[Federal Register Volume 74, Number 204 (Friday, October 23, 2009)]
[Proposed Rules]
[Pages 54767-54771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25496]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 232

[Release No. 33-9074; File No. S7-23-09]
RIN 3235-AK44


Extension of Filing Accommodation for Static Pool Information in 
Filings With Respect to Asset-Backed Securities

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission proposes to amend Rule 312 of Regulation S-T 
which provides a temporary filing accommodation for filings with 
respect to asset-backed securities that allows static pool information 
required to be disclosed in a prospectus to be provided on an Internet 
Web site under certain conditions. Under Rule 312, such information is 
deemed to be included in the prospectus included in the registration 
statement for the asset-backed securities. Rule 312 currently applies 
to filings with respect to asset-backed securities filed on or before 
December 31, 2009. We propose to amend Rule 312 to extend its 
application for one year. Under the proposed extension, the rule would 
apply to filings with respect to asset-backed securities filed on or 
before December 31, 2010.

DATES: Comments should be received on or before November 23, 2009.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to [email protected]. Please include 
File

[[Page 54768]]

Number S7-23-09 on the subject line; or
     Use the Federal Rulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number S7-23-09. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments 
are also available for public inspection and copying in the 
Commission's Public Reference Room, 100 F Street, NE, Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: John Harrington, Attorney-Adviser, 
Division of Corporation Finance, at (202) 551-3430, U.S. Securities and 
Exchange Commission, 100 F Street, NE., Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION:  We are proposing an amendment to Rule 312 
\1\ of Regulation S-T.\2\
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    \1\ 17 CFR 232.312.
    \2\ 17 CFR 232.10 et seq.
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I. Background and Discussion of the Proposed Amendment

    In December, 2004, we adopted new and amended rules and forms to 
address the registration, disclosure and reporting requirements for 
asset-backed securities (``ABS'') under the Securities Act of 1933 \3\ 
(the ``Securities Act'') and the Securities Exchange Act of 1934 \4\ 
(the ``Exchange Act'').\5\ As part of this rulemaking, we adopted 
Regulation AB,\6\ a new principles-based set of disclosure items 
forming the basis for disclosure with respect to ABS in both Securities 
Act registration statements and Exchange Act reports. Compliance with 
the revised rules was phased in; full compliance with the revised rules 
became effective January 1, 2006. One of the significant features of 
Regulation AB is Item 1105, which requires, to the extent material, 
static pool information to be provided in the prospectus included in 
registration statements for ABS offerings.\7\ While the disclosure 
required by Item 1105 depends on factors such as the type of underlying 
asset and materiality, the information required to be disclosed can be 
extensive. For example, a registrant may be required to disclose 
multiple performance metrics in periodic increments for prior 
securitized pools of the sponsor for the same asset type in the last 
five years.\8\
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    \3\ 15 U.S.C. 77a et seq.
    \4\ 15 U.S.C. 78a et seq.
    \5\ See Asset-Backed Securities, Release No. 33-8518 (December 
22, 2004) [70 FR 1506] (adopting release related to Regulation AB 
and other new rules and forms related to asset-backed securities) 
(hereinafter, the ``Adopting Release'').
    \6\ 17 CFR 229.1100 et seq.
    \7\ See Form S-1 and Form S-3 under the Securities Act. Static 
pool information indicates how groups, or static pools, of assets, 
such as those originated at different intervals, are performing over 
time. By presenting comparisons between originations at similar 
points in the assets lives, the data allows the detection of 
patterns that may not be evident from overall portfolio numbers and 
thus may reveal a more informative picture of material elements of 
portfolio performance and risk.
    \8\ 17 CFR 229.1105.
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    As described in the Adopting Release, in response to the 
Commission's proposal to require material static pool information in 
prospectuses for ABS offerings, many commenters representing both 
asset-backed issuers and investors requested flexibility in the 
presentation of such information. In particular, commenters noted that 
the required static pool information could include a significant amount 
of statistical information that would be difficult to file 
electronically on EDGAR as it existed at that time and difficult for 
investors to use in that format. Commenters accordingly requested the 
flexibility for asset-backed issuers to provide static pool information 
on an Internet Web site rather than as part of an EDGAR filing.\9\ In 
response to these comments, we adopted Rule 312 of Regulation S-T, 
which permits, but does not require, the posting of the static pool 
information required by Item 1105 on an Internet Web site under the 
conditions set forth in the rule.\10\ We recognized at the time that a 
Web-based approach might allow for the provision of the required 
information in a more efficient, dynamic and useful format than was 
currently feasible on the EDGAR system. At the same time, we explained 
that we continued to believe at some point for future transactions the 
information should also be submitted with the Commission in some 
fashion, provided investors continue to receive the information in the 
form they have requested. Accordingly, we adopted Rule 312 as a 
temporary filing accommodation applicable to filings filed on or before 
December 31, 2009.\11\ We explained that we were directing our staff to 
consult with the EDGAR contractor, EDGAR filing agents, issuers, 
investors and other market participants to consider how static pool 
information could be filed with the Commission in a cost-effective 
manner without undue burden or expense that still allows issuers to 
provide the information in a desirable format. We also noted, however, 
that it might be necessary, among other things, to extend the 
accommodation.\12\
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    \9\ See Adopting Release, Section III.B.4.b.
    \10\ 17 CFR 232.312(a). Instead of relying on Rule 312, an 
issuer can include information required by Item 1105 of Regulation 
AB physically in the prospectus or, if permitted, through 
incorporation by reference from an Exchange Act report.
    \11\ 17 CFR 232.312(a); see also Adopting Release, Section 
III.B.4.b.
    \12\ Adopting Release, Section III.B.4.b.
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    We are proposing to extend the temporary filing accommodation set 
forth in Rule 312 of Regulation S-T for one year so that it would apply 
to filings with respect to ABS filed on or before December 31, 2010. 
During the proposed extension, the existing requirements of Rule 312 
would continue to apply. Pursuant to these requirements, the registrant 
must disclose its intention to provide static pool information through 
a Web site in the prospectus included in the registration statement at 
the time of effectiveness and provide the specific Internet address 
where the static pool information is posted in the prospectus filed 
pursuant to Rule 424.\13\ The registrant must maintain such information 
on the Web site unrestricted and free of charge for a period of not 
less than five years, indicate the date of any updates or changes to 
the information, undertake to provide any person without charge, upon 
request, a copy of the information as of the date of the prospectus if 
a subsequent update or change is made to the information and retain all 
versions of the information provided on the Web site for a period of 
not less than five years in a form that permits delivery to an investor 
or the Commission. In addition, the registration statement for the ABS 
must contain an undertaking pursuant to Item 512(l) of Regulation S-K 
\14\ that the information provided on the Web site pursuant to Rule 312 
is deemed to be part of the prospectus included in the registration 
statement.\15\
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    \13\ 17 CFR 230.424.
    \14\ 17 CFR 229.512(l).
    \15\ 17 CFR 232.312. As we indicated in the Adopting Release, if 
the conditions of Rule 312 are satisfied, then the information will 
be deemed to be part of the prospectus included in the registration 
statement and thus subject to all liability provisions applicable to 
prospectuses and registration statements, including Section 11 of 
the Securities Act [15 U.S.C. 77k]. Adopting Release, Section 
III.B.4.b.

