Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Notices 27369 

12For purposes of calculating the 60-day period 

within which the Commission may summarily 

abrogate the proposed rule change under Section 

19(b)(3)(C) of the Act, the Commission considers 

the period to commence on May 29, 2009, the date 

on which the Nasdaq submitted Amendment No. 1. 

See 15 U.S.C. 78s(b)(3)(C). 

13 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59814 

(Apr. 23, 2009), 74 FR 19612 (Apr. 29, 2009) 

(‘‘Commission’s Notice’’). 

4See letters from Douglas Adamson, Executive 

Vice President, Technical Services Division, 

American Bankers Association (‘‘ABA’’), dated 

April 24, 2009; letter from Heather Traeger, 

Associate Counsel, Investment Company Institute 

(‘‘ICI’’), dated May 20, 2009; and letter from Vickie 

A. Tillman, Executive Vice President, Standard & 

Poor’s Ratings Services (‘‘S&P’’), dated May 29, 

2009. 

5See letters from Ernesto A. Lanza, General 

Counsel, MSRB, to Elizabeth M. Murphy, Secretary, 

SEC, dated May 8, 2009 (‘‘Response Letter I’’), May 

18, 2009 (‘‘Response Letter II’’), and June 1, 2009 

(‘‘Response Letter III’’). 

6See 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) (the ‘‘EMMA 

continuing disclosure service approval’’). The 

EMMA continuing disclosure service is designed to 

commence operation simultaneously with the 

effectiveness of certain amendments to Exchange 

Act Rule 15c2–12 adopted by the Commission. See 

Securities Exchange Act Release No. 59062 

(December 5, 2008), 73 FR 76104 (December 15, 

2008) (adopting amendments to Exchange Act Rule 

15c2–12). Approval of the proposed rule change on 

or prior to July 1, 2009 would allow the permanent 

EMMA continuing disclosure service to accept such 

voluntary disclosures upon commencement of 

operations. 

7The EMMA web portal is accessible at http:// 

emma.msrb.org. 

8Such items consist of: (A) Annual financial 

information concerning obligated persons; (B) 

audited financial statements for obligated persons if 

available and if not included in the annual financial 

information; (C) notices of the following events, if 

material: principal and interest payment 

delinquencies, non-payment related defaults, 

unscheduled draws on debt service reserves 

reflecting financial difficulties, unscheduled draws 

on credit enhancements reflecting financial 

difficulties, substitution of credit or liquidity 

providers or their failure to perform, adverse tax 

opinions or events affecting the tax-exempt status 

of the security, modifications to rights of security 

holders, bond calls, defeasances, release/ 

substitution/sale of property securing repayment of 

the securities, and rating changes; and (D) notices 

of failures to provide annual financial information 

Continued 

investors and the public interest and 

designates the proposal operative on 

June 5, 2009. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

such rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or otherwise in furtherance of the 

purposes of the Act.12

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 

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

Number SR–NASDAQ–2009–048 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–NASDAQ–2009–048. 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 Exchange. 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 publicly available. All 

submissions should refer to File 

Number SR–NASDAQ–2009–048 and 

should be submitted on or before June 

30, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13423 Filed 6–8–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60033, File No. SR–MSRB– 

2009–04] 

Self-Regulatory Organizations; 

Municipal Securities Rulemaking 

Board; Order Granting Approval of 

Proposed Rule Change Relating to the 

Voluntary Submission of Continuing 

Disclosure Documents to Its Upcoming 

Continuing Disclosure Service of the 

Electronic Municipal Market Access 

System (EMMA®) 

June 3, 2009. 

On April 14, 2009, the Municipal 

Securities Rulemaking Board (‘‘MSRB’’), 

filed with the Securities and Exchange 

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

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

Securities Exchange Act of 1934 

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

proposed rule change to amend the 

continuing disclosure service of the 

MSRB’s Electronic Municipal Market 

Access system (‘‘EMMA’’) to accept, and 

to make publicly available on the 

Internet, voluntary electronic 

submissions by issuers, obligated 

persons and their agents of continuing 

disclosure documents provided other 

than in connection with Exchange Act 

Rule 15c2–12. The proposed rule 

change was published for comment in 

the Federal Register on April 29, 2009.3

The Commission received three 

comment letters about the proposed rule 

change.4 On May 8, 2009, May 18, 2009, 

and June 1, 2009, the MSRB filed 

responses to the comment letters.5 This 

order approves the proposed rule 

change. 

