[Federal Register Volume 87, Number 244 (Wednesday, December 21, 2022)]
[Notices]
[Pages 78116-78118]
[FR Doc No: 2022-27747]

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

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2022-0002]

Final Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, Department of Homeland
Security.

ACTION: Notice.

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

SUMMARY: Flood hazard determinations, which may include additions or
modifications of Base Flood Elevations (BFEs), base flood depths,
Special Flood Hazard Area (SFHA) boundaries or zone designations, or
regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where
applicable, in the supporting Flood Insurance Study (FIS) reports have
been made final for the communities listed in the table below. The FIRM
and FIS report are the basis of the floodplain management measures that
a community is required either to adopt or to show evidence of having
in effect in order to qualify or remain qualified for participation in
the Federal Emergency Management Agency's (FEMA's) National Flood
Insurance Program (NFIP).

DATES: The date of May 23, 2023 has been established for the FIRM and,
where applicable, the supporting FIS report showing the new or modified
flood hazard information for each community.

ADDRESSES: The FIRM, and if applicable, the FIS report containing the
final flood hazard information for each community is available for
inspection at the respective Community Map Repository address listed in
the tables below and will be available online through the FEMA Map
Service Center at https://msc.fema.gov by the date indicated above.

FOR FURTHER INFORMATION CONTACT: Rick Sacbibit, Chief, Engineering
Services Branch, Federal Insurance and Mitigation Administration, FEMA,
400 C Street SW, Washington, DC 20472,<PHONE_NUMBER>, or (email)
[email protected]; or visit the FEMA Mapping and Insurance
eXchange (FMIX) online at https://www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) makes the final determinations listed below for the new or
modified flood hazard information for each community listed.
Notification of these changes has been published in newspapers of local
circulation and 90 days have elapsed since that publication. The Deputy
Associate Administrator for Insurance and Mitigation has resolved any
appeals resulting from this notification.
    This final notice is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67. FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR part 60.
    Interested lessees and owners of real property are encouraged to
review the new or revised FIRM and FIS report available at the address
cited below for each community or online through the FEMA Map Service
Center at https://msc.fema.gov.
    The flood hazard determinations are made final in the watersheds
and/or communities listed in the table below.
(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

Michael M. Grimm,
Assistant Administrator for Risk Management, Federal Emergency
Management Agency, Department of Homeland Security.

------------------------------------------------------------------------
                                             Community map repository
               Community                             address
------------------------------------------------------------------------
              Brooks County, Georgia and Incorporated Areas
                         Docket No.: FEMA-B-2207
------------------------------------------------------------------------
City of Morven.........................  City Hall, 178 2nd Street,
                                          Morven, GA 31638.
City of Quitman........................  City Hall, 100 West Screven
                                          Street, Quitman, GA 31643.
Unincorporated Areas of Brooks County..  Brooks County Office Building,
                                          610 South Highland Road,
                                          Quitman, GA 31643.
------------------------------------------------------------------------
            Anderson County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
Unincorporated Areas of Anderson County  Anderson County Zoning
                                          Administration Office, 139
                                          South Main Street,
                                          Lawrenceburg, Kentucky 40342.
------------------------------------------------------------------------
              Boyle County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
City of Perryville.....................  City Hall, 314 East 2nd Street,
                                          Perryville, KY 40468.
Unincorporated Areas of Boyle County...  Boyle County Courthouse, 321
                                          West Main Street, Danville, KY
                                          40422.
------------------------------------------------------------------------
             Bullitt County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
City of Lebanon Junction...............  City Hall, 271 Main Street,
                                          Lebanon Junction, KY, 40150.
Unincorporated Areas of Bullitt County.  Bullitt County, Nina Mooney
                                          Courthouse Annex Building, 149
                                          North Walnut Street, 3rd
                                          Floor, Shepherdsville, KY
                                          40165.
------------------------------------------------------------------------
              Casey County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
Unincorporated Areas of Casey County...  Casey County Court Clerk
                                          Office, 625 Campbellsville
                                          Street, Liberty, KY 42539.
------------------------------------------------------------------------
             Hardin County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
Unincorporated Areas of Hardin County..  Hardin County Engineering
                                          Department, 150 North
                                          Provident Way, Suite 223,
                                          Elizabethtown, KY 42701.
------------------------------------------------------------------------
              LaRue County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
Unincorporated Areas of LaRue County...  LaRue County Courthouse, 209
                                          West High Street, Hodgenville,
                                          KY 42748.
------------------------------------------------------------------------
             Marion County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
City of Bradfordsville.................  City Hall, 202 West Main
                                          Street, Bradfordsville, KY
                                          40009.
------------------------------------------------------------------------
City of Lebanon........................  City Hall, 240 West Main
                                          Street, Lebanon, KY 40033.
City of Raywick........................  Marion County, Dave Ross
                                          Hourigan Government Center
                                          Building, 223 North Spalding
                                          Avenue, Suite 201, Lebanon, KY
                                          40033.
Unincorporated Areas of Marion County..  Marion County, Dave Ross
                                          Hourigan Government Center
                                          Building, 223 North Spalding
                                          Avenue, Suite 201, Lebanon, KY
                                          40033.
------------------------------------------------------------------------
             Mercer County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
Unincorporated Areas of Mercer County..  The Greater Harrodsburg/Mercer
                                          County Planning and Zoning
                                          Commission, 109 Short Street,
                                          Number 1, Harrodsburg, KY
                                          40330.
------------------------------------------------------------------------
             Nelson County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
City of Bardstown......................  Nelson County Old Courthouse, 1
                                          Court Square, Bardstown, KY
                                          40004.
------------------------------------------------------------------------
City of New Haven......................  Nelson County Old Courthouse, 1
                                          Court Square, Bardstown, KY
                                          40004.
Unincorporated Areas of Nelson County..  Nelson County Old Courthouse, 1
                                          Court Square, Bardstown, KY
                                          40004.
------------------------------------------------------------------------

           Washington County, Kentucky and Incorporated Areas
                         Docket No.: FEMA-B-2208
------------------------------------------------------------------------
City of Springfield....................  City Hall, 127 West Main
                                          Street, Springfield, KY 40069.
Unincorporated Areas of Washington       Washington County Judicial
 County.                                  Center, 109 North Cross Main
                                          Street, Springfield, KY 40069.
------------------------------------------------------------------------
            Caroline County, Virginia and Incorporated Areas
                         Docket No.: FEMA-B-2189
------------------------------------------------------------------------
Town of Bowling Green..................  Town Hall, 117 Butler Street,
                                          Bowling Green, VA 22427.
Town of Port Royal.....................  Town Hall, 419 King Street,
                                          Port Royal, VA 22535.
Unincorporated Areas of Caroline County  Caroline County Planning and
                                          Building Department, 233 West
                                          Broaddus Avenue, Bowling
                                          Green, VA 22427.
------------------------------------------------------------------------
              Iron County, Wisconsin and Incorporated Areas
                         Docket No.: FEMA-B-2114
------------------------------------------------------------------------
City of Hurley.........................  City Hall, 405 5th Avenue
                                          North, Hurley, WI 54534.
City of Montreal.......................  City Hall, 54 Wisconsin Avenue,
                                          Montreal, WI 54550.
Unincorporated Areas of Iron County....  Iron County Comprehensive
                                          Planning, Land and Zoning
                                          Department, 300 Taconite
                                          Street, Suite 115, Hurley, WI
                                          54534.
------------------------------------------------------------------------

[FR Doc. 2022-27747 Filed 12-20-22; 8:45 am]
BILLING CODE 9110-12-P


[Federal Register: September 17, 2010 (Volume 75, Number 180)]
[Rules and Regulations]
[Page 56889-56892]
[DOCID:fr17se10-10]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0569; FRL-9200-6]

Revisions to the California State Implementation Plan, San Diego
County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct final action to approve revisions to the
San Diego County Air Pollution Control District (SDCAPCD) portion of
the California State Implementation Plan (SIP). This revision concerns
the definition of volatile organic compound (VOC). We are approving a
local rule that regulates these emission sources under the Clean Air
Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on November 16, 2010 without further
notice, unless EPA receives adverse comments by October 18, 2010. If we
receive such comments, we will publish a timely withdrawal in the
Federal Register to notify the public that this direct final rule will
not take effect.

