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[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80296-80300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32098]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 232

[Release No. 33-9165; File No. S7-18-10]
RIN 3235-AK70

Extension of Filing Accommodation for Static Pool Information in 
Filings With Respect to Asset-Backed Securities

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Commission is adopting an amendment to Rule 312 of 
Regulation S-T to further extend its application for eighteen months. 
Rule 312 provides a temporary filing accommodation for filings with 
respect to asset-backed securities that allows static pool information 
required to be disclosed in a prospectus of an asset-backed issuer to 
be provided on an Internet Web site under certain conditions. Under 
this rule, such information is deemed to be included in the prospectus 
included in the registration statement for the asset-backed securities. 
As a result of the extension, the rule will apply to filings with 
respect to asset-backed securities filed on or before June 30, 2012.

DATES: Effective Date: December 31, 2010.

FOR FURTHER INFORMATION CONTACT: Jay Knight, Attorney-Adviser, Division 
of Corporation Finance, at (202) 551-3370, U.S. Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-3720.

SUPPLEMENTARY INFORMATION: We are adopting an amendment to Rule 312 \1\ 
of Regulation S-T.\2\
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    \1\ 17 CFR 232.312.
    \2\ 17 CFR 232.10 et seq.
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I. Background and Discussion of the Amendment

    In December 2004, we adopted new and amended rules and forms to 
address the registration, disclosure and reporting requirements for 
asset-backed securities (``ABS'') under the Securities Act of 1933 \3\ 
(the ``Securities Act'') and the Securities Exchange Act of 1934 \4\ 
(the ``Exchange Act'').\5\ As part of this rulemaking, we adopted 
Regulation AB,\6\ a new principles-based set of disclosure items 
forming the basis for disclosure with respect to ABS in both Securities 
Act registration statements and Exchange Act reports. Compliance with 
the revised rules was phased in; full compliance with the revised rules 
became effective January 1, 2006. One of the significant features of 
Regulation AB is Item 1105, which requires, to the extent material, 
static pool information to be provided in the prospectus included in 
registration statements for ABS offerings.\7\ While the disclosure 
required by Item 1105 depends on factors such as the type of underlying 
asset and materiality, the information required to be disclosed can be 
extensive. For example, a registrant may be required to disclose 
multiple performance metrics in periodic increments for prior 
securitized pools of the sponsor for the same asset type in the last 
five years.\8\
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    \3\ 15 U.S.C. 77a et seq.
    \4\ 15 U.S.C. 78a et seq.
    \5\ See Asset-Backed Securities, Release No. 33-8518 (Dec. 22, 
2004) [70 FR 1506] (adopting release related to Regulation AB and 
other new rules and forms related to asset-backed securities) 
(hereinafter, the ``2004 Adopting Release'').
    \6\ 17 CFR 229.1100 et seq.
    \7\ See Form S-1 (17 CFR 239.11) and Form S-3 (17 CFR 239.13) 
under the Securities Act. Static pool information indicates how 
groups, or static pools, of assets, such as those originated at 
different intervals, are performing over time. By presenting 
comparisons between originations at similar points in the assets' 
lives, the data allows the detection of patterns that may not be 
evident from overall portfolio numbers and thus may reveal a more 
informative picture of material elements of portfolio performance 
and risk.
    \8\ 17 CFR 229.1105.

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[[Page 80297]]

