
[Federal Register: October 23, 2009 (Volume 74, Number 204)]
[
Proposed Rules]               
[Page 54767-54771]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc09-14]                         

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SECURITIES AND EXCHANGE COMMISSION



17 CFR Part 232



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

RIN 3235-AK44



 
Extension of Filing Accommodation for Static Pool Information in 

Filings With Respect to Asset-Backed Securities



AGENCY: Securities and Exchange Commission.



ACTION: Proposed rule.



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SUMMARY: The Commission proposes to amend Rule 312 of Regulation S-T 

which provides a temporary filing accommodation for filings with 

respect to asset-backed securities that allows static pool information 

required to be disclosed in a prospectus to be provided on an Internet 

Web site under certain conditions. Under Rule 312, such information is 

deemed to be included in the prospectus included in the registration 

statement for the asset-backed securities. Rule 312 currently applies 

to filings with respect to asset-backed securities filed on or before 

December 31, 2009. We propose to amend Rule 312 to extend its 

application for one year. Under the proposed extension, the rule would 

apply to filings with respect to asset-backed securities filed on or 

before December 31, 2010.



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



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



Electronic Comments



     Use the Commission's Internet comment form (http://

www.sec.gov/rules/proposed.shtml); or

     Send an e-mail to rule-comments@sec.gov. Please include 

File



[[Page 54768]]



Number S7-23-09 on the subject line; or

     Use the Federal Rulemaking Portal (http://

www.regulations.gov). Follow the instructions for submitting comments.



Paper Comments



     Send paper comments in triplicate to Elizabeth M. Murphy, 

Secretary, Securities and Exchange Commission, 100 F Street, NE., 

Washington, DC 20549-1090.



All submissions should refer to File Number S7-23-09. This file number 

should be included on the subject line if e-mail is used. To help us 

process and review your comments more efficiently, please use only one 

method. The Commission will post all comments on the Commission's 

Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments 

are also available for public inspection and copying in the 

Commission's Public Reference Room, 100 F Street, NE, Washington, DC 

20549, on official business days between the hours of 10 a.m. and 3 

p.m. All comments received will be posted without change; we do not 

edit personal identifying information from submissions. You should 

submit only information that you wish to make available publicly.



FOR FURTHER INFORMATION CONTACT: John Harrington, Attorney-Adviser, 

Division of Corporation Finance, at (202) 551-3430, U.S. Securities and 

Exchange Commission, 100 F Street, NE., Washington, DC 20549-3628.



SUPPLEMENTARY INFORMATION:  We are proposing an amendment to Rule 312 

\1\ of Regulation S-T.\2\

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    \1\ 17 CFR 232.312.

    \2\ 17 CFR 232.10 et seq.

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I. Background and Discussion of the Proposed Amendment



    In December, 2004, we adopted new and amended rules and forms to 

address the registration, disclosure and reporting requirements for 

asset-backed securities (``ABS'') under the Securities Act of 1933 \3\ 

(the ``Securities Act'') and the Securities Exchange Act of 1934 \4\ 

(the ``Exchange Act'').\5\ As part of this rulemaking, we adopted 

Regulation AB,\6\ a new principles-based set of disclosure items 

forming the basis for disclosure with respect to ABS in both Securities 

Act registration statements and Exchange Act reports. Compliance with 

the revised rules was phased in; full compliance with the revised rules 

became effective January 1, 2006. One of the significant features of 

Regulation AB is Item 1105, which requires, to the extent material, 

static pool information to be provided in the prospectus included in 

registration statements for ABS offerings.\7\ While the disclosure 

required by Item 1105 depends on factors such as the type of underlying 

asset and materiality, the information required to be disclosed can be 

extensive. For example, a registrant may be required to disclose 

multiple performance metrics in periodic increments for prior 

securitized pools of the sponsor for the same asset type in the last 

five years.\8\

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    \3\ 15 U.S.C. 77a et seq.

    \4\ 15 U.S.C. 78a et seq.

