15190 Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59636; File No. SR–MSRB– 

2009–02] 

Self-Regulatory Organizations; 

Municipal Securities Rulemaking 

Board; Notice of Filing of Proposed 

Rule Change Relating to the 

Establishment of a Primary Market 

Disclosure Service and Trade Price 

Transparency Service of the Electronic 

Municipal Market Access System 

(EMMA®) and Amendments to MSRB 

Rules G–32 and G–36 

March 27, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b-4 thereunder,2

notice is hereby given that on March 23, 

2009, the Municipal Securities 

Rulemaking Board (‘‘MSRB’’) filed with 

the Securities and Exchange 

Commission (‘‘Commission’’ or ‘‘SEC’’) 

the proposed rule change as described 

in Items I, II, and III below, which Items 

have been substantially prepared by the 

MSRB. The Commission is publishing 

this notice to solicit comments on the 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The MSRB has filed with the 

Commission a proposed rule change to 

implement an electronic system for free 

public access to primary market 

disclosure documents and transaction 

price information for the municipal 

securities market through the MSRB’s 

Electronic Municipal Market Access 

system (‘‘EMMA’’). The proposed rule 

change would: (i) Establish EMMA’s 

permanent primary market disclosure 

service (the ‘‘primary market disclosure 

service’’) for electronic submission and 

public availability on EMMA’s Internet 

portal (the ‘‘EMMA portal’’) of official 

statements, advance refunding 

documents and related primary market 

documents and information (the 

‘‘EMMA primary market disclosure 

proposal’’); (ii) establish EMMA’s 

permanent transparency service (the 

‘‘trade price transparency service’’) 

making municipal securities transaction 

price data publicly available on the 

EMMA portal (the ‘‘EMMA trade price 

transparency proposal’’); (iii) establish a 

real-time subscription to the primary 

market document collection (the 

‘‘primary market disclosure subscription 

proposal’’); (iv) terminate the existing 

pilot EMMA facility of the Municipal 

Securities Information Library (MSIL) 

system (the ‘‘primary market pilot’’) and 

suspend submissions of official 

statements, advance refunding 

documents and Forms G–36(OS) and G– 

36(ARD) to the MSIL system (the 

‘‘system transition proposal’’) and (v) 

amend and consolidate current Rules G– 

32 and G–36 into new Rule G–32 on 

disclosures in connection with primary 

offerings, replace current Forms G– 

36(OS) and G–36(ARD) with new Form 

G–32, provide transitional submission 

requirements, and amend certain related 

recordkeeping requirements, to establish 

an ‘‘access equals delivery’’ standard for 

electronic official statement 

dissemination in the municipal 

securities market (the ‘‘rule change 

proposal’’). 

The MSRB has requested approval to 

commence operation of EMMA’s 

primary market disclosure service and 

trade price transparency service on a 

permanent basis, and to make the 

provisions of the rule change proposal 

effective, on the later of (i) May 11, 2009 

or (ii) the date announced by the MSRB 

in a notice published on the MSRB Web 

site, which date shall be no earlier than 

ten business days after Commission 

approval of the proposed rule change 

and shall be announced no fewer than 

five business days prior to such date 

(the ‘‘effective date’’). 

The text of the proposed rule change 

is available on the MSRB’s Web site 

(http://www.msrb.org/msrb1/sec.asp), at 

the MSRB’s principal office, and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

MSRB included statements concerning 

the purpose of and basis for the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. The MSRB has 

prepared summaries, set forth in 

Sections A, B, and C below, of the most 

significant aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The proposed rule change would 

implement an electronic system for free 

public access to primary market 

disclosure documents and transaction 

price information for the municipal 

securities market. The proposed rule 

change consists of: (i) The EMMA 

primary market disclosure proposal to 

provide for electronic submission and 

public availability on the EMMA portal 

of official statements, certain 

preliminary official statements, advance 

refunding documents and amendments 

thereto (‘‘primary market disclosure 

documents’’), together with related 

information; (ii) the EMMA trade price 

transparency proposal to make 

municipal securities transaction price 

data publicly available on the EMMA 

portal; (iii) the primary market 

disclosure subscription proposal to 

establish a real-time subscription to the 

primary market disclosure document 

collection; (iv) the system transition 

proposal to terminate the existing 

primary market pilot and suspend 

submissions to the MSIL system; and (v) 

the rule change proposal to amend and 

consolidate MSRB rules on official 

statement deliveries to establish an 

‘‘access equals delivery’’ standard for 

electronic official statement 

dissemination in the municipal 

securities market. 

Existing primary market disclosure 

document delivery requirements under 

MSRB rules are described briefly below, 

followed by a discussion of each of 

these proposals. 

Current Delivery Requirements 

Under current Rule G–32, a broker, 

dealer or municipal securities dealer 

(‘‘dealer’’) selling a new issue municipal 

security to a customer during the period 

ending 25 days after bond closing (the 

‘‘new issue disclosure period’’) must, 

with certain limited exceptions, deliver 

the official statement to the customer on 

or prior to trade settlement. In cases 

where an official statement is not 

produced by the issuer, the dealer is 

required to instead provide a 

preliminary official statement, if 

available. The dealer also must provide 

certain additional information about the 

underwriting (including initial offering 

prices and information about 

underwriter compensation) if the issue 

was purchased by the underwriter in a 

negotiated sale. These additional items 

of information typically are disclosed in 

the official statement but must be 

provided separately by the selling dealer 

if not included in the official statement. 

Furthermore, selling dealers and the 

managing underwriter must send 

official statements to purchasing dealers 

promptly upon request, and dealer 

financial advisors that prepare the 

official statement must provide such 

official statement to the managing 

underwriter promptly. 


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Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 15191 

3EMMA was originally established, and began 

operation on March 31, 2008, as a complementary 

pilot facility of the MSRB’s existing Official 

Statement and Advance Refunding Document (OS/ 

ARD) system of the MSIL system. See Securities 

Exchange Act Release No. 57577 (March 28, 2008), 

73 FR 18022 (April 2, 2008) (File No. SR–MSRB– 

2007–06) (approving operation of the EMMA pilot 

to provide free public access to the MSIL system 

collection of official statements and advance 

refunding documents and to the MSRB’s Real-Time 

Transaction Reporting System historical and realtime transaction price data) (the ‘‘Pilot Filing’’). The 

pilot EMMA facility would be replaced, and EMMA 

would become a permanent facility of the MSRB, 

by the establishment of the EMMA primary market 

disclosure service and EMMA trade price 

transparency service proposed in this filing, 

together with such other EMMA services 

established by the MSRB from time to time. See 

Securities Exchange Act Release No. 59061 

(December 5, 2008), 73 FR 75778 (December 12, 

2008) (File No. SR–MSRB–2008–05) (approving the 

continuing disclosure service of EMMA with an 

effective date of July 1, 2009). See also Securities 

Exchange Act Release No.59212 (January 7, 2009), 

74 FR 1741 (January 13, 2009) (File No. SR–MSRB– 

2008–07) (approving the establishment of the shortterm obligation rate transparency service of 

EMMA). Although the MSIL system would no 

longer accept and process submissions by 

underwriters upon establishment of the EMMA 

primary market disclosure service as provided in 

the system transition proposal, it would continue to 

operate for a period of time primarily to serve 

certain internal MSRB functions. 

4The pilot EMMA portal currently is accessible 

at http://www.emma.msrb.org. 

Current Rule G–36 requires dealers 

acting as underwriters, placement 

agents or remarketing agents for primary 

offerings of municipal securities 

(‘‘underwriters’’) to submit official 

statements, accompanied by Form G– 

36(OS), for most primary offerings of 

municipal securities to the MSRB. For 

offerings subject to Exchange Act Rule 

15c2–12, the official statement must be 

sent within one business day after 

receipt from the issuer but no later than 

ten business days after the bond sale. 

With limited exceptions, official 

statements prepared for any other 

offerings must be sent by the later of one 

business day after receipt from the 

issuer or one business day after bond 

closing. Amendments to the official 

statement during the new issue 

disclosure period also must be 

submitted to the MSRB. In addition, if 

the offering is an advance refunding and 

an advance refunding document has 

been prepared, the advance refunding 

document and Form G–36(ARD) must 

be sent by the underwriter to the MSRB 

within five business days after bond 

closing. Official statements and advance 

refunding documents may currently be 

submitted in either paper or electronic 

format. These submissions are collected 

by the Municipal Securities Information 

Library (MSIL) system into a 

comprehensive library. The MSRB 

makes these documents available to 

paid subscribers as portable document 

format (PDF) files on a compact disk 

sent daily to subscribers, and also makes 

them available to the public, subject to 

copying charges, at the MSRB’s public 

access facility in Alexandria, Virginia. 

Description of the EMMA Primary 

Market Disclosure Proposal 

The EMMA primary market 

disclosure proposal would establish, as 

a component of EMMA, the EMMA 

primary market disclosure service for 

the receipt of, and for making available 

to the public of, official statements, 

preliminary official statements and 

advance refunding documents, 

including amendments thereto 

(collectively, ‘‘primary market 

disclosure documents’’), and related 

information, to be submitted by or on 

behalf of underwriters under revised 

Rule G–32, as proposed in the rule 

change proposal described below.3 As 

proposed, all primary market disclosure 

documents would be submitted to the 

MSRB, free of charge, through an 

Internet-based electronic submitter 

interface or electronic computer-tocomputer data connection, at the 

election of the submitter. Public access 

to the documents and information 

would be provided through the EMMA 

primary market disclosure service on 

the Internet through the EMMA portal at 

no charge as well as through a paid realtime data stream subscription service.4

In connection with each primary 

offering for which information is 

required to be submitted to EMMA 

pursuant to revised Rule G–32, the 

submitter would provide, at the time of 

submission, information required to be 

included on new Form G–32. The items 

of information to be included on new 

Form G–32 and the timing requirements 

for providing such information are set 

forth in the description of the rule 

change proposal below. 

The MSRB proposes that submissions 

of primary market disclosure documents 

to the EMMA primary market disclosure 

service be made as portable document 

format (PDF) files configured to permit 

documents to be saved, viewed, printed 

and retransmitted by electronic means. 

If the submitted file is a reproduction of 

the original document, the submitted 

file must maintain the graphical and 

textual integrity of the original 

document. For any document submitted 

to the EMMA primary market disclosure 

service on or after January 1, 2010, such 

PDF file must be word-searchable (that 

is, allowing the user to search for 

specific terms used within the 

document through a search or find 

function available in most standard 

software packages), provided that 

diagrams, images and other non-textual 

elements would not be required to be 

word-searchable due to current 

technical hurdles to uniformly 

producing such elements in wordsearchable form without incurring 

undue costs. Although the MSRB would 

strongly encourage submitters to 

immediately begin making submissions 

as word-searchable PDF files (preferably 

as native PDF or PDF normal files, 

which generally produce smaller and 

more easily downloadable files as 

compared to scanned PDF files), 

implementation of this requirement 

would be deferred as noted above to 

provide issuers, underwriters and other 

relevant market participants with 

sufficient time to adapt their processes 

and systems to provide for the routine 

creation or conversion of primary 

market disclosure documents as wordsearchable PDF files. 

All submissions to the EMMA 

primary market disclosure service 

pursuant to this proposal would be 

made through password protected 

accounts on EMMA by: (i) Underwriters, 

which may submit any documents with 

respect to municipal securities which 

they have underwritten; and (ii) 

designated agents, which may be 

designated by underwriters to make 

submissions on their behalf. 

Underwriters would be permitted under 

the proposal to designate agents to 

submit documents and information on 

their behalf, and would be able to 

revoke the designation of any such 

agents, through the EMMA on-line 

account management utility. Such 

designated agents would be required to 

register to obtain password-protected 

accounts on EMMA in order to make 

submissions on behalf of the designating 

underwriters. 

As proposed, electronic submissions 

of primary market disclosure documents 

through the EMMA primary market 

disclosure service would be made by 

underwriters and their agents, at no 

charge, through secured, passwordprotected interfaces. Submitters would 

have a choice of making submissions to 

the proposed EMMA primary market 

disclosure service either through a Webbased electronic submission interface or 

through electronic computer-tocomputer data connections with EMMA 

designed to receive submissions on a 

bulk or continuous basis. 

All documents and information 

submitted through the EMMA primary 

market disclosure service pursuant to 

this proposal would be available to the 

public for free through the EMMA portal 

on the Internet, with documents made 

available for the life of the securities as 


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15192 Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 

5The MSRB understands that software currently 

is generally available for free that permits users to 

save, view and print PDF files, as well as to conduct 

word searches in word-searchable PDF documents. 

The MSRB would provide links for downloading 

such software on the EMMA portal. 

6The timing and reliability of users receiving 

alerts issued by EMMA is subject to limitations 

inherent in any e-mail-based system and users 

should not rely exclusively on such alerts. 

7 In addition to being made available to the public 

for free through the EMMA portal on the Internet, 

transaction price information is made available 

through various subscription products offered by 

RTRS through existing RTRS mechanisms. See 

http://www.msrb.org/msrb1/TRSweb/ 

rtrssubscription.asp. The EMMA trade price 

transparency service would be distinct from any 

such services or products provided directly by 

RTRS. 

8For example, a user could receive an end-of-day 

e-mail alert on any day during which a particular 

security has been reported as having traded. Such 

alerts would not be available on a real-time basis 

and would not provide trade-by-trade alerts. The 

timing and reliability of users receiving alerts 

issued by EMMA is subject to limitations inherent 

in any e-mail-based system and users should not 

rely exclusively on such alerts. 

9The proposed subscription price would cover a 

portion of the administrative, technical and 

operating costs of the EMMA primary market 

disclosure subscription service but would not cover 

all costs of such subscription service or of the 

EMMA primary market disclosure service. The 

MSRB has proposed establishing the subscription 

price at a fair and reasonable level consistent with 

the MSRB’s objective that subscriptions be made 

available on terms that promote the broad 

dissemination of documents and data throughout 

the marketplace. 

PDF files for viewing, printing and 

downloading.5 As proposed, the EMMA 

portal would provide on-line search 

functions to enable users to readily 

identify and access documents that 

relate to specific municipal securities 

based on a broad range of search 

parameters. The EMMA portal also 

would permit users to request to receive 

alerts, at no charge, if a primary market 

disclosure document has become 

available on the EMMA portal or has 

been updated or amended 6 and may 

also provide, at the election of the 

MSRB, summary data/statistical 

snapshots relating to documents and 

information submitted to the EMMA 

primary market disclosure service. In 

addition, the MSRB proposes that realtime data stream subscriptions to 

primary market disclosure documents 

submitted to EMMA would be made 

available for a fee as established under 

the primary market disclosure 

subscription proposal described below. 

The MSRB would not be responsible for 

the content of the information or 

documents submitted by submitters 

displayed on the EMMA portal or 

distributed to subscribers through the 

EMMA primary market disclosure 

subscription service. 

The MSRB has designed EMMA, 

including the EMMA portal, as a 

scalable system with sufficient current 

capacity and the ability to add further 

capacity to meet foreseeable usage levels 

based on reasonable estimates of 

expected usage, and the MSRB would 

monitor usage levels in order to assure 

continued capacity in the future. 

The MSRB may restrict or terminate 

malicious, illegal or abusive usage for 

such periods as may be necessary and 

appropriate to ensure continuous and 

efficient access to the EMMA portal and 

to maintain the integrity of EMMA and 

its operational components. Such usage 

may include, without limitation, usage 

intended to cause the EMMA portal to 

become inaccessible by other users, to 

cause the EMMA database or 

operational components to become 

corrupted or otherwise unusable, to 

alter the appearance or functionality of 

the EMMA portal, or to hyperlink to or 

otherwise use the EMMA portal or the 

information provided through the 

EMMA portal in furtherance of 

fraudulent or other illegal activities 

(such as, for example, creating any 

inference of MSRB complicity with or 

approval of such fraudulent or illegal 

activities or creating a false impression 

that information used to further such 

fraudulent or illegal activities has been 

obtained from the MSRB or EMMA). 

Measures taken by the MSRB in 

response to such unacceptable usage 

shall be designed to minimize any 

potentially negative impact on the 

ability to access the EMMA portal. 

Description of the EMMA Trade Price 

Transparency Proposal 

The EMMA trade price transparency 

proposal would establish, as a 

component of EMMA, the EMMA trade 

price transparency service to make 

available to the public historical and 

real-time transaction price information 

provided through the MSRB’s Real-Time 

Transaction Reporting System 

(‘‘RTRS’’), together with related 

summary and statistical information. 

Free public access to the transaction 

price information would be provided 

through the EMMA trade price 

transparency service on the Internet 

through the EMMA portal.7 The 

transaction price information provided 

through the EMMA trade price 

transparency service would consist of 

all data available through RTRS for 

public dissemination since the 

inception of RTRS on January 31, 2005. 

This information could be expanded to 

include historical price data available 

through earlier MSRB transaction 

reporting systems. 

As proposed, the EMMA portal would 

provide on-line search functions to 

enable users to readily access 

transaction price information based on a 

broad range of search parameters. The 

MSRB may elect to expand its alert 

function on the EMMA portal to permit 

users to request to receive periodic 

alerts, at no charge, regarding whether 

trades have been reported in a specific 

security 8 and to provide on the EMMA 

portal summary data/statistical 

snapshots of price data available 

through RTRS. The MSRB would not be 

responsible for the information reported 

by dealers to RTRS that is displayed on 

the EMMA portal. 

Description of the Primary Market 

Disclosure Subscription Proposal 

The real-time data stream 

subscription to the EMMA primary 

market disclosure service to be provided 

through a Web service would be made 

available for an annual fee of $20,000.9

The primary market disclosure 

subscription service would make 

available to subscribers all primary 

market disclosure documents and 

related information provided by 

submitters through the EMMA 

submission process that is posted on the 

EMMA portal. Such documents and 

information would be made available to 

subscribers simultaneously with the 

posting thereof on the EMMA portal. 

Data with respect to the EMMA 

primary market disclosure service to be 

provided through the real-time data 

stream would consist of the following 

elements, among others and as 

applicable, as would be more 

specifically set forth in the EMMA 

Primary Market Subscriber Manual 

posted on the EMMA portal: (i) 

Submission data, including submission 

ID, submission type, submission status 

and submission transaction date/time; 

(ii) offering data, including offering 

type, underwriting spread/disclosure 

indicator, and official statement/ 

preliminary official statement 

availability status; (iii) issue data, 

including issue type, security type, 

issuer name, issue description, state of 

issuer, six-digit CUSIP (for commercial 

paper issues), expected closing date, 

dated date and original dated date (for 

certain remarketings); (iv) security data, 

including nine-digit CUSIP, securityspecific dated date (for certain securities 

not having CUSIP numbers), principal 

amount at maturity, initial offering price 

or yield, maturity date, interest rate, 

partial underwriting data and refunded 

security CUSIP numbers; (v) document 

data, including document ID, document 

type, document description, document 

posting date, document status indicators 


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Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 15193 

10 In establishing the primary market pilot, the 

MSRB had requested that the Commission approve 

the primary market pilot for a period of one year 

from the date it became operational, which was 

March 31, 2008. The MSRB has requested in a 

separate filing that the Commission approve the 

extension of the primary market pilot to the earlier 

of July 1, 2009 or the effective date of the 

permanent primary market disclosure service. See 

File No. SR–MSRB–2009–01. 

