The New York Investment Advisory Act (the “Rule”) has been amended, and effective February 1, 2021, New York requires investment adviser representatives (“IARs”) who render investment advice or act as a solicitor from a place of business in New York, or supervise such activities, to meet examination requirements, and register with the State of New York. The implementation period for the Rule will allow advisory firms currently engaged in an advisory business to continue their business without an approved registration until December 2, 2021, provided the Form U4 requesting the IAR’s registration in New York is submitted on or before August 31, 2021.
Exam and Registration Required
The exam and registration requirements impact all RIAs, regardless of whether they are affiliated with New York advisers, or SEC registered advisers with a place of business in New York. IARs impacted by the Rule are now required to register through the Central Registration Depository/Investment Adviser Registration Depository. In addition to the exam fees, the licensing fee is $200. For RIAs currently providing advisory services in the State of New York, they must file their Form U-4 by August 31, 2021, and qualify by examination by December 2, 2021, unless exempt from the examination requirement as discussed below.
Examination Waiver
An examination waiver is available for advisory professionals who have been serving as IARs for at least two years, prior to February 1, 2021 so long as they are not disqualified. A person is subject to disqualification for purposes of the waiver if they are currently is or have been subject to any regulatory or civil action, proceeding or arbitration, either pending or in the preceding ten (10) years from the date of such application, that would require disclosure on item 11 on Form U4, or that person has been notified or has reason to believe that they currently are or remain the subject of a regulatory or law enforcement investigation related to investment related activities. The examination waiver request, if qualified, needs to be filed by August 31, 2021.
Certification
The examination requirements of the Rule are not applicable to RIAs who currently hold a professional designation recognized by rule or order and in good standing (e.g., Certified Financial Planner, Chartered Financial Consultant, Personal Financial Specialist, Chartered Financial Analyst or Chartered Investment Counselor).
New Books and Records Requirement
Additionally, it should be noted that the Rule also include a new books and records obligation which require IARs to keep documentation that supports the designation of any client as an “accredited investor” or “qualified client”, as defined under federal law.
Regulatory Guidance
The Office of the Attorney General issued Guidance on Mandatory Registration for Investment Adviser Representatives that summarize what should be done to apply or request registration and the examination waiver.
Action Items
Should you have any RIAs impacted by the new Rule, they need to file their Form U-4 requesting New York registration, and their examination waiver request, if qualified by August 31, 2021. If they are not qualified for the waiver, do not have a professional designation or are not currently qualified as a Series 65 or 66, they will need to also schedule their examination, which will need to be passed by December 2, 2021.