[Federal Register Volume 74, Number 198 (Thursday, October 15, 2009)]
[Proposed Rules]
[Pages 53114-53121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24547]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 220

[Release Nos. 33-9071; 34-60798; IC-28943; File No. S7-21-09]
RIN 3235-AK45


Concept Release on Possible Rescission of Rule 436(g) Under The 
Securities Act of 1933

AGENCY: Securities and Exchange Commission.

ACTION: Concept release; request for comments.

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SUMMARY: As part of the Commission's review of the role of credit 
rating agencies in the operation of the securities markets, and in 
light of disclosure regarding credit ratings that is being proposed in 
a companion release, the Commission is seeking comment on whether Rule 
436(g) under the Securities Act of 1933 should be rescinded. In 
particular, we would like to understand whether there continues to be a 
sufficient basis to exempt nationally recognized statistical rating 
organizations from Section 7 and 11 of the Securities Act.

DATES: Comments should be received on or before December 14, 2009.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/concept.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#552720393078363a3838303b2126152630367b323a23"><span class="__cf_email__" data-cfemail="0c7e796069216f6361616962787f4c7f696f226b637a">[email protected]</span></a>. Please include 
File Number S7-21-09 on the subject line; or
    <bullet> Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

    <bullet> 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 S7-21-09. 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 Web 
site (http://www.sec.gov/rules/concept.shtml). Comments are also 
available for public inspection and copying 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: Blair F. Petrillo, Special Counsel in 
the Office of Rulemaking, Division of Corporation Finance, at (202) 
551-3430, 100 F Street, NE., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: In a companion release,\1\ the Commission is 
proposing amendments to rules under the Securities Exchange Act of 1934 
\2\ and Regulation S-K,\3\ and forms under the Securities Act of 
1933,\4\ the Exchange Act and the Investment Company Act of 1940 \5\ to 
require disclosure by registrants regarding credit ratings in their 
registration statements under the Securities Act and the Exchange Act, 
and by closed-end management investment companies in registration 
statements under the Securities Act and the Investment Company Act, if 
the registrant uses the rating in connection with a registered 
offering. In connection with the proposed amendments, we are soliciting 
comment on whether the Commission should rescind Rule 436(g) under the 
Securities Act.\6\
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    \1\ See the proposing release considered by the Commission on 
September 17, 2009 regarding proposed disclosure regarding credit 
ratings in registration statements.
    \2\ 15 U.S.C. 78a et seq.
    \3\ 17 CFR 229.10 through 1123.
    \4\ 15 U.S.C. 77a et seq.
    \5\ 15 U.S.C. 80a-1 et seq.
    \6\ 17 CFR 220.436(g).
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I. Introduction

    We are considering whether we should propose rescinding Rule 436(g) 
under the Securities Act. Rule 436(g) provides an exemption for credit 
ratings provided by nationally recognized statistical rating 
organizations (``NRSROs'') from being considered a part of the 
registration statement prepared or certified by a person within the 
meaning of Sections 7 \7\ and 11 \8\ of the Securities Act. The 
exemption currently does not apply to credit rating agencies that are 
not NRSROs. We are concerned that there is no longer a sufficient basis 
to exempt NRSROs and to distinguish between NRSROs and credit rating 
agencies that are not NRSROs for purposes of liability under Section 11 
of the Securities Act. Rescinding the exemption would cause NRSROs to 
be included in the liability scheme for experts set forth in Section 
11, as is currently the case for credit rating agencies that are not 
NRSROs.
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    \7\ 15 U.S.C. 77g.
    \8\ 15 U.S.C. 77k.
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    We solicit comment on what impact removing the rule would have on 
markets and their participants. Scrutiny of credit ratings and the 
process of obtaining a credit rating appears to have increased as a 
result of the turmoil in the credit markets over the past few years. As 
discussed below and in the companion release proposing to require 
disclosure regarding credit ratings, as credit ratings have become more 
significant, we have sought to protect investors while recognizing the 
role credit ratings play in the offer and sale of securities. In that 
regard, we are now exploring whether Rule 436(g) is still appropriate 
in light of the growth and development of the credit rating industry 
and investors' use of credit ratings. We are mindful of the potential 
significant impact that rescinding Rule 436(g) could have on 
registrants,

[[Page 53115]]

NRSROs and other credit rating agencies, investors and the financial 
markets in general, and we seek comment on any burdens or benefits that 
may result. Therefore, we are requesting input on the possible 
elimination of Rule 436(g) from all market participants and other 
members of the public.

A. Section 7 and Section 11 of the Securities Act

    Section 7 of the Securities Act provides that ``[i]f any 
accountant, engineer, or appraiser, or any person whose profession 
gives authority to a statement made by him, is named as having prepared 
or certified any part of the registration statement, or is named as 
having prepared or certified a report or valuation for use in 
connection with the registration statement, the written consent of such 
person shall be filed with the registration statement.'' \9\ These 
persons are referred to as experts for purposes of the securities laws. 
Registrants are required to file the consents of experts as exhibits to 
their registration statements.
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    \9\ See Section 7 of the Securities Act in note 7 above.
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    Section 11 of the Securities Act imposes liability on various 
parties who are involved in the preparation of registration statements 
filed under the Securities Act. Section 11 was enacted so that those 
persons with a direct role in a registered offering would be subject to 
a rigorous standard of liability to assure that disclosure regarding 
securities is accurate.\10\ It was also designed to give investors 
additional protection not available under common law due to the 
barriers to recovery presented by the common law fraud requirements of 
scienter, reliance and causation. Liability under Section 11 extends to 
the issuer, officers and directors who sign the registration statement, 
underwriters, and persons who prepare or certify any part of the 
registration statement or who are named as having prepared or certified 
a report or valuation for use in connection with the registration 
statement.\11\ Section 11 provides that an expert may be held liable 
if, when the registration statement became effective, the part of the 
registration statement purporting to be made on his or her authority 
contained an untrue statement of material fact or omitted to state a 
material fact necessary to make the statements therein not misleading, 
unless he can establish that he had, after reasonable investigation, 
reasonable grounds to believe and did believe at the time such part of 
the registration statement became effective, that the statements in the 
registration statement were true and that there was no omission to 
state a material fact necessary to make the statements therein not 
misleading.\12\ Under Section 11, persons other than the issuer may be 
able to assert as a defense to Section 11 liability that they relied 
upon an expert that consented to be named in the registration statement 
(the ``experts' defense'').\13\
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    \10\ See William O. Douglas and George E. Bates, The Federal 
Securities Act of 1933, 43 Yale L.J. 171 (1933); Herman & Maclean v. 
Huddleston, 459 U.S. 375 (1983).
    \11\ See Section 11 of the Securities Act in note 8 above.
    \12\ See Section 11(b) of the Securities Act [15 U.S.C. 77k(b)].
    \13\ See Section 11(b)(3)(C) of the Securities Act [15 U.S.C. 
77k(b)(3)(C)].
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B. Background of Rule 436(g)