ADDRESSES: Submit comments, identified by docket number [EPA-R09-OAR-
2010-0569], by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. E-mail<EMAIL_ADDRESS>    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
    Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.vregulations.gov or e-
mail. www.regulations.gov is an ``anonymous access'' system, and EPA
will not know your identity or contact information unless you provide
it in the body of your comment. If you send e-mail directly to EPA,
your e-mail address will be automatically captured and included as part
of the public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Cynthia Allen, EPA Region IX, (415)
947-4120<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating this rule?
    B. Does this rule meet the evaluation criteria?
    C. Public Comment and Final Action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule we are approving with the date that it was
adopted by the local air agency and submitted by the California Air
Resources Board (CARB).

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
               Local agency                  Rule No.             Rule title             Adopted      Submitted
----------------------------------------------------------------------------------------------------------------
SDCAPCD..................................            2   Definitions................     06/30/99      05/17/10
----------------------------------------------------------------------------------------------------------------

    On June 8, 2010, EPA determined that the submittal for SDCAPCD Rule
2, met the completeness criteria in 40 CFR Part 51 Appendix V, which
must be met before formal EPA review.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 2 into the SIP on February
3, 2000 (65 FR 5262).

C. What is the purpose of the submitted rule revision?

    Section 110(a) of the CAA requires States to submit regulations
that control volatile organic compounds, oxides of nitrogen,
particulate matter, and other air pollutants which harm human health
and the environment.
    SDCAPCD Rule 2, Definitions, is amended to revise Table 1, Exempt
Compounds by including several low photochemically--reactive organic
compounds that were added by EPA since 2004 to the list of compounds
that were excluded from the VOC definition. EPA's technical support
document (TSD) has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating this rule?

    This rule describes administrative provisions and definitions that
support emission controls found in other local agency requirements. In
combination with the other requirements, this rule must be enforceable
(see action 110(a) of the Act) and must not relax existing requirements
(see sections 110(1) and 193). EPA policy that we used to help evaluate
enforceability requirements consistently includes the Bluebook
(``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988) and the Little Bluebook (``Guidance
Document for Correcting Common VOC & Other Rule Deficiencies,'' EPA
Region 9, August 21, 2001).

B. Does this rule meet the evaluation criteria?

    We believe this rule is consistent with the relevant policy and
guidance regarding enforceability and SIP relaxations. The TSD has more
information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully
approving this submitted rule because we believe it fulfills all
relevant requirements. We do not think anyone will object to this
approval, so we are finalizing it without proposing it in advance.
However, in the Proposed Rules section of this Federal Register, we are
simultaneously proposing approval of the same submitted rule. If we
receive adverse comments by October 18, 2010, we will publish a timely
withdrawal in the Federal Register to notify the public that the direct
final approval will not take effect and we will address the comments in
a subsequent final action based on the proposal. If we do not receive
timely adverse comments, the direct final approval will be effective
without further notice on November 16, 2010. This will incorporate the
rule into the federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
    This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the Clean Air Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP approval does not create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal

government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
    This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this proposed rulemaking. In reviewing SIP submissions,
EPA's role is to approve or disapprove state choices, based on the
criteria of the Clean Air Act. Accordingly, this action merely approves
certain State requirements for inclusion into the SIP under section 110
and subchapter I, part D of the Clean Air Act and will not in-and-of
itself create any new requirements. Accordingly, it does not provide
EPA with the discretionary authority to address, as appropriate,
disproportionate human health or environmental effects, using
practicable and legally permissible methods, under Executive Order
12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective November 16, 2010.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 16, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 29, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52 [AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(379)(i)(B) to read
as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (379) * * *
    (i) * * *
    (B) San Diego County Air Pollution Control District.
    (1) Rule 2, ``Definitions,'' Rev. Adopted and Effective on June 30,
1999, Table 1--Exempt Compounds: Rev. and Effective on November 4,
2009.
* * * * *
[FR Doc. 2010-23128 Filed 9-16-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: January 28, 2010 (Volume 75, Number 18)]
[Notices]
[Page 4621-4622]
[DOCID:fr28ja10-121]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2000-7363; FMCSA-2001-10578; FMCSA-2003-16241]

Qualification of Drivers; Exemption Renewals; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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

SUMMARY: FMCSA previously announced its decision to renew the
exemptions from the vision requirement in the Federal Motor Carrier
Safety Regulations for 10 individuals. FMCSA has statutory authority to
exempt individuals from the vision requirement if the exemptions
granted will not compromise safety. The Agency has concluded that
granting these exemptions will provide a level of safety that will be
equivalent to, or greater than, the level of safety maintained without
the exemptions for these commercial motor vehicle (CMV) drivers.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical
Programs,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA, Department of
Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington,
DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at http://www.regulations.gov.

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption.'' The statute also allows the
Agency to renew exemptions at the end of the 2-year period. The comment
period ended on January 11, 2010 (74 FR 65846).

Discussion of Comments

    FMCSA received no comments in this proceeding.

Conclusion

    The Agency has not received any adverse evidence on any of these
drivers that indicates that safety is being compromised. Based upon its
evaluation of the 10 renewal applications, FMCSA renews the Federal
vision exemptions for Ronald G. Austin, Rickey C. Dalton, Martiniano L.
Espinosa, James G. LaBair, Dennis A. Leschke, Lonnie Lomax, Jr., Eugene
C. Murphy, Carl W. Skinner, Jr., John H. Voigts and Daniel G. Wilson.
    In accordance with 49 U.S.C. 31136(e) and 31315, each renewal
exemption will be valid for 2 years unless revoked earlier by FMCSA.
The exemption will be revoked if: (1) The person fails to comply with
the terms and conditions of the exemption; (2) the exemption has
resulted in a lower level of safety than was maintained before it was
granted; or (3) continuation of the exemption would not be consistent
with the goals and objectives of 49 U.S.C. 31136 and 31315.