    \5\ See Asset-Backed Securities, Release No. 33-8518 (December 

22, 2004) [70 FR 1506] (adopting release related to Regulation AB 

and other new rules and forms related to asset-backed securities) 

(hereinafter, the ``Adopting Release'').

    \6\ 17 CFR 229.1100 et seq.

    \7\ See Form S-1 and Form S-3 under the Securities Act. Static 

pool information indicates how groups, or static pools, of assets, 

such as those originated at different intervals, are performing over 

time. By presenting comparisons between originations at similar 

points in the assets lives, the data allows the detection of 

patterns that may not be evident from overall portfolio numbers and 

thus may reveal a more informative picture of material elements of 

portfolio performance and risk.

    \8\ 17 CFR 229.1105.

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    As described in the Adopting Release, in response to the 

Commission's proposal to require material static pool information in 

prospectuses for ABS offerings, many commenters representing both 

asset-backed issuers and investors requested flexibility in the 

presentation of such information. In particular, commenters noted that 

the required static pool information could include a significant amount 

of statistical information that would be difficult to file 

electronically on EDGAR as it existed at that time and difficult for 

investors to use in that format. Commenters accordingly requested the 

flexibility for asset-backed issuers to provide static pool information 

on an Internet Web site rather than as part of an EDGAR filing.\9\ In 

response to these comments, we adopted Rule 312 of Regulation S-T, 

which permits, but does not require, the posting of the static pool 

information required by Item 1105 on an Internet Web site under the 

conditions set forth in the rule.\10\ We recognized at the time that a 

Web-based approach might allow for the provision of the required 

information in a more efficient, dynamic and useful format than was 

currently feasible on the EDGAR system. At the same time, we explained 

that we continued to believe at some point for future transactions the 

information should also be submitted with the Commission in some 

fashion, provided investors continue to receive the information in the 

form they have requested. Accordingly, we adopted Rule 312 as a 

temporary filing accommodation applicable to filings filed on or before 

December 31, 2009.\11\ We explained that we were directing our staff to 

consult with the EDGAR contractor, EDGAR filing agents, issuers, 

investors and other market participants to consider how static pool 

information could be filed with the Commission in a cost-effective 

manner without undue burden or expense that still allows issuers to 

provide the information in a desirable format. We also noted, however, 

that it might be necessary, among other things, to extend the 

accommodation.\12\

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    \9\ See Adopting Release, Section III.B.4.b.

    \10\ 17 CFR 232.312(a). Instead of relying on Rule 312, an 

issuer can include information required by Item 1105 of Regulation 

AB physically in the prospectus or, if permitted, through 

incorporation by reference from an Exchange Act report.

    \11\ 17 CFR 232.312(a); see also Adopting Release, Section 

III.B.4.b.

    \12\ Adopting Release, Section III.B.4.b.

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    We are proposing to extend the temporary filing accommodation set 

forth in Rule 312 of Regulation S-T for one year so that it would apply 

to filings with respect to ABS filed on or before December 31, 2010. 

During the proposed extension, the existing requirements of Rule 312 

would continue to apply. Pursuant to these requirements, the registrant 

must disclose its intention to provide static pool information through 

a Web site in the prospectus included in the registration statement at 

the time of effectiveness and provide the specific Internet address 

where the static pool information is posted in the prospectus filed 

pursuant to Rule 424.\13\ The registrant must maintain such information 

on the Web site unrestricted and free of charge for a period of not 

less than five years, indicate the date of any updates or changes to 

the information, undertake to provide any person without charge, upon 

request, a copy of the information as of the date of the prospectus if 

a subsequent update or change is made to the information and retain all 

versions of the information provided on the Web site for a period of 

not less than five years in a form that permits delivery to an investor 

or the Commission. In addition, the registration statement for the ABS 

must contain an undertaking pursuant to Item 512(l) of Regulation S-K 

\14\ that the information provided on the Web site pursuant to Rule 312 

is deemed to be part of the prospectus included in the registration 

statement.\15\

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    \13\ 17 CFR 230.424.

    \14\ 17 CFR 229.512(l).

