[Federal Register Volume 76, Number 149 (Wednesday, August 3, 2011)]
[Rules and Regulations]
[Pages 46603-46621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19421]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 200, 229, 230, 232, 239, 240, and 249

[Release No. 33-9245; 34-64975; File No. S7-18-08]
RIN 3235-AK18


Security Ratings

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In light of the provisions of Section 939A of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act, we are adopting 
amendments to replace rule and form requirements under the Securities 
Act of 1933 and the Securities Exchange Act of 1934 for securities 
offering or issuer disclosure rules that rely on, or make special 
accommodations for, security ratings (for example, Forms S-3 and F-3 
eligibility criteria) with alternative requirements.

DATES: Effective Date: This rule is effective September 2, 2011 except 
for the following amendments, which are effective December 31, 2012:
     Amendatory instruction 2 amending 17 CFR 200.800;
     Amendatory instruction 4 amending 17 CFR 229.10;
     Amendatory instruction 10 amending 17 CFR 230.467;
     Amendatory instruction 11 amending 17 CFR 230.473;
     Amendatory instruction 13 amending 17 CFR 232.405;
     Amendatory instruction 21 amending 17 CFR 239.38;
     Amendatory instruction 22 amending Form F-8 [referenced in 
17 CFR 239.38];
     Amendatory instruction 23 removing Form F-9 [referenced in 
Sec.  239.39];
     Amendatory instruction 24 amending 17 CFR 239.40;
     Amendatory instruction 25 amending Form F-10 [referenced 
in 17 CFR 239.40];
     Amendatory instruction 26 amending 17 CFR 239.41;
     Amendatory instruction 27 amending Form F-80 [referenced 
in 17 CFR 239.41];
     Amendatory instruction 28 amending 17 CFR 239.42;
     Amendatory instruction 29 amending Form F-X [referenced in 
17 CFR 239.42];
     Amendatory instruction 33 amending 17 CFR 249.240f; and
     Amendatory instruction 34 amending Form 40-F [referenced 
in 17 CFR 249.240f].

FOR FURTHER INFORMATION CONTACT: Blair Petrillo, Special Counsel in the 
Office of Rulemaking, Division of Corporation Finance, at (202) 551-
3430, or with respect to issuers of insurance contracts, Keith E. 
Carpenter, Senior Special Counsel in the Office of Disclosure and 
Insurance Product Regulation, Division of Investment Management, at 
(202) 551-6795, U.S. Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: We are adopting amendments to rules and 
forms under the Securities Act of 1933 (``Securities Act''),\1\ and the 
Securities Exchange Act of 1934 (``Exchange Act'').\2\ Under the 
Securities Act, we are adopting amendments to Rules 134,\3\ 138,\4\ 
139,\5\ 168,\6\ Form S-3,\7\ Form S-4,\8\ Form F-3,\9\ and Form F-
4.\10\ We are rescinding Form F-9 \11\ and adopting amendments to the 
Securities Act and Exchange Act forms and rules that refer to Form F-9 
to eliminate those references.\12\ We are also amending Schedule 14A 
\13\ under the Exchange Act.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 77a et seq.
    \2\ 15 U.S.C. 78a et seq.
    \3\ 17 CFR 230.134.
    \4\ 17 CFR 230.138.
    \5\ 17 CFR 230.139.
    \6\ 17 CFR 230.168.
    \7\ 17 CFR 239.13.
    \8\ 17 CFR 239.25.
    \9\ 17 CFR 239.33.
    \10\ 17 CFR 239.34.
    \11\ 17 CFR 239.39.
    \12\ We are removing references to Form F-9 in Securities Act 
Forms F-8 [17 CFR 239.38], F-10 [17 CFR 239.40], F-80 [17 CFR 
239.41], and Form F-X [17 CFR 239.42]; in Exchange Act Form 40-F [17 
CFR 249.240f], and in the following rules: 17 CFR 200.800, 17 CFR 
229.10, 17 CFR 230.134, 17 CFR 230.467, 17 CFR 230.473, and 17 CFR 
232.405.
    \13\ 17 CFR 240.14a-101.
---------------------------------------------------------------------------

I. Introduction

    We are adopting amendments today to remove references to credit 
ratings in rules and forms promulgated under the Securities Act and the 
Exchange Act. On February 9, 2011, we proposed amendments in light of 
Section 939A of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (``Dodd-Frank'') \14\ to remove references to credit 
ratings in rules and forms under the Securities Act and the Exchange 
Act.\15\ We proposed similar changes in 2008, prior to the enactment of 
the Dodd-Frank Act, but did not act on those proposals.\16\
---------------------------------------------------------------------------

    \14\ Pub. L. No. 111-203, 124 Stat. 1376 (2010). Section 939A of 
the Dodd-Frank Act requires that we ``review any regulation issued 
by [us] that requires the use of an assessment of the credit-
worthiness of a security or money market instrument and any 
references to or requirements in such regulations regarding credit 
ratings.'' Once we have completed that review, the statute provides 
that we modify any regulations identified in our review to ``remove 
any reference to or requirement of reliance on credit ratings and to 
substitute in such regulations such standard of credit-worthiness'' 
as we determine to be appropriate.
    \15\ See Security Ratings, Release No. 33-9186 (Feb. 9, 2011) 
[76 FR 8946] (``2011 Proposing Release'').
    \16\ See Security Ratings, Release No. 33-8940 (July 1, 2008) 
[73 FR 40106] (``2008 Proposing Release''). In 2009, we re-opened 
the comment period for the release for an additional 60 days. See 
References to Ratings of Nationally Recognized Statistical Rating 
Organizations, Release No. 33-9069 (Oct. 5, 2009) [74 FR 52374]. 
Public comments on both of these releases were published under File 
No. S7-18-08 and are available at http://www.sec.gov/comments/s7-18-08/s71808.shtml. Comments also are 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.
---------------------------------------------------------------------------

    We have considered the role of credit ratings in our rules under 
the Securities Act on several previous occasions and even proposed 
removal of some references to credit ratings prior to the enactment of 
the Dodd-Frank Act.\17\

[[Page 46604]]

While we recognize that credit ratings play a significant role in the 
investment decisions of many investors, we want to avoid using credit 
ratings in a manner that suggests in any way a ``seal of approval'' on 
the quality of any particular credit rating or rating agency, including 
any nationally recognized statistical rating organization (``NRSRO''). 
Similarly, the legislative history indicates that Congress, in adopting 
Section 939A, intended to ``reduce reliance on credit ratings.'' \18\ 
The rules we are adopting today seek to reduce our reliance on credit 
ratings for regulatory purposes while also preserving the use of Form 
S-3 (and similar forms) for issuers that we believe are widely followed 
in the market.
---------------------------------------------------------------------------

    \17\ See the 2008 Proposing Release for a discussion of the 
history and background of references to credit ratings in rules and 
regulations under the Securities Act. See also Credit Ratings 
Disclosure, Release No. 33-9070 (Oct. 7, 2009) [74 FR 53086], which 
includes a proposal to require disclosure regarding credit ratings 
under certain circumstances.
    \18\ See Report of the House of Representatives Financial 
Services Committee to Accompany H.R. 4173, H. Rep. No. 111-517 at 
871 (2010). The legislative history does not, however, indicate that 
Congress intended to change the types of issuers and offerings that 
could rely on the Commission's forms.
---------------------------------------------------------------------------

    As discussed in more detail below, we are adopting the amendments 
with certain changes from the proposals. We received 48 comment letters 
on the 2011 Proposing Release and have modified the final amendments in 
certain respects in response to the comments we received.
    We are adopting amendments today to revise General Instruction 
I.B.2. of Form S-3 and Form F-3 to provide that an offering of non-
convertible securities, other than common equity, is eligible to be 
registered on Form S-3 and Form F-3 if:
    (i) The issuer has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or
    (ii) The issuer has outstanding (as of a date within 60 days prior 
to the filing of the registration statement) at least $750 million of 
non-convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act; 
or
    (iii) The issuer is a wholly-owned subsidiary of a well-known 
seasoned issuer (``WKSI'') as defined in Rule 405 under the Securities 
Act; \19\ or
---------------------------------------------------------------------------

    \19\ 17 CFR 230.405.
---------------------------------------------------------------------------

    (iv) The issuer is a majority-owned operating partnership of a real 
estate investment trust (``REIT'') that qualifies as a WKSI; or
    (v) The issuer discloses in the registration statement that it has 
a reasonable belief that it would have been eligible to register the 
securities offerings proposed to be registered under such registration 
statement pursuant to General Instruction I.B.2 of Form S-3 or Form F-3 
in existence prior to the new rules, discloses the basis for such 
belief, and files the final prospectus for any such offering on or 
before the date that is three years from the effective date of the 
amendments.
As before today's amendments, issuers using Form S-3 or Form F-3 would 
also need to satisfy the other relevant requirements of Form S-3 and 
Form F-3, including the requirements in General Instruction I.A. of 
those forms.\20\
---------------------------------------------------------------------------

    \20\ We are also adopting a technical amendment to General 
Instruction I.B.5 of Form S-3.
---------------------------------------------------------------------------

    We are also rescinding Form F-9 under the Securities Act because we 
believe that regulatory changes have rendered the form unnecessary. 
Further, we are adopting amendments to Rules 138, 139 and 168 under the 
Securities Act and Schedule 14A under the Exchange Act so that they 
refer to the new eligibility criteria in Form S-3 and Form F-3. 
Finally, we are removing Rule 134(a)(17) under the Securities Act.

II. Discussion of the Amendments

A. Primary Offerings of Non-Convertible Securities Other Than Common 
Equity

1. Background of Form S-3 and Form F-3
    Form S-3 and Form F-3 are the ``short forms'' used by eligible 
issuers to register securities offerings under the Securities Act. 
These forms allow eligible issuers to rely on reports they have filed 
under the Exchange Act to satisfy many of the disclosure requirements 
under the Securities Act. Form S-3 and Form F-3 eligibility for primary 
offerings also enables eligible issuers to conduct primary offerings 
``off the shelf'' under Securities Act Rule 415.\21\ Rule 415 provides 
considerable flexibility in accessing the public securities markets in 
response to changes in the market and other factors. Issuers that are 
eligible to register these primary ``shelf'' offerings under Rule 415 
are permitted to register securities offerings prior to planning any 
specific offering and, once the registration statement is effective, 
offer securities in one or more tranches without waiting for further 
Commission action. To be eligible to use Form S-3 or Form F-3, an 
issuer must meet the form's eligibility requirements as to registrants, 
which generally pertain to reporting history under the Exchange 
Act,\22\ and at least one of the form's transaction requirements.\23\ 
One such transaction requirement permits registrants to register 
primary offerings of non-convertible securities, if they are rated 
investment grade by at least one NRSRO.\24\ General Instruction I.B.2. 
provides that a security is ``investment grade'' if, at the time of 
sale, at least one NRSRO has rated the security in one of its generic 
rating categories, typically the four highest, which signifies 
investment grade.
---------------------------------------------------------------------------

    \21\ 17 CFR 230.415.
    \22\ See General Instruction I.A. to Forms S-3 and F-3.
    \23\ See General Instruction I.B to Forms S-3 and F-3. In 
addition to permitting offerings of investment grade securities, an 
issuer who meets the eligibility criteria in General Instruction 
I.A. may use Form S-3 or Form F-3 for primary offerings if the 
issuer has a public float in excess of $75 million, transactions 
involving secondary offerings, and rights offerings, dividend 
reinvestment plans, warrants and options. In addition, certain 
subsidiaries are eligible to use Form S-3 or Form F-3 for debt 
offerings if the parent company satisfies the eligibility 
requirements in General Instruction I.A. and provides a full and 
unconditional guarantee of the obligations being registered by the 
subsidiary. Pursuant to the revisions to Form S-3 and Form F-3 
adopted in 2007, issuers also may conduct primary securities 
offerings registered on these forms without regard to the size of 
their public float or the rating of debt securities being offered, 
so long as they satisfy the other eligibility conditions of the 
respective forms, have a class of common equity securities listed 
and registered on a national securities exchange, and the issuers do 
not sell more than the equivalent of one-third of their public float 
in primary offerings over any period of 12 calendar months. See 
Revisions to Eligibility Requirements for Primary Offerings on Forms 
S-3 and F-3, Release No. 33-8878 (Dec. 19, 2007) [72 FR 73534].
    \24\ See General Instruction I.B.2. to Forms S-3 and F-3.
---------------------------------------------------------------------------

    General Instruction I.B.2. to Form S-3 provides issuers of non-
convertible securities whose public float does not reach the required 
threshold, or that do not have a public float, with an alternate means 
of becoming eligible to register offerings on Form S-3. Consistent with 
Form S-3, the Commission also adopted a provision in Form F-3 providing 
for the eligibility of a primary offering of investment grade non-
convertible securities by eligible foreign private issuers.\25\
---------------------------------------------------------------------------

    \25\ General Instruction I.B.2. of Form F-3. See Adoption of 
Foreign Issuer Integrated Disclosure System, Release No. 33-6437 
(Nov. 19, 1982) [47 FR 54764]. In 1994, the Commission expanded the 
eligibility requirement to delete references to debt or preferred 
securities and provide Form F-3 eligibility for other investment 
grade securities (such as foreign currency or other cash settled 
derivative securities). See Simplification of Registration of 
Reporting Requirements for Foreign Companies, Release No. 33-7053A 
(May 12, 1994) [59 FR 25810].
---------------------------------------------------------------------------

    Since the adoption of those rules relating to security ratings in 
Form S-

[[Page 46605]]

3 and Form F-3, other Commission forms and rules relating to securities 
offerings or issuer disclosures have included requirements that 
likewise rely on securities ratings.\26\ Among them are Form F-9,\27\ 
Forms S-4 and F-4,\28\ and Exchange Act Schedule 14A.\29\
---------------------------------------------------------------------------

    \26\ This release addresses rules and forms filed by issuers, 
disclosures made by issuers and relevant offering safe harbors under 
the Securities Act and Schedule 14A under the Exchange Act. In 
separate releases to be considered at a later date, the Commission 
intends to adopt rules to address other rules and forms that rely on 
an investment grade ratings component.
    \27\ See General Instruction I. of Form F-9.
    \28\ See General Instruction B.1 of Form S-4 and General 
Instruction B.1(a) of Form F-4.
    \29\ See Note E and Item 13 of Schedule 14A.
---------------------------------------------------------------------------

2. The 2011 Proposing Release
    In February 2011, we proposed to revise the instructions to Form S-
3 and Form F-3 so that they would no longer refer to security ratings 
by an NRSRO as a transaction requirement to permit issuers to register 
primary offerings of non-convertible securities for cash. Instead, we 
proposed that these forms would be available to register primary 
offerings of non-convertible securities if the issuer has issued (as of 
a date within 60 days prior to the filing of the registration 
statement) for cash at least $1 billion in non-convertible securities, 
other than common equity, in offerings registered under the Securities 
Act, over the prior three years. The proposals in the 2011 Proposing 
Release were substantially similar to amendments that were proposed in 
2008.\30\
---------------------------------------------------------------------------