    Issued on: January 22, 2010.
Charles A. Horan III,
Acting Associate Administrator for Policy and Program Development.
[FR Doc. 2010-1764 Filed 1-27-10; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: January 5, 2010 (Volume 75, Number 2)]
[Notices]
[Page 485-492]
[DOCID:fr05ja10-151]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61237; File No. SR-MSRB-2009-10]

Self-Regulatory Organizations; Municipal Securities Rulemaking
Board; Notice of Filing of Amendment No. 1 to Proposed Rule Change
Relating to Additional Voluntary Submissions by Issuers to the MSRB's
Electronic Municipal Market Access System (EMMA[supreg])

December 23, 2009.
    On July 14, 2009, the Municipal Securities Rulemaking Board
(``MSRB'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change relating to additional voluntary submissions by
issuers to the MSRB's Electronic Municipal Market Access System
(EMMA[supreg]). The proposed rule change was published for comment in
the Federal Register on July 22, 2009.\3\ On December 18, 2009, the
MSRB filed with the Commission Amendment No. 1 to the proposed rule
change. The Commission is publishing this notice of Amendment No. 1 to
solicit comments on the proposed rule change, as amended, from
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 60315 (July 15,
2009), 74 FR 36294.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The MSRB has filed with the Commission the amendment to File No.
SR-MSRB-2009-10, originally filed on July 14, 2009 (the ``original
proposed rule change''). The amendment amends and restates the original
proposed rule change relating to additional voluntary submissions by
issuers to the MSRB's Electronic Municipal Market Access system
(``EMMA'') (as amended, the ``proposed rule change''). The proposed
rule change would amend EMMA's primary market and continuing disclosure
services to permit issuers and their designated agents to submit
preliminary official statements and other related pre-sale documents,
official statements and advance refunding documents, as well as to
permit issuers, obligated persons and their designated agents to submit
information relating to the preparation and submission of audited
financial statements and annual financial information and to post links
to other disclosure information. The MSRB requests an effective date
for the proposed rule change of a date to be announced by the MSRB in a
notice published on the MSRB Web site, which date shall be no later
than nine months after Commission approval of the proposed rule change
and shall be announced no later than sixty (60) days prior to the
effective date.
    The text of the proposed rule change is available on the MSRB's Web
site at http://www.msrb.org/msrb1/sec.asp, at the MSRB's principal
office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the MSRB included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The MSRB has prepared summaries, set forth in sections
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose

Preliminary Official Statements and Other Primary Market Documents

    The proposed rule change would amend the EMMA primary market
disclosure service \4\ to permit issuers and their designated agents to
make voluntary submissions to the primary market disclosure service of
official statements, preliminary official statements and related pre-
sale documents, and advance refunding documents (collectively,
``primary market documents'').\5\ Pre-sale documents other than a
preliminary official statement (including but not limited to notices of
sale or supplemental disclosures) would be accepted only if accompanied
or preceded by the preliminary official statement.\6\ An issuer seeking
to make submissions of primary market documents to the EMMA primary
market disclosure service would use the same accounts established with
respect to submissions of continuing disclosure documents to the EMMA
continuing disclosure service, subject to additional verification
procedures to affirmatively establish the account holder's authority to
act on behalf of the issuer in connection with such primary market
disclosure submissions.
---------------------------------------------------------------------------

    \4\ This amendment does not modify the provisions of the
original proposed rule change relating to the EMMA primary market
disclosure service.
    \5\ Obligated persons would be permitted to submit primary
market documents through the EMMA primary market disclosure service
only if designated as an agent by the issuer.
    \6\ The MSRB believes that posting of such pre-sale documents
without the related disclosure information provided in a preliminary
official statement would be inconsistent with the core disclosure
purposes of EMMA.
---------------------------------------------------------------------------

    Submissions of primary market documents by issuers and their
designated agents will be accepted on a voluntary basis if, at the time
of submission, they are accompanied by information necessary to
accurately identify: (i) The category of document being submitted; (ii)
the issues or specific securities to which such document is related;
and (iii) in the case of an advance refunding document, the specific
securities being refunded pursuant thereto. The primary market
documents and related indexing information would be displayed on the
EMMA Web portal and also would be included in EMMA's primary market
disclosure subscription service.

Additional Continuing Disclosure Submissions and Undertakings

    As amended and restated by this amendment, the proposed rule change
also would amend the EMMA continuing disclosure service to permit
issuers, obligated persons and their agents to make voluntary
submissions to the continuing disclosure service of additional
categories of disclosures, as well as information about their
continuing disclosure undertakings. Such additional continuing
disclosures and related indexing information would be displayed on the
EMMA Web portal and also would be included in EMMA's

continuing disclosure subscription service. Such additional items are:
     An issuer's or obligated person's undertaking to prepare
audited financial statements pursuant to generally accepted accounting
principles (``GAAP'') as established by the Governmental Accounting
Standards Board (``GASB''), or pursuant to GAAP as established by the
Financial Accounting Standards Board (``FASB''), as applicable to such
issuer or obligated person and as further described below (the
``voluntary GAAP undertaking''); \7\
---------------------------------------------------------------------------

    \7\ In response to the comments received on the original
proposed rule change, as discussed below, this amendment modifies
the original proposed rule change by permitting issuers and
obligated persons to elect either the GASB standard or the FASB
standard for GAAP, as appropriate. The original proposed rule change
only contemplated the use of the GASB standard.
---------------------------------------------------------------------------

     An issuer's or obligated persons' undertaking to submit
annual financial information to EMMA within 120 calendar days after the
end of the fiscal year or, as a transitional alternative that may be
elected through December 31, 2013, within 150 calendar days after the
end of the applicable fiscal year, as further described below (the
``voluntary annual filing undertaking''); \8\ and
---------------------------------------------------------------------------

    \8\ In response to the comments received on the original
proposed rule change, as discussed below, this amendment modifies
the original proposed rule change by permitting issuers and
obligated persons to elect to undertake to submit annual financial
information either within 120 days or 150 days after the end of the
fiscal year. The original proposed rule change only contemplated a
120 day timeframe.
---------------------------------------------------------------------------

     Uniform resource locator (URL) of the issuer's or
obligated person's Internet-based investor relations or other
repository of financial/operating information.
    Voluntary GAAP Undertaking. The voluntary GAAP undertaking would
consist of a voluntary undertaking by an issuer or obligated person,
either at the time of a primary offering or at any time thereafter,
that the issuer or obligated person will prepare its audited financial
statements in accordance with GAAP. The MSRB contemplates that state or
local governments or any other entities to which GASB standards are
applicable would apply GAAP as established by GASB and that any other
entities to which FASB standards are applicable would apply GAAP as
established by FASB.
    The voluntary GAAP undertaking would assist investors and other
market participants in understanding how audited financial statements
were prepared. The fact that an issuer or obligated person has entered
into a voluntary GAAP undertaking, and the standard under which audited
financial statements are to be prepared, would be prominently disclosed
on the EMMA Web portal as a distinctive characteristic of the
securities to which such undertaking applies. An issuer or obligated
person that has made a voluntary GAAP undertaking may later rescind
such undertaking, which would be disclosed through EMMA. The MSRB would
not review whether an entity has selected the appropriate accounting
standard and would not review or confirm the conformity of submitted
audited financial statements to GAAP. The MSRB contemplates that the
making of a voluntary GAAP undertaking through EMMA by an issuer or
obligated person would reflect the bona fide intent of the issuer or
obligated person to perform as undertaken but would not, by itself,
necessarily create a contractual obligation of such issuer or obligated
person.
    Voluntary Annual Filing Undertaking. The voluntary annual filing
undertaking would consist of a voluntary undertaking by an issuer or
obligated person, either at the time of a primary offering or at any
time thereafter, that the issuer or obligated person, as appropriate,
will submit to EMMA its annual financial information as contemplated
under Rule 15c2-12 of the Securities Exchange Act of 1934 (the
``Exchange Act'') by no later than 120 calendar days after the end of
such issuer's or obligated person's fiscal year (the ``120 day
undertaking'').\9\ Alternatively, to and including December 31, 2013,
the EMMA continuing disclosure service will provide the option for an
issuer or obligated person to indicate its undertaking to submit to
EMMA its annual financial information by no later than 150 calendar
days after the end of such issuer's or obligated person's fiscal year
(the ``transitional 150 day undertaking'').\10\ An issuer or obligated
person that has made a transitional 150 day undertaking may convert
such election to a 120 day undertaking at any time. On and after
January 1, 2014, the transitional 150 day undertaking option would no
longer be available for selection.
---------------------------------------------------------------------------

