over 5 years. 

it displays a currently valid control 

number. The titles for the affected 

collections of information are: 

(1) ‘‘Form 10–K’’ (OMB Control No. 

3235–0063); 

(2) ‘‘Form 10–D’’ (OMB Control No. 

3235–0604); 

(3) ‘‘Form 8–K’’ (OMB Control No. 

3235–0288); and 

(4) ‘‘Form 15’’ (OMB Control No. 

3235–0167).27

The forms were adopted under the 

Exchange Act and set forth the 

disclosure requirements for periodic 

and current reports filed with respect to 

ABS and other types of securities to 

inform investors. 

Compliance with the information 

collections is mandatory. Responses to 

the information collections are not kept 

confidential and there is no mandatory 

retention period for the collections of 

information. 

B. Revisions to PRA Reporting and Cost 

Burden Estimates 

Our PRA burden estimate for Form 

10–K, Form 8–K and Form 15 is based 

on an average of the time and cost 

incurred by all types of public 

companies, not just ABS issuers, to 

prepare the collection of information. 

Form 10–D is a form that is only 

prepared and filed by ABS issuers. Form 

10–D is filed within 15 days of each 

required distribution date on the ABS, 

as specified in the governing documents 

for such securities, containing periodic 

distribution and pool performance 

information. 

Our PRA burden estimates for the 

collections of information are based on 

information that we receive on entities 

assigned to Standard Industrial 

Classification Code 6189, the code used 

by ABS issuers, as well as information 

from outside data sources.28 When 

possible, we base our estimates on an 

average of the data that we have 

available for years 2004 through 2009. 

In some cases, our estimates for the 

number of ABS issuers that file Form 

10–D with the Commission are based on 

an average of the number of ABS 

offerings in 2006 through 2009.29

1. Statutory Effects 

Prior to the amendment to Exchange 

Act Section 15(d), except for master 

trust issuers, the requirement to file 

Form 10–K for ABS issuers was 

typically suspended after the year of 

initial issuance because the issuer had 

fewer than 300 security holders of 

record. The Act amended Exchange Act 

Section 15(d) to remove issuers of a 

class of ABS from automatic suspension 

of the filing requirement. Subsequent to 

the enactment of the Act, the number of 

Forms 10–K and 10–D filed by ABS 

issuers is expected to increase each year 

by the number of ABS registered 

offerings and the number of Forms 15 

filed by ABS issuers is expected to 

decrease by a similar number. The 

yearly average of ABS registered 

offerings with the Commission over the 

period from 2004 to 2009 was 958. As 

a result, for PRA purposes, we estimate 

an annual increase in Form 10–K filings 

of 958 filings 30 and corresponding 

increases in Form 10–D filings of 5,748 

filings and Form 8–K filings of 1437.31

Concurrently, for PRA purposes, we 

estimate an annual decrease in Form 15 

filings of 958 filings.32

We estimate that, for Exchange Act 

reports generally, 75% of the burden of 

preparation is carried by the company 

internally and that 25% of the burden 

is carried by outside professionals 

retained by the registrant at an average 

cost of $400 per hour. Consistent with 

our estimates in 2004, we estimate that 

120 hours would be needed to complete 

and file a Form 10–K for an ABS issuer, 

30 hours would be needed to complete 

and file a Form 10–D for an ABS issuer, 

5 hours would be needed to complete 

and file a Form 8–K for an ABS issuer, 

and 1.5 hours would be needed to 

complete and file a Form 15 for an ABS 

issuer.33

In summation, we estimate, for PRA 

purposes, increases of 114,960 total 

burden hours for Form 10–K (958 Forms 

10–K times 120 burden hours per filing), 

172,440 total burden hours for Form 10– 

D (5,748 Forms 10–D times 30 burden 

hours per filing), and 7,185 total burden 

hours for Form 8–K (1,437 Forms 8–K 

times 5 burden hours per filing), as well 

as a decrease of 1,437 total burden hours 

for Form 15 (958 Forms 15 times 1.5 

burden hours per filing) as a result of 

the statutory changes to Exchange Act 

Section 15(d).34 We allocate 75% of 

those hours (an increase of 86,220 hours 

for Form 10–K, 129,330 hours for Form 

10–D, and 5,389 hours for Form 8–K) to 

internal burden and the remaining 25% 

to external costs using a rate of $400 per 

hour (an increase of $11,496,000 for 

Form 10–K, $17,244,000 for Form 10–D 

and $718,500 for Form 8–K). 

