CORRECTED TO CONFORM TO 

FEDERAL REGISTER VERSION

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 275 and 279 

Release No. IA-3221; File No. S7-36-10 

RIN 3235-AK82

Rules Implementing Amendments to the Investment Advisers Act of 1940

AGENCY: Securities and Exchange Commission. 

ACTION: Final rule.

SUMMARY: The Securities and Exchange Commission is adopting new rules and rule 

amendments under the Investment Advisers Act of 1940 to implement provisions of the DoddFrank Wall Street Reform and Consumer Protection Act. These rules and rule amendments are 

designed to give effect to provisions of Title IV of the Dodd-Frank Act that, among other things, 

increase the statutory threshold for registration by investment advisers with the Commission, 

require advisers to hedge funds and other private funds to register with the Commission, and 

require reporting by certain investment advisers that are exempt from registration. In addition, 

we are adopting rule amendments, including amendments to the Commission’s pay to play rule, 

that address a number of other changes made by the Dodd-Frank Act.

DATES: Effective dates: The effective date of 17 CFR 275.204-4 and 275.203A-5(b) and (c), 

amendments to 17 CFR 275.0-7, 275.203A-1, 275.203A-2, 275.203A-3, 275.204-1, 275.204-2, 

275.206(4)-5, 275.222-1, and 275.222-2, and amendments to Forms ADV, ADV-E, ADV-H, and 

ADV-NR (referenced in 17 CFR part 279) is September 19, 2011. The effective date of 17 CFR 

275.203A-5(a) and the amendment to 17 CFR 275.203-1 is July 21, 2011. 17 CFR 

275.202(a)(11)-1, 275.203(b)(3)-1, 275.203(b)(3)-2, and 275.203A-4 are removed effective 

September 19, 2011. 
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Compliance Date: See section III of this Release.

FOR FURTHER INFORMATION CONTACT: David P. Bartels, Attorney-Adviser, Michael 

J. Spratt, Attorney-Adviser, Jennifer R. Porter, Senior Counsel, Devin F. Sullivan, Senior 

Counsel, Melissa A. Roverts, Branch Chief, Matthew N. Goldin, Branch Chief, or Daniel S. 

Kahl, Assistant Director, at (202) 551-6787 or IArules@sec.gov, Office of Investment Adviser 

Regulation, Division of Investment Management, U.S. Securities and Exchange Commission, 

100 F Street, NE, Washington, DC 20549-8549. 

SUPPLEMENTARY INFORMATION: The Commission is adopting rules 203A-5 and 204-4 

[17 CFR 275.203A-5 and 275.204-4] under the Investment Advisers Act of 1940 [15 U.S.C. 

80b] (“Advisers Act” or “Act”),1

TABLE OF CONTENTS

 amendments to rules 0-7, 203-1, 203A-1, 203A-2, 203A-3, 

204-1, 204-2, 206(4)-5, 222-1, and 222-2 [17 CFR 275.0-7, 275.203-1, 275.203A-1, 

275.203A-2, 275.203A-3 , 275.204-1, 275.204-2, 275.206(4)-5, 275. 222-1, and 275.222-2] 

under the Advisers Act, and amendments to Form ADV, Form ADV-E, Form ADV-H, and Form 

ADV-NR [17 CFR 279.1, 279.3, and 279.4] under the Advisers Act. The Commission is also 

rescinding rules 202(a)(11)-1, 203(b)(3)-1, 203(b)(3)-2, and 203A-4 [17 CFR 275.202(a)(11)-1, 

275.203(b)(3)-1, 275.203(b)(3)-2, and 275.203A-4] under the Advisers Act. 

I. BACKGROUND ................................................................................................................5

 

1

 Unless otherwise noted, when we refer to the Advisers Act, or any paragraph of the Advisers Act, 

we are referring to 15 U.S.C. 80b of the United States Code, at which the Advisers Act is 

codified, and when we refer to rule 0-7, rule 202(a)(11)-1, rule 203-1, rule 203(b)(3)-1, rule 

203(b)(3)-2, rule 203A-1, rule 203A-2, rule 203A-3, rule 203A-4, rule 203A-5, rule 204-1, rule 

204-2, rule 204-4, rule 206(4)-5, rule 222-1, or rule 222-2, or any paragraph of these rules, we are 

referring to 17 CFR 275.0-7, 17 CFR 275.202(a)(11)-1, 17 CFR 275.203-1; 17 CFR 

275.203(b)(3)-1, 17 CFR 275.203(b)(3)-2, 17 CFR 275.203A-1, 17 CFR 275.203A-2, 17 CFR 

275.203A-3, 17 CFR 275.203A-4, 17 CFR 275.203A-5, 17 CFR 275.204-1, 17 CFR 275.204-2, 

17 CFR 275.204-4, 17 CFR 275.206(4)-5, 17 CFR 275.222-1, or 17 CFR 275.222-2, respectively, 

of the Code of Federal Regulations (“CFR”), in which these rules are published. 
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II. DISCUSSION .....................................................................................................................7

A. Eligibility for Registration with the Commission: Section 410 ...........................................7

1. Transition to State Registration ......................................................................................10

2. Amendments to Form ADV ............................................................................................16

3. Assets Under Management .............................................................................................18

4. Switching Between State and Commission Registration ................................................28

5. Exemptions from the Prohibition on Registration with the Commission .......................31

a. Nationally Recognized Statistical Rating Organizations ....................................... 32

b. Pension Consultants ............................................................................................... 33

c. Multi-State Advisers ............................................................................................... 34

6. Elimination of Safe Harbor .............................................................................................36

7. Mid-Sized Advisers ........................................................................................................37

a. Required to be Registered ...................................................................................... 38

b. Subject to Examination .......................................................................................... 39

B. Exempt Reporting Advisers: Sections 407 and 408 ..........................................................40

1. Reporting Required .........................................................................................................42

2. Information in Reports ....................................................................................................44

3. Public Availability of Reports ........................................................................................48

4. Updating Requirements ..................................................................................................51

5. Final Reports ...................................................................................................................52

C. Form ADV .........................................................................................................................53

1. Private Fund Reporting: Item 7.B. .................................................................................56

2. Advisory Business Information: Employees, Clients and Advisory Activities: 

Item 5 ..............................................................................................................................70

3. Other Business Activities and Financial Industry Affiliations: Items 6 and 7 ..............73

4. Participation in Client Transactions: Item 8 ..................................................................77

5. Custody: Item 9 ..............................................................................................................78

6. Reporting $1 Billion in Assets: Item 1.O........................................................................80

7. Other Amendments to Form ADV ..................................................................................82

D. Other Amendments ............................................................................................................84

1. Amendments to “Pay to Play” Rule ................................................................................84

2. Technical and Conforming Amendments .......................................................................88

a. Rules 203(b)(3)-1 and 203(b)(3)-2 ......................................................................... 88

b. Rule 204-2 .............................................................................................................. 89

c. Rule 0-7 .................................................................................................................. 90

d. Rule 222-1 .............................................................................................................. 91

e. Rule 222-2 .............................................................................................................. 91

f. Rule 202(a)(11)-1 ................................................................................................... 92

III. EFFECTIVE AND COMPLIANCE DATES ................................................................92

A. Effective Dates ...................................................................................................................92

B. Compliance Dates ..............................................................................................................93

1. Transition to State Registration and Form ADV ............................................................93
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2. Advisers Previously Exempt under Section 203(b)(3) ...................................................94

3. Exempt Reporting Advisers ............................................................................................95

4. Other Amendments .........................................................................................................96

IV. CERTAIN ADMINISTRATIVE LAW MATTERS .....................................................96

V. COST-BENEFIT ANALYSIS.........................................................................................97

A. Benefits ..............................................................................................................................98

B. Costs .................................................................................................................................125

VI. PAPERWORK REDUCTION ACT ANALYSIS .......................................................154

A. Rule 203A-2(d) ................................................................................................................156

B. Form ADV .......................................................................................................................159

C. Rule 203A-5 .....................................................................................................................181

D. Form ADV-NR ................................................................................................................185

E. Rule 203-2 and Form ADV-W ........................................................................................186

F. Form ADV-H ...................................................................................................................188

G. Rule 204-2 ........................................................................................................................190

VII. FINAL REGULATORY FLEXIBILITY ANALYSIS ...............................................192

A. Need for and Objectives of the New Rules and Rule Amendments ................................193

B. Significant Issues Raised by Public Comment ................................................................195

C. Small Entities Subject to Rules and Rule Amendments ..................................................196

D. Projected Reporting, Recordkeeping and Other Compliance Requirements ...................198

E. Agency Action to Minimize Effect on Small Entities .....................................................206

VIII. EFFECTS ON COMPETITION, EFFICIENCY AND CAPITAL FORMATION 208

IX. STATUTORY AUTHORITY .......................................................................................217

TEXT OF RULE AND FORM AMENDMENTS

APPENDIX A: Form ADV: General Instructions 

APPENDIX B: Form ADV: Instructions for Part 1A 

APPENDIX C: Form ADV: Glossary of Terms 

APPENDIX D: Form ADV, Part 1A 

APPENDIX E: Form ADV Execution Pages 

APPENDIX F: Form ADV-H 

APPENDIX G: Form ADV-NR

APPENDIX H: Form ADV-E 
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I. BACKGROUND

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform 

and Consumer Protection Act (“Dodd-Frank Act”) which, among other things, amends certain 

provisions of the Advisers Act.2 Title IV of the Dodd-Frank Act (“Title IV”) includes most of 

the amendments to the Advisers Act. These amendments include provisions that reallocate 

primary responsibility for oversight of investment advisers by delegating generally to the states 

responsibility over certain mid-sized advisers – i.e., those that have between $25 million and 

$100 million of assets under management.3 These provisions will require a significant number 

of advisers currently registered with the Commission to withdraw their registrations with the 

Commission and to switch to registration with one or more state securities authorities. In 

addition, Title IV repeals the “private adviser exemption” contained in section 203(b)(3) of the 

Advisers Act on which many advisers, including those to many hedge funds, private equity 

funds, and venture capital funds, rely in order to avoid registration under the Act.4

 

2

 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 

1376 (2010). 

 In 

eliminating this provision, Congress created, or directed us to adopt other, in some ways 

3

 See section 410 of the Dodd-Frank Act; Advisers Act section 203A. See also National Securities 

Markets Improvement Act of 1996, Pub. L. No. 104-290, 110 Stat. 3416, § 303 (1996) 

(“NSMIA”) (allocating to states certain responsibility for small investment advisers with less than 

$25 million in assets under management). 

4

 See section 403 of the Dodd-Frank Act. Section 203(b)(3) currently exempts from registration 

any investment adviser who during the course of the preceding twelve months, has had fewer than 

fifteen clients, and who neither holds himself out generally to the public as an investment adviser 

nor acts as an investment adviser to any investment company registered under the Investment 

Company Act of 1940 (15 U.S.C. 80a-1) (“Investment Company Act”), or a company which has 

elected to be a business development company pursuant to section 54 of the Investment Company 

Act (15 U.S.C. 80a-54). Section 403 of the Dodd-Frank Act eliminates this “private adviser” 

exemption from section 203(b)(3) and replaces it with a new exemption for “foreign private 

advisers.” We are also adopting today a rule to clarify the definition of a “foreign private 

adviser” in a separate release. Exemptions for Advisers to Venture Capital Funds, Private Fund 

Advisers With Less Than $150 Million in Assets Under Management, and Foreign Private 

Advisers, Investment Advisers Act Release No. 3222 (“Exemptions Adopting Release”). 
-6- 

narrower, exemptions for advisers to certain types of private funds – e.g., venture capital funds – 

which provide that the Commission shall require such advisers to submit such reports “as the 

Commission determines necessary or appropriate in the public interest.”5 These provisions in 

Title IV of the Dodd-Frank Act will be effective on July 21, 2011.6

On November 19, 2010, we proposed new rules and amendments to existing rules and 

forms to give effect to these provisions.

 

7

 Specifically, we proposed a new rule and amendments 

to our rules and forms to facilitate mid-size advisers’ transition from Commission to state 

registration.8 We also proposed a new rule and rule amendments to require certain advisers to 

private funds that are exempt from registration under the Advisers Act to submit reports to us.9 

We proposed rule amendments, including amendments to the Commission’s “pay to play” rule,10

to address a number of other changes to the Advisers Act made by the Dodd-Frank Act.11

 

5

 See section 407 of the Dodd-Frank Act (“The Commission shall require such advisers 

to...provide to the Commission such annual or other reports as the Commission determines 

necessary or appropriate in the public interest or for the protection of investors”). See also 

section 408 of the Dodd-Frank Act. Section 407 of the Dodd-Frank Act, which adds section 

203(l) to the Advisers Act, exempts advisers solely to one or more venture capital funds. Section 

408, which adds section 203(m) to the Advisers Act, exempts advisers solely to private funds 

with assets under management in the United States of less than $150 million. 

 Also, 

in light of our increased responsibility for oversight of private funds, we proposed to require 

advisers to those funds to provide us with additional information about the operation of those 

6

 See section 419 of the Dodd-Frank Act. For purposes of this Release, unless indicated otherwise, 

when we refer to the effective date of the Dodd-Frank Act, we are referring to the effective date 

of Title IV, which is July 21, 2011. 

7

 See Rules Implementing Amendments to the Investment Advisers Act of 1940, Investment 

Advisers Act Release No. 3110 (Nov. 19, 2010) [75 FR 77052 (Dec. 10, 2010)] (“Implementing 

Proposing Release”). 

8

 See id. at section II.A. 

9

 See id. at section II.B. Throughout this Release, we refer to advisers exempt from registration 

under sections 203(l) and 203(m) of the Advisers Act as “exempt reporting advisers.” 

10 Rule 206(4)-5. 

11 See Implementing Proposing Release, supra note 7, at section II.D. 
-7- 

funds.12 Finally, we proposed additional changes to Form ADV that would enhance our 

oversight of advisers and also would enable us to identify advisers that are subject to the 

Dodd-Frank Act’s requirements concerning certain incentive-based compensation 

arrangements.13

We received more than 70 comment letters on our proposals, most of which were from 

advisers, trade or professional organizations, and law firms.

 

14

II. DISCUSSION

 Commenters generally supported 

our approach to facilitate mid-size advisers’ transition from Commission to state registration, and 

our amendments to Form ADV, including those requiring disclosure of additional information 

about private funds. Many, however, urged us to take a different approach to, among other 

things, our proposed amendments to the pay to play rule. We are adopting the proposed rules 

and rule amendments with several modifications to address commenters’ concerns. We address 

these modifications and comments in detail below. 

A. Eligibility for Registration with the Commission: Section 410

Section 203A of the Advisers Act, enacted in 1996 as part of the National Securities 

Markets Improvement Act (“NSMIA”), generally prohibits an investment adviser regulated by 

the state in which it maintains its principal office and place of business from registering with the 

 

12 See sections 403, 407 and 408 of the Dodd-Frank Act; Implementing Proposing Release, supra 

note 7, at section II.C. 

13 See Implementing Proposing Release, supra note 7, at section II.C; section 956 of the 

Dodd-Frank Act.

14 Comment letters submitted in File No. S7-36-10 are available on the Commission’s website at: 

http://www.sec.gov/comments/s7-36-10/s73610.shtml. We also considered those comments 

submitted in File No. S7-37-10 (Exemptions for Advisers to Venture Capital Funds, Private Fund 

Advisers with Less Than $150 Million in Assets Under Management, and Foreign Private 

Advisers, Investment Advisers Act Release No. 3111 (Nov. 19, 2010) [75 FR 77190 (Dec. 10, 

2010)] (“Exemptions Proposing Release”)) that addressed the rules and amendments adopted in 

this Release. Those comments are available at on the Commission’s website at: 

http://www.sec.gov/comments/s7-37-10/s73710.shtml. 
-8- 

Commission unless it has at least $25 million of assets under management,15 and preempts 

certain state laws regulating advisers that are registered with the Commission.16 This provision 

makes the states the primary regulators of smaller advisers and the Commission the primary 

regulator of larger advisers.17

Section 410 of the Dodd-Frank Act creates a new category of “mid-sized advisers” and 

shifts primary responsibility for their regulatory oversight to the states by prohibiting from 

Commission registration an investment adviser that is required to be registered as an investment 

adviser in the state in which it maintains its principal office and place of business and that has 

assets under management between $25 million and $100 million.

 

18

 

15 Advisers Act section 203A(a)(1). The prohibition does not apply if the investment adviser is an 

adviser to an investment company registered under the Investment Company Act, or if the adviser 

is eligible for one of six exemptions the Commission has adopted. See id.; rule 203A-2; infra

section II.A.5. 

 Unlike a small adviser, a 

mid-sized adviser must register with the Commission: (i) if the adviser is not required to be 

registered as an investment adviser with the securities commissioner (or any agency or office 

16 An investment adviser must register with the Commission unless it is prohibited from registering 

under section 203A of the Advisers Act or is exempt from registration under section 203. 

Advisers Act section 203(a). Investment advisers that are prohibited from registering with the 

Commission are subject to regulation by the states, but the antifraud provisions of the Advisers 

Act continue to apply to them. See Advisers Act sections 203A(b), 206. For SEC-registered 

investment advisers, state laws requiring registration, licensing, and qualification are preempted, 

but states may investigate and bring enforcement actions alleging fraud or deceit, require notice 

filings of documents filed with the Commission, and require investment advisers to pay state 

notice filing fees. See Advisers Act section 203A(b); NSMIA, supra note 3, at sections 307(a) 

and (b). Section 410 of the Dodd-Frank Act did not amend sections 203A(a)(1) or 203(a) of the 

Advisers Act. 

17 See S. REP. NO. 104-293, at 4 (1996). See also Rules Implementing Amendments to the 

Investment Advisers Act of 1940, Investment Advisers Act Release No. 1633, section I (May 15, 

1997) [62 FR 28112 (May 22, 1997)] (“NSMIA Adopting Release”). 

18 See section 410 of the Dodd-Frank Act (adding new section 203A(a)(2) of the Advisers Act). 

This amendment increases the threshold above which all investment advisers must register with 

the Commission from $25 million to $100 million. See S. REP. NO. 111-176, at 76 (2010) 

(“Senate Committee Report”). We are further increasing this threshold to $110 million, pursuant 

to authority granted to us by Congress. See section 410 of the Dodd-Frank Act; infra section 

II.A.4. 
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performing like functions) of the state in which it maintains its principal office and place of 

business; or (ii) if registered with that state, the adviser would not be subject to examination as 

an investment adviser by that securities commissioner.19 Section 203A(c) of the Advisers Act, 

which was not amended by the Dodd-Frank Act, permits the Commission to exempt small and 

mid-sized advisers from the prohibitions on Commission registration,20 and we have adopted six 

exemptions for small advisers pursuant to this authority.21

As a consequence of section 410 of the Dodd-Frank Act, we estimate that approximately 

3,200 SEC-registered advisers will be required to withdraw their registrations and register with 

one or more state securities authorities.

 

22

 

19 See section 410 of the Dodd-Frank Act. A mid-sized adviser also is required to register with the 

Commission if it is an adviser to a registered investment company or business development 

company under the Investment Company Act; therefore, mid-sized advisers to registered 

investment companies and business development companies are not permitted to withdraw their 

Commission registrations. Compare section 410 of the Dodd-Frank Act with Advisers Act 

section 203A(a)(1). Additionally, a mid-sized adviser may register with the Commission if the 

adviser is required to register in 15 or more states. See section 410 of the Dodd-Frank Act. For a 

discussion of advisers required to register in multiple states, see infra section II.A.5.c. 

 We are working closely with the state securities 

20 For the Commission to permit the registration of small and mid-sized advisers with the 

Commission, application of the prohibition from registration must be “unfair, a burden on 

interstate commerce, or otherwise inconsistent with the purposes” of section 203A. Advisers Act 

section 203A(c). The Commission’s exercise of this authority not only would permit registration 

with the Commission, but also would result in the preemption of state law with respect to the 

advisers that register with us as a result of an exemption. See Advisers Act sections 203(a), 

203A(b), and 203A(c). 

21 See rule 203A-2 (permitting the following types of advisers to register with the Commission: (i) 

nationally recognized statistical rating organizations (“NRSROs”); (ii) certain pension 

consultants; (iii) investment advisers affiliated with an adviser registered with the Commission; 

(iv) investment advisers expecting to be eligible for Commission registration within 120 days of 

filing Form ADV; (v) certain multi-state investment advisers; and (vi) certain internet advisers). 

22 According to data from the Investment Adviser Registration Depository (“IARD”) as of April 7, 

2011, 3,531 SEC-registered advisers either: (i) had assets under management between $25 million 

and $90 million and did not indicate on Form ADV Part 1A that they are relying on an exemption 

from the prohibition on Commission registration; or (ii) were permitted to register with us 

because they rely on the registration of an SEC-registered affiliate that has assets under 

management between $25 million and $90 million and are not relying on an exemption from 

registration. We estimate that 350 of these advisers will not switch to state registration because 

their principal office and place of business is located in Minnesota, New York, or Wyoming, 

which did not advise our staff that advisers registered with them are subject to examination. See 
-10- 

authorities to provide an orderly transition of investment adviser registrants to state regulation. 

In addition, we are adopting rules and rule amendments, discussed below, that provide us with a 

means of identifying advisers that must transition to state regulation, that clarify the application 

of new statutory provisions, and that modify certain exemptions from the prohibition on 

Commission registration that we previously adopted under section 203A of the Act. 

1. Transition to State Registration 

We are adopting new rule 203A-5 to provide for an orderly transition to state registration 

for mid-sized advisers that will no longer be eligible to register with the Commission.23

• Existing Registrants. Under the rule, each adviser registered with us on January 1, 

2012 must file an amendment to its Form ADV no later than March 30, 2012.

 

24

 

infra note 

 

These amendments will respond to new items in Form ADV (discussed below) and 

will identify mid-sized advisers no longer eligible to remain registered with the 

152 (according to IARD data as of April 7, 2011, there were 63 mid-sized advisers in 

Minnesota, 286 in New York, and 1 in Wyoming). As a result, we estimate that approximately 

3,200 advisers will switch to state registration. 3,531 SEC-registered advisers – 350 advisers not 

switching to state registration = 3,181 advisers. In the Implementing Proposing Release, we 

estimated that approximately 4,100 SEC-registered advisers would be required to withdraw their 

registrations and register with one or more state securities authorities, based on IARD data as of 

September 1, 2010. See Implementing Proposing Release, supra note 7, at n.15. We have 

lowered our estimate by 900 advisers to account for the advisers that have between $90 million 

and $100 million of assets under management that may remain registered with us as a result of 

the amendments we are adopting to rule 203A-1, the advisers that have withdrawn their 

registrations with us since that time, and as discussed above, the advisers that will not switch 

registration because they have a principal office and place of business in Minnesota, New York or 

Wyoming. See section II.A.4. for a discussion of adopted rule 203A-1. Based on IARD data as 

of April 7, 2011, 244 advisers had assets under management of between $90 million and $100 

million and, from September 2, 2010 to April 7, 2011, 405 advisers withdrew their registrations 

with us and 114 advisers initially registered with us. 

23 As proposed, we are also amending the instructions to Form ADV to explain this process. See 

amended Form ADV: General Instructions (special one-time instruction for Dodd-Frank 

transition filing for SEC-registered advisers). 

24 New rule 203A-5(b). In this filing, advisers will report the current market value of their assets 

under management determined within 90 days of the filing.
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Commission.25 Mid-sized advisers that are no longer eligible for Commission 

registration must withdraw their registrations with us after filing their Form ADV 

amendments by filing Form ADV-W26 no later than June 28, 2012.27 Mid-sized 

advisers registered with the Commission as of July 21, 2011 must remain registered 

with the Commission (unless an exemption from Commission registration is 

available) until January 1, 2012.28

• New Applicants. Until July 21, 2011, when the amendments to section 203A(a)(2) 

take effect, advisers applying for registration with the Commission that qualify as 

mid-sized advisers under section 203A(a)(2) of the Act

 

29 may register with either the 

Commission or the appropriate state securities authority.30

 

25 See infra sections II.A.2. and II.C. Advisers will be required to update all of the items in Form 

ADV, and this filing will serve as the annual updating amendment for most advisers. See infra 

note 

 Thereafter, all such 

48 and accompanying text.

26 17 CFR 279.2 (“Form ADV-W”). 

27 New rule 203A-5(c)(1). 

28 New rule 203A-5(a). We are using the authority provided to us in section 203A(c) of the Act to 

require mid-sized advisers to remain registered with the Commission until the programming of 

the IARD is completed. See infra notes 35-41 and accompanying text. For a discussion of 

section 203A(c) of the Act, see supra note 20. We believe that the failure to provide a transition 

period during the beginning of 2012 would be unfair, a burden on interstate commerce, or 

otherwise inconsistent with the purposes of section 203A of the Act. We are also adopting, as 

proposed, a provision that will permit us to postpone the effectiveness of, and impose additional 

terms and conditions on, an adviser’s withdrawal from SEC registration if we institute certain 

proceedings before the adviser files Form ADV-W. New rule 203A-5(c)(2). This limitation on 

withdrawal of an adviser’s registration is similar to the one we adopted to implement NSMIA in 

1997. See NSMIA Adopting Release, supra note 17. 

29 For a discussion of section 203A(a)(2) of the Act, see supra notes 18-19 and accompanying text. 

As discussed above, the Dodd-Frank Act amendments to this section will be effective on July 21, 

2011. See supra note 6 and accompanying text. 

30 We noted in the Implementing Proposing Release that we would not object if, on or after January 

1, 2011 until the end of the transition period, any state-registered or newly-registering adviser is 

not registered with us, so long as the adviser reports on its Form ADV that it has between $30 

million and $100 million of assets under management, is registered as an investment adviser in 

the state in which it maintains its principal office and place of business, and has a reasonable 

belief that it is required to be registered with, and is subject to examination as an investment 
-12- 

advisers are prohibited from registering with the Commission and must register with 

the state securities authorities.31 We also note that advisers that have assets under 

management of $100 million or more will continue to register with the Commission 

(unless an exemption from registration with the Commission otherwise is 

available).32

We have made several changes to these transition provisions in response to comments we 

received.33

 

adviser by, that state. See Implementing Proposing Release, supra note 

 The proposed rule would have provided mid-sized advisers with a 90-day 

transitional process with two “grace periods,” the first providing until August 20, 2011 for an 

adviser to determine whether it is eligible for Commission registration and to file an amended 

Form ADV, and the second providing until October 19, 2011 for an adviser to register in the 

7, at section II.A.1. In 

order to account for the July 21, 2011 effective date of section 410 of the Dodd-Frank Act and the 

longer transition period that we are adopting (ending on June 28, 2012 instead of October 19, 

2011, as proposed), beginning on July 21, 2011, these advisers will no longer be able to choose to 

register with us; instead, they will be will be prohibited from registering with us and must instead 

register with the states. See infra note 31. We believe that allowing these advisers to register 

with the Commission before January 1, 2012 only to require them to withdraw their registrations 

by June 28, 2012 would be burdensome, and permitting them to choose whether to register with 

us until the summer of 2012 would be inconsistent with the purposes of Advisers Act section 

203A(a)(2), as amended by section 410 of the Dodd-Frank Act. See supra note 3 and 

accompanying text. 

31 Once registered, an adviser must remain registered with the Commission (unless an exemption is 

available) until January 1, 2012, when it may transition to state registration as described above. 

Until January 1, 2012, we are exempting from section 203A(a)(2) only those mid-sized advisers 

already registered with us on July 21, 2011 that have at least $25 million in assets under 

management because the IARD will not be able to accept the revised Form ADV by July 21, 

2011 and it is our understanding that mid-sized advisers will need additional time to switch to 

state registration. See new rule 203A-5(a); supra note 28 and accompanying text. As a result, on 

or after July 21, 2011, state-registered advisers and newly-registering advisers will be subject to 

the section 203A(a)(2) prohibition from Commission registration. 

32 See Advisers Act section 203A(a)(2), as amended by the Dodd-Frank Act. See also Advisers Act 

section 203. For a discussion of the threshold requiring larger advisers to register with the 

Commission, see infra section II.A.4. 

33 See proposed rule 203A-5(a)-(b); Implementing Proposing Release, supra note 7, at section 

II.A.1. 
-13- 

states and withdraw its registration with us.34 We noted in the Implementing Proposing Release, 

however, that timing of the transition period would be affected by our ability to re-program the 

IARD, through which advisers file their amendments to Form ADV.35

We have worked closely with the Financial Industry Regulatory Authority (“FINRA”), 

our IARD contractor, to make the needed modifications, but it has informed us that the 

programming will not be completed by the July 21, 2011 effective date of the Dodd-Frank Act. 

We understand that beginning in November, the IARD will be updated to reflect the revisions to 

Form ADV that we are adopting today. We noted in the Implementing Proposing Release that if 

the IARD is unable to accept filings of revised Form ADV on July 21, 2011, we might consider 

delaying the transition process until the system could accept electronic filing of the revised 

form.

 

36

Commenters, including the North American Securities Administrators Association, Inc.

(“NASAA”), agreed with our assessment and supported delaying the transition if the IARD could 

not accept the revised Form ADV instead of adopting alternative requirements, such as requiring 

interim paper filings.37 Many also urged us to provide additional time for mid-sized advisers to 

complete the switch to state registration,38

 

34 See proposed rule 203A-5(a)-(b); Implementing Proposing Release, supra note 

 and recommended that the Commission match the 

7, at section 

II.A.1. 

35 See Implementing Proposing Release, supra note 7, at section II.A.1. 

36 See id.

37 Comment letter of the North American Securities Administrators Association, Inc. (Feb. 10, 

2011) (“NASAA Letter”) (“the benefits of electronic filing, including easy public access to the 

documents, are significant and would outweigh any disadvantages imposed by a delay in filing 

deadlines.”); comment letter of Bill Dezellem, CFA, Tieton Capital Management (Jan. 4, 2011) 

(“Dezellem Letter”); comment letter of the National Regulatory Services (Jan. 24, 2011) (“NRS 

Letter”); comment letter of the New York State Bar Association, Business Law Section, 

Securities Regulation Committee (Apr. 1, 2011) (“NYSBA Committee Letter”). 

38 Comment letter of the American Bar Association, Section of Business Law, Committee on 

Federal Regulation of Securities, Committee on State Regulation of Securities, and the 
-14- 

current 180-day period39 provided to SEC-registered advisers that must switch to state 

registration.40 We are persuaded by these commenters, and, as described above, we are requiring 

mid-sized advisers registered with us on July 21, 2011 to remain registered until they switch to 

state registration after January 1, 2012.41 As noted above, rule 203A-5 provides until March 30, 

2012 for each adviser already registered with the Commission to determine whether it is eligible 

for Commission registration and to file an amended Form ADV,42

 

Committee on Private Equity and Venture Capital (Jan. 31, 2011) (“ABA Committees Letter”); 

comment letter of Altruist Financial Advisors LLC (Dec. 12, 2010) (“Altruist Letter”); comment 

letter of Capital Markets Compliance, LLC (Feb. 8, 2011) (“CMC Letter”); Dezellem Letter; 

comment letter of R.H. Dinel Investment Counsel, Inc. (Jan. 20, 2011) (“Dinel Letter”); comment 

letter of Financial Services Institute (Jan. 24, 2011) (“FSI Letter”); comment letter of Amy Klein 

(Nov. 30, 2010) (“Klein Letter”); NRS Letter; NYSBA Committee Letter; comment letter of 

Sadis & Goldberg LLP (Jan. 21, 2011) (“Sadis Letter”); comment letter of L.A. Schnase (Dec. 

23, 2010) (“Schnase Letter”); comment letter of Seward & Kissel LLP (Jan. 31, 2011) (“Seward 

Letter”); comment letter of Shearman & Sterling LLP (Jan. 24, 2011) (“Shearman Letter”). Only 

one commenter supported the proposed 90-day grace period. Comment letter of Pickard and 

Djinis LLP (Jan. 21, 2011) (“Pickard Letter”).

 and provides an additional 90 

39 Our current rule provides an SEC-registered adviser that has to switch to state registration a 

period of 180 days after its fiscal year end to file an annual amendment to Form ADV and to 

withdraw its SEC registration after reporting to us that it is no longer eligible to remain registered 

with us. See rule 203A-1(b)(2); cf. rule 204-1(a) (requiring an adviser to file an annual 

amendment 90 days after its fiscal year end). 

40 Altruist Letter; Dezellem Letter; FSI Letter; Klein Letter; NYSBA Committee Letter; Schnase 

Letter; Seward Letter; Shearman Letter. See also ABA Committees Letter (recommending 

December 31 deadline); NRS Letter (recommending rolling state registration process). One 

commenter stated that based on its almost three decades of experience, it “most strongly supports 

a defined and longer” transition period. NRS Letter. Another stated that “some states may be 

unable to process such filings in a timely and efficient manner.” ABA Committees Letter. 

Several commenters echoed concerns about timely state processing of applications, noting, in 

particular, additional registration and compliance requirements in many states and expected 

delays to approve state registrations given the increase in filings as a result of the Dodd-Frank 

Act. See Altruist Letter (noting that it took 122 days for a state to approve its application). See 

also CMC Letter; Dezellem Letter; Klein Letter; NRS Letter; NYSBA Committee Letter; 

Schnase Letter; Seward Letter. To address potential timing issues, NASAA noted that it is 

recommending to advisers to file with the states as soon as possible and to the states to 

conditionally approve the registrations until the re-filing of Form ADV is completed. NASAA 

Letter.

41 See supra note 28 and accompanying text. 

42 New rule 203A-5(a) and (b). This deadline coincides with the deadline for most advisers’ 

required annual updating amendment (90 days from December 31, 2011), eliminating the 

requirement that they file an additional amendment to their Form ADV. See rule 204-1(a); infra 
-15- 

days (i.e., by June 28, 2012) for an adviser no longer eligible for Commission registration to 

register with the states and withdraw its registration with us.43 After the end of this period, we 

expect to cancel the registration of advisers no longer eligible to register with us that fail to file 

an amendment or withdraw their registrations in accordance with the rule.44 The revised process 

that we are adopting today allows the Commission and state regulators to manage the transition 

of mid-sized advisers in an orderly manner.45

We are requiring that all advisers registered with us on January 1, 2012 – regardless of 

size – file amendments to Form ADV no later than March 30, 2012. Some commenters argued 

that advisers unaffected by the statutory changes effected by the Dodd-Frank Act should not 

have to complete and file all of Form ADV.

 

46

 

note 

 We believe such a filing is necessary for each 

adviser to confirm its current eligibility for Commission registration in light of the multiple 

48. Postponing the beginning of the transition process until January, instead of November or 

December, also will ensure that the refiling of Form ADV does not interfere with the November 

state registration and license renewal process and annual system outages for the IARD scheduled 

in December.

43 New rule 203A-5(c)(1). The rule 203A-5 transition period is the same 180-day transition period 

for advisers that fall below the $25 million threshold and have to switch to state registration. See

rule 203A-1(b)(2). Other advisers that will be required to withdraw from registration because 

they are no longer eligible for Commission registration will include, for example, pension 

consultants with plan assets of $50 million to $200 million. See infra section II.A.5.b. 

44 See Advisers Act section 203(h). As provided in the Advisers Act, an adviser would be given 

appropriate notice and opportunity for hearing to show why its registration should not be 

cancelled. Advisers Act section 211(c). 

45 See also supra notes 24-28 and accompanying text. 

46 Comment letter of the Investment Company Institute (Jan. 24, 2011) (“ICI Letter”) 

(recommending exempting advisers that do not rely on assets under management to register with 

the SEC); comment letter of the Managed Funds Association (Jan. 24, 2011) (“MFA Letter”) 

(recommending exempting private fund advisers that file an initial Form ADV by July 7); 

NYSBA Committee Letter (recommending exempting advisers who will continue to be eligible 

for Commission registration and advisers relying on the section 203(b)(3) exemption that we 

proposed would have to register with the Commission by July 21, 2011); Shearman Letter 

(recommending a more limited filing of Form ADV to determine eligibility). But most 

commenters supported the proposal. See CMC Letter; FSI Letter; NASAA Letter; NRS Letter; 

Pickard Letter.
-16- 

statutory changes (as well as changes to the rules that we are adopting today) that could affect 

whether the adviser may register with the Commission.47 These commenters’ concerns also 

should be allayed by the new March 30, 2012 deadline for filing Form ADV that will coincide 

with most advisers’ required annual updating amendment, eliminating the requirement that they 

file an additional amendment to their Form ADV.48 Finally, as recommended by several 

commenters,49 we are providing additional flexibility for an adviser to choose the date by which 

it must calculate its assets under management reported on Form ADV by requiring the 

calculation within 90 days of the transition filing, rather than 30 days.50 This is the same amount 

of time that advisers are afforded to report assets under management after the end of their fiscal 

year on Form ADV today.51

2. Amendments to Form ADV

 We are adopting several amendments to Item 2.A. of Part 1A of Form ADV to reflect the 

new threshold for registration and the revisions we are making to related rules in response to the 

 

47 In addition, we believe that requiring advisers to complete all of the items will provide the 

Commission and the state regulatory authorities with essential information about the advisers that 

are transitioning to state registration and the advisers that are remaining registered with the 

Commission. See infra sections II.A.2., II.C. 

48 As of April 7, 2011, 10,636 of SEC-registered advisers (approximately 92%) had a fiscal year 

ending on December 31. These advisers will comply with rule 203A-5(b)’s Form ADV filing 

requirement by submitting their annual amendment. SEC-registered advisers not required to file 

an annual updating amendment between January 1, 2012 and March 30, 2012 will file an otherthan-annual amendment, but they will complete all of the items on Part 1A of Form ADV (not 

just the items required to be updated in a typical other-than-annual amendment). 

49 Altruist Letter (quarter end); comment letter of Dechert LLP (Jan. 24, 2011) (“Dechert General 

Letter”) (rolling 12-month average); Dezellem Letter (fiscal year end); Dinel Letter (rolling threeyear average); NYSBA Committee Letter (quarter end); Seward Letter (quarter end); Shearman 

Letter (quarter end). Several commenters argued, for example, that providing for the use of end 

of quarter numbers precludes an administrate burden for many advisers that value assets on a 

quarterly basis because most advisers already value assets quarterly to calculate fees. Altruist 

Letter; NYSBA Committee Letter; Seward Letter; Shearman Letter.

50 New rule 203A-5(b). 

51 Form ADV: Instructions for Part 1A, instr. 5.b.(4). 
-17- 

enactment of the Dodd-Frank Act.52 Item 2 requires each investment adviser applying for 

registration to indicate its basis for registration with the Commission and to report annually 

whether it is eligible to remain registered. We are adopting the revisions to Item 2.A. 

substantially as proposed,53 except that we have revised the instructions and Item 2.A.(1) to 

reflect our adoption of a “buffer” for advisers with close to $100 million in assets under 

management, which we discuss below.54

To implement the new prohibition on registration for mid-sized advisers, we are 

amending Item 2.A. to reflect the new statutory threshold for registration. Item 2.A. requires 

each adviser registered with us (and each applicant for registration) to identify whether it is 

eligible to register with the Commission because it: (i) is a large adviser that has $100 million or 

more of regulatory assets under management (or $90 million or more if an adviser is filing its 

most recent annual updating amendment and is already registered with us);

 

55

 

52 We are adopting conforming amendments to Item 2.A. and the related items in Schedule D to 

reflect revisions to rule 203A-2, which provides exemptions from the prohibition on registration 

with the Commission. See amended Form ADV Items 2.A.(7), (10) and Section 2.A.(10) of 

amended Schedule D; infra sections II.A.4., II.A.5., II.A.7. Additionally, we are making 

conforming changes to the instructions for Form ADV. See amended Form ADV: Instructions 

for Part 1A, instr. 2. We also are revising the terms used in the rules and Form ADV to refer to 

the securities authorities in each state with a single defined term, “state securities authority.” 

Compare amended rules 203A-1, 203A-2(c) and (d), 203A-3(e); amended Form ADV: Glossary 

with rules 203A-1(b)(1), 203A-2(e)(1), 203A-4; Form ADV: Glossary. See also section 410 of 

the Dodd-Frank Act (amended section 203A(a)(2) of the Advisers Act describes a state securities 

authority as “the securities commissioner (or any agency or office performing like functions)”).

(ii) is a mid-sized 

53 One commenter expressed the view that the item was “sufficiently and clearly written.” NRS 

Letter.

54 See amended Form ADV: Instructions for Part 1A, instr. 2.a. For a discussion of the buffer, see 

infra section II.A.4. 

55 Amended Form ADV, Part 1A, Item 2.A.(1). We are revising Form ADV to use the term 

“regulatory assets under management” instead of “assets under management.” For a discussion 

of regulatory assets under management, see infra section II.A.3. 
-18- 

adviser that does not meet the criteria for state registration or is not subject to examination;56 (iii) 

has its principal office and place of business in Wyoming (which does not regulate advisers) or 

outside the United States;57 (iv) meets the requirements for one or more of the revised exemptive 

rules under section 203A discussed below;58 (v) is an adviser (or subadviser) to a registered 

investment company;59 (vi) is an adviser to a business development company and has at least 

$25 million of regulatory assets under management;60 or (vii) received an order permitting the 

adviser to register with the Commission.61

Each adviser must check at least one of these items, or indicate that the adviser is no 

longer eligible to remain registered with the Commission.62

3. Assets Under Management

 The IARD will prevent an applicant 

from registering with us, and an adviser from remaining registered, unless it represents on Form 

ADV that it meets at least one of the specific eligibility criteria set forth in the Advisers Act or 

our rules. 

In most cases, the amount of assets an adviser has under management will determine 

whether the adviser must register with the Commission or one or more states. Section 

 

56 Amended Form ADV, Part 1A, Item 2.A.(2). For a discussion of the criteria for state registration 

and examination for mid-sized advisers, see infra section II.A.7. 

57 Amended Form ADV, Part 1A, Items 2.A.(3), 2.A.(4). 

58 Amended Form ADV, Part 1A, Items 2.A.(7)-2.A.(11). For a discussion of the exemptive rules, 

see infra section II.A.5. 

59 Amended Form ADV, Part 1A, Item 2.A.(5). 

60 Amended Form ADV, Part 1A, Item 2.A.(6). 

61 Amended Form ADV, Part 1A, Item 2.A.(12). We are also deleting the item for NRSROs to 

register as investment advisers. For a discussion of NRSROs, see infra section II.A.5.a. 

62 Amended Form ADV, Part 1A, Item 2.A.(13). One commenter asked that we clarify whether 

advisers must check every box in Item 2.A. that they are eligible to check. Schnase Letter. The 

instructions to the item indicate that an adviser must check “at least one” of the items, but does 

not require all bases for registration be identified. Amended Form ADV: Instructions for Part 1A, 

instr. 2. 
-19- 

203A(a)(2) of the Act defines “assets under management” as the “securities portfolios” with 

respect to which an adviser provides “continuous and regular supervisory or management 

services.”63 Instructions to Form ADV provide advisers with guidance in applying this 

provision, and until now have permitted advisers to exclude certain types of assets that otherwise 

would have to be included.64

We are adopting revisions to the instructions to Part 1A of Form ADV to implement a 

uniform method for advisers to calculate assets under management that will be used under the 

Act for regulatory purposes in addition to assessing whether an adviser is eligible to register with 

the Commission.65 As discussed in more detail below, the amendments improve consistency by 

eliminating choices the instructions had provided advisers that have enabled some of them to opt 

in or out of federal or state regulation (by including or excluding a class of assets). We are also 

amending rule 203A-3 to continue to require that the calculation of “assets under management” 

for purposes of section 203A of the Act be the calculation of the securities portfolios with respect 

to which an investment adviser provides continuous and regular supervisory or management 

services, as reported on the investment adviser’s Form ADV.66

 

63 Advisers Act section 203A(a)(2). The Dodd-Frank Act renumbered current paragraph 

203A(a)(2) as 203A(a)(3), but did not amend this definition. See section 410 of the Dodd-Frank 

Act.

 Finally, we are altering the 

terminology we use in Part 1A of Form ADV to refer to an adviser’s “regulatory assets under 

64 See Form ADV: Instructions for Part 1A, instr. 5.b. These assets include proprietary assets, assets 

an adviser manages without receiving compensation, and assets of foreign clients.

65 See amended Form ADV: Instructions for Part 1A, instr. 5.b. See also sections 402(a) and 408 of 

the Dodd-Frank Act (adding section 202(a)(30) of the Act, which defines a foreign private 

adviser as having “assets under management” attributable to U.S. clients and private fund 

investors of less than $25 million, and section 203(m) of the Act, which directs the Commission 

to provide for an exemption for advisers solely to private funds with assets under management in 

the United States of less than $150 million); Exemptions Adopting Release, supra note 4, at 

section II.B. 

66 See amended rule 203A-3(d). 
-20- 

management” in order to acknowledge the “regulatory” purposes of this reporting requirement 

and to distinguish it from the assets under management disclosure that advisory clients receive in 

Part 2 of Form ADV.67

Many commenters expressed general support for providing a uniform method of 

calculating assets under management in order to maintain consistency for registration and risk 

assessment purposes.68

Under the revised instructions, advisers must include in their regulatory assets under 

management securities portfolios for which they provide continuous and regular supervisory or 

management services, regardless of whether these assets are family or proprietary assets, assets 

managed without receiving compensation, or assets of foreign clients.

 Others, however, disagreed with or sought changes to one or more of the 

revisions we are making to the instructions, which we discuss below. We are adopting the 

amendments as proposed. 

69

 

67 See amended Form ADV: Instructions for Part 1A, instr. 5.b.; Amendments to Form ADV, 

Investment Advisers Act Release No. 3060 (July 28, 2010) [75 FR 49234 (Aug. 12, 2010)] (“Part 

2 Release”). One commenter supported the change of terminology. See Schnase Letter 

(supporting the idea of distinguishing “regulatory assets under management” from “assets under 

management”). 

 We proposed to require 

advisers to include these assets in light of the new uses of the term “assets under management” in 

68 See, e.g., comment letter of the American Federation of Labor and Congress of Industrial 

Organizations (Jan. 24, 2011) (“AFL-CIO Letter”) (“an adviser’s calculation of its assets under 

management is central to the determination of whether that adviser is required to register with the 

SEC and be subject to its oversight . . . . The uniform, comprehensive methodology proposed by 

the SEC will ensure its ability to oversee advisers to funds that may pose a systemic threat.”); 

comment letter of Americans for Financial Reform (Jan. 24, 2011) (“AFR Letter”) (“Because 

calculations of the amount of assets under management by each adviser are key to the 

determination of whether or not they are required to register, the comprehensive and uniform 

definition of these terms in the proposed rule is particularly important.”). See also comment letter 

of the Alternative Investment Management Association (Jan. 24, 2011) (“AIMA Letter”); Dechert 

General Letter; comment letter of the Investment Adviser Association (by Valerie M. Baruch) 

(Jan. 24, 2011) (“IAA General Letter”); NRS Letter; comment letter of O’Melveny & Myers LLP 

(on behalf of the China Venture Capital and Private Equity Association) (Jan. 25, 2011) 

(“O’Melveny Letter”); Schnase Letter; NYSBA Committee Letter; Dezellem Letter.

69 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(1). 
-21- 

the Advisers Act and the new regulatory requirements related to systemic risk that we anticipated 

would be triggered by registration with the Commission.70 Eliminating an adviser’s ability to 

exclude all or some of these assets will prevent advisers from excluding these assets from their 

regulatory assets under management in order to remain below the new asset threshold for 

registration and to avoid reporting systemic risk information.71

A number of commenters disagreed with the proposed changes.

 This approach will also lead to 

more consistent reporting of assets under management among advisers. 

72 Some argued that 

advisers should not be required to include proprietary assets and assets managed without 

receiving compensation in the calculation because such a requirement would be inconsistent with 

the statutory definition of “investment adviser.”73 Although a person is not an “investment 

adviser” for purposes of the Advisers Act unless it receives compensation for providing advice to 

others, once a person meets that definition (by receiving compensation from any client to which 

it provides advice), the person is an adviser, and the Act applies to the relationship between the 

adviser and any of its clients (whether or not the adviser receives compensation from them).74

 

70 See supra note 

 

Moreover, the management of “proprietary” assets or assets for which the adviser may not be 

65. Section 404 of the Dodd-Frank Act gives the Commission authority to impose 

on investment advisers registered with the Commission reporting and recordkeeping requirements 

for systemic risk assessment purposes.

71 See Implementing Proposing Release, supra note 7, at nn.44-45 and accompanying text; 

Reporting by Investment Advisers to Private Funds and Certain Commodity Pool Operators and 

Commodity Trading Advisors on Form PF, Investment Advisers Act Release No. IA-3145 (Jan. 

26, 2011) [76 FR 8,068 (Feb. 11, 2011)] (“Systemic Risk Reporting Release”) (proposing 

systemic risk reporting). 

72 See AIMA Letter; Dechert General Letter; MFA Letter; Pickard Letter; Seward Letter; NYSBA 

Committee Letter.

73 See Dechert General Letter; MFA Letter; Seward Letter; NYSBA Committee Letter. See also

Pickard Letter. Under Section 202(a)(11) of the Advisers Act, the definition of “investment 

adviser” includes, among others, “any person who, for compensation, engages in the business of 

advising others . . . as to the value of securities or as to the advisability of investing in, 

purchasing, or selling securities . . . .” 

74 See section 202(a)(11); Form ADV: Instructions for Part 1A, Glossary of Terms, Client. 
-22- 

compensated, when combined with other client assets, may suggest that the adviser’s activities 

are of national concern or have implications regarding the reporting for the assessment of 

systemic risk.75 We are therefore adopting the amendment to the instruction, as proposed.76

The revised instructions to Form ADV also clarify that an adviser must calculate its 

regulatory assets under management on a gross basis, that is, without deduction of “any 

outstanding indebtedness or other accrued but unpaid liabilities.”77 Several commenters argued 

that advisers should determine the amount of regulatory assets under management on a net, 

rather than gross, basis.78 They asserted that the use of net assets would better reflect the clients’ 

assets at risk that an adviser manages,79 and that use of gross assets would confuse advisory 

clients.80

 

75 See supra note 

 However, nothing in the current instructions suggests that liabilities should be 

deducted from the calculation of an adviser’s assets under management. Indeed, since 1997, the 

instructions have stated that an adviser should not deduct securities purchased on margin when 

70. 

76 One commenter objected to the inclusion of assets of foreign clients because it would require 

domestic advisers that only have a foreign client base to register with the Commission. Comment 

letter of Katten Muchin Rosenman LLP (on behalf of APG Asset Management US Inc.) (Jan. 21, 

2011). However, a domestic adviser dealing exclusively with foreign clients must register with 

the Commission if it uses any U.S. jurisdictional means in connection with its advisory business. 

See section 203 of the Advisers Act (requiring registration of any investment adviser that uses the 

United States mails or any other means or instrumentality of interstate commerce in connection 

with its business as an investment adviser unless the adviser qualifies for an exemption from 

registration or is prohibited from registering with the Commission).

77 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(2). Accordingly, an adviser cannot 

deduct accrued fees, expenses, or the amount of any borrowing. Prior to today’s amendments, the 

instructions directed advisers not to “deduct securities purchased on margin.” 

78 See, e.g., Dechert General Letter; comment letter of Georg Merkl (Jan. 25, 2011) (“Merkl 

Exemptions Letter”); MFA Letter; Seward Letter; Shearman Letter. See also NYSBA Committee 

Letter.

79 See Merkl Exemptions Letter; MFA Letter.

80 See Dechert General Letter; MFA Letter.
-23- 

calculating its assets under management.81 Whether a client has borrowed to purchase a portion 

of assets managed does not seem to us a relevant consideration in determining the amount of 

assets an adviser has to manage and the scope and national significance of an adviser’s business. 

Moreover, we are concerned that the use of net assets could permit advisers that utilize 

investment strategies with highly leveraged positions to avoid registration with the Commission 

even though the activities of such advisers may have national significance. The use of a net 

assets test also could allow advisers to large and highly leveraged funds to avoid systemic risk 

reporting under our proposed systemic risk reporting rules.82 In addition, there need not be any 

investor confusion because although an adviser will be required to use gross (rather than net) 

assets for regulatory purposes, the instruction would not preclude an adviser from holding itself 

out to its clients as managing a net amount of assets as may be its custom in, for example, its 

client brochure. We are therefore adopting the instruction, as proposed.83

We are also revising the Form ADV instructions, as proposed, to provide guidance 

regarding how an adviser that advises private funds determines the amount of assets it has under 

management. We have designed our new instructions both to provide advisers with greater 

certainty in their calculation of regulatory assets under management (which they would also use 

as a basis to determine their eligibility for certain exemptions that we are adopting today in the 

 

 

81 See Form ADV: Instructions for Part 1A, instr. 5.b.(2). (“Do not deduct securities purchased on 

margin.”). 

82 See Systemic Risk Reporting Release, supra note 71.

83 Some commenters asked that we clarify how the calculation on a gross basis would apply with 

respect to, among others, mutual funds, short positions, and leverage. See IAA General Letter;

MFA Letter. We expect that advisers will continue to calculate their gross assets as they do 

today, even if they currently only calculate gross assets as an intermediate step to compute their 

net assets. In the case of pooled investment vehicles with a balance sheet, for instance, an adviser 

could include in the calculation the total assets of the entity as reported on the balance sheet.
-24- 

Exemptions Adopting Release) and to prevent advisers from understating those assets to avoid 

registration. 

First, an adviser must include in its calculation of regulatory assets under management 

the value of any private fund over which it exercises continuous and regular supervisory or 

management services, regardless of the nature of the assets held by the fund.84 A sub-adviser to 

a private fund would include in its regulatory assets under management only that portion of the 

value of the portfolio for which it provides continuous and regular supervisory or management 

services. Advisers that have discretionary authority over fund assets, or a portion of fund assets, 

and that provide ongoing supervisory or management services over those assets would exercise 

continuous and regular supervisory or management services.85

Second, an adviser must include the amount of any uncalled capital commitments made 

to a private fund managed by the adviser.86 As we explained in the Implementing Proposing 

Release, advisers to some private funds (such as private equity funds) typically make 

investments following capital calls on the funds’ investors.87 One commenter agreed with this 

approach generally,88 while another disagreed, asserting that the uncalled capital commitments 

remain under the management of the fund investor.89

 

84 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(1). One commenter specifically 

addressed this matter, supporting our approach. See IAA General Letter. 

 As we noted in the Implementing 

Proposing Release, in the early years of a private fund’s life, its adviser typically earns fees 

85 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(3). 

86 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(1). A capital commitment is a 

contractual obligation of an investor to acquire an interest in, or provide the total commitment 

amount over time to, a private fund, when called by the fund. 

87 Implementing Proposing Release, supra note 7, at n.53 and accompanying text. 

88 See AIMA Letter (supporting including uncalled capital commitments, provided that the adviser 

has full contractual rights to call that capital and would be given responsibility for management of 

those assets).

89 See Merkl Exemptions Letter.
-25- 

based on the total amount of capital commitments, which we presume reflects compensation for 

efforts expended on behalf of the fund in preparation for the investments.90

Third, advisers must use the market value of private fund assets, or the fair value of 

private fund assets where market value is unavailable.

 We are adopting the 

instruction, as proposed. 

91

We received a number of comments regarding the use of fair value, which represents a 

change from the current instruction that permits an adviser to calculate the value of its assets 

under management based on whatever method the adviser uses to report its assets to clients or to 

calculate fees for investment advisory services.

 This requirement is designed to make 

advisers value private fund assets on a more meaningful and consistent basis for regulatory 

purposes under the Act and it, therefore, should result in a more coherent application of the Act’s 

regulatory requirements and assessment of risk. This instruction would prevent, for example, an 

adviser electing to value its assets based on their cost, which could be significantly lower than 

the value of the assets based on their fair value, thus permitting the adviser to avoid registration 

with or reporting to the Commission. It is designed to prevent inconsistent application of the 

Advisers Act to advisers managing the same amount of assets. 

92

 

90 Implementing Proposing Release, supra note 

 One commenter, for example, supported 

requiring the use of fair value, noting that it would help achieve more consistent asset 

calculations and reporting across the investment advisory industry, and that it would enable 

7, at n.54 and accompanying text. 

91 See amended Form ADV: Instructions for Part 1A, instr. 5.b.(4). This valuation requirement is 

described in terms similar to the definition of “value” in the Investment Company Act, which 

looks to market value when quotations are readily available and, if not, then to fair value. See

Investment Company Act section 2(a)(41) (15 U.S.C. 80a-2(a)(41)). Other standards also may be 

expressed as requiring that a determination of fair value be based on market quotations where 

they are readily available. 

92 See Form ADV: Instructions for Part 1A, instr. 5.b.(4). 
-26- 

better application of our staff’s risk assessment program.93 Other commenters, including the 

Managed Funds Association, however, objected to the use of fair value, asserting that the 

requirement would cause those advisers that did not use fair value standards to incur additional 

costs, particularly if the assets are illiquid and therefore difficult to fair value.94

In the Implementing Proposing Release, we noted that we understood that many private 

funds already value assets in accordance with U.S. generally accepted accounting principles 

(“GAAP”) or other international accounting standards that require the use of fair value, citing 

letters we had received in connection with other rulemaking initiatives.

 

95 We are sensitive to the 

costs this new requirement will impose. We believe, however, that this approach is warranted in 

light of the unique regulatory purposes of the calculation under the Advisers Act. We estimated 

these costs in the Implementing Proposing Release,96 and have taken several steps to mitigate 

them.97 While many advisers will calculate fair value in accordance with GAAP or another 

international accounting standard,98

 

93 See IAA General Letter. See also ABA Committees Letter (addressing the requirement within 

the context of the asset calculation for purposes of the foreign private adviser and the private fund 

adviser exemptions). 

 other advisers acting consistently and in good faith may 

94 See MFA Letter; Merkl Exemptions Letter; O’Melveny Letter; Seward Letter.

95 See Implementing Proposing Release, supra note 7, at n.56 and accompanying text. 

96 See Implementing Proposing Release, supra note 7, at n.369 and accompanying text. 

97 We recognize that although these steps will provide advisers greater flexibility in calculating the 

value of their private fund assets, they also will result in valuations that are not as comparable as 

they could be if we specified a fair value standard (e.g., as specified in GAAP).

