82 FR 56309 - Order Extending Conditional Temporary Exemption for Nationally Recognized Statistical Rating Organizations From Requirements of Rule 17g-5(A)(3) Under the Securities Exchange Act of 1934

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 227 (November 28, 2017)

[Federal Register Volume 82, Number 227 (Tuesday, November 28, 2017)]
[Notices]
[Pages 56309-56311]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25646]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82144; File No. S7-04-09]


Order Extending Conditional Temporary Exemption for Nationally 
Recognized Statistical Rating Organizations From Requirements of Rule 
17g-5(A)(3) Under the Securities Exchange Act of 1934

November 22, 2017.

I. Introduction

    On May 19, 2010, the Securities and Exchange Commission 
(``Commission'') conditionally exempted, with respect to certain credit 
ratings and until December 2, 2010, nationally recognized statistical 
rating organizations (``NRSROs'') from certain requirements in Rule 
17g-5(a)(3) \1\ under the Securities Exchange Act of 1934 (``Exchange 
Act''), which had a compliance date of June 2, 2010.\2\ Pursuant to the 
Order, an NRSRO is not required to comply with Rule 17g-5(a)(3) until 
December 2, 2010 with respect to credit ratings where: (1) The issuer 
of the structured finance product is a non-U.S. person; and (2) the 
NRSRO has a reasonable basis to conclude that the structured finance 
product will be offered and sold upon issuance, and that any arranger 
linked to the structured finance product will effect transactions of 
the structured finance product after issuance, only in transactions 
that occur outside the U.S. (``covered transactions'').\3\ The 
conditional temporary exemption was extended until December 2, 2011, 
and subsequently further extended until December 2, 2017.\4\ The 
Commission is extending the conditional temporary exemption exempting 
NRSROs from complying with Rule 17g-5(a)(3) with respect to rating 
covered transactions until the earlier of (i) December 2, 2019, or (ii) 
the compliance date set forth in any final rule that may be adopted by 
the Commission that provides for a similar exemption.
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    \1\ See 17 CFR 240.17g-5(a)(3).
    \2\ See Exchange Act Release No. 62120 (May 19, 2010), 75 FR 
28825 (May 24, 2010) (``Order'').
    \3\ See id. at 28827-28 (setting forth conditions of relief).
    \4\ See Exchange Act Release No. 34-76183 (Oct. 16, 2015), 80 FR 
64031 (Oct. 22, 2015); see also Exchange Act Release No. 34-73649 
(Nov. 19, 2014), 79 FR 70261 (Nov. 25, 2014), Exchange Act Release 
No. 34-70919 (Nov. 22, 2013), 78 FR 70984 (Nov. 27, 2013), Exchange 
Act Release No. 34-68286 (Nov. 26, 2012), 77 FR 71201(Nov. 29, 
2012), Exchange Act Release No. 65765 (Nov. 16, 2011), 76 FR 72227 
(Nov. 22, 2011), and Exchange Act Release No. 63363 (Nov. 23, 2010), 
75 FR 73137 (Nov. 29, 2010) (collectively, the ``Extension 
Orders'').
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II. Background

    Rule 17g-5 identifies, in paragraphs (b) and (c) of the rule, a 
series of conflicts of interest arising from the business of 
determining credit ratings.\5\ Paragraph (a) of Rule 17g-5 \6\ 
prohibits an NRSRO from issuing or maintaining a credit rating if it is 
subject to the conflicts of interest identified in paragraph (b) of 
Rule 17g-5 unless the NRSRO has taken the steps prescribed in paragraph 
(a)(1) (i.e., disclosed the type of conflict of interest in Exhibit 6 
to Form NRSRO in accordance with Section 15E(a)(1)(B)(vi) of the 
Exchange Act \7\ and Rule 17g-1 \8\) and paragraph (a)(2) (i.e., 
established and is maintaining and enforcing written policies and 
procedures to address and manage conflicts of interest in accordance 
with Section 15E(h) of the Exchange Act \9\). Paragraph (c) of Rule 
17g-5 specifically prohibits eight types of conflicts of interest. 
Consequently, an NRSRO is prohibited from issuing or maintaining a 
credit rating when it is subject to these conflicts regardless of 
whether it had disclosed them and established procedures reasonably 
designed to address them.
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    \5\ 17 CFR 240.17g-5(b) and (c).
    \6\ 17 CFR 240.17g-5(a).
    \7\ 15 U.S.C. 78o-7(a)(1)(B)(vi).
    \8\ 17 CFR 240.17g-1.
    \9\ 15 U.S.C. 78o-7(h).
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    In November 2009, the Commission adopted paragraph (a)(3) of Rule 
17g-5. This provision requires an NRSRO that is hired by an arranger to 
determine an initial credit rating for a structured finance product to 
take certain steps designed to allow an NRSRO that is not hired by the 
arranger to nonetheless determine an initial credit rating--and 
subsequently monitor that credit rating--for the structured finance 
product.\10\ In particular, under Rule 17g-5(a)(3), an NRSRO is 
prohibited from issuing or maintaining a credit rating when it is 
subject to the conflict of interest identified in paragraph (b)(9) of 
Rule 17g-5 (i.e., being hired by an arranger to determine a credit 
rating for a structured finance product) \11\ unless it has taken the 
steps prescribed in paragraphs (a)(1) and (2) of Rule 17g-5 (discussed 
above) and the steps prescribed in paragraph (a)(3) of Rule