    \30\ See note 16 above.
---------------------------------------------------------------------------

3. Comments Received on the 2011 Proposing Release
    We received 48 comment letters on the 2011 Proposing Release.\31\ 
We received nine comment letters from law firms, nine comment letters 
from associations or industry groups, 16 comment letters from utility 
companies, one comment letter from an institutional investor, two 
comment letters from banks or bank holding companies and 11 comment 
letters from other interested parties. The majority of the comments 
focused on the proposals to amend the eligibility criteria for Form S-3 
and Form F-3.
---------------------------------------------------------------------------

    \31\ The public comments we received on the 2011 Proposing 
Release are available on our Web site at http://www.sec.gov/comments/s7-18-08/s71808.shtml. In addition, to facilitate public 
input on the Dodd-Frank Act, we provided a series of e-mail links, 
organized by topic, on our Web site at http://www.sec.gov/spotlight/regreformcomments.shtml. The public comments we received on Section 
939A of the Dodd-Frank Act are available on our Web site at http://www.sec.gov/comments/df-title-ix/credit-rating-agencies/credit-rating-agencies.shtml.
---------------------------------------------------------------------------

    All of the commentators suggested modifications to the proposals to 
amend Form S-3 and Form F-3. Several commentators believed that 
Congress did not intend to change the pool of issuers eligible to use 
Form S-3 and Form F-3.\32\ Commentators generally did not believe that 
the Form S-3 and Form F-3 criteria needed to mirror the standard for 
issuers to qualify as WKSIs.\33\ In particular, commentators noted that 
the proposed non-convertible securities (other than common equity) 
offering standard in the 2011 Proposing Release was disproportionately 
higher than the standard for primary offerings on Form S-3 and Form F-3 
by issuers that have an aggregate market value of $75 million or more 
for their voting and non-voting common equity held by non-
affiliates.\34\ As a result, commentators raised concerns that the 
proposals would result in issuers who are currently eligible to use 
Form S-3 or Form F-3 losing that eligibility.\35\
---------------------------------------------------------------------------

    \32\ See letters from Securities Industry and Financial Markets 
Association dated March 18, 1011 (SIFMA), SCANA Corporation dated 
March 28, 2011 (SCANA), Public Service Enterprise Group dated March 
28, 2011 (PSEG), Davis Polk & Wardwell dated March 25, 2011 (Davis 
Polk), Exelon Corporation dated March 28, 2011 (Exelon), National 
Association of Real Estate Investment Trusts dated March 28, 2011 
(NAREIT), The Financial Services Roundtable dated March 28, 2011 
(Roundtable), Pepco Holdings, Inc. dated March 28, 2011 (Pepco), 
Edison Electric Institute dated March 28, 2011 (EEI) and Society of 
Corporate Secretaries & Governance Professionals dated April 1, 2011 
(SCSGP).
    \33\ See letters from SIFMA, Debevoise & Plimpton LLP dated 
March 29, 2011 (Debevoise), Davis Polk, Cleary, Exelon, NAREIT, 
SCSGP, McGuire Woods LLP dated March 28, 2011 (McGuire Woods) and 
UnionBanCal Corporation dated March 28, 2011 (UnionBanCal).
    \34\ See letters from Davis Polk, Cleary, McGuire Woods, 
Debevoise, UnionBanCal, NAREIT, SCSGP and Exelon.
    \35\ See letters from Boeing Capital Corporation dated March 25, 
2011 (BCC), EEI, Central Hudson Gas & Electric Corporation dated 
March 16, 2011 (Central Hudson), PSEG, DTE Energy Company dated 
March 28, 2011 (DTE), Alliant Energy Corporation dated March 28, 
2011 (Alliant), PNM Resources, Inc. dated March 28, 2011 (PNM), The 
Laclede Group, Inc. dated March 29, 2011 (Laclede), Vectren 
Corporation dated April 5, 2011 (Vectren), Sutherland Asbill & 
Brennan LLP dated March 28, 2011 (Sutherland), Roundtable, NAREIT, 
SCSGP and American Council of Life Insurers dated May 11, 2011 
(ACLI).
---------------------------------------------------------------------------

    In the 2011 Proposing Release, we requested comment on whether we 
should adopt rules that would keep the pool of issuers currently 
eligible to use Form S-3 and Form F-3 substantially the same. 
Commentators suggested several alternatives to the proposals in the 
2011 Proposing Release that may preserve Form S-3 and Form F-3 
eligibility for certain issuers. The commentators generally believed 
that the alternatives suggested would reserve the use of Form S-3 and 
Form F-3 for issuers that were widely followed in the marketplace. Some 
of the alternatives suggested by commentators include:
     Allowing either wholly or majority-owned subsidiaries of 
WKSIs to use Form S-3 or Form F-3; \36\
---------------------------------------------------------------------------

    \36\ See letters from BCC, Exelon, EEI, SCSGP, Southern, McGuire 
Woods, Dominion, Alliant, Laclede, Debevoise, Madison Gas and 
Electric Company dated March 29, 2011 (MGE), UnionBanCal and 
Vectren.
---------------------------------------------------------------------------

     Basing the eligibility standard on having $1 billion of 
non-convertible securities other than common equity outstanding; \37\
---------------------------------------------------------------------------

    \37\ See letters from SIFMA, BCC, Cleary, AEP, SCANA, 
Oglethorpe, PSEG, EEI, DTE, UnionBanCal and ACLI. The letter from 
Debevoise indicates that they would support a debt outstanding test 
lower than $1 billion, but they did not specify a threshold. The 
letter from Sutherland supports using a non-convertible security 
(other than common equity) outstanding test with a $500 million 
threshold.
---------------------------------------------------------------------------

     Lowering the $1 billion threshold (commentators suggested 
various thresholds with some as low as $250 million); \38\
---------------------------------------------------------------------------

    \38\ See letters from Davis Polk, Cleary Gottlieb Steen & 
Hamilton LLP dated March 28, 2011 (Cleary), McGuire Woods, 
Debevoise, UnionBanCal, NAREIT, SCSGP and Sutherland.
---------------------------------------------------------------------------

     Extending the measurement period for the $1 billion 
threshold to five years from three years; \39\
---------------------------------------------------------------------------

    \39\ See letters from Cleary, McGuire Woods, Dominion, PSEG and 
EEI.
---------------------------------------------------------------------------

     Allowing securities issued in unregistered offerings of 
non-convertible securities other than common equity to be included in 
the calculation of the $1 billion threshold; \40\
---------------------------------------------------------------------------

    \40\ See letters from Central Hudson, SIFMA, Davis Polk, Exelon, 
NAREIT, McGuire Woods, Oglethorpe, PSEG, Debevoise, UnionBanCal and 
SCSGP.
---------------------------------------------------------------------------

     Allowing non-convertible securities other than common 
equity issued in registered exchange offerings to be included in the $1 
billion calculation; \41\
---------------------------------------------------------------------------

    \41\ See letters from SIFMA, Exelon, McGuire Woods, Oglethorpe, 
PSEG, Debevoise and SCSGP.
---------------------------------------------------------------------------

     Allowing U.S. dollar denominated non-convertible 
securities other than common equity issued in Regulation S offerings to 
be included in the $1 billion calculation; \42\
---------------------------------------------------------------------------

    \42\ See letter from Davis Polk.
---------------------------------------------------------------------------

     Adding an exception to allow regulated operating 
subsidiaries of utility companies to continue to use Form S-3 and Form 
F-3; \43\
---------------------------------------------------------------------------

    \43\ See letters from Central Hudson, Entergy Corporation dated 
March 21, 2011 (Entergy), American Electric Power dated March 28, 
2011 (AEP), SCANA, Pepco, Roundtable, The Southern Company dated 
March 28, 2011 (Southern), Dominion Resources, Inc. dated March 28, 
2011 (Dominion), Wisconsin Energy Corporation dated March 28, 2011 
(Wisconsin Energy), Alliant, DTE, EEI, Laclede, American Gas 
Association dated March 28, 2011 (AGA) and Vectren.
---------------------------------------------------------------------------

     Adding an exception that would allow insurance company 
issuers of

[[Page 46606]]

certain insurance contracts to continue to use Form S-3 and Form F-3; 
\44\ and
---------------------------------------------------------------------------

    \44\ See letters from Sutherland, Roundtable, and ACLI. Issuers 
of certain insurance contracts (e.g., contracts with so-called 
``market value adjustment'' features and contracts that provide 
insurance benefits in connection with assets held in an investor's 
mutual fund, brokerage, or investment advisory account) are 
currently eligible to use Form S-3 and Form F-3 under General 
Instruction I.B.2. if these contracts have investment grade ratings. 
Market value adjustment (``MVA'') features have historically been 
associated with annuity and life insurance contracts that provide a 
specified rate of return to purchasers. In order to protect the 
insurer against the risk that a purchaser may take withdrawals from 
the contract at a time when the market value of the insurer's assets 
that support the contract has declined due to rising interest rates, 
insurers sometime impose an MVA upon surrender. Under an MVA 
feature, the insurer adjusts the proceeds a purchaser receives upon 
early surrender to reflect changes in the market value of its 
portfolio securities supporting the contract.
---------------------------------------------------------------------------

     Adding an exception that would allow operating partnership 
subsidiaries of REITs to continue to use Form S-3 and Form F-3.\45\
---------------------------------------------------------------------------

    \45\ See letter from NAREIT.
---------------------------------------------------------------------------

    Several commentators did not believe that the new eligibility 
criteria for Form S-3 and Form F-3 for primary offerings of non-
convertible securities, other than common equity, should be based on 
the WKSI standard because it is disproportional to the criteria in Form 
S-3 and Form F-3 for primary offerings made in reliance on General 
Instruction I.B.1 of Form S-3 and Form F-3.\46\ Commentators noted that 
the WKSI standard should be more stringent than the criteria for Form 
S-3 and Form F-3 eligibility because of the benefits, such as automatic 
shelf registration, that WKSI status confers.\47\ Some commentators 
suggested that we should provide additional, alternative criteria for 
Form S-3 and Form F-3 eligibility.\48\
---------------------------------------------------------------------------

    \46\ See letters from Davis Polk, Cleary, McGuire Woods, 
Debevoise, UnionBanCal and NAREIT.
    \47\ Id.
    \48\ See letters from SIFMA, BCC and Exelon.
---------------------------------------------------------------------------

    In addition, some commentators believed the three-year look back 
for the $1 billion threshold in the 2011 Proposing Release was 
arbitrary and could have significant consequences. One commentator 
believed that the volume standard could be ``volatile'' particularly in 
times of financial uncertainty.\49\ One commentator did not believe its 
following in the marketplace would be affected by the timing of its 
debt issuances and would not be significantly affected if it did not 
issue $1 billion in three years.\50\ One commentator did not believe 
Form S-3 and Form F-3 eligibility should be based on the frequency of 
debt issuances and believed issuers would be followed on the basis of 
their debt outstanding.\51\ Several utility company commentators noted 
that debt issuances within their industry are done on an irregular 
basis in connection with large capital projects, which would make the 
three-year test difficult to satisfy on a consistent basis.\52\
---------------------------------------------------------------------------

    \49\ See letter from Orchard Street Partners LLC dated February 
10, 2011 (Orchard Street).
    \50\ See letter from BCC.
    \51\ See letter from Exelon.
    \52\ See letters from Entergy, Exelon, Dominion, Wisconsin 
Energy, Alliant, Oglethorpe, DTE and EEI.
---------------------------------------------------------------------------

    Commentators generally believed that if issuers were unable to 
satisfy the proposed standard, they would seek to raise capital in the 
private markets instead of registering offerings on Form S-1.\53\ 
Commentators believed that private offerings would be more efficient 
and take less time than a registered offering on Form S-1.\54\ 
Commentators noted that using the private markets would make it 
difficult for issuers to ever gain eligibility for Form S-3 because the 
amount of non-convertible securities (other than common equity) issued 
in private offerings is not included in calculating the $1 billion 
threshold under the proposal.\55\ Commentators also noted that if 
issuers were to use the private markets, it would be inconsistent with 
the Commission's policy preference for registered offerings.\56\
---------------------------------------------------------------------------

    \53\ See letters from NAREIT, Davis Polk, Central Hudson, 
Entergy, Exelon, Oglethorpe, PSEG, DTE, Laclede and AGA.
    \54\ See letters from Central Hudson, Entergy and Exelon.
    \55\ See letters from Central Hudson, SIFMA, Oglethorpe and DTE.
    \56\ See letters from Davis Polk, NAREIT and EEI.
---------------------------------------------------------------------------

    We have reviewed and considered all of the comments we received on 
the proposed amendments. The adopted amendments reflect changes made in 
response to many of these comments. These changes are discussed in more 
detail below.
4. Amendments
(i) Replace Investment Grade Rating Criterion With Alternative Criteria
(a) Overview
    Today we are adopting amendments to revise the transaction 
eligibility criteria for registering primary offerings of non-
convertible securities on Forms S-3 and F-3. After considering the 
comments we received on the 2011 Proposing Release, we believe that the 
amendments we are adopting today provide an appropriate and workable 
alternative to credit ratings for determining whether an issuer should 
be able to use Form S-3 and Form F-3 and have access to the shelf 
offering process.
    The instructions to Forms S-3 and F-3 will no longer refer to 
security ratings by an NRSRO as a transaction requirement to permit 
issuers to register primary offerings of non-convertible securities for 
cash. Instead, these forms will be available to register primary 
offerings of non-convertible securities other than common equity if:
    (i) The issuer has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or
    (ii) The issuer has outstanding (as of a date within 60 days prior 
to the filing of the registration statement) at least $750 million of 
non-convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act; 
or
    (iii) The issuer is a wholly-owned subsidiary of a WKSI as defined 
in Rule 405 under the Securities Act; or
    (iv) The issuer is a majority-owned operating partnership of a REIT 
that qualifies as a WKSI; or
    (v) The issuer discloses in the registration statement that it has 
a reasonable belief that it would have been eligible to register the 
securities offerings proposed to be registered under such registration 
statement pursuant to General Instruction I.B.2 of Form S-3 or Form F-3 
in existence prior to the new rules, discloses the basis for such 
belief, and files the final prospectus for any such offering on or 
before the date that is three years from the effective date of the 
amendments.\57\
---------------------------------------------------------------------------

    \57\ See revised General Instruction I.B.2. of Forms S-3 and F-
3. We are also deleting the reference to General Instruction I.B.2 
in Instruction 3 to the signature block of Forms S-3 and F-3. 
Instruction 3 to the signature block of Form S-3 and Form F-3 
provides that a registrant may sign the registration statement even 
if a final credit rating has not been issued so long as the 
registrant states its reasonable belief that the rating will be 
issued by the time of sale. See Section II.B. below for a discussion 
of General Instruction I.B.5.
---------------------------------------------------------------------------

