Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52549 

1 17 CFR 240.12h–3, 17 CFR 240.12h–6, and 17 

CFR 240.15d–22. 

2 17 CFR 249.323. 

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

4Pub. L. 111–203 (July 21, 2010). 

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

6Suspension of the Duty to File Reports for 

Classes of Asset-Backed Securities Under Section 

15(d) of the Securities Exchange Act of 1934, 

Release No. 34–63652 (Jan. 6, 2011) [76 FR 2049] 

(the ‘‘Proposing Release’’). 

7 15 U.S.C. 77a et seq. 

8ABS 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). Exchange Act Rule 

15d–22 codified the staff position regarding the 

starting and suspension dates for any reporting 

obligation with respect to a takedown of ABS and 

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. See Asset-Backed 

Securities, Release No. 33–8518 (Dec. 22, 2004) [70 

FR 1506] (the ‘‘ABS Adopting Release’’). 

9 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. 

10One 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. 

11 15 U.S.C. 78o(d)(2). 

available at mms:// 

ocbmtcwmp.usda.gov/content/aphis/ 

aphis21.wmv. 

List of Subjects in 9 CFR Part 161 

Reporting and recordkeeping 

requirements, Veterinarians. 

Accordingly, we are amending 9 CFR 

part 161 as follows: 

PART 161—REQUIREMENTS AND 

STANDARDS FOR ACCREDITED 

VETERINARIANS AND SUSPENSION 

OR REVOCATION OF SUCH 

ACCREDITATION 

■ 1. The authority citation for part 161 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 15 U.S.C. 

1828; 7 CFR 2.22, 2.80, and 371.4. 

§ 161.3 [Amended] 

■ 2. In § 161.3, paragraph (d) is 

amended by removing the words 

‘‘within 3 months of the end of the 

notification period’’ and adding the 

words ‘‘by October 1, 2011’’ in their 

place. 

Done in Washington, DC, this 17th day of 

August 2011. 

Gregory L. Parham, 

Administrator, Animal and Plant Health 

Inspection Service. 

[FR Doc. 2011–21526 Filed 8–22–11; 8:45 am] 

BILLING CODE 3410–34–P 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 240 and 249 

[Release No. 34–65148; 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: Final 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 adopting rules to provide certain 

thresholds for suspension of the 

reporting obligations for asset-backed 

securities issuers. We are also amending 

our rules relating to the Exchange Act 

reporting obligations of asset-backed 

securities issuers in light of these 

statutory changes. 

DATES: Effective Date: September 22, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Steven Hearne, Special Counsel, in the 

Office of Rulemaking, at (202) 551–3430 

or Kathy Hsu, Chief, Office of 

Structured Finance, Division of 

Corporation Finance, at (202) 551–3850, 

U.S. Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–3628. 

SUPPLEMENTARY INFORMATION: We are 

adopting amendments to Rules 12h–3, 

12h–6, and 15d–22 1 and Form 15 2

under the Securities Exchange Act of 

1934 (‘‘Exchange Act’’).3

I. Background and Overview of the 

Amendments 

Section 942(a) of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (the ‘‘Act’’) 4 eliminated the 

automatic suspension of the duty to file 

under Section 15(d) 5 of the Exchange 

Act for asset-backed securities (‘‘ABS’’) 

issuers and granted the Commission the 

authority to issue rules providing for the 

suspension or termination of such duty. 

We proposed amendments on January 6, 

2011 to provide for the suspension of 

reporting obligations for ABS issuers 

under certain circumstances and to 

revise our rules in light of the 

amendment of Exchange Act Section 

15(d).6 In this release, we are adopting 

the rule amendments with some 

changes to reflect comments we 

received on the proposed amendments. 

Exchange Act Section 15(d) generally 

requires an issuer with a registration 

statement that has become effective 

pursuant to the Securities Act of 1933 7

(‘‘Securities Act’’) to file ongoing 

Exchange Act reports with the 

Commission. 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 300 persons. As a 

result, the reporting obligations of ABS 

issuers,8 other than those with master 

trust structures,9 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.10

The Act removed 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.’’ 11

We proposed new Exchange Act Rule 

15d–22(b) to provide for suspension of 

the reporting obligations for a given 

class of ABS pursuant to Exchange Act 

Section 15(d) under certain limited 

circumstances. In addition, we proposed 

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 received seven comment letters in 

response to the proposed 


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12The public comments we received are available 

on our Web site at http://www.sec.gov/comments/ 

s7-02-11/s70211.shtml. See letters from the 

American Securitization Forum (‘‘ASF’’), Chris 

Barnard (‘‘Barnard’’), Cleary, Gottlieb, Steen, & 

Hamilton LLP (‘‘Cleary’’), CRE Finance Council 

(‘‘CREFC’’), Investment Company Institute (‘‘ICI’’), 

MetLife, Inc. (‘‘MetLife’’), and Mortgage Bankers 

Association (‘‘MBA’’). 

13See letters from ICI and Barnard. 

14See letters from ASF, Cleary and MetLife. 

15See letters from CREFC and MBA. These 

commentators recommended that such securities be 

permitted to suspend reporting under the old 

Section 15(d) standard, which previously allowed 

issuers of securities to suspend Exchange Act 

reporting typically after the first year of reporting. 

