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Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations offering any report, analysis, publication or other investment advisory service to more than ten persons, the investment adviser shall not be required to keep a record of the names and addresses of the persons to whom it was sent; except that if such notice, circular, or advertisement is distributed to persons named on any list, the investment adviser shall retain with the copy of such notice, circular, or advertisement a memorandum describing the list and the source thereof.

11 i A copy of each A Advertisement as defined in 275.20641e1 of this chapter that the investment adviser disseminates, directly or indirectly, except:
1 For oral advertisements, the adviser may instead retain a copy of any written or recorded materials used by the adviser in connection with the oral advertisement; and 2 For compensated oral testimonials and endorsements as defined in 275.20641e17 and 5 of this chapter, the adviser may instead make and keep a record of the disclosures provided to clients or investors pursuant to 275.20641b1 of this chapter; and B Notice, circular, newspaper article, investment letter, bulletin, or other communication that the investment adviser disseminates, directly or indirectly, to ten or more persons other than persons associated with such investment adviser; and C If such notice, circular, advertisement, newspaper article, investment letter, bulletin, or other communication recommends the purchase or sale of a specific security and does not state the reasons for such recommendation, a memorandum of the investment adviser indicating the reasons therefor; and ii A copy of any questionnaire or survey used in the preparation of a third-party rating included or appearing in any advertisement in the event the adviser obtains a copy of the questionnaire or survey.

15 i If not included in the advertisement, a record of the disclosures provided to clients or investors pursuant to 275.2064
1b1ii and iii of this chapter;
ii Documentation substantiating the advisers reasonable basis for believing that a testimonial or endorsement as defined in 275.20641e17 and 5
of this chapter complies with 275.20641 and that the third-party rating as defined in 275.2064
1e18 of this chapter complies with 275.20641c1 of this chapter.

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iii A record of the names of all persons who are an investment advisers partners, officers, directors, or employees, or a person that controls, is controlled by, or is under common control with the investment adviser, or is a partner, officer, director or employee of such a person pursuant to 275.20641b4ii of this chapter.
16 All accounts, books, internal working papers, and any other records or documents that are necessary to form the basis for or demonstrate the calculation of any performance or rate of return of any or all managed accounts, portfolios as defined in 275.2064
1e11 of this chapter, or securities recommendations presented in any notice, circular, advertisement as defined in 275.20641e1 of this chapter, newspaper article, investment letter, bulletin, or other communication that the investment adviser disseminates, directly or indirectly, to any person other than persons associated with such investment adviser, including copies of all information provided or offered pursuant to 275.20641d6 of this chapter; provided, however, that, with respect to the performance of managed accounts, the retention of all account statements, if they reflect all debits, credits, and other transactions in a clients or investors account for the period of the statement, and all worksheets necessary to demonstrate the calculation of the performance or rate of return of all managed accounts shall be deemed to satisfy the requirements of this paragraph.

19 A record of who the intended audience is pursuant to 275.2064
1d6 ande10iiB of this chapter.

3. Revise 275.20641 to read as follows:
275.20641
Marketing.

Investment Adviser
As a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, or courses of business within the meaning of section 2064 of the Act 15 U.S.C. 80b 64, it is unlawful for any investment adviser registered or required to be registered under section 203 of the Act 15 U.S.C. 80b3, directly or indirectly, to disseminate any advertisement that violates any of paragraphs a through d of this section.
a General prohibitions. An advertisement may not:
1 Include any untrue statement of a material fact, or omit to state a material fact necessary in order to make the
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statement made, in the light of the circumstances under which it was made, not misleading;
2 Include a material statement of fact that the adviser does not have a reasonable basis for believing it will be able to substantiate upon demand by the Commission;
3 Include information that would reasonably be likely to cause an untrue or misleading implication or inference to be drawn concerning a material fact relating to the investment adviser;
4 Discuss any potential benefits to clients or investors connected with or resulting from the investment advisers services or methods of operation without providing fair and balanced treatment of any material risks or material limitations associated with the potential benefits;
5 Include a reference to specific investment advice provided by the investment adviser where such investment advice is not presented in a manner that is fair and balanced;
6 Include or exclude performance results, or present performance time periods, in a manner that is not fair and balanced; or 7 Otherwise be materially misleading.
b Testimonials and endorsements.
An advertisement may not include any testimonial or endorsement, and an adviser may not provide compensation, directly or indirectly, for a testimonial or endorsement, unless the investment adviser complies with the conditions in paragraphs b1 through 3 of this section, subject to the exemptions in paragraph b4 of this section.
1 Required disclosures. The investment adviser discloses, or reasonably believes that the person giving the testimonial or endorsement discloses, the following at the time the testimonial or endorsement is disseminated:
i Clearly and prominently:
A That the testimonial was given by a current client or investor, and the endorsement was given by a person other than a current client or investor, as applicable;
B That cash or non-cash compensation was provided for the testimonial or endorsement, if applicable; and C A brief statement of any material conflicts of interest on the part of the person giving the testimonial or endorsement resulting from the investment advisers relationship with such person;
ii The material terms of any compensation arrangement, including a description of the compensation provided or to be provided, directly or
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