11See Securities Act Release No. 8591 (July 19, 

2005), 70 FR 44722 (August 3, 2005). The rule 

change proposal would incorporate (with 

modifications adapted to the specific characteristics 

of the municipal securities market) many of the key 

‘‘access equals delivery’’ provisions in Securities 

Act Rule 172, on delivery of prospectus, Rule 173, 

on notice of registration, and Rule 174, on delivery 

of prospectus by dealers and exemptions under 

Section 4(3) of the Securities Act of 1933, as 

amended. 

12The MSRB views it as critical that official 

statements be available to investors by no later than 

the new issue’s closing date since such date 

represents the first time at which executed trades 

may be settled. 

13See Rule G–17 Interpretation—Interpretive 

Notice Regarding Rule G–17, on Disclosure of 

Material Facts, March 20, 2002, reprinted in MSRB 

Rule Book. 

and refunding and refunded issue 

identifiers (for advance refunding 

documents); (vi) file data, including file 

ID, file posting date and file status 

indicators; and (vii) limited offering 

contact data, including contact name, 

address and phone number (for 

obtaining official statements not 

available on EMMA for certain primary 

offerings not subject to Rule 15c2–12 by 

virtue of paragraph (d)(1)(i) thereof). 

The EMMA Primary Market 

Subscriber Manual would set forth a 

complete, up-to-date listing of all data 

elements made available through the 

primary market disclosure subscription 

service, including detailed definitions of 

each data element, specific data format 

information, and information about 

technical data elements to support 

transmission and data-integrity 

processes between EMMA and 

subscribers. 

Subscriptions would be provided 

through computer-to-computer data 

streams utilizing XML files for data and 

files in a designated electronic format 

(consisting of PDF files) for documents. 

Appropriate schemas and other 

technical specifications for accessing 

the Web services through which the 

real-time data stream are to be provided 

would be set forth in the EMMA 

Primary Market Subscriber Manual. 

The MSRB would make the primary 

market disclosure subscription service 

available on an equal and nondiscriminatory basis. In addition, the 

MSRB would not impose any 

limitations on or additional charges for 

redistribution of such documents by 

subscribers to their customers, clients or 

other end-users. Subscribers would be 

subject to all of the terms of the 

subscription agreement to be entered 

into between the MSRB and each 

subscriber, including proprietary rights 

of third parties in information provided 

by such third parties that is made 

available through the subscription. The 

MSRB would not be responsible for the 

content of the information or documents 

submitted by submitters distributed to 

subscribers through the primary market 

disclosure subscription service. 

Description of System Transition 

Proposal 

The system transition proposal would 

terminate the existing primary market 

pilot 10 by deleting the pilot provisions 

from the MSIL facility and would 

suspend the MSIL system’s functions of 

receiving submissions of official 

statements and advance refunding 

documents. 

Description of the Rule Change Proposal 

The rule change proposal would effect 

extensive revisions to the official 

statement submission and 

dissemination requirements set forth in 

current MSRB rules in order to 

implement an ‘‘access equals delivery’’ 

model based on rules for final 

prospectus delivery for registered 

securities offerings adopted by the 

Commission in 2005.11 The rule change 

proposal would consolidate and amend 

existing provisions of current Rules G– 

32 and G–36 into revised Rule G–32, on 

disclosures in connection with primary 

offerings, and would make conforming 

changes to Rule G–8, on recordkeeping, 

and Rule G–9, on preservation of 

records. Rule G–36 would be rescinded 

by the proposal. In addition, the rule 

change proposal would establish a new 

electronic Form G–32 in connection 

with submissions made by underwriters 

to EMMA and would discontinue 

current Form G–36(OS) and Form G– 

36(ARD). 

Underwriters would be required 

under revised Rule G–32 to submit all 

primary market disclosure documents 

and related information to EMMA in 

electronic format, replacing the current 

submission process through the MSIL 

system pursuant to existing Rule G–36. 

Dealers selling most municipal 

securities in a primary offering to 

customers would be required under 

revised Rule G–32 to notify customers of 

the availability of official statements 

through EMMA (and, at the election of 

the dealer, any qualified portals) and to 

provide written copies of official 

statements to any customers requesting 

such copies. Except in the case of sales 

of municipal fund securities, dealers 

would no longer be required to provide 

printed copies of official statements to 

customers in primary offerings. 

Underwriters should be especially 

sensitive to the necessity of timely and 

accurate submissions to EMMA of 

official statements, preliminary official 

statements (when required), any 

amendments thereto, and all related 

information to be supplied through 

Form G–32. In particular, with the 

adoption of the ‘‘access equals delivery’’ 

standard, submissions to EMMA will 

become the lynchpin to the municipal 

securities primary market disclosure 

system that ensures that official 

statements are available to investors and 

the general public in a timely manner. 

Thus, any failure by the underwriter to 

make the required submission to EMMA 

within one business day after receipt 

from the issuer, but in no event later 

than the closing date,12 would have 

significant repercussions to the ability 

of investors to access the document. The 

MSRB expects that the timing 

requirements of revised Rule G–32 will 

be strictly adhered to and enforced to 

promote the purposes of the rule and 

the protection of investors. 

The MSRB’s disclosure rules with 

respect to newly issued municipal 

securities are multifaceted and require 

diligence on the part of dealers to 

ensure that mandated disclosures are 

made at certain key points in the 

process of selling such securities to 

customers. Thus, dealers are reminded 

that, in addition to their obligations 

under Rule G–32, they are required 

under Rule G–17, on fair practice, to 

provide to the customer, at or prior to 

the time of trade, all material facts about 

the transaction known by the dealer as 

well as material facts about the security 

that are reasonably accessible to the 

market.13 The time of trade is generally 

the time at which an enforceable 

agreement is reached to execute a 

municipal securities transaction 

(sometimes referred to as trade 

execution). Disclosures made at or prior 

to the time of trade are intended to 

provide the customer with material 

information that he or she may use in 

making an investment decision. 

The proposed rule change does not 

alter the time of trade disclosure 

obligation under Rule G–17. Disclosures 

made after the time of trade, such as by 

delivery of the official statement or by 

customer access to the official statement 

on EMMA at or near trade settlement, 

do not substitute for the required 

material disclosures that must be made 

at or prior to the time of trade pursuant 

to Rule G–17. In the new issue market, 


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15194 Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 

14See Securities Act Rule 159(b) adopted under 

Section 17(a)(2) of the Securities Act of 1933. Rule 

159(b) provides that, for purposes of determining 

whether a statement includes or represents any 

untrue statement of a material fact or any omission 

to state a material fact necessary in order to make 

the statements made, in light of the circumstances 

under which they were made, not misleading at the 

time of sale (including, without limitation, a 

contract of sale), any information conveyed to the 

purchaser only after such time of sale (including 

such contract of sale) will not be taken into account. 

15See, e.g., MSRB Notice 2006–07 (March 31, 

2006); MSRB Discussion Paper on Disclosure in the 

Municipal Securities Market (December 21, 2000), 

published in MSRB Reports, Vol. 21, No. 1 (May 

2001); and Official Statement Deliveries Under 

Rules G–32 and G–36 and Exchange Act Rule 15c2– 

12 (July 15, 1999), published in MSRB Reports, Vol. 

19, No. 3 (Sept. 1999). 

16 In contrast, submissions are required under 

current Rule G–36 only for primary offerings for 

which an official statement is produced. 

17 ‘‘Closing date’’ would be defined in revised 

Rule G–32(d)(ix) as the date of first delivery of the 

securities to the underwriter. For bond or note 

offerings, this would generally correspond to the 

traditional concept of the bond closing date. In the 

case of continuous offerings, such as for municipal 

fund securities, the closing date would be 

considered to occur when the first securities are 

delivered. 

18Current Rule G–36 does not require submission 

of the preliminary official statement. If no 

preliminary official statement exists, the 

underwriter would be required to provide notice of 

that fact to EMMA under revised Rule G–32(b)(i)(D). 

19Neither such notice nor the preliminary official 

statement is required to be submitted under current 

Rule G–36. If no preliminary official statement 

exists, the underwriter would be required to 

provide notice of that fact to EMMA under revised 

Rule G–32(b)(i)(D). 

20Limited offerings consist of primary offerings 

under Exchange Act Rule 15c2–12(d)(1)(i) in which 

the securities have authorized denominations of 

$100,000 or more and are sold to no more than 35 

persons who the underwriter reasonably believes: 

(a) have such knowledge and experience in 

financial and business matters that they are capable 

of evaluating the merits and risks of the prospective 

investment, and (b) are not purchasing for more 

than one account or with a view to distributing the 

securities. 

21Under current Rule G–36, underwriters may 

withhold submission to the MSRB of the official 

statement for a limited offering without 

precondition. 

the preliminary official statement, when 

available, often is used by dealers 

marketing new issues to customers and 

can serve as a primary vehicle for 

providing the required time-of-trade 

disclosures under Rule G–17, depending 

upon the accuracy and completeness of 

the preliminary official statement as of 

the time of trade. Dealers should note 

that additional or revised material 

information provided to the customer 

subsequent to the time of trade (such as 

in a revised preliminary official 

statement, the final official statement or 

through any other means) cannot cure a 

failure to provide the required material 

information at or prior to the time of 

trade.14 However, a revised preliminary 

official statement or other supplemental 

information provided to customers after 

delivery of the original preliminary 

official statement, but at or prior to the 

time of trade, can be used to comply 

with the time-of-trade disclosure 

obligation under Rule G–17. The MSRB 

has previously emphasized the 

importance of making material 

disclosures available to customers in 

sufficient time to make use of the 

information in coming to an investment 

decision, such as through earlier 

delivery of the preliminary official 

statement.15 The MSRB urges dealers to 

make preliminary official statements 

available to their potential customers in 

a timeframe that provides an adequate 

opportunity to make the appropriate 

assessments in coming to an investment 

decision. 

The rule change proposal is described 

in more detail below. 

Submissions to EMMA 

Official Statement and Form G–32 

Submission Requirement. Under revised 

Rule G–32(b)(i)(A), underwriters would 

be required to submit information 

through the electronic Form G–32 for all 

primary offerings of municipal 

securities, regardless of whether an 

official statement is produced for such 

offering.16 The specific items of 

information to be submitted through 

Form G–32, and the manner and timing 

of such submission, are described 

below. 

Under revised Rule G–32(b)(i)(B), 

except as described below, all 

submissions by underwriters of official 

statements would be required to be 

made within one business day after 

receipt from the issuer but by no later 

than the closing date 17 for the offering. 

Rule G–36 currently has separate 

submission timing for official 

statements based on whether the 

primary offering is subject to or exempt 

from Exchange Act Rule 15c2–12. For 

issues subject to such rule, current Rule 

G–36 establishes a final deadline of ten 

business days after the issuer agrees to 

sell the offering to the underwriter. This 

current timeframe does not ensure that 

official statements are always available 

by the closing date, particularly in those 

cases where an offering may be closed 

fewer than ten business days after the 

offering is sold. For issues exempt from 

Exchange Act Rule 15c2–12, current 

Rule G–36 requires submission of the 

official statement to the MSRB by the 

later of one business day after receipt 

from the issuer or one business day after 

the closing date. The revised provision 

is designed to ensure that the official 

statement is always available by the 

closing date, regardless of the type of 

offering. 

If an official statement is being 

prepared for a primary offering but it is 

not submitted to EMMA by the closing 

date, the underwriter would be required 

under revised Rule G–32(b)(i)(B)(2) to 

provide notice of such failure to file and 

to submit the preliminary official 

statement, if any, by the closing date, 

along with notice that the official 

statement will be submitted to EMMA 

when it becomes available.18 Once an 

official statement becomes available, the 

underwriter would be required to 

submit the official statement within one 

business day after receipt from the 

issuer. The submission of the 

preliminary official statement would not 

be a cure for a failure to submit the 

official statement in a timely manner 

but instead would be an additional 

obligation of the underwriter incurred 

upon failing to make timely submission 

of the official statement. 

Exceptions from Official Statement 

Submission Requirement. If no official 

statement is prepared for an offering 

exempt from Exchange Act Rule 15c2– 

12, revised Rule G–32(b)(i)(C) would 

require the underwriter to provide 

notice of that fact to EMMA, together 

with the preliminary official statement, 

if any, by the closing date.19 In the case 

of certain limited offerings,20 revised 

Rule G–32(b)(i)(E) would permit the 

underwriter to elect not to submit the 

official statement to EMMA if it instead 

submits to EMMA, by no later than 

closing: (i) Notice that the offering is not 

subject to Exchange Act Rule 15c2–12 

by virtue of paragraph (d)(1)(i) and that 

an official statement has been prepared 

but is not being submitted to EMMA, 

and (ii) specific contact information for 

underwriter personnel to whom 

requests for copies of the official 

statement should be made.21 An 

underwriter withholding the official 

statement for a limited offering would 

be required to deliver the official 

statement to each customer purchasing 

the offered securities from the 

underwriter or from any other dealer, 

upon request, by the later of one 

business day after request or the 

settlement of the customer’s transaction. 

In addition, submissions to EMMA in 

connection with roll-overs of 

commercial paper or remarketings of 

outstanding issues exempt from Rule 

15c2–12 would not be required under 

revised Rule G–32(b)(i)(F) if no new 

official statement is prepared for the 

roll-over or remarketing or if an official 

statement has previously been 

submitted to EMMA in connection with 

such securities and no amendments or 

supplements to the official statement 


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22Revised Rule G–32 provides for the same 

treatment of commercial paper official statements as 

under current Rule G–36 but extends that treatment 

to remarketings exempt from Exchange Act Rule 

15c2–12, to the extent that no new official 

statement is produced in connection with such 

remarketing. 

23The term ‘‘new issue disclosure period’’ under 

current Rule G–32 is renamed as ‘‘primary offering 

disclosure period’’ under revised Rule G–32(d)(ix) 

to emphasize that the rule applies to municipal 

securities remarketed in a primary offering, not just 

to new issues of municipal securities. 

24See revised Rule G–32(b)(vi)(C). 

25Underwriters should note that they are 

required to submit to EMMA, along with a 

document, the date such document is received from 

the issuer. In the case of the official statement, the 

MSRB would not consider the underwriter to have 

received the official statement until it has received 

the complete document. Thus, if the issuer were to 

provide the official statement to the underwriter in 

the form of multiple files, the underwriter should 

not consider the official statement to have been 

received from the issuer until the final file of such 

document necessary to complete the official 

statement has been received. In that case, the 

underwriter would report the date on which such 

final file was received as the date on which the 

official statement (including each file thereof, 

regardless of any earlier receipt of some such files) 

was received for purposes of the required 

information submission. 

have been made since such 

submission.22

Advance Refunding Submissions 

Requirement. As under current Rule G– 

36, revised Rule G–32(b)(ii) would 

require that underwriters submit 

advance refunding documents by no 

later than five business days after the 

closing date for primary offerings that 

advance refund an outstanding issue 

and for which an advance refunding 

document has been prepared. This 

proposed requirement would apply 

whenever an advance refunding 

document has been prepared in 

connection with a primary offering, not 

just for those offerings in which an 

official statement also has been 

prepared as under current Rule G–36. 

Amendments and Cancellations. 

Underwriters would be required by 

revised Rule G–32(b)(iii) to submit 

amendments to official statements and 

advance refunding documents during 

the primary offering disclosure period 23

within one business day of receipt. In 

addition, underwriters would be 

required under revised Rule G–32(b)(iv) 

to submit prompt notice of any 

cancellation of an offering for which a 

submission of a document or 

information relating to the offering has 

previously been made to EMMA. If only 

a portion of an offering is cancelled, the 

underwriter’s submission in connection 

with the remaining portion of the 

offering would be required to be 

corrected by no later than the closing 

date to reflect the partial cancellation of 

the offering. If the entire offering is 

cancelled, notice of such cancellation 

would be deemed under paragraph 

(vi)(C) of Rule G–32 to have been 

submitted to EMMA promptly under 

paragraph (vi)(C) of Rule G–32 if 

submitted by no later than five business 

days after the underwriter cancels its 

trades with customers and other 

dealers.24

Transitional Submissions. Revised 

Rule G–32(e) establishes transitional 

provisions for submitting official 

statements during the five business days 

preceding the effective date of revised 

Rule G–32 and the primary market 

disclosure service. In general, any 

submission to the MSRB of an official 

statement, advance refunding document 

or amendment thereto under current 

Rule G–36 becoming due during the five 

business days prior to the effective date 

may be held by the underwriter for 

submission to EMMA on the first two 

business days on which the primary 

market disclosure service is effective. 

The MSRB would reserve the right to 

require an underwriter that has sent a 

document in paper form to the MSRB 

during the five business days prior to 

the effective date that is received by the 

MSRB after the effective date to 

resubmit such document in a designated 

electronic format through EMMA and 

the MSRB would require such 

resubmission through EMMA for any 

documents sent in paper form to the 

MSRB on or after the effective date. 

Designated Electronic Format of 

Submitted Documents 

Revised Rule G–32(b)(vi)(A) would 

prescribe the format in which 

documents would be required to be 

submitted to EMMA as a designated 

electronic format. Revised Rule G– 

32(d)(iii) would establish PDF files as 

the initial sole designated electronic 

format, with files configured to permit 

documents to be saved, viewed, printed 

and retransmitted by electronic means. 

If the submitted file is a reproduction of 

the original document, the submitted 

file must maintain the graphical and 

textual integrity of the original 

document. In addition, starting on 

January 1, 2010, such PDF files must be 

word-searchable (that is, allowing the 

user to search for specific terms used 

within the document through a search 

or find function available in most 

standard software packages), provided 

that diagrams, images and other nontextual elements would not be required 

to be word-searchable due to current 

technical hurdles to uniformly 

producing such elements in wordsearchable form without incurring 

undue costs. Although, the MSRB 

would strongly encourage submitters to 

immediately begin making submissions 

as word-searchable PDF files (preferably 

as native PDF or PDF normal files, 

which generally produce smaller and 

more easily downloadable files as 

compared to scanned PDF files), 

implementation of this requirement 

would be deferred as noted above to 

provide issuers, obligated persons and 

their agents with sufficient time to adapt 

their processes and systems to provide 

for the routine creation or conversion of 

continuing disclosure documents as 

word-searchable PDF files. 

The MSRB may in the future 

designate additional computerized 

formats as acceptable electronic formats 

for submission or preparation of 

documents under Revised Rule G–32 by 

means of a filing with the Commission. 

As noted in the discussion below of 

comments received in connection with 

this proposal, the MSRB supports the 

Commission’s Interactive Data and 

XBRL Initiatives for registered offerings 

and would consider designating XBRL 

as a designated electronic format for 

purposes of submissions to the EMMA 

primary market disclosure service at 

such time in the future as appropriate 

taxonomies for the municipal 

marketplace have been developed and 

as issuers begin the process of 

producing primary market disclosure 

documents using XBRL. 

Submission of Documents as Multiple 

Files 

Underwriters would be permitted to 

submit official statements and other 

required documents in the form of one 

or more electronic files. EMMA permits 

such submissions as multiple files as an 

accommodation for those situations 

where technical or other difficulties 

preclude or substantially impair the 

production and submission of the 

official statement or other document as 

a single electronic file. Barring such 

circumstances, underwriters, issuers 

and investors would be best served if all 

submissions of documents are made as 

a single electronic file rather than 

multiple files. In particular, 

underwriters should consider the risk of 

potentially disseminating to the public 

incomplete disclosure should they, 

inadvertently or otherwise, fail to 

submit on a simultaneous or 

immediately sequential basis all of the 

required files of a multi-file official 

statement submission.25

Form G–32 

General. New Form G–32, which 

would replace current Form G–36(OS) 

and Form G–36(ARD), would include all 

information required to be submitted by 

underwriters under revised Rule G– 


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26New Form G–32 is included in Exhibit 3 to the 

proposed rule change. 

