[Federal Register Volume 76, Number 20 (Monday, January 31, 2011)]
[Proposed Rules]
[Pages 5307-5317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1922]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 230, 239, 270, and 275

[Release Nos. 33-9177; IA-3144; IC-29572; File No. S7-04-11]
RIN 3235-AK90


Net Worth Standard for Accredited Investors

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: We are proposing amendments to the accredited investor 
standards in our rules under the Securities Act of 1933 to reflect the 
requirements of Section 413(a) of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act. Section 413(a) requires the definitions of 
``accredited investor'' in our Securities Act rules to exclude the 
value of a person's primary residence for purposes of determining 
whether the person qualifies as an ``accredited investor'' on the basis 
of having a net worth in excess of $1 million. This change to the net 
worth standard was effective upon enactment by operation of the Dodd-
Frank statute, but Section 413(a) also requires us to revise our 
current Securities Act rules to reflect the new standard. We also are 
proposing technical amendments to Form D and a number of our rules to 
conform them to the language of Section 413(a) and to correct cross-
references to former Section 4(6) of the Securities Act, which was 
renumbered Section 4(5) by Section 944 of the Dodd-Frank Act.

DATES: Comments should be received on or before March 11, 2011.

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 Number S7-04-11 on the subject line; or
     Use the Federal eRulemaking 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 S7-04-11. 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 Web site viewing and printing 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: Anthony G. Barone, Special Counsel, or 
Gerald J. Laporte, Chief, Office of Small Business Policy, at (202) 
551-3460, Division of Corporation Finance, U.S. Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are requesting public comment on proposed 
amendments to Rule 144(a)(3)(viii),\1\ Rule 155(a),\2\ Rule 215,\3\ and 
Rule 501(a)(5) \4\ of Regulation D \5\ of our general rules under the 
Securities Act of

[[Page 5308]]

1933 (``Securities Act''); \6\ Rule 500(a)(1) \7\ of our Securities Act 
form rules; Form D \8\ under the Securities Act; Rule 17j-1(a)(8) \9\ 
under the Investment Company Act of 1940; \10\ and Rule 204A-
1(e)(7)\11\ under the Investment Advisers Act of 1940.\12\
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    \1\ 17 CFR 230.144(a)(3)(viii).
    \2\ 17 CFR 230.155(a).
    \3\ 17 CFR 230.215.
    \4\ 17 CFR 230.501(a)(5).
    \5\ 17 CFR 230.501 through 230.508.
    \6\ 15 U.S.C. 77a et seq.
    \7\ 17 CFR 239.500(a)(1).
    \8\ 17 CFR 239.500.
    \9\ 17 CFR 270.17j-1(a)(8).
    \10\ 15 U.S.C. 80a-1 et seq.
    \11\ 17 CFR 275.204A-1(e)(7).
    \12\ 15 U.S.C. 80b-1 et seq.
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Table of Contents

I. Background and Summary
II. Discussion
    (A) Net Worth Standard for Accredited Investors
    (1) Proposed Language
    (2) Other Issues Considered
    (B) Technical and Conforming Amendments
III. General Request for Comment
IV. Paperwork Reduction Act
V. Cost-Benefit Analysis
VI. Consideration of Burden on Competition and Promotion of 
Efficiency, Competition and Capital Formation
VII. Initial Regulatory Flexibility Act Analysis
VIII. Small Business Regulatory Enforcement Fairness Act
IX. Statutory Authority and Text of Proposed Amendments

I. Background and Summary

    The Dodd-Frank Wall Street Reform and Consumer Protection Act (the 
``Dodd-Frank Act'') became law on July 21, 2010.\13\ Among other 
things, the Dodd-Frank Act changed certain legal requirements governing 
private and other limited offers and sales of securities without 
registration under the Securities Act.
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    \13\ Public Law 111-203, 124 Stat. 1376.
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    Section 413(a) of the Dodd-Frank Act requires us to adjust the net 
worth standards for accredited investors in our rules under the 
Securities Act.\14\ These standards delineate investors to whom issuers 
may sell securities in specified private and other limited offerings 
without registration of the offering under the Securities Act. The 
Dodd-Frank Act requires us to adjust the net worth standards in these 
rules that apply to a natural person individually, or jointly with the 
spouse of that person, to ``more than $1,000,000 * * * excluding the 
value of the primary residence of such natural person.'' \15\ 
Previously, these standards required a minimum net worth of more than 
$1,000,000, but permitted the primary residence to be included in 
calculating net worth.\16\ Under Section 413(a), the change to remove 
the value of the primary residence from the net worth calculation 
became effective upon enactment of the Dodd-Frank Act.
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    \14\ Id. Sec.  413(a), 124 Stat. 1577 (to be codified at 15 
U.S.C. 77b note).
    \15\ The text of Section 413(a) states that: ``The Commission 
shall adjust any net worth standard for an accredited investor, as 
set forth in the rules of the Commission under the Securities Act of 
1933, so that the individual net worth of any natural person, or 
joint net worth with the spouse of that person, at the time of 
purchase, is more than $1,000,000 (as such amount is adjusted 
periodically by rule of the Commission), excluding the value of the 
primary residence of such natural person, except that during the 4-
year period that begins on the date of enactment of this Act, any 
net worth standard shall be $1,000,000, excluding the value of the 
primary residence of such natural person.'' Id.
    \16\ See 17 CFR 230.215(e), 230.501(a)(5) (2010).
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    In addition, Section 413(b) specifically authorizes us to undertake 
a review of the definition of the term ``accredited investor'' as it 
applies to natural persons, and requires us to undertake a review of 
the definition ``in its entirety'' every four years, beginning four 
years after enactment of the Dodd-Frank Act. We are also authorized to 
engage in rulemaking to make adjustments to the definition after each 
such review. We are not proposing to make revisions to the definitions 
of ``accredited investor'' that are not required by the Dodd-Frank Act 
at this time, but may consider doing so in future rulemaking. Section 
415 of the Dodd-Frank Act requires the Comptroller General of the 
United States to conduct a ``Study and Report on Accredited Investors'' 
examining ``the appropriate criteria for determining the financial 
thresholds or other criteria needed to qualify for accredited investor 
status and eligibility to invest in private funds.'' \17\ The study is 
due three years after enactment of the legislation. We expect that the 
results of this study will inform any future rulemaking in this area 
that takes place after the study is completed.\18\
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    \17\ Public Law 111-203, Sec.  415, 124 Stat. 1376, 1578 (to be 
codified at 15 U.S.C. 80b-18c).
    \18\ To facilitate public input on its Dodd-Frank Act rulemaking 
before issuance of rule proposals, the Commission has provided a 
series of e-mail links, organized by topic, on its Web site at 
http://www.sec.gov/spotlight/regreformcomments.shtml. In this 
release, we refer to comment letters we received in response to this 
invitation as ``advance comment letters.'' The advance comment 
letters we received in anticipation of this rule proposal, 
concerning revisions to the accredited investor net worth standards 
under Section 413(a) of the Dodd-Frank Act, are available at http://www.sec.gov/comments/df-title-iv/accredited-investor/accredited-investor.shtml. One of those comment letters, from the North 
American Securities Administrators Association, Inc. (``NASAA''), 
urged us to modify the accredited investor definition to incorporate 
an ``investments owned'' standard. See Advance Comment Letter from 
NASAA (Nov. 4, 2010) (available at http://www.sec.gov/comments/df-title-iv/accredited-investor/accredited-investor-11.pdf). This topic 
may be considered in connection with our future review of the 
definition of ``accredited investor'' and any resultant rulemaking.
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    Section 944 of the Dodd-Frank Act deleted former Section 4(5) of 
the Securities Act and renumbered former Section 4(6) as Section 
4(5).\19\ Former Section 4(6) provides an exemption from the 
registration requirements of the Securities Act for certain limited 
offerings to accredited investors if there is no advertising or public 
solicitation by the issuer. Our proposals include technical corrections 
to cross-references necessitated by this change.\20\
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    \19\ Public Law 111-203, Sec.  944, 124 Stat. 1376, 1897 
(renumbering Securities Act Section 4(6), 15 USC 77d(6) (2006), as 
Section 4(5), 15 USC 77d(5)). Former Section 4(5) exempted 
transactions involving mortgages with a minimum aggregate sales 
price per purchaser of $250,000, as well as the resales of those 
securities. 15 USC 77d(6) (2006).
    \20\ Section 926 of the Dodd-Frank Act requires the Commission 
to revise the standards for offerings under Rule 506 of Regulation 
D, 17 CFR 230.506, to impose certain ``bad actor'' 
disqualifications. We will propose those changes in a subsequent 
rulemaking.
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II. Discussion

