[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5922]


[[Page Unknown]]

[Federal Register: March 17, 1994]


_______________________________________________________________________

Part V





Securities and Exchange Commission





_______________________________________________________________________



17 CFR Parts 211, 231, and 241



Municipal Securities Issuers and Others; Statement of the Commission 
Regarding Disclosure Obligations; Final Rule



17 CFR Part 240



Municipal Securities Disclosure and Confirmation of Transactions; 
Proposed Rules
SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 211, 231, and 241

[Release No. 33-7049; 34-33741; FR-42; FILE NO. S7-4-94]

 

Statement of the Commission Regarding Disclosure Obligations of 
Municipal Securities Issuers and Others

AGENCY: Securities and Exchange Commission.

ACTION: Interpretation; Solicitation of comments.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
publishing its views with respect to the disclosure obligations of 
participants in the municipal securities markets under the antifraud 
provisions of the federal securities laws, both in connection with 
primary offerings and on a continuing basis with respect to the 
secondary market. This interpretive guidance is intended to assist 
municipal securities issuers, brokers, dealers and municipal securities 
dealers in meeting their obligations under the antifraud provisions. 
The Commission is seeking comment on issues discussed in this release 
and possible future agency action.

DATES: This Interpretation is effective March 9, 1994.
    Comments should be received on or before July 15, 1994.

ADDRESSES: Comments should be submitted in triplicate to Jonathan G. 
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, 
NW., Stop 6-9, Washington, DC 20549. Comment letters should refer to 
File No. S7-4-94. All comments received will be available for public 
inspection and copying at the Commission's Public Reference Room, 450 
Fifth Street, NW., Washington, DC 20549.

FOR FURTHER INFORMATION CONTACT: Ann D. Wallace ((202) 272-7282), Amy 
Meltzer Starr ((202) 272-3654), Vincent W. Mathis ((202) 272-3968), 
Division of Corporation Finance; Janet W. Russell-Hunter (with respect 
to Sections III.C.6. and V.) ((202) 504-2418), Division of Market 
Regulation, U.S. Securities and Exchange Commission, 450 Fifth Street, 
NW., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: In a companion release, the Commission is 
proposing rule amendments that prohibit a broker, dealer or municipal 
securities dealer from underwriting a municipal issue unless the issuer 
agrees to disseminate information to the secondary market and from 
recommending the purchase of a municipal security without reviewing 
such information.

I. Executive Summary

    The recent high volume of municipal securities offerings, as well 
as the growing ownership of municipal securities by individual 
investors, has highlighted the need for improved disclosure practices 
in the municipal securities market, particularly in the secondary 
market. To encourage and expedite the ongoing efforts by market 
participants to improve disclosure practices, and to assist market 
participants in meeting their obligations under the antifraud 
provisions, the Commission is publishing its views with respect to 
disclosures under the federal securities laws in the municipal market.
    This interpretive release addresses the following:

    (1) With respect to primary offering disclosure, despite the 
significant improvement in disclosure practices in recent years as a 
result of voluntary initiatives, increased attention needs to be 
directed at

     Disclosure of potential conflicts of interest and 
material financial relationships among issuers, advisers and 
underwriters, including those arising from political contributions;
     Disclosure regarding the terms and risks of securities 
being offered;
     Disclosure of the issuer's or obligor's financial 
condition, results of operations, and cash flows. This information 
should include audited financial statements (or disclosure that the 
financial statements were not subject to audit) and an explanation 
of the accounting principles followed in the preparation of the 
financial statements, unless the statements were prepared in 
accordance with generally accepted accounting principles (``GAAP'') 
or accompanied by a quantified explanation of any deviation from 
GAAP;
     Disclosure of the issuer's plans regarding the 
provision of information to the secondary market; and
     Timely delivery of preliminary official statements to 
underwriters and potential investors.
    (2) The Commission is renewing its recommendation for 
legislation to repeal the exemption for corporate obligations 
underlying certain conduit securities from the registration and 
reporting requirements of the federal securities laws.
    (3) Particularly because of their public nature, issuers in the 
municipal market routinely make public statements and issue reports 
that can affect the market for their securities; without a mechanism 
for providing ongoing disclosures to investors, these disclosures 
may cause the issuer to violate the antifraud provisions.
    Basic mechanisms to address potential antifraud liability 
include:
     Publication of financial information, including audited 
financial statements and other financial and operating information, 
on at least an annual basis;
     Timely reporting of material events reflecting upon the 
creditworthiness of the issuer or the obligor and the terms of its 
securities, including material defaults, draws on reserves, adverse 
rating changes and receipt of an adverse tax opinion; and
     Submission of such information to an information 
repository.
    (4) Underwriters and municipal securities dealers are key 
players in maintaining the quality of disclosure in the municipal 
securities markets. The underwriter has a duty to review the 
issuer's disclosure documents before offering, selling or bidding 
for the securities and to have a reasonable basis for its belief as 
to the accuracy and completeness of the representations in the 
documents. Municipal dealers must have a reasonable basis for 
recommending the purchase of securities.
    In a companion release,1 the Commission is proposing for 
comment two related rule amendments, the first proposing to prohibit 
a broker, dealer or municipal securities dealer from underwriting a 
municipal issue unless the issuer makes a commitment to provide 
annual and event-related secondary market information to a 
designated repository; and the second proposing to prohibit a 
broker, dealer, or municipal securities dealer from recommending 
purchases of such issues in the secondary market if it does not 
review such information.
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    \1\Exchange Act Release No. 33742 (March 9, 1994) (``Companion 
Release'').
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II. Introduction

A. The Municipal Securities Market

    As detailed in the recent Staff Report on the Municipal Securities 
Market, the market for municipal securities is characterized by great 
diversity and high volume. Issuers, estimated to number approximately 
50,000, include state governments, cities, towns, counties, and special 
subdivisions, such as special purpose districts and public authorities. 
It is estimated that there currently are 1.3 million municipal issues 
outstanding, representing approximately $1.2 trillion in 
securities.2 In 1993, a record level of over $335 billion in 
municipal securities was sold, representing over 17,000 issues. This 
record financing was heavily influenced by refundings. Nevertheless, 
the level of long term new money financings, representing 49% of 
financings for the year, reflected continued growth. In 1993, there 
were $142 billion of new money long term financings, compared to $81 
billion in 1988, a 75% increase.3
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    \2\See Division of Market Regulation, Securities and Exchange 
Commission, Staff Report on the Municipal Securities Market (``Staff 
Report'') (Sept. 1993) at 1.
    \3\``A Decade of Municipal Finance,'' The Bond Buyer (Jan. 6, 
1994) at 24.
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    In recent years, the forms of securities used to meet the financing 
needs of these issuers have become increasingly diverse and complex. 
For example, conduit bonds, certificates of participation, and a 
variety of derivative products have joined traditional general 
obligation and revenue bonds as prevalent forms of municipal 
financing.4
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    \4\Staff Report at 1-2.
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    In addition, there has been a change in the investor profile in the 
municipal securities market. By 1992, individual investors, including 
those holding through mutual funds, held 75% of the municipal debt 
outstanding, compared to 44% in 1983.5
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    \5\The Bond Buyer 1993 Yearbook (``Bond Buyer 1993 Yearbook'') 
at 61-63.
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    Along with the changing investor profile, there has been a change 
in investor strategy. Traditionally, municipal bondholders have been 
buy and hold investors; however, this strategy has changed 
significantly with the growth and development of municipal bond funds. 
Many of these funds actively trade their portfolio securities to take 
advantage of market conditions or to meet redemption needs.

B. SEC Oversight of the Municipal Securities Market

    As the agency charged with administering the federal securities 
laws and overseeing this nation's securities markets, the Commission 
has an obligation to protect investors in the municipal markets from 
fraud, including misleading disclosures. As the New York City report 
stated nearly two decades ago:


    By virtue of the large dollar volume of municipal securities 
issued and outstanding each year, such securities are a major factor 
in the Nation's economy and the national securities markets. In 
light of the national scope of the municipal securities markets, 
there is an overriding federal interest in assuring that there is 
adequate disclosure of all material information by issuers of 
municipal securities.
    Although municipalities have certain unique attributes by virtue 
of their political nature, insofar as they are issuers of 
securities, they are subject to the proscription against false and 
misleading disclosures.6
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    \6\Staff Report on Transactions in Securities of the City of New 
York (``NY City Report'') (Aug. 1977) Chapter III, at 1-2.

    The burgeoning volume and complexity of municipal securities 
offerings, as well as the retail nature of the market, heighten the 
need for market participants to seek to prevent fraud through the 
timely provision of material information concerning municipal issuers 
and securities.
    While Congress exempted offerings of municipal securities from the 
registration requirements and civil liability provisions of the 
Securities Act of 1933,7 and a mandated system of periodic 
reporting under the Securities Exchange Act of 1934,8 it did not 
exempt transactions in municipal securities from the coverage of the 
antifraud provisions of section 17(a) of the Securities Act,9 
section 10(b) of the Exchange Act, and Rule 10b-5 promulgated 
thereunder.10 These antifraud provisions prohibit any person, 
including municipal issuers and brokers, dealers and municipal 
securities dealers, from making a false or misleading statement of 
material fact, or omitting any material facts necessary to make 
statements made by that person not misleading, in connection with the 
offer, purchase or sale of any security. In addition, brokers, dealers 
and municipal securities dealers are subject to regulations adopted by 
the Commission, including those regulations adopted to define and 
prevent fraud.11 Municipal securities dealers are also subject to 
rules promulgated by the Municipal Securities Rulemaking Board 
(``MSRB'').12
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    \7\See section 3(a)(2) of the Securities Act (15 U.S.C. 
77c(a)(2)).
    \8\See section 3(a)(29) of the Exchange Act (15 U.S.C. 
78c(a)(29)).
    \9\15 U.S.C. 77q(a).
    \1\015 U.S.C. 78j(b); 17 CFR 240.10b-5.
    \1\1Sections 15(c) (1) and (2) of the Exchange Act (15 U.S.C. 
78o(c) (1) and (2)).
    \1\2See MSRB Manual (CCH).
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C. Disclosure Practices and Calls for Enhanced Disclosure