    \9\ Under the Exchange Act, smaller public reporting companies,
as non-accelerated filers, generally are required to file their
annual reports on Form 10-K with the Commission within 90 days after
the end of their fiscal year. The longer 120-day period included in
the voluntary annual filing undertaking of the proposed rule change
is designed to accommodate additional steps that state and local
governments often must take--under state law, pursuant to their own
requirements, or otherwise--in completing the work necessary to
prepare their annual financial information as contemplated under
Exchange Act Rule 15c2-12.
    \10\ The option to elect, through December 31, 2013, a
transitional 150 day undertaking acknowledges that the 120 day
undertaking may not be immediately achievable by most issuers and
obligated persons, as described in the comments discussed below, and
is designed to provide a means by which to recognize issuers and
obligated persons that are taking steps toward ultimately making
their annual financial information available within 120 days of
fiscal year end in the future.
---------------------------------------------------------------------------

    The voluntary annual filing undertaking would assist investors and
other market participants in understanding when the annual financial
information is expected to be available in the future. The fact that an
issuer or obligated person has entered into a voluntary annual filing
undertaking would be prominently disclosed on the EMMA Web portal as a
distinctive characteristic of the securities to which such undertaking
applies. An issuer or obligated person that has made a voluntary annual
filing undertaking may later rescind such undertaking, which would be
reflected on the EMMA Web portal. A transitional 150 day undertaking
would continue to be displayed on the EMMA Web portal through June 30,
2014, and would automatically cease to be displayed on the EMMA Web
portal after such date, unless the issuer or obligated person has
previously changed or rescinded such undertaking.
    The MSRB would not review or confirm the compliance of an issuer or
obligated person with its voluntary annual filing undertaking. The MSRB
contemplates that the making of a voluntary annual filing undertaking
through EMMA by an issuer or obligated person would reflect the bona
fide intent of the issuer or obligated person to perform as undertaken
but would not, by itself, necessarily create a contractual obligation
of such issuer or obligated person. Unless the issuer or obligated
person incorporates the 120 day undertaking or transitional 150 day
undertaking as an obligation under its continuing disclosure agreement,
the MSRB would view such issuer's or obligated person's performance
pursuant to such undertaking as distinct from any performance
obligations under its continuing disclosure agreement entered into
consistent with Rule 15c2-12, although the MSRB believes that
successful performance in accordance with a voluntary annual filing
undertaking generally should also satisfy the obligation under a
continuing disclosure agreement, depending on the specific terms of
such agreement, if the agreement provides a longer timeframe for such
submission.
    Investor Relation URL Posting. A URL of an issuer's or obligated
person's Internet-based investor relations or other repository of
financial/operating information would provide investors

with an additional avenue for obtaining further financial, operating or
other investment-related information about such issuer or obligated
person.
    Elimination of Proposed GFOA-CAFR Certificate. This amendment
modifies the original proposed rule change by eliminating one item of
additional voluntary submissions relating to the award of the
Certificate of Achievement for Excellence in Financial Reporting
awarded by the Government Finance Officers Association (``GFOA'') in
connection with the preparation of a Comprehensive Annual Financial
Report (``CAFR'') of an issuer. The MSRB notes that CAFRs are already
frequently submitted to EMMA by issuers, and in most cases the issuers
include the GFOA certificate in the submitted CAFR. Therefore, EMMA
already effectively serves as a venue through which CAFRs and GFOA
certificates are made available to investors.
    Manner of Submission. Issuers and obligated persons would make a
voluntary GAAP undertaking or voluntary annual filing undertaking
through a data input election on EMMA. Voluntary undertakings could
later be rescinded through the same EMMA interface process. The URL of
an issuer's or obligated person's investor relations or other
repository of financial/operating information also could be entered
through a text/data input field on EMMA. No document would be required
to be submitted to EMMA in connection with the voluntary GAAP
undertaking, voluntary annual filing undertaking or the issuer/
obligated person URL. The input process for each of these additional
items would include a free text input field permitting issuers and
obligated persons to include limited additional information relating to
each such item that they deem appropriate with respect thereto for
public dissemination. Further, the MSRB would include an explanation of
the nature of the voluntary GAAP undertaking and voluntary annual
filing undertaking on the EMMA Web portal.

Effective Date of Proposed Rule Change

    As noted above, the MSRB has requested an effective date for the
proposed rule change of a date to be announced by the MSRB in a notice
published on the MSRB Web site, which date shall be no later than nine
months after Commission approval of the proposed rule change and shall
be announced no later than sixty (60) days prior to the effective date.
2. Statutory Basis
    The MSRB believes that the proposed rule change is consistent with
the provisions of Section 15B(2)(C) of the Act,\11\ which requires,
among other things, that MSRB rules must be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in municipal
securities, to remove impediments to and perfect the mechanism of a
free and open market in municipal securities, and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78o-4(b)(2)(C).
---------------------------------------------------------------------------

    The MSRB believes that the proposed rule change is consistent with
the Exchange Act in that it serves to remove impediments to and help
perfect the mechanisms of a free and open market in municipal
securities and would serve to promote the statutory mandate of the MSRB
to protect investors and the public interest. Voluntary dissemination
of preliminary official statements through EMMA, particularly if made
available prior to the sale of a primary offering to the underwriters,
would provide timely access by investors and other market participants
to key information useful in making an investment decision in a manner
that is consistent with the MSRB's statutory authority. The voluntary
GAAP undertaking would assist understanding of how such information was
prepared and the voluntary annual filing undertaking would assist
understanding of when such information is expected to be available in
the future. A URL provided by an issuer or obligated person would
provide investors with an additional avenue for obtaining further
financial, operating or other investment-related information about such
issuer or obligated person.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The MSRB does not believe the proposed rule change would impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Exchange Act. The additional items of information
submitted by issuers and obligated persons to the EMMA system for
public dissemination would be available to all persons simultaneously.
In addition to making such information available for free on the EMMA
Web portal to all members of the public, the MSRB would make such
documents and information available by subscription on an equal and
non-discriminatory basis. Further, the proposed rule change would apply
equally to all issuers and obligated persons.
    The MSRB does not believe that making the additional items of
information to be included in the EMMA continuing disclosure service
available to the public would compete with other information providers
and, to the extent other information providers were to seek to make
such information available to the public, such providers could obtain
the information from the MSRB through the subscription service on an
equal and non-discriminatory basis. Further, the MSRB does not believe
that allowing issuers to submit documents to the EMMA primary market
disclosure service would create a burden on or compete inappropriately
with any other information providers to which such documents may also
be provided and notes that other information providers would be able to
obtain the information from the MSRB through the subscription service
on an equal and non-discriminatory basis.
    The proposed rule change also would not impose any additional
burdens on competition among issuers of municipal securities since the
voluntary submissions provided for under the proposed rule change may
be made by any issuer on an equal and non-discriminatory basis.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received by the MSRB on
the original proposed rule change prior to filing with the Commission.
The original proposed rule change was published by the Commission for
comment in the Federal Register and the Commission received comments
from a number of commentators.\12\ In