In support of differential treatment, the 

commentators pointed to the ‘‘Annex A’’ initial 

disclosure package and the ‘‘Investor Reporting 

Package’’ used in the commercial mortgage-backed 

securities market, suggesting these materials, along 

with certain ‘‘best practices’’ projects, provide most, 

if not all, of the information that would be required 

to be included in the Section 15(d) reports, and 

such materials are required to be provided to 

investors on a timely basis under the Investor 

Reporting Package standards. 16See the Proposing Release supra note 6. 

17See letters from ASF, Barnard, Cleary, CREFC, 

ICI, MetLife, and MBA. 

18See letters from Barnard and ICI. 

19See letter from MetLife recommending 

permitting suspension ‘‘only if (a) ABS of a 

particular class are no longer held by non-affiliates 

of the depositor and (b) the transaction has matured 

(i.e. the collateral has been liquidated from the trust 

or otherwise been fully amortized) or been 

redeemed or called by the servicer.’’ 

20See letter from ASF recommending various 

changes to the proposed language discussed in 

more detail below. 

21See letter from Cleary recommending 

permitting suspension or termination of reporting 

in two additional circumstances: (1) Where an ABS 

is backed by a sufficient concentration of 

obligations of an entity (e.g., repackagings) and 

reference information under Item 1100(c)(2) of 

Regulation AB (17 CFR 229.1100(c)(2)) is 

unavailable and (2) where investors voted for 

termination after a period of public reporting. 

22See letters from CREFC and MBA. 

23See letter from ASF. 

24 Id. 

amendments.12 These letters came from 

four professional associations, a law 

firm, an individual and an institutional 

investor. We have reviewed and 

considered all of the comments that we 

received on the proposed amendments. 

Most commentators supported the 

Commission’s goal of providing full and 

transparent disclosure to investors in 

ABS. Comments on the proposal were 

mixed. Two commentators supported 

the proposed standard without 

revisions.13 Other commentators 

suggested revisions to the proposed 

standard, which are described below.14

Further, two commentators 

recommended permitting commercial 

mortgage-backed securities to suspend 

reporting after one year.15 The adopted 

rules reflect changes made in response 

to comments. We explain our revisions 

with respect to each proposed rule 

amendment in more detail throughout 

this release. 

II. Discussion of the Amendments 

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 that 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 are adopting amendments with 

changes made in response to comments 

to provide limited relief from these 

reporting obligations in a manner that 

we believe is appropriate in the public 

interest and consistent with the 

protection of investors. In addition, we 

are adopting rule and form 

amendments, substantially as proposed, 

to update our rules relating to ABS 

takedowns under a shelf registration 

statement. 

A. Suspension of Exchange Act Section 

15(d) Reporting Obligation 

1. Proposed Amendments 

In the Proposing Release, we 

proposed amended Exchange Act Rule 

15d–22(b) to provide for suspension of 

the reporting obligations for a given 

class of ABS pursuant to Exchange Act 

Section 15(d) under certain limited 

circumstances.16 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, would be 

obligated to continue to file such reports 

for the life of the security. 

In the Proposing Release, we noted 

that post-issuance reporting of 

information by an ABS issuer provides 

investors and the market with 

transparency regarding many aspects of 

the ongoing performance of the 

securities and the servicer in complying 

with servicing criteria and that such 

transparency is valuable in evaluating 

transaction performance and making 

ongoing investment decisions. We also 

indicated our belief that the benefits of 

ongoing reporting to investors and the 

market where there are only affiliated 

holders of the ABS are limited and 

would not justify the burden of 

reporting by those issuers. 

Consequently, we proposed amended 

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 also proposed 

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 alerting the market and the 

Commission of the change in reporting 

status. 

2. Comments on the Proposed 

Amendments 

Commentators generally supported an 

amendment that would provide for the 

suspension of the reporting obligation 

for ABS.17 The commentators expressed 

varying levels of support for the 

Commission’s proposed Exchange Act 

Rule 15d–22(b): 

• Two commentators supported the 

proposal without changes; 18

• One commentator recommended a 

more stringent standard; 19

• One commentator expressed general 

support for the proposal subject to 

specific comments on the language of 

the proposal; 20

• One commentator suggested 

expanding the set of circumstances 

when ABS issuers may suspend 

reporting; 21 and 

• Two commentators suggested 

allowing suspension for commercial 

mortgage-backed securities issuers after 

one year in keeping with the Section 

15(d) standard as it existed prior to the 

adoption of Section 942(a) of the Act 

amending Exchange Act Section 15(d).22

The proposed rule would have 

required an issuer to assess whether 

there were any securities held by nonaffiliates of the depositor at the 

beginning of the fiscal year. One 

commentator recommended accelerating 

the timing of when an issuer may assess 

whether it may suspend reporting to 

enable an issuer to suspend reporting 

once there are no non-affiliated holders 

or in the alternative, monthly.23 In 

addition, this commentator 

recommended that the Commission 

amend the proposed rule to clarify that, 

at such time as none of an issuer’s 

registered ABS remain outstanding, the 

issuer may immediately cease ongoing 

Exchange Act reporting.24 In contrast, 

some commentators supported the 


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25See letters from Barnard and ICI. 

26See letter from MetLife. MetLife expressed 

concern that there are possible scenarios where a 

depositor or its affiliates could potentially acquire 

all registered ABS securities of a particular class 

that were not held by such entities prior to the 

Section 15(d) re-assessment determination date and 

then re-sell such securities to non-affiliates in 

secondary transactions during the course of the 

fiscal year. 

