Earlier this week, the North American Securities Administrators Association (aka NASAA) announced the launch of its Electronic Filing Depository (EFD).  The EFD allows issuers to file Form Ds in Rule 506 offerings online.  A number of states (but not California) issued press releases announcing their participation in NASAA’s EFD.  New Jersey, for example, issued this order requiring filings through the EFD beginning January 1, 2015.

From an issuer’s perspective, the new system offers the convenience of on-line filing. (Something that California has offered for a number of years – first, through Cal-EASI and currently through Docqnet). However, the NASAA is imposing a one-time set-up fee of $150 in addition to the states’ filing fees.  I’m told that the payment can only be made by ACH, not credit card (payment through California’s Docqnet is by credit card).

From the public’s perspective, the EFD also allows the public to search and view Form D filings.  Searches can be made by CIK number, accession number, issuer name or EFD number.  The CIK is the unique number that the SEC’s computer system assigns to individuals and corporations who file disclosure documents with the SEC. The accession number is a unique number that the SEC’s EDGAR assigns to each submission as the submission is received. I’ve tried the search and a number of Form Ds are already on file.

I do wonder whether NASAA’s $150 fee is permitted under the National Securities Markets Improvement Act of 1996.  That act amended Section 18 of the Securities Act of 1933 to preempt state securities qualification or registration requirements with respect to covered securities, as defined.  The NSMIA preserved state authority to require the filing of any filing document filed with the SEC “solely for notice purposes and the assessment of any fee, together with a consent to service of process and any required fee”.  NASAA, however, isn’t a state.  Thus, the question is can a state, consistent with the NSMIA, require the payment of fees to a third party?