(A) Net Worth Standard for Accredited Investors

(1) Proposed Language
    As discussed above, Section 413(a) of the Dodd-Frank Act requires 
us to adjust the net worth standards for an accredited investor in our 
Securities Act rules that apply to any natural person individually, or 
jointly with the spouse of that person, to ``more than $1,000,000 * * * 
excluding the value of the primary residence of such natural person.'' 
Previously, these standards required a minimum net worth of more than 
$1,000,000, but permitted the primary residence to be included in 
calculating net worth. The relevant rules are Securities Act Rules 501 
and 215.\21\
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    \21\ 17 CFR 230.501(a)(5) and 230.215(e) (2010).
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    Rule 501 sets the standards for accredited investor status under 
certain exemptive provisions for private and other limited offerings 
under Regulation D. Rule 215 defines the term ``accredited investor'' 
under Section 2(a)(15) of the Securities Act.\22\ Section 2(a)(15) and 
Rule 215 set the standards for accredited investor status under Section 
4(5) of the Securities Act, formerly Section 4(6).\23\ While Regulation 
D is frequently relied

[[Page 5309]]

upon,\24\ exclusive reliance on Section 4(5) is rare.\25\
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    \22\ 15 U.S.C. 77b(a)(15).
    \23\ 15 U.S.C. 77d(5). As discussed above, former Section 4(6) 
of the Securities Act was renumbered Section 4(5) by Section 944 of 
the Dodd-Frank Act.
    \24\ In fiscal year 2010, we received 16,856 initial filings on 
Form D notifying us of a claim of exemption under Rules 
504(b)(1)(iii), 505 and 506, 17 CFR 230.504(b)(1)(iii), 230.505 and 
230.506, the three exemptive provisions in Regulation D where 
accredited investor status affects the availability of an exemption. 
This represented 96% of the 17,593 initial Form D filings we 
received for that year.
    \25\ In fiscal year 2010, we received 900 initial filings on 
Form D notifying us of a claim of exemption under Section 4(5), 
formerly Section 4(6), representing 5% of the 17,593 initial Form D 
filings we received for that year. Only 66 of those filings, or less 
than 0.4%, claimed the Section 4(5) exemption exclusively. The other 
844 of these Form D filings indicated that both Section 4(5) and a 
Regulation D exemption were being relied upon.
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    Neither the Securities Act nor our rules promulgated under the 
Securities Act define the term ``net worth.'' The conventional or 
commonly understood meaning of the term is the difference between the 
value of a person's assets and the value of the person's 
liabilities.\26\
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    \26\ See, e.g., Interpretive Release on Regulation D, Release 
No. 33-6455 (Mar. 3, 1983) [48 FR 10045] (Questions 21 and 45). See 
also Barron's Financial Guides, Dictionary of Finance and Investment 
Terms, at 457 (7th ed. 2006).
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    The proposed amendments would set the same standard under both Rule 
501 and Rule 215 for individuals to qualify as accredited investors on 
the basis of net worth, either individually or with their spouses.\27\ 
The amendments would implement Section 413(a) by adding to the relevant 
rules the language from Section 413(a)--``excluding the value of the 
primary residence of such natural person''--after the requirement that 
the investor's net worth ``exceeds $1,000,000'' currently in the rules.
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    \27\ Historically, we have maintained identical accredited 
investor standards under both rules.
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    In addition, our proposed amendments would add, after the Dodd-
Frank statutory language, the phrase ``calculated by subtracting from 
the estimated fair market value of the property the amount of debt 
secured by the property, up to the estimated fair market value of the 
property.''As so amended, the accredited investor net worth standards 
in the relevant rules would define as an accredited investor:

    Any natural person whose individual net worth, or joint net 
worth with that person's spouse, at the time of purchase, exceeds 
$1,000,000, excluding the value of the primary residence of such 
natural person, calculated by subtracting from the estimated fair 
market value of the property the amount of debt secured by the 
property, up to the estimated fair market value of the property.

    The purpose of adding the phrase introduced by the words 
``calculated by'' is to clarify that net worth is calculated by 
excluding only the investor's net equity in the primary residence.\28\
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    \28\ Soon after enactment of Section 413(a), the staff of the 
Division of Corporation Finance issued the following interpretation:
    Question: Under Section 413(a) of the Dodd-Frank Act, the net 
worth standard for an accredited investor, as set forth in 
Securities Act Rules 215 and 501(a)(5), is adjusted to delete from 
the calculation of net worth the ``value of the primary residence'' 
of the investor. How should the ``value of the primary residence'' 
be determined for purposes of calculating an investor's net worth?
    Answer: Section 413(a) of the Dodd-Frank Act does not define the 
term ``value,'' nor does it address the treatment of mortgage and 
other indebtedness secured by the residence for purposes of the net 
worth calculation. As required by Section 413(a) of the Dodd-Frank 
Act, the Commission will issue amendments to its rules to conform 
them to the adjustment to the accredited investor net worth standard 
made by the Act. However, Section 413(a) provides that the 
adjustment is effective upon enactment of the Act. When determining 
net worth for purposes of Securities Act Rules 215 and 501(a)(5), 
the value of the person's primary residence must be excluded. 
Pending implementation of the changes to the Commission's rules 
required by the Act, the related amount of indebtedness secured by 
the primary residence up to its fair market value may also be 
excluded. Indebtedness secured by the residence in excess of the 
value of the home should be considered a liability and deducted from 
the investor's net worth.
    Securities Act Rules Compliance & Disclosure Interpretation, 
Question No. 255.47 (July 23, 2010) (available at http://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm#255.47).
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    We believe this approach is appropriate because it is consistent 
with, and advances the regulatory purposes of, Section 413(a). It 
reduces the net worth measure by the amount or ``value'' that the 
primary residence contributed to the investor's net worth before 
enactment of Section 413(a). Consequently, it removes the value of the 
primary residence from net worth without reducing net worth by more 
than the amount contributed by the residence before the amendment.\29\
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    \29\ Moreover, this approach to calculating net worth is 
generally consistent with the manner in which net worth has 
conventionally been determined since the adoption of Regulation D in 
1982, which served as the background for Congress when it enacted 
Section 413(a).
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    We note that some of our existing rules follow an approach similar 
to our proposal in calculating net worth. For example, Rule 701 under 
Regulation R, which provides for the exclusion of the value of a 
person's primary residence in applying a net worth standard, provides 
for the exclusion of ``associated liabilities,'' such as mortgages on 
the property.\30\
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    \30\ 17 CFR 247.701(d)(1)(A) (defining ``high net worth 
customer'' as a natural person who, individually or jointly with his 
or her spouse, has at least $5 million in net worth ``excluding the 
primary residence and associated liabilities of the person and, if 
applicable, his or her spouse''). Rule 701 was jointly adopted by 
the Securities and Exchange Commission and the Federal Reserve Board 
after consultation with and the concurrence of the Office of the 
Comptroller of the Currency, the Federal Deposit Insurance 
Corporation and the Office of Thrift Supervision. See Definitions of 
Terms and Exemptions Relating to the ``Broker'' Exception for Banks, 
Release No. 34-56501 (Sept. 24, 2007) [72 FR 56514 (Oct. 3, 2007)]. 
In addition, Rule 17a-3(a)(17)(i)(A) under the Exchange Act requires 
exchange members, brokers, and dealers to make and keep records of 
accounts of natural persons, including a record of the person's net 
worth ``excluding the value of primary residence.'' 17 CFR 240.17a-
3(a)(17)(i)(A). Our Division of Trading and Markets, which 
administers this rule, interprets this provision to exclude the 
associated liabilities of the primary residence for purposes of the 
net worth test.
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    Under our proposed amendments, if an investor with a net worth of 
$2 million (calculated in the conventional manner by subtracting from 
the investor's total assets, including primary residence, the 
investor's total liabilities, including indebtedness secured by the 
residence) has a primary residence with an estimated fair market value 
of $1.2 million and a mortgage loan of $800,000, the investor's net 
worth for purposes of the new accredited investor standard would be 
$1.6 million. Before enactment of Section 413(a), the primary residence 
would have contributed a net amount of $400,000 to the investor's net 
worth for purposes of the accredited investor net worth standard--the 
value of the primary residence ($1.2 million) less the mortgage loan 
($800,000). Under the proposed rule, exclusion of the value of the 
primary residence would reduce the investor's net worth by the same 
amount of $400,000.
    We believe our approach is preferable to possible alternative 
interpretations. One alternative interpretation, excluding the fair 
market value of the residence without netting out the secured 
indebtedness, would reduce the net worth of any investor who has a 
mortgage by more than the amount that the primary residence contributed 
to the investor's net worth before enactment of Section 413(a). In the 
example above, if the new standard did not allow exclusion of the 
associated indebtedness, removal of the primary residence would reduce 
the investor's net worth by $1.2 million, for a revised net worth of 
$800,000, since the entire fair market value of the house ($1.2 
million) would be subtracted from the investor's net worth of $2 
million and the $800,000 mortgage loan would still be included as a 
liability in the calculation.
    We believe that following this alternative approach and reducing 
the net worth by the value of the primary residence without excluding 
associated indebtedness would not accord with the manner in which net 
worth was determined before enactment of Section