2. Effects on Burden Estimates of the 

Proposed Rules 

We are proposing to permit ABS 

issuers to suspend their reporting 

obligation with respect to a class of ABS 

for any fiscal year, other than the fiscal 

year within which the registration 

statement became effective, if, at the 

beginning of the fiscal year nonaffiliates no longer hold any of the 

issuer’s securities of that class that were 

sold in registered transactions. While 

we expect that issuers will be able to 

suspend their reporting obligations in 

the future, based on average expected 

deal life data, for purposes of the PRA, 

we estimate that the proposal will not 

affect our PRA estimates over the next 

three years.35 We are also proposing to 

amend Exchange Act Rule 15d–22 

relating to reporting and shelf 

registration and Exchange Act Rule 

12h–3 to conform the rule to Exchange 

Act Section 15(d). We do not believe 

that these proposals will affect our PRA 

estimates. 

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2054 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

36We request comment pursuant to 44 U.S.C. 

3506(c)(2)(B). 

37The proposed amendments to Exchange Act 

Rules 12h–3 and 15d–22 do not substantively alter 

the current requirements and should help issuers 

comply with their obligations and avoid confusion. 

3. Summary of Proposed Changes to 

Annual Burden Compliance in 

Collection of Information 

Table 1 illustrates the changes in 

annual compliance burden in the 

collection of information in hours and 

costs for existing reports for ABS 

issuers. 

Form 

Current 

annual 

responses 

Proposed 

annual 

responses 

Current 

burden 

hours 

Decrease or 

increase in 

burden hours 

Proposed 

burden hours 

Current 

professional 

costs 

Decrease or 

increase in 

professional 

costs 

Proposed 

professional 

costs 

10–K ....... 13,545 14,503 21,363,548 86,220 21,449,768 2,848,473,000 11,496,000 2,859,969,000 

10–D ....... 10,000 15,478 225,000 129,330 354,330 30,000,000 17,244,000 47,244,000 

8–K ......... 115,795 117,232 493,436 5,389 498,825 54,212,000 718,500 54,930,500 

15 ........... 3,000 2,042 4,500 (1,437 ) 3,063 0 0 0 

4. Solicitation of Comments 

We request comments in order to 

evaluate: (1) Whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information would have 

practical utility; (2) the accuracy of our 

estimate of the burden of the proposed 

collection of information; (3) whether 

there are ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and (4) whether there are 

ways to minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology.36

Any member of the public may direct 

to us any comments concerning the 

accuracy of these burden estimates and 

any suggestions for reducing these 

burdens. Persons submitting comments 

on the collection of information 

requirements should direct the 

comments to the Office of Management 

and Budget, Attention: Desk Officer for 

the Securities and Exchange 

Commission, Office of Information and 

Regulatory Affairs, Washington, DC 

20503, and should send a copy to 

Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090, with reference to File No. 

S7–02–11. Requests for materials 

submitted to OMB by the Commission 

with regard to these collections of 

information should be in writing, refer 

to File No. S7–02–11, and be submitted 

to the Securities and Exchange 

Commission, Office of Investor 

Education and Advocacy, 100 F Street, 

NE., Washington, DC 20549–0213. OMB 

is required to make a decision 

concerning the collection of information 

between 30 and 60 days after 

publication of this release. 

Consequently, a comment to OMB is 

best assured of having its full effect if 

OMB receives it within 30 days of 

publication. 

VI. Benefit-Cost Analysis 

The Exchange Act establishes an 

ongoing reporting obligation for each 

class of ABS for which an issuer has 

filed a registration statement that has 

become effective pursuant to the 

Securities Act and grants the 

Commission authority to provide for the 

suspension or termination of the duty to 

file. In light of the changes made to 

Exchange Act Section 15(d) in the Act, 

the Commission is proposing to amend 

Exchange Act Rule 12h–3 and 15d–22, 

and to provide for the suspension of the 

duty to file for certain issuers as 

discussed in this release.37

We believe that reporting of the 

ongoing performance of the ABS is 

useful to investors and the market by 

providing readily accessible information 

upon which investors may evaluate 

performance and make ongoing 

investment decisions. We also 

recognize, however, that there is a point 

at which the benefits to investors and 

the market of reporting diminish. In 

proposing to provide for the suspension 

of the duty to file for ABS issuers when 

non-affiliated holders no longer hold 

securities in the issuer, we have sought 

to balance the value of the information 

to investors and the market with the 

burden on the issuers of preparing the 

reports. We further recognize that there 

are other alternatives for determining 

when the suspension of the duty to file 

is appropriate and have sought 

comment on that issue in this release. 