    In the absence of a statutory scheme for municipal securities 
registration and reporting, disclosure by municipal issuers has been 
governed by the demands of market participants and antifraud 
strictures. Spurred by the New York City fiscal crisis in 1975 and the 
Washington Public Power Supply System defaults,13 participants in 
the municipal securities market have developed extensive guidance to 
improve the level and quality of disclosure in primary offerings of 
municipal securities, and to a more limited extent, continuing 
disclosure in the secondary market.
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    \1\3See Securities and Exchange Commission, Report of the 
Securities and Exchange Commission on Regulation of Municipal 
Securities (1988); Securities and Exchange Commission, Staff Report 
on the Investigation in the Matter of Transactions in the Washington 
Public Power Supply System Securities (1988); Securities Act Release 
No. 6021, Final Report in the Matter of Transactions in the 
Securities of the City of New York (Feb. 5, 1979); NY City Report.
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    In 1989, the Commission adopted Rule 15c2-12 under the Exchange 
Act14 to enhance the quality and timeliness of disclosure to 
investors in municipal securities.15 The rule requires that 
underwriters (both bank and non-bank) of primary offerings of municipal 
securities with an aggregate principal amount of $1,000,000 or more 
obtain and distribute to their customers the issuers' official 
statements for the offerings. This mechanism provides underwriters an 
opportunity to review the issuer's disclosure documents before 
commencing sales to investors.16
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    \1\417 CFR 240.15c2-12; see Municipal Securities Disclosure, 
Securities Exchange Act Release No. 26100 (Sept. 28, 1988), 53 FR 
37778 (``Proposing Release''); Municipal Securities Disclosure, 
Securities Exchange Act Release No. 26985 (July 10, 1989), 54 FR 
28799 (``Adopting Release'').
    \1\5Proposing Release, 53 FR at 37779-37782; Staff Report at 25.
    \1\6Adopting Release, 54 FR at 28800.
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    There is a consensus that, over the last two decades, these market 
and regulatory efforts have improved significantly the quality of 
primary offering disclosure in the municipal securities markets.17 
Nonetheless, there continue to be concerns with the adequacy of 
municipal offering disclosure, particularly with respect to offerings 
of non-general obligation bonds and smaller issues.18
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    \1\7National Federation of Municipal Analysts, Membership Survey 
Results Fall 1992 Disclosure Survey (``NFMA Survey''); Public 
Securities Association, Municipal Securities Disclosure Task Force, 
Report: Initial Analysis of Current Disclosure Practices in the 
Municipal Securities Market (June 1988) (``PSA Survey'') (content 
and completeness of primary disclosure documents and sufficiency of 
financial information rated satisfactory to excellent by 94% and 93% 
of firms responding, respectively).
    \1\8See Letter to Chairman Levitt from Charles Mires, Allstate 
Insurance Company (Nov. 4, 1993, as updated Jan. 19, 1994) 
(``Allstate Letter'') (primary market disclosure by conduits found 
inadequate in 43.8% of rated issues reviewed); NFMA Survey (local 
housing, special district, hospitals, long term healthcare and 
industrial development issues were found to provide the least 
disclosure); PSA Survey (small issue industrial development bonds 
received a low rating; issues of $10 million or less received a low 
rating).
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    Secondary market disclosure practices present greater concerns. 
Recent highly publicized defaults19 and refundings,20 as well 
as the tremendous level of issuances during the past two years, have 
heightened interest in municipal secondary market disclosure.21 
The PSA has testified that today ``secondary market information is 
difficult to come by even for professional municipal credit analysts, 
to say nothing of retail investors.''22 Substantial issuer 
information, in the form of official statements, state-required 
reports, and other public documents, is available from the 
approximately 20% of municipal issuers that come to market frequently, 
accounting for 80% of the dollar volume of municipal securities 
issued.23 However, the remaining issuers, representing 20% in 
dollar volume but 80% in number, which come to the market much less 
frequently, provide substantially less continuing information. Many of 
these issues are health care issues, housing issues, industrial 
development bonds, and other conduit financings,24 financing 
sectors which have had the greatest incidence of defaults, both 
monetary and technical.25 In addition, information often is 
unavailable for smaller issues of securities of general purpose units 
of government and the securities of special purpose districts and 
authorities.26
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    \1\9Examples include the defaults engendered by the failures of 
Mutual Benefit Life, Executive Life and Tucson Electric Power, and 
the bankruptcies arising out of the Colorado Special Districts. See, 
e.g., Hinden, ``Mutual Benefit Life's Collapse Shows Fragility of 
Bond Guarantees,'' The Washington Post (Jul. 22, 1991) at F 27; 
Levinson, ``No Coverage Against Junk,'' Newsweek (Apr. 22, 1991) at 
46; Stamas, ``Rep. Dingell Asks SEC to Investigate Defaults by 
Special Assessment Districts in Colorado,'' The Bond Buyer (Jan. 25, 
1991) at 1.
    \2\0See Gasparino, ``Balancing Budgets Through Lease Deals May 
Pose Credit Risks, Rating Agency Warns,'' The Bond Buyer (Jan. 25, 
1993) at 1; Herman, ``Municipal-Bond Holders: Watch Out for `Call' 
Shock,'' The Wall Street Journal (Aug. 29, 1992) at C1; Hume, 
``Dealer Threatens Suit Over Proposed Call for Escrowed Bonds,'' The 
Bond Buyer (Nov. 8, 1993) at 4; Hume, ``Issuer in Louisiana May Run 
Afoul of Law if Escrowed Bonds Are Called Next Month,'' The Bond 
Buyer (Apr. 22, 1993) at 1; Hume, ``Rise in Re-Refundings of 
Escrowed Bonds Likely to Gain Attention at Treasury, SEC,'' The Bond 
Buyer (May 12, 1992) Pat 1.
    \2\1See generally, Testimony of Jeffrey S. Green, General 
Counsel, Port Authority of New York and New Jersey on behalf of 
Government Finance Officers Association, before the Subcommittee on 
Telecommunications and Finance, House Committee on Energy and 
Commerce, Oct. 7, 1993 (``GFOA Testimony'') at 7-9; Remarks by C. 
Richard Lehmann, President, Bond Investors Association Before the 
U.S. House of Representatives Subcommittee on Telecommunications and 
Finance Concerning the Municipal Securities Market, Oct. 7, 1993 
(``Lehmann Testimony'') at 4-5; Testimony of Andrew R. Kintzinger, 
President-Elect, National Association of Bond Lawyers, Before the 
Subcommittee on Telecommunications and Finance, House Committee on 
Energy and Commerce, Oct. 7, 1993 (``NABL Testimony'') at 8-23; 
Testimony of Harvey Eckert, Chairman of the Blue Ribbon Committee on 
Secondary Market Disclosure on Behalf of the National Association of 
State Auditors, Comptrollers and Treasurers Before the Subcommittee 
on Telecommunications and Finance, House Committee on Energy and 
Commerce, Oct. 7, 1993 (``NASACT Testimony'') at 3-6; Testimony 
Relating to the Municipal Securities Market given by the National 
Federation of Municipal Analysts, Katherine Bateman, Chairperson, to 
the Subcommittee on Telecommunications and Finance, Oct. 7, 1993 
(``NFMA Testimony'') at 1-7; Statement of Gerald McBride, Chairman, 
Municipal Securities Division, Public Securities Association, Before 
the House Committee on Energy and Commerce, Telecommunications and 
Finance Subcommittee, Oct. 7, 1993 (``PSA Testimony'') at 5-7; 
NASACT, State and Local Government Securities Markets and Secondary 
Market Disclosure (Oct. 1993) at 5; Stamas, ``Issuers' Intentions on 
Secondary Market Disclosure are Starting to Appear in Official 
Statements,'' The Bond Buyer (Dec. 14, 1992) at 1; Standard & 
Poor's, ``In Support of Secondary Market Disclosure,'' CreditWeek 
Municipal (Mar. 16, 1992).
    \2\2PSA Testimony at 5. See also Lehmann Testimony at 4; NASACT 
Testimony at 3; Nemes, ``Investors' Service Steps in to Fill Void in 
Hospital Data Disclosure,'' Modern Healthcare (Feb. 3, 1992) at 46; 
Quint, ``Credit Markets; Aiming for More Data About Municipal 
Bonds,'' The New York Times (June 28, 1993) at D5; Schifrin, 
``Hello, Sucker,'' Forbes (Feb. 1, 1993) at 40.
    \2\3NASACT, Report of the Blue Ribbon Committee on Secondary 
Market Disclosure--Improving Secondary Market Disclosure (Aug. 1993) 
(``NASACT Blue Ribbon Committee Report'') at 1-2.
    \2\4See id. at 1. See also Allstate Letter.
    \2\5See Bond Buyer 1993 Yearbook at 3-5; Municipal Bond 
Defaults--The 1980's; a Decade in Review (J.J. Kenny Co., Inc. 
1993)(``Kenny Default Report''); Public Securities Association, An 
Examination of Non-Rated Municipal Defaults 1986-1991 (Jan. 8, 
1993)(``PSA Default Report''); Staff Report, Appendix B.
    \2\6See NASACT Blue Ribbon Committee Report at 1-2.
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    In response to a request by Commission Chairman Arthur Levitt for a 
recommended ``market-participant sponsored solution'' to the disclosure 
issues in the municipal securities market, on December 20, 1993, 12 
groups and associations representing a broad range of market 
participants submitted to the Commission a Joint Statement on 
Improvements in Municipal Securities Market Disclosure (the ``Joint 
Statement'').27 The Joint Statement sets forth ``a framework for 
improving the availability of information in the marketplace'' that 
calls for both continued market initiatives to improve issuer 
disclosure and ``support from the SEC and the Municipal Securities 
Rulemaking Board (MSRB).''28 Among other things, its participants 
recommend the adoption of a rule or interpretive guidance restricting 
underwriting of municipal issues unless continuing information 
covenants are provided by the issuer.
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    \2\7Joint Statement on Improvements in Municipal Securities 
Market Disclosure (``Joint Statement'') (Dec. 20, 1993) at 1. The 
Joint Statement was submitted by the American Bankers Association's 
Corporate Trust Committee, American Public Power Association, 
Association of Local Housing Finance Agencies, Council of 
Infrastructure Financing Authorities, Government Finance Officers 
Association, National Association of Bond Lawyers, National 
Association of Counties, National Association of State Auditors, 
Comptrollers and Treasurers, National Association of State 
Treasurers, National Council of State Housing Agencies, National 
Federation of Municipal Analysts, and Public Securities Association.
    \2\8Id.
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III. Primary Offering Disclosure