    \15\ 17 CFR 232.312. As we indicated in the Adopting Release, if 

the conditions of Rule 312 are satisfied, then the information will 

be deemed to be part of the prospectus included in the registration 

statement and thus subject to all liability provisions applicable to 

prospectuses and registration statements, including Section 11 of 

the Securities Act [15 U.S.C. 77k]. Adopting Release, Section 

III.B.4.b.



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[[Page 54769]]



    We believe that it is appropriate to extend the filing 

accommodation provided by Rule 312 before its expiration after December 

31, 2009. Based on the staff's experience since Rule 312 became 

effective in 2006, the vast majority of residential mortgage-backed 

security issuers and a significant portion of ABS issuers in other 

asset classes have relied on the accommodation provided by the rule to 

disclose static pool information on an Internet Web site. Furthermore, 

we believe that it remains the case that it could be difficult to file 

the information electronically on EDGAR as it exists today and 

difficult for investors to use in that format.

    Since the adoption of Rule 312 in December, 2004, technological 

advances and expanded use of the Internet have enabled the Commission 

to adopt additional rules incorporating electronic communications. The 

Commission continues to recognize that, in certain circumstances and 

under certain conditions, the Internet can present a reliable and cost-

effective alternative or supplement to traditional disclosure 

methods.\16\ On the other hand, we are mindful of the benefit of having 

information filed on the EDGAR system.

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    \16\ See, e.g., Internet Availability of Proxy Materials, 

Release No. 34-55146 (Jan. 22, 2007) [72 FR 4148] (adopting release 

for voluntary E-Proxy rules) and Internet Availability of Proxy 

Materials, Release No. 34-52926 (December 8, 2005) [70 FR 74598] 

(proposing release for voluntary E-Proxy rules). See also Enhanced 

Disclosure and New Prospectus Delivery Option for Registered Open-

End Management Investment Companies, Release No. 33-8998, Section 

III.A.4.c (Jan. 13, 2009) [74 FR 4546] (adopting Item 11(g)(2) of 

Form N-1A under the Investment Company Act of 1940 [15 U.S.C. 80a-1 

et seq.] which allows exchange-traded funds to provide premium/

discount information on a Web site rather than in a prospectus or 

annual report) and Securities Offering Reform, Release No. 33-8591, 

Section VI.B.1 (July 19, 2005) [70 FR 44722] (adopting ``access 

equals delivery'' model for final prospectus delivery).

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    The staff of the Division of Corporation Finance is currently 

engaged in a broad review of the Commission's regulation of ABS 

including disclosure, offering process, and reporting of asset-backed 

issuers. Along with this review, the staff of the Division of 

Corporation Finance is continuing to explore whether a filing mechanism 

for static pool information that fulfills the objectives identified 

above is feasible. As the staff considers this issue further, we 

believe it is appropriate to extend the temporary filing accommodation 

for one year. We believe a proposal for a long-term solution for 

providing static pool disclosure would be better considered together 

with other possible proposals to revise the regulations governing the 

offer and sale of ABS. The proposed one-year extension of Rule 312 is 

intended to provide time to enable us to proceed in this manner.

    We are soliciting comments in this release about current practice 

and potential alternatives for providing static pool disclosure and 

will consider the responses we receive in determining whether to extend 

Rule 312 or to address the issue more broadly as part of a package of 

ABS proposals.



Request for Comment



    We request and encourage any interested person to submit comments 

regarding the proposed amendment described above. In particular, we 

solicit comment on the following questions:

     Is an extension of the filing accommodation appropriate? 

What would be the consequences if the accommodation lapsed on December 

31, 2009 and static pool information was required in an EDGAR filing 

beginning January 1, 2010?

     How could static pool information be filed with the 

Commission in a cost-effective manner that continues to allow the 

information to be provided in a format that promotes utility and 

functionality? Are there alternative filing mechanisms that could 

replace or supplement Rule 312?

     Have investors or other market participants had any 

difficulties with locating, accessing, viewing or analyzing static pool 

information posted on an Internet Web site pursuant to the filing 

accommodation provided by Rule 312 of Regulation S-T? Has the 

information remained on the Web site for the required duration and have 

updates and changes been appropriately reflected?