    Securities Act Rule 436(g) provides that a credit rating assigned 
by an NRSRO to a class of debt securities, a class of convertible debt 
securities, or a class of preferred stock is not a part of a 
registration statement prepared or certified by a person within the 
meaning of Sections 7 and 11 of the Securities Act. With one limited 
exception arising in connection with our Multijurisdictional Disclosure 
System with Canada, there is no similar provision for credit rating 
agencies that are not NRSROs.\14\ As a result, disclosure of credit 
ratings in a registration statement currently results in different 
treatment for NRSROs and for credit rating agencies that are not 
NRSROs. By virtue of Rule 436(g), an NRSRO is not subject to liability 
under Section 11 even if its rating is disclosed in a registration 
statement. A registrant is not required to file consent of an NRSRO 
with its registration statement, and the experts' defense is not 
available to other persons involved in the registration statement, 
regardless of whether they relied on the expertized portion of the 
registration statement. By contrast, if a credit rating assigned by a 
credit rating agency that is not an NRSRO is disclosed in a 
registration statement, the credit rating agency would be subject to 
potential liability under Section 11. The registrant is required to 
file the credit rating agency's consent with its registration 
statement, and the experts' defense may be available.
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    \14\ Rule 436(g) applies to ratings disclosed in Form F-9 [17 
CFR 239.39.] registration statements by ratings organizations 
specified in the Instruction to paragraph (a)(2) of General 
Instruction I of that form. Form F-9 is the Multijurisdictional 
Disclosure System (``MJDS'') form used to register investment grade 
debt or preferred securities under the Securities Act by eligible 
Canadian issuers. Under Form F-9, securities are deemed to be 
investment grade if, at the time of sale, at least one NRSRO or 
Approved Rating Organization, as specified in the above-referenced 
Instruction, has rated the securities in a category signifying 
investment grade.
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    In 1977, the Commission published a concept release announcing that 
it was considering a change in policy to permit disclosure of credit 
ratings in documents filed with the Commission.\15\ In that release the 
Commission solicited comment on whether an NRSRO is the type of person 
from whom a consent would be required under Section 7 of the Securities 
Act (thereby also subjecting it to liability under Section 11). That 
release contained a list of questions regarding the Commission's then-
current policy of discouraging the disclosure of credit ratings and 
whether the Commission should change that policy or retain it.\16\ 
According to the 1981 release ultimately announcing the Commission's 
change in position, commenters on the 1977 release generally were 
opposed to subjecting NRSROs to liability under Section 11 and argued, 
among other things, that it would interfere with the substance and 
timing of the registration process, that it would result in changes to 
the way credit ratings were issued, and that it would result in 
increased costs and uncertainty over the scope of liability.\17\ The 
NRSROs in existence in 1977 indicated that they would not provide 
consents to be named in the registration statement.\18\ The 1981 
release also indicated that commenters were concerned that requiring 
consent and subjecting NRSROs to Section 11 liability would affect 
their independence if they were ``participants'' in the offering and 
would lessen the quality of ratings because NRSROs likely would rely 
only on

[[Page 53116]]