    We are modifying eligibility criteria for use of Form S-3 and Form 
F-3 from the proposal because we are persuaded by commentators' 
arguments that the criteria from the 2011 Proposing Release could 
result in some issuers who should be eligible to use Form S-3 or Form 
F-3 because of their wide market following and who are currently 
eligible to no longer be eligible. As we noted in the 2011 Proposing 
Release, we are not aware of anything in the legislative history to 
indicate that Congress intended to substantially alter the pool of 
issuers eligible for short-form

[[Page 46607]]

registration and access to the shelf registration process.\58\ 
Accordingly, we believe that any alternative standard for Form S-3 and 
Form F-3 eligibility that does not refer to credit ratings should 
preserve the forms and access to the shelf registration process for 
issuers who have a wide following in the marketplace.\59\ These 
modifications to the proposals should preserve short-form eligibility 
for widely followed issuers. In addition to adding a non-convertible 
securities issued criteria, as proposed, we are also adding other 
criteria intended to allow widely followed issuers access to Form S-3 
and Form F-3 and the shelf registration process.\60\ These criteria do 
not distinguish among issuers by the quality of their credit but 
instead focus on wide following in the marketplace. Those modifications 
are discussed in more detail below.
---------------------------------------------------------------------------

    \58\ See 2011 Proposing Release, supra, note 15, at note 20.
    \59\ See Securities Offering Reform, Release No. 33-8591 (Aug. 
3, 2005) [70 FR 44722], where we said that we believed issuers with 
a wide following would produce ``Exchange Act reports that not only 
are reliable but also are broadly scrutinized by investors and the 
markets.''
    \60\ We note that none of these criteria are a standard of 
credit worthiness.
---------------------------------------------------------------------------

    In the 2011 Proposing Release, we solicited comment specifically 
related to how the proposals would affect operating subsidiaries of 
utility companies, REITs and insurance company issuers of certain 
insurance contracts. Among other things, we asked whether we should 
adopt industry-specific provisions that would enable these companies to 
continue to file registration statements on Form S-3 and Form F-3. The 
revisions we have made to the proposals, including the addition of 
several alternative standards, would allow widely followed issuers to 
use Form S-3 and Form F-3, and we believe that most of the operating 
subsidiaries of utility companies, REITs and insurance company issuers 
of certain insurance contracts that may have been excluded under the 
proposals will be included under the amendments we are adopting 
today.\61\
---------------------------------------------------------------------------

    \61\ See Section II.A.4.ii below for a discussion of the impact 
of the amendments.
---------------------------------------------------------------------------

(b) $1 Billion of Non-Convertible Securities (Other Than Common Equity) 
Issued or $750 Million of Non-Convertible Securities (Other Than Common 
Equity) Outstanding
    We are adopting the $1 billion of non-convertible securities, other 
than common equity, issued over three years criterion as proposed 
because we believe it would be an appropriate indicator of whether an 
issuer is widely followed. In addition, we are persuaded by 
commentators' arguments that focusing solely on issuances over the past 
three years may inappropriately limit use of Form S-3 or Form F-3. We 
agree that considering outstanding securities issued in primary 
registered offerings would result in issuers for whom short form 
registration is appropriate being eligible to use Form S-3 or Form F-3. 
As a result, we are amending General Instruction I.B.2. of Form S-3 and 
Form F-3 to provide that, among other things and in addition to the $1 
billion of non-convertible securities, other than common equity, issued 
over three years criterion, an issuer that has at least $750 million of 
non-convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act 
outstanding (as measured from a date within 60 days prior to the filing 
of the registration statement) will be eligible to register on Form S-3 
or Form F-3 if the issuer meets the other requirements (such as those 
in General Instruction I.A.) of the form. For the non-convertible 
securities (other than common equity) outstanding criteria, we chose a 
level of $750 million because we believe this threshold will allow 
currently eligible issuers to continue to use Form S-3 and Form F-3 
while preserving the forms' use for widely followed issuers. As noted 
above, several commentators supported a lower threshold than $1 
billion.\62\ While most of those commentators supported a threshold 
ranging from $250 million to $500 million, we believe setting the 
threshold to $750 million of non-convertible securities (other than 
common equity) outstanding will encourage registered offerings and 
assist in maintaining the availability of Form S-3 and Form F-3 for 
currently eligible issuers while also preserving Form S-3 and Form F-3 
for widely followed issuers. This alternative will allow companies that 
have irregular issuances of non-convertible securities (other than 
common equity), but that still have significant amounts of non-
convertible securities (other than common equity) issued in primary, 
registered offerings outstanding, to continue to have access to short-
form registration and the shelf offering process. Similarly, by also 
adopting the $1 billion issued over three years threshold, we believe 
issuers who may issue a significant amount of non-convertible 
securities over a three-year period but then retire a portion of those 
securities based on prevailing market conditions will be able to 
continue to be eligible to use Form S-3 and Form F-3.
---------------------------------------------------------------------------

    \62\ See note 38 above. The commentators included law firms and 
industry groups.
---------------------------------------------------------------------------

    Consistent with the 2011 Proposing Release, the revised thresholds 
should be calculated consistent with the standards used to determine 
WKSI status. As a result, in determining compliance with both the $1 
billion issued and the $750 million outstanding thresholds:
     Issuers can aggregate the amount of non-convertible 
securities, other than common equity, issued in registered primary 
offerings that were issued within the previous three years (measured as 
of a date within 60 days prior to the filing of the registration 
statement) or, for the non-convertible securities (other than common 
equity) outstanding threshold, that are outstanding as of a date within 
60 days prior to the filing of the registration statement;
     Issuers can include only such non-convertible securities, 
other than common equity, that were issued in registered primary 
offerings for cash and not registered exchange offers; \63\ and
---------------------------------------------------------------------------

    \63\ Issuers will not be permitted to include the principal 
amount of securities that were offered in registered exchange offers 
by the issuer when determining compliance with the eligibility 
thresholds. A substantial portion of these offerings involve 
registered exchange offers of substantially identical securities for 
securities that were sold in private offerings.
---------------------------------------------------------------------------

     Parent company issuers only can include in their 
calculation the principal amount of their full and unconditional 
guarantees, within the meaning of Rule 3-10 of Regulation S-X,\64\ of 
non-convertible securities, other than common equity, of their 
majority-owned subsidiaries issued in registered primary offerings for 
cash over the prior three years or, for the non-convertible securities 
(other than common equity) outstanding threshold, that are outstanding 
as of a date within 60 days prior to the filing of the registration 
statement.
---------------------------------------------------------------------------

    \64\ 17 CFR 210.3-10.
---------------------------------------------------------------------------

    In response to public comment, we have added an instruction to Form 
S-3 and Form F-3 clarifying how insurance company issuers should 
calculate the $1 billion issued and $750 million outstanding 
thresholds. Insurance company issuers, when registering offerings of 
insurance contracts,\65\ will be permitted to include in their 
calculation the amount of insurance contracts, including variable 
insurance contracts, issued in offerings registered under the 
Securities Act over the prior

[[Page 46608]]

three years, or for the non-convertible securities (other than common 
equity) outstanding threshold, that are outstanding as of a date within 
60 days prior to the filing of the registration statement.\66\ We 
believe that insurance company issuers that have a significant amount 
of registered contracts issued or outstanding receive sufficient 
scrutiny by the marketplace that short-form registration is appropriate 
for insurance contracts of those issuers. We also believe that 
calculating the eligibility thresholds in this manner will enable 
insurance company issuers that are currently eligible to use Form S-3 
and Form F-3 to register insurance contract offerings, and that are 
unable to rely on the alternative eligibility criteria, to remain 
eligible to use those forms.
---------------------------------------------------------------------------

    \65\ For this purpose, an ``insurance contract'' is a security 
that is subject to regulation under the insurance laws of any State 
or Territory of the United States or the District of Columbia.
    \66\ One commenter asked that we clarify that an insurance 
company be permitted to include variable insurance contracts in 
calculating whether the insurance company meets the eligibility 
threshold. See letter from Sutherland.
---------------------------------------------------------------------------

    In calculating the $1 billion or the $750 million amount, as 
applicable, issuers generally will be permitted to include the 
principal amount of any debt and the greater of liquidation preference 
or par value of any non-convertible preferred stock that were issued in 
primary registered offerings for cash.\67\ In calculating the $1 
billion amount or the $750 million amount, as applicable, an insurance 
company, when using Form S-3 or Form F-3 to register insurance 
contracts, may include the purchase payments or premium payments for 
insurance contracts issued in offerings registered under the Securities 
Act over the prior three years, or for the non-convertible securities 
(other than common equity) outstanding threshold, the contract value as 
of the measurement date, of any outstanding insurance contracts issued 
in offerings registered under the Securities Act.\68\
---------------------------------------------------------------------------

    \67\ In determining the dollar amount of securities that have 
been registered during the preceding three years, issuers will use 
the same calculation that they use to determine the dollar amount of 
securities they are registering for purposes of determining fees 
under Rule 457 [17 CFR 230.457].
    \68\ For variable insurance contracts, the amount of purchase 
payments or premium payments used in this calculation may not 
include amounts initially allocated to investment options that are 
not registered under the Securities Act, and the contract value may 
not include amounts allocated as of the measurement date to 
investment options that are not registered under the Securities Act.
---------------------------------------------------------------------------

    Several commentators asserted that we should allow issuers to 
include securities issued in unregistered transactions to be included 
in the eligibility threshold.\69\ In addition, some commentators wanted 
us to permit the inclusion of registered exchange offers in the 
calculations,\70\ and one commentator believed that U.S. dollar 
denominated securities issued in Regulation S offerings should be 
permitted to be included in the calculations.\71\ These commentators 
generally believed that securities issued in these transactions play a 
role in whether an issuer is widely followed.\72\ After considering the 
comments, we have decided not to allow securities issued in 
unregistered offerings, registered exchange offerings or Regulation S 
offerings to be included in the $1 billion or $750 million 
calculations. We are concerned that including such securities could 
result in the inclusion of some securities that are not indicative of 
wide market following, and thus do not benefit from the attendant 
scrutiny of the issuer's public filings by a broad section of market 
participants, such as privately negotiated placements to a small number 
of investors. We are also concerned that delineating when a private 
offering would, and would not, be included would be unworkable. 
Further, as noted above, the Commission has previously indicated a 
policy preference for registered offerings.\73\ We believe that it 
would be inconsistent with that preference to allow securities issued 
in transactions not registered under the Securities Act to be included 
in the calculation of the $1 billion or $750 million thresholds. In 
addition, the calculation of the $1 billion and the $750 million 
standards are substantially similar to the calculation for WKSI status 
in which unregistered and registered exchange offerings are not 
permitted to be included.
---------------------------------------------------------------------------

    \69\ See letters from Central Hudson, SIFMA, Davis Polk, Exelon, 
NAREIT, McGuire Woods, Oglethorpe, PSEG, Debevoise, UnionBanCal and 
SCSGP.
    \70\ See letters from SIFMA, Exelon, McGuire Woods, Oglethorpe, 
PSEG, Debevoise and SCSGP.
    \71\ See letter from Davis Polk.
    \72\ See, e.g., letter from SIFMA.
    \73\ See note 56 and related text. See also Securities Offering 
Reform in note 59 above.
---------------------------------------------------------------------------

(c) Subsidiaries of WKSIs
    Under the amendments as adopted, issuers that are wholly-owned 
subsidiaries of WKSIs will be eligible to use Form S-3 or Form F-3 for 
offerings of non-convertible securities other than common equity. 
Commentators noted that a wholly-owned subsidiary of a WKSI is likely 
to be followed by analysts who follow the WKSI as a part of the WKSI's 
operations, which supports allowing these companies access to Form S-3 
and Form F-3. We also believe this will allow many utility company 
operating subsidiaries and insurance company issuers of certain 
insurance contracts to continue to be able to use Form S-3 and Form F-
3, which would reduce the negative impact the proposals in the 2011 
Proposing Release potentially could have had on these issuers' ability 
to raise capital and to offer securities.
    Some commentators urged us to permit less than wholly-owned 
subsidiaries of WKSIs to have access to Form S-3 and Form F-3 under a 
new eligibility criteria for subsidiaries of WKSIs.\74\ Except with 
respect to certain REIT structures discussed below, we have limited 
this eligibility to wholly-owned subsidiaries of WKSIs because we 
believe that a wholly-owned subsidiary is more likely to be followed by 
analysts in connection with its WKSI parent. Also, we note that the 
limitation does not appear to significantly impact the eligibility of 
WKSI subsidiaries currently eligible to use Form S-3 and Form F-3.
---------------------------------------------------------------------------

    \74\ See note 36 above and related text.
---------------------------------------------------------------------------

    Although the new criteria for subsidiaries of WKSIs will generally 
be limited to wholly-owned subsidiaries, we are adopting a provision 
that will allow certain operating partnerships of REITs to continue to 
use Form S-3 and Form F-3. Given the partnership structure, REITs 
generally do not wholly own the operating partnerships; however, the 
REIT controls the operating partnership because it is the general 
partner. Further, the REIT generally conducts all of its business 
through the operating partnership and holds its properties in the 
operating partnership. As a result of this structure, one commentator 
representing the REIT industry explained that followers of the REIT 
parent analyze the operations of the operating partnerships in 
conjunction with following the REIT.\75\ We are adopting a provision 
that will allow a majority-owned operating partnership subsidiary of a 
REIT to register offerings of non-convertible securities, other than 
common equity, on Form S-3 or Form F-3 so long as the REIT parent is a 
WKSI. In the limited context of REITs with operating partnerships, we 
believe permitting the use of Form S-3 and Form F-3 by majority-owned 
operating partnerships whose REIT parent is a WKSI is consistent with 
our goal of seeking to assure that entities using those forms are 
widely followed.
---------------------------------------------------------------------------

    \75\ See letter from NAREIT.
---------------------------------------------------------------------------

(d) Grandfathering of Other Currently Eligible Issuers
    Finally, commentators expressed wide support for a temporary

[[Page 46609]]

``grandfather'' provision that would allow issuers that are currently 
eligible to use Form S-3 and Form F-3 to continue to use those forms 
for a period of time even if the issuers would not be eligible under 
the new rules.\76\ As noted above, we are not aware of anything in the 
legislative history to indicate that Congress intended for Section 939A 
of the Dodd-Frank Act to substantially alter access to our short forms 
or the shelf registration process. Although we believe that the 
revisions to the proposal described above would not result in 
significant numbers of issuers losing access to those forms, we are 
nevertheless concerned that there could be some issuers that would no 
longer be eligible to use Form S-3 or Form F-3. In order to ease 
transition to the new rules and allow companies affected by the 
amendments time to adjust, we are adopting a temporary ``grandfather'' 
clause that will allow issuers who reasonably believe they would have 
been eligible to rely on General Instruction I.B.2. of Form S-3 or Form 
F-3 based on the criteria in existence prior to the new rules and who 
disclose that belief and the basis for it in the registration 
statement, to be able to use Form S-3 and Form F-3 if they file a final 
prospectus for an offering on Form S-3 or Form F-3 within three years 
from the effective date of the new rules.\77\ We are adopting a 
``reasonable belief'' standard because of the way in which some credit 
ratings work. Because some issuers would likely not obtain a credit 
rating until a deal is relatively certain (unless the issuer has an 
issuer rating), those issuers would not have a bright-line way of 
determining whether they were eligible to use Form S-3 and Form F-3 
based on the criteria in effect prior to the new rules. We believe 
requiring the issuer to disclose its reasonable belief will prompt 
issuers to consider carefully whether the disclosure is accurate since 
they will be responsible for the disclosure under the Securities Act. 
As a result, as long as the issuer has a reasonable belief that it 
would have been eligible and discloses that belief (and the basis for 
it) in the registration statement, the issuer will be able use Form S-3 
and Form F-3 for a period of three years from the effective date of the 
new rules. We believe three years will provide issuers with enough time 
to adjust to the new rules, including modifying how they might choose 
to offer securities. Factors that indicate a reasonable belief of 
eligibility would include, but not be limited to:
---------------------------------------------------------------------------