    As described in the 2004 Adopting Release, in response to the 
Commission's proposal to require material static pool information in 
prospectuses for ABS offerings, many commentators representing both ABS 
issuers and investors requested flexibility in the presentation of such 
information. In particular, commentators noted that the required static 
pool information could include a significant amount of statistical 
information that would be difficult to file electronically on EDGAR as 
it existed at that time and difficult for investors to use in that 
format. Commentators accordingly requested the flexibility for ABS 
issuers to provide static pool information on an Internet Web site 
rather than as part of an EDGAR filing.\9\ In response to these 
comments, we adopted Rule 312 of Regulation S-T, which permits, but 
does not require, the posting of the static pool information required 
by Item 1105 on an Internet Web site under the conditions set forth in 
the rule.\10\ We recognized at the time that a Web-based approach might 
allow for the provision of the required information in a more 
efficient, dynamic and useful format than was currently feasible on the 
EDGAR system. At the same time, we explained that we continued to 
believe at some point for future transactions the information should 
also be submitted with the Commission in some fashion, provided 
investors continue to receive the information in the form they have 
requested. Accordingly, we adopted Rule 312 as a temporary filing 
accommodation applicable to filings filed on or before December 31, 
2009.\11\ We explained that we were directing our staff to consult with 
the EDGAR contractor, EDGAR filing agents, issuers, investors and other 
market participants to consider how static pool information could be 
filed with the Commission in a cost-effective manner without undue 
burden or expense that still allows issuers to provide the information 
in a desirable format. We also noted, however, that it might be 
necessary, among other things, to extend the accommodation.\12\
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    \9\ See 2004 Adopting Release, Section III.B.4.b.
    \10\ 17 CFR 232.312(a). Instead of relying on Rule 312, an 
issuer can include information required by Item 1105 of Regulation 
AB physically in the prospectus or, if permitted, through 
incorporation by reference from an Exchange Act report.
    \11\ 17 CFR 232.312(a); see also 2004 Adopting Release, Section 
III.B.4.b.
    \12\ 2004 Adopting Release, Section III.B.4.b.
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    On December 15, 2009, we adopted a one-year extension of the filing 
accommodation.\13\ In the adopting release for the extension (``2009 
Static Pool Extension Adopting Release''), we noted the staff's 
experience with the rule and that a vast majority of residential 
mortgage-backed security issuers and a significant portion of ABS 
issuers in other asset classes have relied on the accommodation 
provided by the rule to disclose static pool information on an Internet 
Web site. We also noted that the staff of the Division of Corporation 
Finance was, at the time, engaged in a broad review of the Commission's 
regulation of ABS including disclosure, offering process, and reporting 
of ABS issuers and that along with this review, the staff of the 
Division of Corporation Finance was continuing to explore whether it 
was feasible to provide a filing mechanism for static pool information 
that fulfills the Commission's objectives. We also stated our belief 
that a proposal for a longer-term solution for providing static pool 
disclosure would be better considered together with other proposals on 
the regulations relating to the offer and sale of ABS.
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    \13\ Extension of Filing Accommodation for Static Pool 
Information in Filings With Respect to Asset-Backed Securities, 
Release No. 33-9087 (Dec. 15, 2009) [74 FR 67812] (the ``2009 Static 
Pool Extension Adopting Release'').
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    On April 7, 2010, we proposed significant revisions to Regulation 
AB and other rules regarding the offering process, disclosure and 