27Under current Rule G–36, Form G–36 is 

submitted simultaneously with the official 

statement. The rule change proposal would no 

longer require that the submission of information 

and the dissemination of such information on 

EMMA be delayed until the related official 

statement has become available. 

28Where no official statement or preliminary 

official statement is being submitted to EMMA, the 

underwriter would be required to provide notice 

thereof to EMMA. Such information would be 

designed in part to provide through the EMMA 

portal notice to customers and others that no 

official statement or preliminary official statement 

will be available. The proposal would provide for 

limited exceptions for commercial paper roll-overs 

and remarketings exempt from Rule 15c2–12 where 

no new disclosure document is prepared. 

29Current Rule G–36 does not permit submissions 

to the MSRB by agents on behalf of underwriters. 

30The underwriter would be obligated to review 

and make any necessary corrections to such 

editable data. The underwriter would not be 

responsible for any items of information prepopulated by EMMA which are not editable by the 

underwriter or its designated agent. With respect to 

the CUSIP numbers assigned by the CUSIP Service 

Bureau and other information that is presented 

during the submission process on EMMA as noneditable information, the underwriter would not be 

obligated to make corrections to such information. 

However, the underwriter would be obligated to 

ensure that each security in a primary offering is 

correctly associated with the submission the 

underwriter is making. Thus, pursuant to 

instructions to be included in the EMMA Dataport 

Manual, the underwriter would be required to 

review the collection of security-specific 

information pre-populated by EMMA during the 

submission process to ensure that all such 

securities have properly been associated with the 

submission, and the underwriter would be 

obligated to add additional information (including 

but not limited to any relevant CUSIP numbers) not 

pre-populated by EMMA to the extent necessary to 

fully associate all applicable securities with the 

submission and to indicate that information for a 

security that has been pre-populated by EMMA 

should be removed because such security is not in 

fact associated with the submission. 

31As used in this context, an offering generally 

would correspond to the definition of a primary 

offering under revised Rule G–32 and Exchange Act 

Rule 15c2–12. Multiple issues (including but not 

limited to separately designated series of an 

offering) on a single official statement would be 

treated as part of the same offering for purposes of 

Form G–32 submissions even if issued by different 

issuers and/or underwritten by different 

underwriters. However, to the extent that a primary 

offering is offered through more than one official 

statement (e.g., separate official statements for 

separate issues within a single primary offering), 

offering-level information to be provided through a 

Form G–32 submission would relate solely to the 

portion of the primary offering described in the 

official statement that is the subject of the specific 

submission, and the remainder of the information 

related to such primary offering would be provided 

32(b)(i)(A) and (b)(vi).26 Form G–32 

would consist of a collection of data 

elements provided to EMMA in 

connection with a primary offering of 

municipal securities. When making 

primary market submissions using the 

Web-based interface, related indexing 

information would be entered into an 

on-line form or uploaded through an 

extensible markup language (XML) file, 

and documents would be uploaded in a 

designated electronic format. Computerto-computer submissions would utilize 

XML files for data and PDF files for 

documents. The proposal would permit 

Form G–32 to be completed in a single 

session or in multiple sessions, with the 

initiation of the Form G–32 submission 

process generally occurring earlier than 

the current Form G–36 submission 

process.27 Appropriate procedures and 

schemas for on-line and computer-tocomputer submissions would be 

published on the EMMA portal and 

MSRB Web site and would be described 

in detail in the EMMA Dataport Manual. 

As proposed, underwriters would be 

required to make a submission through 

Form G–32 in connection with each 

official statement (or preliminary 

official statement, where no official 

statement exists), as well as in 

connection with each offering for which 

no official statement or preliminary 

official statement is to be made available 

through EMMA.28 Information relating 

to advance refunding documents 

executed in connection with a primary 

offering also would be submitted under 

the proposal through the Form G–32 

submission process. Submissions during 

the primary offering disclosure period of 

amendments to previously submitted 

documents would be made through the 

same Form G–32 submission initiated in 

connection with the original documents. 

Designated Agents. Underwriters 

would be permitted under revised Rule 

G–32(b)(vi)(C) to designate agents to 

make submissions on their behalf 

through the MSRB’s user account 

management and authentication system 

known as MSRB Gateway.29 All 

submissions made on behalf of an 

underwriter by a designated agent 

would be the responsibility of the 

designating underwriter, and any failure 

by the designated agent to provide 

documents or information in a 

complete, timely and conforming 

manner would be deemed to be a failure 

by the designating underwriter. 

The MSRB notes that Rule G– 

34(a)(ii)(C)(1) requires underwriters for 

most new issues of municipal securities 

to provide certain information regarding 

the new issue to an automated 

electronic new issue information 

dissemination system (‘‘NIIDS’’) within 

two hours of the time of formal award 

of the issue. The MSRB may consider in 

the future permitting an underwriter to 

designate to the MSRB that information 

it has submitted to NIIDS under revised 

Rule G–34 should also be used for 

purposes of completing new Form G–32, 

although it would not be anticipated 

that NIIDS would provide documents to 

EMMA and such submissions would be 

the responsibility of the underwriter or 

another designated agent. The MSRB 

would publish a notice advising if such 

functionality becomes available. 

Standard of Care With Respect to 

Information Submitted by Underwriters. 

Much of the information to be provided 

by underwriters and their agents on new 

Form G–32 normally would be made 

available to the public through the 

EMMA portal on a real-time basis under 

the rule change proposal. The 

underwriter must exercise due care with 

respect to the accuracy of the items of 

information provided on Form G–32, 

although it is understood that much of 

this information would be subject to 

change until an issue has reached 

closing. Until closing, the underwriter 

would be expected to update promptly 

any information previously provided by 

it on Form G–32 which may have 

changed or to correct promptly any 

inaccuracies in such information, and 

would be responsible for ensuring that 

such information provided by it is 

accurate as of the closing date. Except 

with regard to the submission of 

advance refunding documents or 

amendments to the official statement as 

described below, the underwriter would 

not be obligated to update information 

provided by it on Form G–32 due to 

changes in such information occurring 

after the closing date, although the 

underwriter would remain responsible 

for correcting any information it 

provided that was erroneous as of the 

later of the time the information was 

submitted or the closing date. 

Information would be deemed to be 

provided by the underwriter if it has 

been supplied by the underwriter or a 

designated agent of the underwriter 

directly to EMMA or it has been prepopulated by the EMMA Web-based 

interface to the extent that such 

information is editable on the EMMA 

Web-based interface by the underwriter 

or its designated agent.30

As noted above, the MSRB expects 

that the requirement that all information 

to be supplied through Form G–32 be 

accurately and completely submitted by 

the applicable deadlines, and 

particularly by the closing date, will be 

strictly enforced to promote the 

purposes of the revised Rule G–32 and 

the protection of investors. 

Use of Form G–32 in Connection With 

Offerings and Issues. For purposes of 

submitting Form G–32 under the 

proposal, an offering would consist of 

all securities described in the official 

statement, and the offering could consist 

of one or more issues.31 An issue 


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through a separate Form G–32 submission for the 

other official statement. 

32For example, if an underwriter only 

underwrites two maturities of an issue consisting of 

ten maturities, the underwriter would be 

responsible for reporting information regarding all 

ten maturities in the issue. See also footnote 31 

supra. 

33For example, if an offering consists of three 

issues, only two of which were underwritten in any 

part by a particular underwriter, such underwriter 

would be responsible for providing the full 

information required under Form G–32 for the two 

issues it underwrites but would only be responsible 

for providing the nine-digit CUSIP number for the 

latest maturity of the issue it does not underwrite. 

See also footnotes 31 and 32 supra. 

34For an issue that is ineligible for CUSIP number 

assignment, the state of the issuer and dated date 

also would be provided. For an issue of municipal 

fund securities, the state of the issuer also would 

be provided. For an issue of commercial paper, the 

six-digit CUSIP number assigned to the issue also 

would be provided in connection with the initiation 

of the commercial paper program (but not in 

connection with subsequent roll-overs, unless such 

information has changed). For a remarketed issue, 

the original dated date of the issue when originally 

issued also would be provided if a new dated date 

has been assigned to the remarketed issue. 

35 If the closing date has not yet been firmly 

established on the date of first execution, the 

underwriter would provide a reasonable estimate of 

such closing date at that time and would be 

obligated to update such estimated closing date 

when such date is determined. Thus, if the actual 

closing date differs from the expected closing date 

supplied on the date of first execution, the 

underwriter would be responsible to provide the 

correct closing date by no later than the actual 

closing date. For an issue of municipal fund 

securities, the expected closing date would be the 

date on which the first deliveries of securities in the 

issue are expected to be made. 

36The initial offering price could be expressed 

either in terms of dollar price or yield. For an issue 

that is ineligible for CUSIP number assignment, the 

nine-digit CUSIP number would be omitted but the 

maturity date and interest rate would be provided. 

For issues of municipal fund securities and 

commercial paper, no security-specific information 

would be required. If the underwriter did not 

underwrite any portion of an issue in the offering, 

the underwriter would only be required to provide 

the nine-digit CUSIP number for the latest maturity 

of such non-underwritten issue. 

37For an issue of commercial paper, the official 

statement would be submitted in connection with 

the initiation of the commercial paper program but, 

pursuant to revised Rule G–32(b)(i)(F), would not 

be required in connection with subsequent rollovers, unless the official statement has been 

modified. For a remarketed issue, the underwriter/ 

remarketing agent would be required to indicate 

whether the submitted document is the complete 

disclosure document or supplements the original 

official statement produced in connection with the 

initial offering of the remarketed issue. Pursuant to 

revised Rule G–32(b)(i)(F), no official statement is 

required in connection with a remarketing if no 

such document or supplement was created. The 

underwriter would also be required to make any 

corrections to the full issuer name and issue 

description provided at the time of first execution 

to the extent necessary to reflect the information as 

it actually appears on the official statement. 

38Thus, if such information is provided in the 

official statement as is currently the custom, the 

underwriter would not be required to enter it into 

Form G–32. 

39Other items normally required to be submitted 

by no later than the time of first execution would 

continue to be required by such deadline. 

40For an issue of commercial paper, the six-digit 

CUSIP number assigned to the issue also would be 

provided unless such CUSIP number has not yet 

been assigned, in which case such number would 

be required to be submitted promptly after 

assignment but by no later than the time of first 

execution. 

41 If CUSIP numbers have not yet been assigned, 

then such numbers would be required to be 

submitted promptly after assignment but by no later 

than the date of first execution, unless the issue is 

ineligible for CUSIP number assignment or the issue 

consists of municipal fund securities or commercial 

paper. 

generally would consist of all securities 

in an offering having the same issuer, 

the same issue description (including 

same series designation or named 

obligor, if applicable) and the same 

dated date. In cases where no official 

statement is produced, each issue not 

described in an official statement would 

be considered a separate offering for 

purposes of Form G–32. 

Basic Submission Process for Form G– 

32. The basic information to be 

provided through Form G–32 and the 

timing of the submission of such 

information for a typical submission to 

EMMA under revised Rule G–32 would 

be as set forth below. An underwriter 

would be responsible for providing all 

information described below to the 

extent so required for all maturities of 

any issue underwritten in whole or in 

part by such underwriter.32 In the case 

in which an underwriter does not 

underwrite any portion of one or more 

issues in an offering, the underwriter 

would be responsible for providing only 

the nine-digit CUSIP number for the 

latest maturity of any such nonunderwritten issue.33

Information on date of first execution 

of transaction. The underwriter would 

be required under revised Rule G– 

32(b)(i)(A) and (b)(vi)(C)(1)(a) to initiate 

the Form G–32 submission process by 

no later than the date of first execution 

of transactions in securities sold in the 

offering, at which time the underwriter 

would provide the following items of 

information with respect to each issue it 

underwrites: 

• Issue-specific information 

consisting of the full issuer name and 

issue description, as such items are 

expected to appear in the official 

statement,34 and the expected closing 

date of the issue; 35 and 

• Security-specific information 

consisting of the nine-digit CUSIP 

number, the principal amount at 

maturity of each security, and the initial 

offering price or yield for each security 

in the issue (including initial offering 

price or yield of any securities 

otherwise considered not-reoffered).36

Document and information at time of 

submission of official statement. The 

official statement would be required 

under revised Rule G–32(b)(i)(B)(1) to be 

submitted to EMMA, along with related 

Form G–32 information, within one 

business day after receipt from the 

issuer or its designated agent, but by no 

later than the closing date. The 

underwriter would be required to 

submit, along with or prior to the 

submission of the official statement, the 

following items with respect to each 

issue: 

• Official statement document as a 

PDF file, as well as information on the 

date the official statement was received 

from the issuer and confirmation of the 

full issuer name and issue description, 

as such items actually appear in the 

official statement; 37 and 

• Underwriting spread or agency fee 

paid by the issuer to the underwriter for 

a negotiated offering, if not disclosed 

within the official statement.38

In the typical offering, the submission 

of the document to EMMA within one 

business day of receipt from the issuer 

would be preceded by the required 

initial submission of information on or 

prior to the date of first execution of a 

transaction in the securities. However, 

in those cases where the official 

statement submission deadline precedes 

the date of first execution (for example, 

if the underwriter has received the 

official statement in advance of the date 

of first execution), the underwriter 

would be required to submit, along with 

or prior to the submission of the official 

statement and the items of information 

identified above, the following 

additional items with respect to each 

issue (which otherwise would be 

required to be submitted by no later 

than the date of first execution): 39

• Issue-specific information 

consisting of the full issuer name and 

issue description, as such items appear 

in the official statement, and the 

expected closing date of the issue; 40 and 

• Security-specific information 

consisting of the nine-digit CUSIP 

number for each security in the issue, if 

then available.41

Summary of Basic Information 

Requirements. The items of information 

to be submitted and the timing of such 

submissions through Form G–32 under 

revised Rule G–32 for submissions not 


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42Such information would include an indication 

(i) that the underwriter underwrote less than the 

full principal amount of an issue and the amount 

underwritten by the underwriter, (ii) as to which 

category of underwriting assessment exemption 

under Rule A–13(a) would apply to the entire 

offering, or (iii) as to which category of reduced 

underwriting assessment under Rule A–13(b) would 

apply to the entire offering. 

43New CUSIP numbers are required to be 

obtained with respect to securities advance 

refunded in part pursuant to Rule G–34(a)(i)(D). For 

a refunded security that does not have a nine-digit 

CUSIP number, the issuer name, state of issuer, 

issue description and maturity date would be 

required to be provided. 

44Revisions made to the preliminary official 

statement in order to convert such document into 

the final official statement would not be considered 

an amendment to the preliminary official statement 

requiring submission to EMMA. Instead, the 

underwriter would submit the final official 

statement itself as required under Rule G–32. 

45A single submission of the PDF file of the 

amendment would meet the document submission 

requirement with respect to the original official 

statement. 

requiring additional information (as described below) is summarized in the 

following table: 

Item Timing 

Full issuer name/issue description .......................................................................................... Earlier of (i) date of first execution and (ii) date of 

official statement submission. 

9-digit CUSIP number ............................................................................................................. Earlier of (i) date of first execution and (ii) later of 

(a) official statement submission or (b) assignment of CUSIP number. 

Principal amount ..................................................................................................................... Date of first execution. 

Initial offering price/yield ......................................................................................................... Date of first execution. 

Expected closing date ............................................................................................................. Date of first execution. 

Official statement document ................................................................................................... Date of official statement submission. 

Date official statement received .............................................................................................. Date of official statement submission. 

Underwriting spread/agency fee ............................................................................................. Date of official statement submission. 

Additional Items in Connection With 

Special Cases. No additional 

information would be required beyond 

the information described above unless 

(i) the official statement is not available 

for submission by closing, (ii) the 

offering consists solely of one or more 

limited offerings for which the official 

statement will not be made available by 

the underwriter through EMMA, (iii) 

any issue in the offering advance 

refunds outstanding securities, (iv) the 

underwriter underwrote only a portion 

of an issue, (v) the offering qualifies for 

an exemption from the MSRB’s 

underwriting assessment under Rule A– 

13(a) or a reduced underwriting 

assessment rate under Rule A–13(b), (vi) 

the official statement is amended, or 

(vii) corrections are necessary to 

information previously provided. 

Additional information that the 

underwriter would be required to 

submit through Form G–32 and the 

timing of the submission of such 

information for these special cases are 

as set forth below: 

Information and/or document by 

closing for special cases. Additional 

information, as applicable, would be 

required to be submitted by no later 

than closing as follows: 

• If an official statement will be 

produced but is not yet available, the 

preliminary official statement document 

as a PDF file, if available, or a notice 

that no preliminary official statement 

has been prepared, as required under 

revised Rule G–32(b)(i)(B)(2)(c) and 

(b)(i)(D)(1), and notice that the official 

statement document will be submitted 

when it becomes available, as required 

under revised Rule G–32(b)(i)(B)(2)(a); 

• If an official statement will not be 

produced, the preliminary official 

statement document as a PDF file, if 

available, or a notice that no 

preliminary official statement has been 

prepared, as required under revised 

Rule G–32(b)(i)(C)(2) and (b)(i)(D)(1), 

notice that no official statement has 

been prepared, as required under 

revised Rule G–32(b)(i)(C)(1), and an 

indication of which exception under 

Rule 15c2–12 applies with regard to the 

official statement; 

• If an underwriter elects to withhold 

an official statement from EMMA for a 

limited offering under Exchange Act 

Rule 15c2–12(d)(1)(i), notice that the 

offering is a limited offering and that the 

official statement will not be made 

available through EMMA, as required 

under revised Rule G–32(b)(i)(E)(2)(a), 

and contact information for requests for 

copies of the official statement, as 

required under revised Rule G– 

32(b)(i)(E)(2)(b); 

• If an issue advance refunds 

outstanding securities, notice to that 

effect; or 

• If an underwriter believes that it is 

entitled to an exemption from the 

underwriting assessment or a reduced 

assessment rate, information as to the 

basis for such modified assessment.42

Document and information at time of 

submission of advance refunding 

document. If an issue advance refunds 

outstanding securities, the advance 

refunding document would be required 

under revised Rule G–32(b)(ii) to be 

submitted to EMMA, along with related 

Form G–32 information, by no later than 

five business days after the closing on 

the refunding issue. The underwriter 

would be required to submit, along with 

or prior to the submission of the 

advance refunding document, the 

following items: 

• Advance refunding document as a 

PDF file, as well as information on the 

date the advance refunding document 

was received from the issuer; 

• Information identifying the 

refunding issues relating to the advance 

refunding document; and 

• Security-specific information for 

the refunded securities, consisting of the 

original nine-digit CUSIP number for 

each security refunded and, if any new 

CUSIP numbers are assigned in 

connection with any refunded or 

unrefunded portions of the security, the 

maturity date of such security and any 

such newly issued CUSIP numbers.43

Document and information at time of 

submission of amendment to official 

statement or preliminary official 

statement. Amendments to the official 

statement or preliminary official 

statement occurring during the primary 

offering disclosure period would be 

required under revised Rule G–32(b)(iii) 

to be submitted by the underwriter to 

EMMA within one business day of 

receipt from the issuer.44 The 

underwriter would be required to 

submit, along with or prior to the 

submission of the amendment to the 

official statement, the following items: 

• The amendment document as a PDF 

file, as well as information on the date 

the amendment was received from the 

issuer; 45 and 

• Information on whether the 

submitted document supplements the 

original official statement or 

preliminary official statement and 

should be displayed by EMMA along 


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46 In general, an official statement submitted for 

an issue in which a preliminary official statement 

was previously submitted to EMMA would replace 

the preliminary official statement as the ‘‘active’’ 

disclosure document on EMMA, although the 

preliminary official statement would continue to be 

accessible through the archive for the particular 

issue. Issues of municipal fund securities remain 

continuously in the primary offering disclosure 

period for so long as securities continue to be sold 

in connection with such issue and therefore 

numerous amendments may occur over the course 

of many years. Such amendments may initially 

supplement the original official statement until 

such time as the issuer produces an entirely new 

official statement, which new official statement 

would be treated as an amendment that replaces the 

original document and all preceding supplements. 

