S.D. Admin. R. 20:08:05:17

Current through Register Vol. 50, page 162, June 24, 2024

Section 20:08:05:17 - Electronic filing with designated entity

The director designates the web-based Investment Adviser Registration Depository (IARD) to receive and store filings and collect related fees from investment advisers and investment adviser representatives on behalf of the director.

(1) Use of IARD. Unless otherwise provided, all investment adviser and investment adviser representative applications, amendments, reports, notices, related filings, and fees required to be filed with the director pursuant to the rules promulgated under SDCL chapter 47-31 B, shall be filed electronically with and transmitted to IARD. The following additional conditions relate to such electronic filings:

(a) Electronic signature. When a signature or signatures are required by the particular instructions of any filing to be made electronically through IARD, a duly authorized officer of the applicant or the applicant himself or herself, as required, shall affix his or her electronic signature to the filing by typing his or her name in the appropriate fields and submitting the filing electronically to IARD. Submission of a filing in this manner shall constitute irrefutable evidence of legal signature by any individuals whose names are typed on the filing.

(b) When filed. Solely for purposes of a filing made electronically through IARD, a document is considered filed with the director when all fees are received and the filing is accepted by IARD on behalf of the state.

(c) Brochure supplements, updates, and amendments. An investment adviser must file electronically with the IARD Part 2B of Form ADV brochure supplements for each supervised person doing business in this state. Brochure supplements must be updated promptly whenever any information in them becomes materially inaccurate.

(d) All amendments to Part 1A of Form ADV and Part 2A of Form ADV shall be filed electronically with the IARD, unless you have received a continuing hardship exemption under § 20:08:05:17(3)(d).

(2) Electronic filing. Notwithstanding § 20:08:05:17(1), the electronic filing of any particular document and the collection of related processing fees shall not be required until such time as IARD provides for receipt of such filings and fees and 30 days notice is provided by the director. Any documents or fees required to be filed with the director that are not permitted to be filed with or cannot be accepted electronically by IARD shall be filed directly with the director.

(3) Hardship exemptions. Section 20:08:05:17 provides two hardship exemptions from the requirements to make electronic filings.

(a) Temporary hardship exemption:

(i) Investment advisers registered or required to be registered under chapter 47-31 B who experience unanticipated technical difficulties that prevent submission of an electronic filing to IARD may request a temporary hardship exemption from the requirements to file electronically.

(b) To request a temporary hardship exemption, the investment adviser must:

(i) File an Application for a Temporary or Continuing Hardship Exemption, Form ADV-H, in paper format with the director where the investment adviser's principal place of business is located, no later than one business day after filing (that is the subject of the Form ADV-H) was due; and

(ii) Submit the filing that is the subject of the Form ADV-H in electronic format to IARD no later than seven business days after the filing was due.

(c) Effective date -- Upon filing. The temporary hardship exemption will be deemed effective upon receipt by the director of the complete Form ADV-H. Multiple temporary hardship exemption requests within the same calendar year may be disallowed by the director.

(d) Continuing hardship exemption -- Criteria for exemption. A continuing hardship exemption will be granted only if the investment adviser is able to demonstrate that the electronic filing requirements of §20:08:05:17 are prohibitively burdensome.

(e) To apply for a continuing hardship exemption, the investment adviser must:

(i) File Form ADV-H in paper format with the director at least 20 business days before a filing is due; and

(ii) If a filing is due to more than one administrator, the Form ADV-H must be filed with the administrator where the investment adviser's principal place of business is located. The administrator who receives the application will grant or deny the application within ten business days after the filing of Form ADV-H.

(f) Effective date -- Upon approval. The continuing hardship exemption is effective upon approval by the director. The time period of the exemption may be no longer than one year after the date on which the Form ADV-H is filed. If the director approves the application, the investment adviser must, no later than five business days after the exemption approval date, submit filings to IARD in paper format (along with the appropriate processing fees) for the period of time for which the exemption is granted.

(4) Recognition of exemption. The decision to grant or deny a request for a hardship exemption will be made by the director where the investment adviser's principal place of business is located, which decision will be followed by the director in the other state(s) where the investment adviser is registered.

S.D. Admin. R. 20:08:05:17

37 SDR 112, effective 12/9/2010.

General Authority: SDCL 47-31B-410(d) and (f), 47-31B-605(a)(1) and (3), 47-31B-605(b), 47-31B-608(c)(1).

Law Implemented: SDCL 47-31B-103, 47-31B-105, 47-31B-406, 47-31B-410(d) and (f), 47-31B-608(c).