A. Application of the Antifraud Provisions

    The antifraud provisions of the federal securities laws prohibit 
fraudulent or deceptive practices in the offer and sale of municipal 
securities.29 Disclosure documents used by municipal issuers, such 
as official statements, are subject to the prohibition against false or 
misleading statements of material facts, including the omission of 
material facts necessary to make the statements made, in light of the 
circumstances in which they are made, not misleading. The adequacy of 
the disclosure provided in municipal security offering materials is 
tested against an objective standard: an omitted fact is material if 
there is a substantial likelihood that, under all the circumstances, 
the omitted fact would have assumed actual significance in the 
deliberations of the reasonable [investor]. Put another way, there must 
be a substantial likelihood that the disclosure of the omitted fact 
would have been viewed by the reasonable investor as having 
significantly altered the ``total mix'' of information made 
available.30
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    \2\9See In re Washington Public Power Supply System Securities 
Litigation, 623 F. Supp. 1466, 1478 (W.D. Wash. 1985). See also 
Brown v. City of Covington, 805 F.2d 1266, 1270 (6th Cir. 1986).
    \3\0TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 
(1976).
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B. Voluntary Guidelines

    In the primary offering of municipal securities, the extensive 
voluntary guidelines issued by the Government Finance Officers 
Association (``GFOA'') have received widespread acceptance and, among a 
number of larger issuers, have been viewed as ``in essence obligatory 
rules.''31 Other groups, including the National Federation of 
Municipal Analysts (``NFMA''), have published voluntary disclosure 
guidelines covering industry specific sectors, including among others, 
housing, student loans, transportation and health care.32 In 
connection with the offering of municipal securities, the GFOA 
Guidelines call for:33
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    \3\1Letter from Harlan E. Boyles, Treasurer of North Carolina to 
SEC Chairman Levitt, dated December 7, 1993. See Government Finance 
Officers Association, Disclosure Guidelines for State and Local 
Government Securities (Jan. 1991) (``GFOA Guidelines'').
    \3\2See NFMA, Disclosure Handbook for Municipal Securities 1992 
Update (Nov. 1992) (``NFMA Handbook''). See also Government 
Accounting Standards Board, Codification of Government Accounting 
and Financial Reporting Standards (2d ed. 1987); PSA, 
Recommendations for a Consistent Presentation of Basic Bond 
Provisions in Official Statements (Dec. 1989).
    \3\3GFOA Guidelines at xv-xix (summary).

     An introduction to serve as the guide to the official 
statement;
     A description of the securities being offered, 
including complete information regarding the purposes of the 
offering, the plan of financing, the security and sources of 
repayment, and the priority of the securities, as well as structural 
characteristics, such as call provisions, tender options, original 
issue or deep discount, variable rates, and lease purchase 
agreements;
     Information regarding the nature and extent of any 
credit enhancement and financial and business information about the 
issuer of the enhancement;
     A description of the government issuer or enterprise, 
including information about the issuer's range or level of service, 
capacity and demographic factors and, in the case of revenue 
supported offerings, information on the enterprise's organization, 
management, revenue structure, results of operations and operating 
plan;
     With respect to obligations of private profit making 
and nonprofit conduit issuers, information regarding the business or 
other activity, including the enterprise's form of organization and 
management, rate-making or pricing policies, and historical 
operations and plan of operation;
     A description of the issuer's outstanding debt, 
including the authority to incur debt, limitations on debt, and the 
prospective debt burden and rate of its retirement;
     A description of the basic documentation, such as 
indentures, trust agreements and resolutions authorizing the 
issuance and establishing the rights of the parties;
     Financial information, including summary information 
regarding the issuer's or obligor's financial practices and results 
of operations, and financial statements, prepared in conformity with 
generally accepted accounting principles and audited in accordance 
with generally accepted auditing standards;
     A discussion of legal matters, such as pending 
judicial, administrative, or regulatory proceedings that may 
significantly affect the securities offered, legal opinions, and tax 
considerations; and
     A discussion of miscellaneous matters, including 
ratings and their description and meanings, underwriting 
arrangements, arrangements with financial advisors, interests of 
named experts, pending legislation, and the availability of 
additional information and documentation.


    The guidelines prepared by the GFOA and the NFMA provide a 
generally comprehensive roadmap for disclosure in offering statements 
for municipal securities offerings. There are, however, areas that need 
further improvement in both the context of negotiated and competitively 
bid underwritings. In addition, implementation of these guidelines 
needs to be extended to the whole market. For example, while large 
repeat general obligation issuers usually have comprehensive disclosure 
documents, small issuers and conduit issuers, particularly in the 
health care, housing and industrial development areas, do not always 
provide the same quality of disclosure.34
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    \3\4See NASACT Blue Ribbon Committee Report at 1-2; Staff Report 
at 26. Industry participants generally agreed in testimony before 
the House of Representatives Subcommittee on Telecommunications and 
Finance on October 7, 1993, that both the greatest disclosure 
problems and the greatest risk of default were with unrated 
hospital, housing, special district and industrial development 
revenue bonds.
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C. Areas Where Improvement Is Needed

1. Conflicts of Interest and Other Relationships or Practices
    Information concerning financial and business relationships and 
arrangements among the parties involved in the issuance of municipal 
securities may be critical to an evaluation of an offering.35 
Recent revelations about practices used in the municipal securities 
offering process have highlighted the potential materiality of 
information concerning financial and business relationships, 
arrangements or practices, including political contributions, that 
could influence municipal securities offerings. For example, such 
information could indicate the existence of actual or potential 
conflicts of interest, breaches of duty, or less than arm's-length 
transactions. Similarly, these matters may reflect upon the 
qualifications, level of diligence, and disinterestedness of financial 
advisers, underwriters, experts and other participants in an offering. 
Failure to disclose material information concerning such relationships, 
arrangements or practices may render misleading statements made in 
connection with the process, including statements in the official 
statement about the use of proceeds, underwriters' compensation and 
other expenses of the offering. In addition, investors reasonably 
expect participants in municipal securities offerings to follow 
standards and procedures established by such participants, or other 
governing authorities, to safeguard the integrity of the offering 
process; accordingly, material deviations from those procedures warrant 
disclosure.
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    \3\5See SEC v. Washington County Utility District, 676 F.2d 218, 
222 (6th Cir. 1982) (``Flagrant violations'' of antifraud provisions 
arising from failure to disclose use of proceeds to purchase options 
on property held by issuer's manager and financial arrangements 
between the manager and the underwriter).
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    Existing rules and voluntary guidelines call for certain specific 
disclosures by offering participants. GFOA guidelines call for offering 
statement disclosure to investors of contingency fees to named experts, 
including counsel, and any other interest or connection those parties 
have with other transaction participants.36 MSRB rules call for 
dealer disclosure to issuers and investors of any financial advisory 
relationship between an issuer and a broker, dealer, or municipal 
securities dealer, under certain circumstances.37 MSRB rules also 
call for dealer disclosure to investors of, among other things, certain 
fees and expenses in negotiated transactions.38
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    \3\6Section XII.D. of the GFOA Guidelines.
    \3\7MSRB rule G-23.
    \3\8MSRB rule G-32. See Section 15B(c)(1) of the Exchange Act 
(15 U.S.C. 78o-4(c)(1)) (requiring compliance with MSRB rules); MSRB 
rule G-17.
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    Beyond existing specific disclosure requirements and guidelines, 
the range of financial and business relationships, arrangements and 
practices that need to be disclosed depends on the particular facts and 
circumstances of each case. If, for example, the issuer (or any person 
acting on its behalf) selects an underwriter, syndicate or selling 
group member, expert, counsel or other party who has a direct or 
indirect (for example, through a consultant) financial or business 
relationship or arrangement with persons connected with the offering 
process, that relationship or arrangement may be material.39 Areas 
of particular concern are undisclosed payments to obtain underwriting 
assignments and undisclosed agreements or arrangements, including fee 
splitting, between financial advisers and underwriters.40 If the 
adviser is hired to assist the issuer, such relationships, financial or 
otherwise, may divide loyalties. Similarly, affiliations between 
sellers of property to be used in a financed project and conduit 
borrowers raise questions regarding, among other things, the 
determination of fair market value of the property and self-dealing.
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    \3\9Gasparino, ``The Trouble with Consultants'', The Bond Buyer 
(Nov. 16, 1993) at 1. In his testimony before the Subcommittee on 
Telecommunications and Finance, Andrew Kintzinger, on behalf of the 
National Association of Bond Lawyers (``NABL''), stated: ``[M]embers 
of the municipal finance bar should work with issuers to develop 
procurement procedures for state and local governments to ensure 
that all material financial arrangements between underwriters within 
the syndicate and between underwriters and financial advisors and 
possible conflicts of interest between issuers and members of the 
underwriting syndicate or other participants be accurately 
documented and disclosed or, if appropriate, prohibited.'' NABL 
Testimony at 28. See Joint Statement at 2.
    \4\0Gasparino, ``Several Issuers Start to Scrutinize Ties 
Between Advisers, Bankers,'' The Bond Buyer (Dec. 27, 1993) at 1. 
See Section XII.C. of the GFOA Guidelines; rule G-23 of the MSRB.
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2. Terms and Risks of Securities
    Evolution in the financial markets has led to increasingly complex 
and sophisticated derivative and other municipal products. While these 
new products offer investors a wide range of investment alternatives, 
in choosing among the alternatives, investors need a clear 
understanding of the terms and the particular risks arising from the 
nature of the products.41
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    \4\1As the NABL Testimony indicates: ``Derivatives are 
sophisticated securities products designed for sophisticated 
investors and should not be sold to retail investors generally and 
certainly not without comprehensive disclosure. If issuers choose to 
undertake the financial benefits of these sophisticated and 
complicated transactions, they can assume the financial costs of 
providing * * * information.'' NABL Testimony at 22.
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    In particular, investors need to be informed about the nature and 
effects of each significant term of the debt, including credit 
enhancements and risk modifiers, such as inverse floaters and 
detachable call rights. Investors in these securities should be aware 
of their exposure to interest rate volatility, under all possible 
scenarios. In addition, any legal risk concerning the issuer's 
authority to issue securities with unconventional features needs to be 
disclosed. The PSA recently has identified disclosure that should be 
provided in connection with the offer of financial instruments that 
include such features as auction and swap-based inverse floaters and 
embedded cap bonds.42
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    \4\2PSA, Recommendation on Dissemination of Product--Specific 
Terms For Municipal Derivative Products (1993).
---------------------------------------------------------------------------

