[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52549-52556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21500]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240 and 249

[Release No. 34-65148; File No. S7-02-11]
RIN 3235-AK89


Suspension of the Duty To File Reports for Classes of Asset-
Backed Securities Under Section 15(D) of the Securities Exchange Act of 
1934

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: Section 942(a) of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act eliminated the automatic suspension of the duty 
to file under Section 15(d) of the Securities Exchange Act of 1934 for 
asset-backed securities issuers and granted the Commission the 
authority to issue rules providing for the suspension or termination of 
such duty. We are adopting rules to provide certain thresholds for 
suspension of the reporting obligations for asset-backed securities 
issuers. We are also amending our rules relating to the Exchange Act 
reporting obligations of asset-backed securities issuers in light of 
these statutory changes.

DATES: Effective Date: September 22, 2011.

FOR FURTHER INFORMATION CONTACT: Steven Hearne, Special Counsel, in the 
Office of Rulemaking, at (202) 551-3430 or Kathy Hsu, Chief, Office of 
Structured Finance, Division of Corporation Finance, at (202) 551-3850, 
U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, 
DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are adopting amendments to Rules 12h-3, 
12h-6, and 15d-22 \1\ and Form 15 \2\ under the Securities Exchange Act 
of 1934 (``Exchange Act'').\3\
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    \1\ 17 CFR 240.12h-3, 17 CFR 240.12h-6, and 17 CFR 240.15d-22.
    \2\ 17 CFR 249.323.
    \3\ 15 U.S.C. 78a et seq.
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I. Background and Overview of the Amendments

    Section 942(a) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (the ``Act'') \4\ eliminated the automatic suspension of 
the duty to file under Section 15(d) \5\ of the Exchange Act for asset-
backed securities (``ABS'') issuers and granted the Commission the 
authority to issue rules providing for the suspension or termination of 
such duty. We proposed amendments on January 6, 2011 to provide for the 
suspension of reporting obligations for ABS issuers under certain 
circumstances and to revise our rules in light of the amendment of 
Exchange Act Section 15(d).\6\ In this release, we are adopting the 
rule amendments with some changes to reflect comments we received on 
the proposed amendments.
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    \4\ Pub. L. 111-203 (July 21, 2010).
    \5\ 15 U.S.C. 78o(d).
    \6\ Suspension of the Duty to File Reports for Classes of Asset-
Backed Securities Under Section 15(d) of the Securities Exchange Act 
of 1934, Release No. 34-63652 (Jan. 6, 2011) [76 FR 2049] (the 
``Proposing Release'').
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    Exchange Act Section 15(d) generally requires an issuer with a 
registration statement that has become effective pursuant to the 
Securities Act of 1933 \7\ (``Securities Act'') to file ongoing 
Exchange Act reports with the Commission. Prior to enactment of the 
Act, Exchange Act Section 15(d) provided that for issuers without a 
class of securities registered under the Exchange Act the duty to file 
ongoing reports is automatically suspended as to any fiscal year, other 
than the fiscal year within which the registration statement for the 
securities became effective, if the securities of each class to which 
the registration statement relates are held of record by less than 300 
persons. As a result, the reporting obligations of ABS issuers,\8\ 
other than those with master trust structures,\9\ were generally 
suspended after the ABS issuer filed one annual report on Form 10-K 
because the number of record holders was below, often significantly 
below, the 300 record holder threshold.\10\
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    \7\ 15 U.S.C. 77a et seq.
    \8\ ABS offerings are typically registered on shelf registration 
statements and each ABS offering is typically sold in a separate 
``takedown'' off of the shelf. In 2004, the Commission adopted 
Exchange Act Rule 15d-22 relating to ABS reporting under Exchange 
Act Section 15(d). Exchange Act Rule 15d-22 codified the staff 
position regarding the starting and suspension dates for any 
reporting obligation with respect to a takedown of ABS and clarified 
that a new takedown for a new ABS offering off the same shelf 
registration statement did not necessitate continued reporting for a 
class of securities from a prior takedown that was otherwise 
eligible to suspend reporting. See Asset-Backed Securities, Release 
No. 33-8518 (Dec. 22, 2004) [70 FR 1506] (the ``ABS Adopting 
Release'').
    \9\ In a securitization using a master trust structure, the ABS 
transaction contemplates future issuances of ABS backed by the same, 
but expanded, asset pool that consists of revolving assets. Pre-
existing and newly issued securities would therefore be backed by 
the same expanded asset pool. Thus, given their continued issuance, 
master trust ABS issuers typically continue to report, even after 
the first annual report is filed.
    \10\ One source noted that in a survey of 100 randomly selected 
asset-backed transactions, the number of record holders provided in 
reports on Form 15 ranged from two to more than 70. The survey did 
not consider beneficial owner numbers. See Committee on Capital 
Markets Regulation, The Global Financial Crisis: A Plan for 
Regulatory Reform, May 2009, at fn. 349.
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    The Act removed any class of ABS from the automatic suspension 
provided in Exchange Act Section 15(d) by inserting the phrase, ``other 
than any class of asset-backed securities.'' Consequently, ABS issuers 
no longer automatically suspend reporting under Exchange Act Section 
15(d). Instead, the Act granted the Commission authority to ``provide 
for the suspension or termination of the duty to file under this 
subsection for any class of asset-backed security, on such terms and 
conditions and for such period or periods as the Commission deems 
necessary or appropriate in the public interest or for the protection 
of investors.'' \11\
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    \11\ 15 U.S.C. 78o(d)(2).
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    We proposed new Exchange Act Rule 15d-22(b) to provide for 
suspension of the reporting obligations for a given class of ABS 
pursuant to Exchange Act Section 15(d) under certain limited 
circumstances. In addition, we proposed to update Exchange Act Rule 
15d-22 to indicate when annual and other reports need to be filed and 
when starting and suspension dates are determined with respect to a 
takedown.
    We received seven comment letters in response to the proposed