We are sensitive to benefits and costs 

of the proposed rules, if adopted. The 

discussion below focuses on the benefits 

and costs of the decisions made by the 

Commission in the exercise of the new 

exemptive authority provided by the 

Act. We request that commentators 

provide their views along with 

supporting data as to the benefits and 

costs of the proposed amendments. 

A. Benefits 

The proposals would allow an issuer 

to suspend reporting under certain 

circumstances and update certain 

provisions relating to reporting 

obligations under a shelf registration 

statement. The Act amended Exchange 

Act Section 15(d) to eliminate the 

automatic suspension of the duty to file 

ongoing Exchange Act reports for ABS 

issuers and granted the Commission 

authority to issue rules providing for the 

suspension or termination of such duty. 

The proposals would permit issuers to 

suspend their reporting obligation under 

Exchange Act Section 15(d) for any 

fiscal year, other than the fiscal year 

within which the registration statement 

became effective, if, at the beginning of 

the fiscal year there are no longer ABS 

of the class that were sold in a 

registration statement held by nonaffiliates of the depositor. Permitting 

such issuers to suspend reporting would 

allow those issuers to avoid the costs of 

preparing and filing annual and 

periodic reports with the Commission 

when non-affiliates of the depositor no 

longer hold any outstanding classes of 

the securities sold in registered 

transactions. 

B. Costs 

In revising Exchange Act Section 

15(d), Congress exhibited an intent to 

increase the continued reporting by ABS 

issuers, but gave the Commission 

authority to place limitations on that 

reporting in the public interest. The 

Commission is exercising this authority 

and proposing a rule which would 

allow ABS issuers to suspend their 

reporting obligation under certain 

limited conditions. Permitting the 

suspension of reporting would limit the 

ability of market participants and 

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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2055 

38 15 U.S.C. 78w(a). 

39 15 U.S.C. 78c(f). 

40Public Law 104–121, Title II, 110 Stat. 857 

(1996). 

41 17 CFR 240.0–10(a). 

42This is based on data from Asset-Backed Alert. 

observers to access and review 

information for those ABS that suspend 

reporting. We believe that this cost 

would be mitigated, since affiliates 

would generally be able to receive 

relevant information because of their 

relationship with the depositor. Thus, 

only non-holders of a particular ABS 

would be affected. Furthermore, the 

utility of the information to market 

participants and observers would be 

limited since ABS owned solely by 

affiliates would generally not have a 

public market. We recognize that there 

is an additional cost to preparing 

ongoing disclosure for registered 

transactions relative to issuing in the 

private markets. Issuers’ willingness to 

issue registered ABS may be affected by 

the proposed threshold at which issuers 

may suspend their reporting obligations 

under Section 15(d), or another 

suspension threshold that we may 

adopt. 

C. Request for Comment 

We seek comments and empirical data 

on all aspects of this Benefit-Cost 

Analysis including identification and 

quantification of any additional benefits 

and costs. 

VII. Consideration of Burden on 

Competition and Promotion of 

Efficiency, Competition and Capital 

Formation 

Section 23(a) of the Exchange Act 38

requires the Commission, when making 

rules and regulations under the 

Exchange Act, to consider the impact a 

new rule would have on competition. 

Section 23(a)(2) prohibits the 

Commission from adopting any rule that 

would impose a burden on competition 

not necessary or appropriate in 

furtherance of the purposes of the 

Exchange Act. Section 3(f) of the 

Exchange Act 39 requires the 

Commission, when engaging in 

rulemaking that requires it to consider 

whether an action is necessary or 

appropriate in the public interest, to 

consider, in addition to the protection of 

investors, whether the action would 

promote efficiency, competition, and 

capital formation. 

The proposed amendments update the 

reporting requirements for takedowns 

from shelf registration in Exchange Act 

Rule 15d–22 and provide for the 

suspension of the duty to file for certain 

ABS issuers as discussed in this release. 

The proposal to allow ABS issuers 

without non-affiliated holders to 

suspend their duty to file would 

decrease transparency regarding those 

issuers, to the extent that non-affiliated 

investors and the market use that 

information. However, the suspension 

of the duty to file would reduce 

compliance costs for issuers which 

could increase efficiency and facilitate 

capital formation. 