    Credit enhancements are used with increasing frequency in the 
municipal market. According to published information, over 37% of the 
dollar volume of new long term issues carry some form of credit 
enhancement.43 The existence of bond insurance or other credit 
enhancement creates the need for disclosure concerning the provider of 
the credit enhancement and the terms of the enhancement44 to avoid 
misleading investors concerning the value of the enhancements provided 
and the party's ability to fund the enhancement. The GFOA recommends 
that appropriate financial information about the assets, revenues, 
reserves and results of operations of credit enhancers be provided in 
the official statement. In determining the extent of disclosure, 
consideration should be given to the amount of the enhancement relative 
to the income and cash flows of the issuer or obligor, conditions 
precedent to application of the enhancement, duration of the 
enhancement, and other factors indicating a material relationship 
between the enhancement and the investor's anticipated return.
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    \4\3PSA, Municipal Market Developments (Aug. 1993) at 5.
    \4\4See Revisions to Rules Regulating Money Market Funds, 
Securities Act Rel. No. 7038, 58 FR 68585, 68588 (footnote omitted) 
(``Money Market Fund Release''); Securities and Exchange Commission, 
Report by the United States Securities and Exchange Commission on 
the Financial Guarantee Market: The Use of the Exemption in Section 
3(a)(2) of the Securities Act of 1933 for Securities Guaranteed by 
Banks and the Use of Insurance Policies to Guarantee Debt Securities 
(Aug. 28, 1987) (``SEC Financial Guarantee Report'') at 82; Adopting 
Release, 54 FR at 28812.
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    In a trend that has become increasingly common, municipal bond 
insurers are including in indentures provisions that appear to delegate 
to the bond insurer the ability to modify terms of the indenture, prior 
to default, without the consent of, or even prior notification to, 
bondholders.45 There should be clear disclosure of any such 
provision that may have a material impact on the rights of bondholders 
or the obligations of the issuer, including the specific material 
rights of the bondholder that could be so altered.
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    \4\5See Allstate Letter.
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3. Financial Information
    a. Financial Accounting. Sound financial statements are critical to 
the integrity of the primary and secondary markets for municipal 
securities, just as they are for corporate securities.46 The key 
to the reliability and relevancy of the information contained in the 
financial statements of a municipal issuer is the use of a 
comprehensive body of accounting principles consistently applied by the 
issuer.47
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    \4\6See NY City Report at Ch. II p. 92.
    \4\7See GFOA Guidelines at 50.
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    Although there continues to be some diversity in the financial 
reporting practices used in preparing financial statements of 
governmental issuers, practice in the municipal market is evolving 
rapidly to reliance on generally accepted accounting principles 
(``GAAP'') as determined by the Government Accounting Standards Board 
(``GASB'').48 Only two years after GASB was founded in 1984, 
financial statements prepared in accordance with GAAP, as promulgated 
by GASB, were required by 75.2% of cities, 78.3% of counties and 69% of 
school districts responding to a research survey.49 Forty-six 
states currently require, or are in the process of establishing a 
requirement, that state government financial statements be presented in 
accordance with GAAP.50 In addition, local as well as state 
governments that receive significant amounts of federal aid must 
prepare financial statements in accordance with GAAP or provide 
information concerning variance from GAAP.51
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    \4\8The financial statements of corporate obligors backing 
conduit securities should follow GAAP for such entities, as 
established by the Financial Accounting Standards Board and other 
bodies.
    \4\9Ingram & Robbins, Financial Reporting Practices of Local 
Governments, Government Accounting Standards Board (1987) at 12 (The 
survey results were based on information received from 567 
respondents to a survey questionnaire mailed to 1161 government 
units).
    \5\0State Comptrollers: Technical Activities and Functions (1992 
Edition).
    \5\1Where state and local governments programs that are subject 
to the federal ``Single Audit Act of 1984,'' Public Law 98-502 et 
seq. prepare financial statements on a basis other than GAAP, ``the 
audit report should state the nature of the variances therefrom and 
follow professional guidance for reporting on financial statements 
which have not been prepared in accordance with GAAP.'' Office of 
Management and Budget, ``Questions and Answers on the Single Audit 
Process of OMB Circular A-128, `Single Audits of State and Local 
Governments,' '' 52 FR at 43716 (Nov. 13, 1987), question 35.
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    The GFOA Guidelines call for financial statements that are either 
prepared in accordance with GAAP or accompanied by a quantified (if 
practicable) explanation of the differences.52 To avoid 
misunderstanding, investors need to be informed of the basis for 
financial statement presentation. Accordingly, when a municipal issuer 
neither uses GAAP nor provides a quantified explanation of material 
deviations from GAAP, investors need a full explanation of the 
accounting principles followed.
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    \5\2GFOA Guidelines at 45.
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    b. Audits. Investors in the public securities markets have a 
reasonable expectation that annual financial statements contained in 
offering documents or periodic reports are subject to audit.53 In 
the case of municipal issuers, these financial statement audits are 
typically conducted by either an independent certified public 
accountant or a state auditor. Although the frequency and timeliness of 
audits vary, every state requires some periodic audit verification of 
government financial statements.54 A prudent investor needs to be 
able to evaluate the extent to which he or she can rely on the second 
look an auditor provides.
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    \5\3See Gauthier, An Elected Official's Guide to Auditing (1992) 
at vii and xi.
    \5\4State Comptrollers: Technical Activities and Functions; 
NASACT, Municipal Task Force Report (1990) (``NASACT 1990 Task Force 
Report'') at 12.
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    Accordingly, the offering statement should state whether the 
financial statements it contains were audited in accordance with 
generally accepted auditing standards (``GAAS''), as established by the 
American Institute of Certified Public Accountants.
    c. Other Financial and Operating Information. Financial information 
beyond that contained in the financial statements--provided in tabular 
and narrative format, footnotes, supplemental tables, schedules and 
discussions of operations and financial position--is essential to the 
fair presentation of an issuer's financial performance and position. As 
reflected in industry guidelines,55 the type of information needed 
(e.g., tax revenue base, budget, demographics, project revenues and 
operations) varies depending on the type of issuer, the type of 
security sold, and the sources for repayment of the bond obligations.
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    \5\5See generally, GFOA Guidelines; NFMA Handbook. See also 
infra n. 84.
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    There are a number of areas in which greater care needs to be taken 
to provide investors with adequate information. In a pooled financing 
structure, such as that used by bond banks, in addition to providing 
financial information concerning the issuing authority or program in 
the aggregate, it may be necessary to provide information on 
participating obligors. This will depend on diversification and risk 
concentration factors, such as the significance of any single obligor 
to the overall financing.
    Conduit bond issuers need to provide operational information 
concerning the activities of the private enterprise that will provide 
the cash flows to service the debt--for example, financial reporting, 
legal proceedings, changes in indebtedness, defaults and other 
significant developments relating to the underlying corporate obligor. 
Where the issuing authority in a conduit financing has no remaining 
obligation for the repayment of the indebtedness, in providing 
financial information about the issuing entity (as compared to the 
obligor on the bonds), care must be taken to avoid misleading investors 
regarding the sources of repayment.56
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    \5\6See Letter of John Murphy, Executive Director of Association 
of Local Housing Finance Agencies to Chairman Levitt (Dec. 20, 
1993).
---------------------------------------------------------------------------

    Municipal issuers also must consider disclosure issues arising from 
their activities as end users of derivative products. For example, the 
use of non-exchange traded derivatives to alter interest rate risk 
exposes the issuer to counterparty credit risk. Disclosure documents 
need to discuss the market risks to which issuers are exposed, the 
strategies used to alter such risks and the exposure to both market 
risk and credit risk resulting from risk alteration strategies. The 
NFMA has published sector specific secondary market disclosure 
guidelines calling for a discussion of the issuer's use of derivative 
products, especially interest rate swaps.57
---------------------------------------------------------------------------

    \5\7NFMA Handbook.
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    Moreover, in addition to financial and operating data, the official 
statement may need to include a narrative explanation to avoid 
misunderstanding and assist the reader in understanding the financial 
presentation. A numerical presentation alone may not be sufficient to 
permit an investor to judge financial and operating condition of the 
issuer or obligor.58 For example, it may be necessary to explain 
the presentation of budget information and the relationship of the 
budget figures to the financial statements.
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    \5\8See Management's Discussion and Analysis of Financial 
Condition and Results of Operations; Certain Investment Company 
Disclosures, Securities Act Release No. 6835 (May 24, 1989), 54 FR 
22427; Securities Act Release No. 6711 (April 24, 1987), 52 FR 
13715.
---------------------------------------------------------------------------