[[Page 56310]]

17g-5.\12\ Rule 17g-5(a)(3), among other things, requires that the 
NRSRO must:
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    \10\ See 17 CFR 240.17g-5(a)(3); see also Exchange Act Release 
No. 61050 (Nov. 23, 2009), 74 FR 63832 (Dec. 4, 2009) (``Adopting 
Release'') at 63844-45.
    \11\ Paragraph (b)(9) of Rule 17g-5 identifies the following 
conflict of interest: Issuing or maintaining a credit rating for a 
security or money market instrument issued by an asset pool or as 
part of any asset-backed securities transaction that was paid for by 
the issuer, sponsor, or underwriter of the security or money market 
instrument. 17 CFR 240.17g-5(b)(9).
    \12\ 17 CFR 240.17g-5(a)(3).
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     Maintain on a password-protected Internet Web site a list 
of each structured finance product for which it currently is in the 
process of determining an initial credit rating in chronological order 
and identifying the type of structured finance product, the name of the 
issuer, the date the rating process was initiated, and the Internet Web 
site address where the arranger represents the information provided to 
the hired NRSRO can be accessed by other NRSROs;
     Provide free and unlimited access to such password-
protected Internet Web site during the applicable calendar year to any 
NRSRO that provides it with a copy of the certification described in 
paragraph (e) of Rule 17g-5 that covers that calendar year; \13\ and
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    \13\ Paragraph (e) of Rule 17g-5 requires that an NRSRO seeking 
to access the hired NRSRO's Internet Web site during the applicable 
calendar year must furnish the Commission with the following 
certification:
     The undersigned hereby certifies that it will access the 
Internet Web sites described in 17 CFR 240.17g-5(a)(3) solely for 
the purpose of determining or monitoring credit ratings. Further, 
the undersigned certifies that it will keep the information it 
accesses pursuant to 17 CFR 240.17g-5(a)(3) confidential and treat 
it as material nonpublic information subject to its written policies 
and procedures established, maintained, and enforced pursuant to 
Section 15E(g)(1) of the Act (15 U.S.C. 78o-7(g)(1)) and 17 CFR 
240.17g-4. Further, the undersigned certifies that it will determine 
and maintain credit ratings for at least 10% of the issued 
securities and money market instruments for which it accesses 
information pursuant to 17 CFR 240.17g-5(a)(3)(iii), if it accesses 
such information for 10 or more issued securities or money market 
instruments in the calendar year covered by the certification. 
Further, the undersigned certifies one of the following as 
applicable: (1) In the most recent calendar year during which it 
accessed information pursuant to Sec.  17 CFR 240.17g-5(a)(3), the 
undersigned accessed information for [Insert Number] issued 
securities and money market instruments through Internet Web sites 
described in 17 CFR 240.17g-5(a)(3) and determined and maintained 
credit ratings for [Insert Number] of such securities and money 
market instruments; or (2) The undersigned previously has not 
accessed information pursuant to 17 CFR 240.17g-5(a)(3) 10 or more 
times during the most recently ended calendar year.
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     Obtain from the arranger a written representation that can 
reasonably be relied upon that the arranger will, among other things, 
disclose on a password-protected Internet Web site the information it 
provides to the hired NRSRO to determine the initial credit rating (and 
monitor that credit rating) and provide access to the Web site to an 
NRSRO that provides it with a copy of the certification described in 
paragraph (e) of Rule 17g-5.\14\
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    \14\ In particular, under paragraph (a)(3)(iii) of Rule 17g-5, 
the arranger must represent to the hired NRSRO that it will:
    (1) Maintain the information described in paragraphs 
(a)(3)(iii)(C), (a)(3)(iii)(D), and (a)(3)(iii)(E) of Rule 17g-5 
available at an identified password-protected Internet Web site that 
presents the information in a manner indicating which information 
currently should be relied on to determine or monitor the credit 