objective, quantifiable information.\19\ The commenters in favor of 
subjecting NRSROs to liability under Section 11 cited the incentive 
that NRSROs would take more care in determining ratings.\20\
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    \15\ See Disclosure of Security Ratings, Release No. 33-5882 
(Nov. 9, 1977) [42 FR 58414].
    \16\ The Commission sought comment on two questions regarding 
NRSROs and liability under Section 11 of the Securities Act:
    A. (5) Is an entity issuing a security rating the type of person 
referred to in Section 7 of the Securities Act of 1933 whose consent 
is required to be filed by the issuer of the security? If so, what 
costs or other burdens may be associated with the issuer obtaining a 
consent from the rating agency or, in the case of multiple ratings, 
from all the rating agencies involved? Assuming, arguendo, that such 
consents may be waived by the Commission under Section 7, should 
waivers be granted and, if so, under what circumstances?
    A. (6) What impact may result, directly or indirectly, from a 
rating entity being subject to Section 11 under the Securities Act 
of 1933, with respect to its rating being disclosed in a prospectus?
    See the 1977 Release in note 15 above.
    \17\ See Disclosure of Ratings in Registration Statements, 
Release No. 33-6336 (Aug. 6, 1981) [46 FR 42024].
    \18\ Id.
    \19\ Id.
    \20\ Id.
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    As noted above, in 1981, the Commission announced the shift in 
policy to permit, but not require, disclosure of credit ratings in 
registration statements. In addition, the Commission proposed 
Securities Act Rule 436(g) to provide that a security rating assigned 
to a class of debt securities, a class of convertible debt securities, 
or a class of preferred stock by an NRSRO would not be considered a 
part of the registration statement prepared or certified by a person 
within the meaning of Section 7 and Section 11 of the Securities 
Act.\21\ In proposing Rule 436(g), the Commission noted that if NRSROs 
refused to provide consents, then disclosure of credit ratings would 
not be provided even if permitted by the Commission. As a result, the 
Commission proposed Rule 436(g) in order to make its new policy 
position on the disclosure of credit ratings meaningful.\22\ The 
Commission also cited the fact that NRSROs already were subject to 
substantial liability under the antifraud provisions of the securities 
laws and to regulation by the Commission under the Investment Advisers 
Act of 1940.\23\ The Commission then expected that, because of 
antifraud liability, NRSROs would be required ``to adhere to the 
highest professional standards in determining security ratings.'' \24\ 
When Rule 436(g) was adopted in 1982, the Commission stated its belief 
that exempting NRSROs from liability under Section 11 of the Securities 
Act was appropriate and cited the rationale provided in the proposing 
release that practical problems would arise in obtaining the consents 
and that NRSROs were subject to the antifraud provisions of the 
securities laws.\25\
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    \21\ Id.
    \22\ Id.
    \23\ 15 U.S.C. 80b-1 et seq. At the time Rule 436(g) was 
proposed, NRSROs generally were required to register as investment 
advisers. Congress provided an exclusion from the Advisers Act for 
NRSROs when it passed the Credit Rating Agency Reform Act of 2006, 
Public Law. 109-291, 120 Stat. 1327 (Sept. 29, 2006). See Section 
202(a)(11)(F) of the Advisers Act [15 U.S.C. 80b-202(a)(11)(F)].
    \24\ See Disclosure of Ratings in Registration Statements in 
note 17 above.
    \25\ See Adoption of Integrated Disclosure System, Release No. 
33-6383 (Mar. 3, 1982) [47 FR 11380].
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    In 1986, the Commission proposed to expand the Rule 436(g) 
exemption to include ratings assigned by NRSROs to money market 
funds.\26\ In proposing the rule, the Commission stated ``because money 
market fund shares are equity securities, a money market fund which has 
received an NRSRO rating must obtain the consent of the NRSRO or seek a 
waiver of consent under Rule 437 [17 CFR 230.437] before using the 
rating in its registration statement.'' \27\ The Commission did not act 
on this proposal, and Rule 436(g) was not amended.
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    \26\ See Disclosure of Security Ratings by Money Market Funds, 
Release No. 33-6630 (March 21, 1986) [51 FR 9838].
    \27\ Id.
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    In 1994, the Commission proposed to require disclosure about credit 
ratings in registration statements.\28\ In the 1994 release, the 
Commission noted that the policy announced in 1981 created a 
distinction between NRSROs and credit rating agencies that were not 
NRSROs. The Commission noted that the distinction was most significant 
in the context of Rule 436(g). While an NRSRO would not be required to 
provide a consent if its rating was disclosed in a registration 
statement pursuant to Rule 436(g), ``[a]ny non-NRSRO rating 
organization must furnish a consent and take on expert liability under 
the Securities Act if its rating is included in the registration 
statement and prospectus.'' \29\
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    \28\ See Disclosure of Security Ratings, Release No. 33-7086 
(Aug. 31, 1994) [59 FR 46304].
    \29\ Id.
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    The 1994 release did not propose any change to Rule 436(g), but it 
did solicit comment on whether there should continue to be a 
distinction between NRSROs and credit rating agencies that are not 
NRSROs for purposes of Rule 436(g). The release also sought comment on 
whether Rule 436(g) should be expanded to include credit rating 
agencies that are not NRSROs or whether the rule should be rescinded. 
Commenters generally were opposed to subjecting NRSROs and other credit 
rating agencies to liability under Section 11 of the Securities Act. In 
particular, one commenter provided several arguments as to why Section 
11 liability was not appropriate for NRSROs.\30\ Among other things, 
the commenter argued that: Ratings published by NRSROs ``are 
expressions of opinion about risk, not statements,'' and even if the 
security defaults in an individual case, it would not necessarily be an 
indication that the opinion was wrong; \31\ Section 11 liability would 
violate the NRSROs' First Amendment rights; \32\ and Section 11 
liability could eliminate the disclosure of security ratings in 
prospectuses.\33\ The Commission did not act on the proposals in the 
1994 release.
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    \30\ See letter regarding File No. S7-24-94 of Moody's Investor 
Service, Inc. (Dec. 5, 1994). See also letter regarding File No. S7-
24-94 of Fitch Investors Service Inc. (Dec. 6, 1994).
    \31\ Id.
    \32\ NRSROs have taken the position that they ``publish'' their 
ratings and that their ratings are protected under the First 
Amendment. Cases in which NRSROs have asserted this position 
include: Compuware Corp. v. Moody's Inv. Servs., Inc., 499 F.3d 520 
(6th Cir. 2007); Jefferson County Sch. Dist. No. R-1 v. Moody's Inv. 
Servs., Inc., 175 F.3d 848 (10th Cir. 1999); First Equity Corp. v. 
Standard & Poor's Corp., 690 F.Supp. 256 (S.D.N.Y. 1988); and Abu 
Dhabi Commer. Bank v. Morgan Stanley & Co. et al., 2009 U.S. Dist. 
Lexis 79607 (S.D.N.Y. 2009).
    \33\ See note 30 above.
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    In July 2008, the Commission proposed to amend Rule 436(g) to 
extend the exemption to ratings provided by any ``credit rating 
agency,'' as defined in 15 U.S.C. 78c(a)(61),\34\ rather than only to 
ratings provided by NRSROs. The Commission cited its belief that, among 
other things, amending Rule 436(g) would foster competition between 
credit rating agencies. Only three commenters addressed the proposed 
amendment to Rule 436(g). One commenter opposed it because credit 
rating agencies that are not NRSROs are not subject to Commission 
oversight.\35\ Another commenter supported extending the exemption in 
Rule 436(g) to credit rating agencies that are not NRSROs.\36\ That 
commenter did not believe references to ratings should be considered 
``expertized.'' The commenter also cited the costs that registrants 
have to incur absent the amendment of Rule 436(g) to obtain a consent 
from a credit rating agency that was not an NRSRO. In addition, the 
commenter discussed the possibility that a rating obtained from a 
credit rating agency that was not an NRSRO would be omitted, thus 
offering investors an incomplete view of the ratings for a particular 
security. A third commenter objected to requiring disclosure of credit 
rating agency information without the consent of the relevant credit 
rating agency but did not cite any concerns about liability.\37\ The 
Commission did not adopt the proposal.
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    \34\ See Security Ratings Release No. 33-8940 (July 1, 2008) [73 
FR 40106].
    \35\ See letter regarding File No. S7-17-08 of American 
Securitization Forum (Sept. 5, 2008), at http://www.sec.gov/comments/s7-18-08/s71808.shtml.
    \36\ See letter regarding File No. S7-17-08 of the American Bar 
Association (Oct. 10, 2008), at http://www.sec.gov/comments/s7-18-08/s71808.shtml.
    \37\ See letter regarding File No. S7-17-08 of Realpoint LLC 
(Sept. 8, 2008), at http://www.sec.gov/comments/s7-18-08/s71808.shtml. The commenter appears to be concerned with the 
potential negative ramifications for subscriber-paid credit rating 
agencies whose ratings are disclosed publicly in a registration 
statement.