    In addition, issuers must assess whether the future impact of 
currently known facts mandate disclosure. The GFOA Guidelines call for 
a description of known facts that would significantly affect the 
financial information presented or future financial operation of the 
issuer, as well as a discussion of its projected operations.59 For 
example, in a hospital financing, a steadily declining population in 
the surrounding community that, in the future, would not support the 
size of facility to be built would be important to investors. 
Disclosure of such currently known conditions and their future impact 
is critical to informed decisionmaking.
---------------------------------------------------------------------------

    \5\9GFOA Guidelines at 55.
---------------------------------------------------------------------------

    d. Timeliness of Financial Statements. The timeliness of financial 
information is a major factor in its usefulness. To avoid providing 
investors with a stale, and therefore potentially misleading, picture 
of financial condition and results of operations, issuers and obligors 
need to release their annual financial statements as soon as practical. 
After extensive discussion with market participants, it appears that, 
for the most part, audited financial statements of municipal issuers 
for the most recently completed fiscal year are available within six 
months after fiscal year end. The six month time period is consistent 
with the recommendations of NASACT's Blue Ribbon Committee 
Report.60 Unaudited financial statements should be provided when 
available prior to the completion of the audit.
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    \6\0See NASACT Blue Ribbon Committee Report at 17. While due 
dates for audited financial statements of government units differ, a 
significant majority of states currently require audited financial 
statements for government units to be filed within six months after 
the fiscal year end. NASACT 1990 Task Force Report at 12-22.
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4. Availability of Continuing Information
    An investor's ability to monitor future developments affecting the 
issuer, as well as the likely liquidity of a security, are important to 
an investor's evaluation of an offering. The official statement should 
state clearly whether ongoing disclosure concerning the issuer or 
obligor will be provided, including the type, timing, and method of 
providing such information.61 In deciding whether to purchase the 
securities or to continue to hold them, investors need to know whether 
the issuer has committed to provide information on an ongoing 
basis.62 The absence of such a commitment can adversely affect the 
secondary market for the securities and increases the risks of the 
investment.
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    \6\1See Fall 1992 NFMA Survey. See also American Bankers 
Association, Corporate Trust Committee, Four Point Public 1991 
Disclosure Guidelines for Corporate Trustees (``ABA 1991 
Guidelines'') at 2; Stamas, ``Issuers' Intentions on Secondary 
Disclosure are Starting to Appear in Official Statements,'' The Bond 
Buyer (Dec. 14, 1992) at 1.
    \6\2See MSRB, Report of the Municipal Securities Rulemaking 
Board on Regulation of the Municipal Securities Market (Sept. 1993) 
at 6-7 (Board announced plan that would include requiring 
underwriters to recommend to issuers that they provide continuing 
disclosure to the market and requiring municipal securities dealers 
to disclose to their customers the negative impact that the lack of 
secondary market information may have on the value and liquidity of 
the securities and whether the issuer has agreed to voluntarily 
provide such disclosures).
---------------------------------------------------------------------------

    As discussed above, the Joint Statement recommends that the 
Commission adopt a rule prohibiting a municipal securities dealer from 
underwriting securities absent a commitment to provide ongoing 
information. In the Companion Release, the Commission is proposing such 
a rule for comment. In order to fully inform investors, an issuer needs 
to include in the official statement a description of the scope of its 
continuing disclosure commitment, the type of information that would be 
provided, the repositories to which the information would be sent, when 
annual and other periodic information would be available, and the 
consequences of the issuer's failure to abide by the requirements of 
the covenant.
5. Clarity and Conciseness
    Like other disclosure documents, official statements need to be 
clear and concise to avoid misleading investors through confusion and 
obfuscation. The expanded level of disclosure in official statements 
and increased sophistication of municipal securities instruments have, 
in many cases, resulted in longer and more complex disclosure 
documents, with the corresponding danger of overly detailed, 
legalistic, and possibly obtuse disclosure.63
---------------------------------------------------------------------------

    \6\3See GFOA Testimony at 6. See also Allstate Letter.
---------------------------------------------------------------------------

    The location, emphasis, and context of the disclosure can affect 
the ability of a reasonable investor to understand the relationship 
between, and cumulative effect of, the disclosure.64 As the U.S. 
Court of Appeals for the Second Circuit has stated:
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    \6\4Isquith v. Middle South Utilities, 847 F.2d 186, 201 (5th 
Cir.), cert. denied, 488 U.S. 926 (1988); Kas v. Financial General 
Bankshares, Inc., et al., 796 F.2d 508, 516 (D.C. Cir. 1986); 
Kennedy v. Tallant, 710 F.2d 711, 720 (11th Cir. 1983).

    [D]isclosures in a prospectus must steer a middle course, 
neither submerging a material fact in a flood of collateral data, 
nor slighting its importance through seemingly cavalier treatment. 
The import of the information conveyed must be neither oversubtle 
---------------------------------------------------------------------------
nor overplayed, its meaning accurate, yet accessible.65

---------------------------------------------------------------------------
    \6\5Isquith, 847 F.2d at 202.

    Appropriate disclosure ``is measured not by literal truth, but by 
the ability of the material to accurately inform rather than mislead'' 
investors.66 As the Commission has indicated in other contexts, 
legalistic, overly complex presentations and inattention to 
understandability can render the disclosure incomprehensible and 
consequently misleading.67
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    \6\6McMahan & Company, et. al. v. Wherehouse Entertainment, 
Inc., 900 F.2d 576, 579 (2d Cir. 1990).
    \6\7See, e.g., Limited Partnership Reorganizations and Public 
Offerings of Limited Partnership Interests, Securities Act Release 
No. 6900 (June 25, 1991) 56 FR 28979, 28980 (``Limited Partnership 
Release'').
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6. Delivery of Official Statements
    One of the concerns leading to the adoption of Rule 15c2-12 was 
that underwriters were not receiving official statements within time 
periods that would allow them to examine the accuracy of the 
disclosure.68 The Commission noted in proposing the rule that a 
thorough, professional review by underwriters of municipal offering 
documents could encourage appropriate disclosure of foreseeable risks 
and accurate descriptions of complex put and call features, as well as 
novel financing structures now employed in many municipal offerings. In 
addition, with the increase in novel or complex financings, there may 
be greater value in having investors receive disclosure documents 
describing fundamental aspects of their investment. Yet, underwriters 
are unable to perform this function effectively when offering 
statements are not provided to them on a timely basis.69
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    \6\8Proposing Release, 53 FR at 37781.
    \6\9Proposing Release, 53 FR at 37782.
---------------------------------------------------------------------------

    To address this concern, the rule requires any underwriter, 
including lead underwriters, syndicate members, and selling group 
members that receive in excess of the usual seller's commission, to 
obtain and review an official statement that is deemed final as of its 
date by the issuer, except for the omission of certain information, 
before bidding for, purchasing, offering, or selling municipal 
securities in a primary offering.
    Since the adoption of Rule 15c2-12, however, there have been 
continued problems with the timeliness of receipt by underwriters of 
the ``near final'' official statement required by the Rule.70 In 
addition to compromising the ability of an underwriter to make a 
reasonable investigation of the issuer, this problem also may limit the 
ability of potential customers to make informed investment decisions. 
In a recent NFMA survey, 59% of those responding rated the delivery of 
preliminary official statements in competitive sales as either not very 
good or poor, and 50% rated the delivery of preliminary official 
statements in negotiated sales as either not very good or poor.71
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    \7\0As a practical matter, near final official statements 
distributed to underwriters to satisfy Rule 15c2-12(b)(1) are often 
the same document as the preliminary official statement distributed 
to potential customers pursuant to Rule 15c2-12(b)(2). See Mudge 
Rose Guthrie Alexander & Ferndon (April 4, 1990) (``Mudge Rose'') 
(rejecting the argument that in a negotiated offering, the 
identification of a credit enhancer and related information about 
the credit enhancer may be omitted on the assumption that the 
information depends on pricing). See also Fippinger & Pittman, 
Disclosure Obligations of Underwriters of Municipal Securities, 47 
Business Lawyer 127, 140 (Nov. 1991). In addition, underwriters are 
required to deliver to potential customers, upon request, copies of 
the final official statement for a specified time period. Rule 15c2-
12(b)(4).
    \7\1NFMA Survey. See also Letter from Jeffrey M. Baker, 
Chairperson, NFMA Industry Practices and Procedures Committee and 
Richard A. Ciccarone, Past Chairperson, NFMA Industry Practices and 
Procedures Committee to Arthur Levitt, Chairman, Securities and 
Exchange Commission, Christopher A. Taylor, Executive Director, MSRB 
and Joseph R. Hardiman, President and Chief Executive Officer, 
National Association of Securities Dealers, Inc. (Oct. 19, 1993) 
(regarding the timeliness of receipt of near final and preliminary 
official statements).
---------------------------------------------------------------------------

    One cause of delay has been confusion as to the point at which the 
underwriter must have obtained and reviewed the near final official 
statement in a negotiated offering. The term ``offer'' traditionally 
has been defined broadly under the federal securities laws and, for 
purposes of Rule 15c2-12, encompasses the distribution of a preliminary 
official statement by the underwriter, as well as oral solicitations of 
indications of interest. Thus, prior to the time that the underwriter 
distributes the preliminary official statement to potential investors, 
or otherwise begins orally soliciting investors, the rule requires it 
to have obtained and reviewed a near final official statement. If no 
offers are made, the underwriter is required to obtain and review a 
near final official statement by the earlier of the time the 
underwriter agrees (whether in principle or by signing the bond 
purchase agreement) to purchase the bonds, or the first sale of bonds 
to investors.72
---------------------------------------------------------------------------

    \7\2See Mudge Rose.
---------------------------------------------------------------------------