    \76\ See letters from SIFMA, Entergy, Davis Polk, Cleary, AEP, 
Roundtable, Wisconsin Energy, Oglethorpe, DTE, MGE and Vectren.
    \77\ Under this eligibility standard, issuers will be able to 
file new Forms S-3 or F-3, but any offerings would need to have a 
final prospectus filed within three years of the effective date of 
the new rules.
---------------------------------------------------------------------------

     An investment grade issuer credit rating;
     A previous investment grade credit rating on a security 
issued in an offering similar to the type the issuer seeks to register 
that has not been downgraded or put on a watch-list since its issuance; 
or
     A previous assignment of a preliminary investment grade 
rating.
(ii) Impact of Amendments
    We noted in the 2011 Proposing Release that we anticipated that 
under the proposed threshold, which was intended to capture widely 
followed issuers based on the amount of recently issued non-convertible 
securities other than common equity, some high yield debt issuers and 
issuers without credit ratings that are not currently eligible to use 
Form S-3 would become eligible and some issuers currently eligible to 
use Form S-3 and Form F-3 would become ineligible. We believe the 
changes we have made to the proposals, which include also considering 
the amount of outstanding non-convertible securities other than common 
equity, will reduce the likelihood of unnecessarily excluding issuers 
that are currently eligible to use Form S-3 and Form F-3. In the 
proposing release, based on a review of non-convertible securities, 
other than common equity, issued in the United States from January 1, 
2006 through August 15, 2008, we estimated that approximately 45 
issuers who were previously eligible to use Form S-3 (and who had made 
an offering during the review period) would no longer be able to use 
Form S-3 for offerings of non-convertible securities other than common 
equity securities.\78\ We further estimated in the 2011 Proposing 
Release that approximately eight issuers who were previously ineligible 
to use Form S-3 or Form F-3 would be eligible to use those forms if the 
proposals were adopted. In connection with the changes to the proposals 
that we are adopting today, we reviewed the 45 companies we believed 
would become ineligible to use Form S-3 or Form F-3 under the proposals 
to determine how many companies would remain eligible to use Form S-3 
and Form F-3. Based on our review, we estimate that of the 45 companies 
we previously estimated would be excluded under the proposal, 39 would 
remain eligible because they are wholly-owned subsidiaries of WKSIs and 
two would remain eligible because they have at least $750 million in 
non-convertible securities (other than common equity) outstanding. 
Thus, from the sample of 45 companies that would have lost their 
eligibility based on the standards in the proposing release, four 
companies would remain ineligible to use Form S-3 or Form F-3 with the 
changes we are making in this adopting release. Based on the review of 
offerings described above, we estimate that 16 issuers who have 
recently used Form S-1 will become newly eligible to use Form S-3 and 
Form F-3. The number of issuers who may become newly eligible to use 
Form S-3 or Form F-3 includes insurance company issuers of certain 
insurance contracts, a number of whom now file on Form S-1 but that 
will become eligible to use Form S-3 as a result of the changes made to 
the eligibility requirements being adopted.\79\ As a result, we believe 
that the amendments will result in a net increase of 12 additional 
issuers becoming eligible to use Form S-3 and Form F-3.
---------------------------------------------------------------------------

    \78\ See the 2011 Proposing Release at note 58 and related text.
    \79\ See note 44 above.
---------------------------------------------------------------------------

    Some commentators believed that our estimates in the proposing 
release understated the number of companies that would be affected by 
the proposals.\80\ Another commentator reviewed data from March 2008 to 
March 2011 in the utility industry and believes that at least 60 
utility companies would have been affected.\81\ We acknowledged in the 
2011 Proposing Release that reviewing offerings during a different time 
period would give different results. We also acknowledged that our data 
did not capture issuers who were eligible to use Form S-3 and Form F-3 
but did not make offerings during the review period. However, we 
believe that the changes we are making to the proposals will reduce the 
impact on certain issuers, particularly utility companies, REITs and 
insurance company issuers of certain insurance contracts. We believe 
the provision to allow wholly-owned subsidiaries of WKSIs (or, in the 
case of REITs, majority owned operating partnerships of WKSIs) to 
continue to have access to Form S-3 and Form F-3 and the other changes 
we are making will allow these types of issuers continued access to 
short form registration and the shelf offering process. Because we do 
not believe

[[Page 46610]]

Congress intended to substantially alter the companies eligible to use 
Form S-3 and Form F-3, we are adopting a standard that we believe 
balances the goals of preserving Form S-3 and Form F-3 eligibility for 
current users while reserving the forms for issuers that are widely 
followed in the marketplace.
---------------------------------------------------------------------------

    \80\ See letters from SIFMA, Entergy and EEI.
    \81\ See letter from SIFMA. See also letter from Entergy, who 
argued that the potential number of utility companies affected may 
have been understated because utility companies did not make 
offerings due to market conditions.
---------------------------------------------------------------------------

B. Technical Amendment to General Instruction I.B.5. of Form S-3

    General Instruction I.B.5. to Form S-3 provides transaction 
requirements for offerings of investment grade asset-backed securities. 
That instruction contains a cross-reference to the definition of 
``investment grade securities'' that currently is found in General 
Instruction I.B.2. of Form S-3. As one commentator noted, the 
amendments we are adopting today would remove the definition of 
investment grade securities from General Instruction I.B.2.\82\ In 
April 2010, we proposed to remove references to credit ratings as a 
requirement for shelf eligibility for offerings of asset-backed 
securities.\83\ Among other things, the proposal would have required 
risk retention by the sponsor as a condition to shelf eligibility. 
Those proposals are still outstanding. As a result, such issuers still 
look to General Instruction I.B.5. for their offerings. Therefore, we 
are adopting an amendment to General Instruction I.B.5. of Form S-3 to 
move the definition of investment grade securities to that instruction 
until such time as new shelf eligibility requirements for asset-backed 
issuers are adopted that do not reference credit ratings.
---------------------------------------------------------------------------

    \82\ See letter from American Securitization Forum dated March 
28, 2011 (ASF).
    \83\ See Asset-Backed Securities, Release No. 33-9117 (Apr. 7, 
2010) [75 FR 23328]. In 2010, we proposed amendments that would 
remove General Instruction I.B.5. of Form S-3 and move shelf 
offerings of asset-backed securities to a new form.
---------------------------------------------------------------------------

C. Rescission of Form F-9

    Form F-9 allows certain Canadian issuers \84\ to register 
investment grade debt or investment grade preferred securities that are 
offered for cash or in connection with an exchange offer, and which are 
either non-convertible or not convertible for a period of at least one 
year from the date of issuance.\85\ Under the form's requirements, a 
security is rated ``investment grade'' if it has been rated investment 
grade by at least one NRSRO, or at least one Approved Rating 
Organization, as defined in National Policy Statement No. 45 of the 
Canadian Securities Administrators (``CSA'').\86\ This eligibility 
requirement was adopted as part of a 1993 revision to the MJDS 
originally adopted by the Commission in 1991 in coordination with the 
CSA.\87\
---------------------------------------------------------------------------

    \84\ Form F-9 is the Multijurisdictional Disclosure System 
(``MJDS'') form used to register investment grade debt or preferred 
securities under the Securities Act by eligible Canadian issuers.
    \85\ Securities convertible after a period of at least one year 
may only be convertible into a security of another class of the 
issuer.
    \86\ See General Instruction I.A. to Form F-9.
    \87\ See Amendments to the Multijurisdictional Disclosure System 
for Canadian Issuers, Release No. 33-7025 (Nov. 3, 1993) [58 FR 
62028]. See also Multijurisdictional Disclosure and Modifications to 
the Current Registration and Reporting System for Canadian Issuers, 
Release No. 33-6902 (June 21, 1991) [56 FR 30036].
---------------------------------------------------------------------------

    Under Form F-9, an eligible issuer has been able to register 
investment grade securities using audited financial statements prepared 
pursuant to Canadian generally accepted accounting principles 
(``Canadian GAAP'') without having to include a U.S. GAAP 
reconciliation. In contrast, a MJDS filer must reconcile its home 
jurisdiction financial statements to U.S. GAAP when registering 
securities on a Form F-10.\88\ However, the CSA has adopted rules that 
will require Canadian reporting companies to prepare their financial 
statements pursuant to International Financial Reporting Standards as 
issued by the International Accounting Standards Board (``IFRS'') 
beginning in 2011.\89\ Foreign private issuers that prepare their 
financial statements in accordance with IFRS are not required to 
prepare a U.S. GAAP reconciliation.\90\ Since a Canadian issuer will 
not have to perform a U.S. GAAP reconciliation under IFRS, one of the 
primary differences between Form F-9 and Form F-10 will be eliminated. 
Once the Canadian IFRS-related amendments become effective,\91\ the 
disclosure requirements for an investment grade securities offering 
registered on Form F-10 will be the same as the disclosure requirements 
for one registered on Form F-9.
---------------------------------------------------------------------------

    \88\ See Item 2 under Part I of Form F-10 [17 CFR 239.40]. Form 
F-10 is the general MJDS registration statement that may be used to 
register securities for a variety of offerings, including primary 
offerings of equity and debt securities, secondary offerings, and 
exchange offers pursuant to mergers, statutory amalgamations, and 
business combinations.
    \89\ See, for example, CSA IFRS-Related Amendments to Securities 
Rules and Policies (2010), which are available at: http://www.osc.gov.on.ca/documents/en/Securities-Category5/rule_20101001_52-107_ifrs-amd-3339-supp3.pdf. Canadian reporting companies that 
are U.S. registrants may elect to prepare their financial statements 
in accordance with U.S. GAAP. See Part 3.7 of National Instrument 
52-107.
    \90\ See Item 17(c) of Form 20-F.
    \91\ Canadian reporting issuers and registrants with financial 
years beginning on or after January 1, 2011, will be required to 
comply with the new IFRS requirements. For companies with a year-end 
of December 31, 2011, the initial reporting period under IFRS will 
be the first quarter ending March 31, 2011. See the ``Transition to 
International Financial Reporting Standards'' of the Ontario 
Securities Commission (``OSC''), which is available at: http://www.osc.gov.on.ca/en/ifrs_index.htm?wloc=141RHEN&id=21789EN.
---------------------------------------------------------------------------

    In the 2011 Proposing Release, we proposed to rescind Form F-9 due 
to the Canadian regulatory developments described above. One 
commentator noted that Canadian issuers who have a later fiscal year 
end will have a later effective date for required IFRS financial 
statements.\92\ If Form F-9 were to be rescinded before an issuer is 
required to prepare IFRS financial statements, then that issuer would 
be required to provide a reconciliation to U.S. GAAP in connection with 
the filing of a registration statement during the interim period before 
its IFRS financial statements are available. In order to address this 
concern and ease transition for these issuers, we are adopting a 
delayed effective date of December 31, 2012 for the rescission of Form 
F-9.
---------------------------------------------------------------------------

    \92\ See letter from Bank of Nova Scotia dated March 28, 2011 
(Scotiabank).
---------------------------------------------------------------------------

    Commentators also noted that a gap remains between the eligibility 
requirements for Form F-9 and Form F-10.\93\ Currently, issuers using 
Form F-9 are not required to have a public float while issuers using 
Form F-10 must either have a $75 million public float or be debt 
issuers with a guarantee from a parent meeting the requirements of Form 
F-10. As a result, to the extent a Form F-9 issuer does not have the 
requisite public float and does not have a parent guarantee of its 
debt, it would not be eligible to use Form F-10.
---------------------------------------------------------------------------

    \93\ See letters from Davies Ward Phillips & Vineberg LLP dated 
March 28, 2011 (Davies), Osler, Hoskin & Harcourt LLP dated March 
28, 2011 (Osler) and Fraser Milner Casgrain LLP dated March 28, 2011 
(FMC).
---------------------------------------------------------------------------

    As we noted in the 2011 Proposing Release, MJDS issuers have 
infrequently used Form F-9. Of the 40 Form F-9s filed by 22 issuers 
since January 1, 2007, we believe only one of these issuers would not 
qualify to file on Form F-10 if Form F-9 is rescinded. Consistent with 
the temporary ``grandfather'' provision we are adopting for Form S-3 
and Form F-3 filers, in order to address this concern and ease the 
transition, we are adopting a temporary ``grandfather'' provision in 
Form F-10 that would permit any issuer that discloses in the 
registration statement that it has a reasonable belief that it would 
have been eligible to file on Form F-9 as of the effective date of the 
amendments, and discloses the basis for that belief, to file a final 
prospectus for an offering on Form F-10 for a period of three years 
from the effective date of the new rules even if it does not satisfy

[[Page 46611]]

the parent guarantee or public float requirements of Form F-10.\94\
---------------------------------------------------------------------------

    \94\ Similar to the grandfather provision we are adopting for 
Form S-3 and Form F-3 filers, new Form F-10s may be filed, but 
issuers relying on this instruction will need to file a final 
prospectus for any such offering within three years of the effective 
date of the new rules.
---------------------------------------------------------------------------

    One commentator also noted that removing the reference to Form F-9 
from Form 40-F (as was proposed in the 2011 Proposing Release) would 
result in former F-9 filers who do not have a public float of $75 
million or a parent guarantee of their debt losing eligibility to file 
annual reports on Form 40-F.\95\ Issuers who are not eligible to use 
Form 40-F use Form 20-F, which requires disclosure in accordance with 
standards set by the Commission rather than standards set by the 
Canadian securities regulators. In Form 40-F, Canadian MJDS filers file 
with the Commission their home jurisdiction periodic disclosure 
documents under cover of Form 40-F. In Form 20-F, foreign private 
issuers are subject to the Commission's special disclosure requirements 
for foreign private issuers, and have to prepare separate disclosure to 
comply with those requirements. Similar to the Form F-10 
``grandfather'' provision above, we believe this change to Form 40-F 
would result in a very small number of issuers no longer being able to 
use Form 40-F. In order to address this concern, we are adopting a 
permanent ``grandfather'' provision that would allow currently eligible 
Form 40-F filers to continue to use Form 40-F to satisfy their 
reporting obligations under Section 13 and Section 15(d) of the 
Exchange Act as to previously sold securities if they had filed and 
sold securities under a Form F-9 with the Commission before the 
effective date of the new rules. We believe a permanent ``grandfather'' 
provision is appropriate for these issuers because some issuers may 
have issued securities many years ago and may still be reporting 
pursuant to the requirements of Form 40-F, and given the design of the 
MJDS system, we do not believe it would be appropriate to change the 
requirements that these issuers relied on when the offering was made.
---------------------------------------------------------------------------