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[[Page 53117]]

    In April 2009, the Commission hosted a roundtable regarding the 
oversight of credit rating agencies. In connection with the roundtable, 
the Commission also solicited comment on the topics to be covered at 
the roundtable, including the appropriate oversight and liability for 
NRSROs and credit rating agencies that are not NRSROs.\38\ One 
commenter suggested that the Commission reconsider the exemption from 
liability for NRSROs.\39\ That commenter also expressed skepticism 
regarding the First Amendment arguments asserted by NRSROs against 
being held liable for their credit ratings because credit rating 
agencies have become involved in the structuring of complex securities 
and no longer rate most or all securities, regardless of whether or not 
they have been hired to do so.\40\ In addition, another commenter 
commissioned a white paper in connection with the roundtable 
discussion.\41\ The paper argues that in order to make NRSROs more 
accountable, they must be subject to a credible threat of liability. 
Some commenters expressed concern regarding any liability that would 
allow for second-guessing of judgments made by credit rating 
agencies.\42\
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    \38\ See Roundtable on Oversight of Credit Rating Agencies, 
Release No. 34-59753 (Apr. 13, 2009) [74 FR 17698].
    \39\ See Statement regarding File No. S7-04-09 of Investment 
Company Institute (Apr. 15, 2009), at http://www.sec.gov/comments/4-579/4-579.shtml.
    \40\ Id.
    \41\ See Frank Partnoy, Rethinking Regulation of Credit Rating 
Agencies: An Institutional Investor Perspective, April 2009, at 
http://www.cii.org/UserFiles/file/CRAWhitePaper04-14-09.pdf (white 
paper commissioned by Council of Institutional Investors).
    \42\ See e.g. statement regarding File No. S7-04-09 of Standard 
& Poor's (Apr. 15, 2009) at http://www.sec.gov/comments/4-579/4-579.shtml (noting that some percentage of securities will default 
and that such a default does not automatically mean the credit 
rating was inappropriate).
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II. Solicitation of Comment on Rescinding Rule 436(g)

    In light of market developments and our proposal to require 
disclosure of credit ratings and information about credit ratings, we 
are considering proposing to rescind Rule 436(g) under the Securities 
Act, and we solicit comment on what impact removing the rule would have 
on market participants. If we were to rescind Rule 436(g), then NRSROs 
and credit rating agencies that are not NRSROs would be treated in the 
same manner for purposes of liability under Section 11 of the 
Securities Act if their credit ratings are disclosed in registration 
statements. If we adopt the amendments to require certain disclosure 
regarding credit ratings in registration statements, and if we were to 
rescind Rule 436(g), then a registrant who uses a credit rating 
assigned by an NRSRO or a credit rating agency that is not an NRSRO in 
connection with a registered offering would be required to file the 
consent of the rating agency as an exhibit to its registration 
statement. As a result, both NRSROs and credit rating agencies that are 
not NRSROs would be subject to potential liability under Section 11 of 
the Securities Act.
    We believe that it may be appropriate to rescind Rule 436(g) for 
four primary reasons. First, we believe that the original reasons 
supporting adoption of Rule 436(g) may no longer provide a sufficient 
basis to continue to provide the exemption to NRSROs. If this is the 
case, then we believe it is appropriate to reconsider whether NRSROs 
should continue to be insulated from liability under Section 11. In the 
nearly 30 years that Rule 436(g) has been in place, the credit ratings 
industry has grown dramatically in terms of the number of ratings 
issued and the types of securities being rated.\43\ We believe that it 
is now appropriate to revisit the purposes underlying the adoption of 
Rule 436(g), particularly in light of the disclosure regarding credit 
ratings that we are proposing in a companion release. The Commission, 
in proposing Rule 436(g), stated that the rule was necessary to make 
its policy of permitting voluntary disclosure about security ratings 
meaningful. Without the exemption provided by Rule 436(g), the 
Commission was concerned that registrants would not voluntarily 
disclose security ratings in their registration statements because of 
the liability concerns of the NRSROs who provided the ratings. If we 
adopt the proposal to require disclosure regarding credit ratings if 
they are used in connection with a registered offering of securities, 
then we believe the rationale cited by the Commission in 1981 is no 
longer applicable because we would no longer need to provide a means to 
encourage disclosure about credit ratings. Registrants would be 
required to provide such disclosure if they use a credit rating in 
connection with a registered offering. In addition, when Rule 436(g) 
was adopted, the Commission believed that the liability that was 
already applicable to NRSROs was sufficient for the protection of 
investors.\44\ At the time, the Commission noted that NRSROs were 
subject to liability under both Section 10(b) of the Exchange Act and 
the Investment Advisers Act.\45\ As noted above, NRSROs are no longer 
required to register under the Investment Advisers Act.\46\ NRSROs 
remain subject to liability under Section 10(b) of the Exchange Act, 
but they are held liable infrequently.\47\ In addition, questions could 
be raised about whether NRSROs' performance has ``adhere[d] to the 
highest professional standards in determining security ratings'' that 
the Commission expected when Rule 436(g) was adopted.\48\
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    \43\ See Roger Lowenstein, Triple-A Failure, N.Y. Times 
Magazine, Apr. 27, 2008 (discussing the dramatic growth in revenues 
of NRSROs). See also Summary Report of Issues Identified in the 
Commission Staff's Examinations of Select Credit Rating Agencies 
(July 2008), at http://www.sec.gov/news/studies/2008/craexamination070808.pdf (noting that some rating agencies struggled 
with the substantial growth of the number of deals to be rated 
beginning in 2002); Marco Pagano and Paolo Volpin, Credit Ratings 
Failures: Causes and Policy Options, Working Paper (Feb. 9, 2009), 
at http://www.italianacademy.columbia.edu/publications/working_papers/2008_2009/pagano_volpin_seminar_IA.pdf (discussing the 
role of credit rating agencies in the growth of the market for 
structured products).
    \44\ See note 17 above.
    \45\ See note 23 above.
    \46\ Id.
    \47\ See e.g. Partnoy in note 41 above (noting that credit 
rating agencies ``have been sued relatively infrequently, and rarely 
have been held liable'').
    \48\ See note 24 above and the related discussion.
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    Second, we believe that when credit ratings are used to sell 
securities, investors rely on NRSROs and other credit rating agencies 
as experts and that it may be appropriate for our liability scheme for 
experts to apply to them. In our view, NRSROs represent themselves to 
registrants and investors as experts at analyzing credit and risk.\49\ 
Investors rely on the information provided by credit rating agencies 
for a key part of their investment decision. NRSROs describe the credit 
ratings that they provide as opinions with respect to the registrant or 
security of the registrant, and the Commission notes that other 
professionals provide opinions upon which investors rely, such as legal 
opinions, valuation opinions, fairness opinions and audit reports, and 
we treat these opinions as subject to the Securities Act's provisions 
for experts, including our requirements that registrants include the 
consents of such professionals if their reports are referenced in 
registration statements. It appears to us that NRSROs and other credit 
rating agencies are experts similar to other parties subject to 
liability under Section 11 and that it may no longer be