The Commission has previously 

approved the establishment of the 

continuing disclosure service of EMMA, 

which will commence operation on July 

1, 2009.6 The EMMA continuing 

disclosure service will receive 

electronic submissions of, and will 

make publicly available on the Internet 

through the EMMA web portal,7

continuing disclosure documents and 

related information from issuers, 

obligated persons and their agents 

pursuant to continuing disclosure 

undertakings entered into consistent 

with Exchange Act Rule 15c2–12. As 

approved, the EMMA continuing 

disclosure service will accept 

submissions of (i) continuing disclosure 

documents as described in Rule 15c2– 

12,8 and (ii) other disclosure documents 

27370 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Notices 

on or before the date specified in the continuing 

disclosure undertaking. 

9See supra note 4. 

10See letter from the ABA, supra note 4. 

11See Response Letter II, supra note 5. The MSRB 

stated that this agreement would expand and 

reposition existing language on the EMMA Web site 

to ensure that users of the EMMA Web site have a 

fuller understanding of the sources of information 

displayed on the EMMA Web site and of the 

proprietary rights of third parties (including but not 

limited to the proprietary rights of the ABA in the 

Database) in certain displayed data elements. Such 

language would advise users of the limitations on 

their use or re-use of any proprietary information 

accessed on the EMMA Web site, and users would 

be required to acknowledge such limitations before 

being provided access to any portion of the 

Database. Additional systemic and reporting 

mechanisms would be implemented to further 

protect against inappropriate use of the Database. 

See Response Letter I, supra note 5. 

12See letter from the ICI, supra note 4. 

13See Response Letter III, supra note 5. 

14See letter from S&P, supra note 4. 

specified in continuing disclosure 

undertakings but not specifically 

described in Rule 15c2–12. 

The proposed rule change would 

amend the EMMA continuing disclosure 

service to accept submissions of, and to 

make publicly available through the 

EMMA web portal, additional categories 

of continuing disclosure documents 

voluntarily submitted by issuers, 

obligated persons and their agents 

(‘‘voluntary continuing disclosure 

document’’). The proposed rule change 

would not establish an obligation upon 

any issuer or obligated person to make 

a submission of any voluntary 

continuing disclosure document. 

Voluntary continuing disclosure 

documents would be submitted, 

processed and disseminated in the same 

manner as provided with respect to 

disclosures made to the EMMA 

continuing disclosure service pursuant 

to continuing disclosure undertakings 

entered into consistent with Rule 15c2– 

12. In particular, such submissions 

would be accepted solely in electronic 

form as portable document format (PDF) 

files accompanied by appropriate 

indexing information. The MSRB has 

requested approval of the proposed rule 

change on or prior to July 1, 2009. A full 

description of the proposal is contained 

in the Commission’s Notice. 

As previously noted, the Commission 

received three comment letters relating 

to the proposed rule change.9 One 

commenter, the ABA, expressed 

concerns regarding certain legal issues 

relating to the protection of its 

intellectual property and contractual 

rights in the CUSIP database (the 

‘‘Database’’) that it states have not yet 

been resolved. The ABA noted that it 

was the owner of the Database, which is 

administered by the CUSIP Service 

Bureau (‘‘CSB’’), as its exclusive 

licensee, and believed it was critical 

that these legal issues be resolved before 

the MSRB be allowed to move forward 

with the proposed expansion and full 

implementation of EMMA. It further 

requested that the operation of the 

EMMA Web site incorporate a variety of 

protections with respect to its 

intellectual property rights, including 

compliance with CSB’s current 

licensing practices, permissible use 

guidelines, appropriate copyright 

notices and adequate security.10

In response to the ABA’s concerns, 

the MSRB and the CSB, as the ABA’s 

exclusive licensee, have entered into a 

memorandum of understanding dated 

May 15, 2009 (the ‘‘MOU’’) in which 

CSB expressly permits use of the CUSIP 

database for purposes, among other 

things, of displaying information on the 

MSRB’s EMMA public Web portal and 

for inclusion in data disseminated by 

the MSRB to subscribers of the EMMA 

data feed.11 The MSRB has agreed in the 

MOU to provide certain safeguards with 

respect to the ABA’s intellectual 

property and contractual rights of the 

ABA in the Database. The Commission 

believes that the MSRB has provided 

adequate assurances that all necessary 

arrangements will be in place in order 

to operate the proposal as anticipated by 

the implementation date. 