     Have issuers found that the Internet Web site posting 

accommodation provided by Rule 312 has enabled them to provide the 

required static pool information in a cost-effective, efficient and 

useful manner? Have issuers encountered any issues or problems with 

Internet Web site posting pursuant to Rule 312? How should we address 

those issues or problems?

     Would the proposed one-year extension present particular 

problems for investors? Would a shorter or more narrowly tailored 

extension ameliorate those concerns?

     Should the filing accommodation be extended for longer 

than one year, for example, two, three or five years, or made 

permanent? If so, are there any revisions to the rule that should be 

made?

     Are there any other changes we should consider making to 

Rule 312 of Regulation S-T?



Paperwork Reduction Act



    Rule 312 of Regulation S-T was adopted along with other new and 

amended rules and forms to address the registration, disclosure and 

reporting requirements for ABS under the Securities Act and the 

Exchange Act. In connection with this prior rulemaking, we submitted a 

request for approval of the ``collection of information'' requirements 

contained in the amendments and rules to the Office of Management and 

Budget (``OMB'') in accordance with the Paperwork Reduction Act of 1995 

(``PRA'').\17\ OMB approved these requirements.\18\

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    \17\ 44 U.S.C. 3501 et seq.

    \18\ The collections of information to which Rule 312 of 

Regulation S-T relates from ``Form S-1'' (OMB Control No. 3235-0065) 

and ``Form S-3'' (OMB Control No. 3235-0073).

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    Item 1105 of Regulation AB \19\ requires certain static pool 

information, to the extent material, to be provided in prospectuses 

included in registration statements for ABS offerings.\20\ Rule 312 is 

a temporary filing accommodation that permits the posting of the static 

pool information required by Item 1105 on an Internet Web site under 

the conditions set forth in the rule.\21\ The proposed amendment to 

Rule 312 extends the existing temporary filing accommodation provided 

by the rule for one additional year. As is the case today, issuers may 

choose whether or not to take advantage of the accommodation. The 

conditions of Rule 312 remain otherwise unchanged. The disclosure 

requirements themselves, which are contained in Forms S-1 and S-3 under 

the Securities Act and require the provision of the information set 

forth in Item 1105 of Regulation AB, also remain unchanged. Therefore, 

the proposed amendment, if adopted, will not result in an increase or 

decrease in the costs and burdens imposed by the ``collection of 

information'' requirements previously approved by the OMB.

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    \19\ 17 CFR 229.1105.

    \20\ See Form S-1 and Form S-3 under the Securities Act.

    \21\ 17 CFR 232.312(a).

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III. Cost-Benefit Analysis



    In this section, we examine the benefits and costs of our proposed 

amendment. We request that commenters provide views and supporting 

information as to the benefits and costs associated with the



[[Page 54770]]



proposal. We seek estimates of these costs and benefits, as well as any 

costs and benefits not already identified.



A. Benefits



    We adopted the filing accommodation provided by Rule 312 of 

Regulation S-T because commenters requested flexibility in the 

presentation of required static pool information. Given the large 

amount of statistical information involved, commenters argued for a 

Web-based approach that would allow issuers to present the information 

in an efficient manner and with greater functionality and utility than 

might be available if an EDGAR filing was required. We believe this 

greater functionality and utility has enhanced an investor's ability to 

access and analyze the static pool information and also removed the 

burden on issuers of duplicating the information in each prospectus as 

well as easing the burdens of updating such information.\22\ As we 

discussed in the Adopting Release, since the information is deemed to 

be part of the prospectus included in the registration statement, the 

rule is designed to give investors access to accurate and reliable 

information.

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    \22\ See Section I above and Adopting Release, Section V.D.