Thereafter, this new official statement may itself be 

supplemented by one or more amendments and, 

after a period of time, the new official statement 

and supplements may again be replaced by a new 

official statement. This sequence generally would 

continue for so long as the issuer continues selling 

securities in such issue. 47The term ‘‘new issue municipal securities’’ 

under current Rule G–32 is renamed as ‘‘offered 

municipal securities’’ under revised Rule G– 

32(d)(vi) to emphasize that the rule applies to 

municipal securities remarketed in a primary 

offering, not just to new issues of municipal 

securities. 48 Dealers wishing to provide such notice in 

electronic form should consider guidance 

previously published by the MSRB concerning the 

use of electronic communications where standards 

for notice, access and evidence to show delivery are 

met. See Rule G–32 Interpretation—Notice 

Regarding Electronic Delivery and Receipt of 

Information by Brokers, Dealers and Municipal 

Securities Dealers, November 20, 1998, reprinted in 

MSRB Rule Book (the ‘‘1998 Electronic Delivery 

Notice’’). 

49Current Rule G–32 requires that the official 

statement be delivered to customers by settlement, 

whereas revised Rule G–32 would require the 

official statement or notice of availability of the 

official statement to be provided or sent by 

settlement. The official statement itself would 

continue to be available by settlement through 

EMMA but the timing of the notice is designed to 

permit such information to be included on or with 

the transaction confirmation. 

50Revised Rule G–32(d)(x) would define qualified 

portal to mean an Internet-based utility providing 

access by any purchaser or potential purchaser of 

offered municipal securities to the official statement 

for such offered municipal securities in a 

designated electronic format, and allowing such 

purchaser or potential purchaser to search for 

(using the nine-digit CUSIP number and other 

appropriate search parameters), view, print and 

save the official statement, at no charge, for a period 

beginning on the first business day after such 

official statement becomes available from EMMA 

and ending no earlier than 30 calendar days after 

the end of the primary offering disclosure period for 

such offered municipal securities; provided that 

any such utility shall not be a qualified portal 

unless notice to users that official statements are 

also available from EMMA is posted and a 

hyperlink to EMMA are posted on the page on 

which searches on such utility for official 

statements may be conducted. 

51Currently, the page for such viewing and 

downloading on EMMA for a particular security to 

which a 9-digit CUSIP number has been assigned 

will have an URL of the format ‘‘http:// 

emma.msrb.org/SecurityView/ 

SecurityDetails.aspx?cusip= [ENTER 9-DIGIT 

CUSIP NUMBER]’’. The MSRB will provide 

advance notice if the format of such URL is changed 

in the future. 

52Although the ‘‘access equals delivery’’ model 

would not be available for municipal fund 

securities, underwriters (i.e., primary distributors) 

of such securities would be required to submit the 

official statements to EMMA electronically. Dealers 

wishing to fulfill their official statement delivery 

requirements using electronic official statements 

should consider guidance previously published by 

the MSRB concerning the use of electronic 

communications where standards for notice, access 

and evidence to show delivery are met. See the 

1998 Electronic Delivery Notice, supra footnote 48. 

53This provision is substantially identical to the 

provisions of current Rule G–32(a)(i)(A). 

54This is the same disclosure that currently is 

required in connection with sales of municipal fund 

securities under current Rule G–32(a)(ii)(B). With 

respect to municipal securities other than 

municipal fund securities sold on a negotiated 

basis, the underwriting spread, agency fee and 

initial offering prices required to be disclosed by 

dealers selling new issue municipal securities 

under current Rule G–32(a)(ii) would be disclosed 

on EMMA under revised Rule G–32 by means of the 

underwriter submitting such information through 

Form G–32. 

with the original, or the submitted 

document is the complete disclosure 

document and should replace the 

original official statement or 

preliminary official statement as the 

document to be displayed by EMMA.46

Disclosures to Customers 

Subsection (a)(i) of revised Rule G–32 

would retain the basic official statement 

dissemination requirements for dealers 

selling offered municipal securities 47 to 

customers as set forth in current Rule 

G–32. However, under subsection (a)(ii), 

dealers selling offered municipal 

securities, other than municipal fund 

securities, would be deemed to have 

satisfied this basic requirement for 

delivering official statements to 

customers by trade settlement since 

such official statements would be 

publicly available for free through the 

EMMA portal. In the case of a dealer 

that is the underwriter for the primary 

offering, such satisfaction would be 

conditioned on the underwriter having 

submitted the official statement to 

EMMA. Dealers selling municipal fund 

securities would remain subject to the 

existing official statement delivery 

requirement. 

Under subsection (a)(iii) of revised 

Rule G–32, a dealer selling offered 

municipal securities with respect to 

which the official statement delivery 

obligation is deemed satisfied as 

described above would be required to 

provide or send to the customer, by no 

later than trade settlement, either a copy 

of the official statement or a written 

notice 48 advising how to obtain the 

official statement from the EMMA portal 

and that a copy of the official statement 

would be provided upon request.49

Dealers may include in such notice 

additional information about obtaining 

the official statement from a qualified 

portal.50 Dealers may, but are not 

required to, provide such notice on or 

with the trade confirmation. Under Rule 

G–15(a)(i), confirmations are required to 

be given or sent to customers at or prior 

to trade settlement. If the customer 

requests a copy of the official statement, 

the dealer would be required to send it 

within one business day of the request 

by first class mail or by such other 

equally prompt means. Dealers would 

be required to honor any customer’s 

explicit standing request for copies of 

official statements for all of his or her 

transactions with the dealer. 

The MSRB would view the obligation 

to provide the first portion of the 

customer notice regarding the 

availability of the official statement as 

having been presumptively fulfilled if 

the notice provides the uniform 

resource locator (URL) for the specific 

EMMA portal page from which the 

official statement may be viewed and 

downloaded 51 or the 9-digit CUSIP 

number for the security and the URL for 

the EMMA portal search page through 

which a search based on such CUSIP 

number may be undertaken. 

Revised Rule G–32(a)(iv) would not 

substantially change the delivery 

obligation with respect to sales of 

municipal fund securities from those 

that exist under current Rule G–32(a).52

The selling dealer would be required to 

deliver the official statement (e.g., 

program disclosure document, 

information statement, etc.) to the 

customer by trade settlement, provided 

that the dealer could satisfy this 

delivery obligation for its repeat 

customers (i.e., customers participating 

in periodic municipal fund security 

plans or non-periodic municipal fund 

security programs) by promptly sending 

any updated disclosure material to the 

customer as it becomes available, as set 

forth in paragraph (a)(iv)(A).53 In 

addition, the dealer would continue to 

be required under revised paragraph 

(a)(iv)(B) to disclose any distributionrelated fee received as agent for the 

issuer.54

Recordkeeping 

Subsections (a)(xiii) and (a)(xv) of 

Rule G–8 currently require that records 

be maintained in connection with 

deliveries of official statements to 

customers and submissions of official 

statements, advance refunding 

documents and Forms G–36(OS) and 

(ARD) to the MSRB. The rule change 

proposal would modify certain of these 

requirements to reflect the changes to 

Rule G–32 and consolidate the 

requirements of revised Rule G–32 into 

subsection (a)(xiii). Subsection (b)(x) of 


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55Underwriters would continue to maintain 

historical records under Rule G–36 pursuant to Rule 

G–8(a)(xv), as revised to reflect the rescission of 

Rule G–36, for so long as required under Rule G– 

9(b)(xi). 

56 15 U.S.C. 78o–4(b)(2)(C). 

57See comments from Peter J. Schmitt, CEO, DPC 

DATA Inc. (‘‘DPC’’), dated January 23, 2008. DPC’s 

comments are discussed in greater detail in section 

5 of this filing under the heading ‘‘Discussion of 

Comments—Structure of the Centralized Electronic 

System.’’ 

58See letter from Philip C. Moyer, CEO, EDGAR 

Online, Inc. (‘‘EDGAR Online’’), to Ernesto A. 

Lanza, Senior Associate General Counsel, MSRB, 

dated December 17, 2007. EDGAR Online’s 

comments are discussed in greater detail in section 

5 of this filing under the heading ‘‘Discussion of 

Comments—Structure of the Centralized Electronic 

System.’’ In addition, the MSRB has received 

several inquiries through the pilot EMMA portal’s 

feedback (http://www.emma.msrb.org/ 

AboutEMMA/Feedback.aspx) and contact (http:// 

www.emma.msrb.org/AboutEMMA/ContactUs.aspx) 

Web forms from members of the public seeking 

information on using EMMA documents and data, 

through the EMMA portal or subscription services, 

for the purposes of redissemination to their 

customers. 

59See footnote 2 supra. 

60See comments of DPC on the Pilot Filing. DPC 

further stated, ‘‘There is precedent of other SelfRegulatory Organizations (SROs) offering such 

sophisticated value-added information to the 

market, but only on a fee basis.’’ DPC also stated 

that ‘‘the MSRB’s sample pilot portal at http:// 

www.msrb.org/msrb1/accessportal/ 

SampleComprehensiveDisclosureDisplay.htm 

provides a glimpse of specific value-added features 

the MSRB intends to offer the public free of charge. 

Among these are nine-digit CUSIP searches, 

hyperlinks to bond issuers Web sites, an ‘alerts’ 

service to users of the portal, sophisticated 

document viewing options, links to other related 

documents in the portals disclosure archive, and 

subsequent event notifications that equate to 

custom research. These features and capabilities are 

well in excess of the system that the MSRB has 

pointed to as its model, the SEC’s own EDGAR.’’ 

61See comments of DPC on MSRB Notice 2007– 

5 (January 25, 2007). DPC further stated that the 

MSRB’s proposal to require dealers to provide 

notices to customers with a URL at a public access 

portal where the official statement could be 

obtained would be ‘‘prejudicial to the economic 

interests of existing vendors whose delivery 

services required that the definitive PDF file be 

archived on their Web sites for public access.’’ 

Rule G–9 relating to preservation of 

such records would also be modified to 

conform to the changes to Rule G–8. In 

general, underwriters would be required 

to retain electronic copies of documents 

and XML data files they submit to 

EMMA, and EMMA would provide 

underwriters with the ability to save for 

their records copies of data entered into 

EMMA’s Web-based electronic 

submission interface.55

2. Statutory Basis 

The MSRB has adopted the proposed 

rule change pursuant to Section 

15B(b)(2)(C) of the Act,56 which 

provides that the MSRB’s rules shall: 

be designed to prevent fraudulent and 

manipulative acts and practices, to promote 

just and equitable principles of trade, to 

foster cooperation and coordination with 

persons engaged in regulating, clearing, 

settling, processing information with respect 

to, and facilitating transactions in municipal 

securities, to remove impediments to and 

perfect the mechanism of a free and open 

market in municipal securities, and, in 

general, to protect investors and the public 

interest. 

The MSRB believes that the proposed 

rule change is consistent with the Act. 

The EMMA primary market disclosure 

service and EMMA trade price 

transparency service would serve as 

additional mechanisms by which the 

MSRB works toward removing 

impediments to and helping to perfect 

the mechanisms of a free and open 

market in municipal securities. The 

services would help make information 

useful for making investment decisions 

more easily available to all participants 

in the municipal securities market on an 

equal basis throughout the life of the 

securities without charge through a 

centralized, searchable Internet-based 

repository, thereby removing potential 

barriers to obtaining such information. 

Broad access to primary market 

disclosure documents and price 

transparency information through the 

EMMA portal should assist in 

preventing fraudulent and manipulative 

acts and practices by improving the 

opportunity for public investors to 

access material information about 

issuers, their securities and the prices at 

which such securities trade. 

Furthermore, a single centralized and 

searchable venue for free public access 

to disclosure and transaction price 

information should promote a more fair 

and efficient municipal securities 

market in which transactions are 

effected on the basis of material 

information available to all parties to 

such transactions, which should allow 

for fairer pricing of transactions based 

on a more complete understanding of 

the terms of the securities, the potential 

investment risks, and trade pricing 

activity in the marketplace. The 

electronic dissemination of primary 

market disclosure documents should 

allow issuers to reduce their issuance 

costs by eliminating the need to print 

and to distribute in paper official 

statements in connection with their 

primary offerings, thereby resulting in 

lower costs to issuers and savings to 

their citizens. Lower printing and 

dissemination costs also may result in 

lower expenses for underwriters and 

potentially lower prices for investors. 

Free access to such documents— 

previously available in most cases only 

through paid subscription services or on 

a per-document fee basis—should 

reduce transaction costs for dealers and 

investors. 

All of these factors serve to promote 

the statutory mandate of the MSRB to 

protect investors and the public interest. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The MSRB does not believe that the 

proposed rule change would impose any 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. The proposed rule 

change would apply equally to all 

dealers selling offered municipal 

securities to customers, as well as to all 

underwriters underwriting primary 

offerings of municipal securities. 

Documents and information provided 

through the EMMA portal would be 

available to all persons simultaneously. 

In addition to making the documents 

and information available for free on the 

EMMA portal to all members of the 

public, the MSRB would make primary 

market disclosure documents and 

information available by subscription on 

an equal and non-discriminatory basis 

without imposing restrictions on 

subscribers from, or imposing additional 

charges on subscribers for, redisseminating such documents or 

otherwise offering value-added services 

and products based on such documents 

on terms determined by each subscriber. 

The MSRB has considered carefully a 

commentator’s concern regarding the 

MSRB’s plans to develop EMMA,57 as 

well as expressions of interest from 

private enterprises in entering this 

market.58 One commentator on the Pilot 

Filing 59 stated that the MSRB’s 

intention to combine primary market 

and other disclosures with trade price 

data ‘‘breaks new ground among 

regulatory bodies in terms of valueadded content available to the public at 

no charge,’’ arguing that the MSRB 

would ‘‘effectively take over the 

business of providing value-added 

content.’’ 60 This commentator had 

previously stated that providing official 

statements for free to the public would 

impose a cost to the dealer community 

to subsidize the system’s development 

and operation, which it argued would 

‘‘appear[] to be more biased and unfair 

than recovering the costs from the users 

of the system based on usage,’’ and 

noted that providing official statements 

for free through public access portals 

would ‘‘impair the economic interests of 

information vendors that currently make 

OSs available on a commercial basis.’’ 61

Another commentator on the Pilot 

Filing argued in favor of the creation of 

a ‘‘publicly accessible storage and 

dissemination system’’ for all filings in 


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62See letter from EDGAR Online. EDGAR Online 

further stated, ‘‘In spite of a great deal of work by 

the Municipal Issuers on their disclosures—a small 

group of companies control access for the entire 

market to the documents that are supposed to be 

public.* * * The rigid control of public 

information dissuades other information providers 

from trying to enter or innovate for this market. 

This means that there are few people working on 

improving ease of use, depth of analysis, 

thoroughness of information or more effective 

means of delivery.* * * The process of managing 

these documents consumes most of the resources of 

these few information providers and the time of 

investors. As a result, the information contained in 

these documents—risks and opportunities—are 

usually lost because there are few sources of good 

comparability and data.’’ 

63See Securities Act Release No. 8591 (July 19, 

2005), 70 FR 44722 (August 3, 2005). 

64The MSRB notes that subscribers may be 

subject to proprietary rights of third parties in 

information provided by such third parties that is 

made available through the subscription. 

65Price transparency information is already 

available by subscription through existing RTRS 

products. 66MSRB Notice 2006–19 (July 27, 2006). 

the municipal securities market, stating 

that the current municipal securities 

disclosure model ‘‘severely limits 

innovation and access’’ to disclosures 

and ‘‘locks up public documents in 

private hands while the proposed portal 

run by a public entity will encourage 

transparency in the municipal securities 

market and create a healthy ecosystem 

of information that will ultimately 

benefit both the investment community 

and the municipalities that seek access 

to public markets.’’ 62

The MSRB observes that free access to 

official statements by the public through 

the EMMA portal and other qualified 

portals is a fundamental characteristic 

necessary for establishment of an 

‘‘access equals delivery’’ standard for 

official statement dissemination to 

customers purchasing offered municipal 

securities, as proposed under the rule 

change proposal, and would be similar 

in many respects to the free access to 

prospectuses provided through the 

Commission’s Electronic Data 

Gathering, Analysis, and Retrieval 

system (EDGAR). Access through 

EDGAR serves as an important element 

in the treatment of final prospectus 

delivery for registered offerings under 

Commission rules adopted in 2005.63

The costs of development and operation 

would be paid from MSRB revenues 

which are derived from assessments on 

dealers that are imposed under MSRB 

Rules A–12 (initial fee), A–13 

(underwriting and transaction 

assessments) and A–14 (annual fee), as 

well as from subscription fees to be 

charged for the real-time subscriptions. 

The fees charged under MSRB rules are 

fairly apportioned and apply equally to 

all equally-situated dealers and 

therefore would have no impact on 

competition among dealers active in the 

municipal securities market. The MSRB 

does not believe that investors in 

municipal securities should be charged 

for disclosure information produced by 

issuers with the intention that it be used 

for making informed investment 

decisions and for understanding the 

terms of the securities they own, 

although the MSRB acknowledges that 

direct or indirect costs of providing 

disclosure may impact on the fees paid 

by investors in effecting transactions. 

However, the MSRB believes that 

potential savings on transaction costs 

due to reduced costs of printing and 

distributing paper official statements 

under the ‘‘access equals delivery’’ 

model, as described in section 3(b) of 

this filing, together with the other 

benefits provided by the EMMA primary 

market disclosure service and EMMA 

trade price transparency service 

identified herein, would justify the costs 

of development and operation of the 

EMMA primary market disclosure 

service. 

The MSRB believes that the 

availability of primary market 

disclosure documents through the 

EMMA portal and the primary market 

subscription service, without the 

imposition of limitations on or 

additional charges for redistribution of 

such documents to customers, clients or 

other end-users of the subscriber,64 as 

well as the availability of price 

transparency information through the 

EMMA portal,65 would promote, rather 

than hinder, further competition, 

growth and innovation in this area. The 

MSRB further believes that the 

operation by the MSRB of the EMMA 

primary market disclosure service and 

the EMMA trade price transparency 

service would not result in the MSRB 

taking over the business of providing 

value-added content but instead serve as 

a basis on which private enterprises 

could themselves concentrate more of 

their resources on developing and 

marketing value-added services. The 

MSRB believes that much of the impact 

of the proposed rule change on 

commercial enterprises would result 

from the increased competition in the 

marketplace resulting from the entry of 

additional commercial enterprises in 

competition with such existing market 

participants with respect to value-added 

services, rather than from the operation 

of the EMMA primary market disclosure 

service and EMMA trade price 

transparency service as sources of raw 

documents and information to the 

public. The MSRB believes that the 

benefits realized by the investing public 

from the broader and easier availability 

of disclosure and price transparency 

information in connection with 

municipal securities that would be 

provided through the EMMA primary 

market disclosure service and EMMA 

trade price transparency service would 

justify any potentially negative impact 

on existing enterprises from the 

operation of EMMA. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

The MSRB has published a series of 

notices seeking comment on the 

establishment of an ‘‘access equals 

delivery’’ standard for official statement 

dissemination. These notices, the 

comments received, and the MSRB’s 

responses are discussed below. 