addition, several commentators provided comments to the MSRB with
respect to the submission of preliminary official statements to EMMA in
response to a series of notices published by the MSRB seeking comment
on the establishment of EMMA for purposes of official statement
dissemination (the ``MSRB Notices'').\13\
---------------------------------------------------------------------------

    \12\ See Securities Exchange Act Release No. 60315 (July 15,
2009) (File No. SR-MSRB-2009-10), 74 FR 36294 (July 22, 2009). The
Commission received comments from the City of Brookfield, Wisconsin
(``Brookfield''); Connecticut State Treasurer (``Connecticut'');
Government Finance Officers Association (``GFOA''); Village of
Greendale, Wisconsin (``Greendale''); Village of Hinsdale, Illinois
(``Hinsdale''); Inland Empire Utilities Agency (``Inland'');
International City/County Management Association, National
Association of Counties, National Association of State Auditors,
Comptrollers and Treasurers, National League of Cities, U.S.
Conference of Mayors, American Public Power Association, and Council
on Infrastructure Financing Authorities, jointly (``Joint Issuer
Groups''); Investment Company Institute (``ICI''); Township of Lower
Merion, Pennsylvania (``Lower Merion''); Michigan State Treasurer
(``Michigan''); National Association of Bond Lawyers (``NABL'');
National Association of Health and Educational Facilities Finance
Authorities (``NAHEFFA''); National Association of State Treasurers
(``NAST''); Oregon Municipal Finance Officers Association
(``OMFOA''); City of Portland, Oregon (``Portland''); City of Rock
Hill, South Carolina (``Rock Hill''); Rutherford County, Tennessee
(``Rutherford''); Securities Industry and Financial Markets
Association (``SIFMA''); State of Tennessee (``Tennessee''); Utah
Government Finance Officers Association (``UGFOA''); and Virginia
Government Finance Officers' Association (``VGFOA''). The comment
letters received by the Commission are posted on the Commission's
Web site at http://www.sec.gov/comments/sr-msrb-2009-10/
msrb200910.shtml.
    \13\ MSRB Notice 2006-19 (July 27, 2006) (the ``Concept
Release''); MSRB Notice 2007-5 (January 25, 2007) (the ``January
2007 Notice''). Comments relating to preliminary official statement
submissions were received in response to the Concept Release from
American Government Financial Services Company (``AGFS''), TRB
Associates (``TRB''), UMB Bank, N.A. (``UMB''), and Zions Bank
Public Finance (``Zions''). Comments relating to preliminary
official statement submissions were received in response to the
January 2007 Notice from American Municipal Securities, Inc.
(``AMS''), DPC DATA Inc. (``DPC''), Ipreo Holdings LLC (``Ipreo''),
NABL and SIFMA. These notices and comment letters are included in
Exhibit 2.
---------------------------------------------------------------------------

General
    Except with respect to the voluntary annual filing undertaking,
virtually all commentators on the original proposed rule change
supported the proposal. Most commentators opposed the voluntary annual
filing undertaking, with some of these commentators not expressing
opinions on the remaining portions of the original proposed rule
change. NABL suggested delaying action on changes to the EMMA
continuing disclosure service until the Commission's proposed
amendments to Rule 15c2-12 are finalized,\14\ and also noted general
concerns regarding whether prominent display of the voluntary
undertakings would be construed as recommendations by the MSRB and
regarding the specific process by which issuers and obligated persons
could later rescind any undertakings they make. SIFMA asked what
responsibilities dealers may have arising from an issuer's failure to
meet a voluntary undertaking. Various commentators provided comments on
specific elements of the original proposed rule change, as described
below.
---------------------------------------------------------------------------

    \14\ See Securities Exchange Act Release No. 60332 (July 17,
2009) (File No. S7-15-09), 74 FR 36832 (July 24, 2009).
---------------------------------------------------------------------------

Preliminary Official Statements
    The original proposed rule change would amend the EMMA primary
market disclosure service to permit issuers and their designated agents
to make voluntary submissions to the primary market disclosure service
of official statements, preliminary official statements and related
pre-sale documents, and advance refunding documents. Pre-sale documents
other than a preliminary official statement (including but not limited
to notices of sale or supplemental disclosures) would be accepted only
if accompanied or preceded by the preliminary official statement.
    A number of commentators on the original proposed rule change
expressed general support for the various elements thereof (other than
the voluntary annual filing undertaking), including the element to
permit issuers to submit preliminary official statements and related
pre-sale documents. In addition, in comment letters to the MSRB on the
MSRB Notices, SIFMA,\15\ along with AMS, DPC, Ipreo, NABL, TRB, UMB and
Zions, supported the concept of voluntary submissions of preliminary
official statements. DPC and AGFS suggested that the MSRB explore
making the submission of preliminary official statements mandatory,
while SIFMA, AMS and NABL emphasized that preliminary official
statement submissions should not be made mandatory.
---------------------------------------------------------------------------

    \15\ Bear Stearns & Co., Inc. and Griffin, Kubik, Stephens &
Thompson, Inc. stated that they participated in the formulation of
SIFMA's comments on the January 2007 Notice and fully supported
SIFMA's positions.
---------------------------------------------------------------------------

    The MSRB believes that there is considerable value in providing a
means for centralized access to preliminary official statements at or
prior to the time of trade and in sufficient time to make use of the
information in coming to an investment decision. However, the MSRB is
precluded from mandating pre-sale submission of preliminary official
statement pursuant to Exchange Act Section 15B(d)(1). In its filing
with the Commission to establish the EMMA primary market disclosure
service, the MSRB stated that it expected to provide the opportunity
for voluntary submissions of and access to preliminary official
statements through EMMA, consistent with the MSRB's statutory
authority, pursuant to a future filing with the Commission.\16\ The
proposed rule change would permit such voluntary submissions of
preliminary official statements.
---------------------------------------------------------------------------

    \16\ See Securities Exchange Act Release No. 59636 (March 27,
2009), 74 FR 15190 (April 2, 2009) (File No. SR-MSRB-2009-02).
---------------------------------------------------------------------------