27See letter from ASF. 

28See letters from ASF and MetLife. 

29See letter from ASF. 

30The final rule clarifies that the issuer must 

make its determination as of the beginning of the 

semi-annual fiscal period and file a certification on 

Form 15 in the semi-annual fiscal period within 

which the issuer suspends its reporting obligation. 

31The final rule, consistent with Exchange Act 

Rule 12h–3, also states that if the certification on 

Form 15 is withdrawn or denied, the issuer is 

obligated, within 60 days, to file all reports that 

would have been required if such certification had 

not been filed. The final rule provides conditions 

for the immediate suspension of reporting that are 

not required when the issuer suspends reporting 

after its semi-annual assessment that may help to 

reduce confusion or gaps in reporting upon 

immediate suspension and are consistent with the 

conditions established under Exchange Act Rule 

12h–3. 

32See letters from ASF and MetLife. The final 

rule requires ABS issuers, like other issuers that 

must comply with Section 15(d), to assess 

periodically whether they may suspend their duty 

to file. Pursuant to Section 15(d) and our rules, 

issuers may be permitted to suspend their duty to 

file after one assessment, but may be required to 

recommence reporting after a subsequent 

assessment. 

33See letter from ASF. 

34See letter from ASF. 

35See letter from ASF. 

timing of the assessment,25 and one 

commentator recommended requiring 

an issuer to re-assess its reporting 

obligation, including after suspension, 

every six months and further 

recommended including an antiavoidance provision.26

Some commentators recommended 

specific revisions to the proposed text of 

the rule. The proposed rule would have 

provided that the issuer may not 

suspend reporting in the ‘‘fiscal year 

within which the registration statement 

became effective.’’ One commentator 

recommended that the Commission 

revise the language to instead refer to 

the ‘‘fiscal year within which the 

takedown occurred’’ to provide 

additional clarity on the application of 

the rule as it relates to shelf offerings.27

In addition, the proposed rule would 

provide for suspension of reporting 

obligations in any fiscal year when there 

‘‘are no longer any securities of such 

class held by non-affiliates of the 

depositor.’’ Two commentators noted 

that ABS are often held of record by a 

custodian or broker on behalf of 

underlying beneficial owners and 

suggested that the test should look to 

the underlying beneficial owners of the 

securities.28 In addition, one 

commentator recommended using the 

term ‘‘are not’’ rather than saying there 

‘‘are no longer’’ any securities of such 

class held by non-affiliates of the 

depositor that were sold in the 

registered transaction to avoid any 

implication that the ABS must have 

been previously held by one or more 

non-affiliates.29

3. Final Rule 

After considering the comments, we 

are adopting amendments to our rules to 

provide for suspension of the reporting 

obligations for a given class of ABS 

pursuant to Exchange Act Section 15(d) 

as proposed with some changes as 

recommended by commentators. As 

adopted, Exchange Act Rule 15d–22(b) 

provides that the duty to file annual and 

other reports under Section 15(d) is 

suspended: 

• As to any semi-annual fiscal period, 

if, at the beginning of the semi-annual 

fiscal period, other than a period in the 

fiscal year within which the registration 

statement became effective or, for shelf 

offerings, the takedown occurred, there 

are no ABS of such class that were sold 

in a registered transaction held by nonaffiliates of the depositor and a 

certification on Form 15 has been 

filed; 30 or 

• When there are no ABS of such 

class that were sold in a registered 

transaction still outstanding, 

immediately upon the filing with the 

Commission of a certification on Form 

15 if the issuer has filed all required 

reports for the most recent three fiscal 

years.31

In addition, the final rule amends 

Form 15 to add a checkbox for ABS 

issuers to indicate that they are relying 

on Exchange Act Rule 15d–22(b) to 

suspend their reporting obligation and 

adds two Notes to paragraph (b). Note 1 

indicates that securities held of record 

by a broker, dealer, bank or nominee 

shall be considered as held by the 

separate accounts for which the 

securities are held. Note 2 includes an 

anti-avoidance provision, as described 

below. 

In response to comments, Exchange 

Act Rule 15d–22(b) has been changed 

from the proposal in the following ways: 

• The final rule provides for the 

timing of the suspension of the duty to 

file to be tested at the beginning of the 

semi-annual fiscal period rather than 

annually as proposed. The semi-annual 

assessment provided in the final rule 

requires an issuer to assess whether it is 

required to report more often than the 

proposed rule. The increased frequency 

of the required assessment seeks to 

alleviate concerns regarding reporting 

and information gaps that could occur 

with annual assessments by making it 

harder to evade the reporting 

requirements as well as reduce costs 

imposed by requiring reporting for the 

remainder of the year when the ABS are 

held solely by affiliates of the 

depositor.32 We do not believe more 

frequent assessments to allow 

suspension are appropriate because if 

conducted more frequently, these 

assessments might result in an ABS 

issuer frequently changing its reporting 

status and thereby result in less 

continuity in its annual and other 

reports and the creation of disclosure 

gaps that could be detrimental to 

investors’ ability to evaluate ABS 

performance and make ongoing 

investment decisions. 