    \95\ See letter from Davies.
---------------------------------------------------------------------------

    One commentator was opposed to rescinding Form F-9 because Form F-9 
filers who are in the oil and gas industry are not required to provide 
the disclosure required by Accounting Standards Codification 932 
``Extractive Activities--Oil and Gas'' (ASC 932) that would be required 
for Form F-10 filers.\96\ A review of issuers that have filed a Form F-
9 since January 1, 2007 indicates that this change would affect very 
few issuers. As the commentator notes, the Commission has indicated 
that it will continue to monitor the necessity of providing ASC 932 
disclosure as regulatory changes occur.\97\ At this time we are not 
making any changes to the requirement for Form F-10 filers to provide 
ASC 932 disclosure or otherwise making special accommodations for 
previous Form F-9 filers. We are also not adopting a grandfather 
provision for this disclosure requirement because we believe the burden 
on former F-9 filers will not be significant and will impact a very 
small number of issuers.
---------------------------------------------------------------------------

    \96\ See letter from Paul, Weiss, Rifkind, Wharton & Garrison 
LLP dated March 28, 2011 (Paul Weiss).
    \97\ See Release No. 33-8879, Acceptance From Foreign Private 
Issuers of Financial Statements Prepared in Accordance With 
International Financial Reporting Standards Without Reconciliation 
to U.S. GAAP (Dec. 21, 2007) [73 FR 986].
---------------------------------------------------------------------------

D. Ratings Reliance in Other Forms and Rules

1. Forms S-4 and F-4 and Schedule 14A
    Proposals relating to Form S-4, Form F-4 and Schedule 14A were also 
included in the 2011 Proposing Release. We did not receive significant 
separate comment on these proposals. Form S-4 and Form F-4 include the 
Form S-3 and Form F-3 eligibility criteria by allowing registrants that 
meet the registrant eligibility requirements of Form S-3 or F-3 and 
that are offering investment grade securities to incorporate by 
reference certain information.\98\ Similarly, Schedule 14A permits a 
registrant to incorporate by reference if the Form S-3 registrant 
requirements in General Instruction I.A. are met and action is to be 
taken as described in Items 11, 12 and 14 \99\ of Schedule 14A, which 
concerns non-convertible debt or preferred securities that are 
``investment grade securities'' as defined in General Instruction 
I.B.2. of Form S-3.\100\ In addition, Item 13 of Schedule 14A allows 
financial information to be incorporated into a proxy statement if the 
requirements of Form S-3 (as described in Note E to Schedule 14A) are 
met. Because we are changing the eligibility requirements in Forms S-3 
and F-3 to remove references to ratings by an NRSRO, we believe the 
same standard should apply to the disclosure options in Forms S-4 and 
F-4 based on Form S-3 or F-3 eligibility. That is, a registrant will be 
eligible to use incorporation by reference in order to satisfy certain 
disclosure requirements of Forms S-4 and F-4 to register non-
convertible debt or preferred securities on Form S-4 or Form F-4 if:
---------------------------------------------------------------------------

    \98\ See General Instruction B.1 of Forms S-4 and Form F-4.
    \99\ Item 11 of Schedule of 14A provides for solicitations 
related to the authorization or issuance of securities other than an 
exchange of securities. Item 12 provides for solicitations related 
to the modification or exchange of securities. Item 14 provides for 
solicitations related to mergers, consolidations and acquisitions.
    \100\ See Note E of Schedule 14A.
---------------------------------------------------------------------------

    (i) The issuer has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or
    (ii) The issuer has outstanding (as of a date within 60 days prior 
to the filing of the registration statement) at least $750 million of 
non-convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act;
    (iii) The issuer is a wholly-owned subsidiary of a WKSI as defined 
in Rule 405 under the Securities Act;
    (iv) The issuer is a majority-owned operating partnership of a REIT 
that qualifies as a WKSI; or
    (v) The issuer discloses in the registration statement that it has 
a reasonable belief that it would have been eligible to register the 
securities offerings proposed to be registered under such registration 
statement pursuant to General Instruction I.B.2 of Form S-3 or Form F-3 
in existence prior to the new rules, discloses the basis for such 
belief, and files the final prospectus for any such offering on or 
before the date that is three years from the effective date of the 
amendments.

Similarly, we are amending Schedule 14A to refer simply to the 
requirements of General Instruction I.B.2. of Form S-3, rather than to 
``investment grade securities.'' As a result, an issuer will be 
permitted to incorporate by reference into a proxy statement if the 
issuer satisfied the requirements of General Instruction I.A. of Form 
S-3, the matter to be acted upon related to non-convertible securities, 
other than common equity, and was described in Item 11, 12 or 14 of 
Schedule 14A and the issuer falls into one of the categories listed 
above (measured as of a date that is within 60 days of the proxy first 
being sent to security holders).
2. Securities Act Rules 138, 139 and 168
    Other Securities Act rules also reference credit ratings. Rules 
138, 139, and 168 under the Securities Act provide that certain 
communications are deemed not to be an offer for sale or offer to sell 
a security within the

[[Page 46612]]

meaning of Sections 2(a)(10) \101\ and 5(c) \102\ of the Securities Act 
when the communications relate to an offering of non-convertible 
investment grade securities. Under current rules, these communications 
include the following:
---------------------------------------------------------------------------

    \101\ 15 U.S.C. 77b(a)10.
    \102\ 15 U.S.C. 77e(c).
---------------------------------------------------------------------------

     Under Securities Act Rule 138, a broker's or dealer's 
publication about securities of a foreign private issuer that meets F-3 
eligibility requirements (other than the reporting history 
requirements) and is issuing non-convertible investment grade 
securities;
     Under Securities Act Rule 139, a broker's or dealer's 
publication or distribution of a research report about an issuer or its 
securities where the issuer meets Form S-3 or F-3 registrant 
requirements and is or will be offering investment grade securities 
pursuant to General Instruction I.B.2. of Form S-3 or F-3, or where the 
issuer meets Form F-3 eligibility requirements (other than the 
reporting history requirements) and is issuing non-convertible 
investment grade securities; and
     Under Securities Act Rule 168, the regular release and 
dissemination by or on behalf of an issuer of communications containing 
factual business information or forward-looking information where the 
issuer meets Form F-3 eligibility requirements (other than the 
reporting history requirements) and is issuing non-convertible 
investment grade securities.
    In the 2011 Proposing Release, we proposed to revise these rules to 
refer to the new proposed instructions in General Instruction I.B.2 of 
Form S-3 or Form F-3, as appropriate. We received little comment on 
these proposals. One commentator did not believe amendments to these 
rules were required by the Dodd-Frank Act.\103\ The commentator was 
concerned that the amendments would be burdensome on firms that publish 
research because they would have to determine the issuer's form 
eligibility each time they wanted to publish research instead of 
relying on a published credit rating.\104\
---------------------------------------------------------------------------

    \103\ See letter from SIFMA.
    \104\ Id.
---------------------------------------------------------------------------

    We do not believe that determining an issuer's form eligibility 
will be unduly burdensome for those seeking to publish research. A 
review of the issuer's or its parent company's publicly available 
filings, such as Forms 10-K or prospectuses, should indicate whether 
the issuer satisfies the eligibility requirements for Form S-3 or Form 
F-3.\105\ We also believe that these revisions are appropriate both 
because of the Dodd-Frank Act's goal to reduce reliance on credit 
ratings and to promote regulatory consistency. As a result, we are 
adopting revisions to Rules 138, 139, and 168 to be consistent with the 
revisions we are adopting to the eligibility requirements in Forms S-3 
and F-3.
---------------------------------------------------------------------------

    \105\ For example, for an issuer that is a subsidiary of a WKSI, 
the parent's Form 10-K would note its WKSI status. For the amount of 
non-convertible securities (other than common equity) outstanding or 
issued, the amounts in financial statements could be compared to 
prospectuses to determine that the securities were sold in 
registered offerings.
---------------------------------------------------------------------------

3. Rule 134(a)(17)
    Securities Act Rule 134(a)(17)\106\ permits the disclosure of 
security ratings issued or expected to be issued by NRSROs in certain 
communications deemed not to be a prospectus or free writing 
prospectus. We proposed in the 2011 Proposing Release to remove this 
rule since we believe providing a safe harbor that explicitly permits 
the presence of a credit rating assigned by an NRSRO is not consistent 
with the purposes of Section 939A.
---------------------------------------------------------------------------

    \106\ 17 CFR 230.134(a)(17). These disclosures generally appear 
in ``tombstone'' ads or press releases announcing offerings. A 
communication is eligible for the safe harbor if the information 
included is limited to such matters as, among others, factual 
information about the identity and business address of the issuer, 
title of the security and amount being offered, the price or a bona 
fide estimate of the price or price range, the names of the 
underwriters participating in the offering and the name of the 
exchange where such securities are to be listed and the proposed 
ticker symbols.
---------------------------------------------------------------------------

    Commentators were opposed to this proposal.\107\ Two commentators 
argued that removing Rule 134(a)(17) is not required by Section 939A of 
Dodd-Frank.\108\ One commentator did not believe that allowing the 
inclusion of credit rating information encourages reliance on ratings 
but instead merely reflects the fact that ratings are relevant to 
investors.\109\ Another commentator believed we should expand the rule 
to cover all credit ratings instead of those issued by NRSROs.\110\ 
That commentator believed removing Rule 134(a)(17) would result in less 
information being available to investors. One commentator believed the 
amendment is not required by either the letter or spirit of Section 
939A and would chill information available to investors.\111\
---------------------------------------------------------------------------

    \107\ See letters from SIFMA, Davis Polk, Cleary, Roundtable, 
ASF and Debevoise.
    \108\ See letters from SIFMA and Davis Polk.
    \109\ See letter from SIFMA.
    \110\ See letter from Davis Polk. A proposal to expand Rule 
134(a)(17) was included in the 2008 proposing Release. We received 
little comment on the proposal at that time. As we noted in the 2011 
Proposing Release, we do not believe it is appropriate to expand the 
rule to cover all credit ratings issued because we do not believe it 
would be consistent with the otherwise limited disclosures covered 
by the Rule 134 safe harbor.
    \111\ See letter from Cleary. See also letters from Roundtable, 
ASF and Debevoise.
---------------------------------------------------------------------------

    Notwithstanding the comments we received, we believe it is 
appropriate to revise Rule 134 in order to remove the safe harbor for 
disclosure of credit ratings assigned by NRSROs. We believe providing a 
safe harbor that explicitly permits the presence of a credit rating 
assigned by an NRSRO is not consistent with the purposes of Section 
939A to reduce reliance on credit ratings. We also do not believe this 
change will have a material impact on the information available to 
investors because issuers will (as is common now) be able to disclose a 
credit rating in a free writing prospectus.\112\ In addition, as we 
noted in the 2011 Proposing Release, removing the safe harbor for this 
type of information would not necessarily result in a communication 
that included this information being deemed to be a prospectus or a 
free writing prospectus. The revision results in there no longer being 
a safe harbor for a communication that included this information. 
Instead, the determination as to whether such information constitutes a 
prospectus would be made in light of all of the circumstances of the 
communication.
---------------------------------------------------------------------------

    \112\ One commentator pointed out that not all companies are 
eligible to use free writing prospectuses. See letter from SIFMA. 
The examples given by the commentator covered investment companies 
and business development companies. However, pursuant to Rule 
134(g), those companies currently cannot rely on the safe harbor in 
Rule 134, so the amendment to Rule 134(a)(17) should not affect 
those companies. In addition, we note that the exclusion from the 
ability to use free writing prospectuses for ``ineligible issuers'' 
does not preclude such issuers (except for blank check companies, 
penny stock companies and shell companies) from using free writing 
prospectuses that are ``term sheets,'' which is a common way that 
issuers disclose the credit rating for a particular offering.
---------------------------------------------------------------------------

III. Paperwork Reduction Act

A. Background

    Certain provisions of the rule amendments contain a ``collection of 
information'' within the meaning of the Paperwork Reduction Act of 1995 
(PRA).\113\ The Commission is submitting these amendments and rules to 
the Office of Management and Budget (OMB) for review in accordance with 
the PRA.\114\ An agency may not conduct or sponsor, and a person is not 
required to comply with, a collection of information unless it displays 
a currently valid control number. The titles for the collections of 
information are:\115\
---------------------------------------------------------------------------

    \113\ 44 U.S.C. 3501 et seq.
    \114\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    \115\ Although we are adopting amendments to Form S-4, Form F-4 
and Schedule 14A, we do not anticipate any changes to the reporting 
burden or cost burdens associated with these forms, or the number of 
respondents as a result of the proposed amendments.

---------------------------------------------------------------------------

[[Page 46613]]

    ``Form S-1'' (OMB Control No. 3235-0065) ;
    ``Form S-3'' (OMB Control No. 3235-0073);
    ``Form F-1'' (OMB Control No. 3235-0258);
    ``Form F-3'' (OMB Control No. 3235-0256);
    ``Form F-9'' (OMB Control No. 3235-0377); and
    ``Form F-10'' (OMB Control No. 3235-0380).
    We adopted all of the existing regulations and forms pursuant to 
the Securities Act or the Exchange Act. These regulations and forms set 
forth the disclosure requirements for registration statements and proxy 
statements that are prepared by issuers to provide investors with 
information. Our amendments to existing forms and regulations are 
intended to replace rule and form requirements of the Securities Act 
and the Exchange Act that rely on security ratings with alternative 
requirements.
    The hours and costs associated with preparing disclosure, filing 
forms, and retaining records constitute reporting and cost burdens 
imposed by the collection of information. There is no mandatory 
retention period for the information disclosed, and the information 
disclosed would be made publicly available on the EDGAR filing system.

