[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Notices]
[Pages 62100-62101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25821]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IA-3297; File No. S7-39-11]


Approval of Filing Fees for Exempt Reporting Advisers and Private 
Fund Advisers

AGENCY: Securities and Exchange Commission.

ACTION: Notice of intent to approve filing fees for exempt reporting 
advisers filing Form ADV and private fund advisers filing Form PF.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
providing notice of its intent to approve filing fees for exempt 
reporting advisers filing Form ADV and, consistent with one of its 
recent rule proposals, private fund advisers filing Form PF.

DATES: The fee for exempt reporting advisers would apply starting with 
the date on which the order approving the fee is published in the 
Federal Register. If the Form PF proposal is adopted, the fees for 
private fund advisers would apply starting with the effective date of 
rule 204(b)-1 under the Investment Advisers Act of 1940 (``Advisers 
Act'').
    Hearing or Notification of Hearing: An order approving the filing 
fees will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary. 
Hearing requests should be received by the Commission by 5:30 p.m. on 
October 21, 2011. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons may request notification of a hearing by writing to 
the Commission's Secretary.

ADDRESSES: Elizabeth M. Murphy, Secretary, Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-1090.

FOR FURTHER INFORMATION CONTACT: Keith Kanyan, IARD System Manager, at 
202-551-6737, or [email protected], Office of Investment Adviser 
Regulation, Division of Investment Management, Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION:

Exempt Reporting Adviser Filing Fee

    On June 22, 2011, the Commission adopted new rule 204-4, which 
requires exempt reporting advisers to file portions of Form ADV with 
the Commission.\1\ As with registered advisers, exempt reporting 
advisers must file Form ADV through the Investment Adviser Registration 
Depository system (``IARD'') and pay the Financial Industry Regulatory 
Authority (``FINRA''), which operates the system, a filing fee that the 
Commission approves.\2\ FINRA has submitted to Commission staff a 
letter recommending that the filing fee for exempt reporting advisers 
be set at $150 for each initial and annual report.\3\ Moreover, based 
on projections of expected revenues and expenses (including those 
resulting from future system enhancements) relating to the exempt 
adviser reporting, the Commission believes that this fee

[[Page 62101]]

amount would reflect costs reasonably associated with these filings and 
the development and maintenance of the system. This fee would apply 
starting with the date on which the order approving the fee is 
published in the Federal Register.
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    \1\ ``Exempt reporting advisers'' are investment advisers 
relying on the exemption from registration under section 203(l) or 
203(m) of the Advisers Act. See Rules Implementing Amendments to the 
Investment Advisers Act of 1940, Investment Advisers Act Release No. 
IA-3221 (June 22, 2011), 76 FR 42950 (July 19, 2011) (``Implementing 
Adopting Release'').
    \2\ See section 204(c) of the Advisers Act and rule 204-4(d).
    \3\ FINRA letter dated September 28, 2011, available at http://www.sec.gov/rules/other/2011/finraletter092811-pferafees.pdf.
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    In the Implementing Adopting Release, we indicated that, at the 
time, we expected the filing fees for exempt reporting advisers would 
be the same as those charged registered investment advisers.\4\ On 
further consideration, we believe at this time that a tiered filing fee 
structure is unnecessary for exempt reporting advisers. The lowest fee 
charged to registered advisers is for advisers having under $25 million 
in assets under management. Few exempt reporting advisers are likely to 
have less than $25 million in assets under management because advisers 
under that threshold are generally prohibited from registering with the 
Commission under section 203A of the Advisers Act and, therefore, would 
not be relying on the applicable exemptions. In addition, although we 
expect that many exempt reporting advisers will have assets under 
management that would place them in the group of registered advisers 
paying the highest filing fees, we have estimated that exempt reporting 
advisers will use the IARD less during the year than registered 
advisers.\5\ We agree, therefore, that a single fee is appropriate for 
these advisers regardless of their assets under management.
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    \4\ See Implementing Adopting Release, supra note 1, at nn. 169 
and 566 and accompanying text. Currently, the fees charged 
registered investment advisers for both initial and annual reports 
on Form ADV are set at $40 for advisers with assets under management 
under $25 million; $150 for advisers with assets under management 
from $25 million to $100 million; and $225 for advisers with assets 
under management of $100 million or higher. See Order Approving 
Investment Adviser Registration Depository Filing Fees, Investment 
Advisers Act Release No. 3126 (Dec. 22, 2010), 75 FR 82097 (Dec. 29, 
2010).
    \5\ See Implementing Adopting Release, supra note 1, at nn. 708 
and 741 and accompanying text (estimating that each registered 
adviser will, on average, file one interim amendment each year while 
only 20% of exempt reporting advisers will, on average, file an 
interim amendment during that time).
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Form PF Filing Fees