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413(a).\31\ Absent legislative history suggesting Section 413(a) was 
clearly intended to be implemented in that fashion, we believe our 
proposed approach is appropriate and consistent with the purpose of 
Section 413(a)--to remove the ``value of the primary residence'' from 
the calculation of net worth for accredited investor 
determinations.\32\
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    \31\ In addition, this alternative approach would also result in 
a substantially greater reduction in the pool of accredited 
investors. Using data from the 2007 Federal Reserve Board Survey of 
Consumer Finances, the latest data available, our Division of Risk, 
Strategy and Financial Innovation estimates that 10,496,312 of the 
116,122,128 U.S. households (9.04%) qualified for accredited 
investor status on the basis of the net worth standard before it was 
modified by Section 413(a) of the Dodd-Frank Act; 7,604,374 (6.55%) 
would have qualified on the basis of the net worth standard after 
modification based on Section 413(a), as interpreted by our proposed 
approach to exclude from the net worth calculation both the 
estimated fair market value of the primary residence and all 
indebtedness secured by the residence up to the fair market value of 
the property; and 6,858,335 (5.91%) would have qualified if we 
adopted a standard based on the alternative interpretation of 
Section 413(a) to exclude from the net worth calculation the fair 
market value of the primary residence but not any indebtedness 
secured by the residence. More information regarding the survey may 
be obtained at http://www.federalreserve.gov/pubs/oss/oss2/scfindex.html. See also note 49 below and accompanying text.
    \32\ Section 413(a) was one element of an amendment introduced 
on the floor of the Senate and adopted by voice vote. See 156 Cong. 
Rec. S3817 (daily ed. May 17, 2010). The amendment, as explained by 
Senator Dodd, id. at S3813, would (1) ``disqualify felons and other 
`bad actors' who have violated Federal and State securities laws 
from continuing to take advantage of the rule 506 private placement 
process,'' (2) ``amend the `accredited investor' wealth threshold by 
excluding the value of an investor's primary residence,'' and (3) 
direct the SEC ``to review the [accredited investor] financial 
standards at least [every] 4 years,'' and replaced a provision that 
would have required the Commission to adjust both the net worth and 
the income standards for accredited investors to reflect inflation 
from the date of their determination in 1982 to the date of 
enactment of the Dodd-Frank Act in 2010. See Amendment as Substitute 
No. 3789 to S. 3217, 111th Cong., 2d Sess. Sec.  412 (available at 
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3217as.txt.pdf). The legislative history does 
not suggest that the amount of associated mortgage debt should not 
also be deleted in calculating net worth.
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    Under our proposed amendments, indebtedness secured by the primary 
residence would be netted against the value of the primary residence 
only up to the fair market value of the property. For example, if an 
investor with a net worth of $2 million has a primary residence with an 
estimated fair market value of $600,000 and secured indebtedness of 
$800,000, a $600,000 portion of the secured indebtedness would be 
netted against the entire $600,000 value of the house, so the 
investor's net worth for purposes of the new accredited investor 
standard would remain at $2 million. The $200,000 in secured 
indebtedness in excess of the value of the property would already have 
been accounted for (i.e., subtracted from the value of other assets) in 
determining the investor's net worth.
    In comparison, another possible interpretation of Section 413(a) 
would be to exclude from net worth both the fair market value of the 
primary residence and all indebtedness secured by the primary 
residence, regardless of whether the indebtedness exceeds the fair 
market value of the property. This alternative interpretation is the 
same as our proposal when the value of the property exceeds the secured 
indebtedness, but provides a different result if the amount of secured 
debt exceeds the value of the property (i.e., the case of an underwater 
mortgage). For example, under this interpretation, if an investor with 
a net worth of $2 million has a primary residence with an estimated 
fair market value of $600,000 and a mortgage loan of $800,000 and no 
other secured indebtedness, the investor's net worth for purposes of 
the new accredited investor standard would be $2,200,000. Net worth is 
effectively increased over the conventional net worth calculation by 
$200,000 (the amount the underwater mortgage exceeds the value of the 
property). We do not believe, however, that it would be appropriate for 
us to implement Section 413(a) in a way that results in increased net 
worth (compared to a conventional calculation) for investors with 
underwater mortgages.
    As noted above, the requirement to exclude the value of the primary 
residence became operative when the statute was enacted. Therefore, we 
are not making any special provision for the transition to the new 
requirement. We are nevertheless specifically requesting comment below 
on whether some transition provisions would be appropriate.
(2) Other Issues Considered
    We considered a number of issues described below, as to which the 
proposed amendments reflect our preliminary determinations. These 
issues are the subject of specific requests for comment at the end of 
this section.
    Defining ``Primary Residence.'' We considered proposing amendments 
that would have defined the term ``primary residence'' for purposes of 
the rules we are amending. While we are soliciting comment on whether a 
definition should be added to the rule, the proposal does not contain a 
definition, consistent with our past policies in this area,\33\ and in 
an attempt to avoid unnecessary complexity.\34\
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    \33\ None of our three other rules that use the term ``primary 
residence'' have a definition of the term. See 17 CFR 240.17a-
3(a)(17)(i)(A), 17 CFR 247.701(d)(1)(A) & 17 CFR 210.2-
01(c)(1)(ii)(A)(4). Regulation D also does not define the similar 
term ``principal residence,'' as used in Rule 501(e)(1)(i) of 
Regulation D. 17 CFR 230.501(e)(1)(i). There, Regulation D uses the 
term ``principal residence'' to exclude any purchasers who are 
relatives or spouses of the purchaser and who share the same 
principal residence as the purchaser for purposes of calculating the 
number of purchasers in a Regulation D offering. As explained below, 
we propose to change this reference from ``principal residence'' to 
``primary residence'' so that it conforms to the terminology of the 
Dodd-Frank Act. See note 44 below and accompanying text.
    \34\ We followed this approach when we adopted Regulation D 
originally and decided not to define the term ``income,'' an element 
of another of our accredited investor standards. At the time, we 
explained that, ``[r]ather than adopting a definition [of the term 
``income,'' we] determined to utilize a flexible approach'' to avoid 
problems with a defined term. Revision of Certain Exemptions From 
Registration for Transactions Involving Limited Offers and Sales, 
Release No. 33-6389 (Mar. 8, 1982) [47 FR 11251, 11255 (Mar. 18, 
1982)].
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    Issuers and investors should be able to use the commonly understood 
meaning of ``primary residence''--the home where a person lives most of 
the time.\35\ If additional analysis is needed under complex or unusual 
circumstances, helpful guidance may be found in rules that apply in 
other contexts, such as income tax rules and rules that apply when 
acquiring a mortgage loan for a primary residence, which often bears a 
lower interest rate than other mortgage loans.\36\
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    \35\ See IRS Publication 523, Selling Your Home 2 (Mar. 8, 2010) 
(``Usually, the home you live in most of the time is your main home 
* * *'').
    \36\ For example, the IRS Publication Selling Your Home lists 
the following factors to be used, in addition to the amount of time 
a person lives in each of several homes, to determine a person's 
``principal residence'' under Section 121 of the Internal Revenue 
Code, 26 U.S.C. 121: place of employment; location of family 
members' main home; mailing address for bills and correspondence; 
address listed on federal and state tax returns, driver's license, 
car registration, and voter registration card; location of banks 
used and recreational clubs and religious organizations. Id. at 4.
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    Proceeds of Debt Secured by Primary Residence Incurred to Invest in 
Securities. The North American Securities Administrators Association 
(``NASAA'') has recommended that we not permit the exclusion of debt 
secured by a primary residence from the calculation of net worth if 
proceeds of the debt are used to invest in securities.\37\ NASAA is 
concerned that, in the absence of such a rule, an ``unscrupulous 
salesperson might encourage a person with a significant amount of 
equity in the person's home, which is not uncommon for older