[[Page 53118]]

consistent with investor protection to exempt NRSROs from the 
provisions of the Securities Act applicable to experts.\50\
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    \49\ We are aware that NRSROs generally do not consider 
themselves as experts because they believe they are providing 
opinions on risk. See letter of Moody's Investor Service, Inc. in 
note 30 above. We do not at this time believe, however, that the 
nature of the credit rating provided by a credit rating agency, 
including an NRSRO, is in and of itself so distinct from the parts 
of registration statements provided by other experts that they 
should be subject to a different standard of liability.
    \50\ In the merger context, for example, if the fairness opinion 
provided by the investment banker is disclosed in the registration 
statement, then the party preparing the opinion must consent to be 
named as an expert in the registration statement. We note that 
fairness opinions generally include language that the financial 
advisor relied upon information provided by the parties to the 
business combination. In this regard, see In re Global Crossing, 
Ltd. Sec. Litig., 313 F.Supp. 2d 189 (S.D.N.Y. 2003) and In re AOL 
Time Warner, Inc. Sec. and ERISA Litig., 381 F.Supp 2d 192 (S.D.N.Y. 
2004). See also Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 
(1991).
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    Third, we believe that rescinding Rule 436(g), and therefore 
potentially increasing the risk of liability under the federal 
securities laws, could significantly improve investor protection. 
Enhancing the accountability of NRSROs may help to address concerns 
about the quality of credit ratings. In light of the proposal to 
require mandatory disclosure of information about credit ratings, 
rescinding Rule 436(g) could encourage both NRSROs and credit rating 
agencies that are not NRSROs to improve the quality of their ratings 
and analysis in order to reduce the risk of liability under Section 11. 
An improvement in the quality of credit ratings should, consistent with 
the goals of the federal securities laws, better protect investors. Of 
course, we are mindful of the possibility that a risk of greater NRSRO 
liability as a result of subjecting NRSROs to Section 11 may undermine 
competition if credit rating agencies decide that they are unable to 
bear the risk of liability and thus exit the ratings business. 
Similarly, firms considering entering the ratings business may 
reconsider in the face of an increased risk of legal liability. The 
threat of liability may particularly affect smaller, less-established 
rating agencies that may find it more difficult to negotiate for 
indemnification or bear the risk of additional liability. It also is 
possible that, in response to the rescission of Rule 436(g), 
registrants would begin to take greater advantage of private placements 
instead of public offerings.
    Finally, we believe that the distinction in Rule 436(g) between 
NRSROs and credit rating agencies that are not NRSROs may contribute to 
competitive disadvantages. We understand that investors rely on credit 
ratings issued by NRSROs as much as, if not more than, credit ratings 
issued by credit rating agencies that are not NRSROs, particularly 
because the NRSROs dominate the credit rating market.\51\ 
Distinguishing between NRSROs and credit rating agencies that are not 
NRSROs may create a competitive barrier for those credit rating 
agencies because they are subject to a higher standard of liability 
under the securities laws than NRSROs. For credit ratings disclosed in 
registration statements, it may be more time consuming or costly for a 
credit rating agency that is not an NRSRO to provide a credit rating to 
a registrant than it would be for an NRSRO to provide a credit rating 
because of the potential for liability under Section 11 for the credit 
rating agency that is not an NRSRO. As discussed above, in 2008 we 
proposed to amend Rule 436(g) to extend the exemption to cover ratings 
issued by credit rating agencies that are not NRSROs in order to foster 
competition in the credit rating agency industry. We did not at that 
time, however, propose to require disclosure regarding credit ratings. 
In light of the proposal to require disclosure regarding credit ratings 
used in connection with registered offerings, we believe that the 
rationale for extending the exemption to credit rating agencies that 
are not NRSROs may be achieved by eliminating Rule 436(g) and 
subjecting both NRSROs and credit rating agencies that are not NRSROs 
to potential liability under Section 11 of the Securities Act. We now 
believe this approach to fostering competition may be preferable in 
order to protect investors by including the proposed disclosure of the 
credit rating within the liability scheme of Section 11 of the 
Securities Act to which similar disclosure is subject. At the same 
time, we are mindful that the increased risk of legal liability could 
undercut competition if certain NRSROs are unable to bear the risk of 
increased liability.
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    \51\ For ``corporate issuers'' in 2007, for example, Standard 
and Poor's, Moody's, and Fitch issued 39%, 33%, and 21% of 
outstanding credit ratings, respectively, for a total of 93% of 
outstanding credit ratings. See Annual Report on Nationally 
Recognized Statistical Rating Organizations (2008), at http://www.sec.gov/divisions/marketreg/ratingagency/nrsroannrep0608.pdf.
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    We are aware that rescinding Rule 436(g) may have significant 
impact on the market and on market participants. We want to be 
cognizant of all the implications of our proposed amendments to require 
disclosure regarding credit ratings as well as a possible future 
proposal to rescind Rule 436(g). Therefore we are soliciting comments 
on all of the potential implications that a rescission of Rule 436(g) 
might have.
    We solicit comment below on whether rescinding Rule 436(g) might 
increase reliance on credit ratings. Preliminarily, we do not believe 
that requiring registrants to obtain consents from NRSROs and treating 
NRSROs as experts under the federal securities laws should increase 
reliance on credit ratings. Rescinding Rule 436(g) would not change the 
fundamental nature of what a credit rating is. The information credit 
rating agencies provide is already being relied upon by investors. 
Rescinding Rule 436(g) would require that, before such information can 
be used in connection with a registered offering, the registrant would 
have to obtain the NRSROs' consent to take responsibility for it (in 
addition to any liability that would be applicable pursuant to Section 
10(b) of the Exchange Act).\52\
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    \52\ In the companion release proposing to require disclosure 
regarding credit ratings, we are proposing to require disclosure of 
preliminary ratings under certain circumstances. At this stage, we 
preliminarily believe we should not require consents regarding 
disclosure of preliminary ratings or unused final ratings. The 
preliminary rating may be based on preliminary information and may 
not have been subject to all of the credit rating agency's internal 
processes for determining credit ratings.
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    While we believe that elimination of Rule 436(g) may have important 
benefits, as discussed above, we also recognize that NRSROs have in the 
past expressed an unwillingness to be subject to Section 11 liability. 
However, we are also aware that providing credit ratings for 
registrants is the key component of revenues for NRSROs. As a result, 
we seek comment on how NRSROs would adapt if Rule 436(g) were rescinded 
and whether they would, in fact, stop issuing credit ratings 
permanently.
    If we were to propose the elimination of Rule 436(g) and require 
disclosure regarding credit ratings as proposed, we recognize that 
obtaining and filing consents of all credit rating agencies may raise 
some practical and timing concerns. Assuming NRSROs are willing to 
grant consents, we do not wish to create a process that is unduly 
costly and burdensome or that unnecessarily delays completion of 
offerings. We have outlined below a potential approach to the question 
of when consents would be required to be filed and when a new consent 
would be required to be obtained. We solicit comment on whether this 
approach would be workable, whether there is a better approach and what 
other changes to our rules may have to be made in order for this 
process to work.\53\
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    \53\ As noted in the companion release proposing to require 
disclosure regarding credit ratings, the proposed disclosure 
requirement regarding credit ratings would not be triggered if the 
only disclosure of a credit rating in a filing with the Commission 
is related to changes to a credit rating, the liquidity of the 
registrant, the cost of funds for a registrant or the terms of 
agreements that refer to credit ratings, and the credit rating is 
not otherwise used in connection with a registered offering. We 
preliminarily believe that a consent would not be required for such 
disclosure.

