HAR §16-38-33. Registration; generally

(a) A person, corporation, partnership, or other unincorporated association may be registered as an investment adviser under §16-38-33 38-46 chapter 485, HRS, if the commissioner finds that the applicant is of good repute and otherwise satisfies the requirements of chapter 485, HRS, and this chapter. (b) All services of an investment adviser shall be made pursuant to a written investment advisory contract and shall be subject to the disclosure requirements of section 16-38-38. (c) Designation. The commissioner hereby designates the Internet-based IARD to receive and store filings, and collect related fees from investment advisers and investment adviser representatives on behalf of the commissioner. (d) Use of the IARD. Except as otherwise provided below, all investment adviser and investment adviser representative applications, amendments, reports, notices, related filings and fees required to be filed with the commissioner pursuant to chapter 485, HRS, and this chapter, shall be filed electronically with and transmitted to the IARD. The following additional conditions relate to these electronic filings: (1) Electronic signature. When a signature or signatures are required by the particular instructions of any filing to be made through the IARD, a duly authorized officer of the applicant or the applicant him 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 to the 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. (2) When filed. Solely for purposes of a filing made through the IARD, a document is considered filed with the commissioner when all fees are received and the filing is accepted by the IARD on behalf of the State. (e) Electronic filings. The electronic filing of any particular document and the collection of related processing fees shall not be required until the IARD provides for receipt of such filings and fees, and the commissioner provides at least thirty days notice that electronic filing is available. Any documents or fees required to be filed with the commissioner that are not permitted to be filed with or cannot be accepted by the IARD shall be filed directly with the commissioner. (f) Hardship exemptions. Notwithstanding subsections (d) and (e), there shall be two "hardship exemptions" from the requirements to make electronic filings. (1) Temporary hardship exemption. (A) Investment advisers registered or required to be registered under the Investment Advisers Act of 1940 who experience unanticipated technical difficulties that prevent submission of an electronic filing to the IARD may request a temporary hardship exemption from the requirements to file electronically. §16-38-33 38-47 (B) To request a temporary hardship exemption, the investment adviser shall: (i) File Form ADV-H (17 CFR section 279.3) in paper format with the commissioner where the investment adviser's principal place of business is located, no later than one business day after the 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 the IARD no later than seven business days after the filing was due. (C) Effective date – upon filing. The temporary hardship exemption shall be deemed effective upon receipt by the commissioner of the complete Form ADV-H. Multiple temporary hardship exemption requests within the same calendar year may be disallowed by the commissioner. (2) Continuing hardship exemption. (A) Criteria for exemption. A continuing hardship exemption may be granted only if the investment adviser is able to demonstrate that the electronic filing requirements of this rule are prohibitively burdensome. (B) To apply for a continuing hardship exemption, the investment adviser shall: (i) File Form ADV-H (17 CFR section 279.3) in paper format with the commissioner at least twenty business days before a filing is due; and (ii) If a filing is due to more than one commissioner, the Form ADV-H shall be filed with the commissioner where the investment adviser's principal place of business is located. (C) Effective date – upon approval. The continuing hardship exemption shall be deemed effective upon approval by the commissioner. The time period of the exemption shall not exceed one year after the date on which the Form ADV-H is filed. If the commissioner approves the application, the investment adviser shall, no later than five business days after the exemption approval date, submit filings to the IARD in paper format (along with the appropriate processing fees) for the period of time for which the exemption is granted. §16-38-33 38-48 (3) Recognition of exemption. The decision to grant or deny a request for a hardship exemption shall be made by the commissioner where the investment adviser's principal place of business is located. [Eff and comp 10/12/85; am and comp 4/14/03] (Auth: HRS §485-2) (Imp: HRS §485-14)