    The Commission has acknowledged that the rule would require greater 
planning and discipline by some issuers.73 The Commission 
anticipated that, in order to allow underwriters to meet their 
obligation to have a reasonable basis for recommending any municipal 
securities, issuers would have to begin drafting disclosure documents 
earlier, and perhaps with greater care than in the past.74 This 
result enables underwriters to receive, and if necessary influence the 
content of, the final official statement before committing themselves 
to an offering.75 Moreover, placing an obligation on the issuer to 
prepare the official statement at an earlier stage is appropriate, 
because it is the issuer's obligation to ensure that there is timely 
dissemination of disclosure documents in connection with the offer and 
sale of the issuer's securities.76
---------------------------------------------------------------------------

    \7\3Adopting Release, 54 FR at 28804. The Commission also noted 
that the requirements of Rule 15c2-12(b)(1) could be met through the 
use of multiple documents. For example, a frequent issuer might be 
able to supply a recent official statement, together with 
supplementary information containing the terms of the current 
offering, as well as any material changes from the previous offering 
materials.
    \7\4Proposing Release, 53 FR at 37790.
    \7\5Id.
    \7\6See Adopting Release, 54 FR at 28811 N. 84 (official 
statement is issuer's document).
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D. Conduit Financings
    When financing involves a third party as the source of repayment, 
investors need information on that underlying borrower. The GFOA 
Guidelines call for description of conduit obligors, which are defined 
by the GFOA Guidelines to include both private profit-making and 
nonprofit entities.77 The suggested information includes the 
nature and development of the business or other activity to be 
undertaken by the conduit obligor (including its form of organization 
and management), location of principal facilities and service area, 
ratemaking or pricing policies and historical operations and plan of 
operations.
---------------------------------------------------------------------------

    \7\7GFOA Guidelines at 26. In a recent policy statement, the 
GFOA referred to ``conduit bonds'' as ``municipal securities issued 
by a state or local government for the benefit of a private 
corporation or other entity that is ultimately obligated to pay such 
bonds * * *.'' GFOA, Committee on Governmental Debt and Fiscal 
Policy, Improvements in Municipal Securities' Market Disclosure 
(Feb. 1, 1994) (``GFOA Disclosure Policy Statement'').
---------------------------------------------------------------------------

    To address disclosure issues involving conduit financings in a 
comprehensive fashion, however, legislation addressing the exempt 
status of conduit securities under the federal securities laws is 
necessary. Bonds used to finance a project to be used in the trade or 
business of a private corporation are, from an investment standpoint, 
equivalent to corporate debt securities issued directly by the 
underlying corporate obligor.78 Payments on these types of conduit 
securities are derived solely from revenues received by the 
governmental entity under the terms of a contractual agreement, 
typically a lease or a note, from a private enterprise, rather than 
from the general credit and taxing power of the governmental issuer. 
The tax-exempt status of interest payments does not alter the 
fundamental analysis that these are private obligations, in which the 
investor looks, and can look, only to a private entity for repayment.
---------------------------------------------------------------------------

    \7\8See Money Market Fund Release, 58 FR at 68588 (proposal to 
subject tax exempt money market fund investments in conduit 
securities to restrictions similar to those applicable to securities 
of comparable obligors offered to taxable funds).
---------------------------------------------------------------------------

    The private nature of many conduit enterprises distinguishes them 
from traditional municipal financings. The incidence of bond default 
appears to be inversely related to the degree a financed project 
represents an essential public service.79 A study conducted by the 
PSA on non-rated issues that defaulted found that 75% were issued by 
local authorities in the areas of health care and industrial related 
sectors such as energy, chemical, pollution control and industrial 
development.80
---------------------------------------------------------------------------

    \7\9Kenny Default Report at 2.
    \8\0PSA Default Report at 12.
---------------------------------------------------------------------------

    Given the essentially private nature of non-governmental industrial 
development financings, investors need the same disclosure regarding 
the underlying non-municipal corporate obligor as they would receive 
regarding any corporate obligor, and the same regulatory and liability 
scheme should apply. Accordingly, the Commission has consistently 
supported legislative proposals to amend Section 3(a)(2) of the 
Securities Act81 and Section 3(a)(29)82 of the Exchange Act 
to remove the registration exemption for the corporate credit 
underlying municipal conduit securities involving non-governmental 
industrial development (private activity) financings.83 The 
Commission today renews that legislative recommendation.
---------------------------------------------------------------------------

    \8\115 U.S.C. 77c(a)(2).
    \8\215 U.S.C. 78c(a)(29).
    \8\3See Remarks of David S. Ruder, Chairman, SEC, ``Disclosure 
in the Municipal Securities Markets,'' Before the Public Securities 
Association (Oct. 23, 1987) at 17-18; Letter from John S.R. Shad, 
Chairman, SEC to Representative Timothy E. Wirth, Chairman, House 
Subcommittee on Telecommunications, Consumer Protection, and Finance 
(March 12, 1985); 124 Cong. Rec. 21, 639 (1978) (letter from SEC 
Chairman Harold M. Williams to Senator Harrison A. Williams). There 
were two bills introduced, one in 1975 and one in 1978, that would 
have repealed the exemption from the registration requirements of 
the Securities Act of 1933. The 1978 bill would have subjected 
certain industrial development bonds to the registration 
requirements of the Securities Act of 1933, the filing and 
qualification provisions of the Trust Indenture Act and the periodic 
reporting requirements of the Securities Exchange Act of 1934. 
Neither bill was enacted. See also ``Municipal Securities Full 
Disclosure Act of 1976,'' S. 2969, 94th Cong., 2d. Sess. (Feb. 17, 
1976).
    Governmental industrial development financings, which would have 
retained their exempt status under prior proposals, include those 
financings in which the bonds are repaid from the general revenues 
of the governmental unit or the project or facility is a public 
facility (or part of a public facility) and owned and operated by or 
on behalf of the governmental unit. The prior proposals to register 
conduit financings would not have affected the separate exemption 
for securities issued by non-profit charitable organizations in 
Section 3(a)(4) of the Securities Act (15 U.S.C. 77c(a)(4)).
---------------------------------------------------------------------------

    Pending amendment to the securities laws to eliminate the 
registration exemption, the disclosure provided by such non-
governmental conduit borrowers should be substantially the same as if 
such conduit borrower were subject to the information requirements of 
the federal securities laws applicable to the particular conduit 
borrower. For example, financial statements prepared in accordance with 
generally accepted accounting principles prescribed by the Financial 
Accounting Standards Board should be provided.

IV. Disclosure in the Secondary Market for Municipal Securities

    While significant progress has been made in primary market 
disclosure practices in recent years, the same development has not 
taken place with respect to secondary market disclosure. The GFOA 
issued separate secondary market disclosure guidelines in 1979, but 
they have not yet achieved the broad acceptance accorded its primary 
offering guidance. In the last five years, the NFMA, the National 
Council of State Housing Agencies, and the Association of Local Housing 
Authorities have published sector specific guidelines for secondary 
market disclosure; the National Advisory Council of the National 
Association of State Auditors, Comptrollers and Treasurers (``NASACT'') 
is in the process of preparing such guidelines for adoption by the 
states.84 The GFOA's longstanding Certificate of Achievement 
program recognizes issuers that have prepared comprehensive annual 
financial reports meeting its guidelines. The NFMA's Award of 
Recognition Program likewise recognizes issuers that have committed to 
provide continuous disclosure.
---------------------------------------------------------------------------

    \8\4See Association of Local Housing Finance Agencies, 
Guidelines for Information Disclosure to the Secondary Market (1992) 
(``Local Housing Guidelines''); National Council of State Housing 
Agencies, Quarterly Reporting Format for State Housing Finance 
Agency Single Family Housing Bonds (1989) and Multi-family 
Disclosure Format (1991) collectively (``State Housing 
Guidelines''); NFMA Handbook. See also Healthcare Financial 
Management Association, Statement of Principles of Public Disclosure 
of Financial and Operating Information by Healthcare Providers 
(Exposure Draft dated Aug. 1, 1993) (``Healthcare Disclosure 
Principles'').
---------------------------------------------------------------------------

A. Application of Antifraud Provisions

    Participants in the municipal securities market do not dispute the 
need for ongoing disclosure following an offering of securities, but 
municipal issuers reportedly resist developing a routine of ongoing 
disclosure to the investing market because of concerns about the costs 
of generating and disseminating that information and about potential 
liability relating to such disclosure. These issuers and obligors are 
at times advised by their professional advisors that there is no duty 
under the federal securities laws to make disclosure following the 
completion of the distribution.85 At least some municipal issuers 
thus appear to believe that silence shields them from liability for 
what may later be found to be false or misleading information. As a 
practical matter, however, municipal issuers do not have the option of 
remaining silent. Given the wide range of information routinely 
released to the public, formally and informally, by these issuers in 
their day-to-day operations, the stream of information on which the 
market relies does not cease with the close of a municipal offering. In 
light of the public nature of these issuers and their accountability 
and governmental functions, a variety of information about issuers of 
municipal securities is collected by state and local governmental 
bodies, and routinely made publicly available.86 Municipal 
officials also make frequent public statements and issue press releases 
concerning the entity's fiscal affairs.
---------------------------------------------------------------------------