[[Page 5311]]

investors, to take out a mortgage on the residence in order to 
manipulate their status under the accredited investor test and to use 
the proceeds to invest in what would otherwise be unsuitable private 
placement securities.'' \38\ We agree that such actions would raise 
serious concerns under the federal securities laws. If broker-dealer 
sales personnel engage in this type of activity, their conduct can be 
addressed under the standards governing broker-dealer sales 
practices.\39\ However, we preliminarily do not believe that the 
potential for inappropriate sales practices, whether by issuers or by 
broker-dealers, necessitates adding significant complexity to the 
calculation of net worth. As noted above, Regulation D is designed to 
be relatively straightforward to apply, and we are concerned that a 
rule that attempts to trace the use of mortgage or home equity loan 
proceeds and to distinguish between permissible and impermissible uses 
of proceeds would introduce undue complexity into Regulation D. We 
request public comment on this preliminary judgment below.
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    \37\ Advance Comment Letter from NASAA, note 18 above.
    \38\ Id. at 2.
    \39\ NASD (now known as FINRA) Rule 2310 requires registered 
representatives of broker-dealers to make only suitable 
recommendations to their customers. See Financial Industry 
Regulatory Authority, NASD Rule 2310: Recommendations to Customers 
(Suitability) (2010) (available at http://finra.complinet.com/en/display/display_main.html?rbid=2403&element_id=3638). Depending on 
the facts and circumstances, such behavior may also rise to the 
level of fraud under Section 17(a) of the Securities Act, 15 U.S.C. 
77q(a), or Section 10(b) of the Securities Exchange Act, 15 U.S.C. 
78j(b), or the Commission's antifraud rules issued under those 
statutory provisions.
---------------------------------------------------------------------------

    We also are soliciting comment on whether the proposed amendments 
should contain a timing provision in order to prevent investors from 
inflating their net worth by purchasing assets with the proceeds of 
indebtedness secured by their homes with the intent to qualify as 
accredited investors and purchase Regulation D securities. For example, 
the proposed amendments could provide that the net worth calculation 
must be as of a date 30 or 60 days before the sale of the securities, 
as well as at the time of sale. Because we have some concern that this 
could complicate issuers' and investors' calculations, particularly as 
the date of the sale may not be known sufficiently in advance, we are 
not proposing such a timing provision, but request comment on this 
preliminary judgment.
    Transition and Other Rules on Subsequent Investments. We are not 
proposing any special rules for transition to the new accredited 
investor net worth standards, since these new standards were effective 
upon enactment of the Dodd-Frank Act. Under the current rules, a 
company or fund is not permitted to treat an investor as accredited if 
the investor subsequently loses that status, even if the investor has 
previously invested in the company or fund at a time when it satisfied 
the accredited investor standard. Investors must satisfy the applicable 
accredited investor income or net worth standard in effect at the time 
of every exempt sale of securities to the investor that is made in 
reliance upon the investor's status as such. The proposed amendments 
would not change this situation.
    We nevertheless are seeking comment below on whether some 
transition and other rules might be appropriate to facilitate 
subsequent investments by an investor who previously qualified as 
accredited but was disqualified by the change effected by the Dodd-
Frank Act. For example, an investor that qualified as an accredited 
investor in a previous sale under Regulation D before enactment of the 
Dodd-Frank Act may wish to invest in the same company or fund in order 
to retain its proportionate interest in the company or fund or to 
exercise rights that have arisen because of that interest.\40\ Or a 
company may wish to make a rights offering to current investors who 
invested as accredited investors. In this case, the company may not 
wish to be subject to the additional information requirements it may 
incur under Regulation D if it offers and sells securities to non-
accredited investors,\41\ and the company may be precluded from making 
the offering if the number of non-accredited investors exceeds the 
limit of 35 non-accredited investors imposed in Rule 505 and Rule 506 
offerings. In some of these cases, the investor may have spent a 
substantial amount of time and money performing due diligence on the 
company or fund before his or her previous investments and may be 
familiar with the issuer as an existing investor. Under these 
circumstances, some have argued that the investor should be able to 
invest again as an accredited investor even if the investor does not 
satisfy the standards applicable at the time of the subsequent 
investment.\42\
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    \40\ Such contractual rights may include preemptive rights, 
rights of first refusal, rights of co-sale, buy-sell agreements and 
so-called pay to play provisions that provide for dilution or other 
adverse consequences to affected investors who do not fund capital 
calls or otherwise reinvest in future rounds of financing.
    \41\ See CFR 230.502(b)(1).
    \42\ A speaker at the SEC Forum on Small Business Capital 
Formation conducted on November 18, 2010 suggested that an investor 
that qualified as an accredited investor when initially investing in 
a company or fund should be able to continue to invest in future 
offerings of that issuer, even if the investor no longer meets any 
new elevated accredited investor standards. See Record of 
Proceedings of 29th Annual SEC Government-Business Forum on Small 
Business Capital Formation, at 18 (Nov. 18, 2010) (remarks of Alan 
J. Berkeley) (available at http://www.sec.gov/info/smallbus/sbforumtrans-111810.pdf).
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Specific Requests for Comment