• The final rule provides that an 

issuer of ABS may not suspend 

reporting ‘‘in the fiscal year within 

which the registration statement became 

effective, or, for offerings conducted 

pursuant to § 230.415(a)(1)(vii) or 

§ 230.415(a)(1)(x), the takedown for the 

offering occurred.’’ The language was 

revised in response to comments to 

provide additional clarity on the 

application of the rule as it relates to 

shelf offerings.33

• The final rule uses the term ‘‘there 

are no asset-backed securities’’ rather 

than the proposed ‘‘there are no longer 

any asset-backed securities’’ to avoid 

any implication that the ABS must have 

been held by one or more nonaffiliates.34

• The final rule specifically provides 

for the immediate suspension upon 

filing of a Form 15 of the duty to file 

when there are no ABS of a class that 

were sold in a registered transaction still 

outstanding subject to conditions that 

are consistent with similar conditions in 

Exchange Act Rule 12h–3.35 As 

requested, the final rule makes clear that 

an issuer may immediately suspend 

reporting when the securities have been 

retired or fully paid. In providing for 

immediate suspension in our rules, we 

have also added obligations that are 

consistent with similar conditions in 

Exchange Act Rule 12h–3 and may help 

reduce possible confusion or gaps in 

reporting that could occur with an 

immediate suspension of reporting. 

• The final rule adds a Note to 

paragraph (b) of Exchange Act Rule 

15d–22 clarifying that securities held of 

record by a broker, dealer, bank or 

nominee for any of them for the 

accounts of customers are considered 

held by the separate accounts for which 

they are held. Thus, if an investment 

bank is an ABS issuer and holds 


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52552 Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 

36See letter from ASF and MetLife. 

37See letter from MetLife and note 26. This 

change should address the concern described by 

MetLife. 

38See letters from CREFC and MBA. 

39See letter from Cleary. 

40See the ABS Adopting Release at 1554. 

41 17 CFR 230.415(a)(1)(x). 

42See letters from ASF and Barnard. 

43As adopted we are including a reference to 

Securities Act Rule 415(a)(1)(vii). 

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

45 44 U.S.C. 3507(d) and 5 CFR 1320.11. 

securities in its name for the benefit of 

other non-affiliated investors, it cannot 

suspend reporting. Conversely, if an 

unaffiliated bank or broker holds ABS 

for affiliates of the ABS issuer, the 

unaffiliated status of the broker or bank 

will not preclude suspension of 

reporting.36

• The final rule adds a Note to 

paragraph (b) of Exchange Act Rule 

15d–22(b) providing that an issuer may 

not suspend reporting if securities are 

acquired and resold by affiliates as part 

of a plan or scheme to evade the 

reporting obligations of Section 15(d).37

The proposal and the final rules that 

we are adopting today sought to provide 

for the suspension of the reporting 

obligation for a given class of ABS 

under limited circumstances. Two 

commentators requested that 

commercial mortgage-backed securities 

issuers be permitted to suspend 

reporting based on the use of their 

industry reporting standards.38 We are 

not adopting those recommendations 

because we believe that there are 

benefits to investors and the market of 

uniform disclosure standards provided 

by Regulation AB and public access to 

such uniform disclosure, and that such 

an approach is more consistent with 

Exchange Act Section 15(d), as amended 

by the Act. In addition, we are not 

adopting another commentator’s 

recommendations to permit suspension 

of reporting for repackaging ABS where 

reference issuers stop reporting or to 

permit suspension where requested by a 

majority of holders.39 We are not 

adopting the recommendation regarding 

repackaging transactions because the 

concentration of the significant obligor 

in the asset pool makes the information 

material. The need for the information 

about the underlying issuer in the 

reports for the ABS does not change due 

to a change in the reporting status of the 

underlying issuer.40 In addition, we are 

not adopting the recommendation to 

permit suspension where requested by a 

majority of investors because any such 

suspension would limit the information 

available to investors and the 

marketplace for ABS with non-affiliated 

holders and could result in a reduction 

of the minority holders ability to sell 

and the price at which they may be able 

to sell their securities. 

B. Revisions to Existing Exchange Act 

Rule Provisions 

In light of the statutory changes to 

Exchange Act Section 15(d), we 

proposed to revise 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 also proposed to amend Exchange 

Act Rule 12h–3(b)(1) to conform the rule 

to the language of amended Exchange 

Act Section 15(d) and to add a clarifying 

note. 

1. Proposed Amendments 

We proposed to amend Exchange Act 

Rule 15d–22 to retain the approach 

relating to separate takedowns in 

current Exchange Act Rules 15d–22(a) 

and 15d–22(b) in a revised Exchange 

Act Rule 15d–22(a). Under the 

amendments we proposed, Exchange 

Act Rule 15d–22(a)(1) would provide 

that with respect to an offering of ABS 

sold off the shelf pursuant to Securities 

Act Rule 415(a)(1)(x),41 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. Under the amendments we 

proposed, Exchange Act Rule 15d– 

22(a)(2) would establish 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(c) would remain 

substantially unchanged, except for 

minor revisions to reflect the 

amendments discussed above. Finally, 

under the amendments we proposed, 

Exchange Act Rule 12h–3(b)(1) would 

exclude ABS from the classes of 

securities eligible for suspension 

(tracking the language of the Exchange 

Act) and a note would be added to 

Exchange Act Rule 12h–3 to direct ABS 

issuers to Exchange Act Rule 15d–22 for 

the requirements regarding suspension 

of reporting for ABS. 