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[[Page 54769]]

    We believe that it is appropriate to extend the filing 
accommodation provided by Rule 312 before its expiration after December 
31, 2009. Based on the staff's experience since Rule 312 became 
effective in 2006, the vast majority of residential mortgage-backed 
security issuers and a significant portion of ABS issuers in other 
asset classes have relied on the accommodation provided by the rule to 
disclose static pool information on an Internet Web site. Furthermore, 
we believe that it remains the case that it could be difficult to file 
the information electronically on EDGAR as it exists today and 
difficult for investors to use in that format.
    Since the adoption of Rule 312 in December, 2004, technological 
advances and expanded use of the Internet have enabled the Commission 
to adopt additional rules incorporating electronic communications. The 
Commission continues to recognize that, in certain circumstances and 
under certain conditions, the Internet can present a reliable and cost-
effective alternative or supplement to traditional disclosure 
methods.\16\ On the other hand, we are mindful of the benefit of having 
information filed on the EDGAR system.
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    \16\ See, e.g., Internet Availability of Proxy Materials, 
Release No. 34-55146 (Jan. 22, 2007) [72 FR 4148] (adopting release 
for voluntary E-Proxy rules) and Internet Availability of Proxy 
Materials, Release No. 34-52926 (December 8, 2005) [70 FR 74598] 
(proposing release for voluntary E-Proxy rules). See also Enhanced 
Disclosure and New Prospectus Delivery Option for Registered Open-
End Management Investment Companies, Release No. 33-8998, Section 
III.A.4.c (Jan. 13, 2009) [74 FR 4546] (adopting Item 11(g)(2) of 
Form N-1A under the Investment Company Act of 1940 [15 U.S.C. 80a-1 
et seq.] which allows exchange-traded funds to provide premium/
discount information on a Web site rather than in a prospectus or 
annual report) and Securities Offering Reform, Release No. 33-8591, 
Section VI.B.1 (July 19, 2005) [70 FR 44722] (adopting ``access 
equals delivery'' model for final prospectus delivery).
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    The staff of the Division of Corporation Finance is currently 
engaged in a broad review of the Commission's regulation of ABS 
including disclosure, offering process, and reporting of asset-backed 
issuers. Along with this review, the staff of the Division of 
Corporation Finance is continuing to explore whether a filing mechanism 
for static pool information that fulfills the objectives identified 
above is feasible. As the staff considers this issue further, we 
believe it is appropriate to extend the temporary filing accommodation 
for one year. We believe a proposal for a long-term solution for 
providing static pool disclosure would be better considered together 
with other possible proposals to revise the regulations governing the 
offer and sale of ABS. The proposed one-year extension of Rule 312 is 
intended to provide time to enable us to proceed in this manner.
    We are soliciting comments in this release about current practice 
and potential alternatives for providing static pool disclosure and 
will consider the responses we receive in determining whether to extend 
Rule 312 or to address the issue more broadly as part of a package of 
ABS proposals.