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[[Page 53119]]

    The question of when consents need to be filed may turn, in part, 
on what the credit rating relates to and what form is being used to 
register the offering. We believe an offering registered on Form S-1, 
for example, would require a consent for the offering, and the consent 
would need to be filed prior to the effectiveness of the registration 
statement. In the context of registered offerings made on a delayed or 
continuous basis in reliance on Rule 415 under the Securities Act,\54\ 
prospectus supplements are used rather than stand-alone registration 
statements. As a result, the following different types of ratings may 
result in different consent filing requirements: (1) A credit rating 
that is applicable to the issuer and does not necessarily change with 
each offering; (2) a credit rating that applies to a specific program 
or type of security, such as a credit rating assigned to a medium-term 
note program or one for long-term debt and one for short-term debt; and 
(3) credit ratings that are specific to each issuance of a security. In 
the first instance, we believe the rating would be disclosed in the 
prospectus that is part of a registration statement, and the consent 
would need to be filed prior to the time the registration statement is 
declared effective.
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    \54\ 17 CFR 230.415.
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    Rule 430B \55\ and Rule 430C \56\ under the Securities Act deem 
information contained in prospectus supplements to be part of and 
included in the registration statement. The prospectus supplement 
filing does not create a new effective date for experts, and we believe 
it would not require the filing of a consent, unless the prospectus 
supplement (including incorporated Exchange Act reports such as current 
reports on Form 8-K) includes a new report or opinion of an expert. 
Thus, in the case of an issuer rating or a rating on a class of 
securities such as a medium-term note facility, we believe only a new 
or changed rating issued after the date of the last consent by the 
rating agency or change in any other information as to which the rating 
agency is an expert would require a new consent. We believe a new 
consent would always be required in the case of a credit rating that is 
specific to each issuance of a security.\57\
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    \55\ 17 CFR 230.430B.
    \56\ 17 CFR 230.430C.
    \57\ In the event a new consent is required, we anticipate that 
the consent could be filed by a post-effective amendment to the 
registration statement or by filing an Exchange Act report, such as 
an annual report on Form 10-K or a report on Form 8-K or Form 6-K, 
which is incorporated by reference into the registration statement. 
The consent would need to be filed prior to the filing of a 
prospectus under Rule 424 of the Securities Act. Rule 424 requires a 
prospectus to be filed not later than the second business day 
following the earlier of the date of the determination of the 
offering price or the date the prospectus is first used after 
effectiveness in connection with a public offering or sale of 
securities. We also anticipate that a new consent would be required 
for an update pursuant to Section 10(a)(3) of the Securities Act. 
See 15 U.S.C. 77j(a)(3).
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Request for Comments

    We request comment below on specific aspects of a possible proposal 
to rescind Rule 436(g). While we have grouped comments by how any such 
proposal might affect a group of market participants, we encourage all 
market participants to comment on all aspects of this concept release.