reporting for asset-backed securities (the ``2010 ABS Proposals'').\14\ 
In that release, we proposed to revise Rule 312 to remove the temporary 
accommodation set to expire on December 31, 2010. In lieu thereof, 
under the proposal, ABS issuers would be required to file all static 
pool information on EDGAR; however, we proposed to allow that such 
information be filed in Portable Document Format (PDF).\15\ Also, in 
lieu of providing the static pool information in the prospectus, we 
proposed to allow issuers to file the disclosure on Form 8-K and 
incorporate it by reference. The comment period for the 2010 ABS 
Proposals expired on August 2, 2010.
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    \14\ Asset-Backed Securities, Release No. 33-9117 (Apr. 7, 2010) 
[75 FR 23328] (the ``2010 ABS Proposing Release'').
    \15\ Portable Document Format (PDF) is a file format created by 
Adobe Systems in 1993 for document exchange. PDF captures formatting 
information from a variety of desktop publishing applications, 
making it possible to send formatted documents and have them appear 
on the recipient's monitor or printer for free as they were 
intended. To view a file in PDF format, you need Adobe Reader, an 
application distributed by Adobe Systems.
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    On August 30, 2010, we proposed to extend the temporary filing 
accommodation set forth in Rule 312 of Regulation S-T for eighteen 
months so that it would apply to filings with respect to ABS filed on 
or before June 30, 2012.\16\ We received three comment letters that 
addressed the proposed extension.\17\ All three commentators expressed 
support for the Rule 312 filing accommodation and the proposed 
extension.\18\ The ASF cited the strong preference among both its 
issuer and investor members for Web-based presentation of static pool 
information due to its utility and effectiveness and the current lack 
of an adequate filing alternative.\19\ SIFMA and CNH Capital agreed 
that a long-term solution for providing static pool disclosure would be 
better considered together with other proposals to revise the 
regulations governing the offer and sale of ABS.\20\ With regard to the 
duration of an extension, ASF requested that the filing accommodation 
be made permanent or, in the alternative, extended for five years; \21\ 
CNH Capital requested that the duration of the extension be 
synchronized with the timing of implementation of the other disclosure 
requirements that were proposed in the 2010 ABS Proposing Release but 
have not yet been adopted; \22\ and SIFMA supported the Commission's 
proposal to extend the temporary accommodation for the filing of static 
pool information for eighteen months.\23\
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    \16\ Extension of Filing Accommodation for Static Pool 
Information in Filings With Respect to Asset-Backed Securities, 
Release No. 33-9137 (Aug. 30, 2010) [75 CFR 54059] (hereinafter, the 
``Proposing Release'').
    \17\ The public comment letters we received are available online 
at http://www.sec.gov/comments/s7-18-10/s71810.shtml.
    \18\ See letters from the American Securitization Forum 
(``ASF''), CNH Capital America LLC (``CNH Capital''), and the 
Securities Industry and Financial Markets Association (``SIFMA'').
    \19\ See letter from ASF.
    \20\ See letters from SIFMA and CNH Capital.
    \21\ See letter from ASF.
    \22\ See letter from CNH Capital.
    \23\ See letter from SIFMA.
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    We are adopting as proposed an eighteen-month extension to the 
temporary filing accommodation provided by Rule 312. As we stated in 
the Proposing Release, we believe a proposal for a long-term solution 
for providing static pool disclosure would be better considered 
together with other proposals to revise the regulations governing the 
offer and sale of ABS. Additionally, on July 21, 2010, President Obama 
signed the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(the ``Act'').\24\ Among other things, the Act mandates a number of 
significant changes to the regulation of ABS offerings. In order to 
provide