Request for Comment

    We request and encourage any interested person to submit comments 
regarding the proposed amendment described above. In particular, we 
solicit comment on the following questions:
     Is an extension of the filing accommodation appropriate? 
What would be the consequences if the accommodation lapsed on December 
31, 2009 and static pool information was required in an EDGAR filing 
beginning January 1, 2010?
     How could static pool information be filed with the 
Commission in a cost-effective manner that continues to allow the 
information to be provided in a format that promotes utility and 
functionality? Are there alternative filing mechanisms that could 
replace or supplement Rule 312?
     Have investors or other market participants had any 
difficulties with locating, accessing, viewing or analyzing static pool 
information posted on an Internet Web site pursuant to the filing 
accommodation provided by Rule 312 of Regulation S-T? Has the 
information remained on the Web site for the required duration and have 
updates and changes been appropriately reflected?
     Have issuers found that the Internet Web site posting 
accommodation provided by Rule 312 has enabled them to provide the 
required static pool information in a cost-effective, efficient and 
useful manner? Have issuers encountered any issues or problems with 
Internet Web site posting pursuant to Rule 312? How should we address 
those issues or problems?
     Would the proposed one-year extension present particular 
problems for investors? Would a shorter or more narrowly tailored 
extension ameliorate those concerns?
     Should the filing accommodation be extended for longer 
than one year, for example, two, three or five years, or made 
permanent? If so, are there any revisions to the rule that should be 
made?
     Are there any other changes we should consider making to 
Rule 312 of Regulation S-T?

Paperwork Reduction Act

    Rule 312 of Regulation S-T was adopted along with other new and 
amended rules and forms to address the registration, disclosure and 
reporting requirements for ABS under the Securities Act and the 
Exchange Act. In connection with this prior rulemaking, we submitted a 
request for approval of the ``collection of information'' requirements 
contained in the amendments and rules to the Office of Management and 
Budget (``OMB'') in accordance with the Paperwork Reduction Act of 1995 
(``PRA'').\17\ OMB approved these requirements.\18\
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    \17\ 44 U.S.C. 3501 et seq.
    \18\ The collections of information to which Rule 312 of 
Regulation S-T relates from ``Form S-1'' (OMB Control No. 3235-0065) 
and ``Form S-3'' (OMB Control No. 3235-0073).
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    Item 1105 of Regulation AB \19\ requires certain static pool 
information, to the extent material, to be provided in prospectuses 
included in registration statements for ABS offerings.\20\ Rule 312 is 
a temporary filing accommodation that permits the posting of the static 
pool information required by Item 1105 on an Internet Web site under 
the conditions set forth in the rule.\21\ The proposed amendment to 
Rule 312 extends the existing temporary filing accommodation provided 
by the rule for one additional year. As is the case today, issuers may 
choose whether or not to take advantage of the accommodation. The 
conditions of Rule 312 remain otherwise unchanged. The disclosure 
requirements themselves, which are contained in Forms S-1 and S-3 under 
the Securities Act and require the provision of the information set 
forth in Item 1105 of Regulation AB, also remain unchanged. Therefore, 
the proposed amendment, if adopted, will not result in an increase or 
decrease in the costs and burdens imposed by the ``collection of 
information'' requirements previously approved by the OMB.
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    \19\ 17 CFR 229.1105.
    \20\ See Form S-1 and Form S-3 under the Securities Act.
    \21\ 17 CFR 232.312(a).
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III. Cost-Benefit Analysis

    In this section, we examine the benefits and costs of our proposed 
amendment. We request that commenters provide views and supporting 
information as to the benefits and costs associated with the

[[Page 54770]]

proposal. We seek estimates of these costs and benefits, as well as any 
costs and benefits not already identified.