Impact on Registrants and Access to Capital

    <bullet> If we were to subject all credit rating agencies to 
Sections 7 and 11 of the Securities Act by rescinding Rule 436(g), 
would registrants be able to obtain the consent required to use ratings 
in connection with registered offerings of rated securities? What 
effects would rescinding Rule 436(g) have on the practice of offering 
securities? In particular, would doing so affect the use of credit 
ratings in registered offerings, affect investor reliance on credit 
ratings, affect the cost of obtaining a credit rating, or affect the 
decisions of registrants and investors regarding whether to raise 
capital in registered or unregistered offerings?
    <bullet> Would access to capital be disrupted if Rule 436(g) were 
rescinded, or would market participants adjust their practices to 
accommodate the change? How long would it take market participants to 
adjust their practices? Would a long phase-in period help to mitigate 
any disruptions in access to capital? Why or why not? Would a phase-in 
period of 12 months be sufficient? How long would the phase-in period 
need to be?
    <bullet> Would registrants be able to obtain the consent if the 
rating is not available until after the registration statement goes 
effective? Are there circumstances where the rating would be available 
prior to effectiveness?
    <bullet> Would smaller companies be able to afford any increased 
costs to obtain a credit rating? What alternatives would these 
companies have for raising capital? What could we do to help limit any 
such impact?
    <bullet> If we propose to rescind Rule 436(g), should we 
distinguish among issuers of corporate debt, issuers of structured 
products and closed-end management investment company securities? Are 
there differences among the markets for corporate debt, structured 
products and closed-end management investment companies that justify 
treating the same NRSRO as an expert for purposes of Sections 7 and 11 
of the Securities Act for ratings issued on some kinds of securities 
but not others?
    <bullet> If the proposal to require disclosure regarding credit 
ratings is adopted, and we do not eliminate Rule 436(g), officers, 
directors and underwriters will not be able to rely on NRSROs as 
experts with respect to the disclosure of credit ratings. Is this 
appropriate? Why or why not?
    <bullet> Are there circumstances where a credit rating agency 
issuing a preliminary rating should be treated as an expert?
    <bullet> Practically speaking, how would the filing of a consent 
work in the context of a shelf offering if we propose to rescind Rule 
436(g)? Would the approach outlined above work? What other changes to 
our rules would be necessary?
    <bullet> Do rating agencies view the issuance of each security 
issued by a company they rate, including each issuance within a class 
of securities, as the issuance of a new rating? Do investors or 
registrants view the issuance of each security by a company as the 
issuance of a new rating by the rating agency? For instance, does each 
issuance under a medium-term note facility constitute the issuance of a 
new rating that should require a consent?
    <bullet> In the context of an issuer rating, are there concerns for 
the rating agencies with not having to provide a consent each time the 
registrant issues a new security?
    <bullet> We believe investors would view a credit rating as current 
when it is used in connection with an offering of securities off a 
shelf registration statement. If that is the case, should we require a 
new consent for each take-down regardless of the type of rating or type 
of security? If issuing a new consent each time would be too 
burdensome, should we propose a rule that would deem the consent filed 
each time a take-down is made?
    <bullet> Should a new consent be required if the company has been 
put on a watch list or the company has been given a positive outlook or 
negative outlook

[[Page 53120]]

designation, or there has been some change other than an actual change 
in the rating?
    <bullet> If the proposal to require disclosure regarding credit 
ratings is adopted, regardless of whether we rescind Rule 436(g), would 
market practices develop in the context of a take-down from a shelf 
registration statement where underwriters or other parties would 
require the credit rating agency to re-affirm its rating?
    <bullet> In the context of asset-backed securities, if Rule 436(g) 
is eliminated, should we retain our requirement to disclose whether an 
issuance is conditioned on the assignment of that rating and the 
minimum rating that must be assigned? Should we require a consent 
related to the expected rating \58\ and then require a subsequent 
consent for the final rating only if that rating changes? Should we 
instead treat the consent similar to pricing information under 430A 
\59\ so that it may be filed as part of a pricing supplement but would 
relate back to the effective date?
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    \58\ See Item 1120 of Regulation AB.
    \59\ 17 CFR 220.430A.
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    <bullet> Form F-9 is the MJDS form used by eligible Canadian 
issuers to register investment grade debt or preferred securities. 
Under the MJDS, Canadian MJDS filers are largely permitted to use their 
Canadian provincial disclosure documents when registering their 
securities with the Commission, although the liability provisions under 
the Securities Act apply whether or not the registration statement is 
filed under the MJDS. If we eliminate Rule 436(g) in its entirety, a 
Form F-9 filer would need to obtain the consent of an NRSRO or Approved 
Rating Organization in the same circumstances as a similarly situated 
U.S. issuer, notwithstanding that the Canadian filer may not be 
required to do so under Canadian provincial law or regulation. How 
would the elimination of Rule 436(g) affect Form F-9 filers, and why? 
Should the Rule 436(g) exemption be retained in connection with an 
NRSRO or Approved Rating Organization rating disclosed in a Form F-9 to 
maintain consistency of consent requirements with Canadian provincial 
law or regulation? Should the exemption be retained for an Approved 
Rating Organization rating only, and eliminated for an NRSRO rating, 
disclosed in a Form F-9 registration statement? Or, insofar as Rule 
436(g) concerns the allocation of liability for portions of a 
registrations statement, and liability under the Securities Act applies 
without regard to whether a registration statement is filed pursuant to 
the MJDS, should we eliminate completely the Rule 436(g) exemption for 
ratings disclosed in a Form F-9?

Impact on NRSROs and Credit Rating Agencies

    <bullet> Are there reasons to continue to distinguish between 
NRSROs and credit rating agencies that are not NRSROs for purposes of 
Section 11 liability? Is the fact that NRSROs are subject to Commission 
oversight, a reasonable basis upon which to distinguish between NRSROs 
and credit rating agencies that are not NRSROs for this purpose?
    <bullet> How would the financial markets be affected if NRSROs and 
other credit rating agencies temporarily or permanently stopped issuing 
credit ratings in registered offerings?
    <bullet> As noted above, NRSROs have previously indicated that they 
would not provide consent. However, because we are proposing to require 
disclosure regarding credit ratings in registration statements, we are 
seeking to understand the practical implications that requiring a 
consent would have on NRSROs. Would NRSROs and other credit rating 
agencies initially or permanently refuse to provide consent? Would they 
initially or permanently stop issuing credit ratings in registered 
offerings? How would NRSROs adapt if Rule 436(g) were rescinded? How 
long is it likely such adaptation would take? Are NRSROs likely to 
adapt in different ways?
    <bullet> Would rescinding Rule 436(g) reduce or eliminate the 
incentive for a credit rating agency to become an NRSRO?
    <bullet> How would rescission of Rule 436(g) affect the process of 
issuing a credit rating? Would the process take longer? Would the 
NRSROs and credit rating agencies that are not NRSROs change their 
procedures? If so, how? Would credit rating agencies seek more, less or 
different information from registrants in order to provide a credit 
rating? How would requiring consents from both NRSROs and credit rating 
agencies that are not NRSROs affect their interactions with registrants 
and underwriters? Would there be any inflation or deflation of ratings? 
Why or why not?
    <bullet> Would rescinding Rule 436(g) affect the types of products 
that credit rating agencies are willing to rate? How? Would they be 
less likely to rate lower grade products or products issued by smaller 
or less well-established registrants?
    <bullet> Would any additional disclosure be necessary in order for 
the rating and other statements regarding the rating not to contain an 
untrue statement of a material fact or fail to state a material fact 
required to be stated in order to make the statements therein not 
misleading? What other information would be necessary to make the 
disclosure not misleading? Should we revise the proposed disclosure in 
the companion release to include additional items?
    <bullet> What costs would potential liability under Section 11 
impose on NRSROs and other credit rating agencies? Would those costs be 
passed on to registrants or, ultimately, to investors? What steps would 
NRSROs and other credit rating agencies take to protect themselves from 
potential liability under Section 11?
    <bullet> If we propose to rescind Rule 436(g), should we specify 
that the credit rating itself would be considered prepared or certified 
by a person, or a report or valuation prepared or certified by a person 
within the meaning of Sections 7 and 11 of the Securities Act? Should 
it include more than just the actual rating? Are there other parts of 
the registration statement that would be considered prepared or 
certified by the credit rating agency? How would determining which 
portions of the registration statement would be considered prepared or 
certified by a person, or a report or valuation prepared or certified 
by a person impact other potential defendants who might rely on that 
portion as a defense to liability?
    <bullet> Are there issues related to the liability of other 
experts, such as lawyers, investment bankers and accountants, that we 
should consider in deciding whether to rescind Rule 436(g)? Are credit 
rating agencies different from other types of experts from whom we 
require consent? If so, how? What steps could we take to account for 
those differences? How would the elimination of Rule 436(g) change the 
standard of liability to which NRSROs are currently subject for the use 
of credit ratings in connection with a registered offering? Is there 
any reason to believe the liability standards applicable to other 
experts may be applied differently to NRSROs and credit rating agencies 
that are not NRSROs?
    <bullet> Is Section 11 liability appropriate for NRSROs and credit 
rating agencies that are not NRSROs? What is the expected standard of 
liability for a credit rating to be actionable under Section 11, and 
how does it compare to the standard of liability under Section 10(b) of 
the Exchange Act? If Section 11 were applicable, what is the practical 
impact of the different pleading standards under Section 10(b) of the 
Exchange Act and Section 11 of the