Concept Release 

In a concept release published on July 

27, 2006, the MSRB sought comment on 

whether the establishment of an ‘‘access 

equals delivery’’ model in the municipal 

securities market would be appropriate 

and on the general parameters relating 

to such a model (the ‘‘Concept 

Release’’).66 With regard to public 

access to official statements under an 

‘‘access equals delivery’’ standard for 

municipal securities, the Concept 

Release stated that electronic official 

statements would need to be made 

readily available to the investing public, 

at no cost, throughout the new issue 

disclosure period, at a minimum. The 

MSRB expressed the belief that 

investors would be best served if such 

official statements were made available 

at a centralized Internet Web site but 

sought comment on a possible 

alternative using a central directory of 

official statements with hosting of 

electronic official statements 

undertaken by issuers, financial 

advisors, underwriters, information 

vendors, printers and others 

maintaining free ready access to such 

documents. The MSRB also sought 

comment on whether it should 

undertake the central access function, or 

whether other market participants or 

vendors could undertake such function 

subject to appropriate supervision. 

The Concept Release had originally 

proposed that Rule G–32 be revised to 

permit a dealer selling new issue 

municipal securities to a customer to 

provide notice to the customer that the 

official statement is available 

electronically as an alternative to 

physical delivery of the official 

statement to the customer. The selling 

dealer would be required to provide a 


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67The Concept Release noted that underwriters 

are already required to disseminate CUSIP 

information within this same timeframe under 

current Rule G–34 for virtually all new issues. The 

list offering price information disclosure under 

revised Rule G–36 would take the place of such 

disclosure to customers under current Rule G–32. 

68MSRB Notice 2007–5 (January 25, 2007). 

69 Dealers selling municipal fund securities 

would remain subject to the existing physical 

delivery requirements. In the case of a dealer that 

is the underwriter for the new issue, such 

satisfaction would be conditioned on the 

underwriter having submitted the official statement 

to the centralized electronic system. 

70The revised rule would not provide an 

exception from the electronic submission 

requirement for official statements relating to 

municipal fund securities. 

printed version of the official statement 

upon request. The requirements in 

current Rule G–32 with respect to interdealer distribution of official statements 

would be deleted as the official 

statements would be readily available 

electronically. Finally, dealer financial 

advisors that prepare official statements 

on behalf of issuers would be required 

to provide electronic versions to the 

underwriters. 

The Concept Release also proposed 

that Rule G–36 be revised to require 

underwriters of all primary offerings of 

municipal securities for which official 

statements are prepared to submit the 

official statements to the MSRB solely in 

electronic form. The timeframe for 

submission of official statements could 

be simplified to require the underwriter 

to submit the official statement for any 

offering (regardless of its status under 

Exchange Act Rule 15c2–12) by no later 

than the business day following receipt 

from the issuer, but in no event later 

than the bond closing date. 

Rule G–36 would continue to require 

underwriters to submit much of the 

information currently included on Form 

G–36(OS) but would no longer require 

that such information be provided 

simultaneously with the official 

statement or in a single submission. 

Such information submission would be 

accepted solely in electronic form, 

either through a Web-based interface or 

by upload or data stream using XML or 

other appropriate format. In addition, 

underwriters would be permitted to 

designate submission agents for the 

official statement and required 

information submissions, although the 

underwriters would remain responsible 

for accurate and timely submissions. 

The underwriter would be required to 

make an initial submission of 

information, consisting of CUSIP 

numbers and list offering prices of all 

maturities in the issue, on or prior to the 

first execution of a transaction in such 

issue.67 The underwriter would 

thereafter submit further required 

information and the electronic official 

statement as they become available. 

Information submissions under Rule G– 

36 would be required for all new issues, 

even if no official statement is being 

produced. If an official statement is not 

being produced, the underwriter would 

be required to report that fact. 

The Concept Release sought comment 

on whether the ‘‘access equals delivery’’ 

model should be available on all new 

issues or whether certain classes of new 

issues should continue to be subject to 

a physical delivery requirement, such as 

issues of municipal fund securities or 

issues exempt from Exchange Act Rule 

15c2–12. The Concept Release also 

asked whether notice to the customer 

should be provided by trade settlement, 

matching the current timing of official 

statement delivery under Rule G–32, or 

two business days after trade settlement, 

as is required under Securities Act Rule 

173 with respect to registered offerings. 

January 2007 Notice 

In a subsequent notice published on 

January 25, 2007, the MSRB sought 

comment on draft amendments to Rules 

G–32 and G–36 to implement the 

‘‘access equals delivery’’ standard (the 

‘‘January 2007 Notice’’).68 The January 

2007 Notice sought comment on 

extensive proposed revisions to the 

official statement submission and 

dissemination requirements under 

MSRB rules. Current Rules G–32 and G– 

36 would be consolidated into a single 

substantially revised Rule G–32 and 

Rule G–36 would be rescinded. 

Revised Rule G–32 would retain the 

official statement dissemination 

requirements for dealers selling new 

issue municipal securities to customers 

but dealers selling new issue municipal 

securities would be deemed to have 

satisfied this requirement.69 A dealer 

selling new issue municipal securities 

would be required to provide to the 

customer, within two business days 

following trade settlement, either a copy 

of the official statement or a written 

notice stating that the official statement 

is available from the centralized 

electronic system, providing a Web 

address where such official statement 

may be obtained, and stating that a copy 

of the official statement would be 

provided upon request. In addition, if 

the customer requests a copy of the 

official statement, the dealer would be 

required to send it promptly and to 

honor any customer’s explicit standing 

request for copies of official statements 

for all of his or her transactions with the 

dealer. The January 2007 Notice noted 

that the notice to customers must 

include the URL assigned to the specific 

official statement referred to in the 

notice and sought comment on whether 

the notice to customers must refer 

specifically to the centralized electronic 

system or may identify a different 

source. 

The January 2007 Notice sought 

comment on whether offerings 

described under Exchange Act Rule 

15c2–12(d)(1)(i) (‘‘limited offerings’’) 

should be excluded from the ‘‘access 

equals delivery’’ model or, in the 

alternative, whether an exclusion 

should be provided at the election of the 

underwriter with a required information 

submission to the centralized electronic 

system to provide public notice of such 

election. 

All submissions by underwriters of 

official statements to the centralized 

electronic system would be required to 

be made within one business day after 

receipt from the issuer but by no later 

than the closing date.70 If no official 

statement is prepared or if an official 

statement is being prepared but is not 

yet available from the issuer by the 

closing date, the underwriter would be 

required to submit the preliminary 

official statement, if any, to the 

centralized electronic system by the 

closing date. Once an official statement 

becomes available, the underwriter 

would be required to submit the official 

statement within one business day after 

receipt from the issuer. If no official 

statement is prepared for an offering, the 

underwriter also would be required to 

provide notice of that fact. 

Underwriters would continue to be 

required to submit advance refunding 

documents by no later than five 

business days after the closing date. The 

requirement would apply whenever an 

advance refunding document has been 

prepared in connection with a primary 

offering, not just for those offerings in 

which an official statement also has 

been prepared as under current Rule G– 

36. Amendments to official statements 

and advance refunding documents 

would be required to be submitted 

within one business day of receipt 

throughout the new issue disclosure 

period. In addition, underwriters would 

be required to provide notice of any 

cancellation of an issue for which a 

submission has previously been made. 

Under revised Rule G–32, all official 

statements, preliminary official 

statements and advance refunding 

documents, as well as any amendments 

thereto, would be submitted to the 

centralized electronic system by 

electronic means in a designated 

electronic format. Paper submissions 

would no longer be accepted, with all 


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71MSRB Notice 2007–33 (November 15, 2007). 

The November 2007 Notice also announced the 

filing with the Commission of a proposed rule 

change to establish the pilot EMMA portal, which 

became operational on March 31, 2008 after 

Commission approval. See Pilot Filing at footnote 

2 supra. 

submissions limited at the outset to PDF 

files. The centralized electronic system 

would be designed to accept such 

electronic submissions either through 

an upgraded version of the existing 

MSIL Web-based interface known as the 

e-OS system or by upload or data stream 

initially using XML. 

Current Form G–36(OS) and Form G– 

36(ARD), which can be completed either 

on paper or electronically, would be 

replaced by a single Form G–32 that 

would be completed electronically. 

Underwriters would be required to 

submit a Form G–32 in connection with 

each official statement (or preliminary 

official statement, where no official 

statement exists), as well as in 

connection with each offering for which 

no official statement or preliminary 

official statement is available. The 

January 2007 Notice anticipated that the 

Form G–32 submission process would 

be initiated by the submission of the 

CUSIP number information and initial 

offering prices for each maturity shortly 

after the bond sale (e.g., by the time of 

the first execution of a transaction 

within the meaning of Rule G–34). 

Other items of information to be 

submitted through the Form G–32 

submission process, including the 

underwriting spread, if any, and the 

amount of any fee received by the 

underwriter as agent for the issuer in the 

distribution of the securities (to the 

extent such information is not included 

in the official statement), as well as 

many of the items currently required on 

Form G–36(OS) in connection with the 

MSRB’s underwriting assessment under 

Rule A–13, would be provided by the 

underwriter as they become available. 

Form G–32 would be completed by the 

closing date, although for certain items 

that may not become available until 

after the closing date (e.g., advance 

refunding documents, amendments to 

official statements, etc.), submissions 

could continue to be made as necessary 

up to the end of the new issue 

disclosure period. All submissions of 

advance refunding documents, 

amendments and notices of issue 

cancellation would be made by means 

of a Form G–32 previously initiated in 

connection with the related official 

statement or offering. 

Underwriters would be permitted to 

designate one or more submission 

agents to submit documents and 

information required under the rule. 

The rule would not limit who may act 

as such submission agent on behalf of 

the underwriter but, as an agent, the 

underwriter would be bound by the 

actions of such agent. 

Revised Rule G–32 would require any 

dealer acting as financial advisor that 

prepares the official statement for the 

issuer in any offering of municipal 

securities to make the official statement 

available to the managing or sole 

underwriter in a designated electronic 

format promptly after it has been 

approved by the issuer for distribution. 

Existing definitions in Rules G–32 

and G–36 would be consolidated into 

revised Rule G–32, with the definition 

of ‘‘new issue municipal securities’’ no 

longer excluding commercial paper and 

the definition of ‘‘new issue disclosure 

period’’ modified to emphasize that the 

period ends 25 days after the final 

delivery by the issuer of any securities 

of the issue. New definitions for 

‘‘designated electronic format’’ and 

‘‘closing date’’ would be added. 

Rules G–8 and G–9 also would be 

modified to reflect recordkeeping 

changes as they relate to revised Rule 

G–32. 

The January 2007 Notice also 

described certain basic features of the 

planned centralized electronic system, 

noting that, in addition to the public 

access portal that the MSRB anticipated 

operating, other portals using the 

document collection from the MSRB 

obtained through real-time 

subscriptions could be established by 

other entities as parallel sources for 

official statements and other documents 

and information. These separate portals 

could provide these services on such 

commercial terms as they deem 

appropriate. The January 2007 Notice 

stated that the MSRB’s goal in 

promoting the establishment of parallel 

public access portals would be to 

provide all market participants with a 

realistic opportunity to access official 

statements and other documents and 

information throughout the life of the 

securities in a non-cost prohibitive 

manner while encouraging market-based 

approaches to meeting the needs of 

investors and other market participants. 

November 2007 Notice 

On November 15, 2007, the MSRB 

sought comment on certain revisions to 

the draft amendments to Rules G–32 

and G–36 (the ‘‘November 2007 

Notice’’).71 In particular, the MSRB 

sought further comment on the nature of 

the notice to be provided to customers 

regarding the availability of electronic 

official statements, underwriter 

submission requirements to EMMA for 

limited offerings, and the timing of 

initiation of the submission process to 

EMMA. 

The November 2007 Notice sought 

comment on a revised provision to Rule 

G–32 that would require a dealer selling 

a new issue security to advise the 

customer as to how to obtain the official 

statement from the centralized 

electronic system. The November 2007 

Notice stated that the MSRB would view 

this obligation as having been 

presumptively fulfilled if the notice 

provides the URL for the specific official 

statement or for the search page of an 

access portal at which the official 

statement may be found pursuant to a 

search. 

The November 2007 Notice sought 

comment on a provision that would 

make submission of official statements 

for limited offerings optional. For those 

limited offerings in which the 

underwriter submits the official 

statement to the centralized electronic 

system, the ‘‘access equals delivery’’ 

standard would apply and the official 

statement would be available through 

the public access portal. However, the 

underwriter could elect to withhold 

submission of the official statement for 

a limited offering if it provides the 

following items to the dissemination 

system for posting on the public access 

portals: (i) A certification affirming that 

the issue meets all of the requirements 

of Exchange Act Rule 15c2–12(d)(1)(i) as 

a limited offering; (ii) notice that the 

official statement is not available online but that the underwriter would 

provide a copy to any customer 

purchasing such limited offering; and 

(iii) specific contact information for 

underwriter personnel to whom 

requests for copies of the official 

statement should be made. 

The November 2007 Notice also 

sought comment on a revised definition 

of designated electronic format, which 

was modified to consist of an electronic 

format acceptable to the MSRB that is 

word-searchable and must permit the 

document to be saved, viewed, printed 

and retransmitted by electronic means 

using software generally available for 

free or on a commercial basis to nonbusiness computer users. Documents in 

portable document format that are wordsearchable and may be saved, viewed, 

printed and retransmitted by electronic 

means would be deemed to be in a 

designated electronic format. 

Finally, the November 2007 Notice 

sought comment on a revised provision 

that would explicitly require 

underwriters to initiate the submission 

process by no later than the Time of 

First Execution, as defined in proposed 

amendments to Rule G–34 then 

pending. 


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72MSRB Notice 2008–40 (September 24, 2008). 

73See letters from Edward J. Sullivan, Chair, 

American Bar Association, Section of State and 

Local Government, to Mr. Lanza, dated October 9, 

2006; Robert W. Doty, President, American 

Government Financial Services Company 

(‘‘AGFS’’), to Mr. Lanza, dated September 15, 2006; 

Gerard F. Scavelli, Senior Vice President and 

General Manager, Automated Data Process, Inc., to 

Mr. Lanza, dated September 15, 2006; Eric 

Bederman, Chief Compliance Officer, Bernardi 

Securities, Inc. (‘‘Bernardi’’), to Mr. Lanza, dated 

August 7, 2006; Leslie M. Norwood, Vice President 

and Assistant General Counsel, Bond Market 

Association (‘‘BMA’’), to Mr. Lanza, dated 

September 15, 2006; Blaine Schwartz, President and 

COO, brokersXpress, LLC (‘‘brokersXpress’’), to Mr. 

Lanza, dated September 15, 2006; Jackie T. 

Williams, Chair, College Savings Plans Network 

(‘‘CSPN’’), to Mr. Lanza, dated September 22, 2006; 

Michael A. Dardis, Manager of Trust and 

Investment Products Compliance, Commerce 

Bancshares, Inc. (‘‘Commerce’’), to Mr. Lanza, dated 

September 13, 2006; Paula Stuart, Chief Executive 

Officer, Digital Assurance Certification LLC, to Mr. 

Lanza, dated September 29, 2006; Mr. Schmitt, 

DPC, to Mr. Lanza, dated September 13, 2006; 

Robert Beck, Prinicipal, Municipal Bonds, Edward 

D. Jones & Co., LP (‘‘Edward Jones’’), to Mr. Lanza, 

dated September 13, 2006; Richard A. DeLong, 

Senior Vice President, Municipal Trading and 

Underwriting, First Southwest Company (‘‘First 

Southwest’’), to Mr. Lanza, dated September 15, 

2006; Robert J. Stracks, Counsel, Griffin, Kubik, 

Stephens & Thompson, Inc. (‘‘Griffin Kubik’’), to 

Mr. Lanza, dated September 14, 2006; Elizabeth R. 

Krentzman, General Counsel, Investment Company 

Institute (‘‘ICI’’), to Mr. Lanza, dated September 14, 

2006; Ronald J. Dieckman, Senior Vice President, 

Director of Public Finance/Municipals, J.J.B. 

Hilliard, W.L. Lyons, Inc. (‘‘Hilliard Lyons’’), to Mr. 

Lanza, dated August 4, 2006; Jerry L. Chapman, 

Managing Director, Municipal Product Manager, 

Morgan Keegan & Company, Inc. (‘‘Morgan 

Keegan’’), to Mr. Lanza, dated August 31, 2006; 

Gary P. Machak, Chairman, Municipal Advisory 

Council of Texas (‘‘Texas MAC’’), to Mr. Lanza, 

dated September 14, 2006; Walter J. St. Onge III, 

President, National Association of Bond Lawyers 

(‘‘NABL’’), to Mr. Lanza, dated September 14, 2006; 

Eric Friedland, Chairman, National Federation of 

Municipal Analysts (‘‘NFMA’’), to Mr. Lanza, dated 

September 15, 2006; Thomas Sargant, President, 

Regional Municipal Operations Association 

(‘‘RMOA’’), to Mr. Lanza, dated September 27, 2006; 

Elizabeth Varley, Vice-President and Director of 

Retirement Policy, and Michael D. Udoff, VicePresident, Associate General Counsel and Secretary, 

Securities Industry Association (‘‘SIA’’), to Mr. 

Lanza, dated September 20, 2006; Gerard Faulkner, 

Director—CUSIP Operations, Standard & Poor’s 

CUSIP Service Bureau (‘‘S&P CUSIP’’), to Mr. 

Lanza, dated September 15, 2006; Daniel E. Stone 

to Mr. Lanza, dated September 2, 2006; Ruth D. 

Brod, Consultant, TRB Associates, to Mr. Lanza, 

dated September 14, 2006; Terry L. Atkinson, 

Managing Director, UBS Securities LLC (‘‘UBS’’), to 

Mr. Lanza, dated September 15, 2006; James C. 

Thompson, Divisional Executive Vice President, 

UMB Bank, N.A. (‘‘UMB’’), to Mr. Lanza, dated 

September 14, 2006; Eileen M. Smiley, Vice 

President and Assistant Secretary, USAA 

Investment Management Company (‘‘USAA’’), to 

Mr. Lanza, dated September 15, 2006; John 

McCune, President, Wells Fargo Institutional 

Brokerage & Sales (‘‘Wells Fargo’’), to Mr. Lanza, 

September 14, 2006; and Eric Pehrson, Vice 

President, Zions Bank Public Finance (‘‘Zions’’), to 

Mr. Lanza, dated September 8, 2006. 

74See letters from J. Cooper Petagna, Jr., 

President, American Municipal Securities, Inc. 

(‘‘AMS’’), to Mr. Lanza, dated March 12, 2007; 

Vincent A. Mazzaro, Senior Managing Director and 

Controller of Municipals, Bear, Stearns & Co., Inc. 

(‘‘Bear Stearns’’), to Mr. Lanza, dated March 19, 

2007; Mr. Bederman, Bernardi, to Mr. Lanza, dated 

March 5, 2007; Ms. Williams, CSPN, to Mr. Lanza, 

dated September 20, 2007; Mr. Schmitt, DPC, to Mr. 