    \8\5See Stamas, ``Issuers' Intentions on Secondary Market 
Disclosure Are Starting to Appear in Official Statements,'' The Bond 
Buyer (Dec. 14, 1992) at 1; Stamas, ``Why the Issue of Secondary-
Market Disclosure Remains on the Back Burner: It Can Be Risky,'' The 
Bond Buyer (Sept. 20, 1991) at 1; Stamas, ``Analysts Warn Issuers 
About Some Lawyers' Disclosure Advice,'' The Bond Buyer (Jan. 15, 
1991) at 1.
    \8\6See NASACT Blue Ribbon Committee Report at 2, 24; NASACT 
1990 Task Force Report at 21.
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    A municipal issuer may not be subject to the mandated continuous 
reporting requirements of the Exchange Act, but when it releases 
information to the public that is reasonably expected to reach 
investors and the trading markets, those disclosures are subject to the 
antifraud provisions.87 The fact that they are not published for 
purposes of informing the securities markets does not alter the mandate 
that they not violate antifraud proscriptions.88 Those statements 
are a principal source of significant, current information about the 
issuer of the security, and thus reasonably can be expected to reach 
investors and the trading market. As the U.S. Court of Appeals for the 
Second Circuit has said: ``The securities markets are highly sensitive 
to press releases and to information contained in all sorts of publicly 
released . . . documents, and the investor is foolish who would ignore 
such releases.''89 Since investors obtain information concerning 
the fiscal health of a municipal issuer from its public statements 
concerning financial and other matters, ``[t]he nature of these 
statements and the assumptions upon which they are based must be 
carefully and accurately communicated to the public, so that potential 
investors may be fully informed of all material facts relevant to their 
investment decision.''90
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    \8\7See Public Statements by Corporate Representatives, 
Securities Act Release No. 6504 (Jan. 20, 1984) 49 FR 2468, 2469; In 
re Ames Dept. Stores Inc. Stock Litigation, 991 F.2d 953, 965-67 (2d 
Cir. 1993) (with respect to corporate information).
    \8\8See Fippinger, The Securities Law of Public Finance (2d ed. 
1993) at 291 (``[P]ress releases, conversations with analysts, 
information meetings, official comments on budget negotiations, and 
even angry reactions by public officials to rating agency 
downgrades'' are subject to antifraud provisions).
    \8\9Ames, 991 F.2d at 963 (corporate information).
    \9\0NY City Report at Ch. III at 2. The report found that public 
statements by City officials were misleading, since they were 
characterized by unwarranted reassurances as to the soundness and 
attractiveness of the City's securities, including statements that 
the City's budget problems, no matter how serious, had nothing to do 
with the City's ability to pay its debts. Id. at 110-111.
    Municipal issuers should also be sensitive to whether their 
official statements contain forward-looking statements, such as 
projections of revenues, that remain alive in the market and may 
require updating in light of subsequent events. Guides for 
Disclosure of Projections of Future Economic Performance, Exchange 
Act Rel. No. 5992 (Nov. 7, 1978), 43 FR 53246. To the extent that 
the official statement in many cases remains the principal (or 
perhaps even the sole) source of information concerning an 
outstanding security, the potential for an obligation to update is 
of particular importance.
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    The current process by which municipal issuers and their officials 
release information to market participants does not address the risk of 
misleading investors, because there is no mechanism for disseminating 
information about the municipal issuer to the market as a whole. To the 
contrary, in the municipal market, information released publicly 
frequently is disseminated only to a narrow segment of the marketplace. 
For example, market participants who request current information from 
indenture trustees are often turned away on the grounds that they are 
not current holders of the securities.91 As a result, investors 
purchasing municipal securities in the secondary market risk doing so 
on the basis of incomplete and outdated information.
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    \9\1Under notice provisions of indentures, the issuer and 
trustee generally are required to provide notice to existing 
bondholders of events of default and other significant matters, such 
as a draw on reserves, a failure to renew a letter of credit, or a 
substitution of collateral. ABA 1991 Guidelines at 10. Indeed, 
trustees often deny requests by market participants for information 
out of concern for liability arising from exceeding the authority 
set forth in the indenture. Fippinger at 325. This situation led the 
American Bankers Association Corporate Trust Committee, in 
cooperation with the National Association of Bond Lawyers, to 
develop agreed upon guidelines for indenture provisions permitting 
the trustee to provide public notice of specified events. See ABA 
1991 Guidelines.
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    Since access by market participants to current and reliable 
information is uneven and inefficient, municipal issuers presently face 
a risk of misleading investors through public statements that may not 
be intended to be the basis of investment decisions, but nevertheless 
may reasonably be expected to reach the securities markets. As market 
participants have urged,92 in order to minimize the risk of 
misleading investors, municipal issuers should establish practices and 
procedures to identify and timely disclose, in a manner designed to 
inform the trading market, material information reflecting on the 
creditworthiness of the issuer and obligor and the terms of the 
security.93
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    \9\2See GFOA Guidelines at 91-97; Joint Statement.
    \9\3National Association of Bond Lawyers and Section of Urban, 
State and Local Government Law, American Bar Association, Disclosure 
Roles of Counsel in State and Local Government Securities Offerings 
at 135 (forthcoming 1994) (Pre-publication Draft) (``ABA Disclosure 
Roles'') (noting that many municipal issuers have concluded that 
post-issuance disclosure in accordance with GFOA guidelines can be 
more efficient and expose them to less potential liability than ad 
hoc disclosures).
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B. Secondary Market Disclosure

    There is general recognition of the need for disseminating 
comprehensive information on an annual basis and, on a more timely 
basis, information about material events that reflect on the credit 
quality of the security.94
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    \9\4See GFOA Testimony; Mires, ``An Investor's Framework for 
Examining Disclosure Issues and Possible Solutions,'' The Bond Buyer 
(Feb. 7, 1994) at 24; NASACT Blue Ribbon Committee Report at 7. See 
also PSA Testimony at 6, supporting annual financial statement 
filing requirements and submission of information regarding any 
material fact for issuers who borrow $1 million or more annually.
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1. Annual Information
    Investors need updated comprehensive information sufficient to 
enable them to evaluate the financial condition, results of operations 
and cash flows of the issuer or underlying borrower. Although the 
issuance of comprehensive annual information has not yet become 
prevailing practice, it is recommended by industry disclosure 
guidelines, including those published by the GFOA in connection with 
its Comprehensive Annual Financial Reports (``CAFRs'') award program, 
NFMA, and the other industry specific guidelines,95 and is an 
effective means of providing the market updated information about the 
issuer and the issue. The GFOA Guidelines for Continuing Disclosure 
call for, either in an official statement or comprehensive annual 
report, a description of:
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    \9\5See ABA Disclosure Roles at 134-136; ABA 1991 Guidelines; 
Association of Local Housing Guidelines; Healthcare Disclosure 
Principles. The Disclosure Task Force of the National Council of 
State Housing Agencies is developing standards for the issuance of 
audited financial and annual reports.

 The issuer and its structure, management, assets and 
operations;
 The issuer's debt structure (including changes in 
indebtedness);
 The issuer's finances (including financial condition and 
results of operations and financial practices of the issuer or the 
enterprise);
 Legal matters affecting the issuer; including litigation 
and legislation;
 Ratings; and
 Interests of certain persons.

    The GFOA Guidelines also specify additional information to be 
provided by conduit borrowers. The eligibility criteria for a 
Certificate of Achievement from GFOA include audited financial 
statements prepared in accordance with GAAP, reported upon by an 
independent public auditor. The guidelines for CAFRs include both a 
financial section and a statistical section.96
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    \9\6See GFOA Certificate of Achievement for Excellence in 
Financial Reporting Program; GFOA Guidelines at 64.
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    For frequent issuers, current information can be disseminated in 
official statements for new offerings, and thus is readily available 
without the preparation of a separate annual financial report. 
Regardless of the form of document relied upon to provide the 
marketplace with information concerning the financial condition of the 
issuer or obligor, to minimize risk of misleading investors, issuers or 
obligors should provide, as discussed above with respect to primary 
offerings:

 Financial statements that are audited in accordance with 
GAAS (or disclosure of the absence of such an audit) and that are 
either prepared in accordance with GAAP, or accompanied by a 
quantified explanation of material deviations from GAAP or a full 
explanation of the accounting principles used;
 Other pertinent financial and operating information 
(depending on the type of issuer and security sold), as well as the 
sources for repayment--of course, a variety of information may be 
appropriate for an issuer with a range of outstanding securities 
with differing characteristics, from general obligation to revenue 
and conduit bonds; and
 A narrative discussion that analyzes the issuer's or 
obligor's financial condition, and results of operations, as well as 
facts likely to have a material impact on the issuer or obligor.