rating; (2) provide access to such password-protected Internet Web 
site during the applicable calendar year to any NRSRO that provides 
it with a copy of the certification described in paragraph (e) of 
Rule 17g-5 that covers that calendar year, provided that such 
certification indicates that the nationally recognized statistical 
rating organization providing the certification either: (i) 
Determined and maintained credit ratings for at least 10% of the 
issued securities and money market instruments for which it accessed 
information pursuant to paragraph (a)(3)(iii) of Rule 17g-5 in the 
calendar year prior to the year covered by the certification, if it 
accessed such information for 10 or more issued securities or money 
market instruments; or (ii) has not accessed information pursuant to 
paragraph (a)(3) of Rule 17g-5 10 or more times during the most 
recently ended calendar year; (3) post on such password-protected 
Internet Web site all information the arranger provides to the 
NRSRO, or contracts with a third party to provide to the NRSRO, for 
the purpose of determining the initial credit rating for the 
security or money market instrument, including information about the 
characteristics of the assets underlying or referenced by the 
security or money market instrument, and the legal structure of the 
security or money market instrument, at the same time such 
information is provided to the NRSRO; (4) post on such password-
protected Internet Web site all information the arranger provides to 
the NRSRO, or contracts with a third party to provide to the NRSRO, 
for the purpose of undertaking credit rating surveillance on the 
security or money market instrument, including information about the 
characteristics and performance of the assets underlying or 
referenced by the security or money market instrument at the same 
time such information is provided to the NRSRO; and (5) post on such 
password-protected Internet Web site, promptly after receipt, any 
executed Form ABS Due Diligence--15E containing information about 
the security or money market instrument delivered by a person 
employed to provide third-party due diligence services with respect 
to the security or money market instrument.
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    The Commission stated in the Adopting Release that Rule 17g-5(a)(3) 
is designed to address conflicts of interest and improve the quality of 
credit ratings for structured finance products by making it possible 
for more NRSROs to rate structured finance products.\15\ For example, 
the Commission noted that when an NRSRO is hired to rate a structured 
finance product, some of the information it relies on to determine the 
rating is generally not made public.\16\ As a result, structured 
finance products frequently are issued with ratings from only the one 
or two NRSROs that have been hired by the arranger, with the attendant 
conflict of interest that creates.\17\ The Commission stated that Rule 
17g-5(a)(3) was designed to increase the number of credit ratings 
extant for a given structured finance product and, in particular, to 
promote the issuance of credit ratings by NRSROs that are not hired by 
arrangers.\18\ The Commission's goal in adopting the rule was to 
provide users of credit ratings with more views on the creditworthiness 
of structured finance products.\19\ In addition, the Commission stated 
that Rule 17g-5(a)(3) was designed to reduce the ability of arrangers 
to obtain better than warranted ratings by exerting influence over 
NRSROs hired to determine credit ratings for structured finance 
products.\20\ Specifically, by opening up the rating process to more 
NRSROs, the Commission intended to make it easier for the hired NRSRO 
to resist such pressure by increasing the likelihood that any steps 
taken to inappropriately favor the arranger could be exposed to the 
market through the credit ratings issued by other NRSROs.\21\
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    \15\ Adopting Release at 63844.
    \16\ Id.
    \17\ Id.
    \18\ Id.
    \19\ Id.
    \20\ Id.
    \21\ Id.
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    Rule 17g-5(a)(3) became effective on February 2, 2010, and the 
compliance date for Rule 17g-5(a)(3) was June 2, 2010.

