[Federal Register Volume 66, Number 183 (Thursday, September 20, 2001)]
[Notices]
[Pages 48494-48495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23463]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 44791]


Emergency Order Pursuant to Section 12(k)(2) of the Securities 
Exchange Act of 1934 Taking Temporary Action To Respond to Market 
Developments

September 14, 2001.
    The United States securities markets are the world's strongest and 
most vibrant. The Commission has full confidence that the attacks of 
September 11, 2001, will have little lasting market impact. To that 
end, the Commission seeks to serve investors and the markets through 
all available means to facilitate the reopening of fair and orderly 
markets.
    Section 12(k)(2) of the Securities Exchange Act of 1934 (``Exchange 
Act'') grants the Commission the authority, in the event of certain 
major market disturbances, to issue summarily order to alter, 
supplement, suspend, or impose requirements or restrictions with 
respect to matters or actions subject to regulation by the Commission. 
On September 11, 2001, the U.S. equities and options markets determined 
not to open in light of the attacks that morning. The U.S. equities and 
options markets have remained closed since then. Based on all available 
information, the Commission has determined that:
    (1) Uncertainty concerning the impact of the closure of the U.S. 
equities and options markets constitutes a major market disturbance 
characterized by ``sudden and excessive fluctuations of securities 
prices generally, or a substantial threat thereof, that threatens fair 
and orderly markets.'' \1\ In particular, the Commission seeks to 
ensure that, when the U.S. equities and options markets reopen for 
trading, they will not be confronted with undue order imbalances.
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    \1\ This finding of an ``emergency'' is solely for purposes of 
Section 12(k)(2) of the Exchange Act and is not intended to have any 
other effect or meaning or to confer any right or impose any 
obligation.
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    (2) Purchases by registrants of their own securities can represent 
an important source of liquidity during times of market volatility. 
Registrants may be reluctant to engage in such purchases, however, 
because of certain securities law requirements. In particular, Exchange 
Act Rule 10b-18 provides registrants with a safe harbor to effect 
repurchases, but only if the repurchases meet the conditions specified 
in the Rule. Certain registrants that recently engaged in or initiated 
business combinations that otherwise qualify for pooling-of-interests 
treatment under generally accepted accounting principles also may be 
reluctant to effect repurchases. In this regard, Regulation S-X, 
Article 4 (Rules of General Application), Part 4-01, provides in 
pertinent part that, ``Financial statements filed with the Commission 
which are not prepared in accordance with generally accepted accounting 
principles will be presumed to be misleading or inaccurate, despite 
footnote or other disclosures, unless the Commission has otherwise 
provided.''
    (3) The Commission understands that some registrants may have 
internal policies relating to purchases of the registrant's securities 
during specific time periods. These policies are designed to prevent 
violations of the antifraud provisions of the federal securities laws. 
While the antifraud provisions remain in effect, a registrant's failure 
to comply with those timing policies for purchases by the registrant of 
its securities during the period covered by the Order will not by 
itself be considered as any indication that the registrant may have 
violated the antifraud provisions. In addition, certain persons may 
refrain from purchase activity that otherwise serves the public 
interest because of concern about potential profit recovery under 
Section 16(b) of the Exchange Act.
    (4) Temporary action with respect to the conditions of Rule 10b-18, 
the application of Article 4 of Regulation S-X,\2\ and the operation of 
certain other provisions of the federal securities laws will provide 
additional flexibility and certainty to registrants and others that 
consider engaging in purchases of securities when the U.S. equities and 
options markets reopen for trading. Accordingly, these temporary 
measures are in the public interest and for the protection of investors 
in order to maintain or restore fair and orderly securities markets.
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    \2\ While our authority to supplement Regulation S-X in this 
context is derived from the Exchange Act, we acknowledge that our 
action will affect filings under other provisions of the securities 
laws that require filings to be in compliance with Regulation S-X.