    Connecticut noted in its comments on the original proposed rule
change that preliminary official statements would generally not have
CUSIP numbers associated with them and that EMMA's usability would be
improved by making such documents identifiable by means other than
CUSIP numbers, such as by issuer. NABL supported submissions of
preliminary official statements and related pre-sale documents for
competitive sales of new issues but expressed concerns with regard to
potentially conflicting submissions by underwriters and issuers in the
case of negotiated issues and therefore recommended that the ability to
make preliminary official statement submissions by issuers be
restricted solely to competitive issues.
    The MSRB expects to provide search capabilities tailored to the
types of indexing information that would be available for preliminary
official statements, including issuer name, issue description, state,
and appropriate date ranges, among other things. Submissions made by
issuers would be noted as such on the EMMA Web portal. The MSRB
believes that postings of preliminary official statements by issuers
should be available for any new issue, not just those sold on a
competitive basis, and the EMMA primary market submission process would
be designed to discourage duplicative submissions by issuers and
underwriters.
    In commenting on the MSRB Notices, SIFMA and DPC noted the
importance of ensuring version control where both preliminary official
statements and official statements are made available (as well as in
handling ``stickers'' to official statements), suggesting that the MSRB
include a mechanism for notification to the public when the final
official statement is posted in cases where a preliminary official
statement has previously been submitted. DPC suggested that preliminary
official statements be deleted when final official statements are
submitted, while NABL suggested that underwriters be permitted to
request that the preliminary official statement be removed from the
centralized electronic system once the ``timeliness of a POS has
ended,'' noting that its continued availability may confuse investors.
However, SIFMA opposed the removal of the preliminary official
statement.
    The MSRB notes that the current operation of the EMMA Web portal
provides processes that address each of these suggestions. Under
current Rule

G-32, preliminary official statements, if available, are required to be
submitted by the underwriter by closing solely in the circumstance
where an official statement is not being prepared by the issuer or if
the official statement is not available for submission to EMMA by the
closing. Once the official statement is provided by the underwriter,
the preliminary official statement generally is moved to a document
archive that is accessible through the EMMA portal directly from the
page where the link to the official statement is provided, thereby
distinguishing the final official statement from the preliminary
official statement while maintaining public access for those wishing to
refer back to the preliminary official statement. Users of the EMMA
portal are able to request to receive e-mail notifications for updates
to the disclosure document for a specific security, which applies to
the situation where an official statement is submitted to EMMA
following an initial submission of the preliminary official statement.
Voluntary Annual Filing Undertaking
    The original proposed rule change would amend the EMMA continuing
disclosure service to permit issuers and obligated persons to
undertake, on a voluntary basis, to submit annual financial information
to EMMA within 120 calendar days after the end of the fiscal year. This
would consist of a voluntary undertaking by an issuer or obligated
person, either at the time of a primary offering or at any time
thereafter, that the issuer or obligated person, as appropriate, will
submit to EMMA its annual financial information as contemplated under
Rule 15c2-12 by no later than 120 calendar days after the end of such
issuer's or obligated person's fiscal year. Issuers and obligated
persons would indicate the existence of such an undertaking through a
data input election on EMMA. No document would be required to be
submitted to EMMA in connection with this undertaking. The fact that an
issuer or obligated person has entered into such an undertaking would
be prominently disclosed on the EMMA Web portal as a distinctive
characteristic of the securities to which such undertaking applies and
the MSRB would include an explanation of the undertaking on the EMMA
Web portal. If an issuer or obligated person that has made an
undertaking later rescinds such undertaking, the issuer or obligated
person would be able to disclose such action through EMMA. The MSRB
would not review or confirm the compliance of an issuer or obligated
person with this undertaking.
    This element of the original proposed rule change generated
significant, but not universal, negative commentary, with virtually all
commentators, except as noted below, strongly objecting.\17\ GFOA
stated that it believes that ``setting an `ideal' deadline of 120 days
is unnecessary, arbitrary, and likely harmful to the quality of
financial reporting.'' GFOA noted that many issuers that meet the 180
day timeframe for receiving its Certificate of Achievement for
Excellence in Financial Reporting with respect to the preparation of
their CAFRs must ``struggle'' to achieve that deadline and that a
significantly shorter deadline ``might reasonably be expected to
persuade any number of such governments to abandon a CAFR altogether in
favor of a plain set of basic financial statements.'' GFOA also noted
that GAAP requires reporting of data from legally separate component
units over which most issuers have no legal ability to compel to
provide such data in a timeframe that would make meeting the voluntary
annual filing undertaking possible. GFOA further suggested that the
voluntary annual filing undertaking could encourage the use of less
qualified audit firms and the increased use of estimates. The Joint
Issuer Groups and NAST stated that they ``strongly encourage the SEC
and the MSRB to withdraw this part of the proposal, as it is not
consistent with current practices and would diminish the quality of
financial reporting and auditing standards.'' Various other issuers and
issuer groups made arguments similar to those raised by the GFOA.\18\
---------------------------------------------------------------------------

    \17\ See Brookfield, Connecticut, GFOA, Greendale, Inland, Joint
Issuer Groups, Lower Merion, Michigan, NABL, NAHEFFA, NAST, OMFOA,
Portland, Rock Hill, Rutherford, Tennessee, UGFOA and VGFOA.
    \18\ See Brookfield, Connecticut, Greendale, Inland, Joint
Issuer Groups, Lower Merion, Michigan, NABL, NAHEFFA, NAST, OMFOA,
Portland, Rock Hill, Rutherford, Tennessee, UGFOA and VGFOA.
---------------------------------------------------------------------------

    Numerous issuers and issuer groups argued that the voluntary annual
filing undertaking would likely become a de facto standard that issuers
would feel compelled to meet.\19\ They noted that the accelerated
production of financial information would create significant financial
and personnel burdens that would likely have adverse consequences to
issuers while providing questionable benefits to investors.\20\ Small
issuers observed that their internal staffs are not able to support
this timeframe and are given low priority by their auditors as compared
to their larger clients.\21\ Portland stated that ``even if the City
`staffed up' on its end, there are not a sufficient number of
independent auditors available to conduct the auditing function within
the 120-day time period.'' Rock Hill stated that auditing firms ``are
increasingly less inclined to bid for governmental audits because of
the specialized continuing education requirements and the perception
that the work is not lucrative.''
---------------------------------------------------------------------------

    \19\ See Brookfield, Connecticut, Inland, Joint Issuer Groups,
NAHEFFA, NAST and VGFOA.
    \20\ See Brookfield, Connecticut, GFOA, Greendale, Inland, Joint
Issuer Groups, NAHEFFA, NAST, OMFOA, Portland, UGFOA and VGFOA.
    \21\ See Brookfield, Greendale, Inland, NAHEFFA, OMFOA,
Portland, Rock Hill, Rutherford, UGFOA and VGFOA.
---------------------------------------------------------------------------