[[Page 52550]]

amendments.\12\ These letters came from four professional associations, 
a law firm, an individual and an institutional investor. We have 
reviewed and considered all of the comments that we received on the 
proposed amendments. Most commentators supported the Commission's goal 
of providing full and transparent disclosure to investors in ABS. 
Comments on the proposal were mixed. Two commentators supported the 
proposed standard without revisions.\13\ Other commentators suggested 
revisions to the proposed standard, which are described below.\14\ 
Further, two commentators recommended permitting commercial mortgage-
backed securities to suspend reporting after one year.\15\ The adopted 
rules reflect changes made in response to comments. We explain our 
revisions with respect to each proposed rule amendment in more detail 
throughout this release.
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    \12\ The public comments we received are available on our Web 
site at http://www.sec.gov/comments/s7-02-11/s70211.shtml. See 
letters from the American Securitization Forum (``ASF''), Chris 
Barnard (``Barnard''), Cleary, Gottlieb, Steen, & Hamilton LLP 
(``Cleary''), CRE Finance Council (``CREFC''), Investment Company 
Institute (``ICI''), MetLife, Inc. (``MetLife''), and Mortgage 
Bankers Association (``MBA'').
    \13\ See letters from ICI and Barnard.
    \14\ See letters from ASF, Cleary and MetLife.
    \15\ See letters from CREFC and MBA. These commentators 
recommended that such securities be permitted to suspend reporting 
under the old Section 15(d) standard, which previously allowed 
issuers of securities to suspend Exchange Act reporting typically 
after the first year of reporting. In support of differential 
treatment, the commentators pointed to the ``Annex A'' initial 
disclosure package and the ``Investor Reporting Package'' used in 
the commercial mortgage-backed securities market, suggesting these 
materials, along with certain ``best practices'' projects, provide 
most, if not all, of the information that would be required to be 
included in the Section 15(d) reports, and such materials are 
required to be provided to investors on a timely basis under the 
Investor Reporting Package standards.
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II. Discussion of the Amendments

    As indicated above, Exchange Act Section 15(d), as amended by the 
Act, establishes an ongoing reporting obligation for each class of ABS 
for which an issuer has filed a registration statement that has become 
effective pursuant to the Securities Act. Exchange Act Section 15(d) 
also grants the Commission authority to provide for the suspension or 
termination of the duty to file. We are adopting amendments with 
changes made in response to comments to provide limited relief from 
these reporting obligations in a manner that we believe is appropriate 
in the public interest and consistent with the protection of investors. 
In addition, we are adopting rule and form amendments, substantially as 
proposed, to update our rules relating to ABS takedowns under a shelf 
registration statement.

A. Suspension of Exchange Act Section 15(d) Reporting Obligation

1. Proposed Amendments
    In the Proposing Release, we proposed amended Exchange Act Rule 
15d-22(b) to provide for suspension of the reporting obligations for a 
given class of ABS pursuant to Exchange Act Section 15(d) under certain 
limited circumstances.\16\ As revised by the Act, Exchange Act Section 
15(d) no longer provides for the automatic suspension of the duty to 
file periodic and other reports for issuers of a class of ABS. Without 
action by the Commission, ABS issuers that have filed a registration 
statement that has become effective pursuant to the Securities Act or 
that have conducted a takedown off of a shelf registration statement, 
would be obligated to continue to file such reports for the life of the 
security.
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    \16\ See the Proposing Release supra note 6.
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    In the Proposing Release, we noted that post-issuance reporting of 
information by an ABS issuer provides investors and the market with 
transparency regarding many aspects of the ongoing performance of the 
securities and the servicer in complying with servicing criteria and 
that such transparency is valuable in evaluating transaction 
performance and making ongoing investment decisions. We also indicated 
our belief that the benefits of ongoing reporting to investors and the 
market where there are only affiliated holders of the ABS are limited 
and would not justify the burden of reporting by those issuers. 
Consequently, we proposed amended Exchange Act Rule 15d-22(b), which 
would provide that the reporting obligation regarding any class of ABS 
is suspended for any fiscal year, other than the fiscal year within 
which the registration statement became effective, if, at the beginning 
of the fiscal year there are no longer any securities of such class 
held by non-affiliates of the depositor that were sold in the 
registered transaction. We also proposed to amend Form 15 to add a 
checkbox for ABS issuers to indicate that they are relying on proposed 
Exchange Act Rule 15d-22(b) to suspend their reporting obligation 
alerting the market and the Commission of the change in reporting 
status.
2. Comments on the Proposed Amendments
    Commentators generally supported an amendment that would provide 
for the suspension of the reporting obligation for ABS.\17\ The 
commentators expressed varying levels of support for the Commission's 
proposed Exchange Act Rule 15d-22(b):
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    \17\ See letters from ASF, Barnard, Cleary, CREFC, ICI, MetLife, 
and MBA.
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     Two commentators supported the proposal without changes; 
\18\
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    \18\ See letters from Barnard and ICI.
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     One commentator recommended a more stringent standard; 
\19\
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    \19\ See letter from MetLife recommending permitting suspension 
``only if (a) ABS of a particular class are no longer held by non-
affiliates of the depositor and (b) the transaction has matured 
(i.e. the collateral has been liquidated from the trust or otherwise 
been fully amortized) or been redeemed or called by the servicer.''
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     One commentator expressed general support for the proposal 
subject to specific comments on the language of the proposal; \20\
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    \20\ See letter from ASF recommending various changes to the 
proposed language discussed in more detail below.
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     One commentator suggested expanding the set of 
circumstances when ABS issuers may suspend reporting; \21\ and
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    \21\ See letter from Cleary recommending permitting suspension 
or termination of reporting in two additional circumstances: (1) 
Where an ABS is backed by a sufficient concentration of obligations 
of an entity (e.g., repackagings) and reference information under 
Item 1100(c)(2) of Regulation AB (17 CFR 229.1100(c)(2)) is 
unavailable and (2) where investors voted for termination after a 
period of public reporting.
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     Two commentators suggested allowing suspension for 
commercial mortgage-backed securities issuers after one year in keeping 
with the Section 15(d) standard as it existed prior to the adoption of 
Section 942(a) of the Act amending Exchange Act Section 15(d).\22\
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    \22\ See letters from CREFC and MBA.
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    The proposed rule would have required an issuer to assess whether 
there were any securities held by non-affiliates of the depositor at 
the beginning of the fiscal year. One commentator recommended 
accelerating the timing of when an issuer may assess whether it may 
suspend reporting to enable an issuer to suspend reporting once there 
are no non-affiliated holders or in the alternative, monthly.\23\ In 
addition, this commentator recommended that the Commission amend the 
proposed rule to clarify that, at such time as none of an issuer's 
registered ABS remain outstanding, the issuer may immediately cease 
ongoing Exchange Act reporting.\24\ In contrast, some commentators 
supported the

