

[Federal Register: April 6, 2006 (Volume 71, Number 66)]
[Rules and Regulations]               
[Page 17344-17345]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap06-3]                         

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

SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 279

[Release No. IA-2504]

 
Technical Amendments to Form ADV, Form ADV-W, Form ADV-H, Form 
ADV-E

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; technical amendments.

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

SUMMARY: The Securities and Exchange Commission (``Commission'' or 
``SEC'') is making technical amendments to Form ADV under the 
Investment Advisers Act of 1940 (``Advisers Act''). Form ADV is the 
form advisers use to register with the Commission and the state 
securities regulatory authorities. The Commission is also making 
technical amendments to Form ADV-W, Form ADV-H, and Form ADV-E.

DATES: Effective Date: April 7, 2006.

FOR FURTHER INFORMATION CONTACT: Vivien Liu, Senior Counsel, or 
Jennifer L. Sawin, Assistant Director, at 202-551-6787 or 
IArules@sec.gov, Office of Investment Adviser Regulation, Division of 

Investment Management, Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-5041.

SUPPLEMENTARY INFORMATION: Under section 203A(a) of the Advisers Act, 
an adviser that is ``regulated or required to be regulated'' as an 
investment adviser in the state in which it maintains its principal 
office and place of business is prohibited from registering with the 
Commission unless the adviser has $25 million of assets under 
management, or advises an investment company registered under the 
Investment Company Act of 1940.\1\ All investment advisers--regardless 
of the amount of assets they manage or whether they advise a registered 
investment company--may register with the Commission if their principal 
office and place of business is located in a state that has not enacted 
a statute regulating advisers.\2\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 80b-3a. The Commission has adopted various 
additional exemptions from the prohibition on SEC registration. See 
rule 203A-2 (17 CFR 275.203A-2).
    \2\ Rules Implementing Amendments to the Investment Advisers Act 
of 1940, Investment Advisers Act Release No. 1633 (May 15, 1997) (62 
FR 28112 (May 22, 1997)). Section 202(a)(19) (15 U.S.C. 80b-
2(a)(19)) of the Advisers Act defines ``state'' to include, in 
addition to the 50 states, the District of Columbia, Puerto Rico, 
the Virgin Islands, or any other possession of the United States.
---------------------------------------------------------------------------

    Recently the U.S. Virgin Islands enacted a statute regulating 
investment advisers.\3\ As a consequence, an investment adviser with a 
principal office and place of business in the Virgin Islands may not 
register with the Commission unless it has at least $25 million of 
assets under management, advises a registered investment company or is 
eligible to rely on one of the exemptions from the prohibition on 
registration contained in rule 203A-2.\4\
---------------------------------------------------------------------------

    \3\ 9 V.I. Code Ann. Sec. Sec.  601-672 (2004).
    \4\ Absent eligibility for Commission registration, these 
advisers are subject to the registration provisions of U.S. Virgin 
Islands law. In addition, advisers ineligible for Commission 
registration that have their principal office and place of business 
in the U.S. Virgin Islands may be required to register in one or 
more other states, if they have six or more clients that are 
residents of that state or have a place of business in that state. 
See Advisers Act section 222(d)(15 U.S.C. 80b-18a(d)).
---------------------------------------------------------------------------

    The Commission is making technical amendments to Part 1A, Item 2 of 
Form ADV, as well as to Form ADV-W and Form ADV-E, to reflect the 
addition of the U.S. Virgin Islands to the group of states with 
investment adviser statutes.\5\ Form ADV-W is the form advisers use to 
withdraw from registration, and Form ADV-E is the cover page used to 
submit independent public accountants' certification of surprise 
examinations under the adviser custody rule, rule 206(4)-2.\6\ In 
addition, the Commission is making amendments to Form ADV-H, the form 
advisers use to apply for a hardship exemption from the requirement to 
register with the Commission electronically, and to Item 16 of the 
General Instructions to Form ADV, to update the Commission's mailing 
address.
---------------------------------------------------------------------------