B. Summary of Collection of Information Requirements

    The criteria we are adopting for issuers of non-convertible 
securities, other than common equity, who are otherwise ineligible to 
use Form S-3 or Form F-3 to conduct primary offerings because they do 
not meet the aggregate market value requirement is designed to capture 
those issuers with a wide market following.
    Some commentators believed that our estimates in the 2011 Proposing 
Release understated the number of companies that would no longer be 
eligible under the proposals.\116\ One commentator reviewed data from 
March 2008 to March 2011 in the utility industry and believed that at 
least 60 utility companies would no longer have been eligible to use 
Form S-3 or Form F-3 over that three year period.\117\ One commentator 
believed the potential number of utility companies who would lose 
eligibility may have been understated because utility companies did not 
make offerings due to market conditions.\118\ Another commentator 
believed that our PRA figures were ``way off'' because there are ``far 
more S-1, S-3, F-1 and F-3 filings'' than described in the release, 
although the commentator did not provide any additional data.\119\ We 
believe the changes we have made to the proposals will reduce the 
number of currently eligible issuers that would no longer be eligible 
to use Form S-3 and Form F-3, particularly utility companies. Our 
revised PRA estimates reflect the expected impact.\120\
---------------------------------------------------------------------------

    \116\ See letters from SIFMA, Entergy and EEI.
    \117\ See letter from SIFMA.
    \118\ See letter from Entergy.
    \119\ See letter from Chang.
    \120\ In addition, our estimates reflect the expected impact 
after the expiration of the temporary ``grandfather'' provisions in 
Form S-3, Form F-3 and Form F-10. Those ``grandfather'' provisions 
will expire three years after the effective date of the new rules.
---------------------------------------------------------------------------

    We expect that under the new criteria, the number of companies in a 
12-month period eligible to register on Form S-3 or Form F-3 for 
primary offerings of non-convertible securities, other than common 
equity, for cash will increase by approximately four issuers for Form 
S-3 and one issuer for Form F-3.\121\ We expect that the issuers filing 
on Form S-1 and F-1 will decrease by the same amounts.
---------------------------------------------------------------------------

    \121\ In Section II.A.4.ii above, we estimated that 
approximately four companies who made an offering between January 1, 
2006 and August 15, 2008 would no longer be eligible to use Form S-3 
and Form F-3. We further estimated that 16 issuers would become 
newly eligible to use Form S-3 and Form F-3. As a result, we 
estimate that a net of 12 issuers would have become eligible to use 
Form S-3 and Form F-3 over that approximately 31-month time period. 
For purposes of the PRA estimates, we estimate that over a 12-month 
time period that five issuers would become eligible to use Form S-3 
or Form F-3 (approximately one-third of 12). We further estimate 
that four of those five will become eligible to use Form S-3 and one 
will become eligible to use Form F-3.
---------------------------------------------------------------------------

    In addition, because these amendments relate to eligibility 
requirements, rather than disclosure requirements, the Commission does 
not expect that the revisions adopted will impose any new material 
recordkeeping or information collection requirements. Issuers may be 
required to ascertain the aggregate principal amount of non-convertible 
securities, other than common equity, outstanding that were issued in 
registered primary offerings for cash, but the Commission believes that 
this information should be readily available and easily calculable.
    We are also rescinding Form F-9, which is the form used by 
qualified Canadian issuers to register investment grade securities. 
Because of recent Canadian regulatory developments, we no longer 
believe that keeping Form F-9 as a distinct form would serve a useful 
purpose. In addition, Canadian issuers have infrequently used Form F-9. 
As a result of the rescission of Form F-9, we believe there would be an 
additional six filers on Form F-10.\122\ We do not believe that the 
burden of preparing Form F-10 will change because the information 
required by Form F-10 is substantially the same as that required by 
Form F-9.
---------------------------------------------------------------------------

    \122\ Based on a review of Commission filings, since January 1, 
2007, only 22 issuers have filed on Form F-9. As a result, we 
estimate that over a 12-month period, approximately six additional 
Form F-10s will be filed.
---------------------------------------------------------------------------

C. Paperwork Reduction Act Burden Estimates

    For purposes of the Paperwork Reduction Act, we estimate that there 
will be no annual incremental increase in the paperwork burden for 
issuers to comply with our collection of information requirements. We 
do estimate, however, that the number of respondents on Forms S-3, F-3 
and F-10 will increase as a result of the amendments. As a result, the 
aggregate burden hour and professional cost numbers will increase for 
those forms due to the additional number of respondents. We also expect 
that the number of respondents will decrease for Forms S-1 and F-1, 
which will reduce the aggregate burden hour and professional costs for 
those forms.\123\ These estimates represent the average burden for all 
companies, both large and small. For each estimate, we calculate that a 
portion of the burden will be carried by the company internally, and 
the other portion will be carried by outside professionals retained by 
the company. The portion of the burden carried by the company 
internally is reflected in hours, while the portion of the burden 
carried by outside professionals retained by the company is reflected 
as a cost. We estimate these costs to be $400 per hour. A summary of 
the changes is included in the table below.
---------------------------------------------------------------------------

    \123\ We propose to rescind Form F-9, which will eliminate the 
PRA burden for that form, but we expect that the number of 
respondents on Form F-10 will increase as a result.

[[Page 46614]]



                                                Table 1--Calculation of Incremental PRA Burden Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Increase/                                      Increase/
                                        Current      Proposed     Current     (Decrease)     Proposed         Current      (Decrease) in     Proposed
                                         annual       annual       burden     in burden    burden hours    professional    professional    professional
                                       responses    responses      hours        hours                          costs           costs           costs
                                              (A)          (B)          (C)          (D)     (E) = C + D             (F)             (G)         = F + G
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form S-1............................          768          764      186,687        (972)         185,715    $224,024,000    ($1,166,792)    $222,857,208
Form S-3............................        2,065        2,069      243,927          472         244,399     292,711,500         566,996     293,278,496
Form F-1............................           42           41       18,975        (452)          18,523      22,757,400       (541,843)      22,215,557
Form F-3............................          106          107        4,426           42           4,468       5,310,600          50,100       5,360,700
Form F-10...........................           75           81          469           36             505         562,500          45,000         607,500
                                     -------------------------------------------------------------------------------------------------------------------
    Total...........................  ...........  ...........  ...........        (874)  ..............  ..............     (1,046,539)  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

IV. Cost-Benefit Analysis

A. Amendments

    As discussed above, we are adopting rule amendments in light of 
Section 939A of the Dodd-Frank Act to eliminate references to credit 
ratings in our rules in order to reduce reliance on credit 
ratings.\124\ Today's amendments seek to replace rule and form 
requirements of the Securities Act and the Exchange Act that rely on 
security ratings by NRSROs with alternative requirements that do not 
rely on ratings.
---------------------------------------------------------------------------

    \124\ See note 18 above and related text.
---------------------------------------------------------------------------

    The Commission is revising the transaction eligibility requirements 
of Forms S-3 and F-3 and other rules and forms that refer to these 
eligibility requirements. Currently, these forms allow issuers who do 
not meet the forms' other transaction eligibility requirements to 
register primary offerings of non-convertible securities for cash if 
such securities are rated investment grade by an NRSRO. The eligibility 
standard of having an investment grade rating has been used to indicate 
whether an issuer is widely followed in the marketplace. The revised 
rules would replace this transaction eligibility requirement with a 
requirement that, for primary offerings of non-convertible securities, 
other than common equity, for cash, an issuer is eligible if:
    (i) The issuer has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or
    (ii) The issuer has outstanding (as of a date within 60 days prior 
to the filing of the registration statement) at least $750 million of 
non-convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act; 
or
    (iii) The issuer is a wholly-owned subsidiary of a WKSI as defined 
in Rule 405 under the Securities Act; or
    (iv) The issuer is a majority-owned operating partnership of a REIT 
that qualifies as a WKSI; or
    (v) The issuer discloses in the registration statement that it has 
a reasonable belief that it would have been eligible to register the 
securities offerings proposed to be registered under such registration 
statement pursuant to General Instruction I.B.2 of Form S-3 or Form F-3 
in existence prior to the new rules, discloses the basis for such 
belief, and files the final prospectus for any such offering on or 
before the date that is three years from the effective date of the 
amendments.
We are making conforming revisions to Form S-4, Form F-4 and Schedule 
14A. We are also revising Rules 138, 139, and 168 under the Securities 
Act, which address certain communications by analysts and issuers, to 
be consistent with the revisions to Form S-3 and Form F-3. We are also 
removing Rule 134(a)(17) so that disclosure of credit ratings 
information is no longer covered by the safe harbor that deems certain 
communications not to be a prospectus or a free writing prospectus. 
Finally, we are rescinding Form F-9.
    We are sensitive to the costs and benefits imposed by our rules. 
The discussion below focuses on the costs and benefits of the 
amendments we are making to implement the Dodd-Frank Act within our 
discretion under that Act, rather than the costs and benefits of the 
Dodd-Frank Act itself. The two types of costs and benefits may not be 
entirely separable to the extent that our discretion is exercised to 
realize the benefits intended by the Dodd-Frank Act.

B. Benefits

    As we stated in the 2011 Proposing Release, we believe that having 
issued $1 billion of registered non-convertible securities over the 
prior three years would generally correspond with a wide following in 
the marketplace.\125\ As described above, the amendments we are 
adopting today would allow additional issuers to remain eligible to use 
Form S-3 and Form F-3 based on a variety of criteria. The amendments 
would replace the investment grade criteria for eligibility to register 
offerings of non-convertible securities on Form S-3 or Form F-3. The 
criteria we are adopting today reserves the use of Form S-3 and Form F-
3 for widely followed issuers while allowing a greater number of 
issuers to remain eligible to use those forms while also allowing some 
widely followed issuers to become newly eligible to use the forms.
---------------------------------------------------------------------------

    \125\ See 2011 Proposing Release, supra note 15, at note 52.
---------------------------------------------------------------------------

    Issuers will no longer be required to purchase ratings services in 
order to be eligible for registering a transaction on Form S-3 or Form 
F-3 and will benefit from not having to incur the associated costs of 
obtaining a credit rating to the extent that they decide not to obtain 
a credit rating for other uses. As a result, these rules could lessen 
the bargaining power rating agencies have with issuers (to the extent 
such bargaining power was artificially enhanced by the prior 
requirements of such forms), potentially lowering the cost of obtaining 
ratings. In addition, the removal of a provision in our forms requiring 
the use of a credit rating to establish eligibility for a type of 
registration generally reserved for widely followed issuers obviates a 
market externality that may have constituted a barrier to entry to 
potential competitors seeking to develop alternative methods of 
communicating creditworthiness to investors. Accordingly, removing any 
perceived imprimatur that may have resulted from the reference to 
credit ratings in Form S-3 and Form F-3 may increase

[[Page 46615]]

competition in the financial services sector.
    The change in the criteria would allow issuers of high yield 
securities or issuers of non-convertible securities (other than common 
equity) without a credit rating that were previously unable to avail 
themselves of the shelf offering process and forward incorporation by 
reference, to have faster access to capital markets and incur lower 
transaction costs.\126\ These amendments therefore allow the set of 
issuers with credit risk profiles that are not ``investment grade'' but 
that are otherwise widely followed in the marketplace to have access to 
short-form registration and the shelf offering process. More broadly, 
to the extent that the eligibility criteria are a better measure of 
whether or not an issuer is widely followed than receipt of an 
investment grade credit rating, then any change to the eligible set of 
issuers would more closely follow the intent of allowing forward 
incorporation by reference for appropriate issuers.
---------------------------------------------------------------------------

    \126\ As discussed in Section II.A.4.ii above, we estimate that 
the amendments adopted today would result in 16 issuers who 
previously filed on Form S-1 or F-1 becoming eligible to file on 
Form S-3 or Form F-3.
---------------------------------------------------------------------------

    We believe the benefits of rescinding Form F-9 would be to reduce 
redundancy by having multiple forms with the same requirements which 
would streamline the registration process for Canadian issuers.
    We believe the benefits of the revisions to Rules 138, 139 and 168 
will be to promote regulatory consistency by continuing to use the Form 
S-3 and Form F-3 standards to determine whether those rules can be 
relied on. In addition, we believe that removing Rule 134(a)(17) may 
have the benefit of reducing reliance on credit ratings because it 
would lessen the extent to which the Commission's rules provide an 
imprimatur to credit ratings, particularly those issued by NRSROs.

C. Costs

    To the extent that the new eligibility standards result in some 
issuers who were previously eligible to use Forms S-3 and F-3 to 
register primary offerings of non-convertible securities other than 
common equity to be required to register on Form S-1,\127\ this would 
result in increased costs of preparing and filing registration 
statements, which may decrease capital raising in registered 
offerings.\128\ This would result in additional time spent in the 
offering process, and issuers would incur costs associated with 
preparing and filing post-effective amendments to the registration 
statement. In addition, the resulting loss of the ability to conduct a 
delayed offering ``off the shelf'' pursuant to Rule 415 under the 
Securities Act would result in costs due to the uncertainty an issuer 
might face regarding the ability to conduct offerings quickly at 
advantageous times. The increased costs of preparing and filing 
registration statements using Form S-1 or Form F-1 and the increased 
uncertainty regarding the issuer's ability to conduct offerings quickly 
at advantageous times are likely to increase an issuer's cost of 
capital. Moreover, this is not a one-time cost but would be incurred 
for each subsequent issuance.
---------------------------------------------------------------------------

    \127\ As discussed in Section II.A.4.ii above, we estimate that 
the amendments adopted today would result in four issuers no longer 
being eligible to use Form S-3 or Form F-3. As a result, these 
issuers would be required to file on Form S-1 or Form F-1.
    \128\ The ability to conduct primary offerings on short form 
registration statements confers significant advantages on eligible 
companies by reducing the costs and increasing the speed of 
conducting a registered offering. The time required to prepare and 
update Form S-3 or F-3 is significantly lower than that required for 
Forms S-1 and F-1 primarily because registration statements on Forms 
S-3 and F-3 can be automatically updated. Forms S-3 and F-3 permit 
registrants to forward incorporate required information by reference 
to disclosure in their Exchange Act filings. In addition, companies 
that are eligible to register primary offerings on Form S-3 and Form 
F-3 generally are able to conduct offerings on a delayed basis ``off 
the shelf'' without further staff review and clearance. This enables 
eligible issuers to take advantage of beneficial market conditions 
to improve their access to capital and may lower their cost of 
funds. See Section III, above, for a discussion of the estimates of 
the paperwork costs of preparing and filing on Form S-1 associated 
with the amendments that we have prepared for purposes of the PRA.
---------------------------------------------------------------------------

    One commentator believed the costs outweigh the benefits of the 
proposal.\129\ That commentator estimated that a regulated insurance 
company registering non-variable annuity contracts on Form S-1 could 
face 250 hours of in-house legal time and 150 hours of business, 
outside counsel and auditor expenses if Form S-3 and Form F-3 were no 
longer available to such an issuer. The commentator believed the 
benefits noted in the proposing release were not significant enough to 
outweigh the costs and were inappropriate ``as collateral damage from 
legislation aimed at over-reliance on security ratings.'' \130\ We 
expect the changes we have made to the proposal would limit the costs 
of the amendments since fewer companies would lose their ability to 
file on Form S-3 and Form F-3 as supported by our analysis of the 
issuers that issued non-convertible securities other than common equity 
between January 1, 2006 and August 15, 2008. In addition, we believe 
the ``grandfather'' provisions will also mitigate costs for any issuer 
that would become ineligible by giving such issuers time to adjust 
their capital raising practices.
---------------------------------------------------------------------------

    \129\ See letter from Roundtable.
    \130\ See letter from Roundtable.
---------------------------------------------------------------------------

    We believe that the amendments could result in some issuers who are 
currently required to file on Form S-1 or Form F-1 becoming eligible to 
use Form S-3 or Form F-3. This could result in a cost to investors as 
there would be less information present in the prospectuses for these 
companies than there was previously. As a result, investors would have 
to seek out the Exchange Act reports (for example, by accessing the SEC 
Web site) of these issuers for company information which would no 
longer appear in the prospectus. However, we believe these costs might 
not be substantial to the extent that the new eligibility standards 
appropriately capture issuers with a wide market following for whom 
forward incorporation by reference is appropriate. Such new Form S-3 
and Form F-3 issuers will also become eligible take advantage of the 
shelf offering process. This could result in additional costs to 
investors if they have less time to review available information before 
making an investment decision with respect to a takedown from a shelf 
registration statement.
    If there are some issuers who become eligible to use Form S-3 or 
Form F-3 who are not widely followed, then there could be costs to 
investors if information about the issuer is not available or 
considered by the marketplace.
    The amendments could also result in some issuers that would have 
been eligible to use Form S-3 or Form F-3 because of their investment 
grade ratings and those that continue to be eligible under the new 
widely followed standards to decide not to get their securities rated. 
This could result in a cost to the investors to the extent that credit 
ratings were providing additional information to the marketplace.
    The amendments to Rules 138, 139 and 168 could result in somewhat 
higher compliance costs if it requires more effort to determine whether 
an issuer is eligible to use Form S-3 or Form F-3. An issuer is 
currently eligible to use Form S-3 or Form F-3 for offerings of non-
convertible securities, other than common equity, if the non-
convertible securities are investment grade, which is a single, 
objective, bright-line determination. The amendments adopted today will 
provide several alternative criteria to determine Form S-3 and Form F-3 
eligibility,

[[Page 46616]]

which may make it more difficult to determine at any given point in 
time whether an issuer is eligible to make an offering of non-
convertible securities, other than common equity, on Form S-3 or Form 
F-3. As a result, determining whether a research report can be 
published within the safe harbors of Rule 138, 139, or whether certain 
business information may be released under Rule 168 may be more costly.
    The amendment to remove Rule 134(a)(17) could be a cost to 
investors if ratings information is less available to them, to the 
extent such ratings information is useful to investors. In addition, to 
the extent that issuers decide to continue to include ratings 
information in communications that previously were made in reliance on 
the Rule 134 safe harbor, they may incur costs in order to ascertain 
whether including such information would require compliance with 
prospectus filing requirements.