[[Page 52551]]

timing of the assessment,\25\ and one commentator recommended requiring 
an issuer to re-assess its reporting obligation, including after 
suspension, every six months and further recommended including an anti-
avoidance provision.\26\
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    \23\ See letter from ASF.
    \24\ Id.
    \25\ See letters from Barnard and ICI.
    \26\ See letter from MetLife. MetLife expressed concern that 
there are possible scenarios where a depositor or its affiliates 
could potentially acquire all registered ABS securities of a 
particular class that were not held by such entities prior to the 
Section 15(d) re-assessment determination date and then re-sell such 
securities to non-affiliates in secondary transactions during the 
course of the fiscal year.
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    Some commentators recommended specific revisions to the proposed 
text of the rule. The proposed rule would have provided that the issuer 
may not suspend reporting in the ``fiscal year within which the 
registration statement became effective.'' One commentator recommended 
that the Commission revise the language to instead refer to the 
``fiscal year within which the takedown occurred'' to provide 
additional clarity on the application of the rule as it relates to 
shelf offerings.\27\ In addition, the proposed rule would provide for 
suspension of reporting obligations in any fiscal year when there ``are 
no longer any securities of such class held by non-affiliates of the 
depositor.'' Two commentators noted that ABS are often held of record 
by a custodian or broker on behalf of underlying beneficial owners and 
suggested that the test should look to the underlying beneficial owners 
of the securities.\28\ In addition, one commentator recommended using 
the term ``are not'' rather than saying there ``are no longer'' any 
securities of such class held by non-affiliates of the depositor that 
were sold in the registered transaction to avoid any implication that 
the ABS must have been previously held by one or more non-
affiliates.\29\
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    \27\ See letter from ASF.
    \28\ See letters from ASF and MetLife.
    \29\ See letter from ASF.
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3. Final Rule
    After considering the comments, we are adopting amendments to our 
rules to provide for suspension of the reporting obligations for a 
given class of ABS pursuant to Exchange Act Section 15(d) as proposed 
with some changes as recommended by commentators. As adopted, Exchange 
Act Rule 15d-22(b) provides that the duty to file annual and other 
reports under Section 15(d) is suspended:
     As to any semi-annual fiscal period, if, at the beginning 
of the semi-annual fiscal period, other than a period in the fiscal 
year within which the registration statement became effective or, for 
shelf offerings, the takedown occurred, there are no ABS of such class 
that were sold in a registered transaction held by non-affiliates of 
the depositor and a certification on Form 15 has been filed; \30\ or
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    \30\ The final rule clarifies that the issuer must make its 
determination as of the beginning of the semi-annual fiscal period 
and file a certification on Form 15 in the semi-annual fiscal period 
within which the issuer suspends its reporting obligation.
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     When there are no ABS of such class that were sold in a 
registered transaction still outstanding, immediately upon the filing 
with the Commission of a certification on Form 15 if the issuer has 
filed all required reports for the most recent three fiscal years.\31\
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    \31\ The final rule, consistent with Exchange Act Rule 12h-3, 
also states that if the certification on Form 15 is withdrawn or 
denied, the issuer is obligated, within 60 days, to file all reports 
that would have been required if such certification had not been 
filed. The final rule provides conditions for the immediate 
suspension of reporting that are not required when the issuer 
suspends reporting after its semi-annual assessment that may help to 
reduce confusion or gaps in reporting upon immediate suspension and 
are consistent with the conditions established under Exchange Act 
Rule 12h-3.
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    In addition, the final rule amends Form 15 to add a checkbox for 
ABS issuers to indicate that they are relying on Exchange Act Rule 15d-
22(b) to suspend their reporting obligation and adds two Notes to 
paragraph (b). Note 1 indicates that securities held of record by a 
broker, dealer, bank or nominee shall be considered as held by the 
separate accounts for which the securities are held. Note 2 includes an 
anti-avoidance provision, as described below.
    In response to comments, Exchange Act Rule 15d-22(b) has been 
changed from the proposal in the following ways:
     The final rule provides for the timing of the suspension 
of the duty to file to be tested at the beginning of the semi-annual 
fiscal period rather than annually as proposed. The semi-annual 
assessment provided in the final rule requires an issuer to assess 
whether it is required to report more often than the proposed rule. The 
increased frequency of the required assessment seeks to alleviate 
concerns regarding reporting and information gaps that could occur with 
annual assessments by making it harder to evade the reporting 
requirements as well as reduce costs imposed by requiring reporting for 
the remainder of the year when the ABS are held solely by affiliates of 
the depositor.\32\ We do not believe more frequent assessments to allow 
suspension are appropriate because if conducted more frequently, these 
assessments might result in an ABS issuer frequently changing its 
reporting status and thereby result in less continuity in its annual 
and other reports and the creation of disclosure gaps that could be 
detrimental to investors' ability to evaluate ABS performance and make 
ongoing investment decisions.
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    \32\ See letters from ASF and MetLife. The final rule requires 
ABS issuers, like other issuers that must comply with Section 15(d), 
to assess periodically whether they may suspend their duty to file. 
Pursuant to Section 15(d) and our rules, issuers may be permitted to 
suspend their duty to file after one assessment, but may be required 
to recommence reporting after a subsequent assessment.
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     The final rule provides that an issuer of ABS may not 
suspend reporting ``in the fiscal year within which the registration 
statement became effective, or, for offerings conducted pursuant to 
Sec.  230.415(a)(1)(vii) or Sec.  230.415(a)(1)(x), the takedown for 
the offering occurred.'' The language was revised in response to 
comments to provide additional clarity on the application of the rule 
as it relates to shelf offerings.\33\
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    \33\ See letter from ASF.
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     The final rule uses the term ``there are no asset-backed 
securities'' rather than the proposed ``there are no longer any asset-
backed securities'' to avoid any implication that the ABS must have 
been held by one or more non-affiliates.\34\
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    \34\ See letter from ASF.
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     The final rule specifically provides for the immediate 
suspension upon filing of a Form 15 of the duty to file when there are 
no ABS of a class that were sold in a registered transaction still 
outstanding subject to conditions that are consistent with similar 
conditions in Exchange Act Rule 12h-3.\35\ As requested, the final rule 
makes clear that an issuer may immediately suspend reporting when the 
securities have been retired or fully paid. In providing for immediate 
suspension in our rules, we have also added obligations that are 
consistent with similar conditions in Exchange Act Rule 12h-3 and may 
help reduce possible confusion or gaps in reporting that could occur 
with an immediate suspension of reporting.
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    \35\ See letter from ASF.
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     The final rule adds a Note to paragraph (b) of Exchange 
Act Rule 15d-22 clarifying that securities held of record by a broker, 
dealer, bank or nominee for any of them for the accounts of customers 
are considered held by the separate accounts for which they are held. 
Thus, if an investment bank is an ABS issuer and holds