2. Comments on the Proposed 

Amendments 

Commentators expressed general 

support, and no commentators provided 

specific comment on these proposed 

revisions.42

3. Final Rule 

After further consideration, we are 

adopting the amendments to our rules 

relating to when annual and other 

reports need to be filed and when 

starting and suspension dates are 

determined with respect to a takedown 

substantially as proposed.43 We are also 

adopting the changes to Exchange Act 

Rule 12h–3(b)(1) to conform the rule to 

the language of amended Exchange Act 

Section 15(d), and provide a clarifying 

note to Exchange Act Rule 12h–3(b)(1) 

as proposed. In addition to the changes 

to Exchange Act Rule 12h–3 that we 

proposed, we are adding a clarifying 

note to Exchange Act Rule 12h–6 

directing foreign private issuers that are 

ABS issuers to Exchange Act Rule 15d– 

22 for the requirements regarding 

suspension of reporting of ABS. 

III. 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’’).44 The Commission 

published a notice requesting comment 

on the collection of information 

requirements in the Proposing Release 

for the amendments, and submitted 

these requirements to the Office of 

Management and Budget for review in 

accordance with the PRA.45 An agency 

may not conduct or sponsor, and a 

person is not required to comply with, 

a collection of information unless 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). 

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. 

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, 


rmajette on DSK89S0YB1PROD with RULES
Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52553 

46We 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). 

47Form 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. 

48Since 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. 

49We have chosen to continue using a six year 

average to estimate the number of ABS registered 

offerings despite the significant drop off in filings 

after 2007. As discussed in the Proposing Release, 

in order to estimate the number of Forms 10–K, 

Forms 10–D, Forms 8–K, and Forms 15 filed by 

ABS issuers for PRA purposes, we average the 

estimate of the number of those forms over three 

years. For the first year of our average, we are using 

an updated number of 751 as an estimate for the 

number of issuers we expect to file Forms 10–K, 

Forms 10–D and Forms 8–K. In the second year, we 

increase our estimate by 751 to a total of 1,502 and 

in the third year, the addition of another 751 brings 

the total to 2,253. The average number of issuers 

that we expect to file forms over three years would, 

therefore, be 1,502, however 751 of those issuers 

would have filed forms prior to the statutory 

change. We reduce the estimated increase by 751 

to account for those issuers. We are therefore 

increasing our estimate by 751 issuers to account 

for the increase in the number of issuers that will 

be required to file reports as a result of the statutory 

change. See the Proposing Release supra note 6 at 

note 30. 

50As discussed above, we estimate that an 

additional 751 issuers will be required to file 

reports as a result of the statutory change. We 

continue to estimate that each ABS issuer would 

have one annual Form 10–K filing. 

51We continue to estimate that each ABS issuer 

would have six annual Form 10–D filings resulting 

in 4,506 additional Form 10–D filings (751 ABS 

issuers x 6 filings) as a result of the statutory 

change. 

52We continue to estimate that each ABS issuer 

would have 1.5 annual Form 8–K filings resulting 

in 1,127 additional Form 8–K filings (751 ABS 

issuers x 1.5 filings) as a result of the statutory 

change. 

53As indicated in the Proposing Release, we 

assume that in any given year the issuers of all 

registered ABS issued in the prior year would have 

suspended reporting using Form 15. After the 

implementation of the Act, issuers are no longer 

able to automatically suspend reporting; therefore, 

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 751. 

54We allocate all of the burden for Form 15 

filings to internal burden hours. 

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.46 In the 

Proposing Release, we based 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 2009.47

In the Proposing Release we requested 

comment on the PRA analysis. No 

commentators responded to our request 

for comment on the PRA analysis. 

Subsequent to the enactment of the Act, 

the number of Forms 10–K, 8–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 amendments provide for ABS 

issuers to suspend their reporting 

obligation under certain circumstances. 

While we expect that some issuers will 

be able to suspend their reporting 

obligations in the future as a result of 

the rules we adopt today, for purposes 

of the PRA, we estimated that the 

proposal will not affect our PRA 

estimates over the next three years.48

We also estimated that the amendments 

to 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) 

will not affect our PRA estimates. 

The amendments are generally 

consistent with our proposals, although 

the amendments do provide for semiannual assessment, rather than an 

annual assessment, and provide for 

immediate suspension of reporting 

when there are no outstanding ABS. We 

do not believe that the changes from our 

proposal will affect our PRA estimates. 

As indicated above, we do not 

estimate that the final rules will affect 

our PRA estimates over the next three 

years, however, as explained in further 

detail in the Proposing Release, the 

Act’s amendment to Section 15(d) is 

expected to effect the number of 

periodic and current reports and Forms 

15 filed by ABS issuers each year. 

We are revising our estimates to 

reflect 2010 data regarding ABS filings. 

In the Proposing Release we based our 

estimates for the number of ABS issuers 

on an average of the data that we have 

available for years 2004 through 2009. 

The yearly average of ABS registered 

offerings with the Commission over the 

period from 2004 to 2009 was 958. The 

yearly average of ABS registered 

offerings with the Commission over the 

period from 2005 to 2010, a similar 6- 

year period, was 751.49 As a result, for 

PRA purposes, we are updating our 

estimates of annual increases in Form 

10–K filings to 751 filings,50 in Form 

10–D filings to 4,506 filings,51 and in 

Form 8–K to 1,127 filings 52 and 

reducing the annual decrease in Form 

15 filings to 751 filings.53 In addition, 

consistent with our estimate in the 

Proposing Release that an average of six 

Form 10–D filings will be filed annually 

instead of ten Form 10–D filings, which 

forms the basis of the current PRA 

inventory for Form 10–D, we are 

reducing our current inventory of 

annual responses to Form 10–D to 

reflect the new annual estimate. 