    On January 26, 2011, the Commission and the Commodity Futures 
Trading Commission released a joint proposal that would require hedge 
fund advisers and other private fund advisers to report certain 
information regarding the private funds they advise.\6\ Under the 
proposal, registered investment advisers managing one or more private 
funds would periodically file all or part of the proposed Form PF. The 
Commission would make the information they report available to the 
Financial Stability Oversight Council for use in monitoring systemic 
risk.
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    \6\ The Commission proposed to adopt a new rule 204(b)-1, which 
would require advisers that are registered with the Commission and 
managing private funds (``private fund advisers'') to file proposed 
Form PF periodically. See section II.C of Reporting by Investment 
Advisers to Private Funds and Certain Commodity Pool Operators and 
Commodity Trading Advisors on Form PF, Investment Advisers Act 
Release No. 3145 (January 26, 2011), 76 FR 8068 (February 11, 2011) 
(``Form PF Proposing Release''). ``Private fund'' is defined in 
section 202(a)(29) of the Advisers Act.
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    The proposal would require advisers to file Form PF electronically 
but left the selection of the filing system and operator for later 
consideration. Having considered the options for such a filing system, 
the Commission has determined that, if Form PF is adopted, FINRA will 
develop and maintain the filing system as an extension of the existing 
IARD.\7\ The Commission believes that FINRA, as the current operator of 
the IARD, is uniquely situated to develop and deploy the Form PF filing 
system in a timely manner. Also, as discussed in the Form PF Proposing 
Release, the Commission believes that certain efficiencies, both for 
the Commission and for advisers, would be realized by having FINRA 
expand its existing platform to accommodate the confidential filing of 
Form PF.\8\ Commenters who responded to the Form PF Proposing Release 
and addressed this aspect of the proposal supported having FINRA 
develop the reporting system as an extension of the IARD platform if 
Form PF is adopted.\9\
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    \7\ In 2000, the Commission designated FINRA as the operator of 
IARD, which is the electronic filing system for Form ADV. This 
designation was made pursuant to the Commission's authority under 
section 204(c) of the Advisers Act, which allows the Commission to 
require investment advisers to file forms ``through any entity 
designated [by it] for that purpose'' and ``to pay the reasonable 
costs associated with [these] filings * * *.'' (This authority was 
added to the Advisers Act as section 203A(d) by section 303(a) of 
the National Securities Markets Improvement Act of 1996, Pub. L. 
104-290, 110 Stat. 3416; moved to section 204(b) by section 7 of the 
Military Personnel Financial Services Protection Act, Pub. L. 109-
290, 102 Stat. 1317 (2006); and re-designated as section 204(c), 
effective July 21, 2011, by section 404(1) of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 
Stat. 1376 (2010).) See Designation of NASD Regulation, Inc., to 
Establish and Maintain the Investment Adviser Registration 
Depository; Approval of IARD Fees, Investment Advisers Act Release 
No. 1888 (July 28, 2000), 65 FR 47807 (Aug. 3, 2000). (FINRA was 
formerly known as NASD.)
    \8\ See section II.E of the Form PF Proposing Release 
(discussing efficiencies of expanding existing IARD platform to 
accommodate filings of Form PF). See also Form PF Proposing Release 
at note 39 and accompanying text (discussing confidentiality of Form 
PF information).
    \9\ See comment letter of the Alternative Investment Management 
Association (Apr. 12, 2011) (agreeing that using the IARD and FINRA 
is a ``sensible solution''); comment letter of the Managed Funds 
Association (Apr. 8, 2011). We explained in the Form PF Proposing 
Release that the filing system would need to be programmed with 
special confidentiality protections designed to ensure the 
heightened confidentiality protections created for Form PF filing 
information under the Dodd-Frank Act. See Form PF Proposing Release 
at note 39 and accompanying text and section II.E. These commenters 
expressed the view that maintaining the confidentiality of Form PF 
data is an important consideration in developing the filing system. 
If Form PF is adopted, Commission staff will work closely with FINRA 
in designing procedures and systems to ensure that Form PF data is 
handled and used in a manner consistent with the protections 
established in the Dodd-Frank Act.
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    Section 204(c) of the Advisers Act authorizes the Commission to 
require that investment advisers pay the reasonable costs associated 
with filings, and under the Commission's proposed rule, private fund 
advisers would pay fees to the operator of the Form PF filing system in 
connection with the filing of Form PF.\10\ Following discussions with 
Commission staff, FINRA submitted a schedule of recommended filings 
fees for proposed Form PF.\11\ The recommended fees are $150 for the 
proposed quarterly filings and $150 for the proposed annual 
filings.\12\ As the Commission indicated in the Form PF Proposing 
Release, because advisers filing on a quarterly basis would use the 
system more frequently and would report more information than advisers 
filing on an annual basis, total annual fees would be higher for 
quarterly filers. Based on projections of expected revenues and 
expenses (including those resulting from future system enhancements) 
relating to the filing of the proposed Form PF, the Commission believes 
that these fees would reflect costs reasonably associated with these 
filings and the development and maintenance of the system. If the 
proposal is adopted, these fees would apply starting with the effective 
date of rule 204(b)-1.
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    \10\ See proposed rule 204(b)-1(d).
    \11\ See note 3 above.
    \12\ Under the proposal, advisers managing $1 billion or more in 
hedge fund assets, combined liquidity fund and registered money 
market fund assets or private equity fund assets would file Form PF 
on a quarterly basis. All other private fund advisers would file on 
an annual basis. See sections II.B and II.C of the Form PF Proposing 
Release.

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    Dated: September 30, 2011.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-25821 Filed 10-5-11; 8:45 am]
BILLING CODE 8011-01-P