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

    Section 23(a) of the Exchange Act \131\ requires the Commission, 
when making rules and regulations under the Exchange Act, to consider 
the impact a new rule would have on competition. Section 23(a)(2) 
prohibits the Commission from adopting any rule which would impose a 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Exchange Act. Section 2(b) of the Securities Act 
\132\ and Section 3(f) of the Exchange Act \133\ require the 
Commission, when engaging in rulemaking that requires it 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 would promote efficiency, competition, and capital 
formation.
---------------------------------------------------------------------------

    \131\ 15 U.S.C. 78w(a).
    \132\ 15 U.S.C. 77b(b).
    \133\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    Overall, we believe the changes will increase the efficiency of the 
shelf offering process by focusing eligibility on those issuers that 
are widely followed in the market and removing reliance on obtaining a 
particular credit rating. Our analysis indicates that the amendments 
will have two distinct effects. First, some issuers currently eligible 
to register primary offerings of non-convertible securities, other than 
common equity, on Forms S-3 and F-3 and to use the shelf offering 
process will lose their eligibility. Second, some issuers will become 
newly eligible to use Forms S-3 and F-3 and the shelf offering process. 
We believe that the rules will likely result in more widely followed 
issuers being eligible for short-form registration, which is why the 
rules may increase efficiency and promote capital formation. Issuers 
who become eligible to register offerings on Form S-3 and Form F-3 and 
avail themselves of the shelf offering process may now face relatively 
lower issuance costs, which would positively affect efficiency and 
capital formation of those issuers. As noted throughout this release, 
we anticipate that the number of such issuers would be small. In 
addition, we believe the ``grandfather'' provisions we are adopting 
will mitigate the disruption for issuers who may become ineligible to 
use Form S-3 or Form F-3 by giving them time to adjust their market 
practices. Because the number of eligible issuers will be roughly the 
same as under the previous criteria, we believe there would be a 
negligible impact on competition.
    Although we do not believe the new rules will have a significant 
impact on the eligibility of issuers to use Form S-3 or Form F-3, by 
reducing reliance on credit ratings there could be an effect on the 
amount and cost of issuer information available to the market. Without 
a requirement for an issuer to receive an investment grade credit 
rating, issuers may have less of an incentive to have their securities 
rated. They may continue to have their securities rated for other 
reasons. However, to the extent issuers overall obtain fewer ratings, 
investors may have to place greater reliance on other financial 
information providers in their assessment of investor creditworthiness.
    From one perspective, this may provide greater opportunity for 
other information providers to compete to provide credit evaluation 
services. If the resulting competition reduces the cost, and maintains 
or increases the quality, of information in the marketplace regarding 
credit-worthiness, then this may result in a lower cost of capital and/
or improved capital allocation decisions. However, if rating agencies 
provide investors with a unique set of information that other 
information providers cannot easily replicate--for instance, if they 
have access to issuer private information that is not common knowledge 
to the market--then investors may lose access to certain, valuable 
information to the extent that issuers chose not to have their 
securities rated. This may result in less efficient capital allocation. 
We do not believe this outcome likely because issuers may still find it 
beneficial to obtain a credit rating in order to provide that 
information to potential investors. As a result, we believe that the 
net effect of this rule will be to increase the level of informational 
efficiency.
    The Commission believes that the rescission of Form F-9 could 
reduce confusion regarding the appropriate form to use for the 
registration of securities by Canadian issuers, which could result in 
increased market efficiency.

VI. Regulatory Flexibility Act Certification

    Under Section 605(b) of the Regulatory Flexibility Act,\134\ we 
certified that, when adopted, the proposals would not have a 
significant economic impact on a substantial number of small entities. 
We included the certification in Part VIII of the 2011 Proposing 
Release. We did not receive any comments on the certification.
---------------------------------------------------------------------------

    \134\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

VII. Statutory Authority and Text of Rule and Form Amendments

    We are adopting the amendments contained in this document under the 
authority set forth in Sections 6, 7, 10, 19(a) of the Securities Act 
and Sections 14 and 23(a) of the Exchange Act.

List of Subjects in 17 CFR Parts 200, 229, 230, 232, 239, 240, and 
249

    Reporting and recordkeeping requirements, Securities.

    For the reasons set out in the preamble, Title 17, Chapter II of 
the Code of Federal Regulations, is amended as follows:

PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND 
REQUESTS

* * * * *

Subpart N--Commission Information Collection Requirements Under the 
Paperwork Reduction Act: OMB Control Numbers

0
1. The authority citation for Part 200, Subpart N, continues to read as 
follows:

    Authority: 44 U.S.C. 3506; 44 U.S.C. 3507.

Sec.  200.800  [Amended]

0
2. Effective December 31, 2012, amend Sec.  200.800 by removing from 
paragraph (b) the entry for ``Form F-9''.

[[Page 46617]]

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
3. The authority citation for Part 229 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78n-1, 78o, 78u-5, 78w, 
78ll, 78mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-31(c), 80a-37, 
80a-38(a), 80a-39, 80b-11, and 7201 et seq., and 18 U.S.C. 1350 
unless otherwise noted.

* * * * *


Sec.  229.10  [Amended]

0
4. Effective December 31, 2012, amend Sec.  229.10 by:
0
a. Removing the penultimate sentence from paragraph (c) introductory 
text;
0
b. Removing from the first sentence in paragraph (c)(1)(i) the acronym 
``NRSRO'' and adding in its place the phrase ``nationally recognized 
statistical rating organization (NRSRO)''; and
0
c. Removing the last sentence from paragraph (c)(1)(i).

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

0
5. 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, 80a-37, and 
Pub. L. 111-203, Sec.  939A, 124 Stat. 1376, (2010) unless otherwise 
noted.
* * * * *

0
6. Amend Sec.  230.134 by revising paragraph (a) introductory text, 
revising paragraph (a)(6), and removing and reserving paragraph 
(a)(17).
    The revisions read as follows:


Sec.  230.134  Communications not deemed a prospectus.

* * * * *
    (a) Such communication may include any one or more of the following 
items of information, which need not follow the numerical sequence of 
this paragraph, provided that, except as to paragraphs (a)(4) through 
(6) of this section, the prospectus included in the filed registration 
statement does not have to include a price range otherwise required by 
rule:
* * * * *
    (6) In the case of a fixed income security with a fixed (non-
contingent) interest rate provision, the yield or, if the yield is not 
known, the probable yield range, as specified by the issuer or the 
managing underwriter or underwriters and the yield of fixed income 
securities with comparable maturity and security rating;
* * * * *
    (17) [Reserved]
* * * * *

0
7. Amend Sec.  230.138 by revising paragraph (a)(2)(ii)(B)(2) to read 
as follows:


Sec.  230.138  Publications or distributions of research reports by 
brokers or dealers about securities other than those they are 
distributing.

    (a) * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (2) Is issuing non-convertible securities, other than common 
equity, and the issuer meets the provisions of General Instruction 
I.B.2. of Form F-3 (referenced in 17 CFR 239.33 of this chapter); and
* * * * *

0
8. Amend Sec.  230.139 by revising paragraphs (a)(1)(i)(A)(1)(ii) and 
(a)(1)(i)(B)(2)(ii) to read as follows:


Sec.  230.139  Publications or distributions of research reports by 
brokers or dealers distributing securities.

    (a) * * *
    (1) * * *
    (i) * * *
    (A)(1) * * *
    (ii) At the date of reliance on this section, is, or if a 
registration statement has not been filed, will be, offering non-
convertible securities, other than common equity, and meets the 
requirements for the General Instruction I.B.2. of Form S-3 or Form F-3 
(referenced in 17 CFR 239.13 and 17 CFR 239.33 of this chapter); or
* * * * *
    (B) * * *
    (2) * * *
    (ii) Is issuing non-convertible securities, other than common 
equity, and meets the provisions of General Instruction I.B.2. of Form 
F-3 (referenced in 17 CFR 239.33 of this chapter); and
* * * * *

0
9. Amend Sec.  230.168 by revising paragraph (a)(2)(ii)(B) to read as 
follows:


Sec.  230.168  Exemption from sections 2(a)(10) and 5(c) of the Act for 
certain communications of regularly released factual business 
information and forward-looking information.

* * * * *
    (a) * * *
    (2) * * *
    (ii) * * *
    (B) Is issuing non-convertible securities, other than common 
equity, and meets the provisions of General Instruction I.B.2. of Form 
F-3 (referenced in 17 CFR 239.33 of this chapter); and
* * * * *


Sec.  230.467  [Amended]

0
10. Effective December 31, 2012, amend Sec.  230.467 by removing:
0
a. ``F-9,'' from the heading;
0
b. ``Form F-9 or'' and ``Sec.  239.39 or'' from the second sentence of 
paragraph (a); and
0
c. ``Form F-9 or'' from the first sentence of paragraph (b).


Sec.  230.473  [Amended]

0
11. Effective December 31, 2012, amend Sec.  230.473 by removing ``F-9 
or'' and ``Sec.  239.39 or'' from paragraph (d).

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

0
12. 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.  232.405  [Amended]

0
13. Effective December 31, 2012, amend Sec.  232.405 by removing:
0
a. ``both Form F-9 (Sec.  239.39 of this chapter) and'' from the second 
sentence of Preliminary Note 1;
0
b. ``either Form F-9 or'' from paragraphs (a)(2) introductory text, 
(a)(3), and (a)(4); and
0
c. ``both Form F-9 and'' and ``Form F-9 and'' in the second sentence of 
Note to Sec.  232.405, and ``both Form F-9 and'' in the penultimate 
sentence of Note to Sec.  232.405.

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

0
14. The general authority citation for part 239 is revised to read 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, 78mm, 80a-
2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 
80a-30, 80a-37, and Pub. L. No. 111-203, Sec.  939A, 124 Stat. 1376, 
(2010) unless otherwise noted.
* * * * *

0
15. Amend Sec.  239.13 by revising the paragraph heading to the 
undesignated paragraph following paragraph (b)(1)

[[Page 46618]]

and by revising paragraphs (b)(2) and (b)(5) to read as follows:


Sec.  239.13  Form S-3, for registration under the Securities Act of 
1933 of securities of certain issuers offered pursuant to certain types 
of transactions.

* * * * *
    (b) * * *
    Instruction to paragraph (b)(1): * * *
    (2) Primary Offerings of Non-Convertible Securities Other than 
Common Equity. Non-convertible securities, other than common equity, to 
be offered for cash by or on behalf of a registrant, provided the 
registrant:
    (i) Has issued (as of a date within 60 days prior to the filing of 
the registration statement) at least $1 billion in non-convertible 
securities, other than common equity, in primary offerings for cash, 
not exchange, registered under the Securities Act, over the prior three 
years; or
    (ii) Has outstanding (as of a date within 60 days prior to the 
filing of the registration statement) at least $750 million of non-
convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act; 
or
    (iii) is a wholly-owned subsidiary of a well-known seasoned issuer 
(as defined in 17 CFR 230.405); or
    (iv) Is a majority-owned operating partnership of a real estate 
investment trust that qualifies as a well-known seasoned issuer (as 
defined in 17 CFR 230.405); or
    (v) Discloses in the registration statement that it has a 
reasonable belief that it would have been eligible to use this Form S-3 
as of September 1, 2011 because it is registering a primary offering of 
non-convertible investment grade securities, discloses the basis for 
such belief, and files a final prospectus for an offering pursuant to 
such registration statement on this Form S-3 on or before September 2, 
2014.
    Instruction to paragraph (b)(2). For purposes of paragraph 
(b)(2)(i) of this section, an insurance company, as defined in Section 
2(a)(13) of the Securities Act of 1933 (15 U.S.C. 77b(a)(13), when 
using this Form S-3 to register offerings of securities subject to 
regulation under the insurance laws of any State or Territory of the 
United States or the District of Columbia (``insurance contracts''), 
may include purchase payments or premium payments for insurance 
contracts, including purchase payments or premium payments for variable 
insurance contracts (not including purchase payments or premium 
payments initially allocated to investment options that are not 
registered under the Securities Act of 1933 (15 U.S.C. 77a)), issued in 
offerings registered under the Securities Act over the prior three 
years. For purposes of paragraph (b)(ii) of this section, an insurance 
company, as defined in Section 2(a)(13) of the Securities Act of 1933, 
when using this Form S-3 to register offerings of insurance contracts, 
may include the contract value, as of the measurement date, of any 
outstanding insurance contracts, including variable insurance contracts 
(not including the value allocated as of the measurement date to 
investment options that are not registered under the Securities Act of 
1933), issued in offerings registered under the Securities Act of 1933.
* * * * *
    (5) The securities are investment grade securities. An asset-backed 
security is an investment grade security if, at the time of sale, at 
least one nationally recognized statistical rating organization (as 
that term is used in 17 CFR 240.15c3-1(c)(2)(vi)(F)) has rated the 
security in one of its generic rating categories that signifies 
investment grade; typically, the four highest rating categories (within 
which there may be sub-categories or gradations indicating relative 
standing) signify investment grade.
* * * * *