    Inland Empire expressed concern that the potential ``black eye''
for not making the voluntary annual filing undertaking could create
pressure from elected officials to meet it that, in turn, could cause
professional staff and their auditors to produce less accurate
information just to meet the deadline. While not expressly opposing the
voluntary annual filing undertaking, Connecticut questioned the
usefulness of this element and expressed concern if this element is
used by the market to screen issues. Many issuers stated that the 180
day standard used by GFOA in connection with its CAFR program is a more
appropriate timeframe.\22\ VGFOA cited difficulties in simultaneously
meeting GFOA's CAFR timeframes, state law requirements and the existing
annual financial undertaking in its continuing disclosure undertaking
entered into pursuant to Rule 15c2-12. Several commentators noted
various adjustments that are uniquely required to be made for
governmental entities or conduit borrowers after the end of the fiscal
year that make meeting the 120 day timeframe difficult or
impossible.\23\ Tennessee reviewed various statistics on timing of
preparation of audited statements and concluded that ``[s]electing a
timeframe of 120 days without understanding the differences in
reporting environments appears arbitrary and may unnecessarily limit
the municipal market volume.'' Tennessee further noted that states have
met to discuss ``timeliness barriers and ways of reducing the timeframe
of financial reporting'' and requests that further study be undertaken.
NAHEFFA noted that, since there are apparently no legal ramifications
for failing to meet the deadline in an issuer's voluntary annual filing
undertaking, nothing would ``preclude the issuer from effectively
advertising the undertaking on EMMA, and as a result receiving
preferred

status, irrespective of actual compliance.''
---------------------------------------------------------------------------

    \22\ See Inland, Michigan, Portland and UGFOA.
    \23\ See GFOA, Inland, Joint Issuer Groups, NAHEFFA, NAST, Rock
Hill, Tennessee, UGFOA and VGFOA.
---------------------------------------------------------------------------

    Hinsdale, however, noted that ``the proposed 120 day period for
submitting annual financial information is a good start toward meeting
the objective of making financial statements of governments timely and
useful in the public securities market.'' GFOA stated that it
``certainly could support a voluntary disclosure field indicating that
a government was, in fact, in compliance with its continuing disclosure
agreement obligations.''
    The ICI stated that it is ``particularly supportive'' of the
voluntary annual filing undertaking proposal, although it continued to
press for ``the establishment of a meaningful, mandatory timeframe for
filing financial reports.'' ICI recommended, with regard to a mandatory
standard, a 180-day deadline as an incremental improvement over the
current industry practice of 270 days. SIFMA also supported the
voluntary annual filing undertaking.
    The MSRB acknowledges and appreciates the detailed explanations
provided by commentators on the original proposed rule change with
respect to the existing difficulties and barriers to meeting the 120
day timeframe of the voluntary annual filing undertaking as proposed in
the original proposed rule change. The MSRB understands that a
significant portion of the issuer and obligated person community is
likely unable to make such a 120 day undertaking at this time and that
such inability does not necessarily reflect problems with the issuer's
or obligated person's credit or the quality of disclosures they make.
As the MSRB had previously noted, this voluntary undertaking was
originally proposed after consultation between the MSRB and Commission
staff.\24\ After a careful review of the comments and further
discussions with Commission staff on the voluntary annual filing
undertaking, the MSRB understands that the Commission staff strongly
believes that, given its voluntary nature, the undertaking to provide
annual financial information within the originally proposed 120 day
timeframe remains the appropriate undertaking for display on the EMMA
Web portal.
---------------------------------------------------------------------------

    \24\ See MSRB Notice 2009-44 (July 15, 2009).
---------------------------------------------------------------------------

    In light of the commentators' widespread concerns regarding the
attainability of the 120 day timeframe, the MSRB has determined to
provide a transitional option for issuers and obligated persons to
elect a 150 day undertaking as an alternative to the 120 day
undertaking. This alternative election would provide issuers and
obligated persons seeking to make the voluntary annual filing
undertaking, but that are not currently able to meet a 120 day
timeframe, with a reasonable opportunity to overcome existing barriers
to more rapid dissemination of financial information in an orderly and
cost-effective manner. Commission staff has indicated that an
alternative election of 150 days after fiscal year end would be an
appropriate transitional alternative but that this option should be
available only on a temporary basis to provide a pathway toward
achieving the 120 day timeframe.
    The MSRB has accordingly modified the original proposed rule change
to allow the election, through December 31, 2013, of a transitional 150
day alternative, which election would be displayed on the EMMA Web
portal through June 30, 2014 unless the issuer or obligated person
changes or rescinds such undertaking. On and after January 1, 2014, the
transitional 150 day undertaking option would no longer be available
for selection. An issuer or obligated person that makes a transitional
150 day undertaking could convert such election to a 120 day
undertaking at any time. Of course, an issuer or obligated person that
believes it is able to meet the 120 day timeframe could make the 120
day undertaking immediately upon the effectiveness of the proposed rule
change. The fact that an issuer or obligated person has entered into
such an undertaking, including the timeframe elected, would be
prominently disclosed on the EMMA Web portal as a distinctive
characteristic of the securities to which such undertaking applies. The
EMMA Web portal would not include information regarding the
availability or existence of the voluntary annual filing undertaking in
those cases where an issuer or obligated person does not make a
voluntary annual filing undertaking.
    The MSRB reiterates that the voluntary annual filing undertaking
would in fact be voluntary and that an issuer or obligated person that
makes a voluntary annual filing undertaking may later rescind such
undertaking. The MSRB contemplates that the making of a voluntary
annual filing undertaking through EMMA by an issuer or obligated person
would reflect the bona fide intent of issuer or obligated person to
perform as undertaken but would not, by itself, necessarily create a
contractual obligation of such issuer or obligated person. Unless the
issuer or obligated person incorporates the 120 day undertaking or
transitional 150 day undertaking as an obligation under its continuing
disclosure agreement, the MSRB would view the issuer's or obligated
person's performance pursuant to such undertaking as distinct from any
performance obligations under its continuing disclosure agreement
entered into consistent with Rule 15c2-12. By making a voluntary annual
filing undertaking, an issuer that has a contractual obligation under
its continuing disclosure agreement to provide its annual financial
information within a longer timeframe would be indicating its intent to
make a good faith effort to submit its annual financial information to
EMMA more rapidly than it is otherwise obligated under the continuing
disclosure agreement.
    The MSRB would include an explanation of the nature of the
voluntary annual filing undertaking on the EMMA Web portal. In
particular, the MSRB would disclose that the voluntary annual filing
undertaking is voluntary, is solely indicative of the timing by which
the annual financial information is intended to be made available and
is not indicative of the accuracy or completeness of the annual
financial information or of the financial health of the issuer or
obligated person. Further, the MSRB would disclose that a decision by
an issuer or obligated person not to make such an undertaking does not
raise a negative inference in regard to the accuracy or completeness of
its annual financial information or of the financial health of the
issuer or obligated person.
Voluntary GAAP Undertaking
    The original proposed rule change would amend the EMMA continuing
disclosure service to permit issuers and obligated persons to
undertake, on a voluntary basis, to prepare audited financial
statements pursuant to GAAP as established by GASB. This would consist
of a voluntary undertaking by an issuer or obligated person (in the
case of an obligated person that is a state or local governmental
entity), either at the time of a primary offering or at any time
thereafter, that the issuer or obligated person will prepare its
audited financial statements in accordance with GAAP as established by
GASB. This undertaking could be included within the continuing
disclosure undertaking entered into consistent with Rule 15c2-12 or
could be made in a separate agreement. Issuers and obligated persons
would indicate the existence of such an undertaking through a data
input election on EMMA. No document would be required to be submitted
to EMMA in connection with this undertaking. The fact that an issuer or
obligated person has entered into such an undertaking would be
prominently disclosed on the EMMA