[[Page 52552]]

securities in its name for the benefit of other non-affiliated 
investors, it cannot suspend reporting. Conversely, if an unaffiliated 
bank or broker holds ABS for affiliates of the ABS issuer, the 
unaffiliated status of the broker or bank will not preclude suspension 
of reporting.\36\
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    \36\ See letter from ASF and MetLife.
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     The final rule adds a Note to paragraph (b) of Exchange 
Act Rule 15d-22(b) providing that an issuer may not suspend reporting 
if securities are acquired and resold by affiliates as part of a plan 
or scheme to evade the reporting obligations of Section 15(d).\37\
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    \37\ See letter from MetLife and note 26. This change should 
address the concern described by MetLife.
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    The proposal and the final rules that we are adopting today sought 
to provide for the suspension of the reporting obligation for a given 
class of ABS under limited circumstances. Two commentators requested 
that commercial mortgage-backed securities issuers be permitted to 
suspend reporting based on the use of their industry reporting 
standards.\38\ We are not adopting those recommendations because we 
believe that there are benefits to investors and the market of uniform 
disclosure standards provided by Regulation AB and public access to 
such uniform disclosure, and that such an approach is more consistent 
with Exchange Act Section 15(d), as amended by the Act. In addition, we 
are not adopting another commentator's recommendations to permit 
suspension of reporting for repackaging ABS where reference issuers 
stop reporting or to permit suspension where requested by a majority of 
holders.\39\ We are not adopting the recommendation regarding 
repackaging transactions because the concentration of the significant 
obligor in the asset pool makes the information material. The need for 
the information about the underlying issuer in the reports for the ABS 
does not change due to a change in the reporting status of the 
underlying issuer.\40\ In addition, we are not adopting the 
recommendation to permit suspension where requested by a majority of 
investors because any such suspension would limit the information 
available to investors and the marketplace for ABS with non-affiliated 
holders and could result in a reduction of the minority holders ability 
to sell and the price at which they may be able to sell their 
securities.
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    \38\ See letters from CREFC and MBA.
    \39\ See letter from Cleary.
    \40\ See the ABS Adopting Release at 1554.
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B. Revisions to Existing Exchange Act Rule Provisions

    In light of the statutory changes to Exchange Act Section 15(d), we 
proposed to revise Exchange Act Rule 15d-22 to indicate when annual and 
other reports need to be filed and when starting and suspension dates 
are determined with respect to a takedown. We also proposed to amend 
Exchange Act Rule 12h-3(b)(1) to conform the rule to the language of 
amended Exchange Act Section 15(d) and to add a clarifying note.
1. Proposed Amendments
    We proposed to amend Exchange Act Rule 15d-22 to retain the 
approach relating to separate takedowns in current Exchange Act Rules 
15d-22(a) and 15d-22(b) in a revised Exchange Act Rule 15d-22(a). Under 
the amendments we proposed, Exchange Act Rule 15d-22(a)(1) would 
provide that with respect to an offering of ABS sold off the shelf 
pursuant to Securities Act Rule 415(a)(1)(x),\41\ the requirement to 
file annual and other reports pursuant to Exchange Act Section 15(d) 
regarding a class of securities commences upon the first bona fide sale 
in a takedown of securities under the registration statement. Under the 
amendments we proposed, Exchange Act Rule 15d-22(a)(2) would establish 
that the requirement to file annual and other reports pursuant to 
Exchange Act Section 15(d) regarding a class of securities is 
determined separately for each takedown of securities under the 
registration statement. Exchange Act Rule 15d-22(c) would remain 
substantially unchanged, except for minor revisions to reflect the 
amendments discussed above. Finally, under the amendments we proposed, 
Exchange Act Rule 12h-3(b)(1) would exclude ABS from the classes of 
securities eligible for suspension (tracking the language of the 
Exchange Act) and a note would be added to Exchange Act Rule 12h-3 to 
direct ABS issuers to Exchange Act Rule 15d-22 for the requirements 
regarding suspension of reporting for ABS.
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    \41\ 17 CFR 230.415(a)(1)(x).
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2. Comments on the Proposed Amendments
    Commentators expressed general support, and no commentators 
provided specific comment on these proposed revisions.\42\
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    \42\ See letters from ASF and Barnard.
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3. Final Rule
    After further consideration, we are adopting the amendments to our 
rules relating to when annual and other reports need to be filed and 
when starting and suspension dates are determined with respect to a 
takedown substantially as proposed.\43\ We are also adopting the 
changes to Exchange Act Rule 12h-3(b)(1) to conform the rule to the 
language of amended Exchange Act Section 15(d), and provide a 
clarifying note to Exchange Act Rule 12h-3(b)(1) as proposed. In 
addition to the changes to Exchange Act Rule 12h-3 that we proposed, we 
are adding a clarifying note to Exchange Act Rule 12h-6 directing 
foreign private issuers that are ABS issuers to Exchange Act Rule 15d-
22 for the requirements regarding suspension of reporting of ABS.
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    \43\ As adopted we are including a reference to Securities Act 
Rule 415(a)(1)(vii).
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III. Paperwork Reduction Act