A. Benefits

    We adopted the filing accommodation provided by Rule 312 of 
Regulation S-T because commenters requested flexibility in the 
presentation of required static pool information. Given the large 
amount of statistical information involved, commenters argued for a 
Web-based approach that would allow issuers to present the information 
in an efficient manner and with greater functionality and utility than 
might be available if an EDGAR filing was required. We believe this 
greater functionality and utility has enhanced an investor's ability to 
access and analyze the static pool information and also removed the 
burden on issuers of duplicating the information in each prospectus as 
well as easing the burdens of updating such information.\22\ As we 
discussed in the Adopting Release, since the information is deemed to 
be part of the prospectus included in the registration statement, the 
rule is designed to give investors access to accurate and reliable 
information.
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    \22\ See Section I above and Adopting Release, Section V.D.
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    By extending the accommodation provided by Rule 312, these benefits 
to both issuers and investors would continue to apply. As discussed 
above, many ABS issuers rely on Rule 312 to provide static pool 
information on an Internet Web site rather than in an EDGAR filing.\23\ 
We do not believe we can implement an alternative filing mechanism by 
the end of 2009 that would meet the objectives of both issuers and 
investors to present static pool information in an efficient, cost-
effective form that would provide investors utility and functionality 
in terms of accessing and analyzing that information. Therefore, if we 
do not amend Rule 312 to extend its application, static pool 
information would be required in EDGAR filings beginning on January 1, 
2010. We believe this would result in costs for issuers as they attempt 
to adjust their procedures in a short period of time in order to 
present the information in a format acceptable to the EDGAR system and 
could result in costs to investors if the information filed on EDGAR 
was presented in a less useful format.
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    \23\ See Section I above.
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    By extending Rule 312, we seek to avoid these potentially negative 
effects for issuers and investors as we continue to explore the best 
format in which to require the filing of static pool information. As 
indicated above, the staff of the Division of Corporation Finance is 
considering this issue along with other proposals addressing the 
disclosure, offering process and reporting of asset-backed issuers.

B. Costs

    We do not believe a one-year extension of the Rule 312 
accommodation would impose any new or increased costs on issuers. In 
the Cost-Benefit Analysis section of the Adopting Release, we noted 
that asset-backed issuers electing the Web-based accommodation provided 
by Rule 312 would incur costs related to the maintenance and retention 
of static pool information posted on a Web site and might also incur 
start-up costs.\24\ While it is likely that certain of those costs 
would continue to impact asset-backed issuers that elect the Web-based 
approach during the extension period, we do not believe our proposed 
amendment would impose any new or increased costs for asset-backed 
issuers because it does not change any other conditions to the 
accommodation or the underlying filing and disclosure obligations. As a 
result of the proposed extension of the accommodation, asset-backed 
issuers would be able to continue their current practices for an 
additional year.
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    \24\ See Adopting Release, Section V.D.
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    For investors, there may be costs associated with the static pool 
information not being electronically filed with the Commission. For 
example, when information is electronically filed with the Commission, 
investors and staff can access the information from a single, 
centralized location, the EDGAR Web site. We think these costs are 
mitigated by the fact that ABS issuers relying on the Rule 312 
accommodation must ensure that the prospectus for the offering contains 
the Internet Web site address where the static pool information is 
posted, the Web site must be unrestricted and free of charge, such 
information must remain on the Internet Web site for five years with 
any changes clearly indicated and the issuer must undertake to provide 
the information to any person free of charge, upon request, if a 
subsequent update or change is made. Furthermore, because the 
information is deemed included in the prospectus under Rule 312, it is 
subject to all liability provisions applicable to prospectuses and 
registration statements.
    Investors and issuers may have incurred costs to adjust their 
processes in anticipation of the lapse of the Rule 312 accommodation 
and potential reversion to a requirement to file static pool 
information on EDGAR. In this case, benefits to investors or issuers of 
not having to change their procedures regarding static pool reporting 
in a short time frame would be diminished by any costs already incurred 
in anticipation of the change. We believe such anticipatory action and 
any associated costs are minimal.
    We request comment on the amount of any additional costs issuers or 
investors may incur as a result of the proposed amendment.