98 Several commenters asked that we not require advisers to fair value private fund assets in 

accordance with GAAP for purposes of calculating regulatory assets under management because 

many funds, particularly offshore ones, do not use GAAP and such a requirement would be 

unduly burdensome. See, e.g., comment letter of European Fund and Asset Management 

Association (Jan. 24, 2011) (“EFAMA Letter”); IAA General Letter; Comment letter of Katten 

Muchin Rosenman LLP (on behalf of non-U.S. Advisers) (Jan. 24, 2011) (“Katten Foreign 

Advisers Letter”). We did not propose such a requirement, nor are we adopting one. 
-27- 

utilize another fair valuation standard.99 While these other standards may not provide the quality 

of information in financial reporting (for example, of private fund returns), we expect these 

calculations will provide sufficient consistency for the purposes that regulatory assets under 

management serve in our rules (such as applying annual thresholds to determine the registration 

status of an adviser).100

The alternatives that commenters recommended (e.g., cost basis or any method required 

by the private fund’s governing documents other than fair value) would not meet our objective of 

having more meaningful and comparable valuation of private fund assets, and could result in a 

significant understatement of appreciated assets.

 

101

 

99 Consistent with this good faith requirement, we would expect that an adviser that calculates fair 

value in accordance with GAAP or another basis of accounting for financial reporting purposes 

will also use that same basis for purposes of determining the fair value of its regulatory assets 

under management. 

 Moreover, these alternative approaches 

could permit advisers to circumvent the Advisers Act’s registration requirements. Permitting the 

use of any valuation standard set forth in the governing documents of the private fund other than 

100 The fair valuation process need not be the result of a particular mandated procedure and the 

procedure need not involve the use of a third-party pricing service, appraiser or similar outside 

expert. An adviser could rely on the procedure for calculating fair value that is specified in a 

private fund’s governing documents. The fund’s governing documents may provide, for 

example, that the fund’s general partner determines the fair value of the fund’s assets. Advisers 

are not, however, required to fair value real estate assets only in those limited circumstances 

where real estate assets are not required to be fair valued for financial reporting purposes under 

accounting principles that otherwise require fair value for assets of private funds. For example, in 

those cases, an adviser may instead value the real estate assets as the private fund does for 

financial reporting purposes. We note that the Financial Accounting Standards Board (“FASB”) 

has a current project related to investment property entities that may require real estate assets 

subject to that accounting standard to be measured by the adviser at fair value. See FASB Project 

on Investment Properties. We also note that certain international accounting standards currently 

permit, but do not require, fair valuation of certain real estate assets. See International 

Accounting Standard 40, Investment Property. To the extent that an adviser follows GAAP or 

another accounting standard that requires or in the future requires real estate assets to be fair 

valued, this limited exception to the use of fair value measurement for real estate assets would not 

be available.

101 See Merkl Exemptions Letter; MFA Letter; O’Melveny Letter; Seward Letter; NYSBA 

Committee Letter.
-28- 

fair value could effectively yield to the adviser the choice of the most favorable standard for 

determining its registration obligation as well as the application of other regulatory requirements, 

and would not provide consistent outcomes from similarly situated advisers. Accordingly, we 

are adopting the requirement as proposed. 

We also requested comment in the Implementing Proposing Release on whether we 

should require advisers to report their assets under management more frequently than annually. 

All commenters who responded to our request asked that we continue to require annual 

reporting, arguing that more frequent reporting would require additional calculations only for 

purposes of Form ADV disclosure, thus placing an unnecessary burden on advisers.102

4. Switching Between State and Commission Registration 

 As 

commenters recommended, we are not changing the frequency of the reporting requirement.

Rule 203A-1 is designed to prevent an adviser from having to switch frequently between 

state and Commission registration as a result of changes in the value of its assets under 

management or the departure of one or more clients. We are amending the rule to eliminate the 

current buffer for advisers that have assets under management between $25 million and $30 

million that permits these advisers to remain regulated by the states, and we are replacing it with 

a similar buffer for mid-sized advisers.103

 

102 See, e.g., AIMA Letter; NRS Letter; O’Melveny Letter; NYSBA Committee Letter. Under the 

Systemic Risk Reporting Release, we proposed to require large advisers with $1 billion or more 

in assets under management attributable to hedge funds, unregistered money market funds or 

private equity funds to file systemic risk reports quarterly. See Systemic Risk Reporting Release, 

supra note 

 We are also retaining, as proposed, the requirement 

that eligibility for registration be determined annually as part of an adviser’s annual updating 

71. 

103 Amended rule 203A-1(a). Additionally, we are revising the provision in rule 203A-1 that does 

not require an adviser to withdraw its Commission registration until its assets under management 

fall below $25 million to reflect the new, $90 million threshold. See amended rule 203A-1(a)(1).
-29- 

amendment, allowing an adviser to avoid the need to change registration status based on 

fluctuations that occur during the course of the year.104

The amended rule provides a buffer for mid-sized advisers with assets under management 

close to $100 million to determine whether and when to switch between state and Commission 

registration.

 

105 The rule raises the threshold above which a mid-sized investment adviser must 

register with the Commission to $110 million; but, once registered with the Commission, an 

adviser need not withdraw its registration until it has less than $90 million of assets under 

management.106

Although commenters did not object to elimination of the current buffer, several argued 

that we need to include a new buffer for mid-sized advisers that have close to $100 million of 

assets under management.

 

107

 

104 Amended rule 203A-1(b)(2) (continuing to require an adviser filing an annual updating 

amendment to its Form ADV reporting that it is not eligible for Commission registration to 

withdraw its registration within 180 days of its fiscal year end). We are not renumbering this 

paragraph as proposed. Compare proposed rule 203A-1(a)-(b) with amended rule 203A-1(b)(1)-

(2). 

 Some commenters, for example, asserted that the current $5 

105 Amended rule 203A-1(a). 

106 Amended rule 203A-1(a)(1). Mid-sized advisers eligible for a rule 203A-2 exemption and 

advisers to a registered investment company or business development company under the 

Investment Company Act will not be able to rely on the buffer because they are required to 

register with us regardless of whether they have $100 million of assets under management. 

Amended rule 203A-1(a)(2). In addition, advisers that rely on amended rule 203A-2(c) to 

register with the Commission because they expect to be eligible for registration within 120 days 

cannot rely on the buffer – they must have $100 million of assets under management within 120 

days to remain registered with the Commission. See Form ADV: Instructions for Part 1A, instrs. 

2.a., 2.g. See also amended rule 203A-1(a)(2)(ii); amended rule 203A-2(c).

107 Altruist Letter; Dezellem Letter; Dinel Letter; FSI Letter; comment letter of Intelligent 

Capitalworks Investment Advisors (Jan. 24, 2011) (“ICW Letter”); comment letter of JVL 

Associates, LLC (Jan. 13, 2011) (“JVL Associates Letter”); comment letter of Georg Merkl (Jan. 

25, 2011) (“Merkl Implementing Letter”); NASAA Letter; NRS Letter; NYSBA Committee 

Letter; comment letter of The Wealth Coach, LLC (by Jeffrey W. McClure) (Dec. 31, 2010) 

(“Wealth Coach Letter”); and comment letter of WJM Financial, LLC (Jan. 4, 2011) (“WJM 

Letter”). To prevent an adviser from switching frequently between state and Commission 

registration, we proposed to retain an adviser’s ability to rely on the reporting on Form ADV of 
-30- 

million buffer was effective in preventing frequent switching of registration attributable to 

market fluctuations,108 while another called the buffer an important element of regulatory 

flexibility.109 Several advisers with close to $100 million of assets under management asserted 

that a buffer is necessary to prevent them from switching to and from Commission 

registration.110 Commenters recommended several different buffers, including one for advisers 

with between $100 million and $120 million (to retain the current buffer’s 20 percent increase in 

assets under management),111 one that would fall below $100 million,112 and a buffer that 

straddled above and below $100 million.113

We are persuaded by these comments that a buffer may prevent costs and disruption to 

advisers that otherwise may have to switch between federal and state registration frequently 

because of, for example, the volatility of the market values of the assets they manage. Rule 

203A-1(a), as amended, raises the threshold above which a mid-sized investment adviser must 

register with the Commission to $110 million.

 

114

 

assets under management in the annual updating amendment for purposes of determining its 

eligibility to register. See proposed rule 203A-1(b). 

 Once registered with the Commission, an 

108 See, e.g., Altruist Letter; NRS Letter.

109 NASAA Letter.

110 ICW Letter (for 3 years, adviser’s assets under management have been greater than $100 million 

by a few million dollars and at various times throughout the year has been reduced to under $100 

million by just a few days of downside market volatility); JVL Associates Letter (adviser’s assets 

under management have fluctuated around $100 million since 2007). See also Wealth Coach 

Letter (from October 2008 through March 2009, adviser’s total assets under management fell 

over 25%). 

111 Altruist Letter; FSI Letter; NASAA Letter; WJM Letter. See also ICW Letter; Merkl 

Implementing Letter; NYSBA Committee Letter.

112 Dezellem Letter ($80-$100 million); Dinel Letter ($80-$100 million); JVL Associates Letter 

($90-$100 million); NRS Letter ($90-$100 million). 

113 Wealth Coach Letter ($85-$115 million). 

114 We find that raising the threshold for mid-sized advisers to register with the Commission is 

appropriate in accordance with the purposes of the Advisers Act. Advisers Act section 

203A(a)(2)(B)(ii), as amended by the Dodd-Frank Act. 
-31- 

adviser need not withdraw its registration until it has less than $90 million of assets under 

management.115 The amendment operates to provide a buffer of 20 percent of the $100 million 

statutory threshold for registration with the Commission, which is the same percentage as the 

current buffer.116 We believe a 20 percent buffer is appropriate because it is large enough to 

accommodate market fluctuations or the departure of one or more clients, and does not 

substantially increase or decrease the $100 million threshold set by Congress in the Dodd-Frank 

Act.117

5. Exemptions from the Prohibition on Registration with the Commission 

Using the authority provided by section 203A(c) of the Advisers Act, we are adopting, as 

proposed, amendments to three of the exemptions in rule 203A-2 from the prohibition on 

Commission registration in section 203A to reflect developments since their original adoption, 

 

115 Amended rule 203A-1(a)(1). We find that not providing this buffer and requiring advisers with 

assets under management of between $90 million and $100 million to register with the states 

would be unfair, a burden on interstate commerce, or otherwise inconsistent with the purposes of 

section 203A of the Advisers Act. Advisers Act section 203A(c). Advisers Act section 203A(c) 

permits the Commission to exempt advisers from the prohibition on Commission registration, 

including small and mid-sized advisers, if the application of the prohibition from registration 

would be “unfair, a burden on interstate commerce, or otherwise inconsistent with the purposes” 

of section 203A. See supra note 20 for a discussion of section 203A(c). 

116 Commenters said the current $5 million buffer, which is 20 percent of the $25 million statutory 

threshold, effectively limits advisers having to switch registrations due to market changes in their 

assets under management. See, e.g., Altruist Letter (current $5 million buffer “was useful in 

lessening the need to switch back and forth between state and federal regulation as an IA’s AUM 

grew or fell”). See also Advisers Act section 203A(a)(1); rule 203A-1(a). The amendment we 

are adopting provides a $20 million buffer, which is 20 percent of the $100 million statutory 

threshold. See Advisers Act section 203A(a)(2), as amended by the Dodd-Frank Act; amended

rule 203A-1(a)(1). 

117 An adviser must register if its assets under management are $110 million or more, which is $10 

million higher than the $100 million statutory threshold. See Advisers Act section 203A(a)(2), as 

amended by the Dodd-Frank Act; amended rule 203A-1(a)(1). See also supra note 108 (citing 

commenters discussing market fluctuations); Senate Committee Report, supra note 18, at 76 

(stating that this amendment increases the threshold above which all investment advisers must 

register with the Commission from $25 million to $100 million).
-32- 

including the enactment of the Dodd-Frank Act, which we discuss below.118 Each of the 

exemptions (including those we are not amending) also applies to mid-sized advisers, exempting 

them from the prohibitions on registering with the Commission if they meet the requirements of

rule 203A-2.119

a. Nationally Recognized Statistical Rating Organizations 

 

We are eliminating, as proposed, the exemption in rule 203A-2(a) from the prohibition on 

Commission registration for nationally recognized statistical rating organizations 

(“NRSROs”).120 Since we adopted this exemption, Congress amended the Act to exclude certain 

NRSROs from the Act’s definition of “investment adviser”121

 

118 Using the authority provided in section 203A(c) of the Advisers Act, the Commission has 

permitted six types of investment advisers to register with the Commission under rule 203A-2: (i) 

NRSROs; (ii) certain pension consultants; (iii) certain investment advisers affiliated with an 

adviser registered with the Commission; (iv) investment advisers expecting to be eligible for 

Commission registration within 120 days of filing Form ADV; (v) certain multi-state investment 

advisers; and (vi) certain internet advisers. See supra notes

 and provided for a separate 

20-21 and accompanying text. We 

are also renumbering, and making minor conforming changes to, rule 203A-2(c), (d) and (f) 

regarding investment advisers affiliated with an SEC-registered adviser, newly formed advisers 

expecting to be eligible for Commission registration within 120 days, and internet advisers, 

respectively. See amended rule 203A-2(b), (c), and (e). We are requiring advisers to comply 

with amended rule 203A-2 60 days after publication in the Federal Register. See infra section III.

119 Rule 203A-2 provides that advisers meeting the criteria for a category of advisers under the rule 

will not be prohibited from registering with us by Advisers Act section 203A(a). See rule 203A2; NSMIA Adopting Release, supra note 17, at section II.D. The new prohibition on mid-sized 

advisers registering with the Commission also is established under Advisers Act section 203A(a); 

therefore, mid-sized advisers meeting the requirements for a category of exempt advisers under 

rule 203A-2 are eligible to register with us. See section 410 of the Dodd-Frank Act; amended 

rule 203A-2. We asked, but did not receive comment on, whether we should limit rule 203A-2’s 

application to small advisers; however, one commenter agreed that these exemptions should 

apply to all advisers, including mid-sized advisers. NRS Letter (strongly supporting that the 

exemptions be applicable to all advisers no matter their assets under management as it “promotes 

uniformity, clarity and a consistent standard for all.”). We are leaving rule 203A-2 unchanged in 

this regard.

120 See rule 203A-2(a). 

121 Credit Rating Agency Reform Act of 2006, P.L. 109-291, 120 Stat. 1327 § 4(b)(3)(B) (2006) 

(“Credit Rating Agency Reform Act”). See also Advisers Act section 202(a)(11)(F) (excluding 

an NRSRO from the definition of investment adviser unless it issues recommendations about 

purchasing, selling, or holding securities or engages in managing assets that include securities on 

behalf of others). 
-33- 

regulatory regime for NRSROs under the Securities Exchange Act of 1934 (“Exchange Act”).

122 

Commenters supported the elimination of this provision.123

b. Pension Consultants

 

We are amending rule 203A-2(b), the exemption available to pension consultants, to 

increase the minimum value of plan assets required to rely on the exemption from $50 million to 

$200 million.124 As discussed in the Implementing Proposing Release, pension consultants 

typically do not have “assets under management,” but we have required these advisers to register 

with us because their activities have a direct effect on the management of large amounts of 

pension plan assets.125 As a result of this amendment, advisers currently relying on the pension 

consultant exemption advising plan assets of less than $200 million may be required to withdraw 

from Commission registration and register with one or more states.126

 

122 Credit Rating Agency Reform Act, supra note 121, at sections 4(a), 5. 

123 NRS Letter (asserting that the proposal is consistent with the Credit Rating Agency Reform Act, 

which amended the Advisers Act to exclude NRSROs and to provide for a separate regulatory 

regime for them under the Exchange Act); Pickard Letter (asserting that continued availability of 

the NRSRO exemption is causing confusion among advisers). 

124 Amended rule 203A-2(a). Pension consultants provide services to pension and employee benefit 

plans and their fiduciaries, including assisting them to select investment advisers that manage 

plan assets. See rule 203A-2(b)(2), (3); NSMIA Adopting Release, supra note 17, at section 

II.D.2. The exemption does not apply to pension consultants that solely provide services to plan 

participants. See NSMIA Adopting Release, supra note 17, at section II.D.2. To determine the 

aggregate value of plan assets, a pension consultant may only include the portion of the plan’s 

assets for which the consultant provides investment advice. Rule 203A-2(b)(3). 

125 See Implementing Proposing Release, supra note 7, at section II.A.5.b.; NSMIA Adopting 

Release, supra note 17, at section II.D.2.; Rules Implementing Amendments to the Investment 

Advisers Act of 1940, Investment Advisers Act Release No. 1601, section II.D.2. (Dec. 20, 1996) 

[61 FR 68480 (Dec. 27, 1996)]. 

126 An adviser currently relying on the exemption, but that advises plan assets of less than $200 

million and files an annual updating amendment to its Form ADV following the compliance date 

of the amended rule, will be required to withdraw from Commission registration within 180 days 

of the adviser’s fiscal year end (unless the adviser is otherwise eligible for SEC registration). See 

rule 203A-1(b)(2); supra note 118. 
-34- 

We proposed to increase the threshold to $200 million in light of Congress’s 

determination to increase from $25 million to $100 million the amount of “assets under 

management” that requires all advisers to register with the Commission, and to maintain the 

same ratio as today of plan assets to the statutory threshold for registration.127 Commenters 

supported our proposal.128 One agreed that the new $200 million threshold would continue to 

ensure that the activities of a pension consultant registered with the Commission are significant 

enough to have an impact on national markets.129

c. Multi-State Advisers

 We are adopting the amendment, as proposed. 

 We are adopting, as proposed, amendments to the multi-state adviser exemption to align 

the rule with the multi-state exemption that Congress provided for mid-sized advisers in section 

410 of the Dodd-Frank Act.130 Amended rule 203A-2(d) permits all investment advisers who are 

required to register as an investment adviser with 15 or more states to register with the 

Commission, rather than 30 states, as currently required.131

 

127 Proposed rule 203A-2(a).

 An adviser relying on the rule must 

128 See NRS Letter; Pickard Letter. 

129 NRS Letter. See also NSMIA Adopting Release, supra note 17, at n.60 (the $50 million “higher 

threshold is necessary to demonstrate that a pension consultant’s activities have an effect on 

national markets.”). The higher asset requirement also reflects that a pension consultant has 

substantially less control over client assets than an adviser that has “assets under management.” 

Id.

130 Amended rule 203A-2(d). Form ADV will not be amended to reflect the changes to the multistate adviser exemption until the end of the calendar year. See supra section II.A.1. Until that 

time, both a mid-sized adviser eligible for the statutory multi-state exemption and a small adviser 

eligible for the exemption under amended rule 203A-2(d) because it is required to register as an 

adviser in 15 or more states may register or remain registered (as the case may be) with the 

Commission by checking the boxes (Item 2.A.(9) and the relevant section of Schedule D) 

indicating that it is exempt because it is required to register in 30 or more states. See supra note 

118. Upon making its next amendments to Form ADV, the adviser should revise its filing to 

report reliance on the new multi-state adviser exemption. 

131 We note that amended rule 203A-2(d) permits an adviser otherwise eligible to rely on the 

exemption to choose to maintain its state registrations and not switch to SEC registration. See 
-35- 

withdraw from registration with the Commission when it is no longer required to be registered 

with 15 states.132 We are also rescinding, as proposed, the provision in the current rule that 

permits advisers to remain registered until the number of states in which they must register falls 

below 25 states, and we are not adopting a similar cushion for the 15-state threshold.133

Commenters generally agreed with our proposal to align our multi-state exemption for 

small advisers with the statutory exemption for mid-sized advisers.134 A few, however, 

recommended a lower threshold of required state registrations for eligibility for the multi-state 

exemption.135

 

amended rule 203A-2(d)(2) (adviser elects to rely on the exemption by making the required 

representations on Form ADV). 

 In light of Congressional determination to set the threshold at 15 states and our 

stated purpose in amending the rule to align it with the Dodd-Frank Act, we have determined not 

132 See amended rule 203A-2(d). To rely on this exemption, an adviser also must continue to: (i) 

include a representation on Schedule D of Form ADV that the investment adviser has concluded 

that it must register as an investment adviser with the required number of states; (ii) undertake to 

withdraw from registration with the Commission if the adviser indicates on an annual updating 

amendment to Form ADV that it would be required by the laws of fewer than 15 states to register 

as an investment adviser with the state; and (iii) maintain a record of the states in which the 

investment adviser has determined it would, but for the exemption, be required to register. 

Amended rule 203A-2(d)(2)-(3). The adviser may not include in the number of states those in 

which it is not required to register because of applicable state laws or the national de minimis

standard of section 222(d) of the Advisers Act. See Exemption for Investment Advisers Operating 

in Multiple States; Revisions to Rules Implementing Amendments to the Investment Advisers Act 

of 1940; Investment Advisers with Principal Offices and Places of Business in Colorado or Iowa, 

Investment Advisers Act Release No. 1733, n.17 (July 17, 1998) [63 FR 39708 (July 24, 1998)]. 

133 See rule 203A-2(e)(1). Eliminating this buffer simplifies the requirements of the exemption. See 

NRS Letter (“The Dodd-Frank Act has addressed the multi-state adviser exemption to simplify 

the requirements of this exemption.”)

134 See NASAA Letter; comment letter of the National Education Association Member Benefits 

Corporation (Jan. 21, 2011) (“NEA Letter”); NRS Letter; Pickard Letter; Seward Letter; 

Shearman Letter. 

135 See Seward Letter and Shearman Letter (in each case supporting the 15-state threshold we 

proposed, and suggesting the burdens of maintaining multiple state registrations can be 

significant). See also NEA Letter. One of these commenters also would support further 

decreasing the number of states to five and requiring advisers relying on the exemption to have at 

least $25 million of assets under management. Seward Letter. Another “would support an even 

lower threshold.” Shearman Letter. 
-36- 

to lower the threshold further.136 We also note that the requirement that advisers annually assess 

their eligibility for registration and the grace periods provided to switch to and from state 

registration should further mitigate the frequency with which an investment adviser required to 

register in 15 states will have to switch between state and federal registration.137

6. Elimination of Safe Harbor 

 We are rescinding, as proposed, rule 203A-4, which has provided a safe harbor from 

Commission registration for an investment adviser that is registered with the state securities 

authority of the state in which it has its principal office and place of business based on a 

reasonable belief that it is prohibited from registering with the Commission because it does not 

have sufficient assets under management.138 One commenter argued that the safe harbor should 

be retained for mid-sized advisers because advisers calculating regulatory assets under 

management face similar challenges today as when the safe harbor was adopted.139 We disagree. 

As stated in the Implementing Proposing Release, the safe harbor was designed for smaller 

advisory businesses with assets under management of less than $30 million, which may not 

employ the same tools or otherwise have a need to calculate assets as precisely as advisers with 

greater assets under management.140

 

136 See section 410 of the Dodd-Frank Act (a mid-sized adviser that otherwise would be prohibited 

may register with the Commission if it would be required to register with 15 or more states); 

H. REP. NO. 111-517, at 867 (2010) (“Conference Committee Report”) (“Those advisers who 

qualify to register with their home state must register with the SEC should the adviser operate in 

more than 15 states.”). 

 We also believe that the revisions we are adopting to the 

Form ADV instructions to implement a uniform method for advisers to calculate assets under 

137 See supra section II.A.4. 

138 Rule 203A-4. 

139 NYSBA Committee Letter. Another commenter asserted that there has been and continues to be 

confusion among smaller advisers in calculating assets under management. NRS Letter.

140 Implementing Proposing Release, supra note 7, at section II.A.6. (citing rule 203A-4; NSMIA 

Adopting Release, supra note 17, at section II.B.3.).
-37- 

management will clarify the requirements and reduce confusion among advisers.141 Moreover, 

the rule is a safe harbor only from our enforcement actions, and to our knowledge few, if any, 

advisers have relied upon it in the 14 years since it was adopted.142

7. Mid-Sized Advisers

 Accordingly, we are 

rescinding the rule.

We are amending Form ADV to require a mid-sized adviser registering with us to affirm, 

upon application and annually thereafter, that it is either: (i) not required to be registered as an 

adviser with the state securities authority in the state where it maintains its principal office and 

place of business; or (ii) is not subject to examination as an adviser by that state.143 These form 

revisions implement the Dodd-Frank Act amendment to section 203A of the Advisers Act that 

prohibits mid-sized advisers from registering with the Commission, but only: (i) if the adviser is 

required to be registered as an investment adviser with the securities commissioner (or any 

agency or office performing like functions) of the state in which it maintains its principal office 

and place of business; and (ii) if registered, the adviser would be subject to examination as an 

investment adviser by such commissioner, agency, or office.144

 

141 See supra section II.A.3. 

 The Dodd-Frank Act does not 

explain how to determine whether a mid-sized adviser is “required to be registered” or is 

142 See NRS Letter (noting a belief that the safe harbor has been little used by small advisers based 

upon the commenter’s years of consulting for such advisers). 

143 See amended Form ADV, Part 1A, Item 2.A.(2). For a discussion of changes to Form ADV, Part 

1A, Item 2.A., see supra section II.A.2. 

144 See section 410 of the Dodd-Frank Act. An adviser reporting that it is no longer able to make this 

affirmation will have 180 days from its fiscal year end to withdraw from Commission 

registration. See amended rule 203A-1(b)(2). Thus, the rule will operate to permit an adviser to 

rely on this affirmation reported in its annual updating amendments for purposes of determining 

its eligibility to register with the Commission. 
-38- 

“subject to examination” by a particular state securities authority.145 We are therefore providing

an explanation of these provisions in instructions to Form ADV.146

a. Required to be Registered

 

The Form ADV instructions we are adopting reflect that the “required to be registered” 

standard that Congress included in new section 203A(a)(2) of the Advisers Act for mid-sized 

advisers is different from the “regulated or required to be regulated” standard set forth in section 

203A(a)(1) for small advisers.147 The instruction explains that a mid-sized adviser “is not 

required to be registered” with the state securities authority and must register with the 

Commission (unless an exemption from registration with the Commission otherwise is 

available)148

 

145 The Advisers Act defines the term “state” to include any U.S. state, the District of Columbia, 

Puerto Rico, the Virgin Islands, or any other possession of the United States. Advisers Act 

section 202(a)(19). For purposes of section 203A of the Advisers Act and the rules thereunder, 

rule 203A-3(c) defines “principal office and place of business” to mean the executive office of 

the investment adviser from which its officers, partners, or managers direct, control, and 

coordinate its activities. We are not changing this definition. See amended rule 203A-3(c). For a 

discussion of amendments we are making to the calculation of assets under management, see 

supra section II.A.3. 

if the adviser is exempt from registration under the law of the state in which it has 

its principal office and place of business, or is excluded from the definition of investment adviser 

146 See amended Form ADV: Instructions for Part 1A, instr. 2.b. 

147 See amended Form ADV: Instructions for Part 1A, instr. 2.b. Under section 203A(a)(1) of the 

Act, an adviser that is not regulated or required to be regulated as an investment adviser in the 

state in which it has its principal office and place of business must register with the Commission 

regardless of the amount of assets it has under management. Advisers Act section 203A(a)(1). 

See also Advisers Act section 203(a). We have interpreted “regulated or required to be 

regulated” to mean that a state has enacted an investment adviser statute, regardless of whether 

the adviser is actually registered in that state. See NSMIA Adopting Release, supra note 17, at 

section II.E.1. The bills originally introduced and passed in the House and Senate increased up to 

$100 million the threshold for Commission registration under the “regulated or required to be 

regulated” standard that is used today in section 203A(a)(1). See The Wall Street Reform and 

Consumer Protection Act of 2009, H.R. 4173, 111th Cong. § 7418 (2009); Restoring American 

Financial Stability Act of 2010, S. 3217, 111th Cong. § 410 (2010). But the final version of the 

Dodd-Frank Act prohibits a mid-sized adviser from registering with the Commission if, among 

other things, it is “required to be registered” as an adviser with the state securities authority where 

it maintains its principal office and place of business. See section 410 of the Dodd-Frank Act. 

148 See, e.g., Advisers Act sections 203(a) and (b), 203A(b); rule 203A-2. 
-39- 

in that state.149 Thus, for example, an adviser with $75 million of assets under management that 

is exempt from registration in the state in which its principal office and place of business is 

located will have to register with the Commission (unless an exemption from Commission 

registration is available). None of the commenters disputed our interpretation or suggested an 

alternative interpretation of the “required to be registered” element,150 and we are adopting the 

instructions, as proposed.151

b. Subject to Examination

 

 As we discussed in the Implementing Proposing Release, our staff contacted the state 

securities authority for each state and, based upon information they have provided us, identified 

those states that do not subject advisers registered with them to examination.152 We have posted 

this list on our website,

153 and it also will be available to advisers using the IARD to register or 

amend their registration forms.154

 

149 See, e.g., Uniform Securities Act §§ 102(15), 403(b) (2002). An adviser not registered under a 

state adviser statute in contravention of such statute, however, is not eligible for registration with 

the Commission. Similarly, an adviser could not voluntarily register with the Commission to 

avoid state registration. 

 Based on those responses, advisers with their principal office 

150 One commenter suggested that we clarify whether mid-sized advisers that are exempt from 

registration in their home states may or are required to register with us. Sadis Letter. As 

discussed above and in the Form ADV instructions, if a mid-sized adviser is not required to be 

registered in the state where it has its principal office and place of business, the adviser must 

register with the Commission (unless an exemption from Commission registration is available). 

See supra notes 148-149 and accompanying text; amended Form ADV: Instructions for Part 1A, 

instr. 2.b. 

151 See amended Form ADV: Instructions for Part 1A, instr. 2.b. 

152 All state securities authorities other than Minnesota, New York and Wyoming have advised our 

staff that advisers registered with them are subject to examination. According to IARD data as of 

April 7, 2011, there were 63 advisers with assets under management between $25 million and $90 

million and a principal office and place of business in Minnesota, 286 in New York, and 1 in 

Wyoming. 

153 See http://www.sec.gov/divisions/investment/midsizedadviserinfo.htm. 

154 See amended Form ADV, Part 1A, Item 2.A.(2)(b); amended Form ADV: Instructions for Part 

1A, instr. 2.b. The staff also requested that each state notify us promptly if advisers in the state 
-40- 

and place of business in Minnesota, New York and Wyoming with assets under management 

between $25 million and $100 million must register with the Commission.155

Several commenters agreed with our approach of relying on responses from the state 

regulators rather than determinations by the Commission to identify whether an adviser is 

“subject to examination” by a state.

 

156 Two commenters, however, suggested that we should 

instead establish our own criteria for whether an adviser is “subject to examination,” and one 

further recommended that we should engage in an evaluation of each state’s adviser examination 

program.157 We do not believe that the alternatives suggested are practical or appropriate. As 

we explained in the Implementing Proposing Release, the states are the most familiar with their 

own circumstances and are in the best position to determine whether advisers in their states are 

subject to examination.158

B. Exempt Reporting Advisers: Sections 407 and 408 

To implement new sections 203(l) and 203(m) of the Advisers Act, we are adopting a 

new rule, as proposed, that requires advisers relying on those exemptions from registration to 

 

will begin to be subject to examination or will no longer be subject to examination, and we will 

update the list on the IARD and our website accordingly. 

155 See supra note 152. The requirement for such an adviser to register with the Commission, as 

opposed to one of these states, will be effective on July 21, 2011. 

156 See NASAA Letter (proposed approach “complies with the clear and unambiguous language of 

the statute” and “attempting to define or otherwise interpret terms that are plain and direct is 

contrary to long-established rules of statutory construction.”); NRS Letter; Pickard Letter. See 

also Sadis Letter (recommending the Commission clarify whether an adviser in a particular state 

is required to register with the Commission). 

157 ABA Committees Letter (recommending the Commission construe “examination” to indicate a 

“structured adviser examination program, rather than one conducted on an occasional, sporadic or 

informal basis,” and require an annual affirmation from each state that it subjects advisers to 

examination); FSI Letter (recommending the Commission engage in a stringent evaluation of 

each state’s adviser examination program and expressly define “subject to examination” to, at a 

minimum, include a “uniform or risk based routine examination process” and that it “mirrors the 

frequency of broker-dealer examination by FINRA and the SEC”).

158 See Implementing Proposing Release, supra note 7, at section II.A.7.b. 
-41- 

submit to us, and to periodically update, reports that consist of a limited subset of items on Form 

ADV.159 We are also adopting the amendments we proposed to Form ADV to permit the form to 

serve as both a reporting and registration form and to specify the seven items these “exempt 

reporting advisers” must complete.160

As discussed above, the Dodd-Frank Act amends the Advisers Act, as of July 21, 2011, 

to create two new exemptions from registration for advisers to certain types of “private funds” 

and to repeal the private adviser exemption contained in section 203(b)(3) of the Advisers Act on 

which advisers to many hedge and other private funds relied in order to avoid registration.161 

Both section 203(l) (which provides an exemption for an adviser that advises solely one or more 

“venture capital funds”) and section 203(m) of the Advisers Act (which instructs the 

Commission to exempt any adviser that acts solely as an adviser to private funds and has assets 

under management in the United States of less than $150 million) provide that the Commission 

shall require such advisers to maintain such records and to submit such reports “as the 

Commission determines necessary or appropriate in the public interest.”162

 

159 We refer to advisers that rely on the exemptions from registration provided in either new section 

203(l) or new section 203(m) of the Advisers Act as “exempt reporting advisers.” For a brief 

discussion of these exemptions, see infra note 

 The rules and 

162 and accompanying text; for a more in-depth 

discussion, see Exemptions Adopting Release, supra note 4. 

160 For a discussion of additional amendments we are proposing to Part 1 of Form ADV, see infra 

section II.C. 

161 Section 403 of the Dodd-Frank Act. Section 203(b)(3) exempts from registration any investment 

adviser who during the course of the preceding twelve months has had fewer than fifteen clients 

and who neither holds himself out generally to the public as an investment adviser nor acts as an 

investment adviser to any investment company registered under the Investment Company Act, or 

a company which has elected to be a business development company pursuant to Section 54 of 

the Investment Company Act (15 U.S.C. 80a-54). See supra note 4; Implementing Proposing 

Release, supra note 7, at n.112 and accompanying text. 

162 See sections 407 and 408 of the Dodd-Frank Act, adding Advisers Act sections 203(l) and (m). 

See supra note 5. See also Exemptions Adopting Release, supra note 4, at section II.; section 

204(a) of the Advisers Act and section 204(b)(5), as added by section 404 of the Dodd-Frank Act.
-42- 

amendments to Form ADV that we are adopting today are designed to address the reporting 

aspects of these two exemptions.163

1. Reporting Required

Rule 204-4 requires exempt reporting advisers to file reports with the Commission 

electronically on Form ADV through the IARD using the same process used by registered 

investment advisers.164 An exempt reporting adviser must submit its initial Form ADV within 

60 days of relying on the exemption from registration under either section 203(l) or section 

203(m) of the Advisers Act.165 Each Form ADV is considered filed with the Commission upon 

acceptance by the IARD.166 An exempt reporting adviser unable to file electronically as a result 

of unanticipated technical difficulties may, like a registered adviser, request a temporary 

hardship exemption of up to seven business days after the filing was due.167

 

163 Recordkeeping requirements for exempt reporting advisers will be addressed in a future release. 

See sections 407 and 408 of the Dodd-Frank Act (providing that the Commission shall require 

investment advisers exempt from registration under either section 407 or 408 of the Dodd-Frank 

Act to maintain such records as the Commission determines necessary or appropriate in the public 

interest or for the protection of investors.). 

 Advisers filing the 

164 New rule 204-4. See amended Form ADV: General Instructions 6, 7, 8 and 9 (providing 

guidance about the IARD entitlement process, signing the form, and submitting it for filing). We 

are also adopting technical amendments, as proposed, to Form ADV-NR, to enable exempt 

reporting advisers to appoint the Secretary of the Commission as an agent for service of process 

for certain non-resident advisers. See amended Form ADV-NR; amended Form ADV: General 

Instruction 19. 

165 See amended Form ADV: General Instruction 13. An adviser may not be both registered with us 

and filing as an exempt reporting adviser at the same time. An SEC registered adviser switching 

from being registered to being an exempt reporting adviser must first file a Form ADV-W to 

withdraw its SEC registration before submitting its first report as an exempt reporting adviser. 

We have modified General Instruction 13 from the proposal to reflect IARD system functionality, 

which we continue to develop.

166 New rule 204-4(c). Cf. rule 0-4(a)(2) (“All filings required to be made electronically with the . . . 

[IARD] shall, unless otherwise provided by the rules and regulations in this part, be deemed to 

have been filed with the Commission upon acceptance by the IARD.”). 

167 See new rule 204-4(e) (providing a temporary hardship exemption for an adviser having 

unanticipated technical difficulties that prevent submission of a filing to IARD); amended Form 

ADV-H; amended Form ADV: General Instruction 17. 
-43- 

form must pay a filing fee designed to pay the reasonable costs associated with the filing and 

maintenance of the system.168 We anticipate that filing fees, which the Commission will 

consider separately, will be the same as those for registered investment advisers, which currently 

range from $40 to $225 based on the amount of assets an adviser has under management.169

Several commenters expressed the view that use of Form ADV and the IARD for exempt 

reporting advisers would be efficient, because the system is familiar to many advisers and 

because it would integrate the process of filing with the Commission with any parallel filing the 

adviser may be obligated to make with state securities authorities.

 

170 Commenters agreed with 

our expectation that use of Form ADV and the IARD would facilitate a transition from filing 

reports with us to applying for registration with us.171 Two commenters urged that we create a 

separate reporting system.172

 

168 New rule 204-4(d). 

 One recommended a new, more interactive system; and the other 

suggested a separate filing system to avoid confusion among investors who might mistakenly 

assume that an exempt reporting adviser is registered if its information comes up in an IARD 

169 The current fee schedule applicable to advisers applying for registration may be found on our 

website at http://www.sec.gov/divisions/investment/iard/iardfee.shtml. 

170 The Dodd-Frank Act exempts exempt reporting advisers from registration with the Commission. 

See sections 407 and 408 of the Dodd-Frank Act. It does not, however, exempt these advisers 

from registering or filing reports with state securities regulators. See also amended Form ADV: 

General Instruction 14 (noting that exempt reporting advisers who file reports with the SEC may 

continue to be subject to state registration, reporting, or other obligations). 

171 ABA Committees Letter; comment letter of Better Markets, Inc. (Jan. 24, 2011) (“Better Markets 

Letter”); NRS Letter; NASAA Letter. Form ADV, as amended, permits an adviser to transition 

from filing reports with us to applying for registration under the Act by simply amending its Form 

ADV; the adviser would check the box to indicate it is filing an initial application for registration, 

complete the items it did not have to answer as an exempt reporting adviser, and update the prepopulated items that it already has on file. See amended Form ADV: General Instruction 15 

(providing procedural guidance to advisers that no longer meet the definition of exempt reporting 

adviser). 

172 Merkl Implementing Letter; Seward Letter. See also Shearman Letter (making similar arguments 

regarding the potential for investor confusion, but not advocating use of a different form or 

reporting system). 
-44- 

search. We share these commenters’ general goals of innovation and the avoidance of investor 

confusion as our staff works with FINRA (our IARD contractor) to continue improving the 

IARD.173

2. Information in Reports 

 However, the expense and delay of initiating and developing a new system with 

adequate functionality, which neither commenter addressed, argues against these commenters’ 

recommendations. We are adopting rule 204-4 as proposed. 

We are also amending Form ADV to accommodate its use by exempt reporting advisers. 

First, we are re-titling the form to reflect its dual purpose as both the “Uniform Application for 

Investment Adviser Registration,” as well as the “Report by Exempt Reporting Advisers.” 

Second, we are revising the cover page to require exempt reporting advisers to indicate the type 

of report they are filing.174 Finally, we are amending Item 2 of Part 1A, which today requires 

advisers to indicate their eligibility for SEC registration, to add a new subsection B that requires 

an exempt reporting adviser to identify the exemption(s) on which it is relying to report, rather 

than register, with the Commission.175

 

173 Our staff, for example, recently completed a study mandated by section 919B of the Dodd-Frank 

Act on ways to improve investor access to information about certain financial service providers, 

including data contained in the IARD. See Staff of the Office of Investor Education and 

Advocacy of the U.S. Securities and Exchange Commission, Study and Recommendations on 

Improved Investor Access to Registration Information about Investment Advisers and BrokerDealers, Jan. 2011, available at http://www.sec.gov/news/studies/2011/919bstudy.pdf. 

174 An exempt reporting adviser must indicate whether it is submitting an initial report, an annual 

updating amendment, an other-than-annual amendment, or a final report. We are also adopting 

corresponding changes to General Instruction 2. 

175 An exempt reporting adviser must check that it qualifies for an exemption from registration: (i) 

as an adviser solely to one or more venture capital funds; and/or (ii) because it acts solely as an 

adviser to private funds and has assets under management in the United States of less than $150 

million. See amended Form ADV, Part 1A, Item 2.B, questions 1 and 2. An exempt reporting 

adviser relying on the latter exemption, for private fund advisers, must also indicate the amount 

of private fund assets it manages in Section 2.B. of Schedule D to Form ADV, Part 1A. 

Investment advisers who have their principal office and place of business outside of the United 

States, however, need only include private fund assets that they manage at a place of business in 

the United States. See Exemptions Adopting Release, supra note 4, at section II.B.3. An adviser 
-45- 

Some commenters asserted that it would be inconsistent with these new exemptions to 

require exempt reporting advisers to submit reports to the Commission,176 while others argued 

that we proposed to require too much information.177 Congress, however, gave us broad 

authority to require exempt reporting advisers to file reports as necessary or appropriate in the 

public interest or for the protection of investors.178

We are adopting, as proposed, a requirement that exempt reporting advisers complete the 

following items of Part 1A of Form ADV: Items 1 (Identifying Information), 2.B. (SEC 

Reporting by Exempt Reporting Advisers), 3 (Form of Organization), 6 (Other Business 

Activities), 7 (Financial Industry Affiliations and Private Fund Reporting), 10 (Control Persons), 

and 11 (Disclosure Information).

 In addition, the Dodd-Frank Act neither 

limits the types of information we could require in the reports nor specifies the purpose for which 

we would use the information. 

179 In addition, we are requiring, as proposed, that exempt 

reporting advisers also complete corresponding sections of Schedules A, B, C, and D.180

 

that acts solely as an adviser to private funds but is no longer eligible to check box 2.B.(2) 

because it has assets under management in the United States of $150 million or more may, 

subject to certain conditions, check a separate box to continue filing as an exempt reporting 

adviser during the safe harbor transition period described below. See infra note 

 

Responses to these items will assist us to identify exempt reporting advisers, their owners, and 

their business models. The information we collect will provide us with information as to 

211 and 

accompanying text. See also amended Form ADV, Part 1A, Item 2.B, question 3; Form ADV: 

General Instruction 15. 

176 Comment letter of Avoca Capital Holdings (Dec. 21, 2011) (“Avoca Letter”); AIMA Letter; 

comment letter of AustinVentures (Jan. 21, 2011) (“AV Letter”). 

177 Comment letter of Berkeley Center for Law, Business and the Economy (Jan. 31, 2011) 

(“BCLBE Letter”); Shearman Letter; comment letter of Village Ventures, Inc. (Jan. 24, 2011) 

(“Village Ventures Letter”).

178 See sections 407 and 408 of the Dodd-Frank Act.

179 See amended Form ADV: General Instruction 3. We will continue to monitor whether we should 

also require exempt reporting advisers to complete other items on Form ADV (e.g., Part 2).

180 See id.; Implementing Proposing Release, supra note 7, at section II.B.2. 
-46- 

whether these advisers or their activities might present sufficient concerns to warrant our further 

attention in order to protect their clients, investors, and other market participants.181

Items 1, 3, and 10 elicit basic identification details such as name, address, contact 

information, form of organization, and who controls the adviser. Items 6 and 7.A. provide us 

with details regarding other business activities in which the adviser and its affiliates are engaged, 

which would permit us to identify conflicts that the adviser may have with its clients that may 

suggest significant risks to those clients. Item 11 requires advisers to disclose the disciplinary 

history of the adviser and its employees and to complete a separate schedule containing details of 

each disciplinary event.

 The reports 

will also provide the public with some basic information about these advisers and their 

businesses. 

182 Item 7.B. and Section 7.B. of Schedule D require advisers to private 

funds, which these advisers manage by terms of the exemptions, to disclose information 

regarding each private fund they advise. As discussed in more detail in Section II.C. of this 

Release, we are adopting significant amendments to Section 7.B. of Schedule D that are designed 

to provide us with a comprehensive overview, or census, of private funds.183

 

181 One commenter agreed. See ABA Committees Letter (stating that most of the information 

exempt reporting advisers would have to provide is of a nature that will assist the Commission to 

identify compliance risks posed by exempt reporting advisers and thus such disclosure responds 

to the mandate set forth in the Dodd-Frank Act). 

 Exempt reporting 

advisers’ responses to Item 7.B., and Section 7.B.(1) of Schedule D, in conjunction with 

information provided by registered advisers, will provide us with important data about these 

funds that we would use to identify risks to their investors. 

182 See amended Form ADV, Part 1A, Disclosure Reporting Pages. 

183 For instance, advisers who complete Section 7.B.(1) of Schedule D would have to provide 

identifying information about each private fund, such as its name and domicile, as well as 

information about its service providers and its gross assets. See amended Form ADV, Part 1A, 

Schedule D, Section 7.B.(1). See also infra Section II.C.1. 
-47- 

Several commenters expressed general support for the Commission’s proposed reporting 

requirement.184 One commenter urged us not to require exempt reporting advisers to report 

information about their other business activities in response to Item 6, their related persons in 

response to Item 7.A., their private funds in response to Item 7.B., and their control persons in 

response to Item 10 because, among other reasons, such information “would not add to the 

Commission’s ability to protect the public interest or investors.”185

Some commenters urged that we broaden the scope of information we proposed to 

collect, suggesting among other things that the Commission should require all or some of the 

additional information that registered advisers must submit on Form ADV, including a 

requirement to prepare and deliver a client brochure (Part 2) and brochure supplements.

 We disagree. Without this 

information, the reports would contain little more than basic identifying data, which would be 

inadequate to help us to meaningfully identify significant risks to an exempt reporting adviser’s 

clients, investors, or other market participants. Moreover, to require such limited information to 

be reported would deny investors an opportunity to verify disclosures they receive directly from 

the adviser. 

186

 

184 See, e.g., AFL-CIO Letter; comment letter of Council of Institutional Investors (Jan. 20, 2011) 

(“CII Letter”); NRS Letter; Better Markets Letter; ABA Committees Letter; NASAA Letter.

 We 

have considered our need for this information in light of the exemptions Congress provided in 

the Dodd-Frank Act and the regulatory role we expect to assume with respect to exempt 

reporting advisers. We have not sought to apply most of the prophylactic rules we have adopted 

185 Village Ventures Letter (asserting also that the requirements would be burdensome). We address 

the anticipated costs and burdens associated with these requirements below. See infra Section V.

186 See Better Markets Letter; CII Letter. Part 2 of Form ADV, which requires advisers to prepare a 

narrative, plain English client brochure, contains 18 items including information on the adviser’s 

business practices, conflicts of interest, and background. Part 2 also requires advisers to prepare 

brochure supplements that include information about advisory personnel on whom clients rely for 

investment advice. See also AFL-CIO Letter (suggesting requiring performance reporting). 
-48- 

for registered advisers,187 and we do not anticipate that our staff will conduct compliance 

examinations of these advisers on a regular basis.188 One commenter who urged us to collect a 

broader set of information recommended that we apply additional prophylactic rules to exempt 

reporting advisers, the consequence of which would be to reduce the distinctions between these 

advisers and registered advisers, which those urging us to collect less information argued we 

should avoid.189

3. Public Availability of Reports

 We believe that requiring advisers to complete the items we proposed strikes an 

appropriate balance. As discussed in more detail below, we have revised some of these items in 

response to comments we received.

Several commenters urged that we not make public any information filed by exempt 

reporting advisers.190

 

187 See, e.g., rule 206(4)-2 (the custody rule), which applies to advisers registered or required to be 

registered with the Commission. But see rule 206(4)-5 (the “pay to play” rule) (applied to exempt 

reporting advisers that previously relied on the private adviser exemption and continues to apply 

to exempt reporting advisers that currently rely on exemptions from registration under sections 

203(l) and 203(m) of the Advisers Act). See infra section II.D.1. (discussing amendments we are 

adopting today to the pay to play rule to continue to apply the rule to exempt reporting advisers 

and foreign private advisers). 

 Other commenters, however, supported public disclosure of information 

188 Our staff will conduct cause examinations where there are indications of wrongdoing, e.g., those 

examinations prompted by tips, complaints, and referrals. Under section 204(a) of the Advisers 

Act, however, the Commission has the authority to examine records, unless the adviser is 

“specifically exempted” from the requirement to register pursuant to section 203(b) of the 

Advisers Act. Investment advisers that are exempt from registration in reliance on section 203(l) 

or 203(m) of the Advisers Act are not “specifically exempted” from the requirement to register 

pursuant to section 203(b). 

189 Compare comment letter of Coalition of Private Investment Companies (Jan. 28, 2011) (“CPIC 

Letter”) with AV Letter; AIMA Letter; Shearman Letter; Village Ventures Letter. See Merkl 

Implementing Letter (indicating that our proposal created a meaningful distinction between 

registered advisers and exempt reporting advisers by not subjecting exempt reporting advisers to 

all of Form ADV, to compliance program requirements under rule 206(4)-7, to custody 

requirements under rule 206(4)-2, and to regular examinations, consistent with a primary concern 

of Congress in adopting the Dodd-Frank Act).

190 See AV Letter; AIMA Letter; ABA Committees Letter; Avoca Letter; Katten Foreign Advisers 

Letter; MFA Letter; NRS Letter; comment letter of the National Venture Capital Association 

(Jan. 24, 2011) (“NVCA Letter”); Shearman Letter; Seward Letter. 
-49- 

by these advisers and suggested that such data would be useful, for example, for prospective 

clients who were conducting “due diligence” reviews of advisers.191

Section 210(a) of the Advisers Act requires information contained in reports filed with 

the Commission to be made available to the public, unless we find that public disclosure is 

neither necessary nor appropriate in the public interest or for the protection of investors. 

Commenters did not persuade us that we could make such a finding.

 

192 On the contrary, we 

believe the public reporting requirements we are adopting will provide a level of transparency 

that will help us to identify practices that may harm investors,193

 

191 See AFL-CIO Letter; CII Letter; Better Markets Letter (each lauding the Commission’s initiative 

to create, for the first time, a database of public information on private investment funds). See 

also Merkl Implementing Letter (noting that a potential investor would be better able to perform 

due diligence if the information were made available to the public); CII Letter (arguing that an 

investor could make an informed decision regarding the integrity of a prospective adviser if he or 

she were able to review the disciplinary history of the exempt reporting adviser and its 

employees). 

 will aid investors in conducting 

192 See AV Letter (claiming that the public disclosure of the reports would be “unnecessary and 

intrusive” and would be done “for no apparent reason”); MFA Letter (urging that, absent a 

compelling policy reason for public disclosure, the reports should not be publicly available 

because some of the information is competitively sensitive); NVCA Letter (arguing that making 

public the ownership or control persons of an exempt reporting adviser would cause competition 

for scarce human resources among these advisers and could reveal strategic relationships to 

competitors); NRS Letter (claiming that because investors and prospective investors receive 

voluminous offering documents, due diligence questionnaires, and other materials, limited Form 

ADV Part 1A information would be of little value and limited use); ABA Committees Letter 

(indicating there would be no benefit in members of the general public having access to this 

information because they are not qualified to invest); Katten Foreign Advisers Letter (claiming 

that private fund investors already receive an offering document that should cover the items that 

would be included in the reports). See also Katten Foreign Advisers Letter; NVCA Letter; AIMA 

Letter (each conditioning its support for the scope of the reporting requirement on making the 

reports non-public). 

193 For instance, census data about a private fund’s gatekeepers, including administrators and 

auditors, will be available on Section 7.B.1. of Schedule D and will be verifiable by investors and 

the Commission. Recent enforcement actions suggest that the availability of such information 

could be helpful. See, e.g., SEC v. Grant Ivan Grieve, et al., Litigation Release No. 21402 (Feb. 

2, 2010) (default judgment against hedge fund adviser that was alleged to have fabricated and 

disseminated false financial information for the fund that was “certified” by a sham independent 

back-office administrator and phony accounting firm). 
-50- 

their own due diligence,194 and will deter advisers’ fraud and facilitate earlier discovery of 

potential misconduct.195 For instance, investors will be able to compare Form ADV information 

to the information they have received in offering documents and due diligence to identify 

potential misrepresentations. For these reasons, we believe public availability of these reports is 

in the public interest and will help to protect investors. Suggestions by some that the DoddFrank Act compels us to deny public access to these reports are misplaced.196 In the Dodd-Frank 

Act, Congress sought to protect only certain proprietary and similarly sensitive information 

submitted by advisers about their private funds in reports for the assessment of systemic risk.197 

In light of section 210 of the Act, which presumes reports submitted to us by advisers to be 

publicly available, together with the Freedom of Information Act,198 which generally supports 

disclosure of such documents, we believe at this time that the information should be publicly 

available.

199

 

194 See supra note 191. 

195 See In the Matter of John Hunting Whittier, Investment Advisers Act Release No. 2637 (Aug. 21, 

2007) (settled action against hedge fund manager for, among other things, misrepresenting to 

fund investors that a particular auditor audited certain hedge funds, when in fact it did not).

196 ABA Committees Letter; Avoca Letter; AV Letter; Seward Letter; Shearman Letter.

197 Compare section 404 of the Dodd-Frank Act, codified at Advisers Act section 204(b), with

sections 407 and 408 of the Dodd-Frank Act, codified at Advisers Act sections 203(l) and 

203(m). See also Systemic Risk Reporting Release, supra note 71 (proposing confidential 

reporting by advisers to private funds designed to assist the Financial Stability Oversight Council 

(“FSOC”) in its assessment of systemic risk in the U.S. financial system).

198 5 U.S.C. 552(a). 

199 Information on Form ADV is available to the public through the Investment Adviser Public 

Disclosure System (“IAPD”), which allows the public to access the most recent Form ADV filing 

made by an investment adviser and is available at http://www.adviserinfo.sec.gov. In response to 

commenters’ suggestions we will, however, make it clear to the public viewing reports filed by an 

exempt reporting adviser on IAPD that the adviser is not registered with us. See Shearman 

Letter; Seward Letter (expressing concerns that public access to reports by exempt reporting 

advisers might cause confusion if an unregistered adviser's information comes up in an IARD 

search, an investor's perception may be that the adviser is registered).
-51- 

Some commenters expressed more narrow concerns that certain of the information we 

proposed to require could require them to disclose proprietary or competitively sensitive 

information.200 As discussed below, we have responded to those concerns by revising certain of 

our items in a manner that will affect the information that both registered and exempt reporting 

advisers will provide to us.201

4. Updating Requirements

 

We are also amending rule 204-1 under the Advisers Act, which requires advisers to 

update their Form ADV filings, to require exempt reporting advisers to file updating 

amendments to reports filed on Form ADV.202 As amended, rule 204-1 requires an exempt 

reporting adviser, like a registered adviser, to amend its reports on Form ADV: (i) at least 

annually, within 90 days of the end of the adviser’s fiscal year; and (ii) more frequently, if 

required by the instructions to Form ADV. Similarly, we are amending General Instruction 4 to 

Form ADV to require an exempt reporting adviser, like a registered adviser, to update promptly 

Items 1 (Identification Information), 3 (Form of Organization), and 11 (Disciplinary 

Information) if they become inaccurate in any way, and to update Item 10 (Control Persons) if it 

becomes materially inaccurate.203

Most of the commenters who addressed updating and amendment requirements agreed 

with our approach to update the report annually and to amend it according to the same schedule 

 

 

200 See infra note 238. The NVCA also argued that requiring a venture capital fund adviser to report 

information about the adviser’s control persons, as required by Item 10 of Part 1A of Form ADV, 

could increase competition among these advisers for human resources. While this information 

could result in competitive effects among these advisers, the effects of this item are not unique to 

these advisers, and they may result in benefits.

201 See infra Section II.C.1. 

202 Rule 204-1. We are also amending the title of the rule to be “Amendments to Form ADV,” rather 

than “Amendments to application for registration,” to reflect use of the form by exempt reporting 

advisers.

203 See amended Form ADV: General Instruction 4. 
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as is applicable to registered advisers.204

5. Final Reports

 In order to permit us to receive timely information 

from exempt reporting advisers, we are adopting the rule amendments as proposed. 

 When an adviser ceases to be an exempt reporting adviser, new rule 204-4 requires the 

adviser to file an amendment to its Form ADV to indicate that it is filing a final report.205 Final 

report filings will allow us to distinguish such a filer from one that is failing to meet its filing 

obligations.206 In some cases an exempt reporting adviser will file a final report because it 

ceases to do business as an investment adviser and thus is no longer subject to reporting under 

the Act.207 In other cases an exempt reporting adviser will file a final report in connection with 

becoming registered with the Commission, in which case it will continue to periodically update 

its Form ADV, but as a registered adviser.208

Amended general instruction 15 to Form ADV provides guidance to exempt reporting 

advisers transitioning to becoming registered with the Commission. An exempt reporting 

adviser wishing to register with the Commission can file a single amendment to its Form ADV 

that will serve both as a final “report” as an exempt reporting adviser and an application for 

 

204 NRS Letter; Merkl Implementing Letter; CII Letter; ABA Committees Letter. Some of the 

commenters added that information reported by exempt reporting advisers that is allowed to 

become significantly outdated or inaccurate would not serve the Commission’s or public’s 

interest or protect investors as mandated by the Dodd-Frank Act and could be misleading. ABA 

Committees Letter; Merkl Implementing Letter. But see NVCA Letter (indicating that, because 

venture capital fund investments are long-term and illiquid, there would be little, if any, benefit to 

investors, regulators or the public to update the report more frequently).

205 New rule 204-4(f). 

206 Id. Advisers filing a final report are not required to pay a filing fee. An adviser that failed to file 

a final report would violate rule 204-4(f). 

