Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Definitions.
As used in this section, the following words shall have the
following definitions.
(1) "Business
day" is a day Monday through Friday from 8:00 a.m. to 5:00 p.m., Pacific Time,
excluding state holidays on which the Secretary of State is closed for
business.
(2) "Customer" is a
customer of the Secretary of State and includes, but is not limited to, a
principal, agent, messenger or attorney.
(3) "Eligible document" is a document
submitted to the Secretary of State pursuant to the California Corporations
Code, the California Financial Code, or the California Insurance
Code.
(4) "Filing response" is a
written response prepared by the Secretary of State when documents submitted
for filing are returned without filing due to the fact that the document is
found not to conform to the law.
(5) "Preclearance" is a determination by the
Secretary of State, made in writing, that an eligible document submitted for
review prior to an intended filing date, conforms to law within the meaning of
the applicable sections of the code under which it is intended to be filed, and
will be filed when the eligible document is submitted for filing, if the
requirements set forth in paragraph (2) of subdivision (d) are satisfied and
the Secretary of State is able to make the determinations set forth in
paragraph (3) of subdivision (d).
(6) "Precleared document" is a document that
has received a preclearance from the Secretary of State within the last 6
months pursuant to section
21904 of these regulations. Any
change to the entity record invalidates the precleared document.
(7) "Preclearance response" is a written
response prepared by the Secretary of State to a request for
preclearance.
(8) "Preclearance
version" is the form of an eligible document that is submitted to the Secretary
of State for preclearance.
(b) The Secretary of State in providing
preclearance services for a fee established pursuant to this section, if such
services do not cause disruption or delay in the process of normal handling of
documents, may suspend all or any portion of the preclearance services, as set
forth in this section, when deemed necessary due to a high volume of workload,
staff shortages or equipment malfunction. Notice of the suspension of all or
any portion of the preclearance services shall be communicated to the public in
a reasonable manner. Suspension of all or any portion of the preclearance
services may be for a specified or indefinite period of time, as denoted in the
notice.
(c) Documents submitted for
preclearance shall occur as described in this subdivision.
(1) To submit an eligible document for
preclearance a customer shall personally deliver to the Sacramento office of
the Secretary of State the following:
(A) One
copy of the eligible document in the form for which preclearance is
sought;
(B) Requisite preclearance
fee, as provided in paragraph (8) of subdivision (c);
(C) Requisite Secretary of State prescribed
cover sheet including a statement as to the preferred means of delivery of the
preclearance response, as provided in paragraph (9) of subdivision (c);
and
(D) Name and telephone number
of the customer to whom questions, if any, regarding the document or service
requested may be directed.
(2) An eligible document submitted to the
Secretary of State for preclearance shall contain the name of the entity. An
eligible document may be submitted to the Secretary of State for preclearance
with designated blank spaces for information that does not affect the
determination of the Secretary of State as to whether the eligible document
will conform to law when it is properly completed, signed and, if required,
acknowledged or verified. Such information may include, but is not limited to,
names of executing officers, required signatures, and dollar amounts.
(3) After receipt of an eligible document for
preclearance, the Secretary of State shall issue a preclearance response within
the time period for the requested class of service, as provided in paragraph
(7) of subdivision (c). The Secretary of State shall deliver the preclearance
response by the requested means of delivery, as provided in paragraph (9) of
subdivision (c). The Secretary of State shall not be responsible for ensuring
that the preclearance response is delivered within the time period for the
requested class of service, as delivery may take additional time to reach a
customer due to the means of delivery or the fact that the customer is not
available to receive it.
(4) When
preclearance of an eligible document is denied, the Secretary of State shall
state in the preclearance response the reason or reasons for the denial of
preclearance.
(5) If it appears to
the Secretary of State that a preclearance response cannot be issued within the
time period for the requested class of service, the Secretary of State shall
contact the customer concerning the appropriate action to be taken, and refund
the preclearance fee, if the customer requests return of an eligible document
without a preclearance response.