In summation, we estimate, for PRA 

purposes, increases of 90,120 total 

burden hours for Form 10–K (751 Forms 

10–K times 120 burden hours per filing), 

135,180 total burden hours for Form 10– 

D (4,506 Forms 10–D times 30 burden 

hours per filing), and 5,635 total burden 

hours for Form 8–K (1,127 Forms 8–K 

times 5 burden hours per filing), as well 

as a decrease of 1,127 total burden hours 

for Form 15 (751 Forms 15 times 1.5 

burden hours per filing) as a result of 

the statutory changes to Exchange Act 

Section 15(d).54 We allocate 75% of 

those hours (an increase of 67,590 hours 

for Form 10–K, 101,385 hours for Form 

10–D, and 4,226 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 $9,012,000 for Form 

10–K, $13,518,000 for Form 10–D and 

$563,500 for Form 8–K). In addition, we 

estimate, for PRA purposes, a decrease 

in total burden hours due to a change in 

agency estimate of the number of annual 

Form 10–D filings of 120,000 (4,000 

Form 10–D filings times 30 burden 

hours per filing). We allocate 75% of 

those hours to internal burden (a 

decrease of 90,000) and the remaining 

25% to external costs using a rate of 

$400 per hour (a decrease of 

$12,000,000). 

The table below illustrates the 

changes in annual compliance burden 

in the collection of information in hours 

and costs for existing reports for ABS 

issuers as a result of the statutory 

changes mandated by the Act as well as 

the reduction in the estimated number 

of Form 10–D filings described above. 


rmajette on DSK89S0YB1PROD with RULES
52554 Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 

55The proposed amendments to Exchange Act 

Rules 12h–3, 12h–6 and 15d–22(a) and (c) do not 

substantively alter the current requirements and 

should help issuers comply with their obligations 

and avoid confusion. 

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 14,296 21,363,548 67,590 21,431,138 $2,848,473,000 $9,012,000 $2,857,485,000 

10–D .......................................... 10,000 10,506 225,000 11,385 236,385 30,000,000 1,518,000 31,518,000 

8–K ............................................ 115,795 116,922 493,436 4,226 497,662 54,212,000 563,500 54,775,500 

15 .............................................. 3,000 2,249 4,500 (1,127) 3,373 0 0 0 

IV. Benefit-Cost Analysis 

Exchange Act Section 15(d) generally 

establishes an ongoing reporting 

obligation for issuers with a registration 

statement that has become effective 

pursuant to the Securities Act. 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 300 persons. 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 

Commission is exercising its authority 

under the Exchange Act, as amended by 

the Act, by amending Exchange Act 

Rules 12h–3, 12h–6 and 15d–22 to 

provide for the suspension of the duty 

to file for certain ABS issuers and 

reduce their compliance costs as 

discussed in this release.55

The Commission is sensitive to the 

benefits and costs imposed by the rules 

it is amending. The discussion below 

focuses on the benefits and costs of the 

decisions made by the Commission in 

the exercise of its new exemptive 

authority provided by the Act, rather 

than the costs and benefits of the Act 

itself. 

A. Benefits 

The amendments the Commission is 

adopting allow an issuer to suspend 

reporting under certain circumstances 

and update certain provisions relating to 

reporting obligations under a shelf 

registration statement. Providing for 

issuers to suspend reporting would 

provide the benefit of allowing those 

issuers that are now required by the Act 

to continue reporting to avoid the costs 

of preparing and filing annual and 

periodic reports with the Commission 

when only affiliates of the depositor 

hold any outstanding securities of the 

classes sold in registered transactions. 

We believe that reporting of the 

ongoing performance of an 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 are 

circumstances where the costs do not 

justify the benefits of reporting to 

investors and the market. In adopting 

rules to provide for the suspension or 

termination of the duty to file for certain 

ABS issuers, 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. More 

specifically, we believe that when there 

are only affiliated holders of the ABS, 

those affiliates will generally be able to 

receive relevant information because of 

their relationship with the depositor. 

Therefore, we are adopting new 

Exchange Act Rule 15d–22(b) to provide 

for issuers to suspend their reporting 

obligation under Section 15(d), as to any 

semi-annual fiscal period, if, at the 

beginning of the semi-annual fiscal 

period, there are no longer ABS of the 

class that were sold in a registration 

statement held by non-affiliates of the 

depositor and a certification on Form 15 

has been filed. 

We originally proposed that ABS 

issuers assess annually whether nonaffiliates hold the ABS sold in registered 

transactions. We recognize that there is 

a trade-off between allowing the 

assessment to take place too frequently 

or not frequently enough. If the 

assessment is conducted frequently, it 

might result in an ABS issuer changing 

its reporting status often with the effect 

of less continuity in its annual and other 

reports. Reporting gaps could be 

detrimental to investors’ ability to 

evaluate ABS performance and make 

ongoing investment decisions. However, 

more frequent assessments will allow an 

ABS issuer to report less and cease 

reporting as soon as non-affiliates no 

longer hold its securities, thus reducing 

the issuer’s reporting burden and 

associated costs. Less frequent 

assessment of whether only affiliates 

hold the registered ABS issued, might 

result in unnecessary continued 

reporting until the assessment is made, 

up to 12 months for an annual 

assessment. The new Exchange Act Rule 

15d–22(b) allows for semi-annual 

assessment, which we believe 

appropriately balances these competing 

interests. 