    1. Should the value of the residence be calculated by netting out 
the debt secured by the residence, as proposed? Or would it be more 
appropriate to exclude the entire fair market value of the residence 
from net worth, without netting out any associated debt?
    2. Would it be more appropriate to substitute the word ``equity'' 
for the word ``value'' when referring to the primary residence in our 
accredited investor net worth standards?
    3. Should we interpret Section 413(a) to exclude from the net worth 
calculation both the fair market value of the primary residence and all 
indebtedness secured by the primary residence, regardless of whether 
such indebtedness exceeds the fair market value of the property?
    4. Is another interpretation of Section 413(a) superior to those we 
discussed?
    5. Should we define the term ``primary residence'' for purposes of 
our accredited investor net worth rules? If we define the term, should 
we use a definition under the federal income tax code? If so, should we 
also incorporate into our definition a reference to guidelines issued 
under the federal income tax code? Alternatively, should we define 
``primary residence'' as the commonly understood meaning of the term--
the home where a person lives most of the time? What alternative 
definitions would you recommend? For example, should we define the term 
by listing several factors to consider? Would the factors from the IRS 
publication listed in note 35 be the appropriate factors, or are there 
different factors that should be included?
    6. Should we require inclusion of debt secured by a primary 
residence in our proposed accredited investor net worth standard if 
proceeds of the debt are used to invest in securities? How would these 
proceeds be traced? Would companies and their prospective investors 
find this standard workable? Should distinctions be made among 
different kinds of securities? Are there other assets besides 
securities that should be taken into account?
    7. Should the rule provide that the calculation of net worth must 
be made as of a specified date before the sale of securities under 
Regulation D, for example, 30, 60 or 90 days, as well as

[[Page 5312]]

at the time of sale? If not, would investors be likely to inflate their 
net worth by borrowing against their homes to attain accredited 
investor status? If we required that the net worth calculation be made 
a significant period of time in advance of the sale, would such a 
requirement make the calculation unduly complex or otherwise make 
exempt offerings to accredited investors less useful for issuers?
    8. Issuers and investors have calculated net worth under the 
Regulation D accredited investor standards for many years without 
specific instructions in the rules on how the calculation should be 
performed. Would guidance in the rules on how to calculate net worth, 
in addition to the new standards governing valuing the primary 
residence and treating related mortgage debt, be helpful? For example, 
should we adopt rules specifying what should be included as assets and 
debt, and how various kinds of assets should be valued? If so, what 
additional rules would be appropriate?
    9. Should we adopt any transition or other rules providing that an 
investor who previously qualified as an accredited investor before 
enactment of Section 413(a), or adoption of the proposed amendments, 
may continue to qualify as such for purposes of subsequent or ``follow-
on'' investments, such as investments to protect its proportionate 
interest in a company or fund or to exercise rights that arise because 
of that interest, or would that be inconsistent with the purposes of 
Section 413(a)? If we should adopt such an approach, are there other 
types of investments that should qualify for such treatment? Would 
investors' ability to protect their then-existing investments be 
inappropriately adversely affected if we did not provide such 
treatment? Would issuers' ability to raise capital be inappropriately 
impeded if we did not provide such treatment? If we did this, should we 
limit the amount of permissible follow-on investments, such as limiting 
them to the amount necessary to protect the investor from dilution? 
What conditions should we place on qualifying for such treatment? Is 
this unnecessary because the Section 4(2) private placement exemption 
may be available for sales to such an existing investor? Instead, 
should we provide that an investor who previously qualified as an 
accredited investor, but no longer qualifies as a result of Section 
413(a), would not count towards the 35 non-accredited investor 
limitation of Rules 505(b) and 506(b) \43\ for offerings by issuers in 
which the investor held investments at the time the Dodd-Frank Act was 
enacted?
---------------------------------------------------------------------------

    \43\ 17 CFR 230.505(b) and 230.506(c).
---------------------------------------------------------------------------

(B) Technical and Conforming Amendments

    In order to avoid confusion, we are proposing to change the 
reference currently in Rule 501(e)(1)(i) of Regulation D to ``principal 
residence'' so that it reads ``primary residence'' and conforms to the 
language we are adding to Rule 501 to implement Section 413(a) of the 
Dodd-Frank Act. We believe the terms are synonymous and should read the 
same.\44\
---------------------------------------------------------------------------

    \44\ For purposes of calculating the number of purchasers in a 
Regulation D offering, Rule 501(e)(1)(i) uses the term ``principal 
residence'' to exclude any purchasers who are relatives or spouses 
of a purchaser of a Regulation D security and who share the same 
``principal residence'' as the purchaser of the security. 17 CFR 
230.501(e)(1)(i).
---------------------------------------------------------------------------

    Also to avoid confusion, we propose to revise the references to 
former Securities Act Section 4(6) in Form D and several of our rules 
to refer to Section 4(5), as former Section 4(6) was renumbered by 
Section 944(a)(2) of the Dodd-Frank Act. Specifically, we propose to 
amend Rule 144(a)(3)(viii) (definition of ``restricted securities'') 
and Rule 155(a) (integration of abandoned offerings) of the general 
Securities Act rules; Rule 500(a)(1) of the Securities Act form rules; 
Form D under the Securities Act; Rule 17j-1(a)(8) (personal investment 
activities of investment company personnel) under the Investment 
Company Act, and Rule 204A-1(e)(7) (investment adviser codes of ethics) 
under the Investment Advisers Act.
    We are also removing the authority citation preceding the 
Preliminary Notes to Regulation D.

III. General Request for Comment

    We request comment, both specific and general, on each component of 
the proposals. We request and encourage any interested person to submit 
comments regarding:
     The proposals that are the subject of this release; and
     Other matters that may have an effect on the proposals 
contained in this release.
    Comment is solicited from the point of view of both investors and 
issuers, as well as of capital formation facilitators, such as broker-
dealers, and other regulatory bodies, such as state securities 
regulators. Any interested person wishing to submit written comments on 
any aspect of the proposal is requested to do so.

IV. Paperwork Reduction Act

    The proposed amendments do not contain a ``collection of 
information'' requirement within the meaning of the Paperwork Reduction 
Act of 1995.\45\ Accordingly, the Paperwork Reduction Act is not 
applicable.
---------------------------------------------------------------------------

    \45\ 44 U.S.C. 3501-3521.
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V. Cost-Benefit Analysis

A. Background and Summary of Proposals

    As discussed above, we are proposing amendments to the accredited 
investor standards in our rules under the Securities Act to reflect the 
requirements of Section 413(a) of the Dodd-Frank Act.
    Section 413(a) of the Dodd-Frank Act requires the definitions of 
``accredited investor'' in the Securities Act rules to exclude the 
value of a person's primary residence for purposes of determining 
whether the person qualifies as an ``accredited investor'' on the basis 
of having a net worth in excess of $1 million. Under the previous 
standard, individuals qualified as accredited investors if they had a 
net worth of more than $1 million, including the value of the primary 
residence. The substantive change to the net worth standards was 
effective by operation of the Dodd-Frank Act upon enactment; however, 
Section 413 also requires us to adjust the accredited investor 
definitions in our Securities Act rules to reflect the new standard. We 
therefore propose to revise Securities Act Rule 501(a)(5) of Regulation 
D and Securities Act Rule 215(e) to reflect the new standard.
    Our proposed revisions go beyond the minimum language necessary to 
reflect the new standard by providing guidance on how to exclude the 
value of the primary residence from the net worth calculation. This 
language would explain that the value of the primary residence would be 
``calculated by subtracting from the estimated fair market value of the 
property the amount of debt secured by the property, up to the 
estimated fair market value of the property.''
    Our analysis here focuses on the costs and benefits to the economy 
of including our proposed explanatory language, as compared to the 
alternatives discussed, rather than the costs and benefits of the new 
heightened accredited investor net worth standard, which was mandated 
by Congress in Section 413(a) of the Dodd-Frank Act.
    The language we propose reflects our exercise of discretion in 
choosing one interpretation of the statutory language set forth in 
Section 413(a) over two other possible interpretations. These two other 
interpretations of the Section 413(a) language are: (1) Excluding from

[[Page 5313]]

net worth the fair market value of the primary residence, without 
netting out indebtedness secured by the primary residence; and (2) 
excluding from net worth the fair market value of the primary residence 
and all indebtedness secured by the primary residence, regardless of 
whether it exceeds the fair market value of the residence.
    We are also proposing technical changes to Form D and a number of 
rules to conform them to the Dodd-Frank Act, in all but one instance to 
revise cross-references to former Section 4(6) of the Securities Act, 
which was renumbered Section 4(5) in Section 944 of the Dodd-Frank Act.
    We have identified certain benefits and costs that may result from 
the proposed explanatory language. We encourage the public to identify, 
discuss, analyze and supply relevant data regarding these or any 
additional benefits and costs in comment letters on these proposed 
amendments.