207 Such an adviser must indicate that it is filing a final report and update Item 1 (Identifying 

Information) of Part 1A of Form ADV. Amended Form ADV: General Instruction 15. 

208 An exempt reporting adviser may be required to become registered with the Commission if, for 

example, it is relying on the exemption provided by section 203(l) of the Act and accepts a client 

that is not a venture capital fund. See amended Form ADV: General Instruction 15; Exemptions 

Adopting Release, supra note 4, at Section II.A. 
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registration under the Advisers Act.209 While an application is pending, but before it is 

approved, an adviser may continue to operate as an exempt reporting adviser in accordance with 

the terms of the relevant exemption.210 In addition, General Instruction 15 provides a safe harbor 

for certain exempt reporting advisers relying on the “private fund adviser” exemption provided 

by rule 203(m)-1. Such an adviser that has complied with all of its reporting obligations as an 

exempt reporting adviser may continue advising private fund clients for up to 90 days after filing 

an annual updating amendment indicating that it has private fund assets of $150 million or more 

before filing its final report and application for registration.211 This transition period is designed 

to accommodate events that may be beyond the adviser’s control, such as an increase in the value 

of the adviser’s assets under management, but it is not available to an adviser that otherwise 

would not qualify for the exemption provided by rule 203(m)-1. The transition period also is not 

available to advisers relying on the “venture capital adviser” exemption in section 203(l) of the 

Act. Advisers seeking to rely on that exemption may not accept a client that is not a venture 

capital fund without first registering under the Adviser Act.212 Commenters who addressed the 

proposal to require a final report endorsed the Commission’s approach.213

C. Form ADV

 

209 See amended Form ADV: General Instruction 15. 

210 See amended Form ADV: General Instruction 15. For example, an adviser transitioning from 

exempt reporting to registered would violate the Advisers Act registration requirement if it 

provides advisory services to a client that is not a private fund before the Commission approves 

its application for registration. 

211 See amended Form ADV: General Instruction 15. This condition reflects the importance of the 

Advisers Act reporting requirements applicable to advisers relying on the exemption provided by 

rule 203(m)-1. See also Exemptions Adopting Release, supra note 4, at n.377. An adviser that 

meets or exceeds $150 million in assets under management in the United States must indicate that 

change by checking the box in Item 2.B.(3) of Form ADV in its annual updating amendment. 

212 See amended Form ADV: General Instruction 15. 

213 ABA Committees Letter; Merkl Implementing Letter. 
-54- 

We are adopting today a number of amendments to Form ADV that will improve our 

ability to oversee investment advisers. Data collected from Form ADV is of critical importance 

to our regulatory program and our ability to protect investors. We use information reported to us 

on Form ADV for a number of purposes, such as to efficiently allocate our examination 

resources based on the risks we discern, or to identify common business activities, from 

information provided by advisers. The information is used to create risk profiles of investment 

advisers and permits our examiners to better prepare for, and more efficiently conduct, their 

examinations. Moreover, the information in Form ADV allows us to better understand the 

investment advisory industry and to evaluate the implications of policy choices we must make in 

administering the Advisers Act. 

As amended, Form ADV requires advisers to provide us with additional information 

about three areas of their operations.214

 

214 In addition, we are making several clarifying or technical amendments in response to comments, 

frequently asked questions we receive, and our experience administering the form. See infra

sections II.C.5. and 7. 

 First, we require advisers to provide additional 

information about private funds they advise. Second, we expand the data advisers provide us 

about their advisory business (including data about the types of clients they have, their 

employees, and their advisory activities), as well as about their business practices that may 

present significant conflicts of interest (such as the use of affiliated brokers, soft dollar 

arrangements, and compensation for client referrals). Third, we require additional information 

about advisers’ non-advisory activities and their financial industry affiliations. Some additional 

changes to the Form (described below) improve our ability to assess compliance risks and also to 
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identify advisers that are subject to the Dodd-Frank Act’s requirements concerning certain 

incentive-based compensation arrangements.215

The commenters that addressed these proposed amendments to Form ADV generally 

supported the amendments,

 

216 although many expressed concerns with or urged changes to the 

proposed private fund reporting requirements contained in Item 7.B. and Section 7.B.(1) of 

Schedule D.217 Two commenters argued that the new information requirements we proposed to 

Part 1A of Form ADV overlap in some respects with the new brochure requirements (Part 2 of 

Form ADV) and should not be adopted.218

 

215 See section 956 of the Dodd-Frank Act.

 We acknowledge some overlap in the information 

required to be reported, but note that overlap may be necessary as the two parts of Form ADV 

serve very different purposes. Part 2 of Form ADV may overlap Part 1 to ensure that investors 

are fully informed about a particular practice or conflict, while the information we collect in Part 

1 permits us to collect data about that practice or conflict for regulatory purposes. 

216 See, e.g., NASAA Letter; IAA General Letter (stating that enhanced disclosure in Part 1 of Form 

ADV will improve the Commission’s ability to gather data about firms and to conduct 

appropriate inquiries, inspections, and other activities based on that data, and noting that certain 

additional information will allow the Commission to focus its examination and enforcement 

resources on those advisers that appear to present greater compliance risks); CPIC Letter (noting 

that additional information that the revised form will collect should be of assistance to the 

Commission in its efforts to identify fund advisers, to verify the existence and location of assets 

and to carry out general market surveillance, and it should also be of use to investors as they 

conduct due diligence and research the background of fund managers). 

217 See, e.g., ABA Committees Letter; AV Letter; AIMA Letter; comment letter of CompliGlobe 

Ltd. (Jan. 24, 2011) (“CompliGlobe Letter”); comment letter of Debevoise & Plimpton LLP (Jan. 

24, 2011) (“Debevoise General Letter”); comment letter of DLA Piper LLP (US) (on behalf of 

Emerging Growth and Venture Capital Group) (Jan. 24, 2011)) (“DLA Piper VC Letter”); 

comment letter of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (Jan. 24, 

2011) (“Gunderson Letter”); IAA General Letter; Katten Foreign Advisers Letter; MFA Letter; 

NRS Letter; NVCA Letter; O’Melveny Letter; Seward Letter; Shearman Letter.

218 See NRS Letter (asserting that parts of the proposed amendments to Items 5, 6, 7, 8, and 10 would 

result in duplicative reporting); Seward Letter.
-56- 

We are adopting amendments to the form, with several substantive and technical or 

clarifying revisions that respond to comments we received. 

1. Private Fund Reporting: Item 7.B. 

We are adopting amendments to Item 7.B. and Schedule D of Form ADV that expand the 

information advisers must report to us about the private funds they advise. This information will 

provide us with a more complete understanding of private funds and permit us to enhance our 

assessment of advisers for purposes of targeting our examinations. The information will also 

improve our ability to identify practices that could harm investors and help expose and deter 

fraud and other misconduct.219

Item 7.B. requires an adviser to complete a separate Section 7.B. of Schedule D for each 

private fund that it advises. Part A of Section 7.B.(1) requires an adviser to provide basic 

information regarding the size and organizational, operational, and investment characteristics of 

each fund. Part B requires information about five types of private fund service providers that 

perform important roles as “gatekeepers.” This information will be publicly available, as is other 

information reported on Form ADV. We are adopting these amendments with several changes, 

discussed below, that respond to comments we received. 

 Both registered and exempt reporting advisers are required to 

complete Item 7.B. and the related portions of Schedule D.

Item 7.B. has required an adviser to complete section 7.B. of Schedule D for each 

“investment-related” limited partnership or limited liability company that it or a related person 

advises.220

 

219 See Implementing Proposing Release, supra note 

 We are modifying, as proposed, the scope of Item 7.B. by requiring an adviser to 

7, at nn.148-150 and accompanying text. 

220 Section 7.B. of Schedule D previously required an adviser to a private fund that is a limited 

partnership or limited liability company to provide only the following information: (i) the name 

of the fund; (ii) the name of the general partner or manager; (iii) whether the adviser’s clients are 

solicited to invest in the fund; (iv) the approximate percentage of the adviser’s clients that have 

invested in the fund; (v) the minimum investment commitment; and (vi) the current value of the 
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complete a separate Schedule D for each “private fund” that the adviser (but not a related person) 

manages. We use the new term “private fund,” defined in section 202(a)(29) of the Act,221 with 

the result that advisers must report on pooled investment vehicles regardless of how they are 

organized. In addition, as proposed, we are narrowing the reporting requirement so that advisers 

are no longer required to report on the funds of their related persons, which in most cases are 

now required to be reported to us by a related person that is either registered under the Act or is 

an exempt reporting adviser.222

We are also adopting several measures that will help to avoid multiple reporting for each 

private fund and minimize the overall burden of reporting private fund information. First, only 

one adviser must report the full scope of information for each private fund, even where there are 

other advisers to the same fund (e.g., subadvisers).223

 

total assets of the fund. As we discussed in the Implementing Proposing Release, this 

information provided us with little data about the operations of the many large hedge funds and 

other private funds managed by a growing number of advisers registered with the Commission. 

 Second, an adviser managing a masterfeeder arrangement may submit a single Section 7.B.(1) for the master fund and all of the feeder 

221 This section defines a “private fund” as an issuer that would be an investment company, as 

defined in section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a–3), but for section 

3(c)(1) or 3(c)(7) of that Act.

222 The Dodd-Frank Act repealed the private adviser exemption effective July 21, 2011, so many 

private fund advisers that were previously unregistered will now be required to register under the 

Advisers Act. See supra at sections I. and II.B. 

223 If an investment adviser completes section 7.B.(1) of Schedule D for a private fund, other 

advisers to that fund do not have to complete section 7.B.(1) for that private fund. See amended 

Form ADV, Part 1A, Note to Item 7.B.; Section 7.B.(2) of Schedule D. Section 7.B.(1) of 

Schedule D requires advisers to provide a private fund identification number, which is a unique 

identification number for each fund. Advisers must obtain an identification number for each 

private fund by logging onto the IARD website and using the private fund identification number 

generator. Once an adviser obtains a private fund identification number for a private fund, all 

advisers to the fund must use that same number on Sections 7.B.(1) and 7.B.(2) for that fund and 

continue using that same number whenever they amend either section of Schedule D. See

amended Form ADV: Instructions for Part 1A, instr. 6.b. 
-58- 

funds if these funds would otherwise report substantially identical information.

224 Finally, an 

adviser with a principal office and place of business outside the United States is not required to 

complete Schedule D for any private fund that, during the adviser’s last fiscal year, was not a 

United States person, was not offered in the United States and was not beneficially owned by any 

United States person.

225

An adviser must file a separate Section 7.B.(1) (Parts A and B) for each private fund it 

manages.

 Commenters did not address any of the issues raised by these changes 

to Item 7.B., which we are adopting as proposed. 

226 Part A of Section 7.B.(1) requires an adviser to provide the name of the fund and 

the state or country in which the fund is organized and to identify other persons involved in the 

management of the fund.227 Part A also requires the adviser to report whether the fund is part of 

a master-feeder arrangement228 or is a fund of funds229

 

224 See amended Form ADV: Instructions for Part 1A, instr. 6.d. The feeder funds need not have a 

direct relationship with the master fund’s prime broker or custodian to rely on this instruction. In 

a master-feeder arrangement, one or more funds (“feeder funds”) invest all or substantially all of 

their assets in a single fund (“master fund”).

 and to provide information about the 

225 See amended Form ADV: Instructions for Part 1A, instr. 6.a. This instruction is only necessary 

for those funds that fall within the definition of “private fund.” A non-U.S. fund that has never 

used U.S. jurisdictional means in the offering of the securities it issues would not be a private 

fund. See Exemptions Adopting Release, supra note 4, at n.285 and accompanying text. We 

have modified this instruction from the proposal to more closely follow the requirements of 

Regulation S; the instruction now looks to whether the offering was made “in the United States” 

rather than “to... any United States person.” See also amended Form ADV: Glossary. “United 

States person” is defined by reference to the definition in rule 203(m)-1, which tracks the 

definition of a “U.S. person” under Regulation S, except that it contains a special rule for 

discretionary accounts maintained for the benefit of United States persons. See Exemptions 

Adopting Release, supra note 4, at section II.B.4. 

226 See amended Form ADV, Part 1A, Item 7.B. 

227 An adviser is required to report the names of the fund’s general partner, trustee and directors and 

persons occupying similar positions as well as the name and SEC file number of any other 

advisers to the fund. See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, 

questions 1-3 and 17-18.

228 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, questions 6 and 7. As 

discussed above, an adviser managing a master-feeder arrangement may submit a single Schedule 

D for the relevant funds if the information provided would otherwise be substantially identical. 

See supra note 224 and accompanying text. We have added a note to question 6 to clarify that an 
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regulatory status of the fund, such as the exclusion from the Investment Company Act on which 

the fund relies, whether the fund is subject to the jurisdiction of a foreign regulatory authority, 

and whether the fund relies on an exemption from registration under the Securities Act of 1933 

(the “Securities Act”) with respect to its securities.230 An adviser must also identify, within 

seven broad categories, the type of investment strategy the fund employs,231 report whether the 

fund invests in securities of registered investment companies,232 and provide the gross asset 

value of the fund.233 Finally, an adviser must provide limited information regarding investors in 

the fund, including: (i) the minimum amount that investors are required to invest;234

 

adviser must respond to that question regardless of whether it is filing a single Schedule D, 

Section 7.B.(1) for the master-feeder arrangement or reporting on the funds separately. 

(ii) the 

229 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, question 8. Clause (b) of 

this question also requires the adviser to indicate whether the fund invests in funds managed by 

the adviser or its related persons.

230 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, questions 4-5 and 21-22. 

Two commenters asserted that requiring advisers to report whether the fund relies on an 

exemption from registration under the Securities Act with respect to its securities is unnecessarily 

duplicative because the information is already reported on Form D. See Debevoise General 

Letter; NYSBA Committee Letter. We are not persuaded that providing this information will 

significantly increase the reporting burden, and the information will assist both the Commission 

and the public in quickly and accurately locating additional relevant information regarding the 

fund. 

231 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, question 10. The categories, 

which are defined in the Instructions for Part 1A, include: (i) hedge fund; (ii) liquidity fund; 

(iii) private equity fund; (iv) real estate fund; (v) securitized asset fund; (vi) venture capital fund; 

and (vii) other private fund. See infra note 248 and accompanying text for a discussion of 

changes to these definitions.

232 This information relates to compliance with the provision of the Investment Company Act that 

limits the ability of one investment company to invest in shares of another. See section 12(d)(1) 

of the Investment Company Act (15 U.S.C. 80a-12(d)(1)) and amended Form ADV, Part 1A, 

Section 7.B.(1)A. of Schedule D, question 9. We have modified this question from the proposal 

to cross-reference Instruction 6.e. of the Instructions for Part 1A, which excludes from this 

question investments in money market funds made in reliance on rule 12d1-1 under the 

Investment Company Act because that rule exempts (subject to the conditions described in the 

rule) investments in money market funds from the limitations contained in section 12(d)(1) of the 

Investment Company Act. 17 CFR 270.12d1-1. 

233 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, question 11. 

234 See amended Form ADV, Part 1A, Section 7.B.(1)A. of Schedule D, question 12. We made one 
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approximate number of beneficial owners of the fund and the approximate percentage of the fund 

beneficially owned by the adviser and its related persons, funds of funds and non-United States 

persons;235 and (iii) the extent to which clients of the adviser are solicited to invest, and have 

invested, in the fund.236 We are adopting Part A with several changes discussed below.237

Several commenters argued that certain information we proposed to include in Part A is 

competitively sensitive or proprietary and, as a result, should not be disclosed publicly.238 These 

commenters focused in particular on three of the proposed questions in Part A. The first would 

have required an adviser to report both the gross and net asset values of each private fund it 

manages.239 Commenters asserted that public disclosure of this information could reveal a 

fund’s leverage, which may be competitively sensitive strategy information.240

 

change in this item in response to a comment, which pointed out that a private fund manager may 

have discretion to lower the minimum amount, meaning that the minimum investment may in 

practice be different from the amount set out in the organizational documents of the fund. IAA 

General Letter. We have added an instruction clarifying that the amount reported should be the 

amount that is routinely required of investors who are not related persons of the adviser. 

 In addition, 

commenters expressed concerns regarding the competitive effects of our proposal to require that 

235 Id. questions 13-16. For purposes of these questions, beneficial owners are persons who would 

be counted as beneficial owners under section 3(c)(1) of the Investment Company Act or who 

would be included in determining whether the owners of the fund are qualified purchasers under 

section 3(c)(7) of that Act. (15 U.S.C. 80a-3(c)(1) or (7)). We added the word “approximate” to 

question 13 to make this question more consistent with questions 14-16 and because we 

understand based on comments received that, in some cases, the number of beneficial owners 

may change frequently, making a precise number more difficult to provide and less meaningful. 

See IAA General Letter.

236 Id. questions 19-20. This information helps to identify where a fund manager may have conflicts 

of interest with fund investors of the sort that implicate the adviser’s fiduciary obligations to the 

fund and, in some cases, create risks for the fund investors. 

237 See also infra notes 264 through 279 and accompanying text for a general discussion of 

comments on Section 7.B.(1). Some of these comments relate to all or portions of the proposed 

reporting requirements in Part A.

238 See IAA General Letter; MFA Letter; NVCA Letter; NYSBA Committee Letter; O’Melveny 

Letter.

239 See the Implementing Proposing Release for the as proposed version of Form ADV, Part 1A, 

Section 7.B.(1)A. of Schedule D, questions 11(a) and 11(b). 

240 See, e.g., MFA Letter. See also NYSBA Committee Letter.
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advisers report the assets and liabilities of each fund broken down by class and categorization in 

the fair value hierarchy established under GAAP.241 Commenters explained that this disclosure 

could harm an adviser’s competitiveness and could, for instance, be used to ascertain the values 

of private companies held by venture capital funds that make only one or a few investments, 

potentially harming the private company and the interests of the private fund and its investors.242 

Finally, our proposal would have required that advisers report the approximate percentage of 

each fund beneficially owned by certain types of investors.243 Commenters argued that the 

public disclosure of these data could reveal potentially sensitive information and, in particular, 

that they could be used to reverse engineer investor identities where a fund is owned by a few 

investors and that it could serve to deter certain institutional clients from investing in private 

funds.244 We are persuaded at this time that, with respect to these three questions, the benefit of 

public disclosure would not outweigh the potential competitive harm. Therefore, we are not 

adopting the amendments that would have required an adviser: (i) to disclose each private fund’s 

net assets;245

 

241 See the Implementing Proposing Release for the as proposed version of Form ADV, Part 1A, 

Section 7.B.(1)A. of Schedule D, question 12. See also FASB ASC 820-10-50-2b. 

(ii) to report private fund assets and liabilities by class and categorization in the fair 

242 See MFA Letter; NVCA Letter; O’Melveny Letter.

243 See the Implementing Proposing Release for the as proposed version of Form ADV, Part 1A, 

Section 7.B.(1)A. of Schedule D, question 17. The investor types included individuals, brokerdealers, insurance companies, registered investment companies, private funds, non-profits, 

pension funds, banks and thrift institutions, and state and municipal government entities. 

244 IAA General Letter. See also MFA Letter.

245 We are, however, adopting question 11(a), concerning gross assets, as proposed. This question 

retains the requirement, included in Form ADV prior to today’s amendments, that advisers report 

the total (or gross) assets of their private funds on Section 7.B. of Schedule D. Net asset values of 

individual funds may be important to our investor protection mission and to FSOC’s systemic 

risk monitoring activities. See Systemic Risk Reporting Release, supra note 71 (proposing nonpublic reporting of gross and net asset values for private funds managed by registered investment 

advisers). 
-62- 

value hierarchy established under GAAP;246 and (iii) to specify the percentage of each fund 

owned by particular types of beneficial owners.247

As noted above, Part A of Section 7.B.(1) requires an adviser to classify each of its 

private funds by strategy, using definitions that we proposed in the instructions to Form ADV.

 

248 

In the Systemic Risk Reporting Release, we also proposed to use these definitions for purposes 

of Form PF.249 Although we received no comments on these definitions in this rulemaking, we 

received several comments on the same definitions in response to Form PF.

250

 The first of the changes we are making clarifies the definitions to address concerns that 

a securitized asset fund may be classified as a hedge fund because of its borrowings.

 We have 

considered these comments in the context of this rulemaking and have determined to make 

several changes. We will also consider these comments in the context of the Form PF release.

251

 

246 The fair value breakdown for individual funds may be important to our investor protection 

mission and to FSOC’s systemic risk monitoring activities, and we will consider whether to adopt 

it as part of our Form PF proposal. See Systemic Risk Reporting Release, supra note 

 We 

71. Some 

commenters also expressed concern with respect to the burden of reporting this information. See, 

e.g., ABA Committees Letter; AIMA Letter; Dechert General Letter; DLA Piper VC Letter; IAA 

General Letter; Katten Foreign Advisers Letter; Merkl Implementing Letter; NVCA Letter. We 

will consider these comments in connection with our consideration of other comments on 

proposed Form PF.

247 Beneficial ownership percentages of funds may be important to our investor protection mission 

and to FSOC’s systemic risk monitoring activities, and we will consider whether to adopt it as 

part of our Form PF proposal. See Systemic Risk Reporting Release, supra note 71. Some 

commenters also expressed concern with respect to the burden of reporting this information. See, 

e.g., Debevoise General Letter; IAA General Letter; Shearman Letter. We will consider these 

comments in connection with our consideration of other comments on proposed Form PF.

248 The definitions appear in Instruction 6 of the instructions to Part 1A of Form ADV. See supra at 

note 231 and accompanying text. 

249 See Systemic Risk Reporting Release, supra note 71, at section II.B.1. If adopted, registered 

advisers would use Form PF to report information about the private funds they manage for use by 

FSOC in its assessment of systemic risk in the U.S. financial system.

250 These comments were submitted in response to the Systemic Risk Reporting Release, supra

note 71, and are available on the Commission’s website at: http://www.sec.gov/comments/s7-05-

11/s70511.shtml. 

251 See Comment letter of TCW Group, Inc. (Apr. 12, 2011) (“TCW Systemic Risk Reporting 
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believe that the quality and usefulness of the data reported depends in part on accurately 

grouping funds and that securitized asset funds should not be categorized as hedge funds based 

on their issuance of debt. To clarify the definitions, we have excluded securitized asset funds 

from the definition of “hedge fund” and modified “securitized asset fund” so that it is no longer 

defined by reference to “hedge fund.” 

Second, we have modified clause (a) of the “hedge fund” definition, which classifies 

funds based on whether performance fees or allocations are calculated by taking into account 

unrealized gains. One commenter pointed out that even funds that do not allow for the payment 

of such fees or allocations, such as private equity funds, may be required to accrue or allocate 

these amounts in their financial statements to comply with applicable accounting principles.252

Third, we have addressed another commenter’s concern that clause (a) could 

inadvertently capture certain private equity funds because, although these funds typically 

calculate currently payable performance fees and allocations based on realized amounts, they 

will sometimes reduce these fees and allocations by taking into account “unrealized losses net of 

unrealized gains in the portfolio.”

 

We did not intend for funds that accrue or allocate these fees or allocations solely for financial 

reporting purposes to be classified as hedge funds, so we have clarified that clause (a) relates 

only to fees or allocations that may be paid to an investment adviser (or its related persons). 

253

 

Letter”).

 We agree that funds should not be classified as hedge funds 

based solely on this practice and have clarified that clause (a) would not include performance 

fees or allocations the calculation of which may take into account unrealized gains solely for the 

purpose of reducing such fees or allocations to reflect net unrealized losses. 

252 See TCW Systemic Risk Reporting Letter.

253 See comment letter of the Private Equity Growth Capital Council (Apr. 12, 2011) (“PEGCC 

Systemic Risk Reporting Letter”).
-64- 

Finally, several commenters asserted that clause (c) of the “hedge fund” definition, which 

looks to whether a fund may engage in short selling, should include an exception for a de 

minimis amount of short selling or exclude short selling intended to hedge the fund’s 

exposures.254 We continue to believe that short selling is a potentially important distinguishing 

feature of hedge funds, many of which may, as the name suggests, use short selling to hedge or 

manage risk of various types. We are persuaded, however, that many funds pursuing traditional 

investment strategies use short positions to hedge foreign exchange risk and to manage the 

duration of interest rate exposure, and we are concerned that including funds within the 

definition of “hedge fund” solely because they use these particular techniques would dilute the 

meaningfulness of the category. Therefore, we have modified clause (c) to provide an exception 

for short selling that hedges currency exposure or manages duration.255

 

254 See comment letter of the Investment Adviser Association (Apr. 12, 2011) (“IAA Systemic Risk 

Reporting Letter”); PEGCC Systemic Risk Reporting Letter; Comment letter of Securities 

Industry and Financial Markets Association (Apr. 12, 2011) (“SIFMA Systemic Risk Reporting 

Letter”); TCW Systemic Risk Reporting Letter.

 We expect that the 

255 We have also made a change to clause (c) to clarify that this clause includes traditional short sales 

and any transaction resulting in a short exposure to a security or other asset (such as using a 

derivative instrument to take a short position). The purpose of this definition is to appropriately 

categorize funds that engage in certain types of market activity, and whether the definition applies 

should not depend on the form in which the fund engages in that activity. In addition, we note 

that several commenters expressed concern that clauses (b) and (c) of the “hedge fund” definition 

are too broad because many funds have the capacity to borrow or incur derivative exposures in 

excess of the specified amounts or to engage in short selling but do not in fact engage, or intend 

to engage, in these practices. See, e.g., comment letter of the Alternative Investment 

Management Association (Apr. 12, 2011); IAA Systemic Risk Reporting Letter; PEGCC 

Systemic Risk Reporting Letter; SIFMA Systemic Risk Reporting Letter; TCW Systemic Risk 

Reporting Letter. These commenters generally argued that clauses (b) and (c) should focus on 

actual or contemplated use of these practices rather than potential use. We have not made 

changes to the “hedge fund” definition in response to these comments because we continue to 

believe that clauses (b) and (c) properly focus on a fund’s ability to engage in these practices. 

Even a fund for which leverage or short selling is an important part of its strategy may not engage 

in that practice during every reporting period. We would, however, not regard a private fund to 

be a “hedge fund” solely because its organizational documents fail to prohibit the fund from 

borrowing or incurring derivative exposures in excess of the specified amounts or from engaging 

in short selling so long as the fund in fact does not engage in these practices (other than, in the 

case of clause (c), short selling for the purpose of hedging currency exposure or managing 
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changes to the private fund definitions discussed above will provide for a more accurate 

classification of private funds and reduce the number of funds categorized as hedge funds. 

Part B of Section 7.B.(1), as amended, requires advisers to report information concerning 

five types of service providers that generally perform important roles as “gatekeepers” for 

private funds — auditors, prime brokers, custodians, administrators, and marketers.256 An 

adviser must identify each of these service providers, report their locations, and indicate which of 

them, if any, are related persons of the adviser.257 In addition, for certain types of service 

providers, an adviser would report information intended to help us and investors understand the 

nature of the services provided. For instance, with respect to each prime broker, an adviser must 

indicate whether the prime broker has custody of fund assets.258

We are adopting Part B with minor changes from the Implementing Proposing Release 

that are designed to clarify instructions. Where we ask for the percentage of the fund’s assets 

valued by a third party, we have revised the question and instructions to clarify that a person 

should be viewed as valuing an asset for this purpose only if that person carried out the valuation 

procedure for that asset (if any) and that person’s determination as to value was used for 

purposes of subscriptions, redemptions, distributions and fee calculations.

 

259

 

duration) and a reasonable investor would understand, based on the fund’s offering documents, 

that the fund will not engage in these practices.

 We have decided 

not to require advisers to report the name and location of the third parties performing these 

valuations because we recognize, as commenters pointed out, that identifying the specific person 

256 See amended Form ADV, Part 1A, Section 7.B.(1)B. of Schedule D. 

257 Id. questions 23-28. 

258 Id. question 24(e). See also id. questions 23(a), 23(g), 23(h), 26(e), 26(f), 28(f), and 28(g). 

259 Id. question 27. We are making this change in response to commenter requests for clarification 

regarding “what constitutes assets ‘valued’ by a third-party administrator.” IAA General Letter; 

see also ABA Committees Letter.
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carrying out the valuation could be difficult where two or more third parties are involved (such 

as where an unaffiliated administrator obtains a quote from an electronic pricing service).260 In 

addition, we are modifying question 23, which requires information about the relevant private 

fund’s auditing firm, so that advisers must indicate whether the fund’s auditor issued an 

unqualified opinion on the fund’s financial statements.261 By requiring this information in 

question 23, we are able to relieve advisers from the burden of reporting similar information with 

respect to private funds in Section 9.C. of Schedule D.262 Few commenters specifically 

addressed the proposed reporting requirements in Part B.263

Many commenters who addressed the private fund reporting requirements did not 

comment on specific items but provided comments more generally on the proposals. Several 

expressed strong support for the proposal as a whole,264

 

260 See IAA General Letter and ABA Committees Letter, each discussing the difficulty of identifying 

who is “valuing” an asset. See the Implementing Proposing Release for the as proposed version 

of Form ADV, Part 1A, Section 7.B.(1)B. of Schedule D, question 28(f)(2) and (3).

 and some agreed with our assessment 

that the new information will allow us to identify harmful practices, to improve risk assessment, 

261 See amended Form ADV, Part 1A, Section 7.B.(1)B. of Schedule D, question 23(h). 

262 See amended Form ADV, Part 1A, Item 9.C., which provides that “[i]f you checked Item 9.C.(2), 

you do not have to list auditor information in Section 9.C. of Schedule D if you already provided 

this information with respect to the private funds you advise in Section 7.B.(1) of Schedule D.” 

An adviser must still complete Section 9.C. of Schedule D with respect to clients other than 

private funds to the extent required by the instructions to Item 9.C. 

263 See, e.g., Debevoise General Letter (contending that the service provider information “goes 

beyond what is necessary” because it requests “both the legal name of the custodian as well as 

the custodian’s primary business name” (original emphasis)); Shearman Letter (arguing that a 

“fund’s investors will generally already receive [information identifying the fund’s service 

providers] and it generally has little public interest”). With respect to the comment in the 

Debevoise General Letter, we are not persuaded that providing both a legal name and business 

name will significantly increase the reporting burden, and the information will assist both the 

Commission and the public in quickly and accurately identifying the relevant custodian. With 

respect to the comment in the Shearman Letter, see the discussion accompanying note 272 below 

regarding the value of public disclosure of Section 7.B.(1) information generally.

264 See, e.g., AFL-CIO Letter; AFR Letter; Better Markets Letter; CII Letter; CPIC Letter; comment 

letter of U.S. Senator Carl Levin (“Sen. Levin Letter”). 
-67- 

and to more efficiently target examinations.265 A few recommended that we expand the 

requirements to include reporting of performance information.266 Many commenters offered 

more measured support, generally agreeing with the Commission’s proposal but expressing 

reservations about the public availability of the information or concerns about the difficulty of 

responding to specific reporting items.267 Often citing these same concerns, some commenters 

disagreed more generally with the Commission’s proposal.268

Critics of the proposal most frequently focused on public disclosure of the information 

required by Section 7.B., arguing that all or part of the required private fund information is 

competitively sensitive or proprietary.

 

269

 

265 See, e.g., CII Letter; CPIC Letter; NASAA Letter; Sen. Levin Letter (also asserting that the data 

would assist FSOC in monitoring systemic risk).

 As discussed above, we have made several changes to 

Part A of Section 7.B.(1) to address some of these concerns. However, we continue to believe 

266 See AFL-CIO Letter and AFR Letter, each favoring public disclosure of 1-, 5- and 10-year 

performance numbers. We note that performance data may be important to our investor 

protection mission and to FSOC’s systemic risk monitoring activities, and we will consider these 

comments in connection with our consideration of other comments on proposed Form PF. See

Systemic Risk Reporting Release, supra note 71. 

267 See, e.g., IAA General Letter (supporting the “increased oversight of private funds and increased 

information gathering” but arguing that “the Commission should limit the public availability of 

private fund information provided on Part 1 of Form ADV.”); MFA Letter (“MFA strongly 

supports private fund managers reporting to the Commission information about their businesses 

or the funds they manage. We believe, however, that the Commission should carefully consider 

whether the additional step of publicly disclosing information it collects would enhance its 

oversight capabilities, and whether any such benefits would outweigh the potentially significant 

costs to managers in sharing sensitive business information with market participants.”); Dechert 

General Letter (stating that they “generally agree with the information the Revised Form ADV 

would be soliciting with respect to private funds managed by registered or exempt reporting 

advisers” but expressing reservations regarding the requirement to report private fund assets and 

liabilities by class and categorization in the fair value hierarchy established under GAAP). See 

also DLA Piper VC Letter; Merkl Implementing Letter; NVCA Letter. 

268 See, e.g., AIMA Letter; AV Letter; CompliGlobe Letter; Debevoise General Letter; Katten 

Foreign Advisers Letter; NRS Letter; NYSBA Committee Letter; Seward Letter; Shearman 

Letter; AV Letter.

269 See, e.g., ABA Committees Letter; AIMA Letter; AV Letter; CompliGlobe Letter; Debevoise 

Letter; DLA Piper VC Letter; Gunderson Letter; IAA General Letter; Katten Foreign Advisers 

Letter; MFA Letter; NRS Letter; NVCA Letter; NYSBA Committee Letter; O’Melveny Letter; 

Seward Letter; Shearman Letter.
-68- 

that, as a general matter, the information we collect in response to Item 7.B. is important for 

several reasons, including to inform prospective clients and other investors.270 Moreover, and as 

we discussed in the Implementing Proposing Release, the public availability of this information 

will serve as a check on fund managers, helping to deter fraud and other misconduct.271 We are 

not persuaded that public disclosure is unnecessary simply because, as some commenters 

asserted, investors in these pooled investment vehicles meet certain sophistication standards or 

may otherwise receive similar information from advisers.272 To the contrary, it is precisely the 

ability of these investors to compare Form ADV information to the information they have 

received in offering documents and due diligence that makes public disclosure valuable. We 

also believe that public disclosure could reduce the likelihood of advisers making false 

representations regarding fund service providers, such as administrators and auditors, who could 

uncover false representations by reviewing the information that advisers report to us and 

comparing it to their own client lists.

273

 

270 Several commenters agreed. See, e.g., AFL-CIO Letter (“This information will assist investors as 

they perform due diligence before making investment decisions...”); AFR Letter (“making clear 

and uniform information on private investment funds available to the public will make it easier 

for investors to perform due diligence...”); CII Letter; CPIC Letter (“The additional information 

that the revised Form will collect... should also be of use to investors as they conduct due 

diligence and research the background of fund managers.”).

 In addition, as discussed above, the Advisers Act 

requires that information filed in a report with the Commission be made available to the public 

unless the Commission finds that public disclosure is neither necessary nor appropriate in the 

271 See Implementing Proposing Release, supra note 7, at nn.150 and 175 and accompanying text. 

See also CII Letter (agreeing that “the public availability of such basic information would aid 

investors in their due diligence efforts and help investors and other industry participants protect 

against fraud”).

272 See, e.g., ABA Committees Letter; AV Letter; NRS Letter; NYSBA Committee Letter; Shearman 

Letter.

273 See, e.g., In the Matter of John Hunting Whittier, Investment Advisers Act Release No. 2637 

(Aug. 21, 2007) (settled action against hedge fund manager for, among other things, 

misrepresenting to fund investors that a particular auditor audited certain hedge funds, when in 

fact it did not). 
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public interest or for the protection of investors.274

Commenters expressing disagreement with all or parts of our proposal also pointed to 

what they viewed as an excessive reporting burden, particularly where valuation or ownership 

information would be required.

 We are not convinced that withholding the 

private fund information reported on Form ADV is in the public interest. Therefore, as 

proposed, it will be available to the public. 

275 As discussed above, we are adopting Part A of 

Section 7.B.(1) with several changes that reduce the amount of information required in respect of 

private funds. We are not convinced that the burden associated with Item 7.B. and Schedule D 

will be excessive, in part because commenters confirmed that much of the required information 

is readily available to private fund advisers.276 These commenters also acknowledged that the 

required information is similar to, and at times less extensive than, the information that investors 

in hedge funds and other private funds commonly receive in response to due diligence 

questionnaires or in offering documents.277

 

274 Advisers Act section 210(a). See supra section II.B.3. for discussion of public availability of 

exempt reporting adviser filings. 

 Moreover, responses to many of the items are 

unlikely to change from year to year. 

275 See, e.g., AIMA Letter; AV Letter; BCLBE Letter; Debevoise General Letter; comment letter of 

Dechert LLP (on behalf of foreign asset manager) (Jan. 24, 2011) (“Dechert Foreign Adviser 

Letter”); Gunderson Letter; Katten Foreign Advisers Letter; NRS Letter; Seward Letter; 

Shearman Letter; Village Ventures Letter.

276 See, e.g., ABA Committees Letter (“We expect that most ERAs will already have most of the 

information requested by Form ADV Part 1 readily available.”); Katten Foreign Advisers Letter 

(“Virtually all of the requested information would already have been provided to investors in the 

fund through an offering document or follow up status reports.”); NRS Letter (arguing that the 

expanded private fund disclosures on Schedule D would “replicate the due diligence 

questionnaire information....”). 

277 See, e.g., ABA Committees Letter; NRS Letter. See also AIMA’s Illustrative Questionnaire For 

Due Diligence of Hedge Fund Managers, available at (registration required) 

http://www.aima.org/en/knowledge_centre/index.cfm. 
-70- 

Finally, a few commenters expressed concern that an adviser’s required public disclosure 

on Section 7.B.(1) of Schedule D could call into question a private fund’s reliance on the nonpublic offering exemption in the Securities Act.278 We believe public disclosure of the 

information required by Section 7.B.(1) of Schedule D through IAPD would not, in and of itself, 

jeopardize the fund’s reliance on that exemption (or the safe harbor for offshore offerings 

provided by Regulation S under the Securities Act).279

2. Advisory Business Information: Employees, Clients and Advisory 

Activities: Item 5

Item 5 of Part 1A requires a registered adviser to provide basic information regarding the 

business of the adviser that allows us to identify the scope of the adviser’s business, the types of 

services it provides, and the types of clients to whom it provides those services. The item also 

requires information from the adviser about the number of its employees, the amount of assets it 

manages, and the number and types of its clients. 

We are adopting the amendments that we proposed to Item 5.B., which require an adviser 

to indicate how many of its employees are registered as investment adviser representatives or are 

licensed insurance agents.280

 

278 See IAA General Letter; MFA Letter. The non-public offering exemption is found in 

Section 4(2) of the Securities Act. Offers and sale of securities by an issuer that satisfy the 

conditions of Rule 506 of Regulation D (17 CFR 230.501 et seq.) are deemed to be non-public 

within the meaning of Section 4(2).

 An adviser must also provide a single numerical approximation 

(instead of a range) in response to these questions as well as to the existing questions that ask 

about employees that perform investment advisory functions or are registered representatives of 

279 We have previously taken a similar position with respect to mandatory reporting in Part 2 of 

Form ADV. See Part 2 Release, supra note 67, at n. 276 and accompanying text. Regulation S is 

codified at 17 CFR 230.901 et seq. 

280 Amended Form ADV, Part 1A, Items 5.B.(1) - (5). 
-71- 

a broker-dealer, and firms that solicit advisory clients.281

We are adopting amendments to Items 5.C. and 5.D., which require advisers to report the 

number and types of clients the adviser services. Specifically, the amendments require each 

registered adviser to: (i) provide an approximate number of clients it has if over 100;

 Commenters did not object to these 

new questions and revisions. 

282 (ii) 

report the approximate percentage of its clients that are not United States persons;283 (iii) specify 

the types of clients that it advises (adding categories for business development companies, other 

investment advisers, and insurance companies) and the percentage that each client type 

comprises of its total number of clients (adding a box to check if 100% of an adviser’s clients are 

a particular type);284 and (iv) report in a new item the approximate percentage (in broad ranges) 

of assets under management attributable to each client type.285

Commenters did not address our proposed amendments to Item 5.C., which we are 

adopting as proposed. We are making one change to Item 5.D., as suggested by one commenter, 

so that advisers report approximate percentages of assets under management by client type in 

broad ranges (i.e., 25 percent segments).

 These form amendments are 

designed to help us better understand an adviser’s business. 

286

 

281 Amended Form ADV, Part 1A, Item 5.B.(6). 

 This change will decrease the burden on advisers 

gathering the data necessary to respond to this item while retaining the substance of the 

information we need for our risk-assessment program. We are also, at the suggestion of a 

282 Amended Form ADV, Part 1A, Item 5.C.(1). 

283 Amended Form ADV, Part 1A, Item 5.C.(2). See supra note 225 (discussing the definition of 

“United States person”). 

284 Amended Form ADV Part 1A, Item 5.D.(1). 

285 Amended Form ADV Part 1A, Item 5.D.(2). 

286 Advisers should not, however, include as clients the investors in a private fund they advise unless 

they have a separate advisory relationship with those investors. Amended Form ADV, Part 1A, 

Items 5.C., 5.D. and 5.H. 
-72- 

commenter, adding a note to Items 5.D.(1) and (2) to clarify that an adviser should check all 

applicable boxes.287

We are adopting, as proposed, amendments to Item 5.G. that require an adviser to select 

from a list set forth in the form the types of advisory services that it provides, and that add two 

additional types of services: (i) portfolio management for pooled investment vehicles, other than 

registered investment companies; and (ii) educational seminars or workshops.288 At the request 

of a commenter, we are clarifying that educational seminars and workshops would not include 

episodic meetings at which advisers educate existing clients about issues related to the ongoing 

management of their accounts.289 In addition, the revised item requires that if an adviser selects 

from that list “portfolio management for an investment company,” the adviser must provide the 

SEC file number for the registered investment company, as well as business development 

companies that have made an election pursuant to section 54 of the Investment Company Act of 

1940, in Section 5.G.(3) of Schedule D. This information will connect information reported on 

Form ADV to information reported on forms filed through our EDGAR system by investment 

companies managed by these advisers. We have made a few technical changes to avoid potential 

overlap of some of the listed types of advisory services.290

 

287 See IAA General Letter. For example, an adviser to a state pension plan should check boxes for 

both “pension and profit sharing plans” and “state or municipal government entities.” We also 

note that we are not adopting our proposal to divide the category for pension and profit sharing 

plans into those subject to ERISA and those that are not. See id. (noting that there could be 

substantial confusion about what it means to be “subject to” ERISA because some plans are 

subject to some, but not all, of ERISA’s provisions). 

 

288 Amended Form ADV, Part 1A, Item 5.G. 

289 See IAA General Letter (requesting clarification that such episodic meetings would not be 

reportable educational seminars or workshops). We also confirm this commenter’s understanding 

that educational seminars and workshops would not include events sponsored by third parties that 

are merely attended by an adviser’s supervised persons.

290 See amended Form ADV, Part 1A, Items 5.G.(4) and 5.G.(5). 
-73- 

We are adopting new Item 5.J. to require advisers to indicate whether they report, in 

response to Item 4.B. of Part 2A of Form ADV, that they provide investment advice only with 

respect to limited types of investments. We had proposed to require advisers to indicate the 

types of investments they provided advice about during the previous fiscal year. Commenters 

expressed skepticism about whether such an item would provide us with much useful 

information because many advisers would simply indicate all the items.291

3. Other Business Activities and Financial Industry Affiliations: Items 6 

and 7

 We agree, and have 

revised the item to provide us with information that will identify advisers that disclose to their 

clients that they provide specialized advice, which is the type of information we had intended to 

collect. 

Items 6 and 7 of Part 1A require advisers, including exempt reporting advisers, to report 

those financial services the adviser or a related person is actively engaged in providing, from lists 

of financial services set forth in the items. We are adopting amendments to these items largely 

as proposed to provide us with a more complete picture of the activities of an adviser and its 

related persons, which would better enable us to assess the conflicts of interest and risks that may 

be created by those relationships and to identify affiliated financial service businesses. 

First, we are expanding the lists of types of financial service businesses in both Items 

6.A. and 7.A. As a result, an adviser must also report whether it or a related person is a trust 

company, registered municipal advisor, registered security-based swap dealer, or major securitybased swap participant, the latter three of which are or will be new SEC-registrants under the 

 

291 IAA General Letter. 
-74- 

Dodd-Frank Act’s amendments to the Exchange Act.292 Second, to parallel Item 7.A. for related 

persons, an adviser must also report if it is an accountant (or accounting firm) or lawyer (or law 

firm). Last, amendments to Item 7.A. require an adviser to report if a related person is a sponsor, 

general partner or managing member of a pooled investment vehicle,293 and add an instruction to 

clarify that advisers’ responses must include related persons that are foreign affiliates, regardless 

of whether they are registered or required to be registered in the United States. One commenter 

expressed support for the additions we proposed to make to the lists in Items 6.A. and 7.A., 

which we are adopting as proposed.294 In response to commenters, we are clarifying that for 

responses to Item 7.A. relating to natural persons (e.g., accountant, lawyer), the adviser should 

respond affirmatively only for such persons that have a separate business in that field rather than 

for those persons that the adviser may employ as accountants or lawyers.295

We also are amending Schedule D, which contains expanded reporting requirements that 

correspond to Items 6 and 7. Section 6.A. of Schedule D requires an adviser that checks the box 

in Item 6.A. to indicate that it is engaged in another financial service business under a different 

 

 

292 Amended Form ADV, Part 1A, Items 6.A. and 7.A. Section 975 of the Dodd-Frank Act amends 

the Exchange Act to require “municipal advisors” to register with the Commission; Section 761 

of that Act amends the Exchange Act to define the terms “security-based swap dealer” and 

“major security-based swap participant”; and section 764 amends the Exchange Act to require 

these entities to register with the Commission. 

293 This serves to retain information about related persons that would otherwise not be required as a 

result of amendments we are adopting to Item 7.B. Amended Item 7.B. and section 7.B.(1) of 

Schedule D require advisers to report private fund information only about funds they advise, not 

funds advised by a related person. See supra section II.C.1. We have also deleted “investment 

company” from the list in Item 7 as duplicative of information we obtain in another category of 

Item 7.A., as well as Item 5. See, e.g., amended Form ADV, Part 1A, Items 5.D., 5.G., Section 

5.G.(3) of Schedule D, and Item 7.A.(2). 

294 NRS Letter.

295 NEA Letter; IAA General Letter. Many of the questions in Item 5.B. elicit information about an 

adviser’s employees acting in the scope of employment. We note that because Item 6 asks 

questions about the advisory firm, responses should not relate to natural persons, unless the 

adviser is operating as a sole proprietor.
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name, to list that other business name, and to identify the other lines of business in which the 

adviser engages using that name.296 Sections 6.B.(2) and 6.B.(3) of Schedule D similarly require 

advisers that are primarily engaged in another business or that sell products or provide services 

other than investment advice to advisory clients to describe that business and provide the name 

under which it conducts that business, if different. One commenter, an association comprised of 

state regulators, expressed particular support for the Schedule D reporting requirement we are 

adopting with respect to 6.B.(3).297

Section 7.A. of Schedule D, requires advisers to provide certain identifying information 

for any type of related person listed in Item 7.A. as well as to provide more details about the 

relationship between the adviser and the related person, including whether the related person is 

registered with a foreign financial regulatory authority, whether they share employees or the 

same physical location, and, if the adviser is reporting a related person investment adviser, 

whether the related person is exempt from registration.

 

298

Commenters who addressed Section 7.A. of Schedule D urged that we limit the reporting 

of related persons, which could be significant in the case of advisers that are part of a large 

 Responses to these questions will 

allow us to link disparate pieces of information to which we have access concerning an adviser 

and its affiliates as well as to identify whether the adviser controls the affiliate or vice versa. It 

will also provide us with a tool to identify where there may be advisory activities by unregistered 

affiliates. 

 

296 For example, an adviser registered with us under the name “Adam Bob Charlie Advisers LLC” 

that is also actively engaged in business as an insurance agent under the name “ABC Insurance 

LLC” would put the name “ABC Insurance LLC” in Section 6.A. of Schedule D and would check 

the box for “Insurance broker or agent.” 

297 NASAA Letter. We note, “6.B.(3)” was inadvertently renumbered in Part 1A of Form ADV as 

“6.C.” in our proposal. 

298 The questions we are adopting in Section 7.A. of Schedule D contain a few minor modifications 

from the proposal to renumber the questions and to clarify wording (e.g., questions 11 and 12). 
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organization.299 Many of these commenters pointed out that in some cases the adviser and its 

clients have no business dealings with some affiliates and thus there is less of a chance of 

conflicts developing. We agree and have revised the proposed item to permit an adviser to omit 

reporting about certain related persons in a manner that is similar to the approach suggested by a 

commenter.300 In particular, an adviser need not complete Section 7.A. of Schedule D for any 

related person if: (1) the adviser has no business dealings with the related person in connection 

with advisory services it provides to its clients; (2) the adviser does not conduct shared 

operations with the related person; (3) the adviser does not refer clients or business to the related 

person, and the related person does not refer prospective clients or business to the adviser; (4) the 

adviser does not share supervised persons or premises with the related person; and (5) the adviser 

has no reason to believe that its relationship with the related person otherwise creates a conflict 

of interest with its clients.301

 

299 See, e.g., Shearman Letter. 

 These criteria are designed so that advisers need not report about 

affiliates who are likely to present little, if any, potential for conflicts of interest. Under these 

criteria, an adviser may omit, for example, an offshore adviser that has no business dealings with 

the adviser, a bank that merely provides payroll services to the adviser, an accounting firm that 

prepares the adviser’s annual tax return filings, or a real estate broker that represents the adviser 

in securing office space. However, an adviser may not omit an affiliated adviser with whom the 

adviser shares information technology infrastructure, for example, as the advisers would be 

considered to share operations. 

300 See IAA General Letter (suggesting we adopt a standard for omitting a related person based on 

factors established several years ago by our staff in Frequently Asked Questions on Form ADV 

and IARD). 

301 Amended Form ADV, Part 1A, Item 7.A.
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Finally, we have moved to this item a question that had been in Item 9 that requires 

advisers to report whether a related person foreign financial institution acts as a qualified 

custodian for client assets under the adviser custody rule, to centralize reporting of related 

qualified custodians in a single item.302

4. Participation in Client Transactions: Item 8

 

Item 8 requires a registered adviser to report information about its transactions, if any, 

with clients, including whether the adviser or a related person (including a foreign related 

person) engages in transactions with clients as a principal, otherwise sells securities to clients, or 

has discretionary authority over client assets. We are adopting three amendments to this item. 

First, an adviser that indicates it has discretionary authority to determine the brokers or dealers 

for client transactions or that it recommends brokers or dealers to clients303 must additionally 

report whether any of such brokers or dealers are related persons of the adviser.304 Second, an 

adviser that indicates that it receives “soft dollar benefits” must also report whether all those 

benefits qualify for the safe harbor under section 28(e) of the Exchange Act for eligible research 

or brokerage services.305 Third, an adviser must report whether it or its related person receives 

direct or indirect compensation for client referrals.306

 

302 Amended Form ADV, Part 1A, Section 7.A. of Schedule D, question 8. At the suggestion of 

commenters, we have also modified this question to include the remainder of the questions in 

what had been Section 9.D. of the previous version of Form ADV Part 1A, which we 

inadvertently failed to include when we relocated this question in Proposed Form ADV Part 1A. 

Consequently, we have also eliminated Section 9.D. See IAA General Letter; Schnase Letter. 

 These amendments, which we are 

adopting as proposed, are designed to enhance our ability to identify additional conflicts of 

303 Amended Form ADV, Part 1A, Items 8.C.3. and 8.E. 

304 Amended Form ADV, Part 1A, Items 8.D. and 8.F. 

305 Amended Form ADV, Part 1A, Item 8.G.(2). See also Commission Guidance Regarding Client 

Commission Practices Under Section 28(e) of the Securities Exchange Act of 1934, Exchange Act 

Release No. 54165 (July 18, 2006) [71 FR 41978 (July 24, 2006)] (“28(e) Release”). 

306 Amended Form ADV, Part 1A, Items 8.H. and 8.I. 
-78- 

interest that advisers may face that we have identified through our experience administering the 

Advisers Act. 

Comments on these amendments were limited to the question about soft dollars, which 

commenters supported, but these commenters urged us to permit advisers to answer based on an 

adviser’s reasonable belief that the benefits received are eligible research and brokerage services 

under the safe harbor provided by section 28(e) of the Exchange Act.307 We are not making this 

change as the safe harbor itself does not include a “reasonable belief” standard and the Form 

ADV item is intended to track the language of the statute. We also remind advisers that we have 

issued interpretive guidance on section 28(e) of the Exchange Act and direct advisers to it if 

relying on this safe harbor.308

5. Custody: Item 9

 

We are amending Item 9 to require each registered adviser to indicate the total number of 

persons that act as qualified custodians for the adviser’s clients in connection with advisory 

services the adviser provides to its clients.309 In 2009, we amended certain items of Form ADV 

in connection with amendments we made to Advisers Act rule 206(4)-2 (the “2009 Custody 

Amendments”). At that time, we modified Item 9 to elicit information about the adviser or its 

related person(s) acting as qualified custodian.310

 

307 See ICI Letter; IAA General Letter.

 We did not, however, request information 

about other qualified custodians. This additional data will provide us with a more complete 

308 See 28(e) Release, supra note 305, at Sections II.B. and III. 

309 Amended Form ADV, Part 1A, Item 9.F. We have also made a minor modification from the 

proposal to make clear that an adviser need only respond if it has custody of client funds or 

securities, including if it has custody because a related person has custody in connection with 

advisory services the adviser provides to its clients. 

310 See Custody of Funds or Securities of Clients by Investment Advisers, Investment Advisers Act 

Release No. 2968 (Dec. 30, 2009) [75 FR 1456 (Jan. 11, 2010)] (“2009 Custody Release”). 
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picture of an adviser’s custodial practices.311 Commenters suggested that advisers be permitted 

to provide an approximate number of qualified custodians in response to this item.312 We have 

not made such a change. An adviser with custody of client funds or securities must maintain 

those assets with a qualified custodian,313

We are also adopting several clarifications urged by commenters, and to make certain 

technical changes.

 and must therefore know the identity (and therefore 

number) of qualified custodians that maintain its clients’ assets. 

314 The first of these changes clarifies that Item 9 asks whether the adviser or 

a related person has custody of funds and securities of clients that are not registered investment 

companies. The questions in Item 9 relate to various provisions of rule 206(4)-2 (the custody 

rule), and advisers are not required to comply with rule 206(4)-2 with respect to the account of 

an investment company registered under the Investment Company Act.315 Second, we are 

amending the notes within Item 9.A. to correct a drafting error.316

 

311 Consistent with the updating requirements for Items 9.A.(2), 9.B.(2), and 9.E., advisers are 

required to update new Item 9.F. only annually. See amended Form ADV: General Instruction 4. 

 The amended note within 

Item 9.A. requires an adviser to exclude from 9.A. and to report in 9.B. only client assets for 

312 IAA General Letter; NRS Letter. But see NRS Letter (indicating that many advisers have only 

one or two qualified custodians). 

313 Rule 206(4)-2(a)(1) (defining “qualified custodian”). 

314 Investment advisers registered with us were required to begin completing revised Item 9 in 

connection with amendments we made to rule 206(4)-2 (the custody rule) as of their first annual 

updating amendment after January 1, 2011. See 2009 Custody Release, supra note 310 at n.161 

and accompanying text. We are also making a technical amendment to Form ADV-E to reflect 

the requirement that the accountant’s report be filed electronically. Staff notified advisers in 

November 2010 that the IARD system had been programmed to accept Form ADV-E. See 2009 

Custody Release, supra note 310 at n.53 and accompanying text (establishing the requirement for 

Form ADV-E to be filed electronically, explaining that accountants performing surprise 

examinations should continue paper filing of Form ADV-E until the IARD system is programmed 

to accept Form ADV-E, and noting that advisers would be informed when that programming was 

completed).

315 Rule 206(4)-2(b)(5). These advisers must instead comply with custody requirements under the 

Investment Company Act. 

316 See IAA General Letter; Pickard Letter; Schnase Letter (each urging us to correct this drafting 

error).
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which custody is attributed to the adviser as a result of related person custody.317 Third, we are 

also clarifying in Items 9.B. and 9.C. that advisers’ responses must include funds and securities 

of which a related person has custody in connection with advisory services the adviser provides 

to clients.

318 This clarification aligns the reporting requirements of these items with the amended 

definition of custody adopted in the 2009 Custody Amendments.319 Finally, amended question 

(6) within Section 9.C. of Schedule D enables an adviser to check a box to indicate that it has not 

yet received a report prepared by an independent accountant that audited a pooled investment 

vehicle or that examined internal controls.320 Under the previous version of this question, an 

adviser who had not yet received the independent public accountant’s report by the time the 

adviser submitted its Form ADV filing could not accurately respond. The updating requirements 

of Item 9.C. and Section 9.C. of Schedule D, however, require advisers to promptly file an 

amendment to update their response when the accountant’s report is available.321

6. Reporting $1 Billion in Assets: Item 1.O. 

 

 

317 When we adopted the 2009 Custody Amendments we explained that Items 9.A. and 9.B. require a 

registered adviser to report to us whether the adviser or a related person has custody of client 

funds or securities, and if so, both the total U.S. dollar amount of those assets as well as the 

number of clients for whose accounts the adviser or its related person has custody. See 2009 

Custody Release, supra note 310 at n.145 and accompanying text. Item 9.A., which was intended 

to limit reporting of assets the adviser has custody of other than through a related person, 

inadvertently required the adviser to include assets attributable to it in certain circumstances 

where a related person had custody of the assets.

We also are making a technical revision to the note within Item 9.A. to remind advisers that their 

responses should not include assets of which they have custody solely because they deduct 

advisory fees from client accounts.

318 See IAA General Letter.

319 We amended the definition of “custody” to include circumstances under which a related person 

“holds, directly or indirectly, client funds or securities, or has any authority to obtain possession 

of them, in connection with advisory services [an adviser] provide[s] to clients.” See rule 

206(4)-2(d)(2). 

320 Question 6 does not require a response about reports related to an independent verification (or 

“surprise examination”) of client assets because the independent public accountant that conducts 

the surprise examination separately files a certificate on Form ADV-E. See rule 206(4)-2(a)(4). 

