2017-24928. Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of Amendment No. 1 to Proposed Rule Change To Amend MSRB Rule G-34, on CUSIP Numbers, New Issue, and Market Information Requirements

November 13, 2017.

I. Introduction

On August 30, 2017, the Municipal Securities Rulemaking Board (“MSRB”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”) ^[1] and Rule 19b-4 thereunder,^[2] a proposed rule change consisting of amendments to Rule G-34 on CUSIP numbers, new issue, and market information requirements. The proposed rule change was published for comment in the Federal Register on September 18, 2017.^[3] The Commission received eleven comment letters on the proposal.^[4] On October 18, 2017, the MSRB granted an extension of time for the Commission to act on the filing until December 15, 2017. On November 7, 2017, the MSRB responded to the comments ^[5] and filed Amendment No. 1 to the proposed rule change (“Amendment No. 1”). The text of Amendment No. 1 is available on the MSRB's Web site.^[6] The Commission is publishing this notice to solicit comments on Amendment No. 1 to the proposed rule change from interested persons.

II. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Amendment

In response to concerns raised in the comments, the MSRB is proposing to amend proposed paragraph Rule G-34(a)(i)(F) of the proposed rule change to require dealers (and municipal advisors in a competitive sale) seeking to rely on the principles-based exception to reasonably believe the purchaser's present intent is to hold the municipal securities to maturity “or earlier redemption or mandatory tender.” ^[7] The MSRB believes the proposed rule change should be amended to more accurately reflect the terms of direct purchase transactions including the potential for earlier redemption or mandatory tender.^[8] The MSRB is proposing this same amendment to the proposed principles-based exception for dealers from the depository eligibility requirements of the rule set forth in proposed subparagraph Rule G-34(a)(ii)(A)(3) for consistency.^[9] The MSRB stated that this provision would clarify that the depository eligibility requirements of Rule G-34(a)(ii)(A) do not apply to municipal securities included in the principles-based exception.^[10]

In response to concerns raised in the comments, the MSRB also is proposing amending the proposed rule change to expand the principles-based exception in proposed paragraph Rule G-34(a)(i)(F) to include cases where a municipal entity purchases the municipal securities with funds that are at least in part proceeds of the purchasing entity's issue of municipal obligations, or the municipal securities being purchased are used to fully or partially secure or pay the purchasing entity's issue of municipal obligations.^[11] The MSRB believes that certain sales of municipal securities to municipal entities should be excepted from the CUSIP number requirements for the same policy reasons underlying the principles-based exception for purchases by banks and their non-dealer control affiliates.^[12] In particular, the MSRB believes that where a municipal entity is purchasing municipal securities using funds that are at least in part proceeds of that purchasing entity's issuance of other municipal obligations, or where the municipal securities being purchased are used to fully or partially secure or pay the purchasing entity's issue of municipal obligations, there is a strong expectation that the purchase of the underlying municipal securities is intended to be held and not traded in the secondary market.^[13] As with the exception for dealers (or municipal advisors in a competitive sale) engaging in direct purchase transactions of new issue municipal securities to banks, the MSRB believes that requiring a CUSIP number in these scenarios would not serve the purposes of Rule G-34 to, among other things, improve efficiencies in the processing, receiving, delivering and safekeeping of municipal securities.^[14] The MSRB also believes that, just as in the case of purchases by banks and their non-dealer control affiliates, for a dealer (or municipal advisor in a competitive sale) to rely on the principles-based exception in this instance, it would be required to have a reasonable belief (e.g., by obtaining a written representation) that the purchasing municipal entity has the present intent to hold the municipal securities to maturity or earlier redemption or mandatory tender.^[15] The MSRB is also proposing this same amendment to the principles-based exception for dealers from the depository eligibility requirements of the rule set forth in subparagraph Rule G-34(a)(ii)(A).^[16]

In response to comments that the principles-based exception should apply to all sales of municipal securities from one municipal entity to another where a dealer (or municipal advisor in a competitive sale) is engaged, the MSRB stated that it disagrees.^[17] The MSRB stated that the principles-based exception is meant to facilitate financings by permitting the underwriting of new issue municipal securities by dealers (or advising by municipal advisors in a competitive sale) without requiring application be made for a CUSIP number where such new issues are not intended to trade in the secondary market.^[18] However, the MSRB stated that it understands that a municipal entity purchasing municipal securities for investment purposes may find itself in need of liquidity and thus may look to resell those municipal securities into the secondary market.^[19] In this instance, the MSRB stated, the holder of the municipal securities may find itself unable to readily resell the municipal securities because there is no CUSIP number and, based on discussions with industry participants, the MSRB stated that it understands there is also no established process for obtaining a CUSIP number at that late stage for secondary market trading.^[20] The MSRB believes that by applying for the CUSIP number on the new issue up front, the dealer (or municipal advisor in a competitive sale) avoids these potential problems and ensures that this important aspect needed for secondary market trading is in place.^[21] As a result, the MSRB stated that it does not believe the principles-based exception should be expanded to create a generalized private placement exception for all sales of municipal securities to another municipal entity where a dealer (or a municipal advisor in a competitive sale) is engaged, but rather, should be limited as set forth above.^[22]