The Act eliminated the ability of ABS 

issuers to suspend their duty to file 

ongoing reports under Exchange Act 

Section 15(d). An inability to suspend 

the duty to file may encourage some 

issuers to offer ABS privately or not to 

issue ABS at all, rather than registering 

those ABS and incurring the ongoing 

reporting costs. If issuers register fewer 

ABS, this would reduce liquidity and 

decrease transparency in the ABS 

market. The current proposal that would 

allow ABS issuers under limited 

circumstances to suspend their duty to 

file and provide issuers certainty 

regarding when they may suspend 

reporting may encourage some ABS 

issuers to register ABS and offer ABS in 

the public markets, which would 

increase liquidity and transparency and 

facilitate capital formation. 

The clarifications provided in 

Exchange Act Rule 15d–22 and 12h–3 

may have a beneficial effect on the 

efficiency of managing ABS offerings, 

especially takedowns from ABS shelf 

registration, by providing issuers with a 

better understanding of their Exchange 

Act reporting obligations and facilitating 

compliance. 

We do not believe the proposed 

amendments would have an impact or 

burden on competition. We request 

comment on whether the proposed 

amendments, if adopted, would impose 

a burden on competition not necessary 

or appropriate in furtherance of the 

purposes of the Exchange Act. 

Commentators are requested to provide 

empirical data and other factual support 

for their views if possible. We request 

comment on whether the proposed 

amendments, if adopted, would 

promote efficiency, competition, and 

capital formation. Commentators are 

requested to provide empirical data and 

other factual support for their views if 

possible. 

VIII. Small Business Regulatory 

Enforcement Fairness Act 

For purposes of the Small Business 

Regulatory Enforcement Fairness Act of 

1996,40 a rule is ‘‘major’’ if it has 

resulted, or is likely to result in: 

• An annual effect on the U.S. 

economy of $100 million or more; 

• A major increase in costs or prices 

for consumers or individual industries; 

or 

• Significant adverse effects on 

competition, investment, or innovation. 

We request comment on whether our 

proposed amendments would be a 

‘‘major rule’’ for purposes of the Small 

Business Regulatory Enforcement 

Fairness Act. We solicit comment and 

empirical data on: 

• The potential effect on the U.S. 

economy on an annual basis; 

• Any potential increase in costs or 

prices for consumers or individual 

industries; and 

• Any potential effect on competition, 

investment, or innovation. 

IX. Regulatory Flexibility Act 

Certification 

The Commission hereby certifies 

pursuant to 5 U.S.C. 605(b) that the 

proposals contained in this release, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The proposals 

relate to the ongoing reporting 

requirements for ABS issuers under the 

Exchange Act. Exchange Act Rule 0– 

10(a) 41 defines an issuer, other than an 

investment company, to be a ‘‘small 

business’’ or ‘‘small organization’’ if it 

had total assets of $5 million or less on 

the last day of its most recent fiscal year. 

As the depositor and issuing entity are 

most often limited purpose entities in 

an ABS transaction, we focused on the 

sponsor in analyzing the potential 

impact of the proposals under the 

Regulatory Flexibility Act. Based on our 

data, we only found one sponsor that 

could meet the definition of a small 

broker-dealer for purposes of the 

Regulatory Flexibility Act.42

Accordingly, the Commission does not 

believe that the proposals, if adopted, 

would have a significant economic 

impact on a substantial number of small 

entities. 

X. Statutory Authority and Text of 

Proposed Rule and Form Amendments 

We are proposing the amendments 

contained in this document under the 

authority set forth in Section 942 of the 

Act, and Sections 3(b), 12, 13, 15, 23(a), 

and 36 of the Exchange Act. 

List of Subjects in 17 CFR Parts 240 and 

249 

Reporting and recordkeeping 

requirements, Securities. 

For the reasons set out above, Title 17, 

Chapter II of the Code of Federal 

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2056 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

Regulations is proposed to be amended 

as follows: 

PART 240—GENERAL RULES AND 

REGULATIONS, SECURITIES 

EXCHANGE ACT OF 1934 

1. The authority citation for part 240 

continues to read as follows: 

Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 

77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 

77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 

78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, 

78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– 

20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 

80b–11, and 7201 et seq.; and 18 U.S.C. 1350 

and 12 U.S.C. 5221(e)(3), unless otherwise 

noted. 

* * * * * 

2. Amend § 240.12h–3 by: 

a. In paragraph (b)(1) introductory text 

add ‘‘, other than any class of assetbacked securities,’’ in the first sentence 

after ‘‘Any class of securities’’; and 

b. Adding a Note to paragraph (b). 