321 See amended Form ADV: General Instruction 4. 
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We are adopting, as proposed, Item 1.O. and related instructions to require each adviser 

to indicate whether it had $1 billion or more in total assets shown on the adviser’s balance sheet 

as of the last day of the most recent fiscal year,322 which we will use to identify those advisers 

that could be subject to rules regarding certain excessive incentive-based compensation 

arrangements required by section 956 of the Dodd-Frank Act.323 Two commenters supported the 

proposal,324 while another suggested that we allow an adviser to exclude certain assets from the 

calculation so that certain advisers would not be covered by any future rule regarding section 

956.325 Although we retain certain flexibility to adopt a different standard for purposes of the 

incentive-based compensation rule,326 we believe, as noted above, that this new item will assist 

us in identifying the advisers that may be subject to such future rule.327

 

322 See amended Form ADV, Part 1A, Item 1.O. (adviser must mark “yes” or “no” to indicate 

whether it has $1 billion or more in assets). For purposes of this reporting requirement only, the 

amount of assets will be determined in the same manner as the amount of “total assets” is 

determined on the adviser’s balance sheet for its most recent fiscal year end, using the same 

accounting method used to prepare the balance sheet. See amended Form ADV: Instructions for 

Part 1A, instr. 1.b. We are not requiring advisers to use GAAP or another accounting method. 

 

323 The Commission and other federal regulators proposed a joint rule that addresses certain 

excessive incentive-based compensation arrangements, including those of investment advisers 

with $1 billion or more in assets, pursuant to section 956 of the Dodd-Frank Act. See IncentiveBased Compensation Arrangements, Release No. 34-64140 (Mar. 29, 2011) [76 FR 21170 (Apr. 

14, 2011)] (“Incentive Compensation Proposing Release”). We construe section 956 as 

specifying, and thus define “assets” to mean, the total assets of the advisory firm rather than the 

total “assets under management,” i.e., assets managed on behalf of clients. See Implementing 

Proposing Release, supra note 7, at n.196; Incentive Compensation Proposing Release, at section 

III. 

324 See IAA Letter; ICI Letter. One commenter argued that Form ADV is not the correct reporting 

mechanism for this information, but did not recommend an alternative way to identify these 

advisers. NRS Letter. 

325 MFA Letter. 

326 In the Incentive Compensation Proposing Release, we invited comments on whether the 

determination of total balance sheet assets should be further tailored for certain types of advisers. 

See Incentive Compensation Proposing Release, supra note 323, at section III. 

327 We also note that almost all of the other covered financial institutions under section 956 already 

report the amount of their total assets to their federal regulator. See Incentive Compensation 
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7. Other Amendments to Form ADV

The amendments we are adopting today also include a number of additional changes 

unrelated to the Dodd-Frank Act that are intended to improve our ability to assess compliance 

risks. To improve certain identifying information we obtain from other items of Part 1A of Form 

ADV, we are amending Item 1.J. to require an adviser to provide contact information for its chief 

compliance officer to give us direct access to the person designated to be in charge of its 

compliance program.328 An adviser also has the option, in Item 1.K., to provide an additional 

regulatory contact for Form ADV.329 Neither Items 1.K. nor 1.J. will be viewable by the public 

on our website.330 One commenter expressed its support for this change to the form.331 We are 

also amending Item 1 to require an adviser to indicate whether it or any of its control persons is a 

public reporting company under the Exchange Act.332

 

Proposing Release, supra note 

 An affirmative response to this item will 

provide a signal, not only to us, but to investors and to prospective investors, that additional 

public information is available about the adviser and/or its control persons. New Item 1.P. 

323, at section III. (proposing to calculate “total consolidated 

assets” based on reports filed with each federal regulator).

328 Amended Form ADV, Part 1A, Item 1.J. An adviser is also required to provide the name of its 

chief compliance officer on Schedule A of Form ADV. See also 17 CFR 275.206(4)-7; 

Compliance Programs of Investment Companies and Investment Advisers, Investment Advisers 

Act Release No. 2204 (Dec. 17, 2003) [68 FR 74714 (Dec. 24, 2003)] (adopting rule 206(4)-7 

requiring registered investment advisers to designate a chief compliance officer). An exempt 

reporting adviser that does not have a chief compliance officer must instead provide a designated 

person’s contact information in Item 1.K. Likewise, an exempt reporting adviser need not 

provide the name of a chief compliance officer on Schedule A of Form ADV. 

329 Amended Form ADV, Part 1A, Item 1.K. 

330 We note that clients will be provided with a supervisory contact in brochure supplements. See

Part 2 Release, supra note 67. 

331 See NRS Letter.

332 Amended Form ADV, Part 1A, Items 1.N. and 10.B., and Section 10.B. of Schedule D. 
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requires an adviser to provide a “legal entity identifier” if it has one.333 In addition, we are 

adding “Limited Partnership” as another choice advisers may select to indicate how their 

organization is legally formed.334

We are also adopting three technical changes with respect to the reporting of disciplinary 

events. First, with commenters’ support, we are adding a box to Item 11, as proposed, for 

advisers to check if any disciplinary information reported in that item and the corresponding 

disclosure reporting pages is being reported about the adviser or any of its supervised persons.

 Other than the addition of Item 1.P., we are adopting amended 

Item 1 as proposed. 

335 

Second, we are adding a third reason to each disclosure reporting page (“DRP”) that permits an 

adviser to remove the DRP from its filing by adding a box an adviser could check if it was filed 

in error. One commenter supported this aspect of the proposal.336

 

333 Amended Form ADV, Part 1A, Item 1.P. See also Amended Form ADV: Glossary (defining 

“Legal Entity Identifier”). A legal entity identifier is a unique number that companies use to 

identify each other in the financial marketplace. It is a number assigned by or on behalf of an 

internationally recognized standards setting body and it is required for reporting purposes by the 

U.S. Department of the Treasury’s Office of Financial Research or a financial regulator. The 

legal entity identifier standard is still in development, and an adviser may not have one. An 

adviser is required to respond to Item 1.P. only if it has a legal entity identifier.

 Third, we are amending Item 

3.D. of Part 2B, the brochure supplement, to correct a drafting error regarding when a brochure 

supplement would need to include disclosure regarding the revocation or suspension of a 

professional attainment, designation, or license. Advisers are required to include in brochure 

supplements disclosure regarding hearings or formal adjudications relating to the revocation or 

334 Amended Form ADV, Part 1A, Item 3.A. 

335 Amended Form ADV, Part 1A, Item 11. See IAA General Letter; Pickard Letter. 

336 See NRS Letter.
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suspension of a professional attainment, designation, or license of the supervised person by the 

designating authority.337

Finally, we had requested comment in the Implementing Proposing Release on whether 

we should accelerate the deadline for filing an annual updating amendment to an adviser’s Form 

ADV filing from 90 to 60 days after the adviser’s fiscal year end.

 

338 All of the commenters who 

responded to the question opposed it.339

D. Other Amendments

 We are not adopting a requirement to accelerate the 

annual updating amendment deadline at this time. 

1. Amendments to “Pay to Play” Rule 

 We are adopting amendments to rule 206(4)-5, the “pay to play” rule, to address certain 

consequences arising from the Dodd-Frank Act’s amendments to the Advisers Act and the 

Exchange Act.

340

 

337 As originally adopted, this item stated “Any other proceeding in which a professional attainment, 

designation, or license of the supervised person was revoked or suspended because of a violation 

of rules relating to professional conduct. If the supervised person resigned (or otherwise 

relinquished his attainment, designation, or license) in anticipation of such a proceeding (and the 

adviser knows, or should have known, of such resignation or relinquishment), disclose the event.” 

(emphasis added).

 First, we are amending the scope of the rule, as proposed, so that it applies

338 See Implementing Proposing Release, supra note 7, at nn.207 and 208 and accompanying text. 

339 Pickard Letter (citing additional burdens it would place on advisory firm personnel and 

resources); IAA General Letter (stating that many advisers need the full 90 days to ensure 

accurate and complete disclosures); ICI Letter (urging the Commission to at least give advisers 

time to become acclimated with all of the new filing requirements before imposing an accelerated 

deadline); NRS Letter (claiming it will add little benefit and will impose a substantial burden); 

Schnase Letter.

340 See amended rule 206(4)-5. We are not, however, adopting an amendment we proposed to 

specify that a legal entity, not just a natural person, that is a general partner or managing member 

of an investment adviser would meet the definition of “covered associate” in the rule. Upon 

reflection, it would broaden the application of the rule more than we intended. For example, 

because political action committees (“PACs”) controlled by a covered associate are themselves 

treated as covered associates, were we to make this amendment, contributions by an adviser’s 

parent company’s PAC could trigger the two-year time out. However, as we noted in the release 

adopting the pay to play rule, depending on facts and circumstances, there may be instances in 

which a supervisor of an adviser’s covered associate (who, for example, engages in solicitation of 
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both to exempt reporting advisers and foreign private advisers.341 The rule currently applies to 

advisers either registered with the Commission or unregistered in reliance on the “private 

adviser” exemption under section 203(b)(3) of the Advisers Act.342 The amendment prevents the 

unintended narrowing of the application of the rule resulting from the repeal of the “private 

adviser” exemption.

343

Commenters generally favored the amendment,

 

344 although one commenter opposed 

applying the rule to foreign private advisers and foreign exempt reporting advisers, contending 

that the costs of doing so would outweigh the benefits.345

 Second, we are amending the rule to add municipal advisors to the categories of 

registered entities – referred to as “regulated persons” – excepted from the rule’s prohibition on 

 However, many advisers that will 

qualify for the foreign private adviser exemption are currently subject to the pay to play rule, 

either because they are currently registered with us or exempt under the “private adviser” 

exemption. We continue to believe that the pay to play rule is necessary and appropriate to 

prevent these advisers and others from engaging in fraudulent pay to play practices in the U.S. 

 

government entity clients for the adviser) formally resides at a parent company, but whose 

contributions should trigger the two-year time out because they raise the same conflict of interest 

issues that we are concerned about, irrespective of that person’s location or title. See Political 

Contributions by Certain Investment Advisers, Investment Advisers Act Release No. 3043, n. 179 

(Jul. 1, 2010) [75 FR 41018 (Jul. 15, 2010)] (“Pay to Play Release”). 

341 See amended rule 206(4)-5(a)(1); Implementing Proposing Release, supra note 7, at section 

II.D.1. See also sections 403, 407 and 408 of the Dodd-Frank Act (replacing the “private 

adviser” exemption at section 203(b)(3) of the Advisers Act with an exemption for “foreign 

private advisers” and adding exemptions for exempt reporting advisers at sections 203(l) and 

203(m) of the Advisers Act). 

342 See rule 206(4)-5(a). 

343 Section 203(b)(3) was revised by the Dodd-Frank Act to create a new exemption for foreign 

private advisers. See supra note 4. 

344 See, e.g., Better Markets Letter; NRS Letter; NYSBA Committee Letter; Schnase Letter.

345 See Dechert General Letter.
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advisers paying third parties to solicit government entities.346 To qualify as a “municipal 

advisor” (and thereby a “regulated person”), a solicitor must be registered under section 15B of 

the Exchange Act and subject to pay to play rules adopted by the Municipal Securities 

Rulemaking Board (“MSRB”).347 Notably, for municipal advisors to qualify as “regulated 

persons,” we must find that applicable MSRB pay to play rules: (i) impose substantially 

equivalent or more stringent restrictions on municipal advisors than the pay to play rule imposes 

on investment advisers; and (ii) are consistent with the objectives of the pay to play rule.348

We had proposed to limit the exception to the third-party solicitation ban to registered 

municipal advisors.349 But commenters urged us to preserve the existing “regulated person” 

exception as well.

350

 

346 See amended rule 206(4)-5(a)(2)(i)(A), (f)(9). “Regulated persons” also include registered 

investment advisers and broker-dealers subject to the rules of a registered national securities 

association, such as the Financial Industry Regulatory Authority (“FINRA”), that has adopted pay 

to play rules that the Commission determines satisfy the criteria of amended rule 206(4)-

5(f)(9)(iii)(B). 

 Commenters explained that affiliated broker-dealers or investment advisers 

– which would not meet the statutory definition of a “municipal advisor” under section 15B(e)(4) 

347 See amended rule 206(4)-5(f)(9)(iii). 

348 See amended rule 206(4)-5(f)(9)(iii)(B). The MSRB issued a draft pay to play rule for municipal 

advisors and request for comment on January 14, 2011. See MSRB, Request for Comment on 

Pay to Play Rule for Municipal Advisors, MSRB Notice 2011-04 (Jan. 14, 2011) available at 

http://www.msrb.org/Rules-and-Interpretations/Regulatory-Notices/2011/2011-04.aspx?n=1. 

The Commission’s authority to consider rules proposed by a self-regulatory organization is 

governed by section 19(b) of the Exchange Act [15 U.S.C. 78s(b)] (“No proposed rule change 

shall take effect unless approved by the Commission or otherwise permitted in accordance with 

the provisions of this subsection.”). 

349 See Implementing Proposing Release, supra note 7, at sections II.D.1. 

350 See Comment letter of Debevoise & Plimpton LLP (Feb. 22, 2011) (“Debevoise Pay to Play 

Letter”); Dechert General Letter; comment letter of Investment Adviser Association (by Monique 

S. Botkin) (Jan. 24, 2011) (“IAA Pay to Play Letter”); ICI Letter; comment letter of Securities 

Industry and Financial Markets Association (Jan. 24, 2011) (“SIFMA Letter”); comment letter of 

T. Rowe Price Associates, Inc. (Jan. 24, 2011) (“T. Rowe Letter”). But see NRS Letter 

(supporting the proposal). 
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of the Exchange Act if they solicit government entities only on behalf of affiliates351 – are often 

paid by investment advisers to solicit on their behalf.352 While commenters recognized that 

adviser-affiliated solicitors may be permitted to voluntarily register as municipal advisors, they 

argued that voluntary registration of these solicitors would subject them to regulatory 

requirements unrelated to pay to play practices and thus impose significant additional costs, 

which they argued are unnecessary, particularly when they already are subject to a 

comprehensive regulatory regime as broker-dealers or advisers.353

 The amended rule retains the approach of the current rule by permitting advisers to 

compensate persons that are “regulated persons” for soliciting government entities if they are 

subject to restrictions at least as stringent as the pay to play rule. We have expanded “regulated 

persons” to include registered municipal advisors. Accordingly, the pay to play rule continues to 

impose critical restrictions on third-party solicitors and their personnel designed to minimize the 

potential for their engaging in pay to play on behalf of investment advisers. Advisers may only 

compensate third-party solicitors that are subject to the Commission’s regulatory oversight and 

 

351 See section 15B(e)(4) of the Exchange Act (defining “municipal advisor” to include “a person 

(who is not a municipal entity or an employee of a municipal entity) that...undertakes a 

solicitation of a municipal entity”); section 15B(e)(9) of the Exchange Act (defining “solicitation 

of a municipal entity or obligated person” to mean “a direct or indirect communication with a 

municipal entity or obligated person made by a person, for direct or indirect compensation, on 

behalf of...[an] investment adviser...that does not control, is not controlled by, or is not under 

common control with the person undertaking such solicitation for the purpose of obtaining or 

retaining an engagement by a municipal entity or obligated person...of an investment adviser to 

provide investment advisory services to or on behalf of a municipal entity” (emphasis added)). In 

recognition of this limitation, we separately proposed to allow adviser-affiliated solicitors to 

register voluntarily as municipal advisors. See Registration of Municipal Advisors, Exchange Act 

Release No. 63576, at nn. 102-104 and accompanying text (Dec. 20, 2010) [76 FR 824, (Jan. 6, 

2011)] (“Municipal Advisors Registration Release”). 

352 See, e.g., IAA Pay to Play Letter; SIFMA Letter. 

353 See Municipal Advisor Registration Release, supra note 351, at 831 (stating that solicitors acting 

on behalf of affiliates may voluntarily register as municipal advisors). 
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examination and to a regulatory regime that the Commission has determined is equally or more 

stringent than the pay to play rule.354

 Finally, we are extending the date by which advisers must comply with the ban on thirdparty solicitation from September 13, 2011 to June 13, 2012 due to the fact that we are 

modifying our proposal and expanding the definition of “regulated persons.”

 

355 This extension 

will provide time for the MSRB and FINRA to adopt pay to play rules if they choose to do so 

and give third-party solicitors additional time to come into compliance with such rules.356

2. Technical and Conforming Amendments

 

a. Rules 203(b)(3)-1 and 203(b)(3)-2 

We are rescinding rules 203(b)(3)-1357 and 203(b)(3)-2358

 

354 Several commenters further urged the Commission to amend the pay to play rule also to permit an 

adviser to pay any affiliate and/or its employees to solicit clients on the adviser’s behalf so long 

as the adviser treats such solicitors as its own “covered associates.” See Debevoise Pay to Play 

Letter; IAA Pay to Play Letter; ICI Letter; NYSBA Committee Letter; comment letter of 

Skadden, Arps, Slate, Meagher & Flom LLP (Mar. 8, 2011) (“Skadden Letter”); T. Rowe Letter. 

In light of the approach we are adopting (discussed above), we believe that such an amendment is 

unnecessary. 

 under the Advisers Act. These 

rules specify how advisers “count clients” for purposes of determining whether the adviser is 

eligible for the private adviser exemption of section 203(b)(3) of the Advisers Act (which, as 

355 See comment letter of American Council of Life Insurers (Jan. 24, 2011) (“ACLI Pay to Play 

Letter”); IAA Pay to Play Letter; ICI Letter (suggesting that the Commission extend the 

compliance date for the third-party solicitation ban). See also SIFMA Letter (suggesting that the 

Commission delay adoption of amendments to the pay to play rule until it completes its municipal 

advisor registration rulemaking).

356 The extension applies only to the third-party solicitation ban and not to any other provisions in 

the pay to play rule. See supra note 348 (referencing the MSRB’s issuance of a draft pay to play 

rule for municipal advisors). 

357 Rule 203(b)(3)-1. 

358 Rule 203(b)(3)-2. We adopted rule 203(b)(3)-2 in 2004 in order to require certain hedge fund 

advisers to register under the Act. See Registration under the Advisers Act of Certain Hedge 

Fund Advisers, Investment Advisers Act Release No. 2333 (Dec. 2, 2004) [69 FR 72054 (Dec. 

10, 2004)]. That rule, and certain amendments to rule 203(b)(3)-1 and other rules, were vacated 

by a federal appeals, but have remained in the CFR. See Goldstein v. SEC, 451 F.3d 873 (D.C. 

Cir. June 23, 2006) (“Goldstein”). 
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discussed above, Congress repealed in section 403 of the Dodd-Frank Act). In the Exemptions 

Adopting Release, we are adopting a new client counting rule, rule 202(a)(30)-1, for purposes of 

the new foreign private adviser exemption.359

b. Rule 204-2 

We are adopting amendments to rule 204-2 under the Advisers Act, the “books and 

records” rule. The first amendment updates the rule’s “grandfathering provision” for investment 

advisers that are currently exempt from registration under the “private adviser” exemption, but 

will be required to register after the exemption is eliminated on July 21, 2011.360 Upon 

registration, these advisers will become subject to the recordkeeping requirements of the Act, 

including the requirement to keep certain records relating to performance.361 The amendment 

clarifies that these advisers are not obligated to keep certain performance-related records for any 

period when they were not registered with the Commission; however, to the extent that these 

advisers preserved these performance-related records even though they were not required to keep 

them, they must continue to preserve them.362

 

359 See Exemptions Adopting Release, supra note 

 As discussed in section III, we are providing these 

4, at section II.C.1. 

360 See amended rule 204-2(e)(3)(ii); Implementing Proposing Release, supra note 7, at section 

III.D.2.b. Our proposal would have applied the grandfathering provision only to those periods 

prior to the date that the Dodd-Frank Act removes the “private adviser” exemption in section 

203(b)(3)—July 21, 2011. However, as discussed in section III of this Release, we are providing 

a transition period for advisers relying on the “private adviser” exemption, requiring that they 

register by March 30, 2012 and comply with all Advisers Act provisions and rules by that date. 

To reflect this transition period in the grandfathering provision in rule 204-2, we are adopting a 

modification from our proposal to provide that the grandfathering period applies to any period 

prior to such adviser’s registration. 

361 See rule 204-2(a)(16).

362 See amended rule 204-2(e)(3)(ii) (stating, “[i]f you are an investment adviser that was, prior to 

July 21, 2011, exempt from registration under section 203(b)(3) of the Act (15 U.S.C. 80b3(b)(3)), as in effect on July 20, 2011, [this rule] does not require you to maintain or preserve 

books and records that would otherwise be required to be maintained or preserved under [certain 

sections of this rule] to the extent those books and records pertain to the performance or rate of 

return of such private fund (as defined in section 202(a)(29) of the Act (15 U.S.C. 80b-2(a)(29)), 

or other account you advise for any period ended prior to your registration, provided that that you 
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advisers with additional time to register and establish compliance with rules under the Advisers 

Act to which they will become subject as registered advisers, including rule 204-2.363 The 

second amendment modifies rule 204-2(e)(3)(ii) to cross-reference the new definition of “private 

fund” added by the Dodd-Frank Act.364 The third amendment rescinds rule 204-2(l)365 because it 

was vacated by the federal appeals court in Goldstein and because the Dodd-Frank Act’s addition 

of section 204(b)(2) to the Advisers Act codifies this approach in the Advisers Act itself.366

We received three comment letters in favor of the proposed amendment to apply the 

grandfathering provision to advisers that will be required to register due to the Dodd-Frank Act’s 

elimination of the “private adviser” exemption.

 

367

c. Rule 0-7 

 

We are adopting, as proposed, an amendment to rule 0-7(a)(1)368 under the Advisers Act 

to update a cross reference to section 203A(a)(2) of the Advisers Act, which has been 

renumbered as section 203A(a)(3) by the Dodd-Frank Act.369

 

continue to preserve any books and records in your possession that pertain to the performance or 

rate of return of such private fund or other account for such period.” Advisers to private funds 

that registered with the Commission based on adoption of rule 203(b)(3)-2 in the Hedge Fund 

Adviser Registration Release and then withdrew their registration based upon the decision by the 

U.S. Court of Appeals for the District of Columbia Circuit in Goldstein are permitted to rely on 

the grandfathering provision for periods during which they were unregistered. 

363 An adviser that must register with the Commission because of the Dodd-Frank Act’s elimination 

of the “private adviser” exemption and that files an application for registration on or before the 

transition deadline of March 30, 2012, may rely on the grandfathering provision for any period 

prior to registering, but must begin keeping performance-related records in accordance with the 

rule upon registering. 

364 See rule 204-2(e)(3)(ii) (using the term “private fund” without reference to a definition). We are 

adding a parenthetical noting that the term is defined in section 202(a)(29) of the Advisers Act. 

365 Rule 204-2(l) states that books and records of a private fund are, under certain circumstances, 

treated as books and records of its adviser.

366 Section 404 of the Dodd-Frank Act (adding section 204(b)(2) to the Advisers Act, which states 

that “[t]he records and reports of any private fund to which an investment adviser registered 

under this title provides investment advice shall be deemed to be the records and reports of the 

investment adviser.”).

367 See MFA Letter; NYSBA Committee Letter; Seward Letter. 
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d. Rule 222-1 

We are replacing, as proposed, the term “principal place of business” in rule 222-1(b)370

under the Advisers Act with the term “principal office and place of business” to conform to the 

Dodd-Frank Act’s amendments to section 222 of the Advisers Act.371

e. Rule 222-2 

 We are not modifying the 

definition. 

We are adopting, as proposed, amendments to rule 222-2 to define “client” for purposes 

of the national de minimis standard by cross-referencing the definition of “client” in rule 

202(a)(30)-1 rather than the definition in rule 203(b)(3)-1. The cross-reference to rule 203(b)(3)-

1 must be updated because we are rescinding rule 203(b)(3)-1.372

 368 Rule 0-7(a) defines “small entities” under the Advisers Act for purposes of the Regulatory 

Flexibility Act.

 We are also changing, as 

proposed, a cross-reference to paragraph (b)(6) of rule 203(b)(3)-1 to paragraph (b)(4) of rule 

202(a)(30)-1 to account for the changed location of that particular provision. 

369 See amended rule 0-7(a)(1) (stating that the term “small business” or “small organization” for 

purposes of the Advisers Act means an investment adviser that: “Has assets under management, 

as defined under Section 203A(a)(3) of the Act (15 U.S.C. 80b-3a(a)(3)) and reported on its 

annual updating amendment to Form ADV [17 CFR 279.1], of less than $25 million, or such 

higher amount as the Commission may by rule deem appropriate . . . .”); Implementing Proposing 

Release, supra note 7, at section II.D.2.c. 

370 Rule 222-1 contains definitions relevant to section 222 of the Advisers Act’s provisions regarding 

state regulation of investment advisers. Amended rule 222-1(b) defines “principal office and 

place of business” exactly as it defined “principal place of business” of an investment adviser: 

“the executive office of the investment adviser from which the officers, partners, or managers of 

the investment adviser direct, control, and coordinate the activities of the investment adviser.” 

371 See section 985 of the Dodd-Frank Act (replacing the term “principal place of business” each 

time it appears – i.e., six times – with the term “principal office and place of business” in section 

222 of the Advisers Act). 

372 See supra section II.D.2.a. (discussing rescinding rule 203(b)(3)-1); new rule 202(a)(30)-1; 

Exemptions Adopting Release, supra note 4, at section II.C.1. (discussing the definition of 

“client” in rule 202(a)(30)-1). 
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We are not adopting a proposed amendment to specify that, for purposes of the national 

de minimis standard, an adviser is not required to count as a client any person for whom the 

adviser provides investment advisory services without compensation.373 We received a comment 

letter opposing this amendment, citing the fact that under proposed rule 202(a)(30)-1, an adviser 

would be required to count such a person as a client for purposes of the “foreign private adviser” 

definition in section 202(a)(30) of the Act.374

f. Rule 202(a)(11)-1 

 The commenter stated that it would be confusing 

and inconsistent to require an adviser to count the same person as a client for purposes of the 

“foreign private adviser” definition, but not for the national de minimis standard. We agree. 

Thus, in the interests of consistency and clarity, advisers must count such clients for both 

purposes. 

We are rescinding rule 202(a)(11)-1 under the Advisers Act.375 Although the rule was 

vacated by a federal appeals court (and is therefore not in effect), it has remained in the CFR.376

III. EFFECTIVE AND COMPLIANCE DATES

A. Effective Dates

The effective date of rules 204-4 and 203A-5(b) and (c), amendments to rules 0-7, 203A1, 203A-2, 203A-3, 204-1, 204-2, 206(4)-5, 222-1, and 222-2, and amendments to Forms ADV, 

ADV-E, ADV-H, and ADV-NR is September 19, 2011. The effective date of rule 203A-5(a)

 

373 See Implementing Proposing Release, supra note 7, at section II.D.2.e. 

374 See NASAA Letter; Exemptions Adopting Release, supra note 4, at section II.C.1. 

375 Rule 202(a)(11)-1. Rule 202(a)(11)-1 addressed the application of the Advisers Act to brokerdealers offering certain types of brokerage programs. 

376 See Financial Planning Association v. SEC, 482 F.3d 481 (D.C. Cir. 2007). 
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and the amendment to rule 203-1 is July 21, 2011.377

B. Compliance Dates

 Rules 202(a)(11)-1, 203(b)(3)-1, 

203(b)(3)-2, and 203A-4 are rescinded effective September 19, 2011. 

1. Transition to State Registration and Form ADV 

As discussed in section II.A.1 above, new rule 203A-5 provides 90 days from December 

31, 2011 for each adviser registered with us to determine whether it is eligible for Commission 

registration.378 Accordingly, the rule requires all registered advisers to file an amended Form 

ADV by March 30, 2012,379 which for most of our registrants will be their annual updating 

amendments that are due 90 days after their December 31, 2011 fiscal year ends.380 For an 

adviser that is no longer eligible to remain registered with us, rule 203A-5 provides an additional 

90 days for it to register in one or more of the states and withdraw its registration with us.381 

After January 1, 2012, any adviser filing an amendment to Form ADV to meet the filing 

requirements of rule 203A-5 or for any other purpose will be required to provide responses to the 

form revisions we are adopting today.382

 

377 See section IV infra (discussing certain administrative law matters associated with the effective 

date for new rule 203A-5(a) and amended rule 203-1(e)). 

 Our staff is working closely with FINRA, our IARD 

contractor, to re-program IARD and we understand that the system is expected to be able to 

378 See new rule 203A-5; supra section II.A.1. 

379 See new rule 203A-5(b); supra section II.A.1. 

380 Advisers not filing an annual updating amendment from January 1 to March 30, 2012, must file 

an other than annual amendment updating Form ADV. 

381 See new rule 203A-5(c)(1). A mid-sized adviser that must switch to state registration may not 

withdraw its SEC registration until January 1, 2012. See new rule 203A-5(a); supra section 

II.A.1. 

382 See supra note 25 and accompanying text.
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accept filings of revised Form ADV by January 1, 2012. 383

2. Advisers Previously Exempt under Section 203(b)(3) 

 Investment advisers filing initial 

applications for registration after the IARD is re-programmed to accommodate filing of the 

revised Form ADV must complete the revised form. 

We are adopting a transition provision in rule 203-1 for advisers that are newly required 

to register due to the Dodd-Frank Act’s repeal of the “private adviser” exemption in section 

203(b)(3).384 Under rule 203-1(e), an adviser that was relying on, and was entitled to rely on, the 

“private adviser” exemption in section 203(b)(3) on July 20, 2011, may delay registering with 

the Commission until March 30, 2012.385 Because initial applications for registration can take 

up to 45 days to be approved, advisers relying on this transition provision to remain unregistered 

until March 30, 2012 should file a complete application, both Part 1 and a brochure(s) meeting 

the requirements of Part 2 of Form ADV at least by February 14, 2012.386

To qualify for the delayed transition under rule 203-1(e) an adviser must, during the 

course of the preceding 12 months, have had fewer than 15 clients and neither hold itself out 

generally to the public as an investment adviser nor act as an adviser to a registered investment 

 

383 As discussed in section II.B.1, we are also making technical amendments to Forms ADV-H and 

ADV-NR to account for the fact that exempt reporting advisers, along with registered advisers, 

will file these forms. 

384 See amended rule 203-1(e); section 203(b)(3) of the Advisers Act. 

385 See amended rule 203-1(e). See also Letter from Robert E. Plaze, Associate Director, Division of 

Investment Management, U.S. Securities and Exchange Commission, to David Massey, Deputy 

Securities Administrator, North Carolina Securities Division, and President, NASAA (Apr. 8, 

2011) available at http://www.sec.gov/rules/proposed/2010/ia-3110-letter-to-nasaa.pdf (stating 

that the Commission would potentially consider extending the date by which these advisers must 

register and come into compliance with the obligations of a registered adviser until the first 

quarter of 2012). 

386 See section 203(c)(2) of the Advisers Act (providing that the Commission will grant registration 

or institute proceedings to determine whether registration should be denied within 45 days of the 

date an adviser files and application for registration). 
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company or business development company.387 The transition period will provide these advisers 

with needed additional time to work through any technical issues associated with applying for 

registration and to establish compliance with Advisers Act provisions and rules to which they are 

newly subject as advisers required to register.388

3. Exempt Reporting Advisers 

 As such, we believe that the temporary 

extension of the registration deadline provided by rule 203-1(e) will assure an orderly transition 

to registration that will minimize costs to these advisers and their clients. 

Exempt reporting advisers must file their first reports on Form ADV through IARD 

between January 1 and March 30, 2012. We originally proposed to require exempt reporting 

advisers to file initial reports by August 20, 2011.389

 

387 See amended rule 203-1(e). An adviser relying on the transition provision must come into 

compliance with Advisers Act statutory provisions and rules applicable to registered advisers by 

the time it is registered, which must occur no later than March 30, 2012. However, nothing in the 

transition provision exempts these advisers from Advisers Act provisions and rules to which they 

are currently subject. For example, the Advisers Act pay to play rule, rule 206(4)-5, currently 

applies to advisers exempt from registration under the “private adviser” exemption in section 

203(b)(3) of the Act. See supra section II.D.1. (discussing our amendments to the pay to play 

rule, one of which is designed so that advisers exempt from registration under the “private 

adviser” exemption in section 203(b)(3) continue to be subject to the pay to play rule after the 

Dodd-Frank Act eliminates the exemption).

 However, we are further delaying the 

compliance date to accommodate re-programming of the IARD system on which these reports 

388 We received a number of comment letters requesting that these advisers have additional time after 

July 21, 2011 (the date the Dodd-Frank Act’s repeal of the section 203(b)(3) private adviser 

exemption becomes effective) to become registered and to establish compliance with all 

provisions of the Advisers Act and rules thereunder to which they are newly subject by virtue of 

their required registration. See CompliGlobe Letter; MFA Letter; Schnase Letter; Shearman 

Letter. We are using our authority under section 206A of the Act to implement this transition to 

registration. We believe that providing advisers newly required to register with this additional 

transition period is necessary or appropriate in the public interest and consistent with the 

protection of investors and the purposes fairly intended by the policy and provisions of the 

Advisers Act. 

389 See Implementing Proposing Release, supra note 7, at section II.B.4. 
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will be filed.390 The extended deadline of March 30, 2012 will also address concerns raised by 

commenters that advisers will not have sufficient time to determine whether they qualify for the 

new exemptions, familiarize themselves with Form ADV and IARD, collect the data necessary 

to file an initial report, and to file the report.391

4. Other Amendments

 

As discussed in section II.A.5., advisers may rely on our amendments to rule 203A-2 

beginning on September 19, 2011.392 These include our amendments to increase the threshold 

for pension consultants from $50 million to $200 million and to create a uniform threshold for 

small and mid-sized advisers that permits them to register with the Commission if they are 

required to register in 15 or more states.393

IV. CERTAIN ADMINISTRATIVE LAW MATTERS

 Advisers may begin relying on our amendment to the 

buffer in rule 203A-1 on September 19, 2011. In addition, as discussed in section II.D.1, we are 

extending the compliance date for the pay to play rule’s ban on third-party solicitation from 

September 13, 2011 to June 13, 2012. Advisers must comply with any other amendments not 

discussed in this section III.B by their effective dates. 

As discussed in section III.A above, the effective date for rule 203A-5(a) and the 

amendment to rule 203-1 is July 21, 2011. The Administrative Procedure Act generally requires 

that an agency publish a final rule in the Federal Register not less than 30 days before its 

effective date.394

 

390 See supra section II.A.1. (discussing the expectation that the IARD will be re-programmed in 

November 2011). 

 However, this requirement does not apply if the rule is a substantive rule which 

391 See ABA Committees Letter; Merkl Implementing Letter. 

392 See supra note 118. 

393 See supra section II.A.5.

394 See 5 U.S.C. 553(d). 
-97- 

grants or recognizes an exemption or relieves a restriction, if the rule is interpretive, or if the 

agency finds good cause to make the rule effective less than 30 days after its date of publication 

in the Federal Register.395 Effective July 21, 2011, the Dodd-Frank Act amends section 203A of 

the Advisers Act to prohibit certain mid-sized advisers from registering with the Commission, 

and eliminates the “private adviser” exemption in section 203(b)(3), requiring advisers relying 

on that exemption to register as of July 21, 2011.396 Rule 203A-5(a) provides a temporary 

extension of the deadline by which certain mid-sized advisers must withdraw their Commission 

registration, and rule 203-1(e) provides a temporary extension of the registration deadline for 

advisers relying on the “private adviser” exemption in section 203(b)(3).397

V. COST-BENEFIT ANALYSIS

 Thus, both rule 

203A-5(a) and rule 203-1(e) recognize an exemption or relieve a restriction. Furthermore, as 

discussed in sections II.A and III.B.2 of this Release, we believe that these temporary extensions 

are necessary to facilitate an orderly process for advisers relying on the “private adviser” 

exemption in section 203(b)(3) to apply for registration and for mid-sized advisers to withdraw 

from registration, and to provide sufficient time for the re-programming of IARD. Thus, we find 

good cause to make rules 203A-5(a) and 203-1(e) effective on July 21, 2011. 

 We are sensitive to the costs and benefits imposed by our rules, and understand that there 

will be costs associated with compliance with the new rules and rule amendments. The new 

rules and amendments we are adopting are designed to give effect to provisions of Title IV of the 

Dodd-Frank Act that: (i) reallocate responsibility for oversight of investment advisers by 

delegating generally to the states responsibility over certain mid-sized advisers; (ii) repeal the 

 

395 See id. 

396 See sections 403, 410, and 419 of the Dodd-Frank Act; sections 203(b)(3), 203A(a)(2) of the 

Advisers Act; supra sections I and II.A.

397 See amended rule 203-1(e) and new rule 203A-5(a); supra section II.A and section III.B.2. 
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“private adviser” exemption contained in section 203(b)(3) of the Advisers Act; and (iii) provide 

for reporting by advisers to certain types of private funds that are exempt from registration. As 

part of these amendments, we are also adopting amendments to the Advisers Act pay to play 

rule, rule 206(4)-5. Additionally, we are identifying the advisers that may be subject to the 

Dodd-Frank Act’s requirements concerning certain incentive-based compensation arrangements. 

Because many of the new rules and rule amendments will implement or clarify provisions of the 

Dodd-Frank Act, they will not create benefits and costs separate from the benefits and costs 

considered by Congress in passing the Dodd-Frank Act.398 However, certain of the rules and 

rule amendments that we are adopting will generate costs and benefits independent of those 

generated by the Dodd-Frank Act itself. These costs and benefits are discussed below. 399

In the Implementing Proposing Release, we requested comment on the proposed rules 

and amendments, suggestions for additional changes to the existing rules, and comment on other 

matters that might have an effect on our proposals. We received approximately 73 comment 

letters on the proposal. Commenters generally supported our approach facilitating mid-sized 

advisers’ transition from Commission to state registration, and our amendments to Form ADV 

requiring disclosure of additional information about private funds. Many, however, urged us to 

take a different approach to revising the pay to play rule. 

A. Benefits

 

398 See Dodd-Frank Act, supra note 2; Conference Committee Report, supra note 136; Senate 

Committee Report, supra note 18; supra section I. Rules and amendments not generating costs 

and benefits independent of those generated by the Dodd-Frank Act include the amendments to 

rules 0-7, 204-2, 222-1, 222-2 and our rescinding of rules 202(a)(11)-1, 203(b)(3)-1, and 

203(b)(3)-2. 

399 To indicate the scale of the market which is addressed by Title IV of the Dodd-Frank Act and the 

amendments to Advisers Act rules we are adopting today—the market for investment advisory 

services—based on IARD data as of April 7, 2011, our staff estimates that SEC-registered 

advisers manage approximately $43.822 trillion in assets. 
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1. Eligibility to Register with the Commission: Section 410

Section 410 of the Dodd-Frank Act amends section 203A of the Advisers Act to create a 

new category of “mid-sized advisers” and shifts primary responsibility for their regulatory 

oversight to the states. Specifically, section 410 prohibits an investment adviser from registering 

with the Commission if the adviser is required to be registered and is subject to examination as 

an investment adviser in the state in which it maintains its principal office and place of business, 

and has assets under management between $25 million and $100 million.400

Transition to State Registration

 We are adopting 

rules and rule amendments that provide us with a means of identifying advisers that must 

transition to state regulation, clarify the application of new statutory provisions, and modify 

certain exemptions we previously adopted under section 203A of the Act. 

 We are adopting new rule 203A-5, which requires each investment adviser registered 

with us on January 1, 2012 to file an amendment to its Form ADV no later than March 30, 2012, 

and withdraw from Commission registration by June 28, 2012, if no longer eligible.401 As a 

consequence of section 410 of the Dodd-Frank Act, we estimate that approximately 3,200 SECregistered advisers will be required to withdraw their registration and register with one or more 

state securities authorities.402

 

400 See supra notes 

 We believe this filing is necessary for each adviser to confirm its 

current eligibility for Commission registration in light of multiple statutory changes (as well as 

changes to the rules that we are today adopting) that could affect whether the adviser may 

18-19 and accompanying text (discussing section 410 of the Dodd-Frank Act, 

which amends section 203A of the Advisers Act to increase the threshold above which all 

investment advisers must register with the Commission from $25 million to $100 million). 

401 New rule 203A-5(b)-(c); supra section II.A.1. Mid-sized advisers registered with the 

Commission as of July 21, 2011 must remain registered with the Commission (unless an 

exemption from Commission registration otherwise is available) until January 1, 2012. New rule 

203A-5(a). See supra note 28. 

402 See supra note 22 and accompanying text. 
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register with the Commission.403 Given this significant realignment of regulatory authority over 

numerous advisers, requiring all advisers to file the new Form ADV and complete all items also 

will allow us and the state securities authorities to easily and efficiently identify the advisers that 

are subject to our regulatory authority and which advisers have switched to state registration after 

the implementation of the Dodd-Frank Act’s amendment to section 203A of the Advisers Act. 

Additionally, the filing will help minimize any potential uncertainty among investors and other 

market participants about the effects of the Dodd-Frank Act on the registration status of a 

particular adviser by providing a simple, efficient means of determining an adviser’s registration 

status after the implementation of the Dodd-Frank Act through the IARD as of a specific date. 

This could help minimize any disruption in advisory business that such uncertainty could 

provoke. One commenter agreed with our expectation that the transition rule will benefit 

advisers, noting that the rule will “assist mid-sized advisers in transitioning from federal to state 

registration.”404

 Rule 203A-5 that we are adopting today differs from the one we proposed in several 

respects. First, rule 203A-5 requires advisers already registered with the Commission to refile 

Form ADV beginning on January 1, 2012, instead of beginning on July 21, 2011 as proposed.

 

405 

We stated in the Implementing Proposing Release that a delay might be necessary if the IARD 

was not re-programmed to reflect the revised Form ADV by July 21.406

 

403 In addition, we believe that requiring advisers to complete all of the items will provide the 

Commission and the state regulatory authorities with essential information about the advisers that 

are transitioning to state registration and the advisers that are remaining registered with the 

Commission. See infra section II.C. 

 We now understand that 

beginning in November 2011, the IARD will be updated to reflect the revisions to Form ADV 

404 Pickard Letter.

405 See new rule 203A-5(b); proposed rule 203A-5(a); supra section II.A.1. 

406 Implementing Proposing Release, supra note 7, at section II.A.1. 
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that we are adopting today.407 Several commenters agreed with our approach to delay the 

transition instead of adopting alternative requirements, such as requiring interim paper filings, to 

reduce burdens for both advisers and regulators.408

Second, rule 203A-5 provides a 180-day transition period, which is longer than the 90-

day period we proposed.

 Additionally, we believe that delaying the 

beginning of the transition until January 1, 2012 will allow the Commission and state regulators 

to manage the transition of mid-sized advisers in an orderly manner, and will accommodate the 

re-programming of the IARD that eliminates the need and cost of alternatives such as interim 

paper filings. 

409 Advisers will be required to file an amended Form ADV by March 

30, 2012 (instead of August 20, 2011, as proposed), and mid-sized advisers no longer eligible for 

Commission registration will be required to withdraw by June 28, 2012 (instead of October 19, 

2011, as proposed).410 Changing the deadline for advisers to refile amended Form ADV to 

March 30, 2012, which coincides with most advisers’ required annual updating amendment, 

significantly reduces the burden of rule 203A-5 by eliminating the costs associated with a special 

one-time filing requirement for most registered advisers.411

 

407 FINRA informed us that the IARD will be updated to reflect the revisions to Form ADV that we 

are adopting today beginning in November. See supra section II.A.1. 

 In addition, the change in deadline 

408 See Dezellem Letter (urging the Commission to wait for the IARD to be reprogrammed because 

it is efficient and reduces risks of misplacing paper documents and possible filing errors); 

NASAA Letter (“the benefits of electronic filing, including easy public access to the documents, 

are significant and would outweigh any disadvantages imposed by a delay in filing deadlines.”); 

NRS Letter (urging Commission not to “regress to paper filings” which would be “a huge step 

into the past” and “appears to be counter to Dodd-Frank Act purposes of transparency and 

consistency.”). See also NYSBA Committee Letter.

409 See new rule 203A-5(b)-(c); proposed rule 203A-5(a)-(b) and supra section II.A.1. 

410 See new rule 203A-5(b)-(c); proposed rule 203A-5(a)-(b); Implementing Proposing Release, 

supra note 7, at section II.A.1. 

411 See, e.g., CMC Letter (suggesting “timing of the transition from federal to state registration could 

be centered around renewals for 2012”). As of April 7, 2011, 10,636 SEC-registered advisers had 

a fiscal year ending on December 31. We expect that these advisers will comply with new rule 
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to refile also coincides with the filing deadline for newly registering private fund advisers, 

which, as one commenter pointed out, eliminates the need for these advisers also to file Form 

ADV solely for the purposes of determining eligibility for registration.412 Also, the June 28, 

2012 deadline to withdraw from registration will provide additional time for advisers to complete 

the switch to state registration and to comply with their obligations under state law, and will 

reduce administrative burdens for the state securities authorities that must review and process 

mid-sized adviser state registrations, as underscored by several commenters.413 Several 

commenters expressed concerns about the burdens of requiring all advisers to amend all of Form 

ADV solely to indicate their eligibility to register414 and requiring mid-sized advisers to switch 

to state registration within 90 days after July 21, 2011.415

 

203A-5(b)’s Form ADV filing requirement by submitting their annual updating amendment. The 

868 SEC-registered advisers not required to file an annual updating amendment between January 

1, 2012 and March 30, 2012 will file an other-than-annual amendment, but they will complete all 

of the items on the form (not just the items required to be updated in a typical other-than-annual 

amendment). See supra note 

 The revised transition discussed above 

should allay these concerns. We believe that providing advisers with 180 days, rather than 90 

48. 

412 See MFA Letter.

413 Many commenters urged us to provide additional time for mid-sized advisers to complete the 

switch to state registration. See ABA Committees Letter; Altruist Letter; CMC Letter; Dezellem 

Letter; Dinel Letter; FSI Letter; Klein Letter; NRS Letter; NYSBA Committee Letter; Sadis 

Letter; Schnase Letter; Seward Letter; Shearman Letter. Several commenters echoed concerns 

about timely state processing of applications, noting, in particular, additional registration and 

compliance requirements in many states and expected delays to approve state registrations given 

the increase in filings as a result of the Dodd-Frank Act. See ABA Committees Letter (“some 

states may be unable to process such filings in a timely and efficient manner.”); Altruist Letter 

(noting that it took 122 days for a state to approve its application). See also CMC Letter; 

Dezellem Letter; Klein Letter; NRS Letter; NYSBA Committee Letter; Schnase Letter; Seward 

Letter. One commenter, while supporting the method and timeline for transition contained in 

proposed rule 203A-5, suggested that it would be prudent to include in the rule flexibility to 

extend this timeline if necessary. See NASAA Letter. 

414 See, e.g., ICI Letter; MFA Letter; NYSBA Committee Letter; Shearman Letter. 

415 See, e.g., ABA Committees Letter; Altruist Letter; CMC Letter; Dezellem Letter; Dinel Letter; 

FSI Letter; Klein Letter; NRS Letter; NYSBA Committee Letter; Sadis Letter; Schnase Letter; 

Seward Letter; Shearman Letter. Only one commenter supported the proposed 90-day grace 

period. Pickard Letter. 
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days, to transition to state registration will allow them to do so in a more orderly manner.416

Finally, we are providing additional flexibility for an adviser to choose the date by which 

it must calculate its assets under management that it reports on Form ADV by requiring the same 

90 day period as in Form ADV today, instead of 30 days, as proposed.

 It 

will provide them greater time to collect the information necessary for state registration and to 

assess and to come into compliance with state regulations governing advisers. As such, it may 

promote efficiency and reduce advisers’ costs. 

417 This change will make 

an additional administrative burden unnecessary for the majority of advisers that already value 

assets on a quarterly basis, as underscored by several commenters.418

Switching Between State and Commission Registration 

Rule 203A-1 is designed to prevent an adviser from having to switch frequently between 

state and Commission registration as a result of changes in the value of its assets under 

management or the departure of one or more clients. We are amending the rule to eliminate the 

current buffer for advisers with assets under management between $25 million and $30 million 

that permits these advisers to remain regulated by the states, and we are replacing it with a 

similar buffer for mid-sized advisers with assets under management of close to $100 million.419

 

416 Our current rules provide an SEC-registered adviser that has to switch to state registration a 

period of 180 days after its fiscal year end to file an annual amendment to Form ADV and to 

withdraw its SEC registration after reporting to us that it is no longer eligible to remain registered 

with us. See rule 203A-1(b)(2); cf. rule 204-1(a). Several commenters recommended the 

Commission match the current 180-day period. See Altruist Letter; Dezellem Letter; FSI Letter; 

Klein Letter; NYSBA Committee Letter; Schnase Letter; Seward Letter; Shearman Letter. 

 

The rule raises the threshold above which a mid-sized adviser must register with the Commission 

417 See new rule 203A-5(b); amended Form ADV: Instructions for Part 1A, instr. 5.b.(4); supra 

section II.A.1. 

418 Several commenters recommended that advisers be able to calculate assets under management as 

of the quarter-end. See Altruist Letter; NYSBA Committee Letter; Seward Letter; Shearman 

Letter.

419 See amended rule 203A-1(a); supra note 103 and accompanying text. 
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to $110 million; but, once registered with the Commission, an adviser need not withdraw its 

registration until it has less than $90 million of assets under management.420 Commenters did 

not object to elimination of the current buffer, but several argued that we need to include a new 

buffer for mid-sized advisers that have close to $100 million of assets under management.421 

These comments persuaded us to adopt a buffer that, as discussed below, may prevent costs and 

disruption to advisers that otherwise may have had to switch between federal and state 

registration frequently.422 The rule also maintains the 180-day grace period from the adviser’s 

fiscal year end for advisers no longer eligible to switch to state registration,423 which further 

addresses commenters’ concerns about advisers frequently having to switch registration.424

We are eliminating the current $5 million buffer, as proposed, because, as one commenter 

noted, it seems “unnecessary and potentially confusing,”

 

425 particularly in light of Congress’s 

determination generally to require most advisers having between $25 million and $100 million of 

assets under management to be registered with the states.426

 

420 See amended rule 203A-1(a); supra note 

 Elimination of the current buffer 

also promotes efficiency and competition by making the registration requirements for advisers 

with assets under management between $25 million and $30 million consistent with the 

requirements for advisers with assets under management between $30 million and $100 million. 

106. 

421 See Altruist Letter; Dezellem Letter; Dinel Letter; FSI Letter; ICW Letter; JVL Associates Letter; 

Merkl Implementing Letter; NASAA Letter; NRS Letter; NYSBA Committee Letter; Wealth 

Coach Letter; WJM Letter. 

422 Several commenters discussed the costs of switching frequently between federal and state 

registration. See, e.g., Altruist Letter; ICW Letter; JVL Associates Letter; NRS Letter; Wealth 

Coach Letter. 

423 See amended rule 203A-1(b)(2); supra note 104 and accompanying text. 

424 See Altruist Letter; Dezellem Letter; Dinel Letter; FSI Letter; ICW Letter; JVL Associates Letter; 

Merkl Implementing Letter; NRS Letter; NYSBA Committee Letter; Wealth Coach Letter; WJM 

Letter.

425 ABA Committees Letter. 

426 See supra note 18. 
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The new buffer yields several benefits, also identified by commenters, including 

enhancing efficiency because it will prevent advisers from frequently switching to and from 

Commission registration due to market fluctuations.427 The buffer also will eliminate the 

additional costs and resulting competitive disadvantages these advisers would therefore incur 

(such as paying filing fees and changing compliance programs to reflect a different regulatory 

regime).428 The amendment operates to provide a buffer of 20 percent of the $100 million 

statutory threshold for registration with the Commission, which is the same percentage as the 

current buffer. We believe a 20 percent buffer is appropriate because it is large enough to create 

a flexible regime that accommodates market fluctuations or the departure of one or more clients, 

and does not substantially increase or decrease the $100 million threshold set by Congress in the 

Dodd-Frank Act.429 Commenters further asserted that the buffer will reduce burdens for 

investors, clients and regulators,430 and will provide regulatory flexibility.431

 

427 Commenters said a 20 percent buffer should prevent advisers from having to switch as a result of 

changes in market values due to volatility in the securities markets. See, e.g., Dezellem Letter; 

Dinel Letter; WJM Letter. See also Altruist Letter; FSI Letter; ICW Letter; Merkl Implementing 

Letter; NYSBA Committee Letter. Several advisers with close to $100 million of assets under 

management asserted that a buffer is necessary to prevent them from switching to and from 

Commission registration. ICW Letter (for three years, adviser’s assets under management have 

fluctuated above and below $100 million due to market volatility); JVL Associates Letter 

(adviser’s assets under management have fluctuated around $100 million since 2007). See also 

Wealth Coach Letter (from October 2008 through March 2009, adviser’s total assets under 

management fell over 25 percent).

 

428 See ICW Letter (having to switch back and forth “would create a disproportionate regulatory 

burden and cost structure” and would “place them at a significant operating and financial 

disadvantage to advisory firms clearly exposed to only one regulatory regime that is not likely to 

change.”); WJM Letter (not having a buffer potentially puts an unreasonable and unfair burden on 

the smaller SEC advisers and could mean they would re-register several times before getting into 

a “safe” zone). See also Dezellem Letter; FSI Letter; Wealth Coach Letter.

429 See supra note 117. 

430 See Dezellem Letter (arguing new registrations are time consuming and costly for regulators and 

advisers, and adopting a buffer will decrease investor confusion); FSI Letter (arguing a buffer 

will reduce costs associated with re-registration that would be passed on to investors); Wealth 

Coach Letter (arguing different registrations could overwhelm clients, and the resources required 

to change registration could negatively impact an adviser’s client services and portfolio 
-106- 

Exemptions from the Prohibition on Registration with the Commission 

We are amending three of the exemptions from the prohibition on registration in rule 

203A-2 to reflect developments since their original adoption, including the enactment of the 

Dodd-Frank Act.432 First, we are eliminating the exemption in rule 203A-2(a) from the 

prohibition on Commission registration for NRSROs.433 Currently, no advisers indicate that they 

are NRSROs by marking Item 2.A.(5) of Part 1A of Form ADV.

434 Given that NRSROs do not 

currently rely on the exemption and Congress excluded certain NRSROs from the Act’s 

definition of “investment adviser” since we adopted this exemption,435 the amendment will not 

generate any benefits or costs and will not impact efficiency, competition or capital formation, 

separate from the benefit of simplifying our rules and, as one commenter noted, will increase 

“consistency across legislative and regulatory requirements.”436

Second, we are amending the exemption available to pension consultants in rule 203A2(b) to increase the minimum value of plan assets on which an adviser must consult from $50 

million to $200 million.437

 

management); WJM Letter (arguing clients would be “puzzled or concerned” by registration 

changes, and multiple re-registrations would put additional burdens on states). 

 We are increasing the threshold to $200 million in light of 

431 See NASAA Letter (arguing a buffer “provides an element of regulatory flexibility.”).

432 See amended rule 203A-2; supra section II.A.5. We are also renumbering and making minor 

conforming changes to rule 203A-2(c), (d) and (f). See amended rule 203A-2(b), (c) and (e). 

Each of the exemptions from the prohibition on registration in rule 203A-2 (including those we 

are not amending) also apply to mid-sized advisers, which one commenter asserted “promotes 

uniformity, clarity and a consistent standard for all.” NRS Letter. See supra note 119. 

433 See supra section II.A.5.a. 

434 Based on IARD data as of April 7, 2011. 

435 See supra notes 121-122. 

436 NRS Letter (asserting that the proposal is consistent with the Credit Rating Agency Reform Act, 

which amended the Advisers Act to exclude NRSROs and to provide for a separate regulatory 

regime for them under the Exchange Act). See also Pickard Letter (asserting that continued 

availability of the NRSRO exemption is causing confusion among advisers).

437 See amended rule 203A-2(a); supra section II.A.5.b. 
-107- 

Congress’s determination to increase from $25 million to $100 million the amount of assets 

under management that requires advisers to register with the Commission, and to maintain the 

same ratio as today of plan assets to the statutory threshold for registration.438 This amendment 

will provide the benefit to these firms of registering with a single securities regulator, and will 

provide the regulatory benefit of allowing the Commission to focus its resources on oversight of 

those pension consultants that are more likely to have an effect on national markets.439

Finally, we are amending the multi-state adviser exemption to align the rule with the 

multi-state exemption Congress provided for mid-sized advisers in section 410 of the DoddFrank Act.

 

440 Amended rule 203A-2(d) permits all investment advisers who are required to 

register as an investment adviser with 15 or more states to register with the Commission, rather 

than 30 states, as currently required.441 An adviser relying on the rule must withdraw from 

registration with the Commission when it is no longer required to register with 15 states.442 We 

believe this change reflects the Congressional determination to set the threshold at 15 states.443 

This amendment reduces the regulatory burdens on advisers required to be registered with at 

least 15 states, but less than 30, by allowing them to register with a single securities regulator — 

the Commission.444

 

438 See supra note

 Additionally, the amendment promotes efficiency and reduces the effect on 

127. 

439 One commenter expressed support for the $200 million threshold. See NRS Letter (agreeing that 

the $200 million threshold would continue to ensure that the activities of a pension consultant 

registered with the Commission are significant enough to have an impact on national markets). 

440 See amended rule 203A-2(d); supra section II.A.5.c. 

441 See supra note 131. 

442 See supra note 132. 

443 See supra note 136. 

444 See Seward Letter, and Shearman Letter (in each case supporting the 15-state threshold we 

proposed, and suggesting the burdens of maintaining multiple state registrations can be 

significant). See also NEA Letter. One of these commenters also would support further 

decreasing the number of states to five and requiring advisers relying on the exemption to have at 
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competition between small and mid-sized investment advisers by imposing a consistent multistate exemption standard.445 We also are rescinding, as proposed, the provision in the current 

rule that permits advisers to remain registered until the number of states in which they must 

register falls below 25 states, and we are not adopting a similar cushion for the 15-state 

threshold.446 We do not see any significant benefit of retaining this buffer, and we believe it is 

unnecessary because advisers elect to rely on the exemption and we are lowering the number of 

states from 30 to 15. As one commenter observed, eliminating the buffer also simplifies the 

requirements of the exemption.447

Elimination of Safe Harbor 

We are rescinding, as proposed, rule 203A-4, which has provided a safe harbor from 

Commission registration for an investment adviser that is registered with the state securities 

authority of the state in which it has its principal office and place of business based on a 

reasonable belief that it is prohibited from registering with the Commission because it does not 

have sufficient assets under management.448

 

least $25 million of assets under management. Seward Letter. Another “would support an even 

lower threshold.” Shearman Letter. 