[[Page 53121]]

Securities Act? How would any claims of First Amendment protection 
applicable to NRSROs be impacted by potential Section 11 liability?
    <bullet> To reduce the risk of legal liability, would NRSROs issue 
more ``defensive'' ratings than are warranted? If so, how would this 
affect the cost of capital for registrants?

Impact on Investors

    <bullet> Would eliminating the exemption in Rule 436(g) so that 
NRSROs are subject to potential liability under Section 11 be 
beneficial to investors? What effects would there be for investors if 
we eliminate the exemption for NRSROs in Rule 436(g)? Would the 
protections afforded by potential Section 11 liability for NRSROs be 
offset by any changes in the credit rating process, such as possible 
increases in the use of unregistered offerings or potential disruptions 
to registrants' access to capital?
    <bullet> To what extent do the concerns expressed regarding 
possible undue reliance by investors on credit ratings suggest that 
investors actually do consider NRSROs to be persons whose profession 
gives authority to statements they make, as contemplated by Sections 7 
and 11 of the Securities Act?
    <bullet> How would the elimination of Rule 436(g) affect the 
quality of credit ratings? Would potential liability under Section 11 
provide an incentive for NRSROs to provide higher-quality ratings? 
Would quality decline? Why?
    <bullet> If credit rating agencies, including NRSROs, initially 
refuse to provide consent or stop issuing credit ratings, how would 
investors be affected? \60\ Would investors with guidelines that 
require them to invest in rated securities be able to continue to 
invest? Would such investors change their investing guidelines? How 
long would it take for any such changes to be implemented?
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    \60\ Should NRSROs refuse to issue ratings, money market funds 
subject to Rule 2a-7 [17 CFR 270.2a-7] under the Investment Company 
Act may, for example, be affected to the extent the rule requires 
certain securities in which they invest to be rated by an NRSRO. See 
Rule 2a-7(a)(10)(ii)(A) (long-term security with a remaining 
maturity of less than 397 days that does not have a short-term 
rating is not an ``eligible security'' unless it has at least one 
long-term rating from an NRSRO); Rule 2a-7(a)(10)(ii) (asset backed 
security must be rated by an NRSRO to be an ``eligible security''); 
and Rules 2a-7(c)(3)(iii) and (a)(10)(iii)(A) (together permitting 
funds to substitute the credit quality of a guarantor for the credit 
quality of the issuer only if the guarantee (or guarantor) is rated 
by an NRSRO). The Commission has requested comment on whether use of 
these ratings requirements ought to be removed from Rule 2a-7. See 
Money Market Fund Reform, Release No. IC-28807 (June 30, 2009) [74 
FR 32688].
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    <bullet> What effect would rescinding Rule 436(g) have on 
investors' reliance on credit ratings? Would any investors rely more or 
less on credit ratings? Would investors view credit ratings as more 
reliable?

Impact on Competition

    <bullet> How would rescinding Rule 436(g) affect competition among 
credit rating agencies? Would treating NRSROs and credit rating 
agencies that are not NRSROs the same for purposes of liability under 
Section 11 of the Securities Act lower competitive barriers for credit 
rating agencies that are not NRSROs? Would it have any impact on the 
number of companies seeking to be an NRSRO?
    <bullet> If NRSROs are unable to absorb the litigation costs and 
risks of Section 11 liability, and competition is reduced as a result, 
what impact, if any, would that reduced competition have on investor 
protection?
    <bullet> Would rescinding Rule 436(g) have negative consequences 
for smaller NRSROs? Would it increase their costs of doing business? 
Would it make registrants more likely to seek ratings from the larger 
NRSROs? Would it make smaller NRSROs unable to issue ratings in 
connection with registered offerings? Would smaller NRSROs be able to 
adapt to the changes that might occur? Are there ways to mitigate 
negative competitive consequences if Rule 436(g) were eliminated?

III. General Request for Comments

    We request and encourage any interested person to submit comments 
regarding:
    <bullet> The concepts that are the subject of this release;
    <bullet> additional or different changes; or
    <bullet> other matters that may have an effect on the concepts 
contained in this release.
    We request comment from the point of view of companies, investors, 
and other market participants, including NRSROs and other credit rating 
agencies. With regard to any comments, we note that such comments are 
of greater assistance to us if accompanied by supporting data and 
analysis of the issues addressed in those comments.

    By the Commission.

    Dated: October 7, 2009.
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-24547 Filed 10-14-09; 8:45 am]
BILLING CODE 8011-01-P


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