B. Benefits

    We preliminarily believe the proposed explanatory language provides 
the most appropriate interpretation of the words of Section 413(a). The 
proposed explanatory language would result in the following benefits:
     We believe the proposed amendments most accurately reflect 
the manner in which net worth has conventionally been determined and 
understood. We believe investors and issuers would benefit from 
implementing rules that are easy to understand and consistent with 
conventional net worth calculation concepts.\46\
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    \46\ See note 26 above and accompanying text.
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     The interpretation reflected in the proposed amendments 
would result in a smaller reduction in the pool of accredited investors 
than the first alternative interpretation.\47\ To the extent that 
exempt offerings to accredited investors are less costly for issuers to 
complete than registered offerings, a larger pool of accredited 
investors that may participate in these offerings could result in cost 
savings for issuers conducting these offerings.
---------------------------------------------------------------------------

    \47\ See note 31 above.
---------------------------------------------------------------------------

     Limiting the amount of debt secured by the primary 
residence that may be excluded from net worth to the estimated fair 
market value of the property, as proposed, would limit investors' 
incentives to incur indebtedness secured by their primary residence in 
an amount greater than the value of their property. This result is 
preferable to an alternative possible interpretation of Section 413(a) 
that would allow investors to exclude both the fair market value of the 
property and all indebtedness secured by the property, regardless of 
whether such indebtedness exceeded the fair market value of their 
property. Under this alternative interpretation, investors with 
underwater mortgages would have a higher net worth than they would 
under a conventional calculation, since all such indebtedness would be 
excluded in determining whether they qualify as accredited investors on 
the basis of their net worth. In contrast, under our proposal, the 
investor's net worth would continue to be reduced to reflect any 
liability in the amount of any shortfall between the mortgage 
indebtedness and the estimated fair market value of the property.

C. Costs

    Like our analysis of the benefits, our analysis of the costs 
focuses on the costs attributable to our proposed language on how to 
calculate the ``value of the primary residence'' to be excluded from 
the net worth calculation. Many of the costs of our proposal are 
dependent on a number of factors, but may include the following:
     The proposed amendments could encourage investors to 
obtain indebtedness secured by their primary residence up to the 
estimated fair market value of the property with the primary motive to 
inflate their net worth in order to satisfy the new heightened 
accredited investor net worth standard in Section 413(a) by purchasing 
assets unrelated to their home, such as stocks, bonds, cars, etc. The 
net effect would be to increase net worth under the rule, since these 
assets, unrelated to the home, would be included in their net worth 
calculation, but the indebtedness secured by the primary residence to 
acquire these assets would be excluded from the net worth calculation 
under our proposed amendments.\48\
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    \48\ NASAA has recommended that we not permit the exclusion of 
debt secured by a primary residence from the calculation of net 
worth if the proceeds of the debt are used to invest in securities. 
See Advance Comment Letter from NASAA, note 18 above, and note 37 
above and accompanying text. We have solicited comment above on this 
issue.
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     The proposed approach would require that an investor's net 
worth reflect the amount that the investor's secured indebtedness 
exceeds the estimated fair market value of the property. While the 2007 
Federal Reserve Board Survey of Consumer Finances does not indicate 
that there was any difference in the number of households that would 
qualify under the two standards,\49\ given recent downward trends in 
real estate values, our proposed approach could result in a smaller 
pool of eligible accredited investors than if we implemented an 
alternative approach that would exclude all indebtedness secured by the 
primary residence. This could result in increased costs for companies 
and funds that are seeking accredited investors to participate in their 
exempt offerings.
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    \49\ Based on its analysis of the data from the 2007 Federal 
Reserve Board Survey of Consumer Finances, discussed in note 31 
above, our staff estimates that approximately 7.6 million households 
would have qualified for accredited investor status under both our 
proposed approach and the second alternative interpretation of 
Section 413(a), which would exclude from the net worth calculation 
both the fair market value of the primary residence and all 
indebtedness secured by the residence, regardless of whether the 
indebtedness exceeds the fair market value of the property.
---------------------------------------------------------------------------

     The proposed approach involves more complex calculations 
than the two alternative possible approaches we have identified. The 
proposed approach involves estimating the fair market value of the 
investor's primary residence, subtracting the indebtedness secured by 
the residence, and subtracting the difference or net amount from the 
investor's net worth calculation. Both of the alternative net worth 
calculations, however, could be performed merely by ignoring the 
primary residence as an asset in determining the net worth amount, and 
in the case of the second alternative interpretation also ignoring the 
indebtedness secured by the primary residence.

D. Request for Comment

    We solicit comments on the costs and benefits of the proposed 
amendments. We request your views on the costs and benefits described 
above, as well as on any other costs and benefits that could result 
from the adoption of our proposals. We encourage the public to 
identify, discuss, analyze, and supply relevant data regarding these or 
any additional costs and benefits in comment letters.
    In general, we request comment on all aspects of this cost-benefit 
analysis, including identification of any additional costs or benefits 
of the proposals not already identified, that may result from the 
adoption of these proposed amendments. We request that comment letters 
responding to these requests provide empirical data and other factual 
support for their views to the extent possible.

[[Page 5314]]

VI. Consideration of Burden on Competition and Promotion of Efficiency, 
Competition and Capital Formation

    Section 2(b) of the Securities Act \50\ 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 consider, 
in addition to the protection of investors, whether the action will 
promote efficiency, competition, and capital formation. We believe our 
proposed amendments may facilitate capital formation and promote 
efficiency. We do not anticipate that the proposed amendments would 
have any effects on competition.
---------------------------------------------------------------------------

    \50\ 15 U.S.C. 77b(b).
---------------------------------------------------------------------------

    We believe the proposed amendments impose no burden on efficiency, 
competition and capital formation beyond what is required by 
implementation of the Dodd-Frank Act. As discussed in the cost-benefit 
analysis in Part V above, however, the language of Section 413(a) could 
be subject to alternative interpretations if our rules do not provide 
guidance on how to calculate the value of the primary residence. In 
this regard, we propose to add explanatory language to our rules on how 
to calculate and exclude the value of the primary residence in 
determining whether a person qualifies under the accredited investor 
net worth standard. We believe these proposed amendments further the 
purposes underlying the requirements of Section 413(a) of the Dodd-
Frank Act.
    The proposed explanatory language states that the value of the 
primary residence would be ``calculated by subtracting from the 
estimated fair market value of the property the amount of debt secured 
by the property, up to the estimated fair market value of the 
property.'' As described above, we believe this approach is consistent 
with Section 413(a) of the Dodd-Frank Act, as well as with the 
conventional and commonly understood method of determining net worth, 
and, as a result, is preferable to an alternative approach that would 
exclude from net worth the fair market value of the primary residence, 
without netting out indebtedness secured by the primary residence. To 
the extent that exempt offerings to accredited investors are less 
costly for issuers to complete compared to registered offerings, since 
the explanatory language would reduce the size of the accredited 
investor pool to a lesser extent than the alternative approach,\51\ 
issuers conducting these exempt offerings potentially could experience 
greater cost savings than under the alternative interpretation.
---------------------------------------------------------------------------

    \51\ See note 31 above and accompanying text.
---------------------------------------------------------------------------