[[Page 80298]]

ample time for the Commission and its staff to give proper 
consideration to comments received on the 2010 ABS Proposals and in 
light of the changes to the regulations of ABS offerings that are 
mandated by the Act, we are adopting the extension to the temporary 
filing accommodation set forth in Rule 312 of Regulation S-T for an 
additional eighteen months so that it would apply to filings with 
respect to ABS filed on or before June 30, 2012. Although we are 
adopting an eighteen-month extension of Rule 312, we may take action on 
the 2010 ABS Proposals, including the static pool proposal, at any time 
before the expiration of the extension.
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    \24\ Public Law 111-203, 124 Stat. 1376 (July 21, 2010).
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    Under the extension, the temporary filing accommodation set forth 
in Rule 312 of Regulation S-T will apply to filings with respect to ABS 
filed on or before June 30, 2012. During the extension, the existing 
requirements of Rule 312 will continue to apply. Pursuant to these 
requirements, the registrant must disclose its intention to provide 
static pool information through a Web site in the prospectus included 
in the registration statement at the time of effectiveness and provide 
the specific Internet address where the static pool information is 
posted in the prospectus filed pursuant to Rule 424.\25\ The registrant 
must maintain such information on the Web site unrestricted and free of 
charge for a period of not less than five years, indicate the date of 
any updates or changes to the information, undertake to provide any 
person without charge, upon request, a copy of the information as of 
the date of the prospectus if a subsequent update or change is made to 
the information and retain all versions of the information provided on 
the Web site for a period of not less than five years in a form that 
permits delivery to an investor or the Commission. In addition, the 
registration statement for the ABS must contain an undertaking pursuant 
to Item 512(l) of Regulation S-K \26\ that the information provided on 
the Web site pursuant to Rule 312 is deemed to be part of the 
prospectus included in the registration statement.\27\
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    \25\ 17 CFR 230.424.
    \26\ 17 CFR 229.512(l).
    \27\ 17 CFR 232.312. As we indicated in the 2004 Adopting 
Release, if the conditions of Rule 312 are satisfied, then the 
information will be deemed to be part of the prospectus included in 
the registration statement and thus subject to all liability 
provisions applicable to prospectuses and registration statements, 
including Section 11 of the Securities Act [15 U.S.C. 77k]. 2004 
Adopting Release, Section III.B.4.b.
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    The Administrative Procedure Act generally requires that an agency 
publish an adopted rule in the Federal Register 30 days before it 
becomes effective. This requirement, however, does not apply if the 
agency finds good cause for making the rule effective sooner.\28\ 
Because the temporary filing accommodation expires on December 31, 
2010, we believe it is necessary to make the amendment effective 
December 31st so that there is no gap between which an issuer would be 
required to convert its static pool data into an EDGAR filing. In 
addition, this extension creates no new requirements but maintains a 
voluntary accommodation that relieves a registrant from the obligation 
to file static pool data on EDGAR, provided it makes the information 
available on a Web site. The Commission therefore believes the 
extension grants or recognizes an exemption or relieves a restriction. 
On the basis of the foregoing, the Commission finds good cause to make 
the amendment effective December 31, 2010.
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    \28\ See 5 U.S.C. 553(d).
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II. Paperwork Reduction Act

    Rule 312 of Regulation S-T was adopted in 2004 along with other new 
and amended rules and forms to address the registration, disclosure and 
reporting requirements for ABS under the Securities Act and the 
Exchange Act. In connection with this prior rulemaking, we submitted a 
request for approval of the ``collection of information'' requirements 
contained in the amendments and rules to the Office of Management and 
Budget (``OMB'') in accordance with the Paperwork Reduction Act of 1995 
(``PRA'').\29\ OMB approved these requirements.\30\
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    \29\ 44 U.S.C. 3501 et seq.
    \30\ The collections of information to which Rule 312 of 
Regulation S-T relates are ``Form S-1'' (OMB Control No. 3235-0065) 
and ``Form S-3'' (OMB Control No. 3235-0073).
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    Item 1105 of Regulation AB \31\ requires certain static pool 
information, to the extent material, to be provided in prospectuses 
included in registration statements for ABS offerings.\32\ Rule 312 is 
a temporary filing accommodation that permits the posting of the static 
pool information required by Item 1105 on an Internet Web site under 
the conditions set forth in the rule.\33\ The amendment to Rule 312 
further extends the existing temporary filing accommodation provided by 
the rule for an additional eighteen months. As is the case today, 
issuers may choose whether or not to take advantage of the 
accommodation. The conditions of Rule 312 remain otherwise unchanged. 
The disclosure requirements themselves, which are contained in Forms S-
1 and S-3 under the Securities Act and require the provision of the 
information set forth in Item 1105 of Regulation AB, also remain 
unchanged. Therefore, the amendment will not result in an increase or 
decrease in the costs and burdens imposed by the ``collection of 
information'' requirements previously approved by the OMB. No 
commentator suggested the extension would impose any new paperwork 
burden.
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    \31\ 17 CFR 229.1105.
    \32\ See Form S-1 and Form S-3 under the Securities Act.
    \33\ 17 CFR 232.312(a).
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III. Benefit-Cost Analysis

    In this section, we examine the benefits and costs of the 
amendment. In the Proposing Release, we requested that commentators 
provide views, supporting information and estimates on the benefits and 
costs that may result from the adoption of the proposed amendment. No 
commentator addressed the cost-benefit analysis of the Proposing 
Release.