Lanza, dated March 9, 2007; Mr. Stracks, Griffin 

Kubik, to Mr. Lanza, dated March 14, 2007; Kevin 

Colleran, Vice President, Ipreo Holdings LLC 

(‘‘Ipreo’’), to Mr. Lanza, dated March 9, 2007; Carol 

L. Lew, President, NABL, to Mr. Lanza, dated 

March 12, 2007; Ms. Norwood, Securities Industry 

and Financial Markets Association (‘‘SIFMA’’), to 

Mr. Lanza, dated March 16, 2007; Merry Jane 

Tissier to Mr. Lanza, dated March 8, 2007; Mr. 

Thompson, UMB, to Mr. Lanza, dated February 25, 

2007; and Chris Charles, President, Wulff, Hansen 

& Co. (‘‘Wulff’’), to Mr. Lanza, dated March 7, 2007. 

75See letters from Frank R. Hoadley, Chairman, 

Governmental Debt Committee, Government 

Finance Officers Association (‘‘GFOA’’), to Mr. 

Lanza, dated December 20, 2007; J. Foster Clark, 

President, NABL, to Mr. Lanza, dated December 17, 

2007; S. Lauren Heyne, Chief Compliance Officer, 

R.W. Smith & Associates, Inc. (‘‘RW Smith’’), to Mr. 

Lanza, dated December 17, 2007; and Ms. Norwood, 

Managing Director and Associate General Counsel, 

SIFMA, to Mr. Lanza, dated December 14, 2007. 

76See Pilot Filing at footnote 2 supra. The MSRB 

received a comment letter from EDGAR Online, see 

footnote 57 supra, and the Commission received a 

comment letter from DPC, see footnote 56 supra. 

77AGFS, AMS, Bear Stearns, Bernardi, BMA, 

brokersXpress, CSPN, Commerce, DPC, EDGAR 

Online, Edward Jones, First Southwest, GFOA, 

Griffin Kubik, Hilliard Lyons, ICI, Ipreo, Morgan 

Keegan, Texas MAC, NABL, NFMA, RMOA, RW 

Smith, SIA, SIFMA, S&P CUSIP, UBS, UMB, USAA, 

Wells Fargo, Wulff, Zions. Although DPC supported 

the concept of electronic access to official 

statements, it expressed concerns regarding several 

basic concepts, as discussed below. While 

supporting a central dissemination system for 

official statements, TRB stated that it was unclear 

whether the proposal would make any 

improvement on what it viewed as most 

important—the availability of current information 

on all municipal bonds on an ongoing basis. 

78BMA, Commerce, DPC, ICI, NABL, Wells Fargo. 

Griffin Kubik and SIA stated that they agreed with 

the positions set forth in BMA’s comment letter. 

UBS withheld judgment pending more details on 

implementation. RMOA and S&P CUSIP note that 

the Depository Trust and Clearing Corporation 

charges a ‘‘disincentive fee’’ for underwriter 

submissions of paper official statements. 

79AGFS, Bernardi, Hilliard Lyons, Morgan 

Keegan, UBS, UMB, USAA, Zions. However, ADP 

argued that this standard would shift printing costs 

to investors. Hilliard Lyons stated that, although 

issuer costs may be reduced in negotiated offerings, 

it is typical that the underwriter incurs the printing 

and shipping costs for official statements in 

competitive offerings. 

80AGFS, ADP, Bernardi, DPC, Morgan Keegan, 

NFMA, TRB, UBS, USAA. 

September 2008 Notice 

On September 24, 2008, the MSRB 

sought comment on preliminary 

specifications for computer-to-computer 

processes for submissions to the EMMA 

primary market disclosure service and 

subscriptions under the EMMA primary 

market disclosure subscription service 

(the ‘‘September 2008 Notice’’).72 The 

September 2008 Notice set forth the 

expected processes, data elements and 

file formats for computer-to-computer 

submissions and subscriptions. 

Discussion of Comments 

The MSRB received comments on the 

Concept Release from 29 

commentators,73 on the January 2007 

Notice from 12 commentators,74 and on 

the November 2007 Notice from four 

commentators.75 The MSRB received no 

comments on the September 2008 

Notice. In addition, two commentators 

submitted comment letters on the 

MSRB’s Pilot Filing with the 

Commission.76 After reviewing these 

comments, the MSRB approved the 

proposed rule change for filing with the 

Commission. The principal comments 

are discussed below. 

Support for ‘‘Access Equals Delivery’’ 

and Centralized Internet Access to 

Official Statements. Commentators were 

nearly unanimous in their support of 

adoption of an ‘‘access equals delivery’’ 

standard and the establishment of a 

centralized Internet-based system for 

dissemination of municipal securities 

disclosure.77 Many commentators state 

that official statements are increasingly 

available in electronic form and that the 

potential burden on dealers of having to 

produce an electronic version from a 

paper official statement supplied by an 

issuer from time to time is out-weighed 

by the benefits.78 Commentators 

generally agreed that an ‘‘access equals 

delivery’’ would decrease overall 

costs 79 and should make disclosure 

information available more quickly and 

more broadly.80 GFOA ‘‘compliment[ed] 

the MSRB on its work to date on this 

project and support[ed] its efforts to 

create a system that works well for all 

participants in the marketplace.’’ NABL 

‘‘strongly supports the concept of 

‘access equals delivery’ that is embodied 

in the proposed draft amendments.’’ 

SIFMA observed that: 

the key to success for implementation of a 

comparable system (to the SEC’s [access 

equals delivery] system) for MSRB rules is 

that the proposal must meet the readily 

available, free of charge standard, that it 

promotes efficiency in the market and that it 

meets criteria for ‘‘flow through’’ processing 

of information. The Association believes the 

Notice promotes these objectives and that the 

MSRB should continue the process of 

eventually achieving these goals. 

The MSRB believes that there is 

widespread support throughout the 

municipal securities industry for the 

MSRB’s plan to implement an ‘‘access 

equals delivery’’ standard for official 

statement dissemination. 

Physical Delivery. AGFS and ADP 

noted that there are more elderly 

individual investors who may be less 

technologically savvy in the municipal 

securities market than in other markets. 

Mr. Stone expressed a desire not to be 

required to request delivery of a printed 


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81ADP stated that the nature of the information 

flowing to investors throughout the offering process 

is more significant in registered offerings as 

compared to municipal securities offerings and 

noted potential areas in which the disclosure 

information currently produced by municipal 

issuers could be qualitatively improved. ADP did 

not suggest that such differences precluded the 

adoption of an ‘‘access equals delivery’’ standard 

but stated that significant changes to current 

municipal market practices would be needed to put 

the information flow in the two markets on an equal 

footing. 

82See footnote 15 supra. 

83Bernardi, brokersXpress, Commerce, DPC, First 

Southwest, Hilliard Lyons, NABL, UMB, Wells 

Fargo, Zions. 

84BMA (now SIFMA) had originally stated in 

response to the Concept Release that the ‘‘access 

equals delivery’’ model should not apply to limited 

offerings exempt under Rule 15c2–12(d)(1)(i) 

because there is no reason for public access to 

disclosures for such offerings. SIA and UBS stated 

that they agreed with the positions set forth in 

BMA’s comment letter. Griffin Kubik, which 

supported BMA’s comments on all other issues, 

explicitly disagreed with BMA on this point. Griffin 

Kubik suggested, however, that if such an exception 

is provided, underwriters should be able to use the 

‘‘access equals delivery’’ model for limited offerings 

on a voluntary basis. 

official statement every time he makes 

a purchase. Ms. Tissier stated that the 

burden should not be on investors to 

request a paper copy and expressed 

concern regarding spam and fraudulent 

materials on the computer and the need 

for a paper trail for recordkeeping 

purposes. RMOA also noted that certain 

segments of the municipal securities 

investment community may not have athome access to the Internet and 

expected that dealers would honor 

requests for physical deliveries, 

although it believed that regulations 

requiring this would be excessive. 

Hilliard Lyons believed that there 

should be a requirement to provide a 

physical copy if requested. 

The MSRB has proposed in revised 

Rule G–32 that physical delivery of the 

official statement would be required for 

any customer requesting a copy of the 

official statement. Thus, if the customer 

requests a copy of the official statement, 

the dealer would be required to send it 

within one business day of request by 

first class mail or other equally prompt 

means. Dealers would be required to 

honor standing requests for paper 

official statements from customers— 

thus, customers would not be required 

to request physical delivery each time 

they purchase offered municipal 

securities if they have informed their 

dealer of a desire to always receive 

physical delivery. 

ADP believed that electronic delivery 

of official statements would offer an 

opportunity for enhancing information 

access in municipal securities 

offerings.81 However, ADP opposed 

shifting the disclosure dissemination 

system to an ‘‘access equals delivery’’ 

model and instead advocated a system 

of ‘‘dual distribution’’ in which 

customers would receive delivery of 

official statements in both printed and 

electronic (via e-mail) forms. ADP 

argued that a significant proportion of 

investors still do not have ready access 

to electronic information, that many 

investors are unwilling to access their 

investment information on-line, that 

investors are more likely to view 

electronic information if it is pushed to 

them rather than requiring that they 

actively seek it out, and that electronic 

delivery would shift printing costs to 

investors. 

AGFS suggested that the ‘‘access 

equals delivery’’ concept only be 

available in transactions in which 

investors have had actual access to the 

preliminary official statement, either 

through physical delivery or by 

providing consent to electronic delivery. 

In addition, AGFS suggested that 

dealers be required to circulate the 

official statement if there have been 

material changes made from the 

preliminary official statement. AGFS 

also warned that, once the cost savings 

from not preparing a printed official 

statement become apparent, some 

situations may arise where further cost 

savings are sought by foregoing the 

preparation of printed preliminary 

official statements as well. 

As noted above, the MSRB agrees that 

there is considerable value in ensuring 

access to the preliminary official 

statements, particularly in connection 

with ensuring that customers receive 

material disclosures at or prior to the 

time of trade and in sufficient time to 

make use of the information in coming 

to an investment decision.82 The MSRB 

expects to provide the opportunity for 

voluntary submissions of and access to 

preliminary official statements through 

EMMA, consistent with the MSRB’s 

statutory authority, pursuant to a future 

filing with the Commission. However, 

the MSRB believes that the ‘‘access 

equals delivery’’ standard to be 

effectuated for the municipal securities 

market should not create a dual 

distribution paradigm and should not be 

preconditioned on deliveries of 

preliminary official statements. 

Offerings to Which ‘‘Access Equals 

Delivery’’ Standard Should Apply. 

Many commentators believed that 

‘‘access equals delivery’’ should apply 

to all issues of municipal securities.83

However, some commentators argued 

that the ‘‘access equals delivery’’ 

standard should not apply to certain 

categories of offerings, as discussed 

below: 

Limited offerings under Exchange Act 

Rule 15c2–12(d)(1)(i). AMS and DPC 

believed that underwriters should be 

required to submit all limited offering 

official statements to the centralized 

electronic system for public 

dissemination. DPC stated that 

removing the exemption for limited 

offerings would better serve the interests 

of the market as a whole and would 

favor transparency. SIFMA and NABL 

believed that limited offerings should 

not be required to participate in the 

centralized electronic system, although 

SIFMA acknowledged that there were 

differing opinions on this issue.84

SIFMA and NABL were concerned 

about limited offerings that represent 

‘‘private placements’’ where the issuer 

and underwriter did not intend on 

making a public offering and sought not 

to have the official statement broadly 

disseminated. SIFMA suggested that a 

submission requirement also could 

serve as a disincentive to producing 

official statements for such offerings. 

SIFMA recognized that dealers selling 

securities issued in a limited offering 

would not be able to rely on the access 

equals delivery standard but would 

instead be required to provide physical 

delivery of official statements to 

customers. SIFMA recognized that 

including limited offerings in the 

centralized electronic system would 

make information about the securities 

more widely available in connection 

with secondary market trading and 

therefore suggested permitting voluntary 

submissions of official statements for 

limited offerings for this purpose. NABL 

also believed that voluntary 

submissions should be allowed. NABL 

suggested that, if the MSRB were to 

require submission of official statements 

for limited offerings, the MSRB could 

provide for access to the official 

statement with password restriction if 

requested by the underwriter. 

NABL and SIFMA supported the 

modified provisions for handling 

limited offerings, as described in the 

November 2007 Notice, where an 

underwriter submitting the official 

statement to the dissemination system 

would trigger the ‘‘access equals 

delivery’’ standard but an underwriter 

election to withhold submission of the 

official statement for a limited offering 

would trigger a requirement that the 

underwriter submit a certification 

affirming that the issue meets all of the 

requirements of Rule 15c2–12(d)(1)(i) as 

a limited offering; a notice that the 

official statement is not available online but that the underwriter would 

provide a copy to any purchasing 


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85SIA stated that if the Commission extends 

‘‘access equals delivery’’ to mutual funds, it might 

include municipal fund securities within its scope 

and, if not, the Commission approach as designed 

for mutual funds could serve as a template for the 

MSRB extending ‘‘access equals delivery’’ to 

municipal fund securities. 

86Although the ‘‘access equals delivery’’ model 

would not be available for municipal fund 

securities, electronic official statements could still 

be used to fulfill the official statement delivery 

requirement under prior guidance concerning the 

use of electronic communications where standards 

for notice, access and evidence to show delivery are 

met. See the 1998 Electronic Delivery Notice, supra 

footnote 48. 

87BMA, brokersXpress, Texas MAC, Zions. 

Griffin Kubik, SIA and UBS stated that they agreed 

with the positions set forth in BMA’s comment 

letter. 

88BMA noted that notice generally would be 

given by confirmation disclosure comparable to the 

‘‘access equals delivery’’ practice in the registered 

market. 

89NABL, Wells Fargo. 

customer; and contact information for 

requesting copies of the official 

statement. 

The MSRB has determined to include 

such modified provisions in the 

proposed rule change. Thus, revised 

Rule G–32(b)(i)(E) would permit the 

underwriter of a limited offering to elect 

to withhold submission of the official 

statement to EMMA if it submits the 

following to EMMA: (i) A notice that the 

offering is exempt from Exchange Act 

Rule 15c2–12(d)(1)(i) as a limited 

offering; (ii) notice that the official 

statement has been prepared but is not 

being submitted to EMMA by the 

underwriter; and (iii) specific contact 

information for underwriter personnel 

to whom requests for copies of the 

official statement should be made. The 

underwriter would be required to 

deliver the official statement to each 

customer purchasing such securities 

upon request by the later of one 

business day after the request or the 

settlement of the customer’s transaction. 

Commercial paper. Revised Rule G– 

32 would eliminate an existing 

exemption for commercial paper from 

the requirement that dealers provide an 

official statement to customers since 

such official statements would now be 

available through the centralized 

electronic system. DPC supported 

eliminating the commercial paper 

exemption. SIFMA recommended 

excluding commercial paper from the 

definition of ‘‘new issue municipal 

securities’’ because it believed that the 

rule language would require the 

underwriter to file a notice that no 

official statement is being prepared for 

each rollover where no new disclosure 

is produced. NABL opposed elimination 

of the commercial paper exemption but 

supported voluntary submission of 

commercial paper official statements to 

the centralized electronic system. The 

MSRB has determined to eliminate the 

exemption for commercial paper that 

currently exists under the new issue 

disclosure requirement of Rule G–32 but 

to retain a limitation on the requirement 

to submit the official statement to the 

MSRB for commercial paper roll-overs 

where there is no new disclosure 

document produced under revised Rule 

G–32(b)(i)(D). 

Municipal fund securities. BMA and 

SIA stated that the ‘‘access equals 

delivery’’ model should not apply to 

529 college savings plans and other 

municipal fund securities because 

mutual funds were excluded by the 

Commission from the ‘‘access equals 

delivery’’ standard for registered 

offerings. SIA stated that the MSRB 

would benefit by deferring any action 

with respect to municipal fund 

securities until further information is 

available regarding how the 

Commission would approach extending 

the ‘‘access equals delivery’’ standard to 

mutual funds.85 ICI stated that it 

supported increased reliance on 

electronic disclosure for mutual funds 

and 529 college savings plans, 

recommending that the MSRB consider 

the Commission’s ongoing initiative 

with respect to mutual fund disclosure 

rules in moving forward on the ‘‘access 

equals delivery’’ model. 

In contrast, USAA stated that 529 

college savings plan disclosure 

materials should not be excluded from 

the ‘‘access equals delivery’’ standard, 

stating that this model is particularly 

appropriate for such offerings because 

Internet access and usage by investors in 

529 college savings plans is significantly 

higher than the percentages noted by the 

Commission in justifying adoption of 

the ‘‘access equals delivery’’ standard 

for the registered market. USAA stated 

that paper delivery of disclosure 

materials for 529 college savings plans 

could actually hamper the efficient and 

timely delivery of information to the 

sources on which 529 college savings 

plan investors rely. CSPN noted several 

issues unique to the 529 college savings 

plan market that the ‘‘access equals 

delivery’’ model would raise, including 

the Commission’s stance toward 

prospectus dissemination for mutual 

funds. In view of these factors, CSPN 

suggested that the MSRB retain a 

presumption that 529 college savings 

plan disclosure documents would be 

physically delivered to customers but 

that customers may opt-in to an ‘‘access 

equals delivery’’ model for 529 college 

savings plans. CSPN added that, 

because 529 college savings plan 

disclosure documents are already 

available as PDF files on the issuers’ 

Web sites, implementation of the 

‘‘access equals delivery’’ for 529 college 

savings plans would not be difficult. 

The MSRB has determined to require 

that the underwriter or primary 

distributor for 529 college savings plans 

and other municipal fund securities 

submit the official statement 

electronically for display on the EMMA 

portal. However, dealers selling such 

securities to customers would not be 

permitted to rely on the ‘‘access equals 

delivery’’ standard, thereby generally 

requiring physical delivery of the 

official statement.86

Notice to Customers. The January 

2007 Notice sought comment on a 

provision that would require dealers to 

provide to customers, within two 

business days following trade 

settlement, either a copy of the official 

statement or a written notice advising as 

to how to obtain the official statement 

from the central dissemination system 

and that a copy of the official statement 

would be provided upon request. Some 

commentators stated that the timing for 

providing such notice should match the 

requirement for such notice for 

registered offerings (i.e., within two 

business days of trade settlement).87

Edward Jones and UMB suggested that 

the MSRB should permit such 

disclosure to be made on the trade 

confirmation,88 and UMB asked if there 

are specific requirements as to how such 

notice should be given. Other 

commentators stated that the timing 

should remain unchanged from the 

current official statement delivery 

timeframe set forth in Rule G–32 (i.e., by 

trade settlement).89

The MSRB has determined that the 

timing of the notice for customers 

should permit a process for providing 

such notices that is similar to the 

processes currently used in connection 

with certain types of registered offerings 

under the Securities Act. Therefore, the 

MSRB has provided in the rule change 

proposal that the notice must be 

provided or sent by trade settlement. 

The MSRB notes that this notice timing 

is independent of the timing for official 

statements to be made available to 

investors and the general public for free 

on EMMA, where official statements 

will become available within one 

business day of receipt from the issuer 

but no later than the first settlements of 

trades in the securities upon closing of 

the underwriting. 

The January 2007 Notice proposed 

that the specific URL for an official 

statement be included in the notice to 

be delivered to a new issue customer 


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90Other commentators, although not directly 

addressing this issue, appeared by inference also to 

oppose or to be uncomfortable with the concept of 

requiring that official statements be identified by a 

unique URL. 