A. Background

    Certain provisions of the disclosure rules and forms applicable to 
ABS issuers contain ``collection of information'' requirements within 
the meaning of the Paperwork Reduction Act of 1995 (``PRA'').\44\ The 
Commission published a notice requesting comment on the collection of 
information requirements in the Proposing Release for the amendments, 
and submitted these requirements to the Office of Management and Budget 
for review in accordance with the PRA.\45\ 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 affected collections of information are:
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    \44\ 44 U.S.C. 3501 et seq.
    \45\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
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    (1) ``Form 10-K'' (OMB Control No. 3235-0063);
    (2) ``Form 10-D'' (OMB Control No. 3235-0604);
    (3) ``Form 8-K'' (OMB Control No. 3235-0288); and
    (4) ``Form 15'' (OMB Control No. 3235-0167).

Compliance with the information collections is mandatory. Responses to 
the information collections are not kept confidential and there is no 
mandatory retention period for the collections of information.
    Our PRA burden estimate for Form 10-K, Form 8-K and Form 15 is 
based on an average of the time and cost incurred by all types of 
public companies, not just ABS issuers, to prepare the collection of 
information. Form 10-D is a form that is only prepared and filed by ABS 
issuers. Form 10-D is filed within 15 days of each required 
distribution date on the ABS,

[[Page 52553]]

as specified in the governing documents for such securities, containing 
periodic distribution and pool performance information.
    Our PRA burden estimates for the collections of information are 
based on information that we receive on entities assigned to Standard 
Industrial Classification Code 6189, the code used by ABS issuers, as 
well as information from outside data sources.\46\ In the Proposing 
Release, we based our estimates on an average of the data that we have 
available for years 2004 through 2009. In some cases, our estimates for 
the number of ABS issuers that file Form 10-D with the Commission are 
based on an average of the number of ABS offerings in 2006 through 
2009.\47\
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    \46\ We rely on two outside sources of ABS issuance data. We use 
the ABS issuance data from Asset-Backed Alert on the initial terms 
of offerings, and we supplement that data with information from 
Securities Data Corporation (SDC).
    \47\ Form 10-D was not implemented until 2006. Before 
implementation of Form 10-D, ABS issuers often filed their 
distribution reports under cover of Form 8-K.
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    In the Proposing Release we requested comment on the PRA analysis. 
No commentators responded to our request for comment on the PRA 
analysis. Subsequent to the enactment of the Act, the number of Forms 
10-K, 8-K and 10-D filed by ABS issuers is expected to increase each 
year by the number of ABS registered offerings and the number of Forms 
15 filed by ABS issuers is expected to decrease by a similar number.
    The amendments provide for ABS issuers to suspend their reporting 
obligation under certain circumstances. While we expect that some 
issuers will be able to suspend their reporting obligations in the 
future as a result of the rules we adopt today, for purposes of the 
PRA, we estimated that the proposal will not affect our PRA estimates 
over the next three years.\48\ We also estimated that the amendments to 
Exchange Act Rule 15d-22 relating to reporting and shelf registration 
and Exchange Act Rule 12h-3 to conform the rule to Exchange Act Section 
15(d) will not affect our PRA estimates.
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    \48\ Since historical data on the numbers of classes of ABS that 
reduce their non-affiliated holders to zero is not generally 
available, we are using statistics relating to average expected deal 
life to establish our PRA estimate. Statistics compiled from SDC 
Platinum suggest that the average expected deal life of a class of 
ABS is over 5 years.
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    The amendments are generally consistent with our proposals, 
although the amendments do provide for semi-annual assessment, rather 
than an annual assessment, and provide for immediate suspension of 
reporting when there are no outstanding ABS. We do not believe that the 
changes from our proposal will affect our PRA estimates.
    As indicated above, we do not estimate that the final rules will 
affect our PRA estimates over the next three years, however, as 
explained in further detail in the Proposing Release, the Act's 
amendment to Section 15(d) is expected to effect the number of periodic 
and current reports and Forms 15 filed by ABS issuers each year.
    We are revising our estimates to reflect 2010 data regarding ABS 
filings. In the Proposing Release we based our estimates for the number 
of ABS issuers on an average of the data that we have available for 
years 2004 through 2009. The yearly average of ABS registered offerings 
with the Commission over the period from 2004 to 2009 was 958. The 
yearly average of ABS registered offerings with the Commission over the 
period from 2005 to 2010, a similar 6-year period, was 751.\49\ As a 
result, for PRA purposes, we are updating our estimates of annual 
increases in Form 10-K filings to 751 filings,\50\ in Form 10-D filings 
to 4,506 filings,\51\ and in Form 8-K to 1,127 filings \52\ and 
reducing the annual decrease in Form 15 filings to 751 filings.\53\ In 
addition, consistent with our estimate in the Proposing Release that an 
average of six Form 10-D filings will be filed annually instead of ten 
Form 10-D filings, which forms the basis of the current PRA inventory 
for Form 10-D, we are reducing our current inventory of annual 
responses to Form 10-D to reflect the new annual estimate.
---------------------------------------------------------------------------