(6) A customer may resubmit a revised version
of an eligible document that was previously submitted for preclearance, in
accordance with the procedures set forth above, one or more times, provided
that the applicable fee accompanies each submission. To assist the Secretary of
State in reviewing the eligible document for a 4-hour expedite, a customer
shall submit the preclearance response with the revised version of the eligible
document.
(7) A preclearance
response shall be issued within twenty-four (24) hours of receipt by the
Secretary of State of an eligible document, excluding weekends and state
holidays in which the Secretary of State is closed for business.
(8) The preclearance fee shall be
$500.
(9) Delivery of a
preclearance response pursuant to subsection (C) of paragraph (1) of
subdivision (c) shall be by one of the following means:
(A) The preclearance response shall be
available at the Sacramento office of the Secretary of State for the customer
to collect in person;
(B) The
preclearance response shall be transmitted by electronic mail, if an electronic
mail address provided by the customer accompanies the preclearance
request;
(C) The preclearance
response shall be placed in the mail to be delivered by overnight courier, if a
prepaid, pre-addressed overnight courier envelope provided by the customer
accompanies the request for preclearance; or
(D) The preclearance response shall be placed
in the mail to be delivered by the United States Postal Service first class
mail.
(d)
Precleared documents shall be filed as described in this subdivision.
(1) A precleared document may be submitted to
the Secretary of State for filing through the normal filing process, special
handling provisions provided for in section
21903 of these regulations or
expedited filing provisions provided for in section
21905 of these
regulations.
(2) To submit a
precleared document for filing with the Secretary of State, a customer shall
submit the following:
(A) Completed document,
containing the required signatures;
(B) The preclearance approval
number;
(C) The precleared document
is required if submitting for a 4-hour expedite;
(D) Requisite filing fee; and
(E) Requisite special handling fee or
expedited filing fee, if applicable.
(3) The review of a completed document that
has received a preclearance shall generally be limited to the following
determinations:
(A) Whether any changes have
been made to the document since the preclearance was issued;
(B) Whether all designated blank spaces, if
any, in the preclearance version have been completed and, if not, whether the
failure to complete such information causes the document not to conform to law;
and
(C) Whether the eligible
document has been signed and, to the extent required by law, verified or
acknowledged, in accordance with the applicable provisions related to its
execution.
(4) If the
Secretary of State determines that a precleared document submitted for filing
does not conform to law, the filing response shall state the reason or reasons
for the return of the document.
1. Amendment of subsection (e) filed 12-23-80; effective thirtieth day thereafter (Register 80, No. 52).
2. Amendment filed 2-15-85; effective thirtieth day thereafter (Register 85, No. 7).
3. Amendment filed 9-14-89; operative 1-1-90 (Register 89, No. 37).
4. Adoption of subsections (b)(5)-(7) and amendment of subsections (c) and (d) filed 10-31-91 as emergency; operative 12-1-91 (Register 92, No. 7). A Certificate of Compliance must be transmitted to OAL 3-30-92 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 10-31-91 order including editorial correction of subsection (b)(7) transmitted to OAL 2-11-92 and filed 3-24-92 (Register 92, No. 15).
6. Repealer and new section filed 10-31-97; operative 10-31-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 44).
7. Renumbering of former section 21904 to section 21903 and new section 21904 filed 8-29-2000; operative 9-28-2000 (Register 2000, No. 35).
8. Amendment of subsections (a)(3), (a)(5)-(6), (c)(1)(A), (c)(2) and (d)(2)(A) and amendment of NOTE filed 9-7-2006; operative 9-7-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 36).
9. Amendment of subsections (a)(1) and (c)(1) and new subsections (c)(10)-(11) filed 9-13-2018; operative 9-15-2018 pursuant to Government Code section 11343.4(b)(3) (Register 2018, No. 37).
10. Amendment filed 3-30-2022; operative 4-7-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 13).
Note: Authority cited: Section 12182, Government Code; Budget Act, ch. 47, Stat. of 2006; and Section 17.1, Corporations Code. Reference: Section 12182, Government Code; and Section 17.1, Corporations Code.