 As discussed above, the safe harbor was designed 

for smaller advisory businesses with assets under management of less than $30 million, which 

may not employ the same tools or otherwise have a need to calculate assets as precisely as 

445 NASAA Letter (supporting amendment “as an effort to be more consistent in the registration 

requirements for all advisers when analyzing the thresholds for registration with the SEC or the 

states.”); NRS Letter (“Establishing one uniform standard for all advisers of a 15-state 

requirement provides a uniform and clear standard.”). See also NEA Letter (strongly 

recommending the 15-state threshold be applied to both small and mid-sized advisers). 

446 See rule 203A-2(e)(1); supra section II.A.5.c. 

447 See NRS Letter (“The Dodd-Frank Act has addressed the multi-state adviser exemption to 

simplify the requirements of this exemption.”). 

448 See rule 203A-4; supra section II.A.6. 
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advisers with greater assets under management.449 We also believe that the revisions we are 

adopting to the Form ADV instructions to implement a uniform method for advisers to calculate 

assets under management will clarify the requirements and reduce confusion among advisers.450 

Moreover, the rule is a safe harbor only from our enforcement actions, and to our knowledge 

few, if any, advisers have relied upon it in the 14 years since it was adopted.451

Mid-Sized Advisers

 We believe 

rescinding the safe harbor will simplify our rules in general, thereby marginally reducing costs of 

compliance, and will have little, if any, other effect on efficiency, competition or capital 

formation. 

The Dodd-Frank Act does not explain how to determine whether a mid-sized adviser is 

“required to be registered” or is “subject to examination” by a particular state securities authority 

for purposes of section 203A(a)(2)’s prohibition on mid-sized advisers registering with the 

Commission.452 We are providing in the instructions to Form ADV an explanation of how we 

construe these statutory provisions.453 Our instructions are intended to clarify the meaning of 

these provisions, promoting efficiency by mitigating uncertainty about their meaning. For 

example, as underscored by commenters, because we are identifying to advisers filing on the 

IARD the states that do not subject advisers to examination, a mid-sized adviser will not be 

required to independently determine whether it is subject to examination in a particular state.454

 

449 See supra note 

 

140. 

450 See supra note 141. 

451 See supra note 142. 

452 See supra note 145. 

453 See amended Form ADV: Instructions for Part 1A, instr. 2.b.; supra section II.A.7. 

454 See NRS Letter (noting “the wide range of state regulatory regimes and processes” and 

supporting “efforts to verify those states which do or will subject advisers to examinations.”); 

Sadis Letter (noting different state examination practices and arguing that clarification of 
-110- 

Simplifying the process for mid-sized advisers to determine whether they are required to register 

with us would decrease any competitive disadvantages compared to smaller advisers. 

2. Exempt Reporting Advisers: Sections 407 and 408 

Congress gave us broad authority under sections 203(l) and 203(m) of the Advisers Act 

to require exempt reporting advisers to file reports as necessary or appropriate in the public 

interest or for the protection of investors.455 To implement these new sections of the Advisers 

Act, we are adopting new rule 204-4, as proposed, that requires exempt reporting advisers to 

submit to us, and to periodically update, reports that consist of a limited subset of items on Form 

ADV.456 We are also adopting the amendments we proposed to Form ADV to permit the form to 

serve as both a reporting and registration form and to specify the seven items that exempt 

reporting advisers must complete.457

While the benefits of the reporting requirement under new rule 204-4 are difficult to 

quantify, we believe they are substantial. The information exempt reporting advisers provide on 

Form ADV will be beneficial to both the Commission and investors. This information will help 

us to identify exempt reporting advisers, their owners, and their business models and will provide 

us with information as to whether these advisers or their activities might present concerns 

sufficient to warrant our further attention in order to protect their clients, investors, and other 

market participants.

 

458

 

registration requirements “is vital to the compliance of mid-sized advisers in states...which do 

not have routine examination programs in place for its investment advisers.”). 

 The reports, which will be publicly available, will also provide investors 

455 See sections 407 and 408 of the Dodd-Frank Act, codified as new sections 203(l) and 203(m) of 

the Advisers Act.

456 New rule 204-4(a); amended Form ADV: General Instructions 3 and 4. See supra section II.B. 

457 See supra section II.B.2. 

458 One commenter agreed. ABA Committees Letter. 
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with some basic information about these advisers and their businesses. Several commenters 

agreed, expressing general support for the proposed reporting requirements.459

Under rule 204-4, exempt reporting advisers are required to file their Form ADV reports 

electronically through the IARD.

 

460 We believe that using Form ADV and the IARD for exempt 

reporting adviser reports will yield several important benefits. For instance, using Form ADV 

and the IARD creates efficiencies that benefit both us and filers by taking advantage of an 

established and proven filing system, while avoiding the expense and delay of developing a new 

form and filing system. Several commenters agreed,461 and one explained that, in its view, there 

is “no reason to create a new form or filing system when the existing ones have been designed 

for use by advisers and are suitable for that purpose.”462 In addition, because an exempt 

reporting adviser may be required to register on Form ADV with one or more state securities 

authorities, use of the existing form and filing system (which is shared with the states) should 

reduce regulatory burdens for exempt reporting advisers because they can satisfy multiple filing 

obligations through a uniform form.463

 

459 See, e.g., AFL-CIO Letter; CII Letter; NRS Letter; Better Markets Letter; ABA Committees 

Letter; NASAA Letter.

 Commenters agreed with our expectation that regulatory 

burdens would be diminished for an exempt reporting adviser that later finds it can no longer rely 

on an exemption and would be required to register with us because the adviser would simply file 

460 New rule 204-4(b) and (d).

461 See, e.g., AFL-CIO Letter; Better Markets Letter; NRS Letter; NASAA Letter. Responding to 

our request for comment regarding the possible use of EDGAR in place of the IARD, one 

commenter argued that “[s]uch an approach would be confusing and burdensome for any adviser 

that transitions between [exempt reporting adviser] and SEC-registered status.” ABA 

Committees Letter.

462 ABA Committees Letter. 

463 See supra note 170 and accompanying text. 
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an amendment to its current Form ADV to apply for Commission registration.464 Finally, certain 

items in Form ADV Part 1 are also linked to Form BD, which will create efficiencies if the 

exempt reporting adviser were to apply for broker-dealer registration.465

Requiring exempt reporting advisers to file their reports through the IARD will also 

benefit investors, prospective investors, and other members of the public who can readily access 

the information, without cost, through the Commission’s website on the Investment Adviser 

Public Disclosure (IAPD) system. Investors will have access to some information that may have 

been previously unavailable or not easily attainable, such as whether an exempt reporting adviser 

has certain disciplinary events and whether its affiliates present conflicts of interest or allow 

broader access to other financial services. 

 

Several commenters supported the public availability of exempt reporting adviser reports 

as beneficial to the protection of investors.466 Investor advocacy groups, for instance, lauded the 

Commission’s initiative to create, for the first time, a database of public information on advisers 

to private investment funds.467 Others added that an investor would be better able to perform 

due diligence if the information were made available to the public,468

 

464 See ABA Committees Letter; Better Markets Letter; NRS Letter; NASAA Letter. Form ADV, as 

amended, permits an adviser to transition from filing reports with us to applying for registration 

under the Act by simply amending its Form ADV; the adviser would check the box to indicate it 

is filing an initial application for registration, complete the items it did not have to answer as an 

exempt reporting adviser, and update the pre-populated items that it already has on file. See

amended Form ADV: General Instruction 15 (providing procedural guidance to advisers that no 

longer meet the definition of exempt reporting adviser). 

 and could make an 

informed decision regarding the integrity of a prospective adviser if he or she were able to 

465 Form BD is the Uniform Application for Broker-Dealer Registration. 17 CFR 249.501. 

466 AFL-CIO Letter; CII Letter; Better Markets Letter.

467 Id. 

468 Merkl Implementing Letter.
-113- 

review the disciplinary history of the exempt reporting adviser and its employees.469 In addition, 

requiring exempt reporting advisers to complete Section 7.B. of Schedule D for each private fund 

they manage should result in many of the same benefits that this information produces with 

respect to registered advisers that we address in the discussion of the amendments to Form ADV 

below.470

We have considered the broad public interest in making this information generally 

available, and we agree with commenters who assert there will be important benefits of 

providing information about these advisers to the public. In addition to furnishing us with

important data about the private funds advised by exempt reporting advisers that we can use to 

identify practices that may harm investors,471 and to administer our regulatory programs, these 

reports will create a publicly accessible foundation of basic information that could aid investors 

and prospective investors in conducting due diligence and could further help investors and other 

industry participants protect against fraud.472

 

469 CII Letter.

 The easy availability of information about these 

advisers and their advisory affiliates may also discourage advisers from engaging in certain 

practices (such as maintaining client assets with a related person custodian) or hiring certain 

470 See infra notes 483-488 and accompanying text. 

471 For instance, census data about a private fund’s gatekeepers, including administrators and 

auditors, would be available on amended Section 7.B.(1) of Schedule D and would be verifiable 

by investors and the Commission. Recent enforcement actions suggest that the availability of 

such information could be helpful. See, e.g., SEC v. Grant Ivan Grieve, et al., Litigation Release 

No. 21402 (Feb. 2, 2010) (default judgment against hedge fund adviser that was alleged to have 

fabricated and disseminated false financial information for the fund that was “certified” by a 

sham independent back-office administrator and phony accounting firm); In the Matter of John 

Hunting Whittier, Investment Advisers Act Release No. 2637 (Aug. 21, 2007) (settled action 

against hedge fund manager for, among other things, misrepresenting to fund investors that a 

particular auditor audited certain hedge funds, when in fact it did not). 

472 See infra section V.A.3. 
-114- 

persons (such as those with disciplinary history). Investors’ access to information may also 

facilitate greater competition among advisers, which may in turn benefit clients. 

Electronic reporting by exempt reporting advisers of certain items within Form ADV will 

give us better access to information about these advisers, which will improve the administration 

of our regulatory programs and allow us to identify advisers whose activities suggest a need for 

closer scrutiny. We routinely use the IARD to generate reports on the advisory industry, its 

characteristics and trends. These reports would help us anticipate regulatory problems, identify 

potential conflicts of interest, allocate our resources, and more fully evaluate various regulatory 

actions we may consider taking, which should increase both the efficiency and effectiveness of 

our programs and thus increase investor protection. 

We are also amending rule 204-1 under the Advisers Act, which addresses when and how 

advisers must amend their Form ADV, to require that exempt reporting advisers file updating 

amendments to reports filed on Form ADV.473 As amended, rule 204-1 requires an exempt 

reporting adviser, like a registered adviser, to amend its reports on Form ADV: (i) at least 

annually, within 90 days after the end of the adviser’s fiscal year; and (ii) more frequently, if 

required by the instructions to Form ADV. Similarly, we are amending General Instruction 4 to 

Form ADV to require an exempt reporting adviser, like a registered adviser, to update promptly 

Items 1 (Identification Information), 3 (Form of Organization), and 11 (Disciplinary 

Information) if they become inaccurate in any way, and to update Item 10 (Control Persons) if it 

becomes materially inaccurate.474

Requiring advisers to amend and update their reports assures that we have access to 

updated information. For example, these updates will allow us to know when an exempt 

 

473 Amended rule 204-1. See supra section II.B.4. 

474 See Form ADV: General Instruction 4. 
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reporting adviser has added or no longer advises a private fund client or has reported a 

disciplinary event, which will provide us with the information necessary to assess whether the 

adviser might present sufficient concerns to warrant our further inquiry. Updated information 

also benefits investors, prospective investors, and other members of the public that could use this 

information in evaluating, for example, whether to invest in a venture capital fund managed by 

an exempt reporting adviser. Many commenters who addressed updating and amendment 

requirements agreed with our approach to update the report annually and to amend it according 

to the same schedule as is applicable to registered advisers.475

When an adviser ceases to be an exempt reporting adviser, new rule 204-4 requires the 

adviser to file an amendment to its Form ADV to indicate that it is filing a final report.

 

476 Final 

report filings will allow us and the public to distinguish such a filer from one that is failing to 

meet its filing obligations.477 Commenters who addressed the proposal to require a final report 

endorsed the Commission’s approach.478

 

475 See NRS Letter (expressing general support); Merkl Implementing Letter (stating that less 

frequent reporting would result in information that is less useful or materially inaccurate); CII 

Letter (expressing general support); ABA Committees Letter (asserting that information reported 

by exempt reporting advisers that is allowed to become significantly outdated or inaccurate would 

not serve the Commission’s or public’s interest or protect investors as mandated by the DoddFrank Act, and could be misleading). 

 

476 New rule 204-4(f); Form ADV: General Instruction 15. See section II.B.5. 

477 New rule 204-4(f). Advisers filing a final report are required only to update Item 1 of Part 1A of 

Form ADV and are not required to pay a filing fee. An adviser that failed to file a final report 

would violate rule 204-4(f). 

478 ABA Committees Letter (agreeing that a final report is a reasonable way for an exempt reporting 

adviser to notify the Commission that it is no longer an exempt reporting adviser and endorsing 

the concept of allowing exempt reporting advisers that are transitioning to registration to use a 

single Form ADV filing for the purposes of submitting their final report and their application for 

registration); Merkl Implementing Letter (indicating that the Commission should not require 

some other approach than a final report when an adviser ceases to be an exempt reporting 

adviser). 
-116- 

To accommodate their use by exempt reporting advisers, we also are making technical 

amendments to Form ADV-H, the form advisers use to request a hardship exemption from 

electronic filing,479 and Form ADV-NR, the form certain non-resident advisers use to appoint the 

Secretary of the Commission as an agent for service of process.480

3. Form ADV Amendments 

 Rule 204-4(e) and the 

amendments to Form ADV-H benefit exempt reporting advisers by allowing them to avoid noncompliance with reporting requirements based purely on unanticipated technical difficulties. The 

amendments to Form ADV-NR benefit investors by allowing us to obtain appropriate consent to 

permit the Commission and other parties to bring actions against non-resident partners or agents 

for violations of the federal securities laws. Commenters did not specifically address these 

changes to Form ADV-H and ADV-NR.

As discussed above, we are adopting amendments to Form ADV that will require 

advisers to provide us additional information about: (i) the private funds they advise, (ii) their 

advisory business and conflicts of interest, and (iii) their non-advisory activities and financial 

industry affiliations.481

Private Fund Reporting Requirements 

 We are also adopting certain additional changes intended to improve our 

ability to assess compliance risks and to identify the advisers that are covered by section 956 of 

the Dodd-Frank Act, which addresses certain incentive-based compensation arrangements. 

 

479 New rule 204-4(e) allows exempt reporting advisers having unanticipated technical difficulties 

that prevent submission of a filing to the IARD to request a temporary hardship exemption from 

electronic filing requirements.

480 See amended Form ADV-H; amended Form ADV-NR; amended Form ADV: General Instruction 

19. The amendments to Form ADV-H and Form ADV-NR reflect that exempt reporting advisers 

use the forms in the same way and for the same purpose as they are currently used by registered 

investment advisers. 

481 See supra section II.C. 
-117- 

We are adopting amendments to Item 7.B. and Schedule D of Form ADV that expand the 

information advisers must report to us about the private funds they advise. This reporting will 

provide us with information designed to help us better understand private fund investment 

activities and the scope and potential impact of those activities on investors and markets. The 

information will also assist us in identifying particular practices that may harm investors and will 

allow us to conduct targeted examinations of private fund advisers based on these practices or 

other criteria. The amended reporting items are designed to improve our ability to assess risk, 

identify funds with service provider arrangements that raise a “red flag,” identify firms for 

examination, and allow us to more efficiently conduct examinations. For instance, it would be 

relevant to us to know that a private fund is using a service provider that we are separately 

investigating for alleged misconduct. Responses to the service provider questions will also allow 

us to identify private funds that do not make use of independent service providers and provide 

other key information regarding the identity and role of these private fund gatekeepers. Advisers 

are required to report the gross asset value of the fund, which will help us understand the scope 

of its operations.482

Several commenters agreed with our assessment that the new information will allow us to 

identify harmful practices, improve risk assessment and more efficiently target examinations,

 While no particular item of information may by itself indicate an elevated 

risk of a compliance failure, the reporting as a whole is designed to serve as an input to the risk 

metrics by which our staff identifies potential risk and allocates examination resources. The staff 

conducts similar analyses today, but with fewer inputs. 

483

 

482 See amended Form ADV, Part 1A, Schedule D, Section 7.B.(1)A., question 11. 

and a U.S. Senator added that the data would aid the Financial Stability Oversight Council in 

483 See infra note 265. 
-118- 

monitoring systemic risk.484 In its comment letter, NASAA wrote that “the information required 

of these advisers will be of critical importance to regulators in identifying practices that may 

harm investors.” One commenter who criticized certain aspects of the proposal nonetheless 

conceded that “these disclosures would assist the Commission in seeking to achieve these goals 

[protecting against fraud and assisting in systemic risk evaluation].”485

Prospective and current private fund investors will also benefit from the public disclosure 

of this expanded private fund reporting. Private fund advisers must report information about 

their business, affiliates, owners, gatekeepers, and disciplinary history. This will create a 

publicly accessible foundation of basic information that could aid investors in conducting due 

diligence and could further help investors and other industry participants protect against fraud. 

For example, investors (and their consultants) will be able to compare representations made on 

Schedule D with those made in private offering documents or other materials provided to 

prospective investors. Fund service providers, such as administrators and auditors, may review 

the information that advisers report in order to uncover false representations regarding the 

identity of service providers.486 Some commenters agreed that the public availability of private 

fund data would aid investors.487

 

484 Sen. Levin Letter.

 We continue to believe that public disclosure of this 

information will be valuable to investors precisely because they will be able to compare the 

485 Seward Letter.

486 See Implementing Proposing Release, supra note 7, at n.149 and accompanying text. 

487 See, e.g., AFL-CIO Letter; CII Letter; Better Markets Letter (each lauding the Commission’s 

initiative to create, for the first time, a database of public information on private investment 

funds). 
-119- 

Form ADV information to the information they have received in offering documents and as a 

result of due diligence.488

The expanded private fund reporting will also benefit investors and market participants 

by providing us and other policy makers with improved data. This data will enhance our ability 

to form and frame regulatory policies regarding the private fund industry and its advisers, and to 

evaluate the effect of our policies and programs on this industry, including for the protection of 

private fund investors. Today, we frequently have to rely on data from other sources, when 

available. Private fund reporting will provide us with important information about this rapidly 

growing segment of the U.S. financial system. 

 

Other Amendments to Form ADV 

We are adopting other amendments to Form ADV that refine or expand existing 

questions. These changes will give us a more complete picture of an adviser’s practices, help us 

better understand an adviser’s operations, business and services, and provide us with more 

information to determine an adviser’s risk profile and prepare for examinations. The information 

reported will help us to identify practices that may harm clients, including by detecting data or 

patterns that suggest further inquiry may be warranted and distinguishing additional conflicts of 

interest that advisers may face. For example, the new reporting on related persons will allow us 

to link disparate pieces of information to which we have access concerning an adviser and its 

affiliates to identify whether those relationships present conflicts of interest that create higher 

risks for advisory clients. Another example is the amendment that requires advisers to switch 

from ranges to approximate numbers of employees; although this change refines data we 

previously received, it will enable us to better develop risk-based profiles of advisers. The 

 

488 See supra note 270. See, e.g., Merkl Implementing Letter (noting that a potential investor would 

be better able to perform due diligence if the information were made available to the public).
-120- 

expanded list of activities in which an adviser might engage will help us better understand the 

operations of advisers. Additionally, requiring advisers to report whether they have $1 billion or 

more in assets will help us to identify the advisers that could be subject to rules regarding certain 

excessive incentive-based compensation arrangements required by section 956 of the DoddFrank Act. Overall, the information to be collected on amended Form ADV is designed to 

improve our risk-assessment capabilities and help us improve our allocation of examination 

resources. Commenters who addressed these proposed amendments to Form ADV expressed 

general support.489 One commenter, for instance, agreed that these amendments will improve 

our ability to gather data about firms, to conduct appropriate inquiries, inspections, and other 

activities based on that data, and to focus examination and enforcement resources on those 

advisers that appear to present greater compliance risks.490 Another indicated that the additional 

information the amended form will collect would assist the Commission to identify fund 

advisers, to verify the existence and location of assets and to carry out general market 

surveillance.491

Advisory clients and prospective clients will also benefit from the changes to Form ADV. 

As one commenter indicated, information reported on Form ADV is publicly available, allowing 

investors to use the IAPD as a resource in evaluating potential managers and understanding their 

practices.492

 

489 See supra note 

 For example, clients and prospective clients will be able to see whether an adviser 

or one of its control persons is a public reporting company registered under the Exchange Act 

and then access additional public information about the adviser and/or the control person on the 

216. 

490 See IAA General Letter. 

491 See CPIC Letter.

492 CPIC Letter.
-121- 

EDGAR system. Requiring an adviser to report whether it has $1 billion or more of assets helps 

to inform the adviser, its clients and the public whether or not the adviser may be subject to 

section 956 of the Dodd-Frank Act and any rules or guidelines thereunder. The additional 

information about the adviser’s related persons will assist investors that compare business 

practices, strategies, and conflicts of a number of advisers, which may help them to select the 

most appropriate adviser for them. Clients may also benefit indirectly because advisers may be 

incentivized to implement stronger controls and practices, particularly related to any conflicts of 

interest or business practices that may result in additional risks, because of enhanced client 

awareness. Third parties will also be able to access the new information reported in filings of the 

amended form, allowing academics, businesses, and others to access additional information 

about registered investment advisers and exempt reporting advisers, which they can use to study 

the advisory industry. 

Among the amendments to Form ADV are improvements to its instructions. We expect 

these changes to assist advisers in determining their regulatory assets under management and 

whether they are eligible or required to register with us, which may result in cost savings for 

some advisers because they may more readily be able to make this determination.493

 

493 See section II.A.3. 

 Eliminating 

the choices we have given advisers in the Form ADV instructions for calculating assets under 

management, for example, provides for a uniform method of determining assets under 

management for purposes of the form and the new exemptions from registration under the 

Advisers Act. These updates will also include, for the first time, specific instructions on how to 

determine the amount of private fund assets an adviser has under management. We expect that 

these changes will promote competition, increase certainty when an adviser chooses to rely on an 
-122- 

exemption from registration, and improve consistency in reporting across the industry.494 Some 

of the technical amendments we are adopting, such as those to Item 9, are designed, at 

commenter request, to alleviate adviser confusion.495

4. Amendments to Pay to Play Rule 

We are making two amendments to the pay to play rule that we believe are appropriate as 

a result of the enactment of the Dodd-Frank Act.496 First, we are amending the rule to make it 

continue to apply to advisers that previously relied on the “private adviser” exemption, 

including exempt reporting advisers and foreign private advisers.497 We are making this 

amendment to prevent the narrowing of the application of the rule as a result of the amendments 

to the Act made by the Dodd-Frank Act.498 We do not believe that this amendment will create 

any benefits (or costs) beyond those created by the rule as originally adopted,499

 

494 See id. See also Exemptions Adopting Release at sections II.B.2., II.C., II.C.5. (discussing 

exemption for foreign private advisers and certain private fund advisers).

but rather will 

495 See supra section II.C.5. We are also making a technical amendment to Form ADV-E to reflect 

the requirement that the accountant’s report be filed electronically. Staff notified advisers in 

November 2010 that the IARD system had been programmed to accept Form ADV-E. See 2009 

Custody Release, supra note 310 at n.53 and accompanying text (establishing the requirement for 

Form ADV-E to be filed electronically, explaining that accountants performing surprise 

examinations should continue paper filing of Form ADV-E until the IARD system is programmed 

to accept Form ADV-E, and noting that advisers would be informed when that programming was 

completed). This technical change will alleviate adviser confusion about the appropriate filing 

method for this form. 

496 See section II.D.1. 

497 Rule 206(4)-5(a). See section II.D.1. 

498 See supra section II.D.1. Rule 206(4)-5 currently applies to “private advisers” exempt from 

registration with the Commission under section 203(b)(3) of the Advisers Act. As discussed in 

note 4, the Dodd-Frank Act has eliminated the “private adviser” exemption from registration with 

the Commission in section 203(b)(3), but has created new exemptions for exempt reporting 

advisers and foreign private advisers. Advisers that qualify for these new exemptions generally 

are subsets of the advisers that qualify for the existing section 203(b)(3) “private adviser” 

exemption. 

499 See Pay to Play Release, supra note 340, at section IV. 
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merely assure that the rule continues to apply to the same advisers as we intended when we 

adopted the rule. 

Second, we are amending the rule to add municipal advisors to the categories of 

registered entities – referred to as “regulated persons” – excepted from the rule’s prohibition on 

advisers paying third parties to solicit government entities.500 To qualify as a “municipal 

advisor” (and thereby a “regulated person”), a solicitor must be registered under section 15B of 

the Securities Exchange Act and subject to pay to play rules adopted by the MSRB.501 Notably, 

for municipal advisors to qualify as “regulated persons,” we must find that applicable MSRB pay 

to play rules: (i) impose substantially equivalent or more stringent restrictions on municipal 

advisors than the pay to play rule imposes on investment advisers; and (ii) are consistent with the 

objectives of the pay to play rule.502

Our amendment will continue to permit advisers to pay two other categories of persons to 

solicit government entities on their behalf—investment advisers and broker-dealers—so long as 

such third parties are registered with us and subject to pay to play rules of their own.

 

503 Due to 

the fact that the definition of a municipal advisor may include categories of persons other than 

registered investment advisers and broker-dealers, our amendment may increase the number of 

solicitors that an adviser could hire.504

 

500 See amended rule 206(4)-5(a)(2)(i)(A), (f)(9). “Regulated persons” also include registered 

investment advisers and broker-dealers subject to the rules of a registered national securities 

association, such as FINRA, that has adopted pay to play rules that the Commission determines 

satisfy the criteria of amended rule 206(4)-5(f)(9)(iii)(B). 

 This could benefit advisers by increasing competition in 

501 See amended rule 206(4)-5(f)(9)(iii). 

502 See amended rule 206(4)-5(f)(9)(iii)(B). 

503 Pay to Play Release, supra note 340, at section II.B.2.(b). 

504 Our current “regulated person” definition does not include, for example, advisers prohibited from 

registering with the Commission under section 203A of the Advisers Act, such as state-registered 

advisers, or advisers unregistered in reliance on an exemption other than section 203(b)(3) of the 

Act. The definition of “municipal advisor” does not exclude these advisers. See section 975 of 
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the market for solicitation services and reducing the cost of such services. It could also benefit 

those solicitors that are not registered investment advisers or broker-dealers, but may meet the 

municipal advisor definition, by allowing advisers to hire them. 

5. Advisers Previously Exempt under Section 203(b)(3) 

We are adopting a transition provision in rule 203-1 for advisers that are newly required 

to register due to the Dodd-Frank Act’s repeal of the “private adviser” exemption in section 

203(b)(3).505 Specifically, under rule 203-1(e), an adviser that was relying on, and was permitted 

to rely on, the “private adviser” exemption in section 203(b)(3) on July 20, 2011, may delay 

registering with the Commission until March 30, 2012.506 The transition period will provide 

these advisers with needed additional time to work through any technical issues associated with 

applying for registration and to establish compliance with Advisers Act provisions and rules to 

which they are newly subject as advisers required to register.507

 

the Dodd-Frank Act. We adopted the third party solicitor ban to prevent advisers from 

circumventing the rule through third parties. See section II.B.2.(b) of the Pay to Play Release. 

Given the Dodd-Frank Act’s creation of the “municipal advisor” category, and given that it 

requires these persons to register with the Commission and subjects them to MSRB rulemaking 

authority, we believe that expanding the current “regulated person” exception to the third party 

solicitor ban to include registered municipal advisors subject to pay to play rules would not 

undermine the ban’s purpose. By allowing advisers to choose from a broader set of potential 

third party solicitors, we believe our amendments may promote efficiency and competition in the 

market for advisory services to the extent third party solicitors that are not registered investment 

advisers or broker-dealers participate. 

 As such, we believe that the 

temporary extension of the registration deadline provided by rule 203(e)-1 will assure an orderly 

transition to registration that will minimize costs to these advisers—costs that could otherwise be 

505 See rule 203-1(e); section 203(b)(3) of the Advisers Act; supra section III.B.2. 

506 See rule 203-1(e); supra note 385. 

507 We received a number of comment letters requesting that these advisers have additional time after 

July 21, 2011 (the date the Dodd-Frank Act’s repeal of the section 203(b)(3) private adviser 

exemption becomes effective) to become registered and to establish compliance with all 

provisions of the Advisers Act and rules thereunder to which they are newly subject by virtue of 

their required registration. See CompliGlobe Letter; MFA Letter; Schnase Letter; Shearman 

Letter. 
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passed on to clients. We believe that maintaining an orderly transition process promotes 

efficiency and may reduce the costs of filing an initial application for registration and coming 

into compliance with Advisers Act provisions and rules to which these advisers are newly 

subject. 

B. Costs

1. Eligibility to Register with the Commission: Section 410 

Transition to State Registration

Rule 203A-5 will impose one-time costs on certain investment advisers registered with us 

by requiring them to file an amendment to Form ADV, and on advisers that are no longer eligible 

to remain registered with us by requiring them to file Form ADV-W to withdraw from 

Commission registration.508 According to IARD data, approximately 11,500 investment advisers 

are registered with us and will be required to file an amended Form ADV,509 and approximately 

3,200 of those advisers will be required to withdraw their registration and register with one or 

more state securities authorities.510

 

508 See new rule 203A-5; supra section II.A.1. 

 As we discuss below, although all SEC-registered advisers 

509 Based on IARD data as of April 7, 2011, 11,504 investment advisers are registered with the 

Commission. We have rounded this number to 11,500 for purposes of our analysis. 

510 According to data from the IARD as of April 7, 2011, 3,531 SEC-registered advisers either: 

(i) had assets under management between $25 million and $90 million and did not indicate on 

Form ADV Part 1A that they are relying on an exemption from the prohibition on Commission 

registration; or (ii) were permitted to register with us because they rely on the registration of an 

SEC-registered affiliate that has assets under management between $25 million and $90 million 

and are not relying on an exemption from registration. We estimate that 350 of these advisers 

will not switch to state registration because their principal office and place of business is located 

in Minnesota, New York, or Wyoming. See supra note 152 (according to IARD data as of April 

7, 2011, there were 63 mid-sized advisers in Minnesota, 286 in New York, and 1 in Wyoming). 

As a result, we estimate that approximately 3,200 advisers will switch to state registration. 3,531 

SEC-registered advisers – 350 advisers not switching to state registration = 3,181 advisers. In the 

Implementing Proposing Release, we estimated that approximately 4,100 SEC-registered advisers 

would be required to withdraw their registrations and register with one or more state securities 

authorities, based on IARD data as of September 1, 2010. See Implementing Proposing Release, 

supra note 7, at n.15. We have lowered our estimate by 900 advisers to account for the advisers 
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will be required to file Form ADV, we estimate that only 3,900 of them will have to make an 

additional filing not in the usual course of business.511

Some commenters argued that we should decrease the costs of proposed rule 203A-5 by 

exempting advisers unaffected by the statutory changes from the Form ADV filing 

requirement,512 or only requiring advisers to report their assets under management.513

 

that have between $90 million and $100 million of assets under management that may remain 

registered with us as a result of the amendments we are adopting to rule 203A-1, the advisers that 

have withdrawn their registrations with us since that time, and as discussed above, the advisers 

that will not switch registration because they have a principal office and place of business in 

Minnesota, New York or Wyoming. See supra note 

 As 

discussed above, we believe there are significant benefits of requiring all advisers to file Form 

ADV, including having each adviser confirm its eligibility for Commission registration in light 

of multiple statutory and rule changes, and allowing us and the state regulatory authorities to 

easily and efficiently identify the advisers that are transitioning to state registration and the 

22. 

511 Based on IARD data as of April 7, 2011, 10,636 advisers reported on Form ADV a December 31 

fiscal year end, of which we estimate approximately 3,013 will file a Form ADV to comply with 

the Form ADV filing requirement of new rule 203A-5 before switching to state registration 

because they reported assets under management of less than $90 million and either: (i) they did 

not indicate on Part 1A of Form ADV that they are relying on an exemption from the prohibition 

on Commission registration; or (ii) they do not have a principal office and place of business in 

Minnesota, New York or Wyoming. Additionally, 868 advisers reported a fiscal year end other 

than December 31 and will file an additional, other-than-annual amendment to comply with new 

rule 203A-5. 3,013 + 868 = 3,881. We have rounded this number to 3,900 for purposes of our 

analysis. The revised PRA burden for Form ADV includes the annual amendment filing by the 

approximately 7,623 advisers with a December 31 fiscal year end that we estimate will remain 

registered with us after the switch because they reported assets under management of more than 

$90 million, indicated on Part 1A of Form ADV that they are relying on an exemption from the 

prohibition on Commission registration, or have a principal office and place of business in 

Minnesota, New York or Wyoming. See infra section VI.B. We have rounded this number to 

7,600 for purposes of our analysis. 

512 ICI Letter (recommending exempting advisers that do not rely on assets under management to 

register with the SEC); MFA Letter (recommending exempting private fund advisers that file an 

initial Form ADV by July 21); NYSBA Committee Letter (recommending exempting advisers 

who will continue to be eligible for Commission registration and advisers relying on the section 

203(b)(3) exemption that we proposed would have to register with the Commission by July 21, 

2011). 

513 Shearman Letter. 
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advisers that are remaining registered with the Commission.514 We also note that commenters’ 

concerns also should be allayed by the new March 30, 2012 deadline for filing Form ADV that 

will coincide with most advisers’ required annual updating amendment, eliminating the 

requirement that they file an additional amendment to their Form ADV,515 and that will coincide 

with the filing requirements for newly registering private fund advisers.516 In addition, providing 

additional flexibility for an adviser to choose the date by which it must calculate its assets under 

management reported on Form ADV further reduces the cost of the filing and promotes 

uniformity by requiring the same 90 day period as in Form ADV today.517 We believe that the 

rule will have little impact on competition among advisers registered with us because they will 

all be subject to these requirements, but the rule could have an impact of limited duration on 

competition between advisers registered with us as of July 21, 2011 who are subject to the rule, 

and state-registered advisers who are not.518

For purposes of calculating the currently approved Paperwork Reduction Act (“PRA”) 

burden for Form ADV, we estimated that an annual updating amendment will take each adviser 

 We also believe that the rule will have little, if any, 

effect on capital formation.

 

514 See supra section II.C. 

515 See supra note 511. 

516 See MFA Letter (“Requiring private fund managers to file two Form ADV’s would be costly, 

inefficient and potentially confusing.”). See also supra section III.

517 See new rule 203A-5(b); Form ADV: Instructions for Part 1A, instr. 5.b.(4). Several commenters 

that requested more flexibility asserted that the use of end of quarter numbers precludes an 

administrate burden for many advisers that value assets on a quarterly basis because most 

advisers already value assets quarterly to calculate fees. See, e.g., Altruist Letter; NYSBA 

Committee Letter; Seward Letter; Shearman Letter. 

518 For example, the rule requires mid-sized advisers registered with us on July 21, 2011 to remain 

registered (unless an exemption from Commission registration is available) until they switch to 

state registration in 2012. See supra note 23. All of these advisers must file an amended Form 

ADV with us by March 30, 2012, and any advisers maintaining dual registrations with the SEC 

and states will incur renewal fees and compliance costs to maintain both registrations until the 

beginning of 2012. See, e.g., infra note 543. Mid-sized advisers that are not registered with us on 

July 21, 2011 will not have similar costs. 
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approximately 6 hours,519 and we estimate the one-time transition amendment will have a similar 

burden. In addition, for purposes of the increased PRA burden for Form ADV, we estimate that 

the amendments to Part 1A of Form ADV will take each adviser approximately 4.5 hours, on 

average, to complete.520 As a result, we estimate a total average time burden of 10.5 hours for 

each adviser completing the amendment to Form ADV required by rule 203A-5 (excluding 

private fund information which is addressed below).521 We estimate that each adviser will incur 

average costs of approximately $2,667.522

Proposed rule 203A-5 would have required all advisers registered with us on July 21, 

2011 to file a Form ADV amendment, in addition to the amendment that each adviser is required 

to file annually,

 

523 and we estimated that 11,850 advisers would file the form.524 To address 

commenters’ concerns about the burdens of an additional filing,525 we modified the rule so that 

approximately 7,600 advisers that will remain registered with the SEC after the transition will 

satisfy the Form ADV filing requirement by filing their annual amendment following their fiscal 

year ending on December 31, 2011.526

 

519 See infra section VI.B.2.a.iii. 

 This reduces the number of advisers that will file an 

520 See infra sections VI.B.1.a. 

521 6 hours (Form ADV amendment) + 4.5 hours (new Form ADV items) = 10.5 hours. 

522 We expect that the performance of this function will most likely be equally allocated between a 

senior compliance examiner and a compliance manager. Data from the Securities Industry 

Financial Markets Association’s Management & Professional Earnings in the Securities Industry 

2010 (“SIFMA Management and Earnings Report”), modified to account for an 1,800-hour workyear and multiplied by 5.35 to account for bonuses, firm size, employee benefits and overhead, 

suggest that costs for a senior compliance examiner and a compliance manager are $235 and $273 

per hour, respectively. (5.25 hours x $235 = $1,233.75) + (5.25 hours x $273 = $1,433.25) = 

$2,667. 

523 See proposed rule 203A-5(a).

524 See Implementing Proposing Release, supra note 7, at n.293 and accompanying text. 

525 See supra note 414 and accompanying text. 

526 See supra note 511. 
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additional Form ADV attributable to the rule 203A-5 to approximately 3,900.527 As a result, the 

total aggregate cost of the Form ADV filing requirement will be approximately $10,401,300.528 

In addition, of these 3,900 registered advisers, we estimate that 850 advise one or more private 

funds and will have to complete the private fund reporting requirements.529 We expect this will 

take 8,373 hours,530 in the aggregate, for a total cost of $2,126,742.531 As a result, the total 

estimated costs associated with filing amended Form ADV as required by rule 203A-5 will be 

$12,528,042.532

For the estimated 3,200 advisers that will be required to withdraw their registrations, we 

estimate that the average burden for each respondent is 0.25 hours for filing a partial withdrawal 

on Form ADV-W.533

 

527 See id. 

 An adviser will likely use compliance clerks to prepare the filings and 

528 3,900 advisers x $2,667 = $10,401,300. 

529 Based on IARD data as of April 7, 2011, 839 advisers out of the estimated 3,700 current SECregistered advisers that advise private funds do not have a December fiscal year end or are 

expected to switch to state registration. We have rounded this number to 850 for purposes of this 

analysis.

530 Based on IARD data as of April 7, 2011, we estimate that approximately 52 percent of these 850 

private fund advisers, or 442, currently advise an average of 3 private funds each; 43 percent, or 

365 advisers, currently advise an average of 10 private funds each; and the remaining 5 percent, 

or 43 advisers, currently advise an average of 79 private funds each. See infra note 697 and 

accompanying text. (442 advisers x 3 funds x 1 burden hour per fund) + (365 x 10 funds x 1 

burden hour per fund) + (43 advisers x 79 funds x 1 burden hour per fund) = 1,326 hours + 3,650 

hours + 3,397 hours = 8,373 hours. 

531 (4,186.5 hours x $235) + (4,186.5 x $273) = $983,827.5 + $1,142,914.5 = $2,126,742. As noted 

above, we expect that the performance of this function will most likely be equally allocated 

between a senior compliance examiner and a compliance manager. See supra note 522. 

532 $10,401,300 (total cost for Form ADV filing excluding private fund reporting) + $2,126,742 

(total cost for private fund reporting) = $12,528,042 (total cost for Form ADV filing). 

533 Form ADV-W is designed to accommodate the different types of withdrawals an investment 

adviser may file. An investment adviser ceasing operations will complete the entire form to 

withdraw from all of the jurisdictions in which it is registered (full withdrawal), while an adviser 

withdrawing from some, but not all, of the jurisdictions in which it is registered will omit certain 

items that we do not need from an adviser continuing in business as a state-registered adviser. 

We expect that advisers required to file Form ADV-W will file only a partial withdrawal because 

switching to state registration only requires a partial withdrawal. Compliance with the 
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review the prepared Form ADV-W.534 We estimate that each adviser will incur average costs of 

approximately $16.75535 to comply with the Form ADV-W filing requirements, for a total onetime cost of $53,600.536 As a result, rule 203A-5 will result in a total one-time cost of 

$12,581,642.537

Switching Between State and Commission Registration 

 

We are adopting amendments to rule 203A-1 to eliminate the $5 million buffer that 

permits, but does not require, an adviser to register with the Commission if the adviser has 

between $25 million and $30 million of assets under management.538 Specifically, the 

amendment will require advisers with between $25 million and $30 million in assets under 

management that relied on the buffer to switch their registration to the states.539

 

requirement to complete Form ADV-W imposes an average burden of 0.25 hours for an adviser 

filing for partial withdrawal. 

 As of April 7, 

2011, approximately 300 advisers registered with the Commission had between $25 million and 

534 We have assumed for purposes of the current approved PRA burden for rule 203-2 and Form 

ADV-W that advisers will use clerical staff to file a partial withdrawal. Data from the Securities 

Industry Financial Markets Association’s Office Salaries in the Securities Industry 2010 

(“SIFMA Office Salaries Report”) modified to account for an 1,800-hour work-year and 

multiplied by 2.93 to account for bonuses, firm size, employee benefits and overhead, suggest 

that the hourly rate for a compliance clerk is $67. 

535 0.25 hours x $67 (hourly wage for clerk) = $16.75 (total cost for Form ADV-W filing).

536 $16.75 x 3,200 = $53,600. 

537 $12,528,042 (total cost for Form ADV filing) + $53,600 (total cost for Form ADV-W filing) = 

$12,581,642 (total cost for new rule 203A-5). 

538 See amended rule 203A-1(a); supra section II.A.4. 

539 See supra section II.A.4. Under the Dodd-Frank Act, a mid-sized adviser (with at least $25 

million of assets under management) is not prohibited from registering with the Commission if: 

(i) the adviser is not required to be registered as an investment adviser with the securities 

commissioner (or any agency or office performing like functions) of the state in which it 

maintains its principal office and place of business; (ii) if registered, the adviser will not be 

subject to examination as an investment adviser by that securities commissioner; or (iii) the 

adviser is required to register in 15 or more states. See section 410 of the Dodd-Frank Act; supra 

section II.A. 
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$30 million of assets under management.540 Because the Dodd-Frank Act has amended section 

203A to prohibit approximately 240 of these advisers from registering with the Commission, we 

believe that 240 advisers will see increased costs as a result of the amendment.541 These costs 

include those associated with withdrawing their registration with the Commission and registering 

with the states, including filing a notice of withdrawal on Form ADV-W in accordance with rule 

203-2 under the Advisers Act. We have estimated for purposes of our current approved hour 

burden under the PRA for rule 203-2 and Form ADV that a partial withdrawal imposes an 

average burden of approximately 0.25 hours for an adviser, and the filing (and costs associated 

with the filing) by these 240 advisers are included in our discussion above of the Form ADV-W 

filing requirement under rule 203A-5.542

 

540 Based on IARD data as of April 7, 2011, 305 advisers registered with the Commission had 

between $25 million and $30 million of assets under management. We have rounded this number 

to 300 for purposes of this analysis. 

 These advisers also will incur the costs of state 

registration and of compliance with state laws and regulations, which we expect will vary widely 

depending on the number of, and which, states with which each adviser is required to register. 

541 See supra section II.A. (discussing new section 203A(a)(2) of the Advisers Act, which prohibits 

certain mid-sized advisers from registering with the Commission). Based on IARD data as of 

April 7, 2011, 242 advisers registered with the Commission had between $25 million and $30 

million of assets under management. For purposes of this analysis, we have rounded this number 

to 240 and assume that all of these advisers will not remain eligible to register with the 

Commission because they will be required to be registered and subject to examination by 

securities authorities in the states where they maintain their respective principal offices and places 

of business. See Advisers Act section 203A(a)(2) (as amended by the Dodd-Frank Act); supra

section II.A.7.b. (discussing the fact that each state securities commissioner (or official with 

similar authority) advised our staff whether investment advisers registered in the state will be 

subject to examination as an investment adviser by that state’s securities commissioner (or 

agency or office with similar authority)). All state securities authorities other than Minnesota, 

New York, and Wyoming have advised our staff that advisers registered with them are subject to 

examination. See supra note 152. 

542 See supra notes 533-536 and accompanying text (addressing the costs of filing Form ADV-W for 

advisers that will be required to withdraw their registrations). 
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For example, individual state registration fees generally range from approximately $60 to $400 

annually, and some states require advisers to submit documentation in addition to Form ADV.543

The buffer we are adopting for mid-sized advisers with assets under management of close 

to $100 million may marginally increase costs for advisers initially as they determine how to 

comply with the new requirements and complete the amended Form ADV,

 

544 but, as underscored 

by several commenters, the buffer decreases costs for advisers in the aggregate.545 As discussed 

above, the buffer permits mid-sized advisers to determine whether and when to switch between 

state and Commission registration, which will prevent costs and disruption for these advisers to 

frequently switch their registrations.546

Exemptions from the Prohibition on Registration with the Commission

 We believe these amendments will have little, if any, 

effect on capital formation.

 

543 See, e.g., Colorado Division of Securities Fee Schedule ($60 registration fee), available at 

http://www.dora.state.co.us/securities/feeschedule.htm; Illinois Secretary of State, Securities Fees 

($400 registration fee), available at 

http://www.sos.state.il.us/departments/securities/investment_advisers/fees.html; OHIO REV. CODE 

§ 1707.17(B)(3) (2010) ($100 registration fee); ARK. CODE § 23-42-304(a)(3) (2010) ($300 

registration fee); Texas State Securities Board, Check Sheet For a Sole Proprietor Corporation 

LLC or Partnership Applying For Registration as an Investment Adviser ($275 registration fee 

and requiring copies of adviser’s organizational documents, balance sheet, fee schedule, advisory 

contract, and brochure or disclosure document delivered to clients), available at 

http://www.ssb.state.tx.us/Dealer_And_Investment_Adviser_Registration/Check_Sheet_For_a_S

ole_Proprieter_Corporation_LLC_or_Partnership_Applying_For_Registration_as_an_Investment

_Adviser.php; North American Securities Administrators Association, Inc., State Securities 

Regulators Report on Regulatory Effectiveness and Resources with Respect to Broker-Dealers 

and Investment Advisers, 7 (2010) (among other things, states review registrants’ disclosure 

history, financial status, business practices, and provisions in client contracts).

544 The PRA burdens for Form ADV and rule 203A-5 include a burden of 4.5 hours per adviser to 

complete the amended Form ADV, including the assets under management calculation and 

eligibility requirements. See infra sections IV.B.1. and IV.C. 

545 Several commenters argued that the buffer would decrease costs, for example, by preventing 

advisers with close to $100 million of assets under management from having to switch to and 

from Commission registration frequently. See, e.g., Altruist Letter; Dezellem Letter; Dinel 

Letter; FSI Letter; ICW Letter; JVL Associates Letter; Merkl Implementing Letter; NRS Letter; 

Wealth Coach Letter; and WJM Letter. 

546 See supra notes 427-428 and accompanying text. 
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Amending the exemption from the prohibition on registration available to pension 

consultants in rule 203A-2(b) to increase the minimum value of plan assets from $50 million to 

$200 million547 may impose costs on some of the approximately 325 advisers that currently rely 

on the exemption.548 These costs, which include those associated with withdrawing their 

registration with the Commission and registering with the states, if required, will have a negative 

impact on competition for the advisers that no longer qualify for the exemption and potentially 

must register as an adviser with more than one state securities authority. We estimate that 50 of 

the 325 advisers relying on the exemption will have to file a notice of withdrawal on Form ADVW in accordance with rule 203-2 under the Advisers Act and withdraw their registration.549 We 

have estimated that a partial withdrawal imposes an average burden of approximately 0.25 hours 

for an adviser.550

 

547 See amended rule 203A-2(a); supra section II.A.5.b. 

 Thus, we estimate that the amendment to rule 203A-2(b) associated with filing 

548 Based on IARD data as of April 7, 2011, 322 SEC-registered advisers, which we rounded to 325, 

indicated that they rely on the exemption for pension consultants by marking Item 2.A.(6) on Part 

1A of Form ADV. These advisers do not report the amount of plan assets for which they provide 

investment advice, so we are unable to determine how many have between $50 million and $200 

million of plan assets and, therefore, may have to register with the state securities authorities as a 

result of the amendment. It is also difficult to determine whether such advisers will be prohibited 

from registering with the Commission because they are required to register with and are subject 

to examination by the state securities authority where they maintain a principal office and place 

of business under the Dodd-Frank Act. 

549 Based on IARD data as of April 7, 2011, approximately 190 pension consultants reported assets 

under management of less than $90 million, and 166 of those advisers reported assets under 

management of less than $25 million. We believe that most pension consultants relying on the 

exemption provide advice regarding a large amount of plan assets, so we expect the number of 

advisers affected by the amendment to be one quarter of the advisers with less than $25 million of 

assets under management, or 42 advisers (which is approximately 15 percent of all advisers 

relying on this exemption). We have rounded this number to 50 for purposes of our analysis. We 

expect that advisers that will be required to file Form ADV-W will file only a partial withdrawal 

because they will be registering with the states. See supra note 533. Compliance with the 

requirement to complete Form ADV-W imposes an average burden of approximately 0.25 hours 

for an adviser filing for partial withdrawal. See id. 

550 See supra note 533. 
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Form ADV-W will generate a burden of 12.5 hours551 at a cost of approximately $840.552 These 

advisers will incur the costs of state registration, which we expect will vary widely depending on 

the number of, and which, states with which an adviser is required to register.553

As discussed above, the amendment to the multi-state adviser exemption in rule 203A2(e) will reduce costs for advisers in the aggregate because more advisers will be permitted to 

register with one securities regulator – the Commission – rather than being required to register 

with multiple states.

 We believe the 

amendment will have little, if any, effect on capital formation.

554

We estimate that, in addition to the approximately 40 advisers that rely on the exemption 

currently, approximately 115 will rely on the exemption as amended.

 Advisers newly relying on the amended exemption will incur costs 

associated with completing and filing Form ADV for purposes of registration with the 

Commission, and all of the advisers relying on the exemption will incur the costs associated with 

keeping records sufficient to demonstrate that they would be required to register with 15 or more 

states. In addition, these advisers will incur costs of complying with the Advisers Act and our 

rules. 

555

 

551 50 responses on Form ADV-W x 0.25 hours = 12.5 hours.

 For purposes of the 

552 12.5 hours x $67 = $837.50. 

553 See supra note 543. 

554 See amended rule 203A-2(d); supra section II.A.5.c. Several commenters suggested that the 

burdens of maintaining multiple state registrations can be significant. See Seward Letter; 

Shearman Letter. See also NEA Letter.

555 Based on IARD data as of April 7, 2011, of the approximately 11,500 SEC-registered advisers, 

40 checked Item 2.A.(9) of Part 1A of Form ADV to indicate their basis for SEC registration 

under the multi-state advisers rule. Of the advisers that have less than $90 million of assets under 

management, approximately 100 currently file notice filings with 15 or more states. However, 

state notice filing requirements for SEC-registered advisers may differ from registration 

requirements because Form ADV does not distinguish between states where registration is 

mandatory and where registration is voluntary. In addition, we estimate that 15 advisers currently 

registered with 15 or more states could rely on the exemption and register with us. Thus, we 

estimate that approximately 155 advisers will rely on the exemption (40 currently relying on it + 
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PRA, we have estimated that these advisers will incur an average one-time initial burden of 

approximately 8 hours, and an average ongoing burden of approximately 8 hours per year, to 

keep records sufficient to demonstrate that they meet the 15-state threshold.556 We further 

estimate that a senior operations manager will maintain the records at an hourly rate of $331, 

resulting in average initial and annual recordkeeping costs associated with our amendments to 

rule 203A-2(e) of $2,648 per adviser,557 and total increased costs of approximately $304,520 per 

year.558 Advisers newly relying on the amended exemption will also incur costs associated with 

completing and filing Form ADV for purposes of registration with the Commission. For 

purposes of the increase in our PRA burden for Form ADV, we have estimated that advisers 

newly registering with the Commission will incur an average amortized hour burden of 

approximately 13.58 hours per year,559 resulting in costs of approximately $3,450 per adviser560

and total increased costs of approximately $396,750 per year.561

 

estimated 100 advisers eligible based on IARD data + 15 advisers required to be registered in 15 

or more states that are not registered with us today).

 Additionally, we estimate that 

approximately 30 of the newly registering advisers will use outside legal services, and 60 will 

556 These estimates are based on an estimate that each year an investment adviser will spend 

approximately 0.5 hours creating a record of its determination whether it must register as an 

investment adviser with each of the 15 states required to rely on the exemption, and 

approximately 0.5 hours to maintain the record, for a total of 8 hours. See infra note 665 and 

accompanying text. 

557 8 hours x $331 = $2,648. The $331 compensation rate used is the rate for a senior operations 

manager in the SIFMA Management and Earnings Report, modified by Commission staff to 

account for an 1,800-hour work-year and multiplied by 5.35 to account for bonuses, firm size, 

employee benefits and overhead.

558 115 new advisers relying on the exemption x $2,648 = $304,520. 

559 See infra note 695 and accompanying text. 

560 We expect that the performance of this function will most likely be equally allocated between a 

senior compliance examiner at $235 per hour and a compliance manager at $273 per hour. See 

infra note 579. (6.79 hours x $235 = $1,596) + (6.79 hours x $273 = $1,854) = $3,450. 

561 115 advisers relying on the exemption x $3,450 = $396,750. 
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use outside compliance consulting services, to assist them in preparing their Part 2 brochures,562

for a cost of $132,000, and $300,000, respectively, resulting in a total non-labor cost among the 

newly registering advisers of $432,000.563

Mid-Sized Advisers

 The rule could also impact competition between 

advisers who rely on the exemption and are subject to our full regulatory program, including 

examinations and our rules, and state-registered advisers who do not rely on the exemption. We 

believe these amendments will have little, if any, effect on capital formation.

As discussed above, the Dodd-Frank Act does not explain how to determine whether a 

mid-sized adviser is “required to be registered” or is “subject to examination” by a particular 

state securities authority for purposes of section 203A(a)(2)’s prohibition on mid-sized advisers 

registering with the Commission, and we are providing in Form ADV an explanation of how we 

construe these provisions.564

2. Exempt Reporting Advisers: Sections 407 and 408 

 We do not, however, believe that they will generate costs 

independent of any costs associated with Congress’ enactment of section 203A(a)(2), and will 

have little, if any, effect on capital formation.

 

562 We estimate that a quarter of medium-sized advisers seek the help of outside legal services and 

half seek the help of compliance consulting services. See section VI.B.2.a.iv. As discussed 

above, we have estimated that 115 new advisers will begin relying on the exemption, in addition 

to the 40 advisers that currently rely on it. See supra note 555. 0.25 x 115 new advisers relying 

on the exemption = 28.75 advisers seeking outside legal services. 0.5 x 115 new advisers relying 

on the exemption = 57.5 advisers seeking compliance consulting services. We have rounded 

these numbers to 30 and 60, respectively, for the purpose of this analysis. 

563 We estimate that the initial cost related to preparation of Part 2 of Form ADV would be $4,400 

for legal services and $5,000 for compliance consulting services for those medium-sized advisers 

who engage legal counsel or consultants. See infra note 729 and accompanying text. (30 

advisers seeking outside legal services x $4,400 for legal services) + (60 advisers seeking 

compliance consulting services x $5,000 for compliance consulting services) = $132,000 for legal 

services + $300,000 for compliance consulting services = $432,000. The currently approved 

burden associated with Form ADV already accounts for similar estimated costs to be incurred by 

current registrants. See id.

564 See supra section II.A.7. 
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While we believe that our approach to implementing the Dodd-Frank Act’s reporting 

provisions applicable to exempt reporting advisers will minimize costs inherent in such 

reporting, we acknowledge that it will impose costs on these advisers.565 These costs include 

filing fees, although not significant, paid for submitting initial and annual filings through the 

IARD. We anticipate that filing fees, which the Commission will consider separately, will be the 

same as those for registered investment advisers, which currently range from $40 to $225 based 

on the amount of assets an adviser has under management.566 In order to estimate the costs 

associated with filing fees, we assume for purposes of this analysis that exempt reporting 

advisers will pay a fee of $225 per initial or annual report.567 We estimate that approximately 

2,000 advisers will qualify as exempt reporting advisers pursuant to section 203(l) of the 

Advisers Act, as added by the Dodd-Frank Act, and rule 203(m)-1 thereunder, and will have to 

file Form ADV on the IARD.568 As a result, we expect exempt reporting advisers to incur a total 

annual cost of approximately $450,000 in filing fees.569

In addition to filing fees, exempt reporting advisers will incur internal costs associated 

with collecting, reviewing, reporting, and updating a limited subset of Form ADV items in 

 

565 See amended rule 204-1 and new rule 204-4; amended Form ADV, Part 1A; supra section II.B. 

566 The current fee schedule for registered advisers may be found on our website at 

http://www.sec.gov/divisions/investment/iard/iardfee.shtml. We amended this fee schedule in

December 2010. See Order Approving Investment Adviser Registration Depository Filing Fees, 

Investment Advisers Act Release No. 3126 (Dec. 22, 2010), available at 

http://www.sec.gov/rules/other/2010/ia-3126.pdf. 

567 This is the fee applicable to registered advisers with $100 million or more in assets under 

management. There will be no fee for filing an other-than-annual amendment to a report.