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    By extending the accommodation provided by Rule 312, these benefits 

to both issuers and investors would continue to apply. As discussed 

above, many ABS issuers rely on Rule 312 to provide static pool 

information on an Internet Web site rather than in an EDGAR filing.\23\ 

We do not believe we can implement an alternative filing mechanism by 

the end of 2009 that would meet the objectives of both issuers and 

investors to present static pool information in an efficient, cost-

effective form that would provide investors utility and functionality 

in terms of accessing and analyzing that information. Therefore, if we 

do not amend Rule 312 to extend its application, static pool 

information would be required in EDGAR filings beginning on January 1, 

2010. We believe this would result in costs for issuers as they attempt 

to adjust their procedures in a short period of time in order to 

present the information in a format acceptable to the EDGAR system and 

could result in costs to investors if the information filed on EDGAR 

was presented in a less useful format.

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    \23\ See Section I above.

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    By extending Rule 312, we seek to avoid these potentially negative 

effects for issuers and investors as we continue to explore the best 

format in which to require the filing of static pool information. As 

indicated above, the staff of the Division of Corporation Finance is 

considering this issue along with other proposals addressing the 

disclosure, offering process and reporting of asset-backed issuers.



B. Costs



    We do not believe a one-year extension of the Rule 312 

accommodation would impose any new or increased costs on issuers. In 

the Cost-Benefit Analysis section of the Adopting Release, we noted 

that asset-backed issuers electing the Web-based accommodation provided 

by Rule 312 would incur costs related to the maintenance and retention 

of static pool information posted on a Web site and might also incur 

start-up costs.\24\ While it is likely that certain of those costs 

would continue to impact asset-backed issuers that elect the Web-based 

approach during the extension period, we do not believe our proposed 

amendment would impose any new or increased costs for asset-backed 

issuers because it does not change any other conditions to the 

accommodation or the underlying filing and disclosure obligations. As a 

result of the proposed extension of the accommodation, asset-backed 

issuers would be able to continue their current practices for an 

additional year.

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    \24\ See Adopting Release, Section V.D.

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    For investors, there may be costs associated with the static pool 

information not being electronically filed with the Commission. For 

example, when information is electronically filed with the Commission, 

investors and staff can access the information from a single, 

centralized location, the EDGAR Web site. We think these costs are 

mitigated by the fact that ABS issuers relying on the Rule 312 

accommodation must ensure that the prospectus for the offering contains 

the Internet Web site address where the static pool information is 

posted, the Web site must be unrestricted and free of charge, such 

information must remain on the Internet Web site for five years with 

any changes clearly indicated and the issuer must undertake to provide 

the information to any person free of charge, upon request, if a 

subsequent update or change is made. Furthermore, because the 

information is deemed included in the prospectus under Rule 312, it is 

subject to all liability provisions applicable to prospectuses and 

registration statements.

    Investors and issuers may have incurred costs to adjust their 

processes in anticipation of the lapse of the Rule 312 accommodation 

and potential reversion to a requirement to file static pool 

information on EDGAR. In this case, benefits to investors or issuers of 

not having to change their procedures regarding static pool reporting 

in a short time frame would be diminished by any costs already incurred 

in anticipation of the change. We believe such anticipatory action and 

any associated costs are minimal.

    We request comment on the amount of any additional costs issuers or 

investors may incur as a result of the proposed amendment.



IV. Small Business Regulatory Enforcement Fairness Act



    For purposes of the Small Business Regulatory Enforcement Fairness 

Act of 1996, or ``SBREFA,'' \25\ we solicit data to determine whether 

the proposal constitutes a major rule. Under SBREFA, a rule is 

considered ``major'' where, if adopted, it results or is likely to 

result in:

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    \25\ 5 U.S.C. 603.

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     An annual effect on the economy of $100 million or more 

(either in the form of an increase or a decrease);

     A major increase in costs or prices for consumers or 

individual industries; or

     Significant adverse effects on competition, investment or 

innovation.

    We request comment on the potential impact of the proposed 

amendment on the U.S. economy on an annual basis, any potential 

increase in costs or prices for consumers or individual industries, and 

any potential effect on competition, investment or innovation. 

Commenters are requested to provide empirical data and other factual 

support for their views if possible.



V. Consideration of Impact on the Economy, Burden on Competition and 

Promotion of Efficiency, Competition and Capital Formation



    Section 2(b) of the Securities Act requires us, when engaging in 

rulemaking where we are required to consider or determine whether an 

action is necessary or appropriate in the public interest, to also 

consider whether the action will promote efficiency, competition, and 

capital formation.