    \5\ 17 CFR 279.1 (Form ADV); 17 CFR 279.2 (Form ADV-W); 17 CFR 
279.8 (Form ADV-E). These changes include not only removing 
reference to the Virgin Islands from Item 2.A(2) in Part 1A of Form 
ADV (concerning an adviser's eligibility to register with the 
Commission), but also adding check-boxes for the Virgin Islands to 
Item 2.B. in Part 1A of Form ADV (concerning state notice filings 
for SEC-registered investment advisers), and paragraph (b) of the 
Status section of Form ADV-W (concerning withdrawals from state 
investment adviser registration). These check-boxes will appear on 
the paper version of the Forms, but will not be available for use by 
electronic filers on IARD until the IARD system is reprogrammed to 
support the Virgin Islands' participation in the system as a state 
securities administrator.
    \6\ 17 CFR 275.206(4)-2. The Commission is also updating Form 
ADV-E's cross-references to the rule to reflect the recent 
amendments to the rule.
---------------------------------------------------------------------------

I. Certain Findings

    Under the Administrative Procedure Act (``APA''), notice of 
proposed rulemaking is not required when the agency, for good cause, 
finds ``that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' \7\ The Commission 
is making technical amendments to Part 1A, Item 2 of Form ADV, Form 
ADV-W and Form ADV-E in light of new legislation in the U.S. Virgin 
Islands and to update out-of-date cross-references, and making 
technical amendments to Form ADV-H and the General Instructions to Form 
ADV to update the Commission's mailing address. The Commission, 
therefore, finds that publishing the amendments for comment is 
unnecessary.\8\
---------------------------------------------------------------------------

    \7\ 5 U.S.C. 553(b).
    \8\ For similar reasons, the amendments do not require analysis 
under the Regulatory Flexibility Act or analysis of major rule 
status under the Small Business Regulatory Enforcement Fairness Act. 
See 5 U.S.C. 601(2) (for purposes of Regulatory Flexibility Act 
analyses, the term ``rule'' means any rule for which the agency 
publishes a general notice of proposed rulemaking); 5 U.S.C. 
804(3)(C) (for purposes of Congressional review of agency 
rulemaking, the term ``rule'' does not include any rule of agency 
organization, procedure, or practice that does not substantially 
affect the rights or obligations of non-agency parties).
---------------------------------------------------------------------------

    Publication of a substantive rule not less than 30 days before its 
effective date is required by the APA except as otherwise provided by 
the agency for good cause.\9\ For the same reasons described above with 
respect to notice and opportunity for comment, the Commission finds 
that there is good cause for making these technical amendments 
effective on April 7, 2006.
---------------------------------------------------------------------------

    \9\ 5 U.S.C. 553(d).
---------------------------------------------------------------------------

II. Consideration of Promotion of Efficiency, Competition, and Capital 
Formation

    Section 202(c) of the Advisers Act requires the Commission, when 
engaging in rulemaking that requires it to consider or determine 
whether an action is necessary or appropriate in the public interest, 
to consider, in addition to the protection of investors, whether the 
action will promote efficiency,

[[Page 17345]]

competition, and capital formation.\10\ Because the amendments are 
limited to technical amendments, we do not anticipate that any 
competitive advantages or disadvantages would be created. We do not 
expect the amendments, as technical amendments, to have an effect on 
efficiency, or on capital formation or the capital markets.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 80b-2(c).
---------------------------------------------------------------------------