Web portal as a distinctive characteristic of the securities to which
such undertaking applies and the MSRB would include an explanation of
the undertaking on the EMMA Web portal. If an issuer or obligated
person that has made an undertaking later rescinds such undertaking,
the issuer or obligated person would be able to disclose such action
through EMMA. The MSRB would not confirm the accuracy of this
undertaking and would not review or confirm the conformity of submitted
audited financial statements to GAAP.
    Commentators generally supported permitting issuers to make an
undertaking with respect to their use of GAAP according to GASB,
although several commentators provide suggestions. GFOA supported a
voluntary submission with regard to preparation of financial statements
according to GAAP but did not support stating the standard used, noting
that some submitters may be subject to FASB standards instead. The
Joint Issuer Groups and NAST agreed with GFOA. NAHEFFA also noted that
FASB standards, rather than GASB standards, are applicable to 501(c)(3)
entities.
    The MSRB agrees that many obligated persons may be subject to FASB
standards rather than GASB standards and therefore has modified the
voluntary GAAP undertaking to permit the submitter to select either the
GASB or FASB standard for GAAP.
    NABL expressed concern that an issuer that does not elect a
voluntary GAAP undertaking will be stigmatized as less creditworthy
even where they follow other standards, including statutory standards,
and notes that financial statements are accompanied by a statement of
the accounting principles applied. NAHEFFA stated that the EMMA Web
site should be organized so that no improper inference is drawn by a
charitable organization, as a conduit borrower, not making the
voluntary GAAP undertaking. While not opposing the voluntary GAAP
undertaking, Connecticut questioned the usefulness of this element and
stated that use of GASB GAAP may not always be answerable on a yes-or-
no basis and that, since it prepares its information on a modified GAAP
basis, it would probably not be able to make this undertaking.
    The MSRB believes that permitting investors to understand the
standards applied to the preparation of an issuer's or obligated
person's financial statements would be valuable but acknowledges that
it is important that information about the nature of the voluntary GAAP
undertaking should be disclosed. The fact that an issuer or obligated
person has entered into a voluntary GAAP undertaking, including whether
the financial statements are to be prepared pursuant to GASB or FASB
standards, would be prominently disclosed on the EMMA Web portal as a
distinctive characteristic of the securities to which such undertaking
applies. The EMMA Web portal would not include information regarding
the availability or existence of the voluntary GAAP undertaking in
those cases where an issuer or obligated person does not make a
voluntary GAAP undertaking. The MSRB would include an explanation of
the nature of the voluntary GAAP undertaking on the EMMA Web portal. In
particular, the MSRB would disclose that the voluntary GAAP undertaking
is voluntary, is solely indicative of the accounting standards that the
issuer or obligated person intends to use in preparing its financial
statements and is not indicative of the accuracy or completeness of the
financial statements or of the financial health of the issuer or
obligated person. Further, the MSRB would disclose that a decision by
an issuer or obligated person not to make such an undertaking does not
raise a negative inference in regard to the accuracy or completeness of
its financial statements or of the financial health of the issuer or
obligated person. The MSRB contemplates that the making of a voluntary
GAAP undertaking through EMMA by an issuer or obligated person would
reflect the bona fide intent of the issuer or obligated person to
perform as undertaken but would not, by itself, necessarily create a
contractual obligation of such issuer or obligated person.
Issuer/Obligated Person URL
    The original proposed rule change would amend the EMMA continuing
disclosure service to permit issuers and obligated persons to post the
URLs for their Internet-based investor relations or other repository of
financial/operating information. The URL of an issuer's or obligated
person's investor relations or other repository of financial/operating
information would be entered through a text/data input field on EMMA
and no document would be required to be submitted to EMMA.
    Commentators generally supported permitting issuers and obligated
persons to provide a hyperlink to their investor relations or similar
Web page, with Connecticut noting that this hyperlink may be more
useful to the general public than CUSIP-based EMMA filings for general
financial information that is not issue-specific. GFOA observed the
importance of guidance being provided on responsibilities with regard
to posting of hyperlinks on EMMA and that issuers be given an ability
to correct or withdraw URLs as necessary. SIFMA supported the posting
of URLs for continuing disclosures but expresses concerns about their
use during a primary offering due to potential liability issues.
    The MSRB has determined to retain this element as proposed. Issuers
and obligated persons will be able to make appropriate changes to the
URLs posted through EMMA. The hyperlinks will be posted in a manner
designed to segregate access to the URL from postings of official
statements for new issues.
GFOA's CAFR Certificate
    The original proposed rule change would amend the EMMA continuing
disclosure service to permit issuers to submit the Certificate of
Achievement for Excellence in Financial Reporting awarded by GFOA in
connection with the preparation of its CAFR. The original proposed rule
change noted that GFOA awards this certificate to a government if,
based on a review process, its CAFR substantially complies with both
GAAP and GFOA's CAFR program policy. According to current GFOA
eligibility requirements, financial reports must include all funds and
component units of the governmental entity, in accordance with GAAP, in
order to be considered a CAFR. If an issuer were to submit a copy of
the GFOA certificate to EMMA, the EMMA Web portal would prominently
disclose the issuer's receipt thereof as a distinctive characteristic
of the applicable securities and the MSRB would include an explanation
of the certificate on the EMMA Web portal. The MSRB would not confirm
the validity of any such certificate submitted to EMMA.
    GFOA recommended that EMMA disclose the basis for the certificate
and provide a link to the GFOA's Web pages describing the CAFR program.
GFOA also encouraged the MSRB to consider permitting a similar
submission for issuers that have received GFOA's Distinguished Budget
Presentation Award. NABL questioned whether investors would understand
that this certificate recognizes the issuer's application of accounting
principles but is not an affirmation of its creditworthiness. NABL also
noted that some issuers that have received the GFOA certificate have
been the subject of Commission enforcement actions for misleading
disclosure, including misleading financial statements covered by such
certificate. NAHEFFA noted

that the GFOA certificate is generally inapplicable to conduit
borrowings. While not opposing the disclosure of the GFOA certificates,
Connecticut questioned the usefulness of this element.
    The MSRB has determined not to proceed with this element of the
original proposed rule change at this time. The MSRB notes that CAFRs
are already frequently submitted to EMMA by issuers as the audited
financial statements element of their annual financial information
filings, and in most cases the issuers include the GFOA certificate in
the submitted CAFR. As part of the MSRB's standard EMMA update and
maintenance process, the MSRB expects to modify the input process for
all continuing disclosure submissions to permit issuers and obligated
persons to input specific document titles and/or subcategories, which
would permit submitters of CAFRs to indicate that their submitted
audited financial statements are CAFRs. This document title/subcategory
would be displayed on the EMMA Web portal.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-MSRB-2009-10 on the subject line.

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 SR-MSRB-2009-10. This file
number should be included on the subject line if e-mail 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,\25\ 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 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. 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; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-MSRB-2009-10 and should be
submitted on or before January 26, 2010.
---------------------------------------------------------------------------

    \25\ The text of Amendment No. 1 to the proposed rule change is
available on the Commission's Web site at http://www.sec.gov/.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
---------------------------------------------------------------------------

    \26\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-31206 Filed 1-4-10; 8:45 am]

BILLING CODE 8011-01-P