The MSRB is proposing to make the proposed rule change effective six months after Commission approval and is requesting accelerated approval of Amendment No. 1.^[23] The MSRB believes the Commission has good cause, pursuant to Section 19(b)(2) of the Act, for granting accelerated approval of Amendment No. 1.^[24] The MSRB believes that the only substantive change to the proposed rule change is responsive to commenters and expands the application of the previously proposed principles-based exception to include sales of new issue municipal securities to municipal entities that are purchasing the underlying municipal securities with funds that are at least in part proceeds of the purchasing entity's issue of municipal obligations, or the municipal securities being purchased are used to fully or partially secure or pay the purchasing entity's issue of municipal obligations.^[25] The MSRB believes that the other amendment to the proposed rule change merely clarifies that in a direct purchase transaction there may be a redemption or mandatory tender that occurs prior to the municipal security's maturity.^[26] The MSRB also stated that, in light of one of the purposes of the principles-based exception in the proposed rule change—to allow dealers and municipal advisors to provide services without inhibiting their issuer clients' access to certain financings—the revisions are consistent with the proposed rule change and are unlikely to be controversial.^[27]

III. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the filing as amended by Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods:

Electronic Comments

• Use the Commission's Internet comment form (http://www.sec.gov/​rules/​sro.shtml); or
• Send an email to [e-mail]. Please include File Number SR-MSRB-2017-06 on the subject line.

Paper Comments

• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.

All submissions should refer to File Number SR-MSRB-2017-06. This file number should be included on the subject line if email is used. To help the Commission 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/​sro.shtml) . Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be 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 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the MSRB. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-MSRB-2017-06 and should be submitted on or before December 1, 2017.

For the Commission, pursuant to delegated authority.²⁸

Eduardo A. Aleman,

Assistant Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  Exchange Act Release No. 81595 (September 13, 2017), 82 FR 43587 (“Notice”). The comment period closed on October 10, 2017.

4.  See Letter to Secretary, Commission, from Leslie M. Norwood, Managing Director and Associate General Counsel, Securities Industry and Financial Markets Association (“SIFMA”), dated October 10, 2017; Letter to Secretary, Commission, from Susan Gaffney, Executive Director, National Association of Municipal Advisors (“NAMA”), dated October 10, 2017; Letter to Secretary, Commission, from Steve Apfelbacher, President, EHLERS Inc., dated October 10, 2017; Letter to Secretary, Commission, from Noreen P. White, Co-President, and Kim W. Whelan, Co-President, Acacia Financial Group, Inc., dated October 10, 2017; Letter to Secretary, Commission, from Cristeena G. Naser, Vice President and Senior Counsel, American Bankers Association (“ABA”), dated October 10, 2017; Letter to Secretary, Commission, from Michael G. Sudsina, President, Sudsina & Associates, LLC, dated October 10, 2017; Letter to Secretary, Commission, from Marianne F. Edmonds, Senior Managing Director, Public Resources Advisory Group (“PRAG”), dated October 10, 2017; Letter to Secretary, Commission, from Emily Swenson Brock, Director, Federal Liaison Center, Government Finance Officers Association (“GFOA”), dated October 10, 2017; Letter to Secretary, Commission, from Peter Warms, Senior Manager of Fixed Income, Entity, Regulatory Content and Symbology, Bloomberg L.P., dated October 10, 2017; Letter to Secretary, Commission, from Dennis Dix, Principal, DIXWORKS LLC, dated October 10, 2017; Letter to Secretary, Commission, from Stephan Wolf, CEO, Global Legal Entity Identifier Foundation (“GLEIF”), dated October 9, 2017. Staff from the Office of Municipal Securities discussed the proposed rule change with representatives from PFM Financial Advisors LLC and PFM Asset Management LLC on October 26, 2017.

5.  See Letter from Margaret R. Blake, Associate General Counsel, MSRB, to Secretary, SEC, dated November 7, 2017 (“MSRB Response Letter”), available at https://www.sec.gov/​comments/​sr-msrb-2017-06/​msrb201706-2674227-161458.pdf.

6.  Amendment No. 1 is available at http://www.msrb.org/​~/​media/​Files/​SEC-Filings/​2017/​MSRB-2017-06-A-1.ashx.

7.  See Amendment No. 1.

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28.  17 CFR 200.30-3(a)(12).