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 exercised this authority 

and is adopting amendments allowing 

ABS issuers to suspend their reporting 

obligation under certain limited 

conditions. Providing for the suspension 

of reporting limits the ability of market 

participants to access and review 

information for those ABS that suspend 

reporting. We believe that this cost is 

mitigated under these conditions, since 

affiliates will generally be able to 

receive relevant information because of 

their relationship with the depositor. 

Thus, only non-holders of a particular 

ABS are affected. Furthermore, the 

utility of the information to market 

participants is limited since ABS owned 

solely by affiliates generally have no 

public market. 

We recognize that there are additional 

costs to assessing holders semi-annually 

and preparing ongoing disclosure for 

registered transactions relative to the 

costs of issuing in the private markets. 

An issuer’s decision about whether to 

issue registered ABS may be affected by 

the threshold at which issuers may 

suspend their reporting obligations 

under Section 15(d). We solicited 

comments on whether an alternative 

suspension threshold might mitigate 

this effect or be more appropriate for 

other reasons. Although three 

commentators responded to our request 

with suggested alternatives, we are not 

adopting those alternatives, as discussed 

in Section II.A.3. above. No 

commentator provided us with data or 

analysis that would support an 

alternative threshold. Thus, we continue 

to believe that a threshold of zero nonVerDate Mar<15>2010 14:22 Aug 22, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\23AUR1.SGM 23AUR1

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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52555 

56 15 U.S.C. 78w(a). 

57 15 U.S.C. 78c(f). 

affiliates is consistent with the Act and 

presents an appropriate balance 

between the value of the reported 

information to investors and the market, 

and the costs of preparing the reports. 

V. Consideration of Burden on 

Competition and Promotion of 

Efficiency, Competition and Capital 

Formation 

Section 23(a) of the Exchange Act 56

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 57 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 discussion below 

focuses on the effects of the decisions 

made by the Commission in the exercise 

of its new exemptive authority provided 

by the Act, rather than the effects of the 

Act itself. 

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 Commission is exercising its 

authority under the Act by amending 

Exchange Act Rules 12h–3, 12h–6 and 

15d–22 to provide for the suspension of 

the duty to file for certain ABS issuers 

and reduce their compliance costs as 

discussed in this release. 

The 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. Providing for 

ABS issuers with only affiliated holders 

to suspend their duty to file decreases 

transparency regarding those issuers. 

The suspension of the duty to file 

reduces compliance costs for issuers, 

which could increase efficiency and 

facilitate capital formation. 

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, decrease transparency 

in the ABS market and decrease capital 

formation. The amendments provide for 

ABS issuers to suspend their duty to file 

when they have only affiliated investors 

remaining and provide issuers certainty 

regarding when they may suspend 

reporting, which may encourage some 

ABS issuers to register ABS and offer 

ABS in the public markets. These 

changes are intended to mitigate the 

aforementioned incentives to offer ABS 

privately or not to issue ABS at all. 

The clarifications provided in 

Exchange Act Rule 15d–22, 12h–3, and 

12h–6 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 amendments 

will have an impact or burden on 

competition. 

VI. Regulatory Flexibility Act 

Certification 

Under Section 605(b) of the 

Regulatory Flexibility Act, we certified 

that, when adopted, the proposals 

would not have a significant economic 

impact on a substantial number of small 

entities. We included the certification in 

Part IX of the Proposing Release, but 

received no comment. 

VII. Statutory Authority and Text of 

Rule and Form Amendments 

We are adopting the amendments 

contained in this document under the 

authority set forth in 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 

Regulations is amended as follows: 

PART 240—GENERAL RULES AND 

REGULATIONS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 1. The authority citation for part 240 

continues to read in part 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, 78n–1, 78o, 

78o–4, 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 

adding ‘‘, 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 reads as follows: 

§ 240.12h–3 Suspension of duty to file 

reports under section 15(d). 

* * * * * 

(b) * * * 

(2) * * * 

Note to Paragraph (B): The suspension of 

classes of asset-backed securities is addressed 

in § 240.15d–22. 

* * * * * 

■ 3. Amend § 240.12h–6 by adding a 

Note after paragraph (i) to read as 

follows: 

§ 240.12h–6 Certification by a foreign 

private issuer regarding the termination of 

registration of a class of securities under 

section 12(g) or the duty to file reports 

under section 13(a) or section 15(d). 

* * * * * 

(i) * * * 

Note to § 240.12h–6: The suspension of 

classes of asset-backed securities is addressed 

in § 240.15d–22. 