A. Benefits

    We initially adopted the filing accommodation provided by Rule 312 
of Regulation S-T because commentators requested flexibility in the 
presentation of required static pool information. Given the large 
amount of statistical information involved, those commentators argued 
for a Web-based approach that would allow issuers to present the 
information in an efficient manner and with greater functionality and 
utility than might have been available if an EDGAR filing was required. 
We believe this greater functionality and utility has enhanced an 
investor's ability to access and analyze the static pool information 
because investors have been able to access static pool information in 
more user-friendly formats than was initially capable with filings on 
EDGAR and also removed the burden on issuers of duplicating the 
information in each prospectus as well as easing the burdens of 
updating such information.\34\ As we discussed in the 2004 Adopting 
Release, since the information is deemed to be part of the prospectus 
included in the registration statement, the rule is designed to give 
investors access to accurate and reliable information.
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    \34\ See Section I above and 2004 Adopting Release, Section V.D.
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    By further extending the accommodation provided by Rule 312, these 
benefits to both issuers and investors will continue to apply. As noted 
in the 2009 Static Pool Extension Adopting Release, based on the 
staff's experience since Rule 312 became

[[Page 80299]]

effective in 2006, the vast majority of residential mortgage-backed 
security issuers and a significant portion of ABS issuers in other 
asset classes have relied on the accommodation provided by the rule to 
disclose static pool information on an Internet Web site.\35\ If we did 
not further extend the accommodation provided by Rule 312 as we are 
doing today, static pool information would have been required in EDGAR 
filings beginning on January 1, 2011. We believe this would have 
resulted in costs for issuers as they attempt to adjust their 
procedures in a short period of time in order to present the 
information in a format acceptable to the EDGAR system and could have 
resulted in costs to investors if the information filed on EDGAR was 
presented in a less useful format.
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    \35\ See Section I of the 2009 Static Pool Extension Adopting 
Release.
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    As indicated above, on April 7, 2010, we issued a release proposing 
to require the filing of static pool information on EDGAR at the same 
time we proposed other amendments addressing the disclosure, offering 
process and reporting of ABS issuers.\36\ We believe that the eighteen-
month extension to the temporary filing accommodation contained in Rule 
312 will benefit both investors and issuers by maintaining a consistent 
approach to the filing of static pool information while we and our 
staff consider comments received on the proposed amendment to static 
pool filing together with our other proposals regarding the offering 
and sale of asset-backed securities and in light of the changes to the 
regulations of ABS offerings that are mandated by the Dodd-Frank Act.
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    \36\ See 2010 ABS Proposing Release.
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B. Costs

    We do not believe the eighteen-month extension of the Rule 312 
accommodation will impose any new or increased costs on issuers. In the 
Cost-Benefit Analysis section of the 2004 Adopting Release, we noted 
that ABS issuers electing the Web-based accommodation provided by Rule 
312 would incur costs related to the maintenance and retention of 
static pool information posted on a Web site and might also incur 
start-up costs.\37\ While it is likely that certain of those costs will 
continue to impact ABS issuers that elect the Web-based approach during 
the extension period, we do not believe the amendment will impose any 
new or increased costs for ABS issuers because it does not change any 
other conditions to the accommodation or the underlying filing and 
disclosure obligations. As a result of the extension of the 
accommodation, ABS issuers will be able to continue their current 
practices for an additional eighteen months.
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    \37\ See 2004 Adopting Release, Section V.D.
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    For investors, there may be costs associated with the static pool 
information not being electronically filed with the Commission. For 
example, when information is electronically filed with the Commission, 
investors and staff can access the information from a single, 
permanent, and centralized location, the EDGAR Web site.\38\ We think 
these costs are mitigated by the fact that ABS issuers relying on the 
Rule 312 accommodation must ensure that the prospectus for the offering 
contains the Internet Web site address where the static pool 
information is posted, the Web site must be unrestricted and free of 
charge, such information must remain on the Internet Web site for five 
years with any changes clearly indicated and the issuer must undertake 
to provide the information to any person free of charge, upon request, 
if a subsequent update or change is made. Furthermore, because the 
information is deemed included in the prospectus under Rule 312, it is 
subject to all liability provisions applicable to prospectuses and 
registration statements.
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    \38\ See, e.g., comment letter from EDGAROnline dated December 
9, 2009, on the Extension of Filing Accommodation for Static Pool 
Information in Filings With Respect to Asset-Backed Securities, 
Release No. 33-9074 (Oct. 19, 2009) [74 FR 54767] (the ``2009 Static 
Pool Extension Proposing Release''). EDGAROnline commented that 
extending the filing accommodation will hinder the quality and 
comparability of information because investors will not be able to 
depend on a common repository for cross issuer comparisons. The 
public comments on the 2009 Static Pool Extension Proposing Release 
are available at http://www.sec.gov/comments/s7-23-09/s72309.shtml.
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    Investors and issuers may have incurred costs to adjust their 
processes in anticipation of the lapse of the Rule 312 accommodation 
and potential reversion to a requirement to file static pool 
information on EDGAR. In this case, benefits to investors or issuers of 
not having to change their procedures regarding static pool reporting 
in a short time frame would be diminished by any costs already incurred 
in anticipation of the change. We believe such anticipatory action and 
any associated costs are minimal.