0
16. Amend Form S-3 (referenced in 17 CFR 239.13) by:
0
a. Revising General Instruction I.B.2.;
0
b. Revising General Instruction I.B.5(a)(i).; and
0
c. Revising Instruction 3 to the signature block to remove the word 
``Requirements'' and add in its place the word ``Requirement'' and to 
remove the phrase ``B.2. or''.
    The revision reads as follows:

    Note:  The text of Form S-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form S-3

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

I. Eligibility Requirements for Use of Form S-3

* * * * *
    B. Transaction Requirements. * * *
    2. Primary Offerings of Non-Convertible Securities Other than 
Common Equity. Non-convertible securities, other than common equity, to 
be offered for cash by or on behalf of a registrant, provided the 
registrant (i) has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or (ii) has outstanding (as of a date within 60 days 
prior to the filing of the registration statement) at least $750 
million of non-convertible securities, other than common equity, issued 
in primary offerings for cash, not exchange, registered under the 
Securities Act; or (iii) is a wholly-owned subsidiary of a well-known 
seasoned issuer (as defined in 17 CFR 230.405); or (iv) is a majority-
owned operating partnership of a real estate investment trust that 
qualifies as a well-known seasoned issuer (as defined in 17 CFR 
230.405); or (v) discloses in the registration statement that it has a 
reasonable belief that it would have been eligible to use Form S-3 as 
of September 1, 2011 because it is registering a primary offering of 
non-convertible investment grade securities, discloses the basis for 
such belief, and files a final prospectus for an offering pursuant to 
such registration statement on Form S-3 on or before September 2, 2014.
    Instruction. For purposes of Instruction I.B.2(i) above, an 
insurance company, as defined in Section 2(a)(13) of the Securities 
Act, when using this Form to register offerings of securities subject 
to regulation under the insurance laws of any State or Territory of the 
United States or the District of Columbia (``insurance contracts''), 
may include purchase payments or premium payments for insurance 
contracts, including purchase payments or premium payments for variable 
insurance contracts (not including purchase payments or premium 
payments initially allocated to investment options that are not 
registered under the Securities Act), issued in offerings registered 
under the Securities Act over the prior three years. For purposes of 
Instruction I.B.2(ii) above, an insurance company, as defined in 
Section 2(a)(13) of the Securities Act, when using this Form to 
register offerings of insurance contracts, may include the contract 
value, as of the measurement date, of any outstanding insurance 
contracts, including variable insurance contracts (not including the 
value allocated as of the measurement date to investment options that 
are not registered under the Securities Act), issued in offerings 
registered under the Securities Act.
* * * * *

[[Page 46619]]

    5. Offerings of Investment Grade Asset-Backed Securities.
    (a) * * *
    (i) The securities are ``investment grade securities.'' An asset-
backed security is an ``investment grade security'' if, at the time of 
sale, at least one nationally recognized statistical rating 
organization (as that term is used in Rule 15c3-1(c)(2)(vi)(F) under 
the Exchange Act (Sec.  240.15c3-1(c)(2)(vi)(F)) has rated the security 
in one of its generic rating categories which signifies investment 
grade; typically, the four highest rating categories (within which 
there may be sub-categories or gradations indicating relative standing) 
signify investment grade.
* * * * *

0
17. Amend Form S-4 (referenced in 17 CFR 239.25) by revising General 
Instruction B.1.a.(ii)(B) to read as follows:

    Note:  The text of Form S-4 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form S-4

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

* * * * *
    B. Information with Respect to the Registrant.
    1. * * *
    a. * * *
    (ii) * * *
    (B) Non-convertible debt or preferred securities are to be offered 
pursuant to this registration statement and the requirements of General 
Instruction I.B.2. of Form S-3 have been met for the securities to be 
registered on this registration statement; or
* * * * *

0
18. Amend Sec.  239.33 by revising paragraph (b)(2) to read as follows:


Sec.  239.33  Form F-3, for registration under the Securities Act of 
1933 of securities of certain foreign private issuers offered pursuant 
to certain types of transactions.

* * * * *
    (b) * * *
    (2) Primary Offerings of Non-Convertible Securities Other than 
Common Equity. Non-convertible securities, other than common equity, to 
be offered for cash by or on behalf of a registrant, provided the 
registrant:
    (i) Has issued (as of a date within 60 days prior to the filing of 
the registration statement) at least $1 billion in non-convertible 
securities, other than common equity, in primary offerings for cash, 
not exchange, registered under the Securities Act, over the prior three 
years; or
    (ii) Has outstanding (as of a date within 60 days prior to the 
filing of the registration statement) at least $750 million of non-
convertible securities, other than common equity, issued in primary 
offerings for cash, not exchange, registered under the Securities Act 
of 1933 (15 U.S.C. 77a); or
    (iii) Is a wholly-owned subsidiary of a well-known seasoned issuer 
(as defined in 17 CFR 230.405); or
    (iv) Is a majority-owned operating partnership of a real estate 
investment trust that qualifies as a well-known seasoned issuer (as 
defined in 17 CFR 230.405); or
    (v) Discloses in the registration statement that it has a 
reasonable belief that it would have been eligible to use Form F-3 as 
of September 1, 2011 because it is registering a primary offering of 
non-convertible investment grade securities, discloses the basis for 
such belief, and files a final prospectus for an offering pursuant to 
such registration statement on Form F-3 on or before September 2, 2014.
    Instruction to paragraph (b)(2). For purposes of paragraph 
(b)(2)(i) of this section, an insurance company, as defined in Section 
2(a)(13) of the Securities Act of 1933 (15 U.S.C. 77b(a)(13)), when 
using this Form F-3 to register offerings of securities subject to 
regulation under the insurance laws of any State or Territory of the 
United States or the District of Columbia (``insurance contracts''), 
may include purchase payments or premium payments for insurance 
contracts, including purchase payments or premium payments for variable 
insurance contracts (not including purchase payments or premium 
payments initially allocated to investment options that are not 
registered under the Securities Act of 1933 (15 U.S.C. 77a)), issued in 
offerings registered under the Securities Act of 1933 over the prior 
three years. For purposes of paragraph (b)(ii) of this section, an 
insurance company, as defined in Section 2(a)(13) of the Securities Act 
of 1933, when using this Form F-3 to register offerings of insurance 
contracts, may include the contract value, as of the measurement date, 
of any outstanding insurance contracts, including variable insurance 
contracts (not including the value allocated as of the measurement date 
to investment options that are not registered under the Securities Act 
of 1933), issued in offerings registered under the Securities Act of 
1933.
* * * * *

0
19. Amend Form F-3 (referenced in 17 CFR 239.33) by:
0
a. Revising General Instruction I.B.2.; and
0
b. Removing Instruction 3 to the signature block.
    The revision reads as follows:

    Note:  The text of Form F-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form F-3

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

I. Eligibility Requirements for Use of Form F-3

* * * * *
    B. Transaction Requirements * * *
    2. Primary Offerings of Non-Convertible Securities Other than 
Common Equity. Non-convertible securities, other than common equity, to 
be offered for cash by or on behalf of a registrant, provided the 
registrant (i) has issued (as of a date within 60 days prior to the 
filing of the registration statement) at least $1 billion in non-
convertible securities, other than common equity, in primary offerings 
for cash, not exchange, registered under the Securities Act, over the 
prior three years; or (ii) has outstanding (as of a date within 60 days 
prior to the filing of the registration statement) at least $750 
million of non-convertible securities, other than common equity, issued 
in primary offerings for cash, not exchange, registered under the 
Securities Act; or (iii) is a wholly-owned subsidiary of a well-known 
seasoned issuer (as defined in 17 CFR 230.405); or (iv) is a majority-
owned operating partnership of a real estate investment trust that 
qualifies as a well-known seasoned issuer (as defined in 17 CFR 
230.405); or (v) discloses in the registration statement that it has a 
reasonable belief that it would have been eligible to use Form F-3 as 
of September 1, 2011 because it is registering a primary offering of 
non-convertible investment grade securities, discloses the basis for 
such belief, and files a final prospectus for an offering pursuant to 
such registration statement on Form F-3 on or before September 2, 2014.
    Instruction. For purposes of Instruction I.B.2(i) above, an 
insurance company, as defined in Section 2(a)(13) of the Securities 
Act, when using this Form to register offerings of securities subject 
to regulation under the insurance laws of any State or Territory of the 
United States or the District of

[[Page 46620]]

Columbia (``insurance contracts''), may include purchase payments or 
premium payments for insurance contracts, including purchase payments 
or premium payments for variable insurance contracts (not including 
purchase payments or premium payments initially allocated to investment 
options that are not registered under the Securities Act), issued in 
offerings registered under the Securities Act over the prior three 
years. For purposes of Instruction I.B.2(ii) above, an insurance 
company, as defined in Section 2(a)(13) of the Securities Act, when 
using this Form to register offerings of insurance contracts, may 
include the contract value, as of the measurement date, of any 
outstanding insurance contracts, including variable insurance contracts 
(not including the value allocated as of the measurement date to 
investment options that are not registered under the Securities Act), 
issued in offerings registered under the Securities Act.
* * * * *

0
20. Amend Form F-4 (referenced in 17 CFR 239.34) by revising General 
Instruction B.1(a)(ii)(B).
    The revision reads as follows:

    Note:  The text of Form F-4 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form F-4

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

* * * * *
    B. Information with Respect to the Registrant
    1. * * *
    a. * * *
    (ii) * * *
    (B) Non-convertible debt or preferred securities are to be offered 
pursuant to this registration statement and the requirements of General 
Instruction I.B.2. of Form F-3 have been met for the securities to be 
registered on this registration statement; or
* * * * *


Sec.  239.38  [Amended]

0
21. Effective December 31, 2012, amend Sec.  239.38 by removing ``Form 
F-9,'' from paragraph (h)(3).

    Note:  The text of Form F-8 does not, and the following 
amendment will not, appear in the Code of Federal Regulations.



0
22. Effective December 31, 2012, amend Form F-8 (referenced in 17 CFR 
239.38) by removing ``Form F-9,'' from each of paragraph A.(3) of 
General Instruction III and paragraph B. of General Instruction V.


Sec.  239.39  [Removed and Reserved]

0
23. Effective December 31, 2012, remove and reserve Sec.  239.39 
(referencing Form F-9).


Sec.  239.40  [Amended]

0
24. Effective December 31, 2012, amend Sec.  239.40 by removing ``Form 
F-9,'' from paragraph (c)(4).
0
25. Effective December 31, 2012, amend Form F-10 (referenced in 17 CFR 
239.40) by:
0
a. In General Instruction I.C.(3), removing ``and'' after the semi-
colon;
0
b. In General Instruction I.C.(4), removing ``Form F-9,'' removing the 
period, and adding in its place ``; and''; and
0
c. Adding paragraph C.(5) of General Instruction I to read as follows:

    Note: The text of Form F-10 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form F-10

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

    C. Form F-10 is available to any Registrant that:
    (1) * * *
    (5) if it does not meet the requirements of I.C.(4) or I.H., 
discloses in Part II of the registration statement that it has a 
reasonable belief that it would have been eligible to make an offering 
of investment grade, non-convertible securities on Form F-9 as of 
December 30, 2012, discloses the basis for such belief, and files a 
final prospectus for an offering under the registration statement on or 
prior to December 31, 2015.
* * * * *


Sec.  239.41  [Amended]

0
26. Effective December 31, 2012, amend Sec.  239.41 by removing ``Form 
F-9,'' from paragraph (h)(3).
0
27. Effective December 31, 2012, amend Form F-80 (referenced in 17 CFR 
239.41) by removing ``Form F-9'' in paragraph A.(3) of General 
Instruction III and paragraph B. of General Instruction V.

    Note:  The text of Form F-80 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

0
28. Effective December 31, 2012, amend Sec.  239.42 by removing ``F-
9,'' from the heading and from each of paragraphs (a) and (e).
0
29. Effective December 31, 2012, amend Form F-X (referenced in 17 CFR 
239.42) by removing ``F-9,'' from each of paragraphs (a) and (e) of 
General Instruction I, and each of paragraphs (a) and (c) of General 
Instruction II.F.

    Note:  The text of Form F-X does not, and this amendment will 
not, appear in the Code of Federal Regulations.

* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
30. The general authority citation for part 240 is revised to read as 
follows:

    Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78p, 78q, 
78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 
80b-3, 80b-4, 80b-11, and 7201 et seq.; 18 U.S.C. 1350, 12 U.S.C. 
5221(e)(3), and Pub. L. 111-203, Sec.  939A, 124 Stat. 1376, (2010) 
unless otherwise noted.
* * * * *

0
31. Amend Sec.  240.14a-101 by revising Note E(2)(ii) to read as 
follows:


Sec.  240.14a-101  Schedule 14A. Information required in proxy 
statement.

* * * * *

Notes:
* * * * *
    E. * * *
    (2) * * *
    (ii) Action is to be taken as described in Items 11, 12, and 14 of 
this schedule which concerns non-convertible debt or preferred 
securities issued by a registrant meeting the requirements of General 
Instruction I.B.2. of Form S-3 (referenced in 17 CFR 239.13 of this 
chapter); or
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
32. The authority citation for part 249 continues to read in part as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 
1350, unless otherwise noted.
* * * * *


Sec.  249.240  [Amended]

0
33. Effective December 31, 2012, amend Sec.  249.240f by:
0
a. Removing ``F-9,'' in paragraph (a) introductory text;
0
b. Redesignating the ``Note'' following paragraph (a) introductory text 
as ``Note to paragraph (a)''; and
0
c. Removing in paragraph (b)(4) introductory text the phrase ``; 
provided,

[[Page 46621]]

however, no market value threshold need be satisfied in connection with 
non-convertible securities eligible for registration on Form F-9 (Sec.  
239.39 of this chapter)''.
0
34. Effective December 31, 2012, amend Form 40-F (referenced in 17 CFR 
249.240f) by:
0
a. In General Instruction A.(i), removing ``F-9'';
0
b. Removing from paragraph (2)(iv) of General Instruction A. the phrase 
``; provided, however, that no market value threshold need be satisfied 
in connection with non-convertible securities eligible for registration 
on Form F-9'' and adding in its place the phrase ``or the Registrant 
filed a Form F-9 with the Commission on or before December 30, 2012''; 
and
0
c. Revising paragraph (2) of General Instruction C. to read as follows:
    (2) Any financial statements, other than interim financial 
statements, included in this Form by registrants registering securities 
pursuant to Section 12 of the Exchange Act or reporting pursuant to the 
provisions of Section 13(a) or 15(d) of the Exchange Act must be 
reconciled to U.S. GAAP as required by Item 17 of Form 20-F under the 
Exchange Act, unless this Form is filed with respect to a reporting 
obligation under Section 15(d) that arose solely as a result of a 
filing made on Form F-7, F-8, F-9 or F-80, in which case no such 
reconciliation is required.

    Note:  The text of Form 40-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.


    Dated: July 27, 2011.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-19421 Filed 8-2-11; 8:45 am]
BILLING CODE 8011-01-P