Another commenter, the ICI, 

supported the proposal and the MSRB’s 

continuing efforts to increase 

transparency in the municipal securities 

market, noting that the proposed rule 

change is another needed step in 

ensuring the dissemination of important 

information to investors. The ICI 

recommended that, in addition to the 

expansion of EMMA put forth in the 

proposal, that the SEC and MSRB 

publicly encourage issuers to submit 

information for all classes of municipal 

securities to EMMA, including 

securities not subject to Rule 15c2–12.12

In response to the ICI’s 

recommendation, the MSRB noted that 

EMMA is designed to accept 

submissions of continuing disclosure 

documents from issuers, obligated 

persons and their agents for any 

municipal security in any of the 

established categories, regardless of 

whether an obligation exists under a 

continuing disclosure undertaking to 

provide such disclosure. Thus, EMMA 

will accept continuing disclosure 

submissions with respect to all 

municipal securities, including those 

disclosures in connection with 

municipal securities that are not subject 

to Rule 15c2–12, beginning on July 1, 

2009 with the launch of the permanent 

continuing disclosure service in 

conjunction with the effective date of 

amendments to Rule 15c2–12.13

Accordingly, the Commission believes 

that the MSRB has adequately addressed 

the ICI’s recommendation. 

S&P, the third commenter, supported 

the proposal’s goal of encouraging 

transparency in the market for 

municipal securities. However, S&P 

believed that the Commission and the 

MSRB should assess both the expected 

benefits and the potential consequences 

of including rating agency material as an 

EMMA disclosure category. In 

particular, S&P expressed concerns that 

material provided to rating agencies 

often includes ‘‘raw’’ data that may not 

be easily understood by most investors, 

that rating agency material may include 

data that is proprietary, confidential or 

subject to legal or contractual 

restrictions on redissemination that 

should be redacted by municipal 

issuers, that regulatory encouragement 

to submit rating agency data to EMMA 

could lead to reduced amounts of 

information that municipal issuers 

provide to rating agencies, and that an 

expectation that rating agency material 

be submitted to EMMA could create 

incentives for municipal issuers to 

‘‘shop’’ for the rating agency that 

requires the least amount of information 

for its analysis, potentially affected 

ratings quality. S&P noted that without 

a specific EMMA category for rating 

agency material, municipal issuers 

could still choose to submit such 

material to EMMA under the category 

‘‘other financial/operating data,’’ which 

is also set forth in the proposal. Finally, 

S&P noted that the proposal labels the 

disclosure category that includes rating 

agency material as ‘‘material provided to 

rating agency or credit/liquidity 

provider.’’ S&P believes that 

categorizing these entities together on 

an official public Web site could 

confuse some investors about the 

distinctly different roles played by these 

entities in the municipal securities 

marketplace, and believes that if rating 

agency material remains an EMMA 

disclosure category, that it should be 

separated from material provided to 

credit and liquidity providers.14

The MSRB agrees that S&P has raised 

important considerations with respect to 

whether materials provided by issuers 

to rating agencies should be submitted 

to EMMA for public dissemination. The 

MSRB stated that in making such a 

voluntary submission, issuers and 

others should carefully weigh the 

factors identified by S&P and any other 

appropriate considerations that may be 

applicable under the specific facts and 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Notices 27371 

15See Response Letter III, supra note 5. 

16 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition 

and capital formation. 15 U.S.C. 78c(f). 

17 15 U.S.C. 78o–4(b)(2)(C). 

18 Id. 

19 15 U.S.C. 78s(b)(2). 

20 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3References to ISE Members in this filing refer to 

DECN Subscribers who are ISE Members. 

circumstances. The MSRB further 

believes that various factors appropriate 

to the particular facts and circumstances 

should be assessed by issuers, obligated 

persons and their agents in coming to a 

decision on whether to make a 

voluntary submission on continuing 

disclosure to EMMA, regardless of the 

potential category, to the extent that 

such parties are not otherwise obligated 

to make such disclosures. 