    \49\ We have chosen to continue using a six year average to 
estimate the number of ABS registered offerings despite the 
significant drop off in filings after 2007. As discussed in the 
Proposing Release, in order to estimate the number of Forms 10-K, 
Forms 10-D, Forms 8-K, and Forms 15 filed by ABS issuers for PRA 
purposes, we average the estimate of the number of those forms over 
three years. For the first year of our average, we are using an 
updated number of 751 as an estimate for the number of issuers we 
expect to file Forms 10-K, Forms 10-D and Forms 8-K. In the second 
year, we increase our estimate by 751 to a total of 1,502 and in the 
third year, the addition of another 751 brings the total to 2,253. 
The average number of issuers that we expect to file forms over 
three years would, therefore, be 1,502, however 751 of those issuers 
would have filed forms prior to the statutory change. We reduce the 
estimated increase by 751 to account for those issuers. We are 
therefore increasing our estimate by 751 issuers to account for the 
increase in the number of issuers that will be required to file 
reports as a result of the statutory change. See the Proposing 
Release supra note 6 at note 30.
    \50\ As discussed above, we estimate that an additional 751 
issuers will be required to file reports as a result of the 
statutory change. We continue to estimate that each ABS issuer would 
have one annual Form 10-K filing.
    \51\ We continue to estimate that each ABS issuer would have six 
annual Form 10-D filings resulting in 4,506 additional Form 10-D 
filings (751 ABS issuers x 6 filings) as a result of the statutory 
change.
    \52\ We continue to estimate that each ABS issuer would have 1.5 
annual Form 8-K filings resulting in 1,127 additional Form 8-K 
filings (751 ABS issuers x 1.5 filings) as a result of the statutory 
change.
    \53\ As indicated in the Proposing Release, we assume that in 
any given year the issuers of all registered ABS issued in the prior 
year would have suspended reporting using Form 15. After the 
implementation of the Act, issuers are no longer able to 
automatically suspend reporting; therefore, Form 15 will no longer 
be used by these ABS issuers as it was in the past. As a result, for 
the purposes of PRA, we estimate a decrease in Form 15 filings of 
751.
---------------------------------------------------------------------------

    In summation, we estimate, for PRA purposes, increases of 90,120 
total burden hours for Form 10-K (751 Forms 10-K times 120 burden hours 
per filing), 135,180 total burden hours for Form 10-D (4,506 Forms 10-D 
times 30 burden hours per filing), and 5,635 total burden hours for 
Form 8-K (1,127 Forms 8-K times 5 burden hours per filing), as well as 
a decrease of 1,127 total burden hours for Form 15 (751 Forms 15 times 
1.5 burden hours per filing) as a result of the statutory changes to 
Exchange Act Section 15(d).\54\ We allocate 75% of those hours (an 
increase of 67,590 hours for Form 10-K, 101,385 hours for Form 10-D, 
and 4,226 hours for Form 8-K) to internal burden and the remaining 25% 
to external costs using a rate of $400 per hour (an increase of 
$9,012,000 for Form 10-K, $13,518,000 for Form 10-D and $563,500 for 
Form 8-K). In addition, we estimate, for PRA purposes, a decrease in 
total burden hours due to a change in agency estimate of the number of 
annual Form 10-D filings of 120,000 (4,000 Form 10-D filings times 30 
burden hours per filing). We allocate 75% of those hours to internal 
burden (a decrease of 90,000) and the remaining 25% to external costs 
using a rate of $400 per hour (a decrease of $12,000,000).
---------------------------------------------------------------------------

    \54\ We allocate all of the burden for Form 15 filings to 
internal burden hours.
---------------------------------------------------------------------------

    The table below illustrates the changes in annual compliance burden 
in the collection of information in hours and costs for existing 
reports for ABS issuers as a result of the statutory changes mandated 
by the Act as well as the reduction in the estimated number of Form 10-
D filings described above.

[[Page 52554]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Decrease or
                                       Current      Proposed       Current     Decrease or    Proposed        Current       increase in      Proposed
               Form                    annual        annual        burden      increase in     burden       professional   professional    professional
                                      responses     responses       hours     burden hours      hours          costs           costs          costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-K..............................        13,545        14,296    21,363,548        67,590    21,431,138   $2,848,473,000    $9,012,000   $2,857,485,000
10-D..............................        10,000        10,506       225,000        11,385       236,385       30,000,000     1,518,000       31,518,000
8-K...............................       115,795       116,922       493,436         4,226       497,662       54,212,000       563,500       54,775,500
15................................         3,000         2,249         4,500       (1,127)         3,373                0             0                0
--------------------------------------------------------------------------------------------------------------------------------------------------------

IV. Benefit-Cost Analysis

    Exchange Act Section 15(d) generally establishes an ongoing 
reporting obligation for issuers with a registration statement that has 
become effective pursuant to the Securities Act. Prior to enactment of 
the Act, Exchange Act Section 15(d) provided that for issuers without a 
class of securities registered under the Exchange Act the duty to file 
ongoing reports is automatically suspended as to any fiscal year, other 
than the fiscal year within which the registration statement for the 
securities became effective, if the securities of each class to which 
the registration statement relates are held of record by less than 300 
persons. The Act amended Exchange Act Section 15(d) to eliminate the 
automatic suspension of the duty to file ongoing Exchange Act reports 
for ABS issuers and granted the Commission authority to issue rules 
providing for the suspension or termination of such duty. The 
Commission is exercising its authority under the Exchange Act, as 
amended by the Act, by amending Exchange Act Rules 12h-3, 12h-6 and 
15d-22 to provide for the suspension of the duty to file for certain 
ABS issuers and reduce their compliance costs as discussed in this 
release.\55\
---------------------------------------------------------------------------

    \55\ The proposed amendments to Exchange Act Rules 12h-3, 12h-6 
and 15d-22(a) and (c) do not substantively alter the current 
requirements and should help issuers comply with their obligations 
and avoid confusion.
---------------------------------------------------------------------------

    The Commission is sensitive to the benefits and costs imposed by 
the rules it is amending. The discussion below focuses on the benefits 
and costs of the decisions made by the Commission in the exercise of 
its new exemptive authority provided by the Act, rather than the costs 
and benefits of the Act itself.