568 See infra note 734. While this is an estimate of the total number of advisers that may file reports 

rather than register with the Commission, a number of these advisers may choose to register with 

the Commission rather than file reports. We cannot determine in advance the precise number of 

these advisers that will choose to register rather than report. Therefore, in order to avoid underestimating the costs of these amendments, we are using the total number of potential exempt 

reporting advisers in our estimates. 

569 2,000 exempt reporting advisers x $225 per year = $450,000. Advisers pay for initial Form ADV 

submissions and for annual amendments; there is no charge for an interim amendment.
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Part 1A, including Items 1, 2.B., 3, 6, 7, 10, 11 and corresponding schedules. We expect this 

cost to be substantially less than that incurred by registered advisers because exempt reporting 

advisers are not required to complete the remainder of Part 1A or Part 2 of Form ADV. The 

costs of completing the relevant items of Form ADV will vary from adviser to adviser, 

depending in large part on the number of private funds an adviser manages. 

We believe, and several commenters confirmed, that the information these items require 

should be readily available to any adviser (particularly the identifying, private fund and control 

person information required by Items 1, 3, 7.B. and 10), which mitigates the costs and burdens of 

reporting.570 Similarly, Item 6 requires the adviser to indicate if it engages in other specific 

business activities, information which we believe should also be readily available to these 

advisers. Item 2.B. elicits the information an exempt reporting adviser would already have 

gathered for purposes of determining if it is eligible for an exemption from registration under 

section 203(l) of the Act or rule 203(m)-1 thereunder, and as such, this item should impose few, 

if any, costs to complete. Commenters who addressed Section 7.A. of Schedule D urged that we 

limit the reporting of related persons, which could be significant in the case of advisers that are 

part of a large organization.571 Many of these commenters pointed out that in some cases the 

adviser and its clients have no business dealings with some affiliates and thus there is less of a 

chance of conflicts developing.572

 

570 See ABA Committees Letter (“We expect that most [exempt reporting advisers] will already have 

most of the information requested by Form ADV Part 1 readily available.”); Merkl Implementing 

Letter (confirming that the disclosure requirements would not impose a significant burden on 

advisers). See also, with respect to private fund reporting under Item 7.B. specifically, Katten 

Foreign Advisers Letter (“Virtually all of the requested information would already have been 

provided to investors in the fund through an offering document or follow up status reports.”) and 

NRS Letter (arguing that the expanded private fund disclosures on Schedule D would “replicate 

the due diligence questionnaire information....”). 

 We agree and have revised the proposed item to permit an 

571 See, e.g., Shearman Letter. 

572 See IAA General Letter. 
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adviser to omit reporting about certain related persons in a manner that is similar to the approach 

suggested by a commenter.573 We are neither reducing nor eliminating the disciplinary reporting 

requirements that we proposed in Item 11, and no commenters suggested that we do so.574 

Although we believe, as noted above, that the information an adviser needs to complete Section 

7.B.(1) is readily available in fund offering documents, we acknowledge that this Section of 

Form ADV could be time-consuming to complete, particularly for an exempt reporting adviser’s 

initial filing, depending on the number of funds the exempt reporting adviser manages. The 

primarily check-the-box style of this item and most of the other items exempt reporting advisers 

must complete, as well as some of the features of the IARD (such as drop-down boxes for 

common responses and the ability to pre-populate responses) should help decrease the average 

completion time for these advisers. Based on views expressed by some commenters,575 we 

expect the changes we are adopting to Section 7.B.(1) (including the removal of some of the 

questions that commenters identified as most burdensome) that reduce the amount of information 

required in respect of private funds576 will also alleviate concerns that the reports require too 

much information or that the requirements will impose excessive burdens.577

 

573 See supra note 

 

300 and accompanying text. 

574 Indeed, one commenter that urged us to substantially reduce the amount of information these 

advisers are required to report did not advocate to eliminate disciplinary reporting. Village 

Ventures Letter.

575 See supra note 570. 

576 See supra section II.C.1. We are adopting Form ADV with several other changes from the 

proposal, some of which will affect the reporting by exempt reporting advisers. See section II.C. 

for details concerning these changes to Form ADV.

577 AIMA Letter; Avoca Letter; BCLBE Letter; Shearman Letter; Village Ventures Letter. A 

broader discussion about the costs associated with Section 7.B.(1) appears below. See infra

section V.C.3.
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For purposes of the PRA, we estimate that exempt reporting advisers, in the aggregate, 

will spend 16,000 hours to prepare and submit their initial reports on Form ADV.578 Based on 

this estimate, we expect that exempt reporting advisers will incur costs of approximately 

$4,064,000 to prepare and submit their initial report on Form ADV.579 Additionally, for PRA 

purposes, we estimate that exempt reporting advisers in the aggregate will spend 2,200 hours per 

year on amendments to their filings and on final filings.580 Based on this estimate, we expect 

that exempt reporting advisers will incur costs of approximately $558,800 to prepare and submit 

annual amendments to their reports on Form ADV and final filings.581 One commenter argued 

that these estimates should include costs of retaining outside counsel to review the disclosures.582 

We disagree. Exempt reporting advisers are only required to complete a limited subset of 

Part 1A of Form ADV. As noted above, this part of the form generally calls for readily available 

information to be reported as approximate numerical responses, as short answers, or by checking 

a box. Unlike Part 2 of Form ADV, which requires free-form narrative responses, we do not 

believe that advisers will require outside legal advice in order to provide the factual information 

that Part 1A requires.583

 

578 See infra note 

 Commenters who asserted that our estimates were too low did not 

738; infra section VI.B.1.b.

579 We expect that the performance of this function would most likely be equally allocated between a 

senior compliance examiner and a compliance manager, or persons performing similar functions. 

Data from the SIFMA Management and Earnings Report, modified to account for an 1,800-hour 

work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits and 

overhead, suggest that costs for these positions are $235 and $273 per hour, respectively. (8,000 

hours x $235 = $1,880,000) + (8,000 hours x $273 = 2,184,000) = $4,064,000. For an exempt 

reporting adviser that does not already have a senior compliance examiner or a compliance 

manager, we expect that a person performing a similar function would have similar hourly costs.

580 See infra note 744. 

581 (1,100 hours x $235 = $258,500) + (1,100 hours x $273 = $300,300) = $558,800. 

582 See BCLBE Letter. 

583 Certain items in Part 1A of Form ADV call for information about which an adviser may consult 

with outside legal counsel, such as the exemption on which the adviser relies (Item 2.B.) or the 

exemption on which the adviser’s private fund relies (Section 7.B.(1) of Schedule D, question 4). 
-141- 

provide empirical data by which to recalculate our estimates, making it difficult to evaluate these 

assertions or determine the magnitude by which their estimates would differ from ours.584 The 

changes we are making from the proposal will reduce the amount of information that advisers 

must file and result in decreased burdens for advisers from the proposal. However, in light of the 

general comments we received about burdens we are not reducing our burden estimates.585

In the Implementing Proposing Release we discussed that the reporting requirements we 

are adopting may result in other non-quantifiable additional costs for exempt reporting advisers. 

For example, the new disclosure requirements could influence the business or other decisions of 

exempt reporting advisers, such as whether to form additional private funds or manage private 

funds at all. In addition, some of the information made available to the public, such as the 

identification of owners of the adviser or disciplinary information, may impose costs on the 

advisers and, in some cases their supervised persons or owners, including the potential loss of 

business to competitors, as this information was not typically made available to others 

previously. Commenters neither agreed nor disagreed with these costs.

 

586

 

These determinations, however, are part of the adviser’s compliance burdens associated with and 

accounted for as a part of other regulatory requirements (e.g., rule 203(m)-1) and are not, 

therefore, costs associated with the reporting requirements we are adopting today. 

 

584 See, e.g., Village Ventures Letter (asserting that the Commission’s “relatively modest cost 

estimates... understate the true costs that will be required to assure compliance...”); AV Letter; 

Avoca Letter; Debevoise Letter.

585 See supra notes 246, 247, 262, 300, 302 and accompanying text for a discussion of these 

modifications. Some of the estimates provided in this section differ from those provided in the 

Implementing Proposing Release, but these differences reflect updated information regarding 

employment costs and the number of advisers subject to the reporting, not a change in the 

estimated time an adviser would spend on the reporting or the out-of-pocket costs an adviser 

would incur. 

586 Several commenters argued that while the reporting may be valuable to the Commission, making 

the information publicly available would provide little benefit to investors, and they asserted 

that the benefits were insufficient to justify the costs. See BCLBE Letter; NRS Letter; Seward 

Letter. 
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Several commenters argued that public reporting would be inconsistent with the intent of 

the Dodd-Frank Act exemptions for these advisers.587 They did not, however, identify any 

specific costs associated with these concerns. As discussed above, we do not believe public 

reporting is inconsistent with the intent of the Dodd-Frank Act. Congress sought to protect only 

certain proprietary or sensitive information submitted by advisers about their private funds in 

reports for the assessment of systemic risk.588

Some commenters expressed concern that certain of the information we proposed be 

publicly reported also could include proprietary or competitively sensitive information regarding 

private funds.

 

589 One such commenter’s competitive concerns related to such things as access to 

human resource talent among venture capital fund advisers, and composition of a venture capital 

fund’s investor base, control persons and strategic relationships.590 These commenters, however, 

did not identify any specific costs associated with these concerns. As discussed elsewhere in this 

Release, we have responded to these concerns by declining to adopt questions we had proposed 

that commenters found most burdensome and persuaded us may likely be proprietary or 

competitively sensitive.591

Finally, some commenters expressed concern that access to this information by the 

general public may cause confusion because an exempt reporting adviser’s information would be 

 

 

587 Avoca Letter; ABA Committees Letter; Shearman Letter.

588 See supra notes 196-197 and accompanying text. 

589 See, e.g., MFA Letter; NVCA Letter; O’Melveny Letter. Another commenter, however, refuted 

these competitive concerns, stating that none of the items that exempt reporting advisers would 

complete would require the disclosure of proprietary or competitively sensitive information. 

Merkl Implementing Letter. 

590 NVCA Letter. As noted above, while this information could result in competitive effects among 

these advisers, the effects are not unique to these advisers, and they may result in benefits. See 

supra note 200. 

591 See supra notes 238-247 and accompanying text. 
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displayed using the same search function in the IAPD that is used to search registered 

advisers.592

Completing and filing Form ADV-H and Form ADV-NR will also impose costs on 

exempt reporting advisers. In the Implementing Proposing Release, we estimated that 

approximately two exempt reporting advisers would file Form ADV-H annually and that it 

would impose an average burden per response of one hour, for an increase in the total annual 

hour burden associated with Form ADV-H of two hours.

 These commenters, however, did not identify any specific costs associated with 

these concerns. We are working with FINRA, our IARD contractor, to ensure that the IAPD 

search results distinguish between an exempt reporting adviser and a registered adviser.

593 We did not receive comments on 

these estimates and continue to believe they are appropriate. We further estimate that for each hour 

required by the form, professional staff time will comprise 0.625 hours, and clerical staff time 

will comprise 0.375 hours. We estimate the hourly wage for a compliance manager to be $273 

per hour,594 and the hourly wage for general clerks to be $50 per hour.595 Accordingly, we 

estimate the average cost per response imposed on exempt reporting advisers by rule 204-4 and 

amended Form ADV-H will be $189,596 for a total annual cost of $378.597

 

592 Shearman Letter; Seward Letter. See also supra note 

 This represents a 

decrease of $28 from our estimate in the Implementing Proposing Release, which is attributable 

to updated wage and salary information. 

172 and accompanying text. 

593 See Implementing Proposing Release, supra note 7, at sections IV.B, V.F. 2 responses x 1 hour = 

2 hours. 

594 Data from the SIFMA Management and Earnings Report, modified to account for an 1,800-hour 

work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits and 

overhead, suggest that the cost for a compliance manager is approximately $273 per hour. 

595 Data from the SIFMA Office Salaries Report, modified to account for an 1,800-hour work-year 

and multiplied by 2.93 to account for bonuses, firm size, employee benefits and overhead, suggest 

that the cost for a general clerk is approximately $50 per hour. 

596 (0.625 hours x $273) + (0.375 hours x $50) = approximately $189. 

597 $189 per response x 2 responses annually = $378. 
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With regard to Form ADV-NR, we continue to estimate that exempt reporting advisers 

will file Form ADV-NR at the same annual rate (0.17 percent) as advisers registered with us.598 

Thus, we estimate that the amendments will be filed by approximately three exempt reporting 

advisers annually,599 imposing an annual burden of approximately three hours.600 We further 

estimate that for each hour required by the form, compliance clerk time will comprise 0.75 hours 

and general clerk time will comprise 0.25 hours.601 Therefore, we estimate that the amendments 

to Form ADV-NR will impose approximately $188 in total additional annual costs for exempt 

reporting advisers.602

3. Form ADV Amendments 

 This represents an increase from our estimate in the Implementing 

Proposing Release, which is attributable to updated wage and salary information.

The costs of completing these new and amended items will vary among advisers.603

 

598 See infra text accompanying note 

 Onetime monetary costs we expect certain current registrants to incur to complete the amendments 

776. 

599 0.17% (rate of filing) x 2,000 estimated exempt reporting advisers = 3 exempt reporting advisers 

filing Form ADV-NR. 

600 3 exempt reporting advisers filing Form ADV-NR x 1 hour per Form ADV-NR = approximately 

3 hours. In calculating the costs of our amendments to Form ADV-NR in the Implementing 

Proposing Release, we subtracted cost savings resulting from the Dodd-Frank Act’s reduction in 

the number of total registered advisers (and the commensurate reduction in Form ADV-NR 

filings) from the total costs associated with completing and filing Form ADV-NR. See 

Implementing Proposing Release, supra note 7, at section IV.B. We now believe, however, that 

it is more accurate to calculate the costs of our amendments to Form ADV-NR without 

subtracting these savings directly attributable to the Dodd-Frank Act. 

601 Data from the SIFMA Office Salaries Report, modified to account for an 1,800-hour work-year 

and multiplied by 2.93 to account for bonuses, firm size, employee benefits and overhead, suggest 

that the cost for a General Clerk is approximately $50 per hour and cost for a Compliance Clerk is 

approximately $67 per hour. 

602 3 hours x ((0.75 hours x $67) + (0.25 hours x $50)) = approximately $188. 

603 We note that we do not estimate there to be costs associated with the technical amendment we are 

making to Form ADV-E to reflect the obligation that the accountant’s report be filed 

electronically because those costs were addressed in the 2009 Custody Release. Staff notified 

advisers in November 2010 that the IARD system had been programmed to accept Form ADV-E. 

See 2009 Custody Release, supra note 310 at n.53 and accompanying text (establishing the 
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we are adopting to Form ADV in connection with the transition filing are discussed above, but 

that discussion does not take into account costs we expect to be borne by (1) 7,600 current 

registrants with a December 31 fiscal year end that we expect to remain registered with us,604 or 

(2) 700605 advisers we expect will register with us within the next year as a result of normal 

annual growth of our population of registered advisers.606 We estimate these 8,300 advisers will 

spend, on average, 4.5 hours to respond to the new and amended questions we are adopting today 

(other than the private fund reporting, which is discussed below),607 at an aggregate cost of 

$9,486,900.608

 

requirement for Form ADV-E to be filed electronically, explaining that accountants performing 

surprise examinations should continue paper filing of Form ADV-E until the IARD system is 

programmed to accept Form ADV-E, and noting that advisers would be informed when that 

programming was completed). 

 

604 See supra note 511. 

605 See infra note 691. 

606 Of the 9,750 advisers we estimate will remain registered or will be newly registered with us after 

the transition filing, the one-time monetary costs of filing Form ADV that we estimate will be 

borne by approximately 700 advisers with a fiscal year end other than December 31 are discussed 

above in section V.B.1. The one-time monetary costs that we estimate will be borne by the 

remaining 9,050 advisers are discussed here (8,300 discussed in this paragraph + 750 discussed in 

the next). For a discussion of our PRA estimate of 9,750 advisers, see note 655 below and 

section VI.B.2.a.i. below. 

607 See infra section VI.B.1.a. We are calculating costs only of the increased burden because we 

have previously assessed the costs of the other items of Form ADV for registered advisers and for 

new advisers attributed to annual growth. The amendments we are adopting today would neither 

increase the burden associated with the other items on Form ADV, nor would they increase the 

external costs associated with certain Part 2 requirements. 

608 We expect that the performance of this function would most likely be equally allocated between a 

senior compliance examiner and a compliance manager, or persons performing similar functions. 

Data from the SIFMA Management and Earnings Report, modified to account for an 1,800-hour 

work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits and 

overhead, suggest that costs for these positions are $235 and $273 per hour, respectively. 8,300 

advisers x 4.5 hours = 37,350 hours. (18,675 hours x $235 = $4,388,625) + (18,675 hours x 

$273 = $5,098,275) = $9,486,900. 
-146- 

In our PRA analysis, we also project that 750 new advisers will register with us as a 

result of the Dodd-Frank Act’s elimination of the private adviser exemption.609 Because this 

group of advisers was not formerly required to register with us, we have not previously 

accounted for the costs to them of completing and submitting Form ADV. As a result, rather 

than the incremental burden of 4.5 hours per adviser used in our estimates above, we expect that 

these advisers will spend the full 40.74 hours per adviser filing their initial reports on Form ADV 

(other than the private fund reporting, which is discussed separately below).610 These advisers 

will also spend time preparing and filing interim updating amendments to the form, preparing 

brochure supplements and delivering codes of ethics to clients. In the aggregate, we expect that 

these 750 private fund advisers will spend 37,905 hours on these activities,611 for a total cost of 

$9,627,871.612

Commenters that addressed burdens associated with amendments to Form ADV (other 

than private fund reporting discussed separately below) focused on costs associated with 

gathering information necessary to complete proposed Item 5.D. and Section 7.A. of Schedule 

D.

 

613

 

609 See Implementing Proposing Release, supra note 

 These commenters did not specifically address our estimates or provide empirical data by 

which to recalculate these estimates. We are making changes from the proposal that will reduce 

the amount of information that advisers must file and result in decreased burdens for advisers 

7, at n.375 and accompanying text. 

610 See infra IV.B.1. of this Release. 

611 750 advisers x (40.74 hours per adviser to complete entire form (except private fund reporting 

requirements) + (1 annual updating amendment x 6.0 hours) + (1 interim updating amendment 

per year x 0.5 hours) + 1 hour on new brochure supplements + 1 hour on interim amendments to 

brochure supplements + 1.3 hours delivering codes of ethics to clients) = 37,905 hours. See infra

notes 679, 709, 710 and accompanying text. 

612 (18,952.5 hours x $235 = $4,453,838) + (18,952.5 hours x $273 = $5,174,033) = $9,627,871. As 

noted above, we expect that the performance of this function will most likely be equally allocated 

between a senior compliance examiner and a compliance manager. See supra note 608. 

613 See, e.g., IAA General Letter; Shearman Letter.
-147- 

from the proposal.614

In addition to the costs to complete Form ADV for which we account above, some 

registered advisers will be required to file information regarding the private funds they advise. 

Specifically, filings will be required by: (i) 2,850 of the 7,600 current registrants with a 

December 31 fiscal year end that we expect to remain registered with us;

 However, in light of the general comments we received about burdens we 

are not reducing our burden estimates. 

615 (ii) 200 of the 700 

advisers we expect will register with us within the next year as a result of normal annual growth 

of our population of registered advisers;616 and (iii) 750 private fund advisers registering as a 

result of the elimination of the private adviser exemption. We estimate this will take 33,500 

hours617 for a total cost of $8,509,000.618 Most of the commenters that addressed Form ADV 

costs focused on these private fund reporting requirements, particularly where valuation or 

ownership information would be required.619 Several commenters wrote that the burden of the 

proposed reporting would be significant.620

 

614 See supra sections II.C.2 and II.C.3. 

 As a whole, these commenters suggested that the 

costs of the proposed amendments would outweigh the benefits, but only a few disagreed with 

615 See infra note 696. 

616 See infra note 699. 

617 See infra note 703. 

618 (16,750 hours x $235 = $3,936,250) + (16,750 hours x $273 = $4,572,750) = $8,509,000. As 

noted above, we expect that the performance of this function will most likely be equally allocated 

between a senior compliance examiner and a compliance manager. See supra note 608. 

619 See AIMA Letter; Avoca Letter; BCLBE Letter; Shearman Letter; Village Ventures Letter. 

620 See, e.g., AIMA Letter; AV Letter; BCLBE Letter; Debevoise Letter; Dechert Foreign Adviser 

Letter; Gunderson Letter; Katten Foreign Adviser Letter; NRS Letter; Seward Letter; Shearman 

Letter; VVL Letter. Several of these commenters were writing with respect to exempt reporting 

adviser reporting, but some of their comments would apply equally to registered advisers. See 

supra Section V.B.2. for a discussion of the estimated costs of reporting for exempt reporting 

advisers.
-148- 

the Commission’s estimates of those costs, which they considered too low.621 Although we 

believe, as noted above, that the information an adviser needs to complete Section 7.B.(1) is 

readily available in fund offering documents, we acknowledge that this Section of Form ADV 

could be time-consuming to complete, particularly for an adviser’s initial filing, depending on 

the number of funds the adviser manages. The primarily check-the-box and short-answer style 

of Section 7.B.(1), as well as some of the features of the IARD (such as drop-down boxes for 

common responses and ability to pre-populate responses) should help to decrease the average 

completion time for these advisers. Based on views expressed by some commenters,622 we 

expect these factors will alleviate concerns of other commenters, who argued that the reports 

require too much information or that the requirements would impose significant burdens.623 In 

addition, as discussed above, we are adopting Section 7.B.(1) with several changes (including the 

removal of some of the questions that commenters persuaded us may likely be proprietary or 

competitively sensitive) that reduce the amount of information required in respect of private 

funds.624

Based on the foregoing estimates, we expect that the total costs associated with the 

completion and submission of all of the amendments we are adopting to Form ADV, other than 

estimated costs above related to the transition described below,

 

625 therefore, are $27,623,771.626

 

621 Id. 

 

622 See supra note 570. 

623 AIMA Letter; Avoca Letter; BCLBE Letter; Shearman Letter; Village Ventures Letter. 

624 See section II.C.1. 

625 See section V.B.1.

626 $9,486,900 in one-time monetary costs of complying with amendments we are adopting today for 

current registrants and newly registering advisers as a result of normal growth + $9,627,871 in 

costs of completing and filing Form ADV (other than private fund reporting) for the 750 newly 

registering private fund advisers as a result of the elimination of the private adviser exemption + 
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In addition, we estimate for purposes of the PRA that approximately a quarter (or 350) of 

the 1,450 advisers estimated to register with us as a result of normal annual growth and as a 

result of the elimination of the private adviser exemption will use outside legal services, and half 

(or 725) will use outside compliance consulting services, to assist them in preparing their Part 2 

brochures, for a total cost of $1,540,000, and $3,625,000, respectively, resulting in a total nonlabor cost among all these newly registering advisers of $5,165,000.627

A few commenters objected to the amount of information required by Form ADV as a 

result of the amendments we proposed and suggested streamlining the form or eliminating what 

they saw as duplicative reporting.

 

628 We acknowledge some overlap in information required to 

be reported, but note that the two parts of Form ADV serve different purposes and that overlap in 

some cases may be necessary so that investors receiving a brochure are provided with full 

information about a practice or conflict, and that we are able to collect data on the matter for 

regulatory purposes. We believe that the information required by most of these items should be 

readily available to any adviser, and several commenters confirmed our belief.629

 

$8,509,000 in aggregate private fund reporting costs attributable to the foregoing filers = 

$27,623,771. 

 The check-thebox style of most of these items, as well as some of the features of the IARD (such as drop-down 

boxes for common responses) should also help minimize costs by reducing the average 

completion time. The changes we are making from the proposal will, as a whole, reduce the 

627 See infra note 732 an accompanying text. The currently approved burden associated with 

Form ADV already accounts for similar estimated costs to be incurred by current registrants, and 

it already accounts for a percentage of annual growth in our population of registered advisers. 

See also infra section VI.B.2.iv.

628 See IAA General Letter (citing page 48 of the Implementing Proposing Release and stating that it 

“do[es] not agree that the new requirements ‘should impose few additional regulatory burdens.’”). 

See also NRS Letter and Seward Letter, arguing that parts of the proposed amendments would 

result in duplicative reporting.

629 See, e.g., supra note 570. 
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amount of information that advisers must file and result in decreased burdens for advisers.630

The amendments to Form ADV that we are adopting will also result in other costs, none 

of which commenters specifically addressed. For instance, changes to the instructions on 

calculating regulatory assets under management, and rule 203A-3(d), will cause some advisers to 

report greater assets under management than they do today and preclude some advisers from 

excluding certain assets from their calculation in order to remain below the new asset threshold 

for registration with the Commission. The impact of these changes may result in a limited 

number of state-registered advisers that report assets under management of less than $30 million 

under the current Form ADV reporting requirements to register with us if, under the revised 

instructions, they would report $100 million or more in assets under management.

 

However, in light of the general comments we receive about burdens we are not reducing our 

burden estimates.

631

We are also amending Form ADV to require advisers to private funds to use the market 

value of private fund assets, or the fair value of private fund assets where market value is 

unavailable, for determining regulatory assets under management.

 

632

 

630 See supra notes 

 Advisers to private funds 

that do not use fair value methodologies will likely incur costs to comply with the requirement to 

report the fair value of those assets on Form ADV, which could (but is not required to) include 

245-247, 262, 286, 300, 302 and accompanying text for a discussion of these 

modifications. Some of the estimates provided in this section differ from those provided in the 

Implementing Proposing Release, but these differences reflect updated information regarding 

employment costs and the number of advisers subject to the reporting, not a change from the 

proposed estimate of time an adviser would spend on the reporting or the out of pocket costs an 

adviser would incur.

631 A registered investment adviser that reports more than $30 million in assets under management 

under the current instructions to Item 5 of Form ADV would be required to register with the 

Commission. These advisers would not have additional costs associated with registration as they 

would already be incurring those costs. 

632 See Form ADV: Instructions for Part 1A, inst. 5.b.(4).
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reliance on a third party or outside valuation service. We anticipate that these costs will vary, 

but we understand that private fund advisers, including those that may not use fair value 

methodologies for reporting purposes, perform administrative services, including valuing assets, 

internally as a matter of business practice.633 Based on registered advisers’ responses to Items 

5.D., 7.B., and 9.C. of Form ADV,634 we estimate that approximately 3% of registered advisers 

have at least one private fund client that may not be audited.635 These advisers therefore may 

incur costs to fair value their private fund assets.636 We estimate that approximately 4,270 

registered advisers have, or after registering with us will have, at least one private fund client.637

 

633 For example, an adviser to a hedge fund may value fund assets for purposes of allowing new 

investments in the fund or redemptions by existing investors, which may be permitted on a 

regular basis after an initial lock-up period. An adviser to a private equity fund may obtain 

valuation of portfolio companies in which the fund invests in connection with financing obtained 

by those companies. Advisers to private funds also may value portfolio companies each time the 

fund makes (or considers making) a follow-on investment in the company. Private fund advisers 

could use these valuations as a basis for complying with the fair valuation requirement with 

respect to private fund assets. 

 

We therefore estimate that approximately 130 registered advisers may incur costs as a result of 

634 Item 5.D. asks advisers to identify the types of clients they have, including clients that are pooled 

investment vehicles. Item 7.B. asks if the adviser or its related person is a general partner in an 

investment-related limited partnership or manager of an investment-related limited liability 

company, or if the adviser advises any other “private fund.” Item 9.C. asks whether an 

independent public accountant audits annually the pooled investment vehicles that the adviser 

manages and if audited financial statements are distributed to investors in the pools. 

635 A fund that is relying on the audit provision in our custody rule will have provided the fair value 

of its assets in its audited financial statements that are prepared in accordance with GAAP.

636 We note, however, that at least some of these advisers may currently fair value private fund 

assets. For instance, funds that do not prepare financial statements in accordance with GAAP 

(which is required to rely on an exception in our custody rule) may nonetheless use a fair value 

standard other than that specified in GAAP and thus may not incur any additional costs. See 

supra notes 98-99 and accompanying text (explaining that while many advisers will calculate fair 

value in accordance with GAAP or another international accounting standard, other advisers 

acting consistently and in good faith may utilize another fair valuation standard). 

637 Based on IARD data as of April 7, 2011. 3,320 current SEC-registered advisers to private funds 

remaining registered with the SEC + 750 newly registering private fund advisers as a result of the 

elimination of the private adviser exemption + 200 additional advisers to private funds each year 

= 4,270 advisers.
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the fair value requirement.638 We estimated in the Implementing Proposing Release that an 

adviser without the internal capacity to value specific illiquid assets would obtain pricing or 

valuation services from an outside administrator or other service provider at a cost ranging from 

$250 to $75,000 annually.639 Commenters did not address these estimates and for reasons 

discussed above, we continue to believe they are accurate.640 Accordingly, we estimate that the 

130 advisers would incur costs of $37,625 each on an annual basis, which is the middle of the 

range of estimated fair value costs, for an aggregate annual cost of $4,891,250.641

Requiring advisers to report whether they have $1 billion or more in assets also may have 

costs for advisers that are not publicly traded or otherwise do not publicly disclose the amount of 

their own assets. There may also be, as discussed below, competitive effects of this change and 

other of the amendments to Form ADV. We believe these changes will have little, if any, effect 

on capital formation. 

In addition, some of the amendments to Form ADV could impose costs, including 

potential competitive effects, as information that may not typically be provided to others 

becomes publicly available. For example, for advisers that may previously have only disclosed 

to certain clients and prospective clients, or only upon request, information such as census data 

about the private funds and the amount of private fund assets that the adviser manages, 

disclosure of state registrations of the adviser’s employees, financial industry affiliates, and the 

service providers to each private fund that the adviser manages could be costly. As noted above, 

some commenters voiced these types of concerns with respect to private fund disclosures they 

 

638 4,270 x 0.03 = 128.1. 

639 See Implementing Proposing Release, supra note 7, at n.369 and accompanying text. 

640 See supra section II.A.3. 

641 130 x $37,625 = $4,891,250. 
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consider competitively sensitive or proprietary.642 As also discussed above, we have adopted 

certain modifications from our proposal that are designed to address some of these concerns.643

4. Amendment to Pay to Play Rule 

 

The competitive effects of Form ADV reporting requirements, however, could create benefits as 

well as costs. For instance, unregistered advisers will not incur the expense of producing and 

reporting publicly this information, but clients and investors may have greater confidence in 

advisers that provide more fulsome disclosure and are subject to our oversight.

Our amendment to include registered municipal advisors in the definition of “regulated 

persons” excepted from the pay to play rule’s ban on third-party solicitation may result in 

additional costs to comply with the rule.644

As discussed in section II.D.1 of this Release, we received a number of comment letters 

opposing our proposal to replace the exception for “regulated persons” with an exception for 

registered municipal advisors.

 Specifically, advisers that have created compliance 

programs based on the original “regulated person” definition, which included only registered 

investment advisers and broker-dealers, may have to make adjustments to those programs to 

account for the broadened definition. But, as explained above, our amendment will allow them 

greater latitude in hiring placement agents. 

645

 

642 See supra note 

 Among other things, commenters argued that the amendment 

would force persons soliciting only on behalf of affiliated investment advisers to register as 

238 and accompanying text. 

643 See supra notes 245-247 and accompanying text. 

644 See amended rule 206(4)-5(a)(2), (f)(9). As discussed in section V.A.4., we believe that our 

amendment to rule 206(4)-5 to make it apply to exempt reporting advisers and foreign private 

advisers will not generate new costs.

645 See Better Markets Letter; Debevoise Letter; Dechert General Letter; IAA Pay to Play Letter; ICI 

Letter; NYSBA Letter; SIFMA Letter; T. Rowe Price Letter. But see NRS Letter (supporting the 

proposal). 
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municipal advisors, which they argued would subject them to regulatory requirements unrelated 

to pay to play practices and thus impose significant additional and unnecessary costs.646

5. Advisers Previously Exempt under Section 203(b)(3) 

 We are 

persuaded by commenters and have instead modified the definition of “regulated person” to 

include registered municipal advisors, which we believe is a lower-cost means to recognize this 

new category of registrant in our rule. 

 The transition provision in rule 203-1(e) for advisers exempt under the private adviser 

exemption will impose costs. It will delay the public disclosure of information about these 

advisers on Form ADV. As such, current clients and potential clients will not have access to this 

information as quickly as they would without the transition period.647 In addition, rule 203-1(e) 

will delay the deadline for these advisers to comply with all of our rules under the Advisers Act 

applicable to registered advisers, and thus will delay the full protection of these rules for clients 

and potential clients. However, we believe that providing a short transition period to effect an 

orderly transition to registration and full compliance for these advisers is appropriate. 

Furthermore, notwithstanding the transition period, these advisers continue to be subject to the 

Adviser’s Act’s antifraud provisions.648

VI. PAPERWORK REDUCTION ACT ANALYSIS

Certain provisions of the rules and rule amendments that the Commission is adopting 

today contain “collection of information” requirements within the meaning of the PRA. In the 

 

646 See, e.g., IAA Pay to Play Letter; SIFMA Letter. See also supra section II.D.1. 

647 We note, however, that the IARD system will not be updated to reflect our revisions to Form 

ADV, including the amendments requiring additional disclosure about private funds, until 

November. See infra note 759. Thus, even without regard to rule 203-1(e), disclosure of this 

information would be delayed. 

648 See, e.g., Advisers Act section 206. They are also subject to antifraud provisions of other federal 

securities laws, including rule 10b-5 under the Securities Exchange act of 1934. See 17 CFR 

240.10b-5. 
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Implementing Proposing Release, the Commission solicited comment on the proposed collection 

of information requirements. The Commission also submitted the proposed collections of 

information to the Office of Management and Budget (“OMB”) for review in accordance with 44 

U.S.C. 3507 and 5 CFR 1320.11. The titles for the collections of information we are adopting or 

amending are: (i) “Exemption for Certain Multi-State Investment Advisers (Rule 203A-2(d));”649

(ii) “Form ADV”; (iii) “Rule 203A-5;” (iv) “Rule 0-2 and Form ADV-NR under the Investment 

Advisers Act of 1940;” (v) “Rule 203-2 and Form ADV-W under the Investment Advisers Act of 

1940;” (vi) “Form ADV-H;”650 and (vii) “Rule 204-2 under the Investment Advisers Act of 

1940.”651

While our new rules and rule amendments will impose new collection of information 

burdens for certain advisers and change existing burdens on advisers under our rules, the DoddFrank Act also will impact our total burden estimates for certain of our rules, principally by 

changing the number of advisers subject to these rules. Specifically, we estimate the DoddFrank Act’s amendments to section 203A to reallocate regulatory responsibility over numerous 

registered advisers to the states will result in approximately 3,200 registered advisers switching 

 An agency may not conduct or sponsor, and a person is not required to respond to, a 

collection of information unless it displays a currently valid OMB control number. 

 

649 The current title for this collection of information is “Exemption for Certain Multi-State 

Investment Advisers (Rule 203A-2(e))” which we are re-titling “Exemption for Certain MultiState Investment Advisers (Rule 203A-2(d))” to reflect the renumbering of this provision. 

650 The current title for the collection of information on Form ADV-H is “Rule 203-3 and Form 

ADV-H under the Investment Advisers Act of 1940” because currently only registered advisers 

file Form ADV-H under rule 203-3. However, because we are proposing to amend Form ADV-H 

to allow exempt reporting advisers to apply for a temporary hardship exemption on Form ADV-H 

under rule 204-4, we are re-titling the collection of information simply “Form ADV-H.” 

651 We note that the PRA analysis associated with the requirement that an accountant’s report be 

filed electronically was included in our adoption of substantive amendments to that form. Today, 

we are making only a technical amendment to Form ADV-E to conform to that prior rulemaking. 

See 2009 Custody Release, supra note 310 at section IV.C. 
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from Commission to state registration.652 At the same time, we estimate that the Dodd-Frank 

Act’s elimination of the private adviser exemption in section 203(b)(3) of the Advisers Act will 

result in approximately 750 additional private fund advisers registering with the Commission.653 

Based on IARD data as of April 7, 2011, we estimate that approximately 11,500 advisers are 

currently registered with the Commission. We further estimate that approximately 700 

additional advisers register with the Commission each year.654 Therefore, for purposes of 

calculating the burdens of our proposed rules and amendments under the PRA, we estimate that 

the number of advisers registering with the Commission after the Dodd-Frank Act’s amendments 

to sections 203A and 203(b)(3) become effective will be approximately 9,750.655

A. Rule 203A-2(d)

Rule 203A-2(d), as amended, exempts certain multi-state investment advisers from 

section 203A’s prohibition on registration with the Commission. We have renumbered and 

amended the exemption to permit all investment advisers who are required to register as an 

investment adviser with 15 or more states to register with the Commission, rather than 30 states, 

 

652 See supra section II.A. (discussing the Dodd-Frank Act’s amendments to section 203A). Based 

on IARD data as of April 7, 2011, we estimate that approximately 3,200 will switch to state 

registration because they have assets under management of less than $90 million. This estimate 

includes approximately 5 advisers that will switch to state registration because they are relying on 

the registration of an affiliated adviser with the same principal office and place of business that 

will be switching to state registration. See supra note 422. 

653 See Exemptions Adopting Release at section I. (discussing elimination of the private adviser 

exemption in section 203(b)(3)). 

654 Over the past several years, approximately 1,000 new advisers have registered with us annually. 

Due to the Dodd-Frank Act’s reallocation of regulatory responsibility for advisers with assets 

under management of less than $100 million, we estimate that approximately 700 new advisers 

will register with us annually based on reducing the current growth rates by the gross reduction in 

the number of advisers due to the Dodd-Frank Act. (3,200 (SEC advisers withdrawing) / 11,500 

(total SEC advisers)) x 1000 (number of new advisers each year) = 0.28 x 1000 = 280 (number of 

additional new advisers registering with the states, not the SEC). 1000 - 280 = 720. We have 

rounded this number to 700 for purposes of our analysis. 

655 11,500 (total SEC advisers) – 3,200 (SEC advisers withdrawing) + 750 (private advisers 

registering with the SEC) + 700 (new SEC advisers each year) = 9,750. 
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as currently required.656 An adviser relying on this exemption is required to maintain in an 

easily accessible place a record of the states in which the investment adviser has determined it 

would, but for the exemption, be required to register for a period of not less than five years from 

the filing of a Form ADV relying on the rule.657

Respondents to this collection of information will be investment advisers who would be 

required to register in 15 or more states absent the exemption (that rely on amended rule 203A2(d) to register with the Commission). This collection of information is mandatory for those 

advisers. The records kept by investment advisers in compliance with the rule are necessary for 

the Commission staff to use in its examination and oversight program, and the information in 

these records generally will be kept confidential.

 We submitted this collection of information to 

OMB for review, and OMB has not yet assigned this collection a control number. 

658

The amendments to the rule that we are adopting today do not differ from our proposed 

amendments. Commenters did not discuss the rule’s collection of information requirements, but 

generally agreed with our proposal to align our multi-state exemption for small advisers with the 

statutory exemption for mid-sized advisers.

 

659 A few, however, recommended a lower threshold 

of required state registrations for eligibility for the multi-state exemption,660

 

656 See amended rule 203A-2(d). 

 but we have 

657 See amended rule 203A-2(d)(3). An investment adviser relying on this exemption also will 

continue to be required to: (i) include a representation on Schedule D of Form ADV that the 

investment adviser has reviewed applicable law and concluded that it must register as an 

investment adviser with 15 or more states; and (ii) undertake on Schedule D to withdraw from 

registration with the Commission if the adviser indicates on an annual updating amendment to 

Form ADV that the investment adviser will be required by the laws of fewer than 15 states to 

register as an investment adviser with the state. See amended rule 203A-2(d)(2). The increase in 

the PRA burden for Form ADV reflects these requirements. See infra section VI.B.

658 See section 210(b) of the Advisers Act.

659 See NASAA Letter; NEA Letter; NRS Letter; Pickard Letter; Seward Letter; Shearman Letter. 

660 See NEA Letter; Seward Letter; Shearman Letter.
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determined not to lower the threshold further in light of the Congressional determination to set 

the threshold at 15 states and our stated purpose to align the rule with the Dodd-Frank Act.661

In the Implementing Proposing Release, the Commission estimated that approximately 

150 advisers would rely on the exemption.

 

662 As of April 7, 2011, there were approximately 40 

advisers relying on the multi-state exemption.663 Although it is difficult to determine a precise 

number of advisers that will rely on the exemption as amended because such reliance is entirely 

voluntary, we estimate that approximately 155 advisers will rely on the exemption.664 These 

advisers will incur an average one-time initial burden of approximately 8 hours, and an average 

ongoing burden of approximately 8 hours per year, to keep records sufficient to demonstrate that 

they meet the 15-state threshold. These estimates are based on an estimate that each year an 

investment adviser will spend approximately 0.5 hours creating a record of its determination 

whether it must register as an investment adviser with each of the 15 states required to rely on 

the exemption, and approximately 0.5 hours to maintain these records.665

 

661 See supra note 

 Accordingly, the 

136. 

662 See Implementing Proposing Release, supra note 7, at n.382.

663 Based on IARD data as of April 7, 2011, of the approximately 11,500 SEC-registered advisers, 

40 checked Item 2.A.(9) of Part 1A of Form ADV to indicate their basis for SEC registration 

under the multi-state advisers rule. 

664 Based on IARD data as of April 7, 2011, 100 of the advisers that have less than $90 million of 

assets under management currently file notice filings with 15 or more states. This number may 

overestimate the number of advisers required to be registered with 15 or more states, and 

therefore eligible for the amended multi-state exemption, because notice filing requirements may 

differ from registration requirements. In addition, we are unable to determine the number of 

advisers currently registered with the states that are registered with 15 or more states that may 

rely on the exemption and register with us. We expect this number to be small based on the scope 

of business of an adviser that has less than $25 million in assets under management and because 

section 222(d) of the Advisers Act provides a de minimis exemption for limited state operations 

without registration. For purposes of this analysis, we estimate the number is 15. As a result, we 

estimate that approximately 155 advisers will rely on the exemption (40 currently relying on it + 

estimated 100 eligible based on IARD data + 15 advisers required to be registered in 15 or more 

states that are not registered with us today). 

665 0.5 hours x 15 states = 7.5 hours + 0.5 hours = 8 hours. 
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revised total initial and annual burden of the recordkeeping requirements of rule 203A-2(d) will 

be 1,240 hours (an additional 920 hours).666

B. Form ADV

 

Form ADV (OMB Control No. 3235-0049) is the two-part investment adviser registration 

and exempt adviser reporting form. Part 1 of Form ADV contains information designed for use 

by Commission staff, and Part 2 is the client brochure. We use the information collected on 

Form ADV to determine eligibility for registration with us and to manage our regulatory and 

examination programs. Clients use certain of the information to determine whether to hire or 

retain an adviser. Rule 203-1 requires every person applying for investment adviser registration 

with the Commission to file Form ADV. Rule 204-4 requires exempt reporting advisers to file 

reports with the Commission by completing a limited subset of items on Form ADV. Rule 204-1 

requires each registered and exempt reporting adviser to file amendments to Form ADV at least 

annually, and requires advisers to submit electronic filings through the IARD. These collections 

of information are found at 17 CFR 275.203-1, 275.204-1, 275.204-4, and 279.1 and are 

mandatory. The paperwork burdens associated with rules 203-1 and 204-1 are, and the 

paperwork burdens associated with rule 204-4 will be, included in the approved annual burden 

associated with Form ADV and, thus, do not entail separate collections of information. 

Responses are not kept confidential. The respondents to this information collection are 

investment advisers registered or applying for registration with us and exempt reporting advisers. 

As discussed above, in order to give effect to provisions in Title IV of the Dodd-Frank 

Act, we are amending Part 1A of Form ADV to reflect the new statutory threshold for 

registration with the Commission and to accommodate filings by exempt reporting advisers. In 

 

666 155 advisers relying on the exemption x 8 hours = 1,240 hours. 1,240 new burden hours – 320 

current burden hours = 920 additional burden hours. 
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addition, to enhance our ability to oversee investment advisers, we are amending Part 1A of 

Form ADV to require advisers to provide us additional information regarding: (i) the private 

funds they advise; (ii) their advisory business and business practices that may present significant 

conflicts of interest; and (iii) their non-advisory activities and financial industry affiliations.667

The currently approved total annual burden of completing, amending, and filing Parts 1 

and 2 of Form ADV is 268,457 hours.

 

We are also adopting certain additional amendments intended to improve our ability to assess 

compliance risks and to enable us to identify the advisers that are covered by section 956 of the 

Dodd-Frank Act, which addresses certain incentive-based compensation arrangements. 

668 The currently approved burden is based on an average 

total hour burden of 36.24 hours per adviser for the first year that an adviser completes 

Form ADV. The currently approved total annual cost burden for Form ADV is $22,775,400, 

consisting of costs for outside legal and consulting services associated with initial preparation of 

Part 2.669

 

667 See supra section II.C. In addition, we are adopting several clarifying or minor amendments 

based on frequently asked questions we receive from advisers and our experience administering 

the form.

 

668 See section VI of the Part 2 Release at notes 341 and 342 and accompanying text. The approved 

burden is comprised of 12,658 advisers preparing an initial filing of Form ADV at 36.24 hours, 

which is amortized over a three-year period (the estimated period that advisers are expected to 

use Form ADV) for an annual burden of 152,909 hours. The burden also includes two 

amendments to Form ADV annually, one annual amendment and one other-than-annual 

amendment, for an annual burden of 87,435 hours; an annual burden of 11,658 hours to account 

for new brochure supplements that advisers are required to prepare; and 16,455 hours attributable 

to the obligation to deliver to clients codes of ethics upon request. 

669 These costs are expected to vary based on the size of the adviser, and we have assumed that fewer 

than all advisers will use these services in connection with preparing their initial Part 2 brochures. 

For outside legal services, ($4,400 x 535 medium advisers) + ($3,200 x 2,370 small advisers)) + 

($10,400 x 36 large advisers) = $ 10,312,400. For compliance consulting services, ($3,000 x 

2,371 small advisers) + ($5,000 x 1,070 medium advisers) = $12,463,000. $10,312,400 + 

$12,463,000 = $22,775,400. See Part 2 Release, supra note 668, for a discussion of these 

estimates.
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The amendments we are adopting will increase the information requested in Part 1A of 

Form ADV, and we expect that this will correspondingly increase the average burden to an 

adviser filing Form ADV. As we explained in the Implementing Proposing Release, however, 

we expect that the total annual burden associated with Form ADV will experience a net decrease 

because the reduction in burden resulting from the decrease in the number of respondents that are 

registered advisers will have a greater effect on the total burden than the increase resulting from 

the use of the form by exempt reporting advisers and the additional information required by the 

amendments to the form.670 We provided initial estimates of the revised burdens and requested 

comment on these estimates and our initial PRA analysis in the Implementing Proposing 

Release.671 As discussed in detail in sections II.B., II.C., V.A.2., V.A.3., V.B.2 and V.B.3. of 

this Release, we received a number of comments that addressed whether the amendments to the 

collection of information are necessary for the proper performance of our functions, whether 

there are ways to enhance the quality, utility, and clarity of the information to be collected, and 

whether we could further minimize the burden. Only a few commenters addressed the accuracy 

of our burden estimates for the proposed collection of information, and suggesting in general 

terms that our estimates were too low.672

To address these and other comments we received, we are adopting Form ADV with a 

number of changes that improve the clarity and utility of the information collected and reduce 

 These commenters did not provide empirical data or 

suggest alternatives by which to recalculate our estimates, making it difficult to evaluate these 

assertions or determine the magnitude by which their estimates differ from ours. 

 

670 See Implementing Proposing Release, supra note 7, at section V.B.

671 Id. 

672 AIMA Letter; BCLBE Letter; Gunderson Letter; IAA General Letter. See also supra notes 577, 

584, 613, 619 and 620. 
-162- 

the amount of information required by the amendments.673 Many of these changes include 

removing or re-formulating proposed questions that commenters identified as most 

burdensome.674 We continue to believe that the check-the-box style of most of the Form ADV 

items, as well as some of the features of the IARD (such as drop-down boxes for common 

responses and the ability to pre-populate data), will mitigate the reporting burden, and several 

commenters confirmed our assumption that much of the information required by the amendments 

should be readily available to most advisers.675 The changes we are making from the proposal 

will reduce the amount of information that advisers must file and result in decreased burdens for 

advisers from the proposal. However, in light of the general comments we received about 

burdens, we are also not reducing our burden estimates.676

We discuss below, in three sub-sections, the estimated revised collection of information 

requirements for Form ADV: first, we provide estimates for the revised and new burdens 

resulting from the amendments to Part 1A; second, we determine how those estimates will be 

reflected in the annual burdens attributable to Form ADV; and third, we calculate the total 

revised burdens associated with Form ADV.

 

 

673 See section II.C. 

674 See supra notes 245-247, 262, 286, 300, 302 and accompanying text. 

675 See supra note 570. 

676 Some of the estimates provided in this section differ from those provided in the Implementing 

Proposing Release, but these differences reflect updated information regarding employment costs 

and the number of advisers subject to the reporting, not a change to the proposed estimate of time 

an adviser would spend on the reporting or the out-of-pocket costs an adviser would incur.
-163- 

1. Changes in Average Burden Estimates and New Burden Estimates 

a. Estimated Change in Burden Related to Part 1A Amendments 

(Not Including Private Fund Reporting)

We are adopting amendments to several items in Part 1A, some that are merely technical 

changes or very simple in nature, and others that will require more of an adviser’s time. The 

paperwork burdens of filing an amended Part 1A of Form ADV will, however, vary among 

advisers, depending on factors such as the size of the adviser, the complexity of its operations, 

and the number or extent of its affiliations. Although burdens will vary among advisers, we 

believe that the revisions to Part 1A will impose few additional burdens on advisers in collecting 

information because advisers should have ready access to all the information necessary to 

respond to the revised items in their normal course of operations. We also are working with 

FINRA, as our IARD contractor, to implement measures intended to minimize the burden for 

advisers filing the amended Form ADV on the IARD (e.g., pre-populating fields and drop-down 

boxes for common responses). We anticipate, moreover, that the responses to many of the 

questions are unlikely to change from year to year, minimizing the ongoing reporting burden 

associated with these questions. 

As we explained in the Implementing Proposing Release, in large part, the changes we 

are making to Part 1A of Form ADV, including those to account for the statutory increase in the 

threshold for Commission registration, primarily refine or expand existing questions or request 

information advisers already have for compliance or fund offering purposes. For instance, some 

of the changes to Item 5 require advisers to provide numerical responses to certain questions 

about their employees. An adviser likely already had this information in order to respond to 

those questions in the previous version of the form by checking boxes that correspond to a range 

of numbers. Likewise, the amendments to Item 8 require an adviser to expand on information it 
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provided in response to Item 8 in the previous version of the form, such as whether the brokerdealers the adviser recommends or has discretion to select for client transactions are related 

persons of the adviser. Other questions expand upon existing requirements to elicit information 

advisers already have available for compliance purposes, such as whether the soft dollar benefits 

they reported receiving under the previous version of Item 8 qualify for the safe harbor under 

section 28(e) of the Exchange Act for eligible research or brokerage services. As amended, 

Item 2 requires an adviser to report to us its basis for registration or reporting, as already 

determined for compliance purposes. Other amendments to Items 5, 6 and 7 expand lists of 

information advisers already provided to us on the previous version of Form ADV, such as types 

of advisory activities the advisers perform and other types of business engaged in by advisers 

and their related persons. Amendments to Item 9 better align the information required to be 

reported with information advisers have for purposes of complying with rule 206(4)-2. Finally, 

we believe that several of the new questions merely require advisers to provide readily available 

or easily accessible information.677

We anticipate that other amended questions may take longer for advisers to complete, 

even with readily available information, such as calculating regulatory assets under management 

according to our revised instruction. Other new items will likely present greater burdens for 

some advisers but not others, depending on the nature and complexity of their businesses, such 

as the requirement to provide a list of the Commission file numbers of investment companies 

 

677 For example, Item 1 requires advisers to provide contact information for their Chief Compliance 

Officers and report whether they have $1 billion or more in assets; Item 3 requires advisers to 

indicate their form of organization. See supra section II.C.6. 
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they advise or providing expanded information about related person financial industry 

affiliates.678

We estimate that these amendments, taken as a whole, will require an average of 

approximately 4.5 hours per adviser to complete. We have arrived at this estimate, in part, by 

comparing the relative complexity and availability of the information elicited by the amended 

items and the nature of the response required (i.e., checking a box as opposed to providing a 

narrative response) to the current form and its approved burden. As a result, we estimate that the 

average total collection of information burden will increase to 40.74 hours per adviser for the 

first year that an adviser completes Form ADV (Part 1 and Part 2).

 

679

b. New Estimated Burden Related to Private Fund Reporting 

Requirements

 

Revised Item 7.B. and Section 7.B. of Schedule D will provide us with basic census data 

on private funds and will permit us to conduct a more robust risk assessment of private fund 

advisers for purposes of targeting our examinations. As discussed in the Implementing 

Proposing Release, the information will include fund data such as basic organizational, 

operational, and investment characteristics of the fund; the gross amount of assets held by the 

fund; and the fund’s service providers, or gatekeepers. We believe much of this information is 

readily available to private fund advisers because, among other things, it is information that 

private fund investors commonly seek in their due diligence questionnaires or it is the kind of 

 

678 Advisers may, however, omit certain related persons from their Schedule D reporting 

requirements in accordance with our revised instruction. We expect this change from the 

proposal will significantly reduce burdens associated with this item. See supra note 300. 

679 Current approved per adviser total (36.24) + estimated per adviser increase (4.5) = 40.74. 
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information that is often included in a private placement memorandum offering fund shares, and 

commenters confirmed our understanding.680

Although we understand that the required information is readily available to private fund 

advisers, we expect that these amendments could subject advisers, particularly those with many 

private funds, to a significantly increased paperwork burden. For this reason, as we explained in 

the Implementing Proposing Release, we have included several measures to minimize the 

increased burden associated with private fund reporting. First, an adviser will be permitted to 

exclude from its reporting on Section 7.B.(1) of Schedule D any private fund for which another 

adviser is filing Section 7.B.(1).681 Second, an adviser managing a master-feeder arrangement 

will be permitted to submit a single Schedule D for the master fund and all of the feeder funds if 

separately submitted data would otherwise be substantially identical.682 Finally, an adviser with 

a principal office and place of business outside the United States may omit from Section 7.B.(1) 

of Schedule D any private fund that, during the adviser’s last fiscal year, was not a United States 

person, was not offered in the United States and was not beneficially owned by any United States 

person.683

 

680 See, with respect to private fund reporting under Item 7.B. specifically, Katten Foreign Advisers 

Letter (“Virtually all of the requested information would already have been provided to investors 

in the fund through an offering document or follow up status reports.”) and NRS Letter (arguing 

that the expanded private fund disclosures on Schedule D would “replicate the due diligence 

questionnaire information....”). See also ABA Committees Letter (“We expect that most [exempt 

reporting advisers] will already have most of the information requested by Form ADV Part 1 

readily available.”); Merkl Implementing Letter (confirming that the disclosure requirements 

would not impose a significant burden on advisers). See also supra note 

 We are also working with FINRA to implement measures in the IARD intended to 

minimize the burden for advisers filing amended Form ADV, such as the ability to automatically 

pre-populate private fund service provider information provided for other funds managed by the 

570. 

681 See supra note 223. 

682 See supra note 224 and accompanying text. 

683 See supra note 225 and accompanying text. 
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same adviser. In addition, although we are generally expanding the information previously 

required in Section 7.B.(1), we have removed the requirement that advisers report the funds that 

their related persons manage. 

Considering the changes to Item 7.B. and Section 7.B. of Schedule D as a whole, as well 

as our efforts to mitigate the reporting burden and to make technological upgrades to the IARD, 

we estimate that each adviser managing private funds will spend, on average, 1 hour per private 

fund to complete these questions. 

c. New Estimated Burden Related to Exempt Reporting Adviser 

Reporting Requirements

Exempt reporting advisers are required to complete a limited number of items in Part 1A 

of Form ADV (consisting of Items 1, 2.B., 3, 6, 7, 10, 11 and corresponding schedules), and are 

not required to complete Part 2. We believe the information required by these items should be 

readily available to any adviser, particularly the identifying data and control person information 

required by Items 1, 3, and 10, and commenters agreed.684 As we noted in the Implementing 

Proposing Release, the check-the-box style of most of these items, as well as some of the 

features of the IARD (such as drop-down boxes for common responses) should also keep the 

average completion time for these advisers to a minimum.685 Moreover, in our staff’s 

experience, the types of advisers that will meet the criteria for exempt reporting advisers are 

unlikely to have significantly large numbers of affiliations, and we do not expect that they will 

need to report disciplinary events at a greater rate than currently registered advisers.686

 

684 See supra notes 

 We 

estimate that these items, other than Item 7.B., will take each exempt reporting adviser 

570 and 680. 

685 See Implementing Proposing Release, supra note 7, at section V.B.1.c.

686 As of April 7, 2011, approximately 13% of SEC-registered investment advisers reported a 

disclosure in Item 11 of Form ADV.
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approximately 2 hours to complete. We anticipate that, like registered advisers, exempt 

reporting advisers will each spend 1 additional hour per private fund to complete Item 7.B. and 

Section 7.B of Schedule D.

2. Annual Burden Estimates

a. Estimated Annual Burden Applicable to All Registered 

Investment Advisers

i. Estimated Initial Hour Burden (Not Including Burden 

Applicable to Private Funds)

As a result of the transition filing discussed above,687 we expect the total number of 

registered advisers responding to this collection of information will be 9,750.688 Approximately 

11,500 investment advisers are currently registered with the Commission.689 We expect 3,200 

will withdraw from registration.690 We expect about 750 advisers who currently rely on the 

private adviser exemption to apply for registration with us, and we estimate that approximately 

700 new advisers will register with us each year following effectiveness of the Dodd-Frank Act 

amendments.691

The estimated total annual burden applicable to these registered advisers, including new 

registrants, but excluding private fund reporting requirements, is 397,215 hours.