IV. Consideration of Impact on the Economy, Burden on Competition and 
Promotion of Efficiency, Competition and Capital Formation

    Section 2(b) of the Securities Act requires us, when engaging in 
rulemaking where we are required to consider or determine whether an 
action is necessary or appropriate in the public interest, to also 
consider whether the action will promote efficiency, competition, and 
capital formation.
    As discussed in greater detail above, Rule 312 of Regulation S-T 
was adopted as a temporary filing accommodation so that issuers of ABS 
could present static pool information on an Internet Web site. The 
amendment to Rule 312 of Regulation S-T that we are adopting today 
further extends its application for eighteen months. We are not 
changing the conditions of Rule 312 or to the disclosure obligations to 
which it applies. We do not believe that the eighteen-month extension 
will impose a burden on competition. We also believe the extension of 
the filing accommodation will continue to promote efficiency and 
capital formation by permitting ABS issuers to disclose static pool 
information in a format that is more useful to investors and cost-
effective and not unduly burdensome for ABS issuers.
    We requested comment on whether the proposed amendment, if adopted, 
would promote efficiency, competition, and capital formation. We did 
not receive any comments directly responding to this request.

V. Regulatory Flexibility Act Certification

    In Part VII of the Proposing Release, the Commission certified 
pursuant to 5 U.S.C. 605(b) that the proposed amendment to Rule 312 of 
Regulation S-T would not have a significant economic impact on a 
substantial number of small entities. While the Commission encouraged 
written comments regarding this certification, no commentators 
responded to this request or indicated that the amendment as adopted 
would have a significant economic impact on a substantial number of 
small entities.

VI. Statutory Authority and Text of the Amendment

    The amendment described is being adopted under the authority set 
forth in Sections 6, 7, 10, 19 and 28 of the Securities Act of 1933 (15 
U.S.C. 77f, 77g, 77j, 77s and 77z-3).

List of Subjects in 17 CFR Part 232

    Reporting and recordkeeping requirements, Securities.

Text of the Amendment

0
For the reasons set out in the preamble, the Commission hereby amends 
title 17, chapter II, of the Code of Federal Regulations as follows:

[[Page 80300]]

PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR 
ELECTRONIC FILINGS

0
1. The authority citation for part 232 continues to read, in part, as 
follows:

    Authority:  15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 
80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.
* * * * *

0
2. Amend Sec.  232.312 paragraph (a) introductory text by removing 
``December 31, 2010'' and in its place adding ``June 30, 2012'' in the 
first sentence.

    By the Commission.

    Dated: December 16, 2010.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-32098 Filed 12-21-10; 8:45 am]
BILLING CODE 8011-01-P
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