A. Benefits

    The amendments the Commission is adopting allow an issuer to 
suspend reporting under certain circumstances and update certain 
provisions relating to reporting obligations under a shelf registration 
statement. Providing for issuers to suspend reporting would provide the 
benefit of allowing those issuers that are now required by the Act to 
continue reporting to avoid the costs of preparing and filing annual 
and periodic reports with the Commission when only affiliates of the 
depositor hold any outstanding securities of the classes sold in 
registered transactions.
    We believe that reporting of the ongoing performance of an ABS is 
useful to investors and the market by providing readily accessible 
information upon which investors may evaluate performance and make 
ongoing investment decisions. We also recognize, however, that there 
are circumstances where the costs do not justify the benefits of 
reporting to investors and the market. In adopting rules to provide for 
the suspension or termination of the duty to file for certain ABS 
issuers, we have sought to balance the value of the information to 
investors and the market with the burden on the issuers of preparing 
the reports. More specifically, we believe that when there are only 
affiliated holders of the ABS, those affiliates will generally be able 
to receive relevant information because of their relationship with the 
depositor. Therefore, we are adopting new Exchange Act Rule 15d-22(b) 
to provide for issuers to suspend their reporting obligation under 
Section 15(d), as to any semi-annual fiscal period, if, at the 
beginning of the semi-annual fiscal period, there are no longer ABS of 
the class that were sold in a registration statement held by non-
affiliates of the depositor and a certification on Form 15 has been 
filed.
    We originally proposed that ABS issuers assess annually whether 
non-affiliates hold the ABS sold in registered transactions. We 
recognize that there is a trade-off between allowing the assessment to 
take place too frequently or not frequently enough. If the assessment 
is conducted frequently, it might result in an ABS issuer changing its 
reporting status often with the effect of less continuity in its annual 
and other reports. Reporting gaps could be detrimental to investors' 
ability to evaluate ABS performance and make ongoing investment 
decisions. However, more frequent assessments will allow an ABS issuer 
to report less and cease reporting as soon as non-affiliates no longer 
hold its securities, thus reducing the issuer's reporting burden and 
associated costs. Less frequent assessment of whether only affiliates 
hold the registered ABS issued, might result in unnecessary continued 
reporting until the assessment is made, up to 12 months for an annual 
assessment. The new Exchange Act Rule 15d-22(b) allows for semi-annual 
assessment, which we believe appropriately balances these competing 
interests.

B. Costs

    In revising Exchange Act Section 15(d), Congress exhibited an 
intent to increase the continued reporting by ABS issuers, but gave the 
Commission authority to place limitations on that reporting in the 
public interest. The Commission exercised this authority and is 
adopting amendments allowing ABS issuers to suspend their reporting 
obligation under certain limited conditions. Providing for the 
suspension of reporting limits the ability of market participants to 
access and review information for those ABS that suspend reporting. We 
believe that this cost is mitigated under these conditions, since 
affiliates will generally be able to receive relevant information 
because of their relationship with the depositor. Thus, only non-
holders of a particular ABS are affected. Furthermore, the utility of 
the information to market participants is limited since ABS owned 
solely by affiliates generally have no public market.
    We recognize that there are additional costs to assessing holders 
semi-annually and preparing ongoing disclosure for registered 
transactions relative to the costs of issuing in the private markets. 
An issuer's decision about whether to issue registered ABS may be 
affected by the threshold at which issuers may suspend their reporting 
obligations under Section 15(d). We solicited comments on whether an 
alternative suspension threshold might mitigate this effect or be more 
appropriate for other reasons. Although three commentators responded to 
our request with suggested alternatives, we are not adopting those 
alternatives, as discussed in Section II.A.3. above. No commentator 
provided us with data or analysis that would support an alternative 
threshold. Thus, we continue to believe that a threshold of zero non-

[[Page 52555]]

affiliates is consistent with the Act and presents an appropriate 
balance between the value of the reported information to investors and 
the market, and the costs of preparing the reports.

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

    Section 23(a) of the Exchange Act \56\ 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 that would impose a 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Exchange Act. Section 3(f) of the Exchange Act \57\ 
requires the Commission, when engaging in rulemaking that requires it 
to consider 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. The discussion below focuses on the effects of the decisions 
made by the Commission in the exercise of its new exemptive authority 
provided by the Act, rather than the effects of the Act itself.
---------------------------------------------------------------------------

    \56\ 15 U.S.C. 78w(a).
    \57\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    The Act amended Exchange Act Section 15(d) to eliminate the 
automatic suspension of the duty to file ongoing Exchange Act reports 
for ABS issuers and granted the Commission authority to issue rules 
providing for the suspension or termination of such duty. The 
Commission is exercising its authority under the Act by amending 
Exchange Act Rules 12h-3, 12h-6 and 15d-22 to provide for the 
suspension of the duty to file for certain ABS issuers and reduce their 
compliance costs as discussed in this release.
    The amendments update the reporting requirements for takedowns from 
shelf registration in Exchange Act Rule 15d-22 and provide for the 
suspension of the duty to file for certain ABS issuers as discussed in 
this release. Providing for ABS issuers with only affiliated holders to 
suspend their duty to file decreases transparency regarding those 
issuers. The suspension of the duty to file reduces compliance costs 
for issuers, which could increase efficiency and facilitate capital 
formation.
    An inability to suspend the duty to file may encourage some issuers 
to offer ABS privately or not to issue ABS at all, rather than 
registering those ABS and incurring the ongoing reporting costs. If 
issuers register fewer ABS, this would reduce liquidity, decrease 
transparency in the ABS market and decrease capital formation. The 
amendments provide for ABS issuers to suspend their duty to file when 
they have only affiliated investors remaining and provide issuers 
certainty regarding when they may suspend reporting, which may 
encourage some ABS issuers to register ABS and offer ABS in the public 
markets. These changes are intended to mitigate the aforementioned 
incentives to offer ABS privately or not to issue ABS at all.
    The clarifications provided in Exchange Act Rule 15d-22, 12h-3, and 
12h-6 may have a beneficial effect on the efficiency of managing ABS 
offerings, especially takedowns from ABS shelf registration, by 
providing issuers with a better understanding of their Exchange Act 
reporting obligations and facilitating compliance.
    We do not believe the amendments will have an impact or burden on 
competition.