 

692

 

687 See supra section V.B.1.

 As discussed 

688 See supra note 655. 

689 Based on IARD data as of April 7, 2011. 

690 As a consequence of section 410 of the Dodd-Frank Act, we estimate that approximately 3,200 

advisers currently registered with the Commission will be required to withdraw their registration 

and register with one or more state securities authorities. See supra section V.B.1. 

691 (3,200 (SEC advisers expected to withdraw from registration) / 11,500 (total SEC advisers)) x 

1000 (average number of new advisers registered with the Commission each year) = 0.28 x 1000 

= 280 (number of additional new advisers registering with the states, not the SEC). 1000 - 280 = 

720. We have rounded this number to 700 for purposes of our analysis. See also supra note 609

and infra note 734. 

692 40.74 per-adviser burden x 9,750 = 397,215 hours. 
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in the Implementing Proposing Release, we believe that most of the paperwork burden will be 

incurred in advisers’ initial submission of the new and amended items of Part 1A of Form ADV, 

and that over time this burden will decrease substantially because advisers will generally only 

need to report updating information.693 Amortizing this total burden over a three-year period to 

reflect the anticipated average period of time that advisers will use the revised form will result in 

an average estimated burden of 132,405 hours per year,694 or 13.58 hours per year for each new 

applicant and for each currently registered adviser that will remain registered with the 

Commission.695

ii. Estimated Initial Hour Burden Applicable to All 

Registered Advisers to Private Funds

 

The amount of time that a registered adviser managing private funds will incur to 

complete Item 7.B. and Section 7.B. of Schedule D will vary depending on the number of private 

funds the adviser manages. Of the advisers currently registered with us, we estimate that 

approximately 2,850 advise private funds, will remain registered with us following effectiveness 

of the Dodd-Frank Act amendments and have a December 31 fiscal year end.696

 

693 See Implementing Proposing Release, supra note 

 Based on these 

advisers’ Form ADV filings, we estimate that 52% of them, or approximately 1,480, currently 

advise an average of 3 private funds each; 43%, or approximately 1,230 advisers, currently 

advise an average of 10 private funds each; and the remaining 5%, or approximately 140 

7, at section V.B.2.a.i.

694 397,215 / 3 = 132,405.

695 132,405 / 9,750 = 13.58. 

696 IARD data as of April 7, 2011 show that 3,700 advisers indicate by reporting a fund in 

Schedule D, Section 7.B. that they, or a related person, advise private funds or investment-related 

funds. Based on IARD data, we estimate that 850 of these 3,700 advisers have a fiscal year end 

other than December 31 or will switch to state registration. See supra note 529. With respect to 

these 850 advisers, the burden of reporting this information is accounted for under rule 203A-5. 

See infra note 768. 3,700 – 850 = 2,850. 
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advisers, currently advise an average of 79 private funds each.697 As we discussed above, we 

estimate that private fund advisers will spend, on average, 1 hour per private fund completing 

Item 7.B. and Section 7.B. of Schedule D. As a result, the private fund reporting requirements 

that will be applicable to registered investment advisers will add 27,800 hours to the overall 

annual burden applicable to registered advisers.698

In addition to currently registered private fund advisers, we estimate that about 200 new 

private fund advisers will register with us annually

 

699

 

697 Based on IARD data as of April 7, 2011. Form ADV currently asks for an adviser to report about 

investment-related partnerships and limited liability companies advised by the adviser and its 

related persons. As a result, the data we have obtained from IARD over-estimates the average 

number of funds as a result of reporting of the same fund multiple times by affiliated registered 

advisers. 

 and that 750 advisers will register with us 

that previously relied on the private adviser exemption. We believe that these 950 newly 

registering private fund advisers will, on average, be similar to the currently registered private 

fund advisers. However, in contrast to the currently registered advisers, this group is unlikely to 

include any advisers managing a large number of private funds. For example, among the 750 

advisers that currently rely on the private adviser exemption, we would not expect any of them to 

have more than 14 private fund clients, the most that had been allowed under the exemption 

provided by section 203(b)(3) of the Advisers Act. In addition, for the 200 new private fund 

advisers that we expect to register each year, the elimination of the private adviser exemption 

means that they will be subject to registration requirements even if they have only a single 

private fund client as long as they are not eligible for another exemption. As a result, we 

698 (1,480 advisers x 3 hours (3 funds x 1 hour per fund)) + (1,230 advisers x 10 hours (10 funds x 1 

hour per fund)) + (140 advisers x 79 hours x 1 hour per fund)) = 4,440 + 12,300 + 11,060 = 

27,800. 

699 About 30% of current registrants report that they advise one or more private funds. (3,700 

advisers to private funds / 11,500 registered advisers). Applying the same proportion to the 700 

new registrants that we have estimated will register with us annually results in approximately 200 

additional advisers to private funds each year. (700 x 0.30 = 210). 
-171- 

estimate that the average newly registering private fund adviser will (like the average currently 

registered private fund adviser) manage approximately 6 private funds,700 but we do not 

anticipate that any subgroup of these new registrants will manage a large number of private 

funds (unlike the 5% of currently registered private fund advisers that we estimate manage an 

average of 79 private funds each). Based on these estimates, we expect that private fund 

reporting requirements will add 4,500 hours attributable to the 750 advisers registering because 

of the elimination of the private adviser exemption701 and 1,200 hours attributable to private fund 

advisers registering as a result of normal growth.702

The total annual burden related to private fund reporting by registered advisers is 33,500 

hours.

 

703 As we discussed in the Implementing Proposing Release, we believe that most of the 

paperwork burden will be incurred in connection with advisers’ initial submission of private fund 

data, and that over time this burden would decrease substantially because the paperwork burden 

will be limited to updating information.704 Amortizing this total burden imposed by Form ADV 

over a three-year period, as we did above with respect to the initial filing or re-filing of the rest 

of the form, results in an average estimated burden of 11,167 hours per year,705

 

700 Approximately 65% of advisers that reported a fund in Schedule D, Section 7.B. listed five or 

fewer funds and 72% of advisers that registered since April 1, 2010 and reported a fund reported 

five or fewer private funds. The average number of private funds reported by new registrants in 

the past year is about 6 funds. 

 or 2.94 hours per 

701 750 advisers x 6 private funds on average x 1 hour/private fund = 4,500. 

702 200 advisers x 6 private funds on average x 1 hour/private fund = 1,200. 

703 27,800 for existing registered advisers + 4,500 for no longer exempt advisers + 1,200 for 

estimated new registrants due to growth = 33,500. 

704 See Implementing Proposing Release, supra note 7, at section V.B.2.a.ii.

705 33,500 / 3 = 11,167. 
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year for each new private fund adviser and for each private fund adviser currently registered with 

the Commission.706

iii. Estimated Annual Burden Associated with Amendments, 

New Brochure Supplements and Delivery Obligations

 

The currently approved collection of information burden for Form ADV has three 

elements not discussed above: (i) the annual burden associated with annual and other 

amendments to Form ADV; (ii) the annual burden associated with creating new Part 2 brochure 

supplements for advisory employees and filing interim amendments to existing brochure 

supplements throughout the year; and (iii) the annual burden associated with delivering codes of 

ethics to clients as a result of the offer of such codes contained in the brochure. Although we do 

not anticipate that the amendments we are adopting to Form ADV will affect the per adviser 

burden imposed by these three elements, the Dodd-Frank Act’s amendments to sections 203A 

and 203(b)(3) will change our estimates of the number of advisers subject to them, which will 

result in a change to the total annual burden associated with these elements of the collection of 

information for Form ADV.707

Based on IARD data, we continue to estimate that, on average, each adviser filing 

Form ADV through the IARD will amend its form two times during the year.

 

708

 

706 11,167 / (2,850 + 200 + 750) = 2.94. 

 On average, 

these consist of one interim updating amendment (at an estimated 0.5 hours per amendment) and 

one annual updating amendment (at an estimated 6 hours per amendment) each year. In 

addition, we estimate that each adviser will, on average, spend 1 hour per year making interim 

707 We anticipate that the clarification we are making to the brochure supplement (Part 2B) would 

not affect this burden estimate. See note 337 and accompanying text for a discussion of this 

clarifying amendment. 

708 Based on IARD data regarding the number of filings of Form ADV amendments. See Part 2 

Release, supra note 67 at n.329. 
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amendments to brochure supplements and an additional 1 hour per year to prepare new brochure 

supplements as required by Part 2.709 We also expect advisers to continue to spend an average of 

1.3 hours annually to meet obligations to deliver codes of ethics to clients.710 These obligations 

will add 95,550 hours annually to the collection of information, consisting of 63,375 hours 

attributable to annual and interim updating amendments,711 9,750 hours attributable to interim 

amendments to brochure supplements,712 9,750 hours attributable to the creation of new brochure 

supplements,713 and 12,675 hours for delivery of codes of ethics.714

iv. Estimated Annual Cost Burden 

The currently approved collection of information burden for Form ADV has a one-time 

initial cost for outside legal and compliance consulting fees in connection with the initial 

preparation of Part 2 of Form ADV. Although we do not anticipate that the amendments we are 

adopting to Form ADV will affect the per adviser cost burden estimates for outside legal and 

compliance consulting fees, the Dodd-Frank Act’s amendments to sections 203A and 203(b)(3) 

of the Advisers Act will result in a significant change to our estimates of the number of advisers 

subject to these costs. We discuss this aspect of the annual cost burden more fully below. In 

addition to the estimated legal and compliance consulting fees, we also anticipate that some 

registered advisers may incur additional outside costs related to the Form ADV amendments we 

are adopting today that require advisers to report the fair value of private fund assets.715

 

709 See Part 2 Release, supra note 668 at nn.333, 336-37 and accompanying text. 

710 Id. 

711 (9,750 advisers x 0.5 hours/other than annual amendment) + (9,750 advisers x 6 hours/annual 

amendment) = 63,375. 

712 9,750 advisers x 1 hour = 9,750. 

713 9,750 advisers x 1 hour = 9,750. 

714 9,750 advisers x 1.3 hours = 12,675. 

715 See Form ADV: Instructions for Part 1A, instr. 5.b.(4). 
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Advisers to private funds that do not use fair value methodologies will likely incur costs 

to comply with the requirement to report the fair value of those assets on Form ADV, which 

could (but is not required to) include reliance on a third party or outside valuation service. We 

anticipate that these costs will vary, but we understand that private fund advisers, including those 

that may not use fair value methodologies for reporting purposes, perform administrative 

services, including valuing assets, internally as a matter of business practice.716 Based on 

registered advisers’ responses to Items 5.D., 7.B., and 9.C. of Form ADV,717 we estimate that 

approximately 3% of registered advisers have at least one private fund client that may not be 

audited.718 These advisers therefore may incur costs to fair value their private fund assets.719 As 

explained above, we estimate that approximately 4,270 registered advisers have, or after 

registering with us will have, at least one private fund client.720

 

716 For example, an adviser to a hedge fund may value fund assets for purposes of allowing new 

investments in the fund or redemptions by existing investors, which may be permitted on a 

regular basis after an initial lock-up period. An adviser to a private equity fund may obtain 

valuation of portfolio companies in which the fund invests in connection with financing obtained 

by those companies. Advisers to private funds also may value portfolio companies each time the 

fund makes (or considers making) a follow-on investment in the company. Private fund advisers 

could use these valuations as a basis for complying with the fair valuation requirement with 

respect to private fund assets. 

 We therefore estimate that 

717 Item 5.D. asks advisers to identify the types of clients they have, including clients that are pooled 

investment vehicles. Item 7.B. asks if the adviser or its related person is a general partner in an 

investment-related limited partnership or manager of an investment-related limited liability 

company, or if the adviser advises any other “private fund.” Item 9.C. asks whether an 

independent public accountant audits annually the pooled investment vehicles that the adviser 

manages and if audited financial statements are distributed to investors in the pools. 

718 A fund that is relying on the audit provision in our custody rule will have provided the fair value 

of its assets in its audited financial statements that are prepared in accordance with GAAP.

719 We note, however, that at least some of these advisers may currently fair value private fund 

assets. For instance, funds that do not prepare financial statements in accordance with GAAP 

(which is required to rely on an exception in our custody rule) may nonetheless use a fair value 

standard other than that specified in GAAP and thus may not incur any additional costs. See 

supra notes 98-100 and accompanying text (explaining that an adviser may adopt a fair valuation 

standard other than GAAP or another international accounting standard that will satisfy the 

requirement, if developed and applied in good faith). 
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approximately 130 registered advisers may incur costs as a result of the fair value requirement.721 

We estimated in the Implementing Proposing Release that an adviser without the internal 

capacity to value specific illiquid assets would obtain pricing or valuation services from an 

outside administrator or other service provider at a cost ranging from $250 to $75,000 

annually.722 Commenters did not address these estimates, and we continue to believe they are 

accurate. Accordingly, we estimate that the 130 advisers would incur costs of $37,625 each on 

an annual basis, which is the middle of the range of estimated fair value costs, for an aggregate 

annual cost of $4,891,250.723

With respect to outside legal assistance or outside consulting services, the currently 

approved collection of information burden is based on an estimate that some, but not all, 

registered advisers will elect to obtain these services on a one-time basis to draft the new 

narrative brochure for a total cost of $22,775,400.724 By the time the amendments to Form ADV 

that we are adopting today become effective, substantially all registered advisers will have 

completed their initial filing of the narrative brochure required by our recent amendments to 

Part 2 of Form ADV and will have already incurred these estimated one-time costs.725

 720 See supra note 

 As a 

result, the only respondents that we expect will incur legal and consulting costs for the initial 

drafting of Part 2 of Form ADV, subsequent to the effective date of the amendments to 

Form ADV we are adopting today, will consist of the estimated 700 new advisers that we expect 

637. 

721 4,270 x 0.03 = 128.1. 

722 See Implementing Proposing Release, supra note 7, at n.369 and accompanying text. 

723 130 x $37,625 = $4,891,250. 

724 See Part 2 Release, supra note 67, at text accompanying n.328. We estimated that a total of 2,941 

advisers would elect to obtain outside legal assistance and that 3,441 advisers would elect to 

obtain outside consulting services. 

725 See id. at section V. 
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to register annually and the estimated 750 advisers that will have to register as a result of the 

elimination of the private adviser exemption.726

For purposes of estimating the currently approved amount of this one-time cost, we 

divided advisers into three groups – small, medium and large – based on their number of 

employees. Different costs per adviser were assigned based on the group to which the adviser 

belongs.

 

727 We expect that the 750 newly registering private fund advisers and 700 new advisers 

registering annually will be medium-sized.728 In the Part 2 Release, we estimated that the initial 

cost related to preparation of Part 2 of Form ADV would be $4,400 for legal services and $5,000 

for compliance consulting services, in each case, for those medium-sized advisers who engaged 

legal counsel or consultants.729 The currently approved burden anticipates that a quarter of 

medium-sized advisers would seek the help of outside legal services and half would seek the 

help of compliance consulting services. Accordingly, we estimate that 350 of these advisers 

would use outside legal services, for a total cost burden of $1,540,000,730 and 725 advisers 

would use outside compliance consulting services, for a total cost burden of $3,625,000,731

 

726 See supra note 691 and text following note 699.

727 For purposes of this estimate, we categorize small advisers as advisers with 10 or fewer 

employees, medium advisers as having between 11 and 1,000 employees, and large advisers as 

those with 1,000 or more employees. See Part 2 Release, supra note 668, at nn.301 and 324. 

728 We would not expect these advisers to be large in this sense because advisers are likely to have 

become subject to registration obligations before engaging 1,000 or more employees. Some of 

these advisers may be small, but the increase in the threshold for registration with the 

Commission will limit the number of small advisers registering with us. 

729 See Part 2 Release, supra note 67, at text accompanying nn.324 and 325. 

730 25% x (750 private fund advisers + 700 new advisers registering annually) = approximately 350 

advisers. $4,400 for legal services x 350 advisers = $1,540,000.

731 50% x (750 private fund advisers + 700 new advisers registering annually) = 725 advisers. 

$5,000 for consulting services x 725 advisers = $3,625,000. 
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resulting in a total cost burden among all respondents of $5,165,000 for outside legal and 

compliance consulting fees related to drafting narrative brochures.732

Together, we estimate that the total cost burden among all respondents for outside legal 

and compliance consulting fees related to drafting narrative brochures and for third party or 

outside valuation services to be $10,056,250.

 

733

b. Estimated Annual Burden Applicable to Exempt Reporting 

Advisers

i. Estimated Initial Hour Burden 

Based on publications, reports, and general information publicly available from trade 

organizations, financial research companies, and news organizations as well as safe harbor 

filings with the SEC, we expect approximately 2,000 investment advisers will qualify for an 

exemption from registration but will be required to submit reports to us on Form ADV.734 As we 

explained in the Implementing Proposing Release, the paperwork burden applicable to these new 

exempt reporting advisers will consist of the burden attributable to completing a limited number 

of items in Part 1A as well as the burden attributable to the private fund reporting requirements 

of Item 7.B. and Section 7.B. of Schedule D.735

 

732 $1,540,000 + $3,625,000 = $5,165,000.

 We estimated the burden to complete the subset 

of items in Part 1A applicable to exempt reporting advisers to be 2 hours, which would result in 

an annual burden of approximately 4,000 hours. 

733 $5,165,000 (legal and consulting services) + $4,891,250 (third party fair valuation services) = 

$10,056,250 

734 This estimate was collectively derived from various sources including the National Venture 

Capital Association’s 2010 Yearbook (http://www.nvca.org), First Research reports 

(http://www.firstresearch.com), Preqin reports (http://www.preqin.com), Bloomberg 

(http://www.bloomberg.com), the Managed Funds Association (http://www.managedfunds.org), 

PerTrac data (http://www.pertrac.com), and Form D data. Specific data relevant to the number or 

types of advisers that would be exempt reporting advisers were not available, but the information 

located did inform the staff to the probable number of exempt reporting advisers. 

735 See Implementing Proposing Release, supra note 7, at section V.B.2.b.i.
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As discussed above, we estimate the private fund reporting requirements of the form to 

be 1 hour per private fund. We assume that each exempt reporting adviser currently relies on the 

private adviser exemption and, therefore, has 14 or fewer private fund clients. Based on 

reporting by registered advisers to private funds and industry publications and reports, we expect 

each of these advisers, on average, advises 6 private funds.736 Accordingly, we attribute an 

additional 12,000 burden hours to exempt reporting advisers’ private fund reporting 

requirements.737

The estimated total annual hour burden applicable to exempt reporting advisers is 16,000 

hours.

 

738 We believe that most of the paperwork burden will be incurred in respect of the initial 

submission of Form ADV, and that over time this burden will decrease substantially because the 

paperwork burden will be limited to updating information. Amortizing this total burden imposed 

by Form ADV over a three-year period, as we did above with respect to the initial filing for 

registered advisers, results in an average burden of an estimated 5,330 hours per year,739 or 2.67 

hours per year, on average, for each exempt reporting adviser.740

 

736 Id. Based upon the reported general number of private funds and the estimated number of 

advisers to these private funds, it is estimated that each adviser advises 6 private funds on 

average. Approximately 2,000 exempt reporting advisers x 6 private funds/adviser = 12,000 

private funds. This represents an increase from our estimate of 10,000 private funds in the 

Implementing Proposing Release, which is attributable to updated IARD data that indicate each 

private fund adviser now advises approximately 6 funds, instead of 5. Compare supra note 

 

700

with Implementing Proposing Release, supra note 7, at n.406.

737 2,000 exempt reporting advisers x 6 private funds/adviser x 1 hour/private fund = 12,000. 

738 4,000 hours attributable to the portions of Form ADV that these advisers are required to file other 

than the private fund reporting + 12,000 hours attributable to private fund reporting = 16,000 

hours. 

739 16,000 / 3 = 5,330. 

740 5,330 / 2,000 = 2.67.
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ii. Estimated Annual Burden Associated with Amendments 

and Final Filings

In addition to the burdens associated with initial completion and filing of the portion of 

the form that exempt reporting advisers will be required to prepare, as in the Implementing 

Proposing Release, we estimate that, on average: (i) each exempt reporting adviser will prepare 

an annual updating amendment; (ii) 20% of these advisers will file an interim updating 

amendment; 741 and (iii) 5% of these advisers will file a final filing.742

With respect to an exempt reporting adviser’s annual updating amendment of 

Form ADV, we expect that advisers will not need to spend a significant amount of time entering 

responses into the electronic version of the form to file their annual updating amendments 

because the IARD will automatically pre-populate their prior responses. Based on this 

consideration, we estimate that the average exempt reporting adviser will spend 1 hour per year 

completing its annual updating amendment to Form ADV. This estimate is based on our 

estimate for registered advisers, but it is 85% shorter because exempt reporting advisers will be 

required to complete and update only a limited number of items in Part 1A of the form. We also 

estimate that 20% of the exempt reporting advisers will file an interim updating amendment to 

Items 1, 3, 10 or 11 of Form ADV,

 

743

 

741 Approximately 20% of advisers with a fiscal year end of December that filed an other-thanannual amendment changed Item 1 or 11 between April 1, 2009, and December 31, 2009 (period 

between annual amendment filing time).

and we estimate that each such amendment will require 0.5 

hours. Based on the foregoing estimates, the total paperwork burden of amendments to 

742 Approximately 5% of advisers withdrew their SEC registrations in 2010 and did not switch to 

state registration, based on IARD data. We are assuming the same percentage of exempt 

reporting advisers will submit final reports and not simultaneously apply for registration with the 

Commission. Exempt reporting advisers filing a final report because they are applying for 

registration are not included in this count because there is no independent burden associated with 

making this type of final filing; they are, therefore, included in the number of advisers expected to 

register each year as a result of normal annual growth. See supra note 691. 

743 See amended Form ADV: General Instruction 4. 
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Form ADV and final filings on Form ADV will be 2,200 hours per year for all exempt reporting 

advisers.744

3. Total Revised Burdens

 

The revised total annual collection of information burden for registered advisers to file 

and complete the revised Form ADV (Parts 1 and 2), including the initial burden for both 

existing and anticipated new registrants, including private fund advisers, plus the burden 

associated with amendments to the form, preparing brochure supplements, and delivering codes 

of ethics to clients is estimated to be approximately 239,122 hours per year.745 This represents a 

decrease of 29,335 hours from the currently approved burden.746

Registered investment advisers are also expected to incur an annual cost burden of 

$10,056,250, a reduction from the current approved cost burden of $22,775,400. The decrease in 

annual cost burden is attributable to the nature of the costs, which are one-time initial costs to 

draft the narrative brochure. The transition to the narrative brochure will have substantially been 

completed, so the newly incurred one-time costs arise solely from new registrants.

 This decrease is primarily 

attributable to the anticipated withdrawal of 3,200 advisers from SEC registration. 

 

744 2,000 advisers x 1 hour = 2,000 hours per year for annual amendments. (2,000 advisers x 20%) x 

0.5 hours = 200 hours per year for interim amendments. 200 + 2,000 = 2,200 hours. Exempt 

reporting advisers are not required to complete Part 2 of Form ADV and so will not incur an hour 

burden to prepare new brochure supplements or the cost burden that registered advisers will incur 

with respect to that part of the form. Exempt reporting advisers also will not be required to meet 

obligations to deliver codes of ethics to clients, as is required of registered advisers.

745 132,405 hours per year attributable to initial preparation of Form ADV + 11,167 hours per year 

attributable to initial private fund reporting requirements + 63,375 hours per year for amendments 

to Form ADV + 9,750 hours per year for brochure supplements for new employees + 9,750 hours 

per year for brochure interim amendments + 12,675 hours per year to meet code of ethics delivery 

obligations = 239,122 hours. 

746 Current approved burden of 268,457 hours - revised burden 239,122 hours = 29,335 decrease in 

hours. 
-181- 

We further estimate that the total annual collection of information burden for exempt 

reporting advisers to file and complete the required items of Part 1A of Form ADV, including the 

burden associated with amendments to the form and final filings, will be 7,530 hours.747

Based on the foregoing, the total annual hour burden for Form ADV will decrease by 

21,805 hours to 246,652.

 

748 Accordingly, we estimate that the blended average per adviser 

amortized burden for Form ADV will be 20.99 hours,749 consisting of an average annual 

amortized burden of 24.52 hours for the estimated 9,750 registered advisers and 3.77 hours for 

the estimated 2,000 exempt reporting advisers.750

C. Rule 203A-5 

Rule 203A-5 requires each investment adviser registered with us on January 1, 2012 to 

file an amendment to its Form ADV no later than March 30, 2012, and withdraw from 

Commission registration by June 28, 2012, if no longer eligible.751 The amendments to Form 

ADV will, among other things, require each adviser to declare whether it remains eligible for 

Commission registration and to report the market value of its assets under management 

determined within 90 days of the filing.752

 

747 5,330 hours per year attributable to initial preparation of Form ADV + 2,200 hours per year for 

amendments = 7,530 hours. 

 The respondents to this information collection are all 

investment advisers registered with the Commission on January 1, 2012. Compliance with this 

748 239,122 + 7,530 = 246,652.

749 246,652 / 11,750 = 20.99. 

750 Registered advisers (239,122 / 9,750 = 24.52), exempt reporting advisers (7,530 / 2,000 = 3.77). 

751 New rule 203A-5(b)-(c). See supra section II.A.1. Advisers registered with us on July 21, 2011 

that have at least $25 million in assets under management will be exempt from the new 

prohibition on Commission registration for mid-sized advisers until 2012, when the rule will 

require them to switch to state registration and withdraw their registration with us. See new rule 

203A-5(a); supra section II.A.1., note 28. 

752 See supra sections II.A.1. and II.A.2. 
-182- 

collection of information is mandatory, and the information collected on Form ADV is not kept 

confidential. 

Rule 203A-5 that we are adopting today differs from our proposed rule in several 

respects. First, the transition period begins on January 1, 2012, not the July 21, 2011 effective 

date of the Dodd-Frank Act, as proposed.753 Second, advisers will be required to file an 

amended Form ADV by March 30, 2012 (instead of August 20, 2011, as proposed), and midsized advisers no longer eligible for Commission registration will be required to withdraw by 

June 28, 2012 (instead of October 19, 2011, as proposed), which provides 180 days instead of the 

90 days we proposed.754 Third, we are providing additional flexibility for an adviser to choose 

the date by which it must calculate its assets under management that it reports on Form ADV by 

requiring the same 90 day period as in Form ADV today, instead of 30 days, as proposed.755

As noted above, we requested comment on the PRA analysis contained in the 

Implementing Proposing Release. Several commenters expressed general concerns about the 

paperwork burdens of requiring all advisers to make an additional one-time filing of Form 

ADV.

 

756 Some commenters argued that we should decrease the paperwork burden by exempting 

advisers unaffected by the statutory changes from the Form ADV filing requirement,757

 

753 See proposed rule 203A-5(a)-(b); supra section II.A.1. 

 or only 

754 See proposed rule 203A-5(b)-(c); supra section II.A.1. 

755 See new rule 203A-5(b); amended Form ADV: Instructions for Part 1A, instr. 5.b.(4); supra 

section II.A.1. 

756 See, e.g., ICI Letter; MFA Letter; NYSBA Committee Letter; Shearman Letter.

757 ICI Letter (recommending exempting advisers that do not rely on assets under management to 

register with the SEC); MFA Letter (recommending exempting private fund advisers that file an 

initial Form ADV by July 21); NYSBA Committee Letter (recommending exempting advisers 

who will continue to be eligible for Commission registration and advisers relying on the section 

203(b)(3) exemption that we proposed would have to register with the Commission by July 21, 

2011). 
-183- 

requiring advisers to report their assets under management.758 Several commenters agreed with 

us that the transition should be delayed until the IARD is able to accept filings of reviewed Form 

ADV, instead of implementing an alternative, such as requiring interim paper filings that would 

increase the paperwork burdens.759

Changing the deadline under rule 203A-5 for advisers to re-file amended Form ADV to 

March 30, 2012, which coincides with most advisers’ required annual updating amendment, 

significantly reduces the paperwork burden of rule 203A-5 by eliminating the requirement that 

these advisers incur the costs associated with a special one-time filing requirement.

 

760 This 

deadline also coincides with the filing deadline for newly registering private fund advisers, 

which, as one commenter points out results in “a single, comprehensive Form ADV filing to 

register with the Commission” instead of requiring two filings that “would be costly, inefficient 

and potentially confusing.”761

We estimate that there will be approximately 3,900 respondents to this collection of 

information filing an amendment to Form ADV.

 

762

 

758 Shearman Letter. 

 Each respondent will respond once. For 

759 See NASAA Letter (“the benefits of electronic filing, including easy public access to the 

documents, are significant and would outweigh any disadvantages imposed by a delay in filing 

deadlines.”); NRS Letter (urging Commission not to “regress to paper filings” which would be “a 

huge step into the past” and “appears to be counter to Dodd-Frank Act purposes of transparency 

and consistency.”). See also Dezellem Letter (the IARD is efficient and reduces risks of 

misplacing paper documents and possible filing errors); NYSBA Committee Letter (the IARD is 

the “most efficient mechanism for advisers and exempt reporting advisers to meet their filing 

obligations and make such filings to the public.”). FINRA informed us that the IARD will be 

updated to reflect the revisions to Form ADV that we are adopting today beginning in November. 

See supra section II.A.1. 

760 See supra note 511. See also CMC Letter (suggesting “timing of the transition from federal to 

state registration could be centered around renewals for 2012”). 

761 See MFA Letter. 

762 See supra note 511. The PRA burden for filing Form ADV-W is part of the PRA burden 

submitted for Form ADV-W. See infra section VI.E. The Implementing Proposing Release 
-184- 

purposes of the collection of information burden for Form ADV, we estimate that the 

amendment will take each adviser approximately 6 hours per amendment, on average,763 and that 

the proposed amendments to Part 1A of Form ADV will take each adviser approximately 4.5 

hours, on average, to complete.764 We estimated that the total one-time burden for completing 

the proposed Form ADV amendments to be 124,425 hours, plus an additional 33,350 hours for 

private fund reporting, for a total of 157,775 hours.765 As discussed above, however, the number 

of advisers that we estimate will complete an additional Form ADV amendment will be lower 

than under proposed rule 203A-5. We estimate that 700 advisers that will remain registered with 

the Commission after the switch will file an other-than-annual amendment, and 3,200 mid-sized 

advisers will file a Form ADV amendment with us before they switch to state registration.766 In 

addition, of these 3,900 registered advisers, we estimate that 850 advise one or more private 

funds and will have to complete the private fund reporting requirements.767 We expect this will 

take 8,373 hours, and we estimate that the total one-time burden for completing the Form ADV 

amendments to be 49,323 hours.768

 

erroneously included Form ADV-W both in the PRA burden for proposed rule 203A-5 and for 

Form ADV-W. See sections V.C. and V.E. of the Implementing Proposing Release. 

 

763 We anticipate that the hour burden for the refiling of Form ADV for purposes of new rule 203A-5 

will be the same as an adviser’s annual amendment filing, which has an approved burden of 6 

hours. See supra section VI.B.2.a.iii.

764 See supra sectionsVI.B.1.a. 

765 See Implementing Proposing Release, supra note 7, at nn. 403, 444. 

766 See supra note 511. 

767 Based on IARD data as of April 7, 2011, 839 advisers out of the estimated 3,700 current SECregistered advisers that advise private funds do not have a December fiscal year end or are 

expected to switch to state registration. We have rounded this number to 850 for purposes of this 

analysis.

768 See supra notes 520-522, 528-532. ((6 hours (annual amendment) + 4.5 hours (new items)) x 

3,900) + ((442 advisers x 3 funds x 1 burden hour per fund) + (365 x 10 funds x 1 burden hour 

per fund) + (43 advisers x 79 funds x 1 burden hour per fund)) = 44,100 (burden hours for Form 
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D. Form ADV-NR

We are making minor amendments to Form ADV-NR (OMB Control No.: 3235-0238), 

the form used to appoint the Secretary of the Commission as an agent for service of process for 

certain non-resident advisers.769

In the Implementing Proposing Release, we estimated that approximately 9,150

 Non-resident general partners or managing agents of SECregistered investment advisers must make a one-time filing of Form ADV-NR with the 

Commission. Form ADV-NR requires these non-resident general partners or managing agents to 

furnish us with a written irrevocable consent and power of attorney that designates the 

Commission as an agent for service of process, and that stipulates and agrees that any civil suit 

or action against such person may be commenced by service of process on the Commission. The 

amendments we are adopting reflect that exempt reporting advisers will be filing reports on the 

IARD, and that they will use Form ADV-NR in the same way and for the same purpose as it is 

currently used by registered investment advisers. The collection of information is necessary for 

us to obtain appropriate consent to permit the Commission and other parties to bring actions 

against non-resident partners or agents for violations of the federal securities laws. This 

collection of information is found at 17 CFR 279.4. The collection of information is mandatory, 

and the information provided in response to the collection is not kept confidential. The 

currently approved collection of information in Form ADV-NR is 18 hours. 

770

 

ADV filing excluding private fund reporting + 8,373 (burden hours for private fund reporting) = 

49,323 total burden hours for Form ADV filing. 

investment advisers would be registered with the Commission after the Dodd-Frank Act 

769 See amended Form ADV-NR; Form ADV: General Instruction 16. 

770 See Implementing Proposing Release, supra note 7, at section V.D. 
-186- 

amendments to the Advisers Act take effect and that approximately 2,000771 exempt reporting 

advisers would file reports with the Commission, and that these advisers would file Form ADVNR at the same annual rate (0.17 percent) as advisers registered with us.772 Accordingly, we 

estimated that the annual aggregate information collection burden for Form ADV-NR would be 

19 hours, an increase of one hour over the currently approved burden.773 We did not receive 

comments on these estimates. Based on updated IARD data, we now estimate that 

approximately 9,750774 investment advisers will be registered with the Commission and continue 

to estimate that approximately 2,000775 exempt reporting advisers will file reports with the 

Commission, and that these advisers will file Form ADV-NR at an annual rate of 0.17 percent,776

for a total of approximately 20 filings annually.777 We continue to estimate that ADV-NR 

requires an average of one hour to complete. Accordingly, we estimate that as a result of the 

amendments to Form ADV-NR and the change in the number of filers after the effectiveness of 

the Dodd-Frank Act, the annual aggregate information collection burden for Form ADV-NR will 

be 20 hours, an increase of two hours over the currently approved burden of 18 hours.778

E. Rule 203-2 and Form ADV-W 

We are amending rule 203A-2(b), the exemption from the prohibition on registration for 

certain pension consultants. The amendments will increase the minimum value of plan assets 

 

771 See id. 

772 See id.

773 See id.

774 See supra note 655 and accompanying text. 

775 See supra note 734 and accompanying text. 

776 See Implementing Proposing Release, supra note 7, at n.450. 

777 0.17% (rate of filing) x (9,750 estimated registered investment advisers + 2,000 estimated exempt 

reporting advisers) = approximately 20 Form ADV-NR filings.

778 20 ADV-NR filings x 1 hour per filing = 20 hours. 20 hours – 18 hours = 2 hours. 
-187- 

which an adviser must consult from $50 to $200 million annually.779

The amendments to the rule that we are adopting today do not differ from our proposed 

amendments. Commenters supported our proposal and did not discuss the proposal’s collection 

of information estimates.

 An investment adviser will 

have to be a pension consultant with respect to assets of plans having an aggregate value of $200 

million or more to be able to register with the Commission. Those pension consultants providing 

consulting services to plans of less than $200 million will be required to file a notice of 

withdrawal of their registration in accordance with rule 203-2 on Form ADV-W (OMB Control 

No. 3235-0313). The collection of information on Form ADV-W is mandatory and is not kept 

confidential. The currently approved collection of information for Form ADV-W is 500 hours 

for 1,000 responses. 

780 In the Implementing Proposing Release, we estimated that 

approximately 50 of the current advisers relying on this exemption from the prohibition on 

registration would no longer be eligible to rely on the exemption if adopted as proposed, and 

approximately 4,100 advisers also would have to withdraw their Commission registration as a 

result of the Dodd-Frank Act.781 We have lowered our estimate of advisers withdrawing from 

Commission registration to 3,200 based on more current IARD data,782 but we continue to 

estimate that 50 of the current advisers relying on this exemption from the prohibition on 

registration will no longer be eligible to rely on the exemption as adopted.783

 

779 See amended rule 203A-2(a)(1).

 

780 NRS Letter; Pickard Letter. 

781 See Implementing Proposing Release, supra note 7, at n.453 and accompanying and following 

text. 

782 See supra note 510. 

783 Based on IARD data as of April 7, 2011, there are 322 advisers relying on the pension consultant 

exemption from registration, and we estimate that approximately 15 percent will no longer be 

eligible to rely on the exemption as adopted. This estimate is based on our understanding that a 
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The estimated 50 advisers no longer eligible to rely on the exemption, however, will have 

to file a notice of withdrawal on Form ADV-W in accordance with rule 203-2 under the Advisers 

Act and withdraw their registration based on the amendment to rule 203A-2(b).784 In addition, 

as noted above, we estimate that approximately 3,200 advisers also will have to withdraw their 

Commission registration as a result of the Dodd-Frank Act. Because these advisers are 

registered today, we further anticipate that these advisers will be switching from SEC to state 

registration, and as a result will be filing a “partial” Form ADV-W. We have estimated for 

purposes of our current approved burden under the PRA for rule 203-2 and Form ADV-W, that a 

partial withdrawal imposes an average burden of approximately 0.25 hours for an adviser.785 

Thus, we estimate that the amendment to rule 203A-2(b) associated with filing Form ADV-W 

will generate a burden of approximately 813 additional hours786

F. Form ADV-H 

 in addition to the approved 

burden of 500 hours for a total of 1,313 hours. 

Rule 204-4(e) provides a temporary hardship exemption for an exempt reporting adviser 

having unanticipated technical difficulties that prevent submission of a filing to the IARD 

system.787 Rule 203-3(a) provides a similar temporary hardship exemption for registered 

advisers that file an application on Form ADV-H (OMB Control No. 3235-0538).788

 

typical pension consultant will have plan assets far in excess of the higher threshold, in light of 

the fact that most pension plans contain a significant amount of assets. 

 Like rule 

203-3(a), rule 204-4(e) requires advisers relying on the temporary hardship exemption to file an 

784 See supra note 549 (discussing the fact that advisers filing Form ADV-W due to our amendment 

to rule 203A-2(b) will likely file partial withdrawals). 

785 See supra note 533. 

786 (3,200 + 50) responses on Form ADV-W x 0.25 hours = 812.5 hours. 

787 New rule 204-4(e). 

788 Rule 203-3(a); 17 CFR 279.3 (Form ADV-H). 
-189- 

application on Form ADV-H in paper format no later than one business day after the filing that is 

the subject of the Form ADV-H was due, and submit the filing on Form ADV in electronic 

format with the IARD no later than seven business days after the filing was due.789

In the Implementing Proposing Release, we estimated that exempt reporting advisers 

would file approximately two responses to Form ADV-H annually.

 Because we 

are adopting rule 204-4, respondents to the collection of information on Form ADV-H will now 

include exempt reporting advisers, in addition to registered advisers. The collection of 

information on Form ADV-H is mandatory for registered advisers and exempt reporting advisers 

relying on a temporary hardship exemption. The information collected on Form ADV-H is not 

kept confidential. 

790 We also estimated that 

Form ADV-H would impose the same average burden per response on exempt reporting advisers 

as it imposes on registered advisers—one hour. Thus, we estimated that rule 204-4 would result 

in an increase of two hours in the total hour burden associated with Form ADV-H.791 We did not 

receive comments on our estimates. We continue to estimate that exempt reporting advisers will 

file approximately two responses to Form ADV-H annually, with each response requiring an 

average of one hour, for an estimated annual burden of two hours.792

 

789 New rule 204-4(e). 

 However, as discussed 

above, the number of registered advisers will decrease due to the Dodd-Frank Act’s amendments 

790 See Implementing Proposing Release, supra note 7, at section V.F.

791 See id. 

792 To estimate the currently approved total burden associated with Form ADV-H, we estimated that 

registered advisers file approximately 11 responses to Form ADV-H per year, which, given the 

then-estimated 11,850 advisers registered with the Commission, meant that approximately 1 

response is filed per 1,000 advisers (11,850 registered advisers / 11 responses = approximately 1 

response per 1,000 registered advisers). We estimate that approximately 2,000 exempt reporting 

advisers will file reports on Form ADV in accordance with rule 204-4. Thus, we estimate two 

responses to Form ADV-H in accordance with rule 204-4 (2,000 exempt reporting advisers x 1 

response per 1000 advisers = 2 responses). 
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to sections 203A and 203(b)(3) from 11,500 to 9,750.793 Given the reduction in registered 

advisers, we estimate that Form ADV-H will receive 10 annual responses from registered 

advisers.794 We continue to estimate that Form ADV-H will require an average of one hour to 

complete, and thus estimate that the total annual burden for registered advisers to be 10 hours.795 

Thus, the total burden associated with Form ADV-H will increase one hour to 12 hours.796

G. Rule 204-2 

Rule 204-2 (OMB Control No. 3235-0278) requires investment advisers registered, or 

required to be registered under section 203 of the Act, to keep certain books and records relating 

to their advisory business.797 The collection of information under rule 204-2 is necessary for the 

Commission staff to use in its examination and oversight program, and the information is 

generally kept confidential.798

We are amending rule 204-2 to update the rule’s “grandfathering provision” for 

investment advisers that are currently exempt from registration under the “private adviser” 

exemption, but will be required to register after the Dodd-Frank Act eliminates the “private 

adviser” exemption on July 21, 2011.

 The collection of information is mandatory. 

799

 

793 See supra note 

 Upon registration, these advisers will become subject to 

the recordkeeping requirements of the Act, including the requirement to keep certain records 

655. 

794 9,750 registered advisers x 1 response per 1,000 advisers = 9.75 responses. 

795 10 responses x 1 hour = 10 hours. 

796 The current approved burden is 11 hours. Our new estimate is 10 hours for registered advisers + 

2 hours for exempt reporting advisers = 12 hours. 

797 Rule 204-2. 

798 See section 210(b) of the Advisers Act.

799 See amended rule 204-2(e)(3)(ii); section II.D.2.b. In addition, we are amending rule 204-

2(e)(3)(ii) to cross-reference the new definition of “private fund” added to the Advisers Act by 

the Dodd-Frank Act where that term is used in rule 204-2. This amendment is technical and will 

not increase or decrease the collection burden on advisers. We are also rescinding rule 204-2(l) 

because that section was vacated by a federal appeals court in Goldstein. 
-191- 

relating to performance.

800 The amendment clarifies that these advisers are not obligated to keep 

certain performance-related records for any period when they were not registered with the 

Commission; however, to the extent that these advisers preserved these performance-related 

records even though they were not required to keep them, they must continue to preserve 

them.801

Although we do not anticipate that our amendments to rule 204-2 will affect the per 

adviser burden imposed by the rule, the Dodd-Frank Act’s amendments to sections 203A and 

203(b)(3) will change our estimates of the total annual burden associated with the rule.

 Most, if not all, advisers likely gather the records and documents necessary to support 

the calculation of performance or rate of return as those records or documents are produced or at 

the time a calculation is made. Thus, we do not believe that the amendment to the 

grandfathering provision will reduce our current approved average annual hourly burden per 

adviser under rule 204-2. 

802 The 

current approved burden for rule 204-2 is based an estimate of 11,658 registered advisers subject 

to rule 204-2 and an estimated average burden of 181.45 burden hours each year per adviser, for 

a total of 2,115,376 hours. We estimated in the Implementing Proposing Release that the DoddFrank Act will reduce the number of registered advisers to 9,150.803

 

800 See amended rule 204-2(a)(16). 

 We did not receive 

801 See amended rule 204-2(e)(3)(ii) (stating, “[i]f you are an investment adviser that was, prior to 

July 21, 2011, exempt from registration under section 203(b)(3) of the Act (15 U.S.C. 80b3(b)(3)), as in effect on July 20, 2011, [this rule] does not require you to maintain or preserve 

books and records that would otherwise be required to be maintained or preserved under [certain 

sections of this rule] to the extent those books and records pertain to the performance or rate of 

return of such private fund (as defined in section 202(a)(29) of the Act (15 U.S.C. 80b-2(a)(29)), 

or other account you advise for any period ended prior to your registration, provided that that you 

continue to preserve any books and records in your possession that pertain to the performance or 

rate of return of such private fund or other account for such period.” (emphasis added)). 

802 Exempt reporting advisers are not subject to rule 204-2, and therefore there is no offsetting 

increase in the number of advisers subject to the rule.

803 See Implementing Proposing Release, supra note 7, at n.377 and accompanying text. 
-192- 

comments on these estimates. However, based on updated IARD data, we now estimate that the 

Dodd-Frank Act will reduce the number of registered advisers to 9,750.804 Thus, we estimate 

that the total burden under amended rule 204-2 will be 1,769,138 hours,805 a reduction of 

346,238 hours.806

The reduction in the number of advisers subject to the rule will also reduce the total nonlabor cost burden of the rule. The current approved non-labor cost burden associated with rule 

204-2 is $34,965,063, or an average of approximately $3,000 per adviser.

 

807 Due to the 

reduction in the number of advisers subject to rule 204-2, we estimate that the new total nonlabor cost burden will be $29,250,000,808 a reduction of $5,715,063.809

VII. FINAL REGULATORY FLEXIBILITY ANALYSIS

The Commission has prepared the following Final Regulatory Flexibility Analysis 

(“FRFA”), in accordance with section 4(a) of the Regulatory Flexibility Act, regarding the rules 

and rule amendments we are adopting today to give effect to the Dodd-Frank Act’s amendments 

to the Advisers Act.810 It relates to new rules 203A-5 and 204-4, amendments to rules 0-7, 203-

1, 203A-1, 203A-2, 203A-3, 203A-4, 204-1, 204-2, 206(4)-5, 222-1, 222-2, and amendments to 

Form ADV, Form ADV-NR and Form ADV-H under the Advisers Act.811

 

804 See supra note 

 We prepared an 

655 and accompanying text. 

805 9,750 registered advisers x 181.45 hours = approximately 1,769,138. 

806 2,115,376 hours – 1,769,138 hours = 346,238 hours. 

807 $34,965,063 / 11,658 advisers = approximately $3,000. 

808 9,750 x $3,000 = $29,250,000. 

809 $34,965,063 - $29,250,000 = $5,715,063.

810 5 U.S.C. 604(a). 

811 We note that the FRFA analysis associated with the requirement that an accountant’s report be 

filed electronically was included in our adoption of substantive amendments to Form ADV-E. 

Today, we are making only a technical amendment to Form ADV-E to conform to that prior 

rulemaking. See 2009 Custody Release, supra note 310, at section VI.
-193- 

Initial Regulatory Flexibility Analysis (“IRFA”) in conjunction with the Implementing Proposing 

Release in November 2010.812

A. Need for and Objectives of the New Rules and Rule Amendments

 

The new rules and rule amendments are necessary to give effect to provisions of the 

Dodd-Frank Act which, among other things, amend certain provisions of the Advisers Act, and 

to respond to a number of other changes made by the Dodd-Frank Act, including the 

Commission’s pay to play rule. In addition, in light of our increased responsibility for oversight 

of private funds, we are requiring advisers to those funds to provide us with additional 

information about the operation of those funds, which will permit us to better oversee those 

advisers by focusing our examination and enforcement resources on those advisers to private 

funds that appear to present greater compliance risks. We also are requiring all registered 

advisers to provide us with additional information on their operations to allow us to more 

efficiently allocate our examination resources, to better prepare for on-site examinations, and to 

provide us with a better understanding of the investment advisory industry to assist our 

evaluation of the implications of policy choices we must make in administering the Advisers 

Act.

Specifically, the new rules and rule amendments give effect to provisions of Title IV of 

the Dodd-Frank Act that: (i) reallocate responsibility for oversight of investment advisers by 

delegating generally to the states responsibility over certain mid-sized advisers; (ii) repeal the 

“private adviser” exemption contained in section 203(b)(3) of the Advisers Act; and (iii) provide 

for reporting by advisers to certain types of private funds that are exempt from registration.813

 

812 See Implementing Proposing Release, supra note 

 

New rule 203A-5 and amendments to rules 203A-1, 203A-2, 203A-3, and 203A-4 are intended 

7, at section VI.

813 See supra section I.
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to provide us a means of identifying advisers that must transition to state regulation, clarify the 

application of the new statutory provisions under the Dodd-Frank Act, and extend certain of the 

exemptions we have adopted under section 203A of the Act to mid-sized advisers. Rule 203-1(e) 

is intended to provide an orderly transition to registration for advisers that previously relied on 

the “private adviser” exemption in section 203(b)(3) of the Advisers Act. New rule 204-4 and 

amendments to rule 204-1 are intended to require exempt reporting advisers to submit, and to 

update periodically, reports to us by completing several items on Form ADV. The amendments 

to rule 204-2 are intended to account for the Dodd-Frank Act’s elimination of the “private 

adviser” exemption under section 203(b)(3) of the Advisers Act and its addition of a definition of 

“private fund” to the Advisers Act.814 The amendments to Form ADV will permit the form to 

serve as a reporting, as well as a registration, form and to specify the seven items exempt 

reporting advisers must complete. The amendments to Form ADV also will provide additional 

information on the operations of registered investment advisers. The amendments to Forms 

ADV-NR and ADV-H will revise the forms for use by exempt reporting advisers. Additionally, 

we are amending the Advisers Act pay to play rule, rule 206(4)-5, to make it apply both to 

exempt reporting advisers and foreign private advisers, thereby preventing the unintended 

narrowing of the application of the rule resulting from the repeal of the “private adviser” 

exemption.

815

 

814 See supra section II.D.2.b. As discussed above, we are also rescinding rule 204-2(l), which was 

vacated by the federal appeals court in Goldstein.

 Furthermore, we are amending the rule to add the new “municipal advisor” 

category of registrant created by the Dodd-Frank Act to the categories of registered entities – 

815 See amended rule 206(4)-5; supra section II.D.1. 
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referred to as “regulated persons” – excepted from the rule’s prohibition on advisers paying third 

parties to solicit government entities.816

B. Significant Issues Raised by Public Comment

 

In the Implementing Proposing Release, we requested comment on the IRFA. In 

particular, we sought comment on the number of small entities, particularly small advisers, to 

which the new rules and rule amendments would apply and the effect on those entities, including 

whether the effects would be economically significant. None of the comment letters we received 

specifically addressed the IRFA. A couple of commenters made specific comments about the 

proposed rule and rule amendments’ impact on smaller advisers, generally. In response to a 

question in the Implementing Proposing Release, one commenter stated that a shortened 

deadline, from 90 to 60 days, for filing an annual update to Form ADV would be particularly 

burdensome on small advisers because they have limited resources.817 As discussed above, in 

light of this and similar concerns raised by other commenters, we are not adopting a requirement 

to accelerate the annual updating amendment deadline.818 Another commenter asserted that we 

should retain the rule 203A-4 safe harbor for state-registered advisers that have a reasonable 

belief that they are prohibited from registration with the Commission as there has been, and 

continues to be, confusion among small advisers in calculating assets under management.819

 

816 See id. 

 We 

have not retained the safe harbor, which, as we explain above, was designed for smaller advisory 

businesses (with assets under management of less than $30 million) that may not employ the 

same tools or otherwise have a need to calculate assets as precisely as advisers with greater 

817 Pickard Letter. 

818 See supra section II.C. 7. 

819 NRS Letter.
-196- 

assets under management.820

C. Small Entities Subject to Rules and Rule Amendments

 Moreover, such a safe harbor would no longer apply to small 

advisers as it would be used, if at all, by advisers managing close to the new $100 million 

threshold for SEC registration and not the $30 million threshold that existed prior to the DoddFrank amendments to the Advisers Act. 

In developing these new rules and rule amendments, we have considered their potential 

impact on small entities to which they will apply. The rules and rule amendments will affect all 

advisers registered with the Commission and exempt reporting advisers, including small entities. 

Under Commission rules, for the purposes of the Advisers Act and the Regulatory Flexibility 

Act, an investment adviser generally is a small entity if it: (i) has assets under management 

having a total value of less than $25 million; (ii) did not have total assets of $5 million or more 

on the last day of its most recent fiscal year; and (iii) does not control, is not controlled by, and is 

not under common control with another investment adviser that has assets under management of 

$25 million or more, or any person (other than a natural person) that had total assets of $5 

million or more on the last day of its most recent fiscal year.821

Our rule and form amendments will not affect most advisers that are small entities 

(“small advisers”) because they are generally registered with one or more state securities 

authorities and not with us. Under section 203A of the Advisers Act, most small advisers are 

prohibited from registering with the Commission and are regulated by state regulators.

 

822

 

820 See supra section II.A.6. 

 We 

estimate that as of April 7, 2011, approximately 570 advisers that were small advisers were 

821 Rule 0-7(a) [17 CFR 275.0-7(a)].

822 See supra section II.A.7.a. 
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registered with the Commission.823 Because these advisers are registered, they will be subject to 

new rule 203A-5 and amendments to rules 0-7, 203-1, 204-2, 203A-1, 203A-2, 203A-3, and 

203A-4, and Forms ADV and ADV-NR. In addition, we estimate that, due to the Dodd-Frank 

Act’s elimination of the “private adviser” exemption in section 203(b)(3), an additional two 

small advisers will become subject to these rules.824 Further, as a result of the amendments to 

rule 203A-2, we estimate that 15 additional multi-state small advisers will register with us and be 

subject to these rules,825 and 18 pension consultants that are small advisers will be required to 

withdraw from registration with us and will no longer be subject to these rules.826 We estimate 

that four exempt reporting advisers that are small advisers will be subject to rule 204-4, and the 

amendments to rule 204-1, Form ADV, Form ADV-NR and Form ADV-H to give effect to the 

Dodd-Frank Act’s reporting requirements by exempt reporting advisers.827

 

823 Based on IARD data as of April 7, 2011, 572 advisers registered with the Commission were small 

advisers. We have rounded this number to 570 for purposes of this analysis. 

 We also estimate 

824 We believe that the only small advisers that would become subject to registration as a result of 

the elimination of the private adviser exemption in section 203(b)(3) would be advisers to private 

funds that maintain their principal office and place of business in Wyoming. Based on IARD 

data as of April 7, 2011, we estimate that 28 SEC-registered small advisers are required to be 

registered with us because they have a principal office and place of business in Wyoming, which 

is 0.2% of all SEC-registered advisers (28 / 11,500 SEC-registered advisers = approximately

0.2%). We estimate that a similar proportion of the approximately 750 advisers to private funds 

that will register with the Commission due to the elimination of the private adviser exemption in 

section 203(b)(3) would be Wyoming-based small advisers. As a result, we estimate that 

approximately two small advisers to private funds will register with the Commission (750 private 

fund advisers x 0.2% = approximately two). 

825 See supra note 555. 

826 Based on IARD data as of April 7, 2011, 118 of the advisers that would be considered small 

advisers rely on the pension consultant exemption from registration. We estimate that 

approximately 15%, or 18, of these advisers would no longer be eligible to rely on the exemption 

as amended. This ratio is consistent with our estimate for the PRA burden. See supra section 

VI.E. and note 783. 

827 The only small adviser exempt reporting advisers that would be subject to the rule and 

amendments would be exempt reporting advisers that maintain their principal office and place of 

business in Wyoming. The current practical effect of section 203A(a)(1) is to prohibit U.S. 

advisers with less than $25 million in assets under management from registering with the 
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that four exempt reporting advisers that are small advisers will be subject to the amendments to 

rule 206(4)-5. Finally, all investment advisers, whether they are small advisers or not, will be 

subject to the technical amendments to rules 222-1 and 222-2. The small advisers subject to 

these amendments include approximately four exempt reporting advisers and approximately 

14,600 state-registered advisers.828

D. Projected Reporting, Recordkeeping and Other Compliance Requirements 

 

The rules and rule amendments we are adopting today impose certain reporting, 

recordkeeping, and compliance requirements on advisers, including small advisers. The rules 

and amendments require all of the small advisers registered with us to file an amended Form 

ADV, require some to file Form ADV-W, and require some to file reports as exempt reporting 

 

Commission unless they maintain their principal office or place of business in Wyoming. See

NSMIA Adopting Release, supra note 17, at section II.E. Currently, all U.S. states except 

Wyoming require certain investment advisers to register. See Transition Rule for Ohio 

Investment Advisers, Investment Advisers Act Release No. 1794, n. 4 (Mar. 25, 1999) [64 FR 

15680 (Apr. 1, 1999)]. New rule 204-4 requires an adviser relying on an exemption under new 

sections 203(l) or (m) of the Advisers Act to complete and file reports on Form ADV. See new 

rule 204-4; supra section II.B.1. The exemptions from registration in sections 203(l) and (m) 

apply to advisers solely to venture capital funds and advisers solely to private funds with less than 

$150 million in assets under management, respectively. Small Wyoming-based advisers to 

venture capital funds or private funds may be required to register with the Commission but for the 

exemptions in section 203(l) or (m). Thus, these advisers would be subject to rule 204-4 and the 

amendments to rule 204-1, Form ADV, and Form ADV-H to give effect to the Dodd-Frank Act’s 

mandate for reporting by exempt reporting advisers. Assuming that the proportion of registered 

Wyoming-based small advisers to registered advisers is similar to the proportion of small 

Wyoming-based exempt reporting advisers to exempt reporting advisers generally, we estimate 

that approximately four exempt reporting advisers that are small advisers would be subject to rule 

204-4 and the amendments to rule 204-1, Form ADV, and Form ADV-H (2,000 exempt reporting 

advisers x 0.2% = four small Wyoming-based exempt reporting advisers). 