IV. Small Business Regulatory Enforcement Fairness Act

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996, or ``SBREFA,'' \25\ we solicit data to determine whether 
the proposal constitutes a major rule. Under SBREFA, a rule is 
considered ``major'' where, if adopted, it results or is likely to 
result in:
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    \25\ 5 U.S.C. 603.
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     An annual effect on the economy of $100 million or more 
(either in the form of an increase or a decrease);
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effects on competition, investment or 
innovation.
    We request comment on the potential impact of the proposed 
amendment on the U.S. economy on an annual basis, any potential 
increase in costs or prices for consumers or individual industries, and 
any potential effect on competition, investment or innovation. 
Commenters are requested to provide empirical data and other factual 
support for their views if possible.

V. Consideration of Impact on the Economy, Burden on Competition and 
Promotion of Efficiency, Competition and Capital Formation

    Section 2(b) of the Securities Act requires us, when engaging in 
rulemaking where we are required to consider or determine whether an 
action is necessary or appropriate in the public interest, to also 
consider whether the action will promote efficiency, competition, and 
capital formation.
    As discussed in greater detail above, Rule 312 of Regulation S-T 
was adopted as a temporary filing accommodation so that issuers of ABS 
could present static pool information on an Internet Web site. The 
proposed amendment to Rule 312 of Regulation S-T extends its 
application for one year. We are not proposing changes to the 
conditions of Rule 312 or to the disclosure obligations

[[Page 54771]]

to which it applies. We do not believe that a one-year extension would 
impose a burden on competition. We also believe the extension of the 
filing accommodation would continue to promote efficiency and capital 
formation by permitting ABS issuers to disclose static pool information 
in a format that is more useful to investors and cost-effective and not 
unduly burdensome for asset-backed issuers.
    We request comment on whether the proposed amendment, if adopted, 
would promote efficiency, competition, and capital formation. 
Commenters are requested to provide empirical data and other factual 
support for their view to the extent possible.

VI. Regulatory Flexibility Analysis Certification

    The Commission hereby certifies pursuant to 5 U.S.C. 605(b) that 
the proposed amendment contained in this release, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The proposal relates to the disclosure requirements for ABS 
in Securities Act registration statements. Securities Act Rule 157 \26\ 
defines an issuer, other than an investment company, to be a ``small 
business'' or ``small organization'' if it had total assets of $5 
million or less on the last day of its most recent fiscal year. In 
2004, when we proposed the new and amended rules and forms to address 
the registration, disclosure and reporting requirements for ABS, we 
certified that the proposals would not have a significant economic 
impact on a substantial number of small entities. As the depositor and 
issuing entity are most often limited purpose entities in an ABS 
transaction, we focused on the sponsor in analyzing the potential 
impact of the proposals under the Regulatory Flexibility Act. The staff 
analyzed sponsors that conducted registered public offerings of ABS 
during 2003. No sponsor had total assets of $5 million or less.\27\ 
Based on staff experience, we continue to believe that few, if any, 
sponsors are small entities. In addition, even if some sponsors are 
small entities, the proposed amendment to Rule 312 would not have a 
significant economic impact on any such entities because it only 
extends a temporary filing accommodation that is currently in effect. 
As discussed above in Section III, we do not believe the proposed 
extension would impose any new or increased costs on ABS issuers. 
Accordingly, we do not believe that the extension, if adopted, would 
have a significant economic impact on a substantial number of small 
entities.
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    \26\ 17 CFR 230.157.
    \27\ Asset-Backed Securities, Release No. 33-8419 (May 3, 2004) 
[69 FR 26650] (proposing release related to Regulation AB and other 
new rules and forms related to asset-backed securities).
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    We solicit written comments regarding this certification. We 
request comment on whether the proposals could have an effect that we 
have not considered. We request that commenters describe the nature of 
any impact on small entities and provide empirical data to support the 
extent of the impact.

VII. Statutory Authority and Text of the Proposed Amendment

    The amendment described is being proposed under the authority set 
forth in Sections 6, 7, 10, 19 and 28 of the Securities Act of 1933 (15 
U.S.C. 77f, 77g, 77j, 77s and 77z-3).

List of Subjects in 17 CFR Part 232

    Reporting and recordkeeping requirements, Securities.

Text of the Proposed Amendment

    For the reasons set out in the preamble, the Commission proposes to 
amend title 17, chapter II, of the Code of Federal Regulations as 
follows:

PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR 
ELECTRONIC FILINGS

    1. The authority citation for part 232 continues to read, in part, 
as follows:

    Authority:  15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 
80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.
* * * * *


Sec.  232.312  [Amended]

    2. Amend Sec.  232.312 by removing ``December 31, 2009'' and in its 
place adding ``December 31, 2010'' in the first sentence of paragraph 
(a).
* * * * *

    Dated: October 19, 2009.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
 [FR Doc. E9-25496 Filed 10-22-09; 8:45 am]
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