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[[Page 48495]]

    Therefore, It Is Ordered, pursuant to Section 12(k)(2) of the 
Exchange Act, that,
    In connection with a Rule 10b-18 purchase \3\ or with a Rule 10b-18 
bid that is made during the period covered by this Order by the use of 
any means or instrumentality of interstate commerce or of the mails, or 
of any facility of any national securities exchange, an issuer, or an 
affiliated purchaser of the issuer, shall not be deemed to have 
violated Section 9(a)(2) of the Exchange Act or Rule 10b-5 under the 
Exchange Act, solely by reason of the time or price at which its Rule 
10b-18 bids or Rule 10b-18 purchases are made or the amount of such 
bids or purchases or the number of brokers or dealers used in 
connection with such bids or purchases if the issuer or affiliated 
purchaser of the issuer meets all of the conditions in Rule 10b-18, 
with the exception that:
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    \3\ Terms used in this order have the same meanings as those 
terms used in Exchange Act Rule 10b-18 unless stated otherwise. 
Issuers repurchasing their shares pursuant to this Order may qualify 
for the safe harbor notwithstanding the fact that they may have 
shareholders selling shares pursuant to a shelf registration, so 
long as any selling shareholder is not an affiliate of the issuer 
or, if affiliated, the selling activity does not rise to the level 
of a distribution under Regulation M. 17 CFR 242. 100 et seq.
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    (i) The timing condition in paragraph (b)(2) may be satisfied if 
the issuer makes Rule 10b-18 purchases without regard to whether any 
such Rule 10b-18 purchase constitutes the opening transaction in a 
reported or exchange traded security or whether any such purchase would 
occur during the one-half hour before the scheduled close of trading on 
the primary market for such security; and
    (ii) The volume condition in paragraph (b)(4) may be satisfied if 
the issuer makes all Rule 10b-18 purchases other than block purchases 
of a reported or exchange traded security in an amount that, when added 
to the amount of all other Rule 10b-18 purchases, other than block 
purchases, from or through a broker or dealer effected by or for the 
issuer or an affiliated purchaser of the issuer on that day, does not 
exceed 100 percent of the trading volume (determined on the basis of 
the 4 calendar weeks preceding the week beginning on September 10, 
2001) for the security; and
    It Is Further Ordered, That,
    Notwithstanding the pooling-of-interests provisions in Accounting 
Principles Board Opinion No. 16, Business Combinations, and the related 
interpretations of the American Institute of Certified Public 
Accountants, consensuses of the Financial Accounting Standards Board's 
Emerging Issues Task Force, rules and regulations of the Commission and 
interpretations by its staff, and other authoritative accounting 
guidance, acquisitions by registrants of their own equity securities 
during the period covered by this Order will not affect the 
availability of pooling-of-interests accounting and, accordingly, a 
registrant's financial statements will not be misleading or inaccurate 
solely because the registrant has engaged in such purchases and has 
accounted for its business combination transactions as a pooling of 
interests; and
    It Is Further Ordered, That,
    Notwithstanding the profit recovery provisions of Section 16(b) of 
the Exchange Act and the rules adopted under it, any purchase during 
the period covered by this Order by a person subject to Section 16 
shall be exempt from the operation of that section with respect to any 
sale by that person during the preceding six months, and accordingly 
shall not be matched with such sale. The purchase continues to be 
reportable on Form 4 under Section 16(a) of the Exchange Act. The Form 
4 should use transaction code ``J'' and describe the transaction in a 
footnote, making specific reference to this Order; and
    It Is Further Ordered, That,
    Broker-dealers need not treat the 11th, 12th, 13th and 14th of 
September, 2001 as business or calendar days for purposes of 
calculating charges or taking actions under Rules 15c3-1 and 15c3-3 
arising from failed transactions or imbalances in securities accounting 
systems, or for the purposes of FOCUS reporting; and
    It Is Further Ordered, That,
    Broker-dealers that are required to do a reserve computation 
(including PAIB) for the week ending September 14, 2001 under Rule 
15c3-3 will not be required to do such a computation, provided they do 
not withdraw money from their reserve bank account without first doing 
a computation.
    This Order shall be effective with respect to the five business 
days beginning on the date of the first reopening of trading on the 
U.S. equities and options markets after September 11, 2001.
    By the Commission.

Jonathan G. Katz,
Secretary.
[FR Doc. 01-23463 Filed 9-19-01; 8:45 am]
BILLING CODE 8010-01-M