Clarity and conciseness are equally relevant concerns with respect to 
ongoing disclosures, as with official statements.
    As discussed above with respect to offering statements, as a 
general matter, the annual financial information may reasonably be 
expected to be made available within six months of the issuer's fiscal 
year end.\97\ For some conduit entities, annual information may not be 
sufficient and investors may need more frequent periodic financial 
information. Under guidelines developed by the National Council of 
State Housing Agencies, for example, current information on loan 
portfolio status is compiled and disseminated to information 
repositories on a quarterly basis.\98\ Similar ongoing disclosure on a 
periodic basis appears appropriate for analogous conduit municipal 
financings such as structured student loan programs, housing and health 
care financings.
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    \97\See Section III.C.3.d. above.
    \98\State Housing Guidelines.
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2. Event Disclosure
    In addition to periodic information, to assure that participants in 
the secondary market base their investment decisions on current 
information, commentators have called for timely disclosure of events 
that materially reflect on the creditworthiness of municipal securities 
issuers and obligors and the terms of their securities. There is a 
general consensus among participants in the municipal securities market 
that investors need information about the following events, among 
others, where material:\99\
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    \99\In 1990, the American Bankers Association Corporate Trust 
Committee drafted a proposal identifying 16 factors that it believed 
were important for issuers to disclose to bondholders and the 
marketplace. American Bankers Association Corporate Trust Committee, 
Proposed Disclosure Guidelines for Corporate Trustees (ABA Draft for 
Discussion Purposes) (June 12, 1990) (``ABA 1990 Guidelines''). As 
published in final form in September of 1991 (``ABA 1991 
Guidelines''), the Guidelines contained a nonexclusive list of five 
types of events that could be disclosed by notice to a repository. 
Numerous market participants have referenced the ABA draft proposal, 
or variations of that proposal, as a starting point for identifying 
straightforward, nonjudgmental, categories of events that call for 
prompt disclosure. An addendum to the Joint Statement provided four 
examples of ``significant information'' that the participants 
considered appropriate for disclosure. The nonexclusive examples 
were (1) nontechnical defaults, (2) draws from a debt service 
reserve fund, (3) failure to make a regularly scheduled payment, and 
(4) any draws on any credit enhancement. Joint Statement, Addendum. 
The list set forth above is drawn from these proposals.
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a. Principal and interest payment delinquencies
b. Nonpayment-related defaults
c. Unscheduled draws on reserves
d. Unscheduled draws on credit enhancements
e. Substitution of credit or liquidity providers, or their failure to 
perform
f. Adverse tax opinions or events affecting the tax-exempt status of 
the security
g. Modifications to rights of security holders
h. Bond calls
i. Defeasances
j. Matters affecting collateral
k. Rating changes
3. Dissemination
    As discussed above, the municipal market today lacks an effective 
mechanism for dissemination of material information to investors and 
the marketplace. To be effective in minimizing the issuer's risk under 
the antifraud provisions, the annual financial information and event 
disclosure should be disseminated in a manner reasonably designed to 
inform the holders of the issuer's securities and the market for those 
securities.
    Trustees can serve as cost effective disseminators of information 
to the market due to the capacity and duties of trustees under the 
terms of the indentures, which positions them to have knowledge of the 
events requiring disclosure, and the ability and authority to 
communicate with bondholders.\100\ The Commission encourages the 
inclusion of provisions in trust indentures that authorize trustees to 
transmit information to the market, particularly in structured 
financings where the issuer's obligations generally are delegated to 
various participants. Trustees also may provide a service to other 
small issuers, by enabling them to notify the market in a timely manner 
and at a lower cost.
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    \100\See ABA 1991 Guidelines at 3.
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    The common denominator for current proposals to improve secondary 
market disclosure for municipal securities is the establishment and 
designation of one or more information repositories to serve as a 
collection and access point for annual and current information.\101\ 
Such repositories would serve as predetermined sources for information 
concerning a particular issuer, allowing participants to verify that 
they have the latest available information concerning the issuer before 
recommending, purchasing, or bidding for a security. The repositories 
would supplement, not substitute for, the existing access bondholders 
may have to issuers to obtain current information.\102\
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    \101\Consistent with the recent recommendation of the Joint 
Statement, the GFOA Guidelines call for lodging secondary market 
disclosure with a repository, as did the ABA guidelines published in 
1991. GFOA Guidelines, Procedural Statement No. 8; ABA 1991 
Guidelines at 3.
    \102\The American Bankers Association Corporate Trust Committee 
and the National Association of Bond Lawyers, as well as the Joint 
Statement, have expressed concern that securities depositories and 
their participants do not retransmit notices they receive from 
trustees and issuers to the beneficial owners of the issuer's 
securities. The ABA Corporate Trust Committee sought to address the 
problem by calling for simultaneous dissemination of the information 
to the marketplace through an information repository. The National 
Association of Bond Lawyers has suggested that the Commission 
promulgate a rule mandating that all depositories and their direct 
and indirect participants promptly retransmit notices received from 
the issuer or indenture trustee. While the establishment of 
information repositories may address the problem to some extent, the 
Commission staff intends to work with the relevant organizations to 
assure that steps are taken to provide for consistent retransmission 
of the information.
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    In the Companion Release, the Commission is proposing an amendment 
to Rule 15c2-12 to prohibit, as suggested by the Joint Statement, 
underwriting of a municipal securities issue unless the issuer of the 
municipal security has covenanted to provide annual and ongoing 
disclosure to a repository.

V. Interpretive Guidance With Respect to Obligations of Municipal 
Securities Dealers

    In the Proposing and Adopting Releases for Rule 15c2-12, the 
Commission set forth its interpretation of the obligation of municipal 
underwriters under the antifraud provisions of the federal securities 
laws. The interpretation discussed the duty of underwriters to the 
investing public to have a reasonable basis for recommending any 
municipal securities, and their responsibility, in fulfilling that 
obligation, to review in a professional manner the accuracy of 
statements made in connection with the offering. The interpretation was 
set out in the Proposing Release, and modified slightly in the Adopting 
Release. The Commission reaffirms its Interpretation with respect to 
underwriters' responsibilities under the antifraud provisions of the 
federal securities laws.\103\
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    \103\In light of the underwriter's obligation, as discussed in 
the prior releases, to review the official statement and to have a 
reasonable basis for its belief in the accuracy and completeness of 
the official statement's key representations, disclaimers by 
underwriters of responsibility for the information provided by the 
issuer or other parties, without further clarification regarding the 
underwriter's belief as to accuracy, and the basis therefor, are 
misleading and should not be included in official statements.
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    Furthermore, the Commission believes that it is also appropriate to 
emphasize the responsibilities of brokers and dealers in trading 
municipal securities in the secondary market. The Commission 
historically has taken the position that a broker-dealer recommending 
securities to investors implies by its recommendation that it has an 
adequate basis for the recommendation.\104\ A dealer, unlike an 
underwriter, ordinarily is not obligated to contact the issuer to 
verify information. A dealer must, however, have a reasonable basis for 
its recommendation.\105\ If, based on publicly available information, a 
dealer discovers any factors that indicate the disclosure is inaccurate 
or incomplete, or signal the need for further inquiry, a municipal 
securities dealer may need to obtain additional information, or seek to 
verify existing information.\106\
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    \104\See Donald T. Sheldon, Securities Exchange Act Release No. 
31475 (Nov. 18, 1992); Elizabeth Bamberg, Securities Exchange Act 
Release No. 27672 (Feb. 5, 1990); Feeney v. SEC, 564 F.2d 260 (8th 
Cir. 1977); Nassar & Co., Securities Exchange Act Release No. 15347 
(Nov. 22, 1978). See also Proposing Release, 53 FR at 37787, n.72-
73.
    \105\Richard J. Buck & Co., 43 SEC 998 (1968), aff'd sub nom. 
Hanley v. SEC, 416 F.2d 589 (2d Cir. 1969). See also The Obligations 
of Underwriters, Brokers and Dealers in Distributing and Trading 
Securities, Particularly of New High Risk Ventures, Securities Act 
Release No. 5275 (Aug. 9, 1972) 37 FR 16011, 16012-13; In Re 
Blumenfeld. Securities Exchange Act Release No. 16437 (Dec. 19, 
1979) (broker-dealer charged unfair mark-ups and recommended 
transactions in municipal securities without a reasonable basis); 
J.A. Winston & Co., Inc., 42 S.E.C. 62 (1964) (broker-dealer 
recommended transactions without a reasonable basis, and made 
representations that were false and misleading).
    \106\See Merrill, Lynch, Pierce, Fenner & Smith, Securities 
Exchange Act Release No. 14149 (Nov. 9, 1977) (``A recommendation by 
a broker-dealer is perceived by a customer as (and in fact it should 
be) the product of an objective analysis [which] can only be 
achieved when the scope of an investigation is extended beyond the 
company's management); John R. Brick, Securities Exchange Act 
Release No. 11763 (Oct. 24, 1975) (``the professional...is not an 
issuer. But he is under a duty to investigate and see that his 
recommendations have a reasonable basis''); M.G. Davis & Co., 44 SEC 
153, 157-58 (1970) (broker-dealer registration revoked because 
``representations and predictions'' made and market letter relied on 
by registrant ``were without reasonable basis,'' and ``registrant 
could not reasonably accept all of the statements in the [market 
letter] without further investigation''), aff'd sub nom. Levine v. 
SEC, 436 F.2d 88 (2d Cir. 1971). See also Merrill, Lynch, Pierce, 
Fenner & Smith, Securities Exchange Act Release No. 14149 (Nov. 9, 
1977) (noting that if a broker-dealer lacks sufficient information 
to make a recommendation, the lack of information is material and 
should be disclosed).
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    One of the rules proposed simultaneously with the issuance of this 
release would require a broker, dealer or municipal securities dealer 
to review current information provided by the issuer prior to 
recommending a transaction in a municipal security. In the absence of 
such current information, the dealer could not recommend a transaction 
in the issuer's securities. That rule, which would be applicable to 
municipal securities issued subsequent to the effective date of the 
proposed rule, would reinforce the obligations of dealers under the 
antifraud provisions of the federal securities laws to have a 
reasonable basis for recommendations of outstanding municipal 
securities.
    The Joint Statement also called for a strengthening of the 
suitability rules to require disclosure of ratings and whether the 
issuer has committed to provide annual financial reports. Today, the 
Commission is proposing amendments to its confirmation rules to require 
disclosure of the absence of a rating in confirmations. The MSRB has 
indicated it has under consideration a plan requiring municipal 
securities dealers to disclose to their customers the importance of 
secondary market information and whether the issuer has agreed to 
voluntarily provide such disclosures.107 The Commission will defer 
to the MSRB's reexamination of its suitability rules in implementing 
those aspects of the Joint Statement.
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    \1\07See supra n. 62.
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VI. Request for Comments

    The Commission intends to continue to monitor developments in 
municipal securities disclosure practices. Comment is requested 
regarding the disclosure items discussed in this release, and in 
particular, items warranting event disclosure. Comment also is 
requested regarding additional action that should be taken with respect 
to disclosure in the municipal securities market by the Commission, the 
MSRB, or Congress.

List of Subjects in 17 CFR Parts 211, 231 and 241

    Securities.

Amendment of the Code of Federal Regulations

    For the reasons set out in the preamble, title 17 chapter II of the 
Code of Federal Regulations is amended as set forth below:

PART 211--INTERPRETATIONS RELATING TO FINANCIAL REPORTING MATTERS

    1. Part 211, Subpart A, is amended by adding Release No. FR-42 and 
the release date of March 9, 1994, to the list of interpretive 
releases.

PART 231--INTERPRETATIVE RELEASES RELATING TO THE SECURITIES ACT OF 
1933 AND GENERAL RULES AND REGULATIONS THEREUNDER

    2. Part 231 is amended by adding Release No. 33-7049 and the 
release date of March 9, 1994, to the list of interpretive releases.

PART 241--INTERPRETATIVE RELEASES RELATING TO THE SECURITIES 
EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS THEREUNDER

    3. Part 241 is amended by adding Release No. 34-33741 and the 
release date of March 9, 1994, to the list of interpretive releases.

    By the Commission.

    Dated: March 9, 1994.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-5922 Filed 3-16-94; 8:45 am]
BILLING CODE 8010-01-P