The addition to read as follows: 

§ 240.12h–3 Suspension of duty to file 

reports under section 15(d). 

* * * * * 

(b) * * * 

Note to Paragraph (b): The suspension of 

classes of asset-backed securities is addressed 

in § 240.15d–22. 

* * * * * 

3. Revise § 240.15d–22 to read as 

follows: 

§ 240.15d–22 Reporting regarding assetbacked securities under section 15(d) of the 

Act. 

(a) With respect to an offering of assetbacked securities registered pursuant to 

§ 230.415(a)(1)(x) of this chapter: 

(1) Annual and other reports need not 

be filed pursuant to section 15(d) of the 

Act (15 U.S.C. 78o(d)) regarding any 

class of securities to which such 

registration statement relates until the 

first bona fide sale in a takedown of 

securities under the registration 

statement; and 

(2) The starting and suspension dates 

for any reporting obligation under 

section 15(d) of the Act (15 U.S.C. 

78o(d)) with respect to a takedown of 

any class of asset-backed securities is 

determined separately for each 

takedown of securities under the 

registration statement. 

(b) The duty to file annual and other 

reports pursuant to section 15(d) of the 

Act (15 U.S.C. 78o(d)) regarding any 

class of asset-backed securities is 

suspended as to any fiscal year, other 

than the fiscal year within which the 

registration statement became effective, 

if, at the beginning of the fiscal year 

there are no longer any asset-backed 

securities of such class that were sold in 

a registered transaction held by nonaffiliates of the depositor. 

(c) This section does not affect any 

other reporting obligation applicable 

with respect to any classes of securities 

from additional takedowns under the 

same or different registration statements 

or any reporting obligation that may be 

applicable pursuant to section 12 of the 

Act (15 U.S.C. 78l). 

PART 249—FORMS, SECURITIES 

EXCHANGE ACT OF 1934 

4. The authority citation for part 249 

continues to read as follows: 

Authority: 15 U.S.C. 78a et seq. and 7201 

et seq.; and 18 U.S.C. 1350, unless otherwise 

noted. 

5. Amend Form 15 (referenced in 

§ 249.323) by adding a checkbox 

referring to ‘‘Rule 15d–22(b)’’ after the 

checkbox referring to ‘‘Rule 15d–6’’. 

Dated: January 6, 2011. 

By the Commission. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–416 Filed 1–11–11; 8:45 am] 

BILLING CODE 8011–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 49, 60, 63, 75, 86, 89, 92, 

94, 761, and 1065 

[EPA–HQ–OPPT–2010–0518; FRL–8846–6] 

RIN 2070–AJ51 

Incorporation of Revised ASTM 

Standards That Provide Flexibility in 

the Use of Alternatives to MercuryContaining Thermometers; Solicitation 

of Public Comment on the Required 

Use of Mercury-Containing 

Thermometers in EPA Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

incorporate the most recent versions of 

the American Society for Testing and 

Materials (ASTM) International 

standards (ASTM standards) into EPA 

regulations that provide flexibility to 

use alternatives to mercury-containing 

industrial thermometers. These 

proposed amendments will allow the 

use of such alternatives in certain 

limited field and laboratory applications 

previously impermissible as part of 

compliance with EPA regulations. 

Additionally, EPA is seeking public 

input on the need to address the 

remaining EPA regulations that 

incorporate by reference ASTM 

standards that do not allow the use of 

alternatives to mercury-containing 

industrial thermometers. EPA believes 

these embedded ASTM standards may 

unnecessarily impede the use of 

effective, comparable, and available 

mercury alternatives. Due to elemental 

mercury’s high toxicity, EPA seeks to 

reduce potential mercury exposures to 

humans and the environment by 

reducing the overall use of mercurycontaining products, including mercurycontaining thermometers. 

DATES: Comments must be received on 

or before March 14, 2011. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2010–0518 by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460– 

0001. 

• Hand Delivery: OPPT Document 

Control Office (DCO), EPA East Bldg., 

Rm. 6428, 1201 Constitution Ave., NW., 

Washington, DC. Attention: Docket ID 

Number EPA–HQ–OPPT–2010–0518. 

The DCO is open from 8 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

DCO is (202) 564–8930. Such deliveries 

are only accepted during the DCO’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPPT– 

2010–0518. EPA’s policy is that all 

comments received will be included in 

the docket without change and may be 

made available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or email. The regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the docket and made available 

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