    The least restrictive approach to excluding the value of the 
primary residence under Section 413(a) would be to exclude from net 
worth the fair market value of the primary residence and all 
indebtedness secured by the primary residence, regardless of whether 
the debt exceeds the fair market value of the property. Based on the 
survey data, this approach would not result in a larger pool of 
eligible accredited investors than under our proposal, and therefore 
would not appear to result in additional cost savings for capital 
raising transactions by issuers relying on exempt sales to accredited 
investors compared to our proposal.\52\
---------------------------------------------------------------------------

    \52\ See note 49 above and accompanying text.
---------------------------------------------------------------------------

    We do not believe the proposed amendments place any significant 
burden on or otherwise affect competition beyond what is required by 
the Congressionally-mandated requirements of Section 413(a). The 
proposed amendments would apply equally to all investors and issuers 
participating in exempt offerings under Regulation D and Section 4(5). 
Nevertheless, we request comment on our proposal in the event members 
of the public perceive it as advantaging one group or category of 
issuers or investors over another.
    We believe the proposed amendments may positively affect efficiency 
and capital formation. Providing clear guidance on how to calculate and 
exclude the value of the primary residence, we believe, should 
generally benefit investors and issuers by making the requirements of 
Section 413(a) easier to apply. Clear rules will also serve to promote 
efficiency by reducing the risk of issuers' inability to raise capital 
because of uncertainty in interpreting our rules, as well as the risk 
of sales by issuers to investors who do not meet the new heightened 
accredited investor net worth standards. Avoiding this latter problem 
would also serve to lower the risk that an issuer may need to make a 
rescission offer. Greater clarity and certainty in our accredited 
investor net worth standards also should foster greater confidence in 
our private placement markets and ultimately reduce the cost of 
capital, promoting increased capital formation.
    We request comment on whether the proposed amendments, if adopted, 
would promote or burden efficiency, competition and capital formation. 
Finally, we request those who submit comment letters to provide 
empirical data and other factual support for their views if possible.

VII. Initial Regulatory Flexibility Act Analysis

    This initial regulatory flexibility analysis has been prepared in 
accordance with 5 U.S.C. 603. It relates to proposed amendments to our 
accredited investor rules under the Securities Act to reflect the 
requirements of Section 413(a) of the Dodd-Frank Act.

A. Reasons for the Proposed Action

    The reason for the proposed amendments is to implement the 
requirements of the Dodd-Frank Act, primarily the requirements of 
Section 413(a) of that statute. Section 413(a) requires the definitions 
of ``accredited investor'' in the Securities Act rules to exclude the 
value of a person's primary residence for purposes of determining 
whether the person qualifies as an ``accredited investor'' on the basis 
of having a net worth in excess of $1 million. Under the previous 
standard, individuals qualified as accredited investors if they had a 
net worth of more than $1 million, including the value of the primary 
residence. The change to the net worth standard was effective upon 
enactment by operation of the Dodd-Frank Act. But Section 413(a) also 
requires us to revise the Securities Act accredited investor 
definitions to reflect the new standard, which we propose to do by 
revising Securities Act Rule 501(a)(5) of Regulation D and Rule 215(e).

B. Objectives

    Our primary objective is to implement the requirements for a new 
accredited investor net worth standard in Section 413(a) of the Dodd-
Frank Act. We also propose to add language explaining how to ``exclude 
the value of the primary residence'' properly so that implementation 
proceeds in the most efficient way possible, with a minimum amount of 
uncertainty. We believe this proposal will reduce the cost of exempt 
offerings under Regulation D and Section 4(5) by reducing uncertainty 
among issuers and investors in interpreting the new heightened 
accredited investor net worth standard mandated by Section 413(a) of 
the Dodd-Frank Act. By providing greater specificity, we are attempting 
to remove a possible impediment to issuers using this form of offering, 
thereby potentially lowering the cost of capital generally, and 
facilitating capital formation for smaller issuers, while protecting 
investors.

[[Page 5315]]

    We note that Section 413(a) of the Dodd-Frank Act does not 
prescribe the method for calculating the value of the primary 
residence, nor does it address specifically the treatment of mortgage 
and other indebtedness secured by the residence for purposes of the net 
worth determination. Accordingly, we have proposed to exercise our 
discretion by adding explanatory language to the accredited investor 
net worth standard stating that the value of the primary residence 
should be calculated by subtracting from the estimated fair market 
value of the property the amount of debt secured by the property, up to 
the estimated fair market value of the property. We believe this 
interpretation is consistent with conventional and commonly understood 
methods of determining net worth, and is preferable to other possible 
interpretations of the statutory language set forth in Section 413(a), 
such as: (1) Excluding from net worth the fair market value of the 
primary residence without netting out indebtedness secured by the 
primary residence; and (2) excluding from net worth the fair market 
value of the primary residence and all indebtedness secured by the 
primary residence, regardless of whether it exceeds the fair market 
value of the property.

C. Legal Basis

    The amendments to the accredited investor net worth standards are 
being proposed under the authority set forth in Sections 2(a)(15), 
3(b), 4(2), 19, and 28 of the Securities Act and in Section 413(a) of 
the Dodd-Frank Act, which is to be codified in a note to Section 2 of 
the Securities Act, 15 U.S.C. 77b.

D. Small Entities Subject to the Proposed Rules

    The proposals would affect issuers that are small entities, because 
issuers that are small entities must believe or have a reasonable basis 
to believe that prospective investors are accredited investors at the 
time of the sale of securities if they are relying on the definition of 
``accredited investor'' for an exemption under Regulation D or Section 
4(5). For purposes of the Regulatory Flexibility Act under our rules, 
an issuer is a ``small business'' or ``small organization'' if it has 
total assets of $5 million or less as of the end of its most recent 
fiscal year.\53\ For purposes of the Regulatory Flexibility Act, an 
investment company is a small entity if it, together with other 
investment companies in the same group of related investment companies, 
has net assets of $50 million or less as of the end of its most recent 
fiscal year. The proposed amendments would apply to all issuers that 
rely on the accredited investor net worth standards in the exemptions 
to Securities Act registration in Regulation D and Section 4(5).
---------------------------------------------------------------------------

    \53\ 17 CFR 230.157.
---------------------------------------------------------------------------

    All issuers that sell securities in reliance on Regulation D and 
Section 4(5) must file a notice on Form D with the Commission. However, 
the vast majority of companies and funds filing notices on Form D are 
not required to provide financial reports to the Commission. For the 
fiscal year ended Sept. 30, 2010, 22,941 issuers filed a notice on Form 
D. We believe that many of these issuers are small entities, but we 
currently do not collect reliable information on total assets to 
determine if they are small entities for purposes of this analysis.

E. Reporting, Recordkeeping and Other Compliance Requirements

    None of our proposed amendments would increase the information or 
time required to complete the Form D that must be filed with the 
Commission in connection with sales under Regulation D and Section 
4(5). Our proposed amendments merely adjust our rules so they reflect 
the requirements of Section 413(a) of the Dodd-Frank Act. They would 
not require any further disclosure than is currently required in 
offerings made in reliance on Regulation D and Section 4(5).

F. Duplicative, Overlapping or Conflicting Federal Rules

    We believe that there are no rules that conflict with or duplicate 
the proposed amendments.