828 Based on IARD data as of January 1, 2011, we estimate that there were approximately 14,600 

state-registered advisers. Because section 203A currently precludes most advisers with less than 

$25 million in assets under management from registering with the Commission, we assume that 

nearly all of the 14,600 state-registered advisers are small advisers. Therefore, 14,600 small 

advisers (registered with the states as of January 1, 2011) + 18 small advisers (registering with the 

states due to the amendment to the pension consultant exemption in rule 203A-2(b)) – 2 small 

advisers (registering with the Commission due to elimination of the private adviser exemption in 

section 203(b)(3)) – 15 small advisers (de-registering with the states and registering with the 

Commission due to the amendment to the multi-state adviser exemption in rule 203A-2(e)) = 

approximately 14,600 state-registered advisers that are small advisers.
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advisers. The amendments also cause the advisers to be subject to the existing recordkeeping 

and compliance requirements for SEC-registered advisers. These requirements and the burdens 

on small advisers are discussed below.829

Transition to State Registration 

Rule 203A-5 imposes costs on all investment advisers, including small advisers, by 

requiring each investment adviser registered with us on January 1, 2012 to file an amendment to 

its Form ADV no later than March 30, 2012, and withdraw from Commission registration by 

June 28, 2012, if no longer eligible.830 We estimate that all of the 570 small advisers currently 

registered with the Commission will file Form ADV, but none will withdraw registration because 

the Dodd-Frank Act does not change the eligibility requirements for small advisers registered 

with us since they already rely on one or more of the exemptions from the prohibition on 

registration.831

Switching Between State and Commission Registration 

 

The amendments to rule 203A-1 eliminate the $5 million buffer in current rule 203A1(a), which permits an adviser to register with the Commission if the adviser has between $25 

million and $30 million of assets under management, and replaces it with a similar buffer for 

mid-sized advisers with assets under management of close to $100 million.832 By definition, a 

small adviser under the Advisers Act has less than $25 million in assets under management; as 

such, these amendments should have no impact on small advisers.833

Exemptions from the Prohibition on Registration with the Commission

 

 

829 Supra sections I. through II. describe these requirements in more detail. 

830 New rule 203A-5(b)-(c). See supra section II.A.1. 

831 See section 410 of the Dodd-Frank Act; rule 203A-2. 

832 See amended rule 203A-1; supra section II.A.4. 

833 See rule 0-7(a)(1).
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The amendments we are adopting to two of the three exemptions from the prohibition on 

registration in rule 203A-2 will cause small advisers to be subject to new reporting, 

recordkeeping, and other compliance requirements.834 The amendment to the exemption from 

the prohibition on registration available to pension consultants in rule 203A-2(b) will increase 

the minimum value of plan assets on which an adviser must consult from $50 million to $200 

million.835 We estimate that this may cause approximately 18 small adviser pension consultants 

to be required to withdraw from registration with us by filing Form ADV-W and thus no longer 

be subject to Commission rules.

836

The amendment to the multi-state adviser exemption in rule 203A-2(e) will permit all 

investment advisers who are required to register as an investment adviser with 15 or more states 

to register with the Commission, rather than 30 states, as currently required.

 These advisers will likely need to register with one or more 

states, and comply with the states’ recordkeeping and other regulatory requirements. These 

additional costs will have a negative impact on competition for these advisers compared to 

pension consultants with more than $200 million of plan assets that will remain registered with 

the Commission. 

837 An adviser 

relying on this exemption will continue to report certain information on Form ADV838

 

834 See amended rule 203A-2; supra section II.A.5. The elimination of the exemption from the 

prohibition on Commission registration for NRSROs in rule 203A-2(a) will not affect small 

advisers because, based on IARD data as of April 7, 2011, none of the advisers registered with us 

relies on the exemption. 

 and 

835 We also are renumbering the rule as rule 203A-2(a). See amended rule 203A-2(a); supra section 

II.A.5.b. 

836 See supra note 826 and accompanying text. 

837 We also are renumbering the rule as rule 203A-2(d). See amended rule 203A-2(d); supra section 

II.A.5.c. 

838 Advisers will be required to: (i) include a representation on Schedule D of Form ADV that the 

investment adviser has concluded that it must register as an investment adviser with 15 or more 

states; and (ii) undertake to withdraw from registration with the Commission if the adviser 

indicates on an annual updating amendment to Form ADV that the investment adviser would be 
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maintain a record of the states in which the investment adviser has determined it would, but for 

the exemption, be required to register. This will promote competition by making the standards 

for the multi-state exemption consistent for small and mid-sized advisers. We estimate that, in 

addition to the approximately 19 small advisers that rely on the exemption currently,839

approximately 15 will begin relying on the exemption, as amended.840 Advisers newly relying 

on the amended exemption will incur costs associated with completing and filing Form ADV for 

purposes of registration with the Commission, and all of the advisers relying on the exemption 

will incur the costs associated with keeping records sufficient to demonstrate that they would be 

required to register with 15 or more states. In addition, these advisers will incur costs of 

complying with the Advisers Act and our rules, but they may see an absolute reduction in 

compliance costs by registering with the Commission instead of 15 or more states.841

Elimination of Safe Harbor 

 

Eliminating rule 203A-4, which has provided a safe harbor from Commission registration 

for an investment adviser that is registered with state securities authorities based on a reasonable 

belief that it is prohibited from registering with the Commission because it does not have at least 

$30 million of assets under management, will not create new requirements for small advisers.842

 

required by the laws of fewer than 15 states to register as an investment adviser with those states. 

See amended rule 203A-2(d)(2).

 

These advisers will not have at least $30 million of assets under management, and advisers have 

not, in our experience, relied on this safe harbor. 

839 Based on IARD data as of April 7, 2011, 19 advisers checked Item 12 of Part 1A of Form ADV 

to indicate that they are small advisers and checked Item 2.A.(9) to indicate their basis for SEC 

registration under the multi-state rule.

840 See supra note 555. 

841 See supra section II.A.5.c., note 543 and accompanying text. 

842 Rule 203A-4. See supra section II.A.6. 
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Mid-Sized Advisers

Providing in instructions to Form ADV an explanation of whether a mid-sized adviser is 

“required to be registered” or is “subject to examination” by a particular state securities authority 

for purposes of section 203A(a)(2)’s prohibition on mid-sized advisers from registering with the 

Commission will not create new reporting requirements for small advisers.843

Exempt Reporting Advisers 

 The mid-sized 

adviser requirements will only apply to advisers with assets under management between $25 

million and $100 million and therefore will not apply to small advisers. 

Rule 204-4 and the amendments to rules 204-1, Form ADV, and Form ADV-H require 

exempt reporting advisers to file reports with the Commission electronically on Form ADV and 

impose reporting requirements on an estimated four small advisers.844 As discussed above, we 

estimate that completing and filing Form ADV will cost $2,032 for each exempt reporting 

adviser.845 In addition, small exempt reporting advisers would be required to pay an estimated 

filing fee of $225 annually,846 for a total of $900 for the estimated four small exempt reporting 

advisers.847 Finally, under rule 204-4 exempt reporting advisers that seek a temporary hardship 

exemption from electronic filing must complete and file Form ADV-H.848 To the extent any of 

the four small exempt reporting advisers file Form ADV-H, we have estimated that it would 

require one burden hour at a total cost of $189.849

 

843 See amended Form ADV: Instructions for Part 1A, instr. 2.b.; supra section II.A.7. 

 

844 See supra section II.B. and note 827. 

845 See supra note 579 and accompanying text. $4,064,000 / 2,000 = $2,032. 

846 See supra notes 567-568 and accompanying text (discussing the potential filing fee). 

847 $225 x 4 small exempt reporting advisers = $900. 

848 New rule 204-4(e).

849 See supra note 596 and accompanying text. 
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Amendments to Form ADV

The amendments to Form ADV that we are adopting today will require registered 

advisers to report information that is different from, or in addition to, what is currently required. 

Approximately 570 currently registered small advisers, and two small advisers currently relying 

on the private adviser exemption that we expect will register with us, will be subject to these 

requirements.850 We expect these 570 advisers will spend, on average, 4.5 hours to respond to 

the new and amended questions on Form ADV, other than the private fund reporting 

requirements.851 We expect the aggregate cost associated with this process will be $651,511.852 

The two anticipated newly registering advisers will spend, in the aggregate, about 101 hours total 

to complete the form (Part 1 except for the private fund reporting requirements, and Part 2) as 

well as to amend the form periodically, to prepare brochure supplements, and to deliver codes of 

ethics to clients,853 for a total cost of $25,655.854

 

850 See supra notes 

 In addition, of these approximately 572 

registered advisers, we estimate that 50 advise one or more private funds and will have to 

823 and 824 and accompanying text. 

851 See supra text preceding note 679. We are calculating costs only of the increased burden because 

we have previously assessed the costs of the other items of Form ADV for registered advisers and 

for new advisers attributed to annual growth. The amendments to Form ADV increase neither the 

burden associated with these items on Form ADV, nor the external costs associated with certain 

Part 2 requirements. 

852 We expect that the performance of this function will most likely be equally allocated between a 

senior compliance examiner and a compliance manager. Data from the SIFMA Management and 

Earnings Report, modified to account for an 1,800-hour work-year and multiplied by 5.35 to 

account for bonuses, firm size, employee benefits and overhead, suggest that costs for these 

positions are $235 and $273 per hour, respectively. 570 advisers x 4.5 hours = 2,565 hours. 

(1,282.5 hours x $235 = $301,388) + (1,282.5 hours x $273 = $350,123) = $651,511. 

853 2 advisers x (40.74 hours per adviser to complete entire form (except private fund reporting 

requirements)) + (1 annual updating amendment x 6.0 hours) + (1 interim updating amendment 

per year x 0.5 hours) + (1 hour on new brochure supplements) + (1 hour on interim amendments 

to brochure supplements) + (1.3 hours delivering codes of ethics to clients)) = 101 hours. See 

supra notes 679, 709, 710 and accompanying text. 

854 (50.5 hours x $235 = $11,868) + (50.5 hours x $273 = $13,787) = $25,655. As noted above, we 

expect that the performance of this function will most likely be equally allocated between a senior 

compliance examiner and a compliance manager. See supra note 618. 
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complete the private fund reporting requirements we are adopting today.855 We expect this will 

take 150 hours,856 in the aggregate, for a total cost of $38,100.857 The total estimated labor costs 

associated with our Form ADV amendments that we expect will be borne by small advisers, 

therefore, are $715,266. Additionally, we estimate that one of the newly registering advisers will 

use outside legal services to assist them in preparing their Part 2 brochure, for a total non-labor 

cost of $3,200.858

Amendments to Pay to Play Rule 

 

Our amendment to the pay to play rule to make it apply to exempt reporting advisers and 

foreign private advisers will not create new reporting, recordkeeping, or other compliance 

requirements for these advisers.859 Rather, we are adopting this amendment to assure that the 

rule continues to apply to these advisers and to prevent the unintended narrowing of the rule.860

 

855 Based on IARD data as of April 7, 2011. Form ADV currently asks an adviser to report about 

investment-related partnerships and limited liability companies advised by the adviser and its 

related persons. As a result, the data we have obtained from IARD over-estimates the average 

number of funds as a result of reporting of the same fund multiple times by affiliated registered 

advisers. We note the decrease in the estimated number of small advisers to private funds in the 

Implementing Proposing Release is primarily attributable to an increase in these advisers’ assets 

under management, rendering them no longer “small” for purposes of FRFA. See Implementing 

Proposing Release, supra note 

 

Our amendment to the pay to play rule to add registered municipal advisors to the definition of 

7 at n.516 and accompanying text. 

856 We expect these advisers are likely to advise 3 funds each. See text accompanying note 698. We 

estimated above that private fund reporting would take an adviser approximately 1 hour per fund 

to complete. 50 advisers x 3 hours = 150 hours. 

857 (75 hours x $235 = $17,625) + (75 hours x $273 = $20,475) = $38,100. As noted above, we 

expect that the performance of this function will most likely be equally allocated between a senior 

compliance examiner and a compliance manager. See supra note 522. 

858 The currently approved burden associated with Form ADV already accounts for similar estimated 

costs to be incurred by current registrants. The non-labor costs for Form ADV are based on an 

estimate that 50% of small advisers will retain either legal services (at $3,200) or compliance 

consulting services (at $3,000) to assist in the preparation of Form ADV. See supra notes 668

and 669 and accompanying text. 

859 See supra section II.D.1 (discussing this amendment). 

860 See id.
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“regulated persons” (i.e., those excepted from the rule’s ban on third-party solicitation) may 

create new recordkeeping and compliance requirements on investment advisers that are small 

advisers subject to the rule to the extent that they have to verify and document that persons that 

they hire to solicit government entities are indeed registered municipal advisors, if these 

solicitors do not otherwise meet the “regulated person” definition.861

Other Amendments 

 

Our amendments to rule 204-2’s grandfathering provision are meant to assure that private 

fund advisers that are required to register as a result of the Dodd-Frank Act’s elimination of the 

private fund exemption in section 203(b)(3) will not face a retroactively imposed recordkeeping 

requirement.862 We are also making a technical amendment to rule 204-2(e)(3)(ii) to a crossreference to the new definition of a private fund in section 202(a)(29) of the Advisers Act.863 

These amendments will not create reporting, recordkeeping, and other compliance requirements 

for small advisers independent of the reporting, recordkeeping, and other compliance 

requirements imposed by current rule 204-2.864

We do not believe that our technical amendments to rules 0-7 and 222-1 will impose 

reporting, recordkeeping, and other compliance requirements on small advisers. Our amendment 

to rule 203-1 will not impose reporting, recordkeeping, and other compliance requirements on 

small advisers. Rather, it delays reporting, recordkeeping, and other compliance requirements on 

 

861 See id.

862 See supra section II.D.2.b. 

863 See id. 

864 The Dodd-Frank Act’s removal of the private adviser exemption in section 203(b)(3) may require 

additional small advisers to register with the Commission. Therefore, these small advisers would 

become subject to rule 204-2 with its reporting, recordkeeping, and other compliance burdens. 

However, subjecting these entities to rule 204-2 is a function of the Dodd-Frank Act’s removal of 

the private adviser exemption in section 203(b)(3), not our amendments to rule 204-2. 
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such advisers to the extent that they currently rely on the “private adviser” exemption in section 

203(b)(3).865 Because our amendments to rule 222-2 will require advisers to count clients from 

whom they do not receive compensation for purposes of the national de minimis standard, some 

small advisers may be required to register with one or more states, and comply with the states’ 

recordkeeping and other regulatory requirements.866

E. Agency Action to Minimize Effect on Small Entities

The Regulatory Flexibility Act directs the Commission to consider significant 

alternatives that would accomplish the stated objective, while minimizing any significant adverse 

impact on small advisers. In considering whether to adopt the new rules and rule amendments, 

the Commission considered the following alternatives: (i) the establishment of differing 

compliance or reporting requirements or timetables that take into account the resources available 

to small advisers; (ii) the clarification, consolidation, or simplification of compliance and 

reporting requirements under the rules for such small advisers; (iii) the use of performance rather 

than design standards; and (iv) an exemption from coverage of the rules, or any part thereof, for 

such small advisers. 

Regarding the first and fourth alternatives, we do not believe that differing compliance or 

reporting requirements or an exemption from coverage of the new rules or rule amendments, or 

any part thereof, for small advisers would be appropriate or consistent with investor protection or 

with Congress’s mandate in the Dodd-Frank Act, to the extent the new rule or amendment is 

being adopted due to a Congressional mandate. Because the protections of the Advisers Act are 

intended to apply equally to clients of both large and small advisory firms, it would be 

 

865 See supra section III.B.2. 

866 See supra section II.D.2.e (discussing the amendments to rule 222-2). 
-207- 

inconsistent with the purposes of the Act to specify different requirements for small advisers 

under the new rules and amendments unless expressly required to do so by Congress. 

Regarding the second alternative, rule 203A-5 will enable small advisers to easily and 

efficiently identify whether they are subject to our regulatory authority after the Dodd-Frank 

Act’s amendment to section 203A becomes effective, and will also help minimize any potential 

uncertainty about the effects of the Dodd-Frank Act on their registration status by providing a 

simple, efficient means of determining their post-Dodd-Frank registration status as of a specific 

date. The amendments to rule 203A-1 eliminate the $5 million buffer because it seems 

unnecessary in light of Congress’s determination generally to require most advisers having 

between $30 million and $100 million of assets under management to be registered with the 

states,867 and makes the registration requirements for advisers with assets under management 

between $25 million and $30 million uniform with the requirements for advisers with assets 

under management between $30 million and $100 million. The buffer for advisers with close to 

$100 million of assets under management will prevent advisers from frequently having to switch 

to and from Commission registration due to market fluctuations and will eliminate the additional 

associated costs they would therefore incur.868 Amending the multi-state adviser exemption in 

rule 203A-2(e) also will consolidate and simplify compliance for small advisers by aligning the 

rule with the multi-state exemption Congress built into the mid-sized adviser provision under 

section 410 of the Dodd-Frank Act and by requiring one standard for advisers relying on the 

exemption.869

 

867 See supra note 

 This amendment also will reduce the compliance burdens on advisers required to 

426 and accompanying text. 

868 See supra note 427 and accompanying text. 

869 See amended rule 203A-2(d); supra section V.A.1. Under rule 203A-2(e), the prohibition on 

registration with the Commission does not apply to an investment adviser that is required to 

register with 30 or more states. Once registered with the Commission, the adviser remains 
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be registered with at least 15 states, but less than 30, by allowing them to register with a single 

securities regulator—the Commission. Furthermore, requiring the use of an existing form, Form 

ADV, and an existing filing system, the IARD, for reporting and registration purposes will 

clarify and simplify the processes of registering and/or reporting for small advisers because: (i) 

all of the information collection requirements for both registration and reporting will be 

consolidated in a single form; (ii) a small exempt reporting adviser will be able to use the same 

form and filing system both for reporting and for purposes of registering with one or more state 

securities authorities; and (iii) a small exempt reporting adviser may find that it can no longer 

rely on an exemption from registration with the Commission and will be able to register simply 

by filing an amendment to its current Form ADV to apply for registration.870

Regarding the third alternative, we do not consider using performance rather than design 

standards to be consistent with Congress’s mandate in the Dodd-Frank Act.

 

VIII. EFFECTS ON COMPETITION, EFFICIENCY AND CAPITAL FORMATION

The Commission is adopting certain new rules and amending others pursuant to its 

authority under sections 204(a) and 206A of the Advisers Act,871 and sections 23(a) and 28(e)(2) 

of the Exchange Act.872

 

eligible for Commission registration as long as it would be obligated, absent the exemption, to 

register with at least 25 states. We are amending rule 203A-2(e) to permit all investment advisers 

required to register as an investment adviser with 15 or more states to register with the 

Commission. 

 Section 204(a) of the Advisers Act and section 28(e)(2) of the Exchange 

Act require the Commission, when engaging in rulemaking under the authority provided in those 

sections, to consider whether the rule is “necessary or appropriate in the public interest or for the 

870 See supra section II.C. 

871 15 U.S.C. 80b-4(a), 80b-6A. 

872 15 U.S.C. 78w(a) and 78bb(e)(2). 
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protection of investors.”873 Section 202(c) of the Advisers Act requires that whenever the 

Commission is engaged in rulemaking and is required, pursuant to the Advisers Act, to consider 

or determine whether an action is necessary or appropriate in the public interest, the Commission 

must also consider, in addition to the protection of investors, whether the action will promote 

efficiency, competition, and capital formation.874 Section 3(f) of the Exchange Act imposes the 

same requirements on the Commission’s Exchange Act rulemakings.875 Section 23(a) of the 

Exchange Act requires the Commission, in adopting rules under the Exchange Act, to consider 

the impact that any new rule would have on competition, and prohibits the Commission from 

adopting any rule that would impose a burden on competition not necessary or appropriate in 

furtherance of the purposes of the Exchange Act.876

The Commission is adopting rule 204-4 and amending rules 203-1, 204-1, and 204-2 and 

Forms ADV, ADV-NR, and ADV-H.

 

877 The new rule and rule amendments are designed to give 

effect to provisions of Title IV of the Dodd-Frank Act.878

 

873 15 U.S.C. 80b-4(a) and 78bb(e)(2). 

 We are adopting new rule 204-4 to 

require exempt reporting advisers to file reports with the Commission electronically on Form 

874 15 U.S.C. 80b-2(c).

875 15 U.S.C. 78c(f). 

876 15 U.S.C. 78w(a)(2). 

877 In contrast, we are adopting new rule 203A-5 and amendments to rules 203A-1, 203A-2, 203A-3, 

and 203A-4 pursuant to our authority set forth in sections 203A(a)(2), 203A(c) and 211(a), 

amendments to rules 0-7, 222-1, and 222-2 pursuant to our authority set forth in section 211(a), 

and amendments to rule 206(4)-5 pursuant to our authority set forth in sections 206(4) and 211(a). 

For a discussion of the effects of this new rule and rule amendments on competition, efficiency, 

and capital formation, see supra sections V., VI., and VII. We note that our analysis of the 

effects on competition, efficiency, and capital formation associated with the requirement that an 

accountant’s report be filed electronically was included in our adoption of substantive 

amendments to that form. Today, we are making only a technical amendment to Form ADV-E to 

conform to that prior rulemaking. See 2009 Custody Release, supra note 310 at section VII.

878 For a discussion of the overall objectives of our rules and rule amendments, see supra section I. 
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ADV.879 We are adopting amendments to Form ADV to improve our risk-assessment 

capabilities and so that it can serve the dual purpose of an SEC reporting form for exempt 

reporting advisers and, as it is used today, a registration form for both state and SEC-registered 

firms.880 In addition to requiring that exempt reporting advisers use Form ADV, rule 204-4 will 

require these advisers to submit reports through the IARD and to pay a filing fee.881 We are also 

amending rule 204-1, which addresses when and how advisers must amend their Form ADV, to 

add a requirement that exempt reporting advisers file updating amendments to reports filed on 

Form ADV.882 Finally, we are amending rule 203-1 to allow an adviser that was relying on, and 

was permitted to rely on, the “private adviser” exemption in section 203(b)(3) on July 20, 2011, 

to delay registering with the Commission until March 30, 2012.883

In the Implementing Proposing Release, we solicited comment on whether the proposed 

rule and rule amendments would, if adopted, promote efficiency, competition, and capital 

formation. We further encouraged commenters to provide empirical data to support their views. 

We did not receive any empirical data in this regard concerning the proposed amendments. We 

received some comments, addressing competition and efficiency generally, which are addressed 

below. 

 

A. Exempt Reporting Adviser Reporting Requirements

 

879 New rule 204-4. See supra section II.B.1. 

880 See supra sections II.B. and II.C. 

881 New rule 204-4(b). New rule 204-4(e) also allows exempt reporting advisers having 

unanticipated technical difficulties that prevent submission of a filing to the IARD system to 

request a temporary hardship exemption from electronic filing requirements by filing Form ADVH. We are also adopting technical amendments to Form ADV-H for this purpose.

882 See amended rule 204-1; supra section II.B.3. 

883 See amended rule 203-1(e); supra section III.B.2. 
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The Dodd-Frank Act provides for the Commission to require reporting by exempt 

reporting advisers, but it does not indicate the information we should collect or the filing method 

by which it should be collected. Our choices, in adopting rule 204-4 to require these advisers to 

complete a subset of items contained in Form ADV and to file through the IARD, and in 

amending rule 204-1 to impose periodic updating requirements of those filings, will impose costs 

on exempt reporting advisers.884 However, as we asserted in the Implementing Proposing 

Release, our choices also will create efficiencies that benefit both us and filers by taking 

advantage of an established and proven adviser filing system and avoiding the expense and delay 

of developing a new form and filing system. Commenters widely agreed with us,885 with one 

stating that, in its view, there is “no reason to create a new form or filing system when the 

existing ones have been designed for use by advisers and are suitable for that purpose.”886 In 

addition, because an exempt reporting adviser may be required to register on Form ADV with 

one or more state securities authorities, use of the existing form and filing system (which is 

shared with the states) should reduce regulatory burdens for them because they can satisfy 

multiple filing obligations through a uniform reporting instrument.887

 

884 For a discussion of the costs of the reporting obligations we are applying to exempt reporting 

advisers, see section V.B.2.

 Several commenters 

agreed and also expressed the view that use of Form ADV and the IARD for exempt reporting 

885 Two commenters urged that we create a separate reporting system. Merkl Implementing Letter; 

Seward Letter. See also Shearman Letter (making arguments regarding the potential for investor 

confusion, but not advocating use of a different form or reporting system). However, as we stated 

above, the expense and delay of developing a system with adequate functionality, which neither 

commenter addressed, argues against these commenters’ recommendations for a new form and 

electronic filing system. See supra section II.B.1. 

886 ABA Committees Letter. See also AFL-CIO Letter; NRS Letter; Better Markets Letter; NASAA 

Letter; ABA Committees Letter. We anticipate that the IARD’s ability to pre-populate prior 

responses and allow drop-down boxes for common responses will also save time for advisers. 

887 See supra note 170 and accompanying text. 
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advisers would be efficient, because the system is familiar to many advisers.888 Similarly, 

commenters agreed with our expectation that regulatory burdens would be diminished for an 

exempt reporting adviser that later finds it can no longer rely on an exemption and would be 

required to register with us because the adviser would simply file an amendment to its current 

Form ADV to apply for Commission registration.889

Using Form ADV and the IARD also will enable investors to access information on our 

website that may have previously been unavailable or not easily attainable, such as whether a 

prospective exempt reporting adviser has reported disciplinary events and whether its 

relationships with affiliates present conflicts of interest or potential efficiencies. Indeed, 

commenters indicated that an investor would be better able to perform due diligence if the 

information was made available to the public,

 Finally, certain items in Form ADV Part 1 

are also linked to Form BD, which would create efficiencies if the exempt reporting adviser were 

to apply for broker-dealer registration. 

890 and could make an informed decision regarding 

the integrity of a prospective adviser if he or she were able to review the disciplinary history of 

the exempt reporting adviser and its employees.891

 

888 See Better Markets Letter; NRS Letter; NASAA Letter. Responding to our request for comment 

regarding the possible use of EDGAR in place of the IARD, one commenter argued that “[s]uch 

an approach would be confusing and burdensome for any adviser that transitions between 

[exempt reporting adviser] and Commission-registered status.” ABA Committees Letter.

 As we asserted in the Implementing 

Proposing Release, public access to this information, which may previously have been 

889 See ABA Committees Letter; Better Markets Letter; NRS Letter; NASAA Letter. Form ADV, as 

amended, permits an adviser to transition from filing reports with us to applying for registration 

under the Act by simply amending its Form ADV; the adviser would check the box to indicate it 

is filing an initial application for registration, complete the items it did not have to answer as an 

exempt reporting adviser, and update the pre-populated items that it already has on file. See

amended Form ADV: General Instruction 15 (providing procedural guidance to advisers that no 

longer meet the definition of exempt reporting adviser). 

890 Merkl Implementing Letter.

891 CII Letter.
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undisclosed, may promote competition to the extent that it will allow private fund investors to 

make informed decisions about these advisers, avoiding the burdens and costs associated with 

selling private funds to switch advisers at a later date, and thereby potentially creating efficiency 

gains in the marketplace and enhancing allocative efficiency of client assets among investment 

advisers.892

Several commenters, however, stated that public availability of the information we 

proposed to be reported would impose costs on advisers (and in some cases their supervised 

persons or owners) including the potential loss of business to competitors, as the information was 

not typically made available to others previously and may not be required of unregistered 

competitors.

 The availability of disciplinary information, in particular, about these advisers and 

their supervised persons may also enhance competition if, for example, firms and personnel with 

better disciplinary records outcompete those with worse records. Greater competition among 

advisers may, in turn, benefit clients. Access to the information we are requiring exempt 

reporting advisers to report may also increase clients’ and prospective clients’ trust in investment 

advisers, which may encourage them to seek professional investment advice and encourage them 

to invest their financial assets. This may enhance capital formation by making more assets

available for investment and enhancing the allocation of capital generally. 

893 Some commenters expressed concerns that some of the information we proposed 

to require also could include proprietary or competitively sensitive information regarding private 

funds.894

 

892 See Implementing Proposing Release, supra note 

 We have responded to some of these concerns by declining to adopt certain questions 

7, at section VII.A.

893 See BCLBE Letter; NRS Letter; Seward Letter (claiming that the reporting may be valuable to 

the Commission, but making the information publicly available would provide little benefit to 

investors, and asserting that the benefits were insufficient to justify the costs).

894 See, e.g., MFA Letter; NVCA Letter; O’Melveny Letter. Another commenter, however, refuted 

these competitive concerns, stating that none of the items that exempt reporting advisers would 
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that commenters suggested could require particularly proprietary or competitively sensitive 

information, such as certain data about beneficial owners.895 Nonetheless, as discussed above in 

greater detail, based on section 210 of the Act, which presumes reports submitted to us by 

advisers will be publicly available, together with the Freedom of Information Act, which 

generally supports disclosure of such documents, we decline to deny the public access to all of 

this information at this time.896

Finally, to the extent that the information we collect and the filing method by which we 

collect it impose costs on exempt reporting advisers that are then passed on to clients, this may

deter clients from seeking professional investment advice and investing their financial assets. As 

we acknowledged in the Implementing Proposing Release, this may result in inefficiencies in the 

market for advisory services and hinder capital formation.897

B. Risk-Assessment Amendments to Form ADV

The amendments to Form ADV we are adopting today are designed to improve advisers’ 

disclosure of their business practices (particularly those relating to advising private funds), nonadvisory activities, financial industry affiliations, and conflicts of interest. Private fund 

reporting, in particular, will benefit private fund investors and other market participants and will 

provide us and other policy makers with better data. Better data will enhance our ability to form 

and frame regulatory policies regarding the private fund industry and fund advisers and to 

evaluate the effect of our policies and programs on this industry. Private fund reporting will 

provide us with important information about this rapidly growing segment of the U.S. financial 

 

complete would require the disclosure of proprietary or competitively sensitive information. 

Merkl Implementing Letter. 

895 See supra notes 245-247 and accompanying text. 

896 See supra section II.B.3. 

897 See Implementing Proposing Release, supra note 7, at section VII.A.
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system. Additionally, data about which advisers have $1 billion or more in total balance sheet

assets will enable us to identify the advisers that are covered by section 956 of the Dodd-Frank 

Act, which addresses certain incentive-based compensation arrangements. 

As acknowledged above with respect to exempt reporting advisers, there may also be a 

competitive impact among registered investment advisers as a result of the collection of the 

additional information on Form ADV in connection with the amendments we are adopting today. 

We raised several examples of competitive impacts in the Implementing Proposing Release.898 

For instance, information regarding the amount of assets under management by specific types of 

clients could be used by competitors when marketing their own advisory services.899 We are 

adopting a modified version of this item as it was proposed, which we expect will alleviate 

commenters’ concerns about the costs and burdens of the proposed item,900

We continue to believe that increased competition among investment advisers (both 

exempt reporting and registered) and other financial service providers will result in capital being 

 but which we do not 

expect will alter this competitive impact. Another example we noted in the Implementing 

Proposing Release includes the information concerning private funds that registered and exempt 

reporting advisers are required to submit on Form ADV, which could assist private fund 

investors in assessing investment choices or screening funds based on certain parameters, such as 

the identification of certain fund service providers or gatekeepers. Amendments we are adopting 

to Form ADV will not prevent this information from being used by other financial service 

providers (such as banks or broker-dealers) that do not provide similar information publicly. 

 

898 See id. at section VII.B.

899 See supra section II.C.2. (discussing Item 5.D.(2)). 

900 See id. See IAA General Letter.
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allocated more efficiently, benefiting clients and certain advisers. Commenters did not address 

the above examples or provide empirical data about the competitive effects of the proposal. 

Finally, as noted above and in the Implementing Proposing Release, better disclosure 

may increase clients’ and prospective clients’ trust in investment advisers, which may encourage 

them to seek professional investment advice and encourage them to invest their financial 

assets.901

C. Other Amendments

 This also may enhance capital formation by making more assets available for 

investment and enhancing the allocation of capital generally. On the other hand, if the rule 

amendments we are adopting increase costs for investment advisers and these cost increases are 

passed on to clients, this may deter clients from seeking professional investment advice and 

investing their financial assets. This may result in inefficiencies in the market for advisory 

services and hinder capital formation. 

Finally, we are amending rule 203-1 to allow an adviser that was relying on, and was 

permitted to rely on, the “private adviser” exemption in section 203(b)(3) on July 20, 2011, to 

delay registering with the Commission until March 30, 2012. We believe that this temporary 

extension of the registration deadline will assure an orderly transition to registration and thus will 

promote efficiency. We believe that this temporary extension will have minimal, if any, effects 

on competition or capital formation.

We are also amending rule 204-2 to cross-reference the new definition of private fund 

and add a grandfathering provision relieving firms that were exempt from registration prior to the 

effectiveness of the Dodd-Frank Act’s elimination of the “private adviser” exemption from 

 

901 See Implementing Proposing Release, supra note 7, at section VII.B.
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certain recordkeeping obligations applicable to registered advisers.902

IX. STATUTORY AUTHORITY

 

Finally, we are amending 

Forms ADV-NR and Form ADV-H to provide for their use by exempt reporting advisers. The 

amendments to rule 204-2, Form ADV-NR, and Form ADV-H are technical in nature. We do 

not anticipate that they will have any bearing on efficiency, competition, or capital formation. 

The Commission is removing rules 202(a)(11)-1, 203(b)(3)-1, and 203(b)(3)-2 under the 

Investment Advisers Act of 1940 pursuant to the authority set forth in section 211(a) of the 

Investment Advisers Act of 1940 [15 U.S.C. 80b-11(a)], adopting new rule 203A-5 and 

amendments to rules 203A-2, 203A-3, and 203A-4 under the Advisers Act pursuant to the 

authority set forth in sections 203A(c) and 211(a) of the Advisers Act [15 U.S.C. 80b-3A(c) and 

80b-11(a)]; amendments to rule 203A-1 under the Advisers Act pursuant to the authority set 

forth in sections 203A(a)(2)(B)(ii) (as amended by section 410 of the Dodd-Frank Act), 203A(c), 

and 211(a) of the Advisers Act [15 U.S.C. 80b-3A(a)(2)(B)(ii), 80b-3A(c), and 80b-11(a)]; 

amendments to rule 203-1 under the Advisers Act pursuant to the authority set forth in section 

206A of the Advisers Act [15 U.S.C. 80b-6A]; new rule 204-4 and amendments to rules 204-1 

and 204-2 under the Advisers Act pursuant to the authority set forth in sections 204 and 211(a) 

of the Advisers Act [15 U.S.C. 80b-4 and 80b-11(a)]; amendments to rule 206(4)-5 under the 

Advisers Act pursuant to authority set forth in sections 206(4) and 211(a) of the Advisers Act [15 

U.S.C. 80b-6(4) and 80b-11(a)]; amendments to rules 0-7, 222-1, and 222-2 under the Advisers 

Act pursuant to authority set forth in section 211(a) of the Advisers Act [15 U.S.C. 80b-11(a)]; 

and to amend Form ADV under section 19(a) of the Securities Act of 1933 [15 U.S.C. 77s(a)], 

sections 23(a) and 28(e)(2) of the Exchange Act [15 U.S.C. 78w(a) and 78bb(e)(2)], section 

 

902 See supra section II.D.2.b. 
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319(a) of the Trust Indenture Act of 1939 [15 U.S.C. 77sss(a)], section 38(a) of the Investment 

Company Act [15 U.S.C. 78a-37(a)], and sections 203(c)(1), 204, and 211(a) of the Advisers Act 

[15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)]; Form ADV-NR under section 19(a) of the 

Securities Act of 1933 [15 U.S.C. 77s(a)], section 23(a) of the Exchange Act [15 U.S.C. 78w(a)], 

section 319(a) of the Trust Indenture Act of 1939 [15 U.S.C. 77sss(a)], section 38(a) of the 

Investment Company Act [15 U.S.C. 78a-37(a)], and sections 203(c)(1), 204, and 211(a) of the 

Advisers Act [15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)]; Form ADV-H pursuant to the 

authority set forth in sections 203(c)(1), 204, and 211(a) of the Advisers Act [15 U.S.C. 80b3(c)(1), 80b-4, 80b-11(a)]; and Form ADV-E pursuant to authority set forth in sections 204, 

206(4), and 211(a) of the Advisers Act [15 U.S.C. 80b-4, 80b-6(4), and 80b-11(a)]. 

List of Subjects in 17 CFR Parts 275 and 279 

Reporting and recordkeeping requirements; Securities. 

TEXT OF RULE AND FORM AMENDMENTS

For the reasons set out in the preamble, Title 17 Chapter II of the Code of Federal 

Regulations is amended as follows. 

PART 275 -- RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

 1. The authority citation for Part 275 is amended by revising the general authority 

and by adding authority for sections 275.203A-3, 275.203A-5, 275.204-1 and 275.204-4 in 

numerical order to read as follows: 

Authority: 15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(11)(H), 80b-2(a)(17), 80b-3, 80b-4, 

80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted. 
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* * * * * 

 Section 275.203A-3 is also issued under 15 U.S.C. 80b-3a. 

 Section 275.203A-5 is also issued under 15 U.S.C. 80b-3a.

 * * * * * 

Section 275.204-1 is also issued under sec. 407 and 408, Pub. L. 111-203, 124 Stat. 1376. 

* * * * * 

 Section 275.204-4 is also issued under sec. 407 and 408, Pub. L. 111-203, 124 Stat. 1376. 

* * * * * 

§ 275.0-7 [Amended] 

2. Section 275.0-7 is amended by revising the reference to “Section 203A(a)(2)” in 

paragraph (a)(1) to read “Section 203A(a)(3).” 

§ 275.202(a)(11)-1 [Removed]

3. Section 275.202(a)(11)-1 is removed. 

4. Section 275.203-1 is amended by adding paragraph (e) to read as follows: 

§ 275.203-1 Application for investment adviser registration. 

* * * * * 

(e) “Private adviser” transition rule. If you are exempt from registration with the 

Commission as an investment adviser under, and are not registered in reliance on, section 

203(b)(3) of the Act (15 U.S.C. 80b-3(b)(3)) on July 20, 2011, you are exempt from registration 

with the Commission as an investment adviser until March 30, 2012, provided that you: 

(1) During the course of the preceding twelve months, have had fewer than fifteen 

clients; and
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(2) Neither hold yourself out generally to the public as an investment adviser nor act 

as an investment adviser to any investment company registered under the Investment Company 

Act of 1940 (15 U.S.C. 80a), or a company which has elected to be a business development 

company pursuant to section 54 of that Act (15 U.S.C. 80a-54) and has not withdrawn its 

election.

§ 275.203(b)(3)-1 [Removed] 

5. Section 275.203(b)(3)-1 is removed. 

§ 275.203(b)(3)-2 [Removed]

6. Section 275.203(b)(3)-2 is removed. 

7. Section 275.203A-1 is revised to read as follows: 

§ 275.203A-1 Eligibility for SEC registration; Switching to or from SEC registration. 

(a) Eligibility for SEC registration of mid-sized investment advisers—If you are an 

investment adviser described in section 203A(a)(2)(B) of the Act (15 U.S.C. 80b-3a(a)(2)(B)):

(1) Threshold for SEC registration and registration buffer. You may, but are not 

required to register with the Commission if you have assets under management of at least 

$100,000,000 but less than $110,000,000, and you need not withdraw your registration unless 

you have less than $90,000,000 of assets under management. 

(2) Exceptions. This paragraph (a) does not apply if: 

(i) You are an investment adviser to an investment company registered under the 

Investment Company Act of 1940 (15 U.S.C. 80a) or to a company which has elected to be a 

business development company pursuant to section 54 of the Investment Company Act of 1940 

(15 U.S.C. 80a-54), and has not withdrawn the election; or 

(ii) You are eligible for an exemption described in § 275.203A-2 of this chapter. 
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(b) Switching to or from SEC registration— 

(1) State-registered advisers—switching to SEC registration. If you are registered with a 

state securities authority, you must apply for registration with the Commission within 90 days of 

filing an annual updating amendment to your Form ADV reporting that you are eligible for SEC 

registration and are not relying on an exemption from registration under sections 203(l) or 

203(m) of the Act (15 U.S.C. 80b-3(l), (m)).

(2) SEC-registered advisers—switching to State registration. If you are registered with 

the Commission and file an annual updating amendment to your Form ADV reporting that you 

are not eligible for SEC registration and are not relying on an exemption from registration under 

sections 203(l) or 203(m) of the Act (15 U.S.C. 80b-3(l), (m)), you must file Form ADV-W (17 

CFR 279.2) to withdraw your SEC registration within 180 days of your fiscal year end (unless 

you then are eligible for SEC registration). During this period while you are registered with both 

the Commission and one or more state securities authorities, the Act and applicable State law 

will apply to your advisory activities.

 8. Section 275.203A-2 is amended by: 

a. Removing paragraph (a); 

b. Redesignating paragraphs (b) through (f) as paragraphs (a) through (e);

c. Revising newly designated paragraph (a)(1); 

d. Revising the reference to “paragraph (b) of this section” in the introductory text of 

newly designated paragraph (a)(2) to read “paragraph (a) of this section”; 

e. Revising newly designated paragraph (c)(1); 

f. Revising newly designated paragraph (d)(1); 
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g. Further redesignating newly designated paragraphs (d)(2) and (d)(3) as 

paragraphs (d)(2)(i) and (d)(2)(ii);

h. Adding new introductory text to paragraph (d)(2) and revising newly designated 

paragraphs (d)(2)(i) and (d)(2)(ii);

i. Further redesignating newly designated paragraph (d)(4) as paragraph (d)(3); 

j. Revising the reference to “paragraph (f) of this section” in newly designated 

paragraphs (e)(1)(ii), (e)(1)(iii), and (e)(2) to read “paragraph (e) of this section”; 

k. Revising the reference to “paragraph (f)(1)(i) of this section” in newly designated 

paragraphs (e)(1)(ii) and (e)(3) to read “paragraph (e)(1)(i) of this section”;

l. Revising the reference to “paragraph (c) of this section” in newly designated 

paragraph (e)(1)(iii) to read “paragraph (b) of this section”; and 

m. Revising the reference “§ 275.203(b)(3)-1” in newly designated paragraph (e)(3) 

to read “§ 275.202(a)(30)-1”.

The revisions and additions read as follows: 

§ 275.203A-2 Exemptions from prohibition on Commission registration. 

(a) Pension Consultants. (1) An investment adviser that is a “pension consultant,” as 

defined in this section, with respect to assets of plans having an aggregate value of at least 

$200,000,000. 

* * * * * 

(c) * * * 

(1) Immediately before it registers with the Commission, is not registered or required to 

be registered with the Commission or a state securities authority of any State and has a 
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reasonable expectation that it would be eligible to register with the Commission within 120 days 

after the date the investment adviser’s registration with the Commission becomes effective;

* * * * * 

(d) * * * 

(1) Upon submission of its application for registration with the Commission, is required 

by the laws of 15 or more States to register as an investment adviser with the state securities 

authority in the respective States, and thereafter would, but for this section, be required by the 

laws of at least 15 States to register as an investment adviser with the state securities authority in 

the respective States; 

(2) Elects to rely on paragraph (d) of this section by: 

(i) Indicating on Schedule D of its Form ADV that the investment adviser has reviewed 

the applicable State and federal laws and has concluded that, in the case of an application for 

registration with the Commission, it is required by the laws of 15 or more States to register as an 

investment adviser with the state securities authorities in the respective States or, in the case of 

an amendment to Form ADV, it would be required by the laws of at least 15 States to register as 

an investment adviser with the state securities authorities in the respective States, within 90 days 

prior to the date of filing Form ADV; and 

(ii) Undertaking on Schedule D of its Form ADV to withdraw from registration with the 

Commission if the adviser indicates on an annual updating amendment to Form ADV that the 

investment adviser would be required by the laws of fewer than 15 States to register as an 

investment adviser with the state securities authority in the respective States, and that the 

investment adviser would be prohibited by section 203A(a) of the Act (15 U.S.C. 80b–3a(a)) 
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from registering with the Commission, by filing a completed Form ADV-W within 180 days of 

the adviser’s fiscal year end (unless the adviser then is eligible for SEC registration); and

* * * * * 

 9. Section 275.203A-3 is amended by revising paragraph (a)(4) and adding 

paragraphs (d) and (e) to read as follows: 

§ 275.203A-3 Definitions. 

* * * * * 

(a) * * * 

(4) Supervised persons may rely on the definition of “client” in §275.202(a)(30)–1 to 

identify clients for purposes of paragraph (a)(1) of this section, except that supervised persons 

need not count clients that are not residents of the United States. 

* * * * * 

(d) Assets under management. Determine “assets under management” by calculating the 

securities portfolios with respect to which an investment adviser provides continuous and regular 

supervisory or management services as reported on the investment adviser’s Form ADV (17 

CFR 279.1). 

(e) State securities authority. “State securities authority” means the securities 

commissioner or commission (or any agency, office or officer performing like functions) of any 

State.

§ 275.203A-4 [Removed and reserved]

 10. Section 275.203A-4 is removed and reserved. 

11a. Effective July 21, 2011, § 275.203A-5 is added to read as follows: 

§ 275.203A-5 Transition rules. 
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(a) Temporary exemption from prohibition on Commission registration for mid-sized 

investment advisers. Until January 1, 2012, the prohibition of section 203A(a)(2) of the Act (15 

U.S.C. 80b–3a(a)(2)) does not apply to an investment adviser registered with the Commission on 

July 21, 2011. 

(b) [Reserved]

 

11b. Effective September 19, 2011, § 275.203A-5 is amended by adding paragraphs (b) and 

(c) to read as follows: 

§ 275.203A-5 Transition rules. 

* * * * * 

(b) SEC-registered advisers—Form ADV filing. Every investment adviser registered 

with the Commission on January 1, 2012 shall file an amendment to Form ADV (17 CFR 279.1) 

no later than March 30, 2012 and shall determine its assets under management based on the 

current market value of the assets as determined within 90 days prior to the date of filing the 

Form ADV.

(c) Mid-sized investment advisers—withdrawing from Commission registration. 

(1) If an investment adviser registered with the Commission on January 1, 2012 would 

be prohibited from registering with the Commission under section 203A(a)(2) of the Act (15 

U.S.C. 80b-3a(a)(2)), and is not otherwise exempted by § 275.203A-2 from such prohibition, 

such investment adviser shall withdraw from registration with the Commission by filing Form 

ADV-W (17 CFR 279.2) no later than June 28, 2012. During this period while an investment 

adviser is registered with both the Commission and one or more state securities authorities, the 

Act and applicable State law will apply to the investment adviser’s advisory activities.
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(2) If, prior to the effective date of the withdrawal from registration of an investment 

adviser on Form ADV-W, the Commission has instituted a proceeding pursuant to section 203(e) 

of the Act (15 U.S.C. 80b-3(e)) to suspend or revoke registration, or pursuant to section 203(h) 

of the Act (15 U.S.C. 80b-3(h)) to impose terms or conditions upon withdrawal, the withdrawal 

from registration shall not become effective except at such time and upon such terms and 

conditions as the Commission deems necessary or appropriate in the public interest or for the 

protection of investors. 

12. Section 275.204-1 is amended by revising the heading, paragraph (b), the Note to 

paragraphs (a) and (b), and paragraph (c), to read as follows: 

§ 275.204-1 Amendments to Form ADV.

* * * * * 

(b) Electronic filing of amendments

(1) Subject to paragraph (c) of this section, you must file all amendments to Part 1A 

of Form ADV and Part 2A of Form ADV electronically with the IARD, unless you have 

received a continuing hardship exemption under §275.203-3. You are not required to file with 

the Commission amendments to brochure supplements required by Part 2B of Form ADV. 

. 

(2) If you have received a continuing hardship exemption under §275.203-3, you 

must, when you are required to amend your Form ADV, file a completed Part 1A and Part 2A of 

Form ADV on paper with the SEC by mailing it to FINRA. 

Note to paragraphs (a) and (b): Information on how to file with the IARD is available on 

our website at www.sec.gov/iard. For the annual updating amendment: summaries of material 

changes that are not included in the adviser’s brochure must be filed with the Commission as an 

exhibit to Part 2A in the same electronic file; and if you are not required to prepare a brochure, a 
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summary of material changes, or an annual updating amendment to your brochure, you are not 

required to file them with the Commission. See the instructions for Part 2A of Form ADV.

(c) Transition to electronic filing

* * * * * 

. If you are required to file a brochure and your 

fiscal year ends on or after December 31, 2010, you must amend your Form ADV by 

electronically filing with the IARD one or more brochures that satisfy the requirements of Part 

2A of Form ADV (as amended effective October 12, 2010) as part of the next annual updating 

amendment that you are required to file. 

 13. Section 275.204-2 is amended by: 

a. Removing paragraph (l); 

 b. In paragraph (a)(14)(ii), revising the reference to “assets under management” to 

read “regulatory assets under management”; and

c. Revising paragraph (e)(3)(ii) to read as follows: 

§ 275.204-2 Books and records to be maintained by investment advisers. 

* * * * * 

(e) * * * 

(3) * * * 

(ii) Transition rule. If you are an investment adviser that was, prior to July 21, 2011, 

exempt from registration under section 203(b)(3) of the Act (15 U.S.C. 80b-3(b)(3)), as in effect 

on July 20, 2011, paragraph (e)(3)(i) of this section does not require you to maintain or preserve 

books and records that would otherwise be required to be maintained or preserved under the 

provisions of paragraph (a)(16) of this section to the extent those books and records pertain to the 

performance or rate of return of such private fund (as defined in section 202(a)(29) of the Act 
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(15 U.S.C. 80b-2(a)(29)), or other account you advise for any period ended prior to your 

registration, provided that you continue to preserve any books and records in your possession 

that pertain to the performance or rate of return of such private fund or other account for such 

period. 

* * * * * 

 14. Section 275.204-4 is added to read as follows: 

§ 275.204-4 Reporting by exempt reporting advisers. 

(a) Exempt reporting advisers. If you are an investment adviser relying on the 

exemption from registering with the Commission under section 203(l) or (m) of the Act (15 

U.S.C. 80b-3(l) or 80b-3(m)), you must complete and file reports on Form ADV (17 CFR 279.1) 

by following the instructions in the Form, which specify the information that an exempt 

reporting adviser must provide. 

(b) Electronic filing. You must file Form ADV electronically with the Investment 

Adviser Registration Depository (IARD) unless you have received a hardship exemption under 

paragraph (e) of this section. 

Note to paragraph (b): Information on how to file with the IARD is available on the 

Commission's website at http://www.sec.gov/iard.

(c) When filed. Each Form ADV is considered filed with the Commission upon 

acceptance by the IARD.

(d) Filing fees. You must pay FINRA (the operator of the IARD) a filing fee. The 

Commission has approved the amount of the filing fee. No portion of the filing fee is 

refundable. Your completed Form ADV will not be accepted by FINRA, and thus will not be 

considered filed with the Commission, until you have paid the filing fee. 
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(e) Temporary hardship exemption. 

(1) Eligibility for exemption. If you have unanticipated technical difficulties that 

prevent submission of a filing to the IARD, you may request a temporary hardship exemption 

from the requirements of this chapter to file electronically.

(2) Application procedures. To request a temporary hardship exemption, you must: 

(i) File Form ADV-H (17 CFR 279.3) in paper format no later than one business day 

after the filing that is the subject of the ADV-H was due; and

(ii) Submit the filing that is the subject of the Form ADV-H in electronic format with 

the IARD no later than seven business days after the filing was due. 

(3) Effective date – upon filing. The temporary hardship exemption will be granted 

when you file a completed Form ADV-H.

(f) Final report. You must file a final report in accordance with instructions in Form 

ADV when:

(1) You cease operation as an investment adviser; 

(2) You no longer meet the definition of exempt reporting adviser under paragraph 

(a); or 

(3) You apply for registration with the Commission. 

Note to paragraph (f): You do not have to pay a filing fee to file a final report on Form 

ADV through the IARD.

 15. Section 275.206(4)-5 is amended by: 

a. In paragraph (f)(2)(i), removing the term “individual” and adding in its place the 

term “person”; and 
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b. Revising paragraphs (a)(1), (a)(2) introductory text, (a)(2)(i), (d), and (f)(9) to 

read as follows:

§ 275.206(4)-5 Political contributions by certain investment advisers.

(a) * * * 

(1) For any investment adviser registered (or required to be registered) with the 

Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of 

the Advisers Act (15 U.S.C. 80b-3(b)(3)), or that is an exempt reporting adviser, as defined in 

section 275.204-4(a), to provide investment advisory services for compensation to a government 

entity within two years after a contribution to an official of the government entity is made by the 

investment adviser or any covered associate of the investment adviser (including a person who 

becomes a covered associate within two years after the contribution is made); and 

(2) For any investment adviser registered (or required to be registered) with the 

Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of 

the Advisers Act (15 U.S.C. 80b-3(b)(3)), or that is an exempt reporting adviser, or any of the 

investment adviser’s covered associates:

(i) To provide or agree to provide, directly or indirectly, payment to any person to 

solicit a government entity for investment advisory services on behalf of such investment adviser 

unless such person is: 

(A) A regulated person; or 

(B) An executive officer, general partner, managing member (or, in each case, a 

person with a similar status or function), or employee of the investment adviser; and

 * * * * * 
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(d) Further prohibition

* * * * * 

. As a means reasonably designed to prevent fraudulent, 

deceptive or manipulative acts, practices, or courses of business within the meaning of section 

206(4) of Advisers Act (15 U.S.C. 80b-6(4)), it shall be unlawful for any investment adviser 

registered (or required to be registered) with the Commission, or unregistered in reliance on the 

exemption available under section 203(b)(3) of the Advisers Act (15 U.S.C. 80b-3(b)(3)), or that 

is an exempt reporting adviser, or any of the investment adviser’s covered associates to do 

anything indirectly which, if done directly, would result in a violation of this section. 

(f) * * * 

(9) Regulated person

(i) An investment adviser registered with the Commission that has not, and whose 

covered associates have not, within two years of soliciting a government entity: 

means:

(A) Made a contribution to an official of that government entity, other than as described 

in paragraph (b)(1) of this section; and 

(B) Coordinated or solicited any person or political action committee to make any 

contribution or payment described in paragraphs (a)(2)(ii)(A) and (B) of this section; 

(ii) A “broker,” as defined in section 3(a)(4) of the Securities Exchange Act of 1934 (15 

U.S.C. 78c(a)(4)) or a “dealer,” as defined in section 3(a)(5) of that Act (15 U.S.C. 78c(a)(5)), 

that is registered with the Commission, and is a member of a national securities association 

registered under 15A of that Act (15 U.S.C. 78o-3), provided that: 

(A) The rules of the association prohibit members from engaging in distribution or 

solicitation activities if certain political contributions have been made; and 
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(B) The Commission, by order, finds that such rules impose substantially equivalent or 

more stringent restrictions on broker-dealers than this section imposes on investment advisers 

and that such rules are consistent with the objectives of this section; and 

(iii) A “municipal advisor” registered with the Commission under section 15B of the 

Exchange Act and subject to rules of the Municipal Securities Rulemaking Board, provided that: 

(A) Such rules prohibit municipal advisors from engaging in distribution or solicitation 

activities if certain political contributions have been made; and 

(B) The Commission, by order, finds that such rules impose substantially equivalent or 

more stringent restrictions on municipal advisors than this section imposes on investment 

advisers and that such rules are consistent with the objectives of this section. 

* * * * * 

§ 275.222-1 [Amended]

 16. Section 275.222-1 is amended by revising the phrase “Principal place of business” 

to read “Principal office and place of business” in both the heading and the first sentence of 

paragraph (b). 

 17. Section 275.222-2 is revised to read as follows: 

§ 275.222-2 Definition of “client” for purposes of the national de minimis standard.

For purposes of section 222(d)(2) of the Act (15 U.S.C. 80b-18a(d)(2)), an investment 

adviser may rely upon the definition of “client” provided by § 275.202(a)(30)-1, without giving 

regard to paragraph (b)(4) of that section.

PART 279 -- FORMS PRESCRIBED UNDER THE INVESTMENT ADVISERS ACT OF 

1940 

 18. The authority citation for Part 279 continues to read as follows: 
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Authority: The Investment Advisers Act of 1940, 15 U.S.C. 80b. 

§ 279.1 [Amended] 

 19. Form ADV [referenced in § 279.1] is amended by: 

a. In the instructions to the form, revising the section entitled “Form ADV: General 

Instructions.” The revised version of Form ADV: General Instructions is attached as Appendix 

A; 

b. In the instructions to the form, revising the section entitled “Form ADV: 

Instructions for Part 1A.” The revised version of Form ADV: Instructions for Part 1A is attached 

as Appendix B; 

c. In the instructions to the form, revising the section entitled “Form ADV: Glossary 

of Terms.” The revised version of Form ADV: Glossary of Terms is attached as Appendix C; 

d. In the form, revising Part 1A. The revised version of Form ADV, Part 1A is 

attached as Appendix D;

e. In the form, revising the reference to “proceeding” in Item 3.D. of Part 2B to read 

“hearing or formal adjudication”; 

f. In the form, revising the reference to “assets under management” in the Note to 

Item 4.E of Part 2A to read “regulatory assets under management”; and

g. In the form, revising the section entitled “Form ADV: Domestic Investment 

Adviser Execution Page.” The revised version of Form ADV: Domestic Investment Adviser 

Execution Page is attached as Appendix E.

The revisions read as follows: 
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Note: The text of Form ADV does not and the amendments will not appear in the 

Code of Federal Regulations. 

* * * * * 

Form ADV: Part 2B

* * * 

Item 3. * * * 

D. Any other hearing or formal adjudication in which a professional attainment, 

designation, or license of the supervised person was revoked or suspended because of a violation 

of rules relating to professional conduct. If the supervised person resigned (or otherwise 

relinquished the attainment, designation, or license) in anticipation of such a hearing or formal 

adjudication (and the adviser knows, or should have known, of such resignation or 

relinquishment), disclose the event. 

* * * * * 

§ 279.3 [Amended] 

 20. Form ADV-H [referenced in § 279.3] is amended by revising the form. The 

revised version of Form ADV-H is attached as Appendix F. 

Note: The text of Form ADV-H does not and the amendments will not appear in the 

Code of Federal Regulations. 

§ 279.4 [Amended] 

 21. Form ADV-NR [referenced in § 279.4] is amended by revising the form. The 

revised version of Form ADV-NR is attached as Appendix G.

Note: The text of Form ADV-NR does not and the amendments will not appear in 

the Code of Federal Regulations. 
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§ 279.8 [Amended] 

 22. Form ADV-E [referenced in § 279.4] is amended by revising the form. The 

revised version of Form ADV-E is attached as Appendix H.

Note: The text of Form ADV-E does not and the amendments will not appear in the 

Code of Federal Regulations. 

By the Commission.

 Elizabeth M. Murphy 

 Secretary

June 22, 2011