91 Dealers may, but are not required to, provide 

the notice on or with the trade confirmation 

provided to customers under Rule G–15(a)(i), so 

long as the timing requirement is met. Dealers also 

would be permitted to include in the notice 

information regarding the availability of the official 

statement from a qualified portal. 92Customers should be directed to the 

appropriate ‘‘Issue Details’’ or ‘‘Security Details’’ 

page, rather than directly to the PDF file of the 

official statement, as such detail pages provide 

users with the opportunity to view whether the 

original official statement has been supplemented 

or amended. 

93The search page on the current pilot EMMA 

portal is at http://www.emma.msrb.org/Search/ 

Search.aspx. Dealers providing links to the 

appropriate search page must ensure that they 

provide the then current URL. 

94Bear Stearns and Griffin Kubik stated that they 

participated in the formulation of SIFMA’s 

comments and fully supported SIFMA’s positions. 95BMA, CSPN, DPC, Texas MAC, NFMA. 

with respect to the availability of the 

official statement through the 

centralized electronic system. SIFMA, 

AMS and Bernardi opposed the use of 

document-specific URLs, instead 

suggesting a more general referral in the 

customer notice to the centralized 

electronic portal where investors would 

use a search function to locate the 

specific official statement.90 Bernardi 

stated that, if unique URLs are 

ultimately required, such URLs should 

be as short as possible and be based on 

characteristics, such as CUSIP number, 

that would allow an automated method 

for notifying customers of such URLs. 

NABL stated that, if used, the system 

should be designed to ensure that 

unique URLs do not inhibit the ability 

of the public to undertake searches to 

find official statements. SIFMA 

provided several examples of 

difficulties that would arise if 

document-specific URLs were required. 

In addition to eliminating the 

requirement of identifying such URL on 

the customer notice, SIFMA 

recommended that ‘‘a short, generic, 

plain English statement comparable to 

the corporate reference to a ‘registration 

statement’’’ be used. SIFMA also 

suggested that the MSRB confer with the 

industry on operations issues regarding 

the formatting of such customer notice. 

The November 2007 Notice proposed 

a revised version of this provision under 

which the notice obligation would be 

presumptively fulfilled if the dealer’s 

notice to its customer provides the URL 

for the specific official statement or for 

the search page of an access portal at 

which such official statement may be 

found using the search function. SIFMA 

noted that dealers would expect to 

include the notice to customers on the 

confirmation as in the corporate market. 

SIFMA suggested that the following 

language be viewed as satisfying the 

notice requirement: ‘‘Official statement 

can be accessed at http://www.MSILAccess.com at or before the date of 

settlement. Printed copies will be 

provided upon request.’’ NABL 

suggested that if a notice provides the 

URL for a search page rather than for the 

official statement itself, ‘‘such notice 

also include the appropriate data entry, 

if any is needed, to navigate from the 

search page to the OS sought.’’ 

Under subsection (a)(iii) of revised 

Rule G–32 as proposed by the MSRB, a 

dealer would be required to provide or 

send to the customer, by settlement, 

either a copy of the official statement or 

a written notice advising the customer 

how to obtain the official statement 

from the EMMA portal and that a copy 

of the official statement would be 

provided upon request.91 This 

obligation to provide the first portion of 

the customer notice regarding how to 

obtain the official statement would be 

presumptively fulfilled if the notice 

provides (i) the URL for the specific 

EMMA portal page from which the 

official statement may be viewed and 

downloaded 92 or (ii) the 9-digit CUSIP 

number for the security and the URL for 

the EMMA portal search page through 

which a search based on such CUSIP 

number may be undertaken.93 Revised 

Rule G–32(d)(x) would define qualified 

portal to mean an Internet-based utility 

providing access by any purchaser or 

potential purchaser of offered municipal 

securities to the official statement for 

such offered municipal securities in a 

designated electronic format, and 

allowing such purchaser or potential 

purchaser to search for (using the ninedigit CUSIP number and other 

appropriate search parameters), view, 

print and save the official statement, at 

no charge, for a period beginning on the 

first business day after such official 

statement becomes available from 

EMMA and ending no earlier than 30 

calendar days after the end of the 

primary market disclosure period for 

such offered municipal securities; 

provided that any such utility shall not 

be a qualified portal unless notice to 

users that official statements are also 

available from EMMA and a hyperlink 

to EMMA are posted on the page on 

which searches on such utility for 

official statements may be conducted. 

Submissions of Preliminary Official 

Statements and Other Items. SIFMA,94

along with AMS, DPC, Ipreo, NABL, 

TRB, UMB and Zions, supported the 

concept of voluntary submissions of 

preliminary official statements. DPC 

suggested that the MSRB explore 

making the submission of all 

preliminary official statements 

mandatory, while SIFMA, AMS and 

NABL emphasized that preliminary 

official statement submissions should 

not be made mandatory. SIFMA and 

DPC noted the importance of ensuring 

version control where both preliminary 

official statements and official 

statements are made available (as well 

as in handling ‘‘stickers’’ to official 

statements), suggesting that the MSRB 

include a mechanism for notification to 

the public when the final official 

statement is posted in cases where a 

preliminary official statement has 

previously been submitted. DPC 

suggested that preliminary official 

statements be deleted when final official 

statements are submitted, while NABL 

suggested that underwriters be 

permitted to request that the 

preliminary official statement be 

removed from the centralized electronic 

system once the ‘‘timeliness of a POS 

has ended,’’ noting that its continued 

availability may confuse investors. 

However, SIFMA opposed the removal 

of the preliminary official statement. 

The MSRB is precluded from 

mandating pre-sale submission of 

preliminary official statement pursuant 

to Exchange Act Section 15B(d)(1). 

Under the rule change proposal, 

preliminary official statements, if 

available, would be required to be 

submitted by the underwriter by closing 

solely in the circumstance where an 

official statement is not being prepared 

by the issuer or if the official statement 

is not available for submission to 

EMMA by the closing. Once the official 

statement is provided by the 

underwriter, the preliminary official 

statement generally would be moved to 

a document archive that would be 

accessible through the EMMA portal 

directly from the page where the link to 

the official statement is provided. Users 

of the EMMA portal would be able to 

request to receive e-mail notifications 

for updates to the disclosure document 

for a specific security, which would 

apply to the situation where an official 

statement is submitted to EMMA 

following an initial submission of the 

preliminary official statement. The 

MSRB expects to consider expanding 

the EMMA primary market disclosure 

service to accept voluntary submissions 

of preliminary official statements in the 

future. 

Several commentators stated that 

amendments to official statements 

should be included in the ‘‘access 

equals delivery’’ framework,95 and that 


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15208 Federal Register / Vol. 74, No. 62 / Thursday, April 2, 2009 / Notices 

96BMA, Texas MAC. 97Bernardi, BMA, brokersXpress, CSPN, 

Commerce, DPC, Edward Jones, Hilliard Lyons, 

Morgan Keegan, Texas MAC, NABL, UBS, UMB, 

Wells Fargo, Zions. Griffin Kubik and SIA stated 

that they agree with the positions set forth in BMA’s 

comment letter. 98Bernardi, Wells Fargo. 99BMA, Edward Jones, Texas MAC, UBS, Zions. 

Griffin Kubik and SIA stated that they agreed with 

the positions set forth in BMA’s comment letter. 100 DPC, NABL, UBS, Zions. 

advance refunding documents also 

should be included within the 

framework.96 BMA noted that investors 

should be informed of any amendments 

to a submitted official statement, and 

BMA and AGFS suggested the 

possibility of highlighting changes made 

in updated submissions from an earlier 

submission. BMA and DPC emphasized 

the importance of tracking and properly 

linking amendments and the original 

official statements to which they relate. 

The rule change proposal would 

require underwriters to submit to 

EMMA any amendments to the official 

statement occurring during the primary 

offering disclosure period, which ends 

25 days after closing. The amendment 

would be displayed, along with the 

original official statement, on the 

EMMA portal and would be made 

available for download by EMMA portal 

users in a single compacted folder. 

Users of the EMMA portal would be 

able to request to receive e-mail 

notifications for updates to the 

disclosure document for a specific 

security, which would apply to the 

situation where an official statement is 

subsequently amended. 

Format of Official Statements. PDF 

was the preferred official statement 

format of most commentators.97 Some 

commentators suggested that other 

official statement formats also should be 

accepted,98 with Wells Fargo 

emphasizing that PDF is the licensed 

product of a single software vendor and, 

although popular, the municipal 

securities industry should not 

encourage a situation that may require 

firms to purchase essential technology 

from only one vendor. Other 

commentators stated that the system 

should have the flexibility to allow new 

formats that may in the future meet or 

exceed the current parameters for 

PDF.99 RMOA believed a single format 

should be prescribed, and other 

commentators believed that allowing 

multiple formats could prove 

problematic.100 Zions stated that other 

electronic formats that may require 

specific formatting, such as hypertext 

markup language (html) or ASCII 

(American Standard Code for 

Information Interchange), would be 

unacceptable. However, ADP stated that 

the Concept Release does not discuss 

the benefits to market participants of 

Extensible Business Reporting Language 

(XBRL) and TRB suggested that PDF 

does not permit analysis and 

comparison between different 

investments. UBS observed that 

submissions using files that originate 

electronically yield smaller, better 

quality files than do scanned files, and 

that larger scanned files can sometimes 

cause technological difficulties, 

particularly for smaller retail customers. 

UBS suggested that the MSRB and 

industry remain cognizant of any 

emerging, widely utilized, nonproprietary, freely available format that 

would retain the desirable 

characteristics of PDF documents but 

create smaller scanned files. 

SIFMA, AMS, DPC, Ipreo and NABL 

generally agreed with the approach of 

initially requiring that all documents be 

provided as PDF files, although 

flexibility should be retained to permit 

other appropriate file formats as they are 

developed and become available for 

general public use. With regard to 

formats other than PDF that may be 

developed in the future, NABL 

suggested the following as basic 

parameters before permitting such 

format to be used for official statements: 

(i) Software to read files should be free, 

user-friendly and readily available; (ii) 

software should protect the integrity of 

files; and (iii) consumers should be 

familiar with the format before 

adoption. 

In the November 2007 Notice, the 

MSRB proposed that all documents be 

submitted in a designated electronic 

format, meaning that the document 

must be in an electronic format 

acceptable to the MSRB, wordsearchable, and must permit the 

document to be saved, viewed, printed 

and retransmitted by electronic means 

using software generally available for 

free or on a commercial basis to nonbusiness computer users. PDF files that 

are word-searchable and may be saved, 

viewed, printed and retransmitted by 

electronic means would be deemed to 

be in a designated electronic format. 

GFOA ‘‘strongly encourage[s] 

standardization on the PDF format.’’ 

GFOA believed that readily available 

technology currently exists to make all 

PDF files word searchable, including 

scanned PDF files. GFOA stated, 

‘‘Future success of this system requires 

that it start with the best technology 

available and its ongoing challenge will 

be to keep up with changing technology 

while allowing backwards compatibility 

and conversion.’’ SIFMA supported the 

revised definition but observed that 

neither the MSRB nor the Commission 

has the authority to mandate that issuers 

produce documents in a specific format. 

SIFMA also noted that not all portions 

of an official statement may be wordsearchable, particularly if they include 

images. NABL recommended against 

including the requirement that PDF files 

be word-searchable since many 

documents that pre-date the new rule 

would still have to be submitted to the 

new system but would not be in such 

format. 

The MSRB has determined to initially 

limit submissions of documents to the 

EMMA primary market disclosure 

service to PDF files, configured to 

permit documents to be saved, viewed, 

printed and retransmitted by electronic 

means. If the submitted file is a 

reproduction of the original document, 

the submitted file must maintain the 

graphical and textual integrity of the 

original document. In addition, starting 

on January 1, 2010, such PDF files must 

be word-searchable (that is, allowing the 

user to search for specific terms used 

within the document through a search 

or find function available in most 

standard software packages), provided 

that diagrams, images and other nontextual elements would not be required 

to be word-searchable. Implementation 

of this requirement would be deferred to 

provide issuers, underwriters and other 

relevant market participants with 

sufficient time to adapt their processes 

and systems to provide for the routine 

creation or conversion of primary 

market disclosure documents as wordsearchable PDF files. The MSRB 

understands that software currently is 

generally available for free that permits 

users to save, view and print PDF files, 

as well as to conduct word searches in 

word-searchable PDF documents. The 

MSRB has provided links for 

downloading such software on the pilot 

EMMA portal and would continue to do 

so in the future. 

The MSRB notes that documents 

converted into PDF files from other 

electronic formats can generally be 

made word-searchable through such 

conversion process, although this may 

not be the case where the PDF file is 

created by scanning paper versions of 

original documents. Documents 

originally authored as PDF files or 

converted into PDF files from other 

electronic formats (sometimes referred 

to as ‘‘native PDF’’ or ‘‘PDF normal’’) 

generally are made word-searchable 

through such conversion process. On 

the other hand, PDF files created by 

scanning paper versions of original 

documents generally can be made wordsearchable only through an optical 

character recognition or other 

comparable process (‘‘OCR’’). 


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101Bernardi, BMA, Griffin Kubik, Morgan Keegan, 

NABL, NFMA, RMOA, SIA, Texas MAC, UBS, 

UMB, Wells Fargo, Zions. 

102BMA, Griffin Kubik, NFMA, RMOA, SIA, 

Texas MAC, UBS. 

103 Griffin Kubik, SIA and UBS agreed. 

104 brokersXpress, Commerce, DPC, First 

Southwest. 

105See also section 4 of this filing. 

106BMA, RMOA, TRB. 

Documents submitted to EMMA that 

have been made word-searchable 

through an OCR process must maintain 

the graphical and textual integrity of the 

original document. This would typically 

be achieved by creating a single 

document that includes both a scanned 

image of the original document and a 

transparent layer consisting of the wordsearchable OCR output (sometimes 

referred to as a ‘‘PDF searchable image’’ 

file). Submitters should not submit 

documents consisting of a visible wordsearchable OCR output (sometimes 

referred to as ‘‘formatted text and 

graphics’’) as such output generally does 

not maintain with sufficient accuracy 

the graphical and textual integrity of the 

original document without significant 

post-scanning manual processing by the 

producer of the document. The MSRB 

would strongly encourage submitters to 

submit all documents to EMMA as 

native PDF or PDF normal files, which 

by their nature are word-searchable and 

also would provide benefits to the 

submitter in that such files generally are 

more easily created and result in 

substantially smaller file size (thereby 

speeding the submission process) than 

scanned PDF searchable image files. 

Native PDF or PDF normal files also 

would provide benefits to EMMA users 

because of their smaller, more easily 

downloadable file size. 

The MSRB may in the future 

determine to designate additional 

computerized formats as acceptable 

electronic formats for submission or 

preparation of documents under 

Revised Rule G–32 by means of a filing 

with the Commission. The MSRB 

anticipates that any such additional 

designated electronic formats would 

permit documents to be saved, viewed, 

printed and retransmitted by electronic 

means, using software generally 

available at the time such document is 

provided under this rule for free or on 

a commercial basis to non-business 

computer users, and such documents 

are substantially word-searchable 

(without regard to diagrams, images and 

other non-textual elements). 

In addition, the MSRB supports the 

Commission’s Interactive Data and 

XBRL Initiatives for registered offerings. 

Although the MSRB would initially 

accept documents solely as PDF files 

and would not be in a position to accept 

documents or data in XBRL format upon 

launch of the primary market disclosure 

service, the MSRB would seek to 

explore with other industry participants 

the possibility of incorporating into the 

permanent system at a later date an 

option to make submissions using XBRL 

once appropriate taxonomies for the 

municipal marketplace have been 

developed and as issuers begin the 

process of producing primary market 

disclosure documents using XBRL. 

Accessibility of Official Statements. 

Most commentators stated that official 

statements should remain publicly 

available for the life of the securities.101

Some commentators noted that, 

although financial and operating 

information in official statements 

quickly becomes stale, many portions of 

the official statement remain useful 

throughout the life of a bond issue.102

BMA stated that the financial and 

operating information included in the 

official statement serve as valuable 

points of reference when reviewing 

secondary market financial and 

operating information provided to 

nationally recognized municipal 

securities information repositories 

pursuant to Exchange Act Rule 15c2– 

12.103 UBS suggested that appropriate 

disclaimers be used with respect to the 

potential staleness of information 

beyond the current new issue disclosure 

period. RMOA stated that official 

statements could be made available for 

free during the 25-day new issue 

disclosure period and a fee could be 

charged for access after that period. 

Other commentators stated that making 

the official statements available solely 

for the current 25-day new issue 

disclosure period would be 

sufficient,104 with DPC stating that 

maintaining public access beyond this 

25-day period would impair the 

economic interests of information 

vendors that currently make official 

statements available on a commercial 

basis and would ultimately negatively 

impact the marketplace. 

The MSRB agrees that there is 

significant value to maintaining official 

statements available for the life of the 

securities and therefore would make 

official statements available through the 

EMMA portal for the life of the 

securities. The MSRB also agrees with 

the approach taken by the Commission 

in the registered securities market of 

providing such access to disclosure at 

no charge to the public. The MSRB 

believes that a free flow of basic 

disclosure information to all market 

participants on an equal basis is 

essential to pursuing one of the MSRB’s 

congressionally mandated core 

functions of removing impediments to 

and perfecting a free and open market 

in municipal securities. By making 

these basic disclosure documents—most 

of which exist and are available to 

commercial enterprises solely by virtue 

of the mandates set forth by the 

Commission in its Rule 15c2–12—also 

available to the general public for free, 

the MSRB does not in any way inhibit 

the free market in value-added services 

based on such documents.105

Data Elements and Search Function. 

Some commentators suggested that the 

information submitted on Form 

G–36(OS) should be made available to 

the public.106 UBS noted that Form 

G–36 data should be used to develop a 

flexible indexing system, perhaps using 

XML, to allow for searches on a broad 

range of fields. NFMA also emphasized 

the importance of the search function. 

TRB stated that a cover sheet including 

primary information such as issuer, 

CUSIP numbers, security, maturity 

dates, ratings, callability, etc. is needed. 

TRB believed that the task of creating a 

data base from such information that is 

available to investors would be the most 

significant contribution that could be 

made by the MSRB to the municipal 

marketplace. EDGAR Online suggested 

that the following items of information 

be captured in connection with each OS 

submission: CUSIP number, date of 

issue, issuer, issuer state, original par 

amount, type of bond, type of security, 

description of issuer (1–2 paragraphs), 

description of use of proceeds (1–2 

paragraphs) and description of bond 

security (1–2 paragraphs). In addition, 

EDGAR Online suggested the following 

search criteria: CUSIP number, date of 

issue, issuer, issuer state, original par 

amount, type of bond and full text 

search. DPC suggested that the required 

data be captured in formatted fields and 

that such data be parsed automatically 

into XML for distribution. 

New Form G–32 would request a 

number of key items of information 

from underwriters making submissions 

to EMMA, as described in section 3(a) 

of this filing above, in order to properly 

identify the document being submitted, 

to ensure that such document is 

associated with the appropriate 

securities, and to provide for an 

effective search function on the EMMA 

portal. The EMMA portal would 

initially permit users to search for 

documents based on CUSIP number, 

issuer name, issue description, state, 

maturity date, issuance date and interest 

rate, and such search capabilities might 

be expanded in the future. The MSRB 

would use data submitted by 

underwriters to EMMA and other data 


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107BMA, First Southwest. Griffin Kubik, SIA and 

UBS stated that they agreed with the positions set 

forth in BMA’s comment letter. 