VI. Regulatory Flexibility Act Certification

    Under Section 605(b) of the Regulatory Flexibility Act, 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 IX of the Proposing Release, but 
received no comment.

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 3(b), 12, 13, 15, 23(a), and 36 of the 
Exchange Act.

List of Subjects in 17 CFR Parts 240 and 249

    Reporting and recordkeeping requirements, Securities.

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

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

0
1. The authority citation for part 240 continues to read in part 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.; and 18 U.S.C. 1350 and 12 
U.S.C. 5221(e)(3), unless otherwise noted.
* * * * *

0
2. Amend Sec.  240.12h-3 by:
0
a. In paragraph (b)(1) introductory text adding ``, other than any 
class of asset-backed securities,'' in the first sentence after ``Any 
class of securities''; and
0
b. Adding a Note to paragraph (b).
    The addition reads as follows:


Sec.  240.12h-3  Suspension of duty to file reports under section 
15(d).

* * * * *
    (b) * * *
    (2) * * *

    Note to Paragraph (B): The suspension of classes of asset-backed 
securities is addressed in Sec.  240.15d-22.

* * * * *

0
3. Amend Sec.  240.12h-6 by adding a Note after paragraph (i) to read 
as follows:


Sec.  240.12h-6  Certification by a foreign private issuer regarding 
the termination of registration of a class of securities under section 
12(g) or the duty to file reports under section 13(a) or section 15(d).

* * * * *
    (i) * * *

    Note to Sec.  240.12h-6:  The suspension of classes of asset-
backed securities is addressed in Sec.  240.15d-22.

* * * * *

0
4. Revise Sec.  240.15d-22 to read as follows:


Sec.  240.15d-22  Reporting regarding asset-backed securities under 
section 15(d) of the Act.

    (a) With respect to an offering of asset-backed securities 
registered pursuant to Sec.  230.415(a)(1)(vii) or Sec.  
230.415(a)(1)(x) of this chapter:
    (1) Annual and other reports need not be filed pursuant to section 
15(d) of the Act (15 U.S.C. 78o(d)) regarding any class of securities 
to which such registration statement relates until the first bona fide 
sale in a takedown of securities under the registration statement; and
    (2) The starting and suspension dates for any reporting obligation 
under section 15(d) of the Act (15 U.S.C. 78o(d)) with respect to a 
takedown of any class of asset-backed securities are determined 
separately for each takedown of securities under the registration 
statement.
    (b) The duty to file annual and other reports pursuant to section 
15(d) of the Act (15 U.S.C. 78o(d)) regarding any class of asset-backed 
securities is suspended:
    (1) As to any semi-annual fiscal period, if, at the beginning of 
the semi-

[[Page 52556]]

annual fiscal period, other than a period in the fiscal year within 
which the registration statement became effective, or, for offerings 
conducted pursuant to Sec.  230.415(a)(1)(vii) or Sec.  
230.415(a)(1)(x), the takedown for the offering occurred, there are no 
asset-backed securities of such class that were sold in a registered 
transaction held by non-affiliates of the depositor and a certification 
on Form 15 (17 CFR 249.323) has been filed; or
    (2) When there are no asset-backed securities of such class that 
were sold in a registered transaction still outstanding, immediately 
upon filing with the Commission a certification on Form 15 (17 CFR 
249.323) if the issuer of such class has filed all reports required by 
Section 13(a), without regard to Rule 12b-25 (17 CFR 249.322), for the 
shorter of its most recent three fiscal years and the portion of the 
current year preceding the date of filing Form 15, or the period since 
the issuer became subject to such reporting obligation. If the 
certification on Form 15 is subsequently withdrawn or denied, the 
issuer shall, within 60 days, file with the Commission all reports 
which would have been required if such certification had not been 
filed.

    Note 1 to Paragraph (b):  Securities held of record by a broker, 
dealer, bank or nominee for any of them for the accounts of 
customers shall be considered as held by the separate accounts for 
which the securities are held.


    Note 2 to Paragraph (b):  An issuer may not suspend reporting if 
the issuer and its affiliates acquire and resell securities as part 
of a plan or scheme to evade the reporting obligations of Section 
15(d).

    (c) This section does not affect any other reporting obligation 
applicable with respect to any classes of securities from additional 
takedowns under the same or different registration statements or any 
reporting obligation that may be applicable pursuant to section 12 of 
the Act (15 U.S.C. 78l).

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
5. 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.
* * * * *

0
6. Amend Form 15 (referenced in Sec.  249.323) by:
0
a. Adding a checkbox referring to ``Rule 15d-22(b)'' after the checkbox 
referring to ``Rule 15d-6''; and
0
b. By revising the first sentence of the Instruction to read: ``This 
form is required by Rules 12g-4, 12h-3, 15d-6 and 15d-22 of the General 
Rules and Regulations under the Securities Exchange Act of 1934.''

    Note: The text of Form 15 does not and this amendment will not 
appear in the Code of Federal Regulations.


    By the Commission.

     Dated: August 17, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-21500 Filed 8-22-11; 8:45 am]
BILLING CODE 8011-01-P