Notice of Request for Comment Regarding a Proposed Model Rule for the Electronic Filing of Form D and Other Securities Registration or Notice Filing Documents

The Electronic Filing Depository Committee of the North American Securities Administrators Association, Inc. (NASAA) is seeking comment on a proposed model rule to require the electronic filing of Form D and other state securities registration/notice filing materials.

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Comments are due on or before July 30, 2014. To facilitate consideration of comments, please send comments to Joey Brady (jb@nasaa.org) at the NASAA Legal Department and to the members of the Committee:

We encourage, but do not require, comments to be submitted by e-mail.

Hard copy comments can be submitted using the address below.

NASAA Legal Department
Joey Brady, General Counsel
NASAA
750 First Street, NE, Suite 1140
Washington, DC 20002

Background on the Proposal: Since March 16, 2009, the U.S. Securities and Exchange Commission (“SEC”) has required the electronic filing of Form D through EDGAR. NASAA is developing an electronic filing system (“EFD”) that will facilitate the electronic filing of Form D for Rule 506 offerings with its U.S. member jurisdictions. EFD, a system that will interface with the SEC’s EDGAR system to, inter alia, receive Form D notice filings and collect fees on behalf of the states. The current scheduled deployment date for the EFD system is November 2014.

The EFD system will initially be limited to Form D filings for Regulation D, Rule 506 offerings. The Committee expects that the EFD system will be expanded to include additional state securities registration and notice filing materials.

This model rule is intended to assist state Administrators in implementing electronic filing of Form D notice filings in their respective jurisdictions.

Explanation of Proposed Model Rule for the Electronic Filing of Form D and Other Securities Registration/Notice Filing Documents: The proposal includes two alternatives. Alternative 1 is limited to Form D filings. Alternative 2 is broader in scope and would cover all potential state registrations and notice filings made through EFD. Both alternatives are designed to function in the same manner as explained below.

Paragraph (a) designates NASAA’s EFD system to receive and store filings and collect related fees on behalf of the jurisdiction. Alternative 1 limits application to Form D filings while alternative 2 contemplates use of the EFD system for “securities registration, exemption, notice filings and amendments.”
Paragraph (b) contains the requisite language mandating electronic filing.

Paragraph (c) provides that electronic filing is not required until 1) EFD is capable of accepting such filings and 2) appropriate notice has been provided to issuers by the Administrator. The rule contemplates a 30-day notice period, though jurisdictions would have discretion in setting the notice period. Paragraph (c) also explains that any documents or fees required to be filed with the regulator that are not permitted to be filed with, or cannot be accepted by, EFD shall be filed directly with the regulator.

Last, paragraph (d) requires that a duly authorized person of the issuer shall affix his or her electronic signature to the filing by typing his or her name in the appropriate fields and submitting the filing to EDGAR. Submission of a filing in this manner shall constitute irrefutable evidence of legal signature by any individual whose name is typed on the filing.

Request for Comment: The Committee is requesting comment on the proposal as drafted. The Committee also requests comment regarding whether states will have to incrementally designate by rule the types of filings that can be made through EFD (as contemplated in Alternative 1) or if states have the flexibility to promulgate a single rule covering all filings and issue notices as each filing type becomes available on EFD (as contemplated in Alternative 2).

Comments are due on or before July 30, 2014.

NASAA Proposals, Regulatory Activity, Request for Comment