G. Significant Alternatives

    The Regulatory Flexibility Act directs us to consider significant 
alternatives that would accomplish the stated objective of our 
proposals, while minimizing any significant adverse impact on small 
entities. In connection with the proposed amendments, we considered the 
following alternatives:
     The establishment of different compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities;
     The clarification, consolidation, or simplification of the 
rule's compliance and reporting requirements for small entities;
     The use of performance rather than design standards; and
     An exemption from coverage of the proposed amendments, or 
any part thereof, for small entities.
    With respect to the establishment of special compliance 
requirements or timetables under our proposed amendments for small 
entities, we do not think this is feasible or appropriate. As described 
earlier, we believe our proposed amendments are preferable to other 
possible interpretations of the statutory language set forth in Section 
413(a) and are consistent with Congressional intent. Our proposals do 
not establish any compliance requirements or timetables for compliance 
that we could adjust to take into account the resources available to 
small entities. Moreover, the proposals are designed to eliminate 
uncertainty among issuers and investors that may otherwise result from 
inserting only the bare operative language from Section 413(a) of the 
Dodd-Frank Act in our rules. Providing greater specificity in our rules 
should provide issuers, including small entities, and investors with 
greater certainty concerning the availability of the Regulation D and 
Section 4(5) exemptions to Securities Act registration and thereby 
further facilitate efficient access to capital for both large and small 
entities consistent with investor protection.
    Likewise, with respect to potentially clarifying, consolidating, or 
simplifying compliance and reporting requirements, the proposed rules 
do not impose any new compliance or reporting requirements or change 
any existing requirements.
    With respect to using performance rather than design standards, we 
do not believe doing so in this context would be consistent with our 
objective or with the statutory requirement. Our proposal seeks to 
specify how issuers should calculate the value of a person's primary 
residence for purposes of excluding its value in determining whether 
the person qualifies as an accredited investor on the basis of net 
worth. Specifying that issuers should calculate the value and leaving 
the method of attaining that end to the discretion of the issuer, as a 
performance standard would do, would frustrate our purpose and deny 
small entities and others of the benefits of certainty that the 
proposal is designed to provide.
    With respect to exempting small entities from coverage of these 
proposed amendments, we believe such a proposal would increase rather 
than decrease regulatory burdens on small entities. Our proposals are 
designed to provide sufficient protection of investors without unduly 
burdening both issuers and investors, including small entities and 
their investors. They also are designed to minimize confusion among 
issuers and investors. Exempting small entities would increase their 
regulatory burdens and increase confusion. We have endeavored to

[[Page 5316]]

minimize the regulatory burden on all issuers, including small 
entities, while meeting our regulatory objectives. Nevertheless, we 
request comment on ways in which we could exempt small entities from 
coverage of any aspects of the proposed amendments that members of the 
public consider unduly onerous.

H. Request for Comment

    We encourage comments with respect to any aspect of this initial 
regulatory flexibility analysis. In particular, we request comments 
regarding:
     The number of small entities that may be affected by the 
proposals;
     The existence or nature of the potential impact of the 
proposals on small entities discussed in this analysis; and
     How to quantify the impact of the proposed amendments.

We request members of the public to submit comment letters on our 
proposals and ask them to describe the nature of any impact on small 
entities they identify and provide empirical data supporting the extent 
of the impact. Such comments will be considered in the preparation of 
the final regulatory flexibility analysis, if the proposals are 
adopted, and will be placed in the same public file as comments on the 
proposed amendments themselves.

VIII. Small Business Regulatory Enforcement Fairness Act

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996,\54\ a rule is ``major'' if it has resulted, or is likely 
to result in:
---------------------------------------------------------------------------

    \54\ Public Law 104-121, tit. II, 110 Stat. 857 (1996).
---------------------------------------------------------------------------

     An annual effect on the economy of $100 million or more;
     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 whether our proposals would be a ``major 
rule'' for purposes of SBREFA. We solicit comment and empirical data 
on:
     The potential effect 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.

 IX. Statutory Authority and Text of Proposed Amendments

    We are proposing the amendments contained in this document under 
the authority set forth in Sections 2(a)(15), 3(b), 4(2), 19 and 28 of 
the Securities Act, as amended,\55\ Section 38(a) of the Investment 
Company Act,\56\ Section 211(a) of the Investment Advisers Act \57\ and 
Sections 413(a) and 944(a) of the Dodd-Frank Act.
---------------------------------------------------------------------------

    \55\ 15 U.S.C. 77b(a)(15), 77c(b), 77d(2), 77s and 77z-3.
    \56\ 15 U.S.C. 80a-38(a).
    \57\ 15 U.S.C. 80b-11(a).
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List of Subjects in 17 CFR Parts 230, 239, 270 and 275

    Reporting and recordkeeping requirements, Securities.

    For the reasons set out above, Title 17, Chapter II of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

    1. The general authority citation for Part 230 is revised to read 
as follows:

    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 
77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w, 
78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37 and 
Pub. L. 111-203, Sec.  413(a), 124 Stat. 1577 (2010) (15 U.S.C. 77b 
note), unless otherwise noted.
* * * * *
    2. Amend Sec.  230.144, paragraph (a)(3)(viii) by removing the 
reference to ``4(6) (15 U.S.C. 77d(6))'' and adding in its place ``4(5) 
(15 U.S.C. 77d(5))''.
    3. Amend Sec.  230.155, paragraph (a), by removing the references 
to ``4(6)'' and ``77(d)(6)'' and adding in their places ``4(5)'' and 
``77(d)(5)'', respectively.
    4. Amend Sec.  230.215 by revising paragraph (e) to read as 
follows:


Sec.  230.215  Accredited investor.

* * * * *
    (e) Any natural person whose individual net worth, or joint net 
worth with that person's spouse, at the time of purchase, exceeds 
$1,000,000, excluding the value of the primary residence of such 
natural person, calculated by subtracting from the estimated fair 
market value of the property the amount of debt secured by the 
property, up to the estimated fair market value of the property;
* * * * *
    5. Amend Part 230 by removing the authority citation after the 
undesignated center heading ``Regulation D--Rules Governing the Limited 
Offer and Sale of Securities Without Registration Under the Securities 
Act of 1933'' and preliminary notes preceding Sec. Sec.  230.501 to 
230.508.
    6. Amend Sec.  230.501 by:
    a. Revising paragraph (a)(5); and
    b. Removing the word ``principal'' and adding in its place the word 
``primary'' in paragraph (e)(1)(i);
    The revision read as follows:


Sec.  230.501  Definitions and terms used in Regulation D.

* * * * *
    (a) * * *
    (5) Any natural person whose individual net worth, or joint net 
worth with that person's spouse, at the time of purchase, exceeds 
$1,000,000, excluding the value of the primary residence of such 
natural person, calculated by subtracting from the estimated fair 
market value of the property the amount of debt secured by the 
property, up to the estimated fair market value of the property;
* * * * *

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

    7. The general authority citation for Part 239 continues to read in 
part as follows:

    Authority:  15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 
77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(e), 78mm, 
80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-
29, 80a-30, and 80a-37, unless otherwise noted.
* * * * *
    8. Amend Sec.  239.500 by removing the reference to ``4(6)'' and 
adding in its place ``4(5)'' in the heading and in the first sentence 
of paragraph (a)(1).
    9. Amend Item 6 in Form D (referenced in Sec.  239.500) by:
    a. removing the phrase ``Securities Act Section 4(6)'' and adding 
in its place ``Securities Act Section 4(5)'' next to the appropriate 
check box; and
    b. removing the reference to ``4(6)'' and adding in its place 
``4(5)'' in the first sentence of the first paragraph of the General 
Instructions.

    Note:  The text of Form D does not, and the amendments will not, 
appear in the Code of Federal Regulations.

PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940

    10. The general authority citation for part 270 continues to read 
in part as follows:

    Authority:  15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, and 80a-
39, unless otherwise noted.
* * * * *
    11. Amend Sec.  270.17j-1, paragraph (a)(8), by removing the 
references to ``4(6)''and ``77d(6)'' and adding in their places 
``4(5)'' and ``77d(5)'', respectively.

[[Page 5317]]

PART 275--RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

    12. The authority citation for part 275 continues to read in part 
as follows:

    Authority:  15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(17), 80b-3, 80b-
4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
* * * * *
    13. Amend Sec.  275.204A-1, paragraph (e)(7) by removing the 
references to ``4(6)'' and ``77d(6)'' and adding in their places 
``4(5)''and ``77d(5)'', respectively.

    By the Commission.

    Dated: January 25, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-1922 Filed 1-28-11; 8:45 am]
BILLING CODE 8011-01-P