III. Extension of Conditional Temporary Exemption

    In the Order, the Commission requested comment generally, but also 
on a number of specific issues.\22\ The Commission received seven 
comment letters in response to this solicitation of comment.\23\ The 
commenters expressed concern that the application of Rule 17g-5(a)(3) 
to transactions outside the United States could, in the commenters' 
view, among other things, disrupt local securitization markets,\24\ 
inhibit the ability of local firms to raise capital,\25\ and conflict 
with local laws.\26\ Several commenters also requested that the

[[Page 56311]]

conditional temporary exemption be extended or made permanent.\27\ The 
Commission's Extension Orders again solicited public comment on issues 
raised in connection with the application of Rule 17g-5(a)(3) outside 
the United States. Commenters generally supported the exemption 
regarding such application of the rule, with some commenters requesting 
that the exemption be made permanent.\28\
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    \22\ See Order at 28828.
    \23\ Letter from Masamichi Kono, Vice Commissioner for 
International Affairs, Financial Services Agency, Japan, dated Nov. 
12, 2010 (``Japan FSA Letter''); Letter from Masaru Ono, Executive 
Director, Securitization Forum of Japan, dated Nov. 12, 2010 (``SFJ 
Letter''); Letter from Rick Watson, Managing Director, Association 
for Financial Markets in Europe/European Securitisation Forum, dated 
Nov. 11, 2010 (``AFME Letter''); Letter from Tom Deutsch, Executive 
Director, American Securitization Forum, and Chris Dalton, Chief 
Executive Officer, Australian Securitisation Forum, dated Oct. 27, 
2010 (``ASF/AuSF Letter''); Letter from Jack Rando, Director, 
Capital Markets, Investment Industry Association of Canada, dated 
Sep. 22, 2010 (``IIAC Letter''); Letter from Chris Dalton, Chief 
Executive Officer, Australian Securitisation Forum, dated Jun. 27, 
2010 (``AuSF Letter''); Letter from Takefumi Emori, Managing 
Director, Japan Credit Rating Agency, Ltd. (``JCR''), dated Jun. 25, 
2010 (``JCR Letter'').
    \24\ See Japan FSA Letter; SFJ Letter; AFME Letter; JCR Letter; 
AuSF Letter.
    \25\ See AFME Letter; JCR Letter; AuSF Letter.
    \26\ See Japan FSA Letter; AFME Letter; JCR Letter; AuSF Letter; 
IIAC Letter.
    \27\ See Japan FSA Letter; SFJ Letter; AFME Letter; JCR Letter; 
ASF/AuSF Letter.
    \28\ Comment letters received in response to the requests for 
comment regarding the application of Rule 17g-5(a)(3) to 
transactions outside the United States are available at https://www.sec.gov/comments/s7-04-09/s70409.shtml. See, e.g., Letter from 
Richard Hopkin, Managing Director & Head of Fixed Income, 
Association for Financial Markets in Europe, dated Nov. 1, 2017; 
Letter from Richard Johns, Executive Director, Structured Finance 
Industry Group, and Chris Dalton, Chief Executive Officer, 
Australian Securitisation Forum, dated Jul. 19, 2017.
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    Given the continued concerns about potential disruptions of local 
securitization markets, the staff of the Commission is considering 
recommending that the Commission propose an amendment to Rule 17g-
5(a)(3) that would provide for a permanent exemption with respect to 
credit ratings satisfying the conditions of the exemption. In order to 
provide time for the Commission to consider any such a recommendation 
and to avoid any disruption if the exemption were allowed to expire, 
the Commission believes that it is necessary and appropriate in the 
public interest, and consistent with the protection of investors, to 
extend the conditional temporary exemption until the earlier of (i) 
December 2, 2019, or (ii) the compliance date set forth in any final 
rule that may be adopted by the Commission that provides for a similar 
exemption.

IV. Conclusion

    Accordingly,
    It is hereby ordered, pursuant to Section 36 of the Exchange Act, 
that a nationally recognized statistical rating organization is exempt 
from the requirements in Rule 17g-5(a)(3) (17 CFR 240.17g-5(a)(3)) for 
credit ratings where:
    (1) The issuer of the security or money market instrument is not a 
U.S. person (as defined under Securities Act Rule 902(k)); and
    (2) The nationally recognized statistical rating organization has a 
reasonable basis to conclude that the structured finance product will 
be offered and sold upon issuance, and that any arranger linked to the 
structured finance product will effect transactions of the structured 
finance product after issuance, only in transactions that occur outside 
the U.S.,
    Until the earlier of (i) December 2, 2019, or (ii) the compliance 
date set forth in any final rule that may be adopted by the Commission 
that provides for a similar exemption.

    By the Commission.
Brent J. Fields,
Secretary.
[FR Doc. 2017-25646 Filed 11-27-17; 8:45 am]
 BILLING CODE 8011-01-P