    As discussed in greater detail above, Rule 312 of Regulation S-T 

was adopted as a temporary filing accommodation so that issuers of ABS 

could present static pool information on an Internet Web site. The 

proposed amendment to Rule 312 of Regulation S-T extends its 

application for one year. We are not proposing changes to the 

conditions of Rule 312 or to the disclosure obligations



[[Page 54771]]



to which it applies. We do not believe that a one-year extension would 

impose a burden on competition. We also believe the extension of the 

filing accommodation would continue to promote efficiency and capital 

formation by permitting ABS issuers to disclose static pool information 

in a format that is more useful to investors and cost-effective and not 

unduly burdensome for asset-backed issuers.

    We request comment on whether the proposed amendment, if adopted, 

would promote efficiency, competition, and capital formation. 

Commenters are requested to provide empirical data and other factual 

support for their view to the extent possible.



VI. Regulatory Flexibility Analysis Certification



    The Commission hereby certifies pursuant to 5 U.S.C. 605(b) that 

the proposed amendment contained in this release, if adopted, would not 

have a significant economic impact on a substantial number of small 

entities. The proposal relates to the disclosure requirements for ABS 

in Securities Act registration statements. Securities Act Rule 157 \26\ 

defines an issuer, other than an investment company, to be a ``small 

business'' or ``small organization'' if it had total assets of $5 

million or less on the last day of its most recent fiscal year. In 

2004, when we proposed the new and amended rules and forms to address 

the registration, disclosure and reporting requirements for ABS, we 

certified that the proposals would not have a significant economic 

impact on a substantial number of small entities. As the depositor and 

issuing entity are most often limited purpose entities in an ABS 

transaction, we focused on the sponsor in analyzing the potential 

impact of the proposals under the Regulatory Flexibility Act. The staff 

analyzed sponsors that conducted registered public offerings of ABS 

during 2003. No sponsor had total assets of $5 million or less.\27\ 

Based on staff experience, we continue to believe that few, if any, 

sponsors are small entities. In addition, even if some sponsors are 

small entities, the proposed amendment to Rule 312 would not have a 

significant economic impact on any such entities because it only 

extends a temporary filing accommodation that is currently in effect. 

As discussed above in Section III, we do not believe the proposed 

extension would impose any new or increased costs on ABS issuers. 

Accordingly, we do not believe that the extension, if adopted, would 

have a significant economic impact on a substantial number of small 

entities.

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    \26\ 17 CFR 230.157.

    \27\ Asset-Backed Securities, Release No. 33-8419 (May 3, 2004) 

[69 FR 26650] (proposing release related to Regulation AB and other 

new rules and forms related to asset-backed securities).

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    We solicit written comments regarding this certification. We 

request comment on whether the proposals could have an effect that we 

have not considered. We request that commenters describe the nature of 

any impact on small entities and provide empirical data to support the 

extent of the impact.



VII. Statutory Authority and Text of the Proposed Amendment



    The amendment described is being proposed under the authority set 

forth in Sections 6, 7, 10, 19 and 28 of the Securities Act of 1933 (15 

U.S.C. 77f, 77g, 77j, 77s and 77z-3).



List of Subjects in 17 CFR Part 232



    Reporting and recordkeeping requirements, Securities.



Text of the Proposed Amendment



    For the reasons set out in the preamble, the Commission proposes to 

amend title 17, chapter II, of the Code of Federal Regulations as 

follows:



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

ELECTRONIC FILINGS



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

as follows:



    Authority:  15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 

77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 

80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.

* * * * *





Sec.  232.312  [Amended]



    2. Amend Sec.  232.312 by removing ``December 31, 2009'' and in its 

place adding ``December 31, 2010'' in the first sentence of paragraph 

(a).

* * * * *



    Dated: October 19, 2009.



    By the Commission.

Elizabeth M. Murphy,

Secretary.

 [FR Doc. E9-25496 Filed 10-22-09; 8:45 am]