III. Statutory Authority

    We are adopting technical amendments to Form ADV (17 CFR 279.1) 
under the authority set forth in section 19(a) of the Securities Act of 
1933 (15 U.S.C. 77s(a)), sections 23(a) and 28(e)(2) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78w(a) and 78bb(e)(2)), section 319(a) 
of the Trust Indenture Act of 1939 (15 U.S.C. 77sss(a)), section 38(a) 
of the Investment Company Act of 1940 (15 U.S.C. 78a-37(a)), and 
sections 203(c)(1), 204, and 211(a) of the Investment Advisers Act of 
1940 (15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)).
    We are adopting technical amendments to Form ADV-W (17 CFR 279.2) 
under the authority set forth in sections 203(h), 204, and 211(a) of 
the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(h), 80b-4, and 
80b-11(a)).
    We are adopting technical amendments to Form ADV-H (17 CFR 279.3) 
under the authority set forth in sections 203(c)(1), 204, and 211(a) of 
the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(c)(1), 80b-4, and 
80b-11(a)).
    We are adopting technical amendments to Form ADV-E (17 CFR 279.8) 
under the authority set forth in sections 204, 206, and 211(a) of the 
Investment Advisers Act of 1940 (15 U.S.C. 80b-4, 80b-6, and 80b-
11(a)).

Text of Form Amendments

List of Subjects in 17 CFR Part 279

    Reporting and recordkeeping requirements; Securities.

0
Accordingly, 17 CFR part 279 is amended as follows:

PART 279--FORMS PRESCRIBED UNDER THE INVESTMENT ADVISERS ACT OF 
1940

0
1. The authority citation for part 279 continues to read as follows:

    Authority: The Investment Advisers Act of 1940, 15 U.S.C. 80b-1, 
et seq.

0
2. Form ADV (referenced in Sec.  279.1) is amended by:
0
a. Removing ``the U.S. Virgin Islands or'' from Part 1A, Item 2 A.(2); 
and
0
b. Inserting ``[ballot] VI'' in the table of Part 1A, Item 2 B before 
``[ballot] VA''.
0
3. Form ADV General Instruction 16 (referenced in Sec.  279.1) is 
amended by revising ``450 5th Street, NW., Mail Stop A-2, Washington, 
DC 20549'' to read ``100 F Street, NE., Mail Stop 0-25, Washington, DC 
20549.''


    Note: Form ADV does not and this amendment will not appear in 
the Code of Federal Registrations.



0
4. Form ADV-W (referenced in Sec.  279.2) is amended by inserting 
``[ballot] VI'' before ``[ballot] VA'' in paragraph (b) of the Status 
section.


    Note: Form ADV-W does not and this amendment will not appear in 
the Code of Federal Registrations.



0
5. Form ADV-H (referenced in Sec.  279.3) is amended in Item 4 by 
revising ``Office of Registrations and Examinations, Mail Stop 0-25, 
450 Fifth Street, NW., Washington, DC 20549'' to read ``Branch of 
Registrations and Examinations, Mail Stop 0-25, 100 F Street, NE., 
Washington, DC 20549''.


    Note: Form ADV-H does not and this amendment will not appear in 
the Code of Federal Registrations.



0
6. Form ADV-E (referenced in Sec.  279.8) is amended by:
0
a. In 2, revising the table to read:

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

----------------------------------------------------------------------------------------------------------------
AL                     AK                     AZ                     AR                     CA
CO                     CT                     DE                     DC                     FL
GA                     HI                     ID                     IL                     IN
IA                     KS                     KY                     LA                     ME
MO                     MT                     NE                     NV                     NH
JN                     NM                     NY                     NC                     ND
OH                     OK                     OR                     PA                     RI
SC                     SD                     TN                     TX                     UT
VT                     VI                     VA                     WA                     WV
WI                     WY                     Puerto Rico            Other (specify):       ....................
----------------------------------------------------------------------------------------------------------------


0
b. In Instructions 2 and 3, and in the paragraph with the heading 
``SEC's Collection of Information,'' revising references to ``rule 
206(4)-2(a)(5)'' to read ``rule 206(4)-2(a)(3)(ii)(B)''; and
0
c. In the paragraph with the heading ``SEC's Collection of 
Information,'' revising ``17 CFR 275.206(4)-2(a)(5)'' to read ``17 CFR 
275.206(4)-2(a)(3)(ii)(B)''.


    Note: Form ADV-E does not and this amendment will not appear in 
the Code of Federal Registrations.


    Dated: March 30, 2006.
    By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. 06-3322 Filed 4-5-06; 8:45 am]

BILLING CODE 8010-01-P