* * * * * 

■ 4. 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)(vii) or § 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 are 

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: 

(1) As to any semi-annual fiscal 

period, if, at the beginning of the semiVerDate Mar<15>2010 14:22 Aug 22, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\23AUR1.SGM 23AUR1

rmajette on DSK89S0YB1PROD with RULES
52556 Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 

annual fiscal period, other than a period 

in the fiscal year within which the 

registration statement became effective, 

or, for offerings conducted pursuant to 

§ 230.415(a)(1)(vii) or § 230.415(a)(1)(x), 

the takedown for the offering occurred, 

there are no asset-backed securities of 

such class that were sold in a registered 

transaction held by non-affiliates of the 

depositor and a certification on Form 15 

(17 CFR 249.323) has been filed; or 

(2) When there are no asset-backed 

securities of such class that were sold in 

a registered transaction still 

outstanding, immediately upon filing 

with the Commission a certification on 

Form 15 (17 CFR 249.323) if the issuer 

of such class has filed all reports 

required by Section 13(a), without 

regard to Rule 12b–25 (17 CFR 249.322), 

for the shorter of its most recent three 

fiscal years and the portion of the 

current year preceding the date of filing 

Form 15, or the period since the issuer 

became subject to such reporting 

obligation. If the certification on Form 

15 is subsequently withdrawn or 

denied, the issuer shall, within 60 days, 

file with the Commission all reports 

which would have been required if such 

certification had not been filed. 

Note 1 to Paragraph (b): Securities held of 

record by a broker, dealer, bank or nominee 

for any of them for the accounts of customers 

shall be considered as held by the separate 

accounts for which the securities are held. 

Note 2 to Paragraph (b): An issuer may not 

suspend reporting if the issuer and its 

affiliates acquire and resell securities as part 

of a plan or scheme to evade the reporting 

obligations of Section 15(d). 

(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 

■ 5. The authority citation for part 249 

continues to read in part as follows: 

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

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

noted. 

* * * * * 

■ 6. Amend Form 15 (referenced in 

§ 249.323) by: 

■ a. Adding a checkbox referring to 

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

referring to ‘‘Rule 15d–6’’; and 

■ b. By revising the first sentence of the 

Instruction to read: ‘‘This form is 

required by Rules 12g–4, 12h–3, 15d–6 

and 15d–22 of the General Rules and 

Regulations under the Securities 

Exchange Act of 1934.’’ 

Note: The text of Form 15 does not and this 

amendment will not appear in the Code of 

Federal Regulations. 

By the Commission. 

Dated: August 17, 2011. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–21500 Filed 8–22–11; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 and 602 

[TD 9547] 

RIN 1545–BF05 

Election To Expense Certain Refineries 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulations and removal of 

temporary regulations. 

SUMMARY: This document provides final 

regulations relating to the election to 

expense qualified refinery property 

under section 179C of the Internal 

Revenue Code (Code). These final 

regulations adopt the temporary 

regulations with certain modifications 

to reflect changes to the law made by 

the Energy Improvement and Extension 

Act of 2008. 

DATES: Effective Date: These regulations 

are effective August 22, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Philip Tiegerman (202) 622–3110 (not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in these regulations has been 

reviewed and approved by the Office of 

Management and Budget in accordance 

with the Paperwork Reduction Act of 

1995 (44 U.S.C. 3507(d)) under control 

number (1545–2103). Responses to this 

collection of information are mandatory. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the collection of information 

displays a valid OMB control number. 

Books or records relating to a 

collection of information must be 

retained as long as their contents may 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and tax return information 

are confidential, as required by 26 

U.S.C. 6103. 

Background 

Section 179C was added to the Code 

by section 1323(a) of the Energy Policy 

Act of 2005, Public Law 109–58 (119 

Stat. 594), to encourage the construction 

of new refineries and the expansion of 

existing refineries to enhance the 

nation’s refinery capacity. Section 

179C(a) allows a taxpayer to elect to 

deduct as an expense 50 percent of the 

cost of any qualified refinery property. 

The remaining 50 percent of the 

taxpayer’s qualifying expenditures 

generally are recovered under section 

168 and section 179B, if applicable. All 

costs properly capitalized into qualified 

refinery property are includable in the 

cost of the qualified refinery property. 

As originally enacted, section 

179C(c)(1)(B) required that qualified 

refinery property be placed in service by 

a taxpayer after August 8, 2005, and 

before January 1, 2012. Under section 

179C(c)(1)(F) as originally enacted, (i) 

the construction of the property must 

have been subject to a written binding 

construction contract entered into 

before January 1, 2008, (ii) the property 

must have been placed in service before 

January 1, 2008, or (iii) in the case of 

self-constructed property, the 

construction of the property must have 

begun after June 14, 2005, and before 

January 1, 2008. Section 179C(d)(1) 

originally required that a qualified 

refinery be designed to serve the 

primary purpose of processing liquid 

fuel from crude oil or qualified fuels (as 

defined in section 45K(c)). Under 

section 179C(e) as originally enacted, 

qualified refinery property must have 

enabled the existing qualified refinery to 

increase total volume output 

(determined without regard to asphalt or 

lube oil) by 5 percent or more on an 

average daily basis or to process 

qualified fuels (as defined in section 

45K(c)) at a rate that is equal to or 

greater than 25 percent of the total 

throughput of the qualified refinery on 

an average daily basis. 

Section 209 of the Energy 

Improvement and Extension Act of 2008 

(the ‘‘2008 Act’’), Division B, Public 

Law 110–343 (122 Stat. 3765), amended 

section 179C in several respects. The 

2008 Act extended the placed in service 

date of section 179C(c)(1)(B) to January 

1, 2014. In addition, the 2008 Act 

amended section 179C(c)(1)(F) to 

provide that (i) the construction of the 

property must be subject to a written 

binding construction contract entered 

into before January 1, 2010, (ii) the 

property must be placed in service 

before January 1, 2010, or (iii) in the 

case of self-constructed property, the 

construction of the property must begin 


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