108Bernardi, brokersXpress, Morgan Keegan, 

NABL, Wells Fargo, Zions. 

109AGFS would require the submission of the 

preliminary official statement as a precondition to 

applying the ‘‘access equals delivery’’ standard to 

official statement deliveries. 

110Hilliard Lyons, Morgan Keegan. 

111NFMA, Texas MAC, UBS. 

sources for purposes of the search 

function but does not intend on itself 

extracting information from submitted 

documents for this purpose. 

With regard to the MSRB’s request for 

comment in the January 2007 Notice 

regarding a potential requirement that 

underwriters submit on Form G–32 the 

names of syndicate members as a means 

by which to pre-populate a portion of 

each syndicate member’s Form G–37 

under Rule G–37, AMS supported such 

a process, but SIFMA, on balance, 

suggested that the MSRB not include a 

Form G–37 process at this time. The 

MSRB has determined not to seek such 

information. 

Submission Process. Some 

commentators suggested that the current 

timeframes under Rule G–36 for 

submission of official statements to the 

MSRB—no later than 10 business days 

after the bond sale for issues subject to 

Exchange Act Rule 15c2–12 and the 

later of one business day after receipt or 

one business day after closing for issues 

exempt from Rule 15c2–12—be 

retained.107 BMA suggested expanding 

certain exceptions to the 10 business 

day timeframe. However, other 

commentators supported a single 

deadline for all issues of the bond 

closing date.108 Bernardi suggested that, 

in those instances where the official 

statement is not available by the bond 

closing, the preliminary official 

statement should be submitted.109

The January 2007 Notice stated that 

the new Form G–32 submission process 

would be initiated by the submission of 

CUSIP number information and initial 

offering prices for each maturity shortly 

after the bond sale. This timing was 

designed to coincide with the timing 

under Rule G–34 relating to CUSIP 

numbers and other new issue 

information requirements, with the 

intention that this submission timing 

would coincide with the timing of 

information submissions to NIIDS. 

SIFMA agreed that the MSRB should 

coordinate the finalization of the 

timeframe for information submissions 

on Form G–32 with information 

submission requirements that would be 

established with respect to NIIDS but 

that the requirement should be timed to 

coordinate with successful testing of 

NIIDS. SIFMA recommended that this 

part of the proposed rule be delayed 

until NIIDS has been tested and dealers 

are able to use the system. DPC 

supported the proposed timeframe, 

although it points out that the system 

would need to be able to initiate a filing 

without CUSIP numbers if it were to 

accept preliminary official statement 

submissions. AMS would prefer 

maintaining the current timing for 

information submissions. 

BMA and UBS noted that the 

submission process should be made to 

conform to the straight through 

processing ideal that each document or 

item of information needed by multiple 

parties should only be required to be 

submitted by the underwriter once, and 

also seeks a more user-friendly format 

for submissions. However, BMA 

believed that underwriters should 

remain primarily responsible for 

submission and that the responsibility 

for submission should not be shifted to 

dealer financial advisors in those issues 

where such a financial advisor is 

involved. Wells Fargo and Zions 

disagreed, stating that if the financial 

advisor prepares the official statement, 

it should have primary responsibility for 

submitting the official statement. Some 

commentators noted difficulties with 

independent financial advisors,110 with 

Hilliard Lyons suggesting that a solution 

would be to petition the Commission to 

bring them under the regulatory control 

of the Commission or MSRB. BMA and 

RMOA believed that e-mail attachments 

should be an acceptable method of 

submission. Several commentators 

mentioned the importance of return 

receipts for official statement 

submissions and/or the ability of 

submitters to review their 

submissions.111

The MSRB has determined to 

establish a single timeframe for 

submissions of official statements to 

EMMA for all types of primary offerings, 

being one business day after receipt but 

no later than the closing date. 

Underwriters would be required to 

initiate the Form G–32 submission 

process by the date of first execution, 

which would be defined under revised 

Rule G–32(d)(xi) as the date on which 

the underwriter executes its first 

transactions with a customer or another 

dealer in any issue security offered in a 

primary offering. In the case of new 

issues where the underwriter is required 

under Rule G–34(a)(ii)(C) to provide 

new issue information to NIIDS, such 

date of first execution would mean the 

date corresponding to the Time of First 

Execution (being no less than two hours 

after all such information has been 

transmitted to NIIDS), as defined in 

Rule G–34(a)(ii)(C)(1)(b). For purposes 

of the timing for initiating the Form G– 

32 submission process under Rule G– 

32(b)(i)(A) and (b)(vi)(C)(1)(a), the date 

of first execution would be deemed to 

occur by no later than the closing date, 

even if the date of first execution would 

be a later date under Rule G–34. In most 

cases, the submission process would be 

initiated by submission of the CUSIP 

numbers, initial offering prices and 

certain other basic identifying 

information, although the Form G–32 

submission requirements would provide 

alternative information submission 

requirements for cases where the 

securities are not eligible for CUSIP 

number assignment or for other types of 

offerings, such as commercial paper 

issues, issues of municipal fund 

securities, and remarketings, as 

described in section 3(a) of this filing 

above. 

The MSRB is proposing to permit 

underwriters to designate agents to 

submit documents and related 

information to EMMA, thereby 

permitting underwriters to structure 

their submission process in the manner 

that is most efficient for their purposes. 

Although underwriters would not be 

able to fulfill their information 

submission requirements under revised 

Rule G–32 and Rule G–34 with a single 

submission of such information to 

NIIDS upon initial launch of the EMMA 

primary market disclosure service, the 

MSRB anticipates providing such 

functionality at a future date. 

Underwriters would be responsible for 

the accuracy, completeness and 

timeliness of information they or their 

agents provide to EMMA. 

Structure of the Centralized Electronic 

System. The Concept Release sought 

comment on whether the central access 

utility should host all official statement 

documents or should serve as a central 

directory of official statements with 

hyperlinks to documents hosted by 

other entities that have undertaken to 

maintain access to such documents. The 

Concept Release also sought comment 

on whether the MSRB should undertake 

the central access function, or whether 

other market participants or vendors 

could undertake such function subject 

to appropriate supervision. 

Nearly all commentators responding 

to the Concept Release stated that the 

central access facility should post 

official statements directly on a central 

Web site, rather than serving as a 

directory of links to official statements 

posted by underwriters, issuers, 

financial advisors, printers or others at 


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112Bernardi, BMA, brokersXpress, Commerce, 

DPC, First Southwest, Hilliard Lyons, ICI, Morgan 

Keegan, NABL, NFMA, RMOA, Texas MAC, UBS, 

Wells Fargo, Zions. Griffin Kubik, SIA and UBS 

stated that they agreed with the positions set forth 

in BMA’s comment letter. 

113BMA, brokersXpress, DPC, ICI, NFMA, UBS, 

Zions. Griffin Kubik, SIA and UBS stated that they 

agreed with the positions set forth in BMA’s 

comment letter. 

114Bernardi, BMA, Commerce, First Southwest, 

Hilliard Lyons, Morgan Keegan, NFMA, RMOA, 

UBS, Zions. Griffin Kubik and SIA stated that they 

agreed with the positions set forth in BMA’s 

comment letter. 

115Bernardi, Commerce, Hilliard Lyons, Morgan 

Keegan, RMOA, UBS, Zions. Morgan Keegan noted 

that the industry has already paid to establish the 

MSIL system and that the additional expense could 

be covered at the MSRB’s discretion. 

116BMA, First Southwest, NFMA, RMOA, Texas 

MAC. Griffin Kubik, SIA and UBS stated that they 

agreed with the positions set forth in BMA’s 

comment letter. 

117BMA, UBS. Griffin Kubik and SIA stated that 

they agreed with the positions set forth in BMA’s 

comment letter. 118 Griffin Kubik, SIA and UBS stated that they 

agreed with the positions set forth in BMA’s 

comment letter. 

other sites.112 Some commentators 

noted that a decentralized system with 

a central hyperlinked directory could be 

problematic with regard to ensuring 

continuous access, uniformity of 

handling and ease of use.113 Morgan 

Keegan stated that a decentralized 

model could be acceptable if access and 

data input requirements are uniformly 

applied to all vendors, but that longterm free access would be problematic. 

TRB stated that it would be more 

effective to link the MSRB Web site to 

the appropriate posting site for each 

official statement, with the MSRB 

monitoring and/or restricting these 

posting sites. UMB asked whether it 

would be able to direct its customers to 

its own Web site, from which it would 

link to the central access facility. 

Most commentators felt that the 

MSRB could operate the central access 

facility,114 with several indicating that 

the MSRB was their first choice to do 

so.115 Many commentators suggested 

that the central access facility also could 

be operated by an outside contractor 

with oversight by the MSRB pursuant to 

contract.116 Wells Fargo stated that the 

MSRB should investigate a 

centralization function that would not 

unequally empower a single data 

vendor. NABL stated that proposed 

approaches by market participants and 

others would need careful consideration 

to determine the optimal choice for the 

municipal securities market, and RMOA 

stated that vendors offering their 

services would need to insure the 

industry that they would accept 

oversight by established regulatory 

authorities and would be subject to 

penalties for non-performance. UBS 

stated that, if an entity other than the 

MSRB operates the central access 

facility, the MSIL system’s existing OS/ 

ARD library and full database would 

need to be made available to such 

entity. ADP, DPC, S&P CUSIP and Texas 

MAC expressed a willingness to explore 

participation in the operation of the 

central access facility, with DPC and 

Texas MAC noting that the Commission 

operates EDGAR through contracts with 

commercial vendors. CSPN stated that a 

centralized Web-based disclosure utility 

for the 529 college savings plan market 

that it was developing would be the 

appropriate central access facility for 

the 529 college savings plan market. If 

529 college savings plan disclosure 

documents were to be hosted on a Web 

site other than the CSPN utility or the 

529 college savings plan’s own Web site, 

CSPN stated that the issuers would need 

assurances that the offering materials 

delivered to such centralized Web site 

would become publicly available 

exactly as transmitted by the issuer or 

the primary distributor for the 529 

college savings plan. 

Several commentators emphasized 

that, in deciding which entity should 

operate the central access facility, cost 

should be an important factor, including 

which parties should bear such costs, 

before additional build-out costs or 

ongoing filing fees are imposed.117 UBS 

stated that the ‘‘access equals delivery’’ 

processes needed to be further 

developed to enable an informed 

projection of benefits and costs. BMA 

emphasized the importance of how 

quickly and how cost-effectively the 

central access facility could be made 

operational in deciding which entity 

launches the facility.118 Commerce 

noted that adequate lead-time should be 

allowed for dealers to upgrade their 

system and implement the proposal. 

The January 2007 Notice provided 

additional details of a proposed 

structure for the centralized electronic 

system that would build on the MSIL 

system to provide through an Internetbased central access facility an assured 

source for free access to official 

statements and other related documents 

and information in connection with all 

new issues. The MSRB noted in the 

January 2007 Notice that it would 

operate a public access portal that 

would post official statements and other 

documents and information directly on 

its centralized Web site and would make 

posted information available for free for 

the life of the securities to investors, 

other market participants and the 

general public. The January 2007 Notice 

stated that additional public access 

portals using the document collections 

from the MSIL system obtained through 

real-time subscriptions could be 

established by other entities as parallel 

sources to the public. 

AMS and UMB generally supported a 

single central electronic portal, while 

SIFMA, DPC, Ipreo, and NABL stated a 

preference that official statements be 

made available from multiple sources. 

NABL would not limit accessibility just 

through the centralized electronic portal 

but also to any source that (i) is either 

free or approved by the customer and 

(ii) maintains a record of posting. DPC 

expressed reservations that the MSRB’s 

proposal would provide for official 

statements to be posted solely on the 

MSRB’s centralized electronic portal, 

raising concerns regarding the reliability 

of a single source. 

With regard to the January 2007 

Notice, DPC observed that, although 

official statements may be made 

available for free to those accessing 

them through the access portals, there 

would be a cost to the broker-dealer 

community to subsidize the system’s 

development and operation. DPC stated 

that having the industry subsidize the 

cost ‘‘appears to be more biased and 

unfair than recovering the costs from the 

users of the system based on usage.’’ 

DPC further stated that the EDGAR 

system, which ‘‘is subsidized by 

American taxpayers,’’ operates through 

vendors under contract with the 

Commission. DPC also stated that some 

aspects of the centralized electronic 

system’s operations ‘‘could be construed 

as interfering with standard commercial 

processes of private businesses.’’ DPC 

viewed the MSRB’s proposal that the 

customer notice provide an official 

statement’s URL at an access portal as 

‘‘prejudicial to the economic interests of 

existing vendors whose delivery 

services required that the definitive PDF 

file be archived on their Web sites for 

public access.’’ DPC stated that 

providing official statements for free 

through access portals would ‘‘impair 

the economic interests of information 

vendors that currently make OSs 

available on a commercial basis.’’ 

In response to the Pilot Filing 

submitted by the MSRB to the 

Commission, DPC noted that it is a 

Nationally Recognized Municipal 

Securities Information Repository 

(NRMSIR) that has made its municipal 

disclosure archive fully accessible on 

the Internet since 1999. DPC supported 

the broad concept of access equals 

delivery as a matter of general market 

efficiency. DPC stated: 

It is our opinion, however, that the MSRB’s 

plans for its proposed [MSIL]-based Web 

portal go well beyond its organizational 

mandate as stated in section 15B(b)(2)(C) of 


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the 1934 Act. If the existing prototype and 

stated plans are an indication, the MSRB will 

not only be assuming the role of the Access 

Equals Delivery venue for the municipal 

marketplace, but will go much further, 

breaking new ground in providing enhanced 

services to the market by a capital markets 

regulatory body. This also would be an 

apparent violation of the SEC’s long-held 

public policy that the MSRB should not 

compete with vendors in offering valueadded features and services related to 

handling of disclosure documents. 

DPC compared certain functionalities 

illustrated on a sample pilot portal 

posted on the MSRB Web site to the 

functionalities offered by EDGAR and 

concluded that such ‘‘features and 

capabilities are well in excess of the 

system that the MSRB has pointed to as 

its model, the SEC’s own EDGAR.’’ DPC 

asked why certain features on the 

sample pilot portal that it viewed as 

value-added—such as ‘‘nine-digit CUSIP 

searches, hyperlinks to bond issuer[’]s 

Web sites, an ‘alert’ service to users of 

the portal, sophisticated document 

viewing options, links to other related 

documents in the portal[’]s disclosure 

archive, and subsequent event 

notifications that equate to custom 

research’’—are not being left to the 

competitive forces of the market. It 

viewed the MSRB’s stated plans to 

provide free on-line access to an 

integrated display of primary market 

and other disclosure with transaction 

price data as breaking new ground as 

compared to the offerings of other selfregulatory organizations. DPC noted the 

investments made by that firm and 

others to offer value-added services to 

the municipal securities market ‘‘largely 

in reliance on the SEC’s public 

statements that it is not in favor of the 

MSRB competing directly with 

vendors.’’ DPC disagreed with the 

MSRB’s view that EMMA would not 

create an unequal burden on 

competition. DPC also noted that at least 

one NRMSIR would be willing, under 

regulatory oversight, to make its 

disclosure archive available to the 

public for free for a modest annual 

subsidy to such NRMSIR. DPC 

concluded by urging ‘‘the Commission 

to support the MSRB’s proposed rule 

change that will promote Access Equals 

Delivery in the municipal securities 

market, but restrain the MSRB from 

offering value-added content and 

features that will necessarily inflict 

economic harm on existing data 

vendors, and inflict the harm 

unevenly.’’ 

EDGAR Online stated: 

We believe that the current model of four 

Nationally Recognized Municipal Securities 

Information Repositories (NRMSIRs) severely 

limits innovation and access to these 

important disclosures. The current model 

locks up public documents in private hands 

while the proposed portal run by a public 

entity will encourage transparency in the 

municipal securities market and create a 

healthy ecosystem of information that will 

ultimately benefit both the investment 

community and the municipalities that seek 

access to public markets. 

EDGAR Online detailed its views 

regarding the limitations on public 

access to existing disclosures and on the 

ability of other information providers to 

re-disseminate such disclosures, stating: 

Ultimately, investors and the 

municipalities pay the price for this lack of 

a viable information ecosystem. The rigid 

control of public information dissuades other 

information providers from trying to enter or 

innovate for this market. This means that 

there are few people working on improving 

ease of use, depth of analysis, thoroughness 

of information or more effective means of 

delivery. 

EDGAR Online recommended that the 

Commission create a publicly accessible 

storage and dissemination system for all 

municipal securities disclosure filings. 

The MSRB has carefully reviewed the 

statements made by these commentators 

and, as noted in section 3(b) of this 

filing as well as in the Pilot Filing, 

continues to believe that EMMA is 

consistent with its statutory mandate 

under the Act. The EMMA portal would 

provide free and timely public access to 

official statements and advance 

refunding documents, with such access 

to official statements being a 

fundamental element of the MSRB’s 

planned ‘‘access equals delivery’’ 

standard for official statement 

dissemination to customers under the 

rule change proposal. Further, EMMA 

would remove impediments to and help 

perfect the mechanisms of a free and 

open market in municipal securities, 

assist in preventing fraudulent and 

manipulative acts and practices, and 

would in general promote investor 

protection and the public interest by 

ensuring equal access for all market 

participants to the disclosure 

information needed by investors in the 

municipal securities market. 

As described in greater detail in 

section 4 of this filing as well as in the 

Pilot Filing, the MSRB believes that 

EMMA would not impose any burden 

on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. In weighing the 

potential alternative approaches to 

implementing EMMA, the MSRB 

concluded that developing EMMA 

through the adaptation and upgrading of 

existing internal MSRB systems— 

including but not limited to the MSIL 

system, RTRS and the MSRB’s in-house 

access control systems—combined with 

the creation of a custom user interface 

designed for use by retail investors, 

would be the most prudent and efficient 

manner of achieving the MSRB’s goals 

for EMMA. Although the MSRB has 

determined to establish the EMMA 

portal, the EMMA portal need not 

operate as the sole source of official 

statements and other documents and 

information in the municipal securities 

market. Rather, private enterprises 

could establish separate services, 

whether as qualified portals or 

otherwise, to make available publicly 

the basic documents and information 

they obtain from EMMA, together with 

such other documents, information and 

utilities (e.g., indicative data, 

transaction pricing data, secondary 

market information, analytic tools, etc.) 

as each operator determines, provided 

on such commercial terms as may be 

appropriate for their own business 

model. The MSRB’s goal in promoting 

broad dissemination of the documents 

and information made available through 

EMMA is to provide market participants 

with an effective opportunity to access 

official statements throughout the life of 

the securities in a non-cost prohibitive 

manner while encouraging market-based 

approaches to meeting the needs of 

investors and other participants in the 

municipal securities market. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

A. By order approve such proposed 

rule change, or 

B. Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

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

rules/sro.shtml); or 


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119 17 CFR 200.30–3(a)(12). 

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

Number SR–MSRB–2009–02 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–MSRB–2009–02. This file 

number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for 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. 

Copies of such filing also will be 

available for inspection and copying at 

the principal office of the MSRB. All 

comments received will be posted 

without change; the Commission does 

not edit personal identifying 

information from submissions. You 

should submit only information that 

you wish to make available publicly. All 

submissions should refer to File 

Number SR–MSRB–2009–02 and should 

be submitted on or before May 4, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.119

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7340 Filed 4–1–09; 8:45 am] 

BILLING CODE 


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