The MSRB does not agree that the 

establishment of a distinct category for 

the submission of rating agency 

materials creates an inappropriate 

regulatory encouragement for such 

disclosures. The MSRB noted that 

submitters may themselves assess the 

factors raised by S&P in determining 

whether to provide such disclosure and/ 

or provide additional information 

necessary to make such disclosure 

effective and not misleading to the 

general public. Because such disclosure 

is wholly voluntary, the MSRB does not 

believe that there is a material 

likelihood that the creation of this 

category would serve as an incentive to 

reduce information provided to the 

rating agencies or to seek ratings only 

from the rating agency requiring the 

least amount of information. 

With regard to the inclusion of rating 

agency materials in the same category as 

materials provided to credit or liquidity 

providers, the MSRB noted that the 

general categorization structure is 

intended to serve as a finding aid for 

public users and that, within any 

particular category, the nature of the 

specific documents submitted may vary. 

To clarify that the MSRB does not 

intend to equate rating agencies with 

credit or liquidity providers and to 

provide for a broader range of material 

to be included in this category, the 

MSRB has determined to rename this 

category as ‘‘information provided to 

rating agency, credit/liquidity provider 

or other third party.’’ In submitting such 

information, submitters should consider 

including an indication of the type of 

third-party recipient, to the extent 

appropriate for purposes of 

understanding the nature of the 

information submitted.15 The 

Commission believes that the MSRB has 

reasonably addressed S&P’s concerns in 

light of the voluntary nature of the 

information allowed to be submitted to 

the continuing disclosure service. 

The Commission has carefully 

considered the proposed rule change, 

the comment letters received, and the 

MSRB’s responses to the comment 

letters and finds that the proposed rule 

change is consistent with the 

requirements of the Act and the rules 

and regulations thereunder applicable to 

the MSRB16 and, in particular, the 

requirements of Section 15B(b)(2)(C) of 

the Act 17 and the rules and regulations 

thereunder. Section 15B(b)(2)(C) of the 

Act requires, among other things, that 

the MSRB’s rules 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.18 In particular, the Commission 

finds that the proposed rule change is 

consistent with the Act because the 

EMMA continuing disclosure service, as 

amended by the proposed rule change, 

would serve as an additional 

mechanism by which the MSRB works 

toward removing impediments to and 

helping to perfect the mechanisms of a 

free and open market in municipal 

securities, and would serve to promote 

the statutory mandate of the MSRB to 

protect investors and the public interest. 

The inclusion of voluntary continuing 

disclosure documents in the EMMA 

continuing disclosure service would 

further help make information useful for 

making investment decisions more 

easily accessible to all participants in 

the municipal securities market on an 

equal basis throughout the life of the 

securities. Broad access to continuing 

disclosure documents through the 

EMMA continuing disclosure service 

should assist in preventing fraudulent 

and manipulative acts and practices by 

improving the opportunity for public 

investors to access material information 

about issuers and their securities. A 

single centralized and searchable venue 

for free public access to disclosure 

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 and the 

potential investment risks. Free access 

to this information—previously 

generally available, if at all, through 

paid subscription services or on a perdocument fee basis—should reduce 

transaction costs for dealers and 

investors. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,19 that the 

proposed rule change (SR–MSRB–2009– 

04), be, and it hereby is, approved. 

For the Commission, by the Division 

of Trading and Markets, pursuant to 

delegated authority.20

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13404 Filed 6–8–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60031; File No. SR–ISE– 

2009–29] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by 

International Securities Exchange, LLC 

Relating to Amending the Direct Edge 

ECN Fee Schedule To Expand the 

Applicability of the Super Tier Rebate 

to All Securities Priced at or Above 

$1.00 and To Increase the Take Fee 

June 3, 2009. 

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

Securities Exchange Act of 1934 (the 

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

notice is hereby given that on May 29, 

2009, the International Securities 

Exchange, LLC (the ‘‘Exchange’’ or the 

‘‘ISE’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change as described 

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

have been prepared by the selfregulatory organization. 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 Exchange proposes to amend 

Direct Edge ECN’s (‘‘DECN’’) fee 

schedule for ISE Members 3 to apply the 

Super Tier Rebates, as defined below, to 

all securities priced at or above $1.00 

that add liquidity on EDGX and to raise 

the fee charged to orders that remove 

liquidity on EDGX. All of the changes