Proposed Amendment to Prohibited Transaction Exemption (PTE) 75-
1, Exemptions From Prohibitions Respecting Certain Classes of
Transactions Involving Employee Benefit Plans and Certain Broker-
Dealers, Reporting Dealers and Banks
[04/28/2004]
Volume 69, Number 82, Page 23216-23220
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
[Application No. D-11184]
Proposed Amendment to Prohibited Transaction Exemption (PTE) 75-
1, Exemptions From Prohibitions Respecting Certain Classes of
Transactions Involving Employee Benefit Plans and Certain Broker-
Dealers, Reporting Dealers and Banks
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Notice of proposed amendment to PTE 75-1, Part II and Part V.
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SUMMARY: This document contains a notice of pendency before the
Department of Labor (the Department) of a proposed amendment to PTE 75-
1, Part II and Part V. PTE 75-1, Part II, permits the purchase or sale
of a security in a principal transaction between an employee benefit
plan and a broker-dealer, reporting dealer, or a bank. PTE 75-1, Part
V, permits an extension of credit to a plan by a broker-dealer in
connection with the purchase or sale of securities. The proposed
amendment would affect participants, beneficiaries and fiduciaries of
employee benefit plans, and broker-dealers, reporting dealers and banks
entering into the described transactions.
DATES: Written comments and requests for a public hearing must be
received by the Department on or before June 14, 2004.
EFFECTIVE DATE: If adopted, the proposed amendments would be effective
as of the date of publication of the final amendments in the Federal
Register.
ADDRESSES: All written comments and requests for a public hearing
(preferably three copies) should be addressed to the U.S. Department of
Labor, Office of Exemption Determinations, Employee Benefits Security
Administration, Room N-5649, 200 Constitution Avenue NW., Washington DC
20210 (attention PTE 75-1 Amendment). Interested persons are also
invited to submit comments and/or hearing requests to EBSA via e-mail
or fax. Any such comments should be sent by e-mail to
lloyd.karen@dol.gov or by fax to 202-219-0204 by the end of the
scheduled comment period. All comments received will be available for
public inspection at the Public Documents Room, Employee Benefits
Security Administration, Room N-1513, 200 Constitution Ave. NW.,
Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Karen E. Lloyd, Office of Exemption
Determinations, Employee Benefits Security Administration, U.S.
Department of Labor, Room N-5649, 200 Constitution Avenue NW.,
Washington DC 20210, 202-693-8540. (This is not a toll free number.)
SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency
before the Department of a proposed amendment to PTE 75-1, Part II and
Part V (40 FR 50845, October 31, 1975). PTE 75-1, Part II and Part V,
provide exemptions from certain of the restrictions of section 406 of
ERISA, and from certain taxes imposed by section 4975(a) and (b) of the
Code, by reason of section 4975(c)(1) of the Code. The Department is
proposing this amendment to PTE 75-1 on its own motion, pursuant to
section 408(a) of ERISA and section 4975(c)(2) of the Code, and in
accordance with the procedures set forth in 29 CFR part 2570, subpart B
(55 FR 32836, August 10, 1990).\1\
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\1\ Section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C.
App. 1 (1996) generally transferred the authority of the Secretary
of the Treasury to issue exemptions under section 4975(c)(2) of the
Code to the Secretary of Labor.
In the discussion of the exemption, references to specific
provisions of the Act should be read to refer as well to the
corresponding provisions of section 4975 of the Code.
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Executive Order 12866 Statement
Under Executive Order 12866, the Department must determine whether
the regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by the Office
of Management and Budget (OMB). Under section 3(f), the order defines a
``significant regulatory action'' as an action that is likely to result
in a rule (1) having an annual effect on the economy of $100 million
[[Page 23217]]
or more, or adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
This proposed amendment has been drafted and reviewed in accordance
with Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this proposed amendment is not a
``significant regulatory action'' under Executive Order 12866, section
3(f). Accordingly, it does not require an assessment of potential costs
and benefits under section 6(a)(3) of that order.
Paperwork Reduction Act
The information collection request (ICR) included in the existing
PTE 75-1 is currently approved under Office of Management and Budget
(OMB) control number 1210-0092 (through January 31, 2004). The proposed
amendment does not modify the information collection provisions of the
exemption. Therefore, the Department has not submitted an ICR to OMB in
connection with this Notice of Proposed Amendment to PTE 75-1.
Background
Section 406(a) of ERISA generally prohibits the sale of any
property (including securities), the lending of money or other
extension of credit, and the furnishing of goods or services, between
an employee benefit plan and a ``party in interest.'' The term ``party
in interest'' is defined in ERISA section 3(14) to include (as relevant
herein) fiduciaries, persons providing services to the plan, and
certain persons and entities related to them. Section 406(b) of ERISA
prohibits a fiduciary of a plan from dealing with the assets of the
plan in his own interest, from acting on both sides of a transaction
involving the plan, and from receiving any consideration from any party
dealing with the plan in connection with a transaction involving plan
assets. Such transactions that involve plans described in section
4975(e)(1) of the Code are generally subject to the taxes imposed by
section 4975(a) and (b) of the Code.
PTE 75-1 provides an exemption from certain of the restrictions of
section 406 of ERISA and the taxes imposed by section 4975(a) and (b)
of the Code for certain classes of transactions between employee
benefit plans and securities broker-dealers, reporting dealers and
banks. The exemption was granted in 1975 pursuant to applications made
by the Securities Industry Association, the National Association of
Securities Dealers and others. The record created as part of the
exemption proceeding established that the securities industry is
important in facilitating the raising of capital and in maintaining
market liquidity, particularly for institutional investors. In the
absence of the exemption, plans could encounter disruption of their
normal selling and purchasing activities which, in turn, could increase
costs to plans and possibly lead to harm to the plans, their
participants and beneficiaries.
Description of Existing Relief
Part I of PTE 75-1 provides relief for agency transactions and
services;\2\ Part II for principal transactions; Part III for
underwritings; Part IV for market-making; and Part V for extension of
credit.
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\2\ Part I(a) expired on May 1, 1978. It ultimately was replaced
by PTE 86-128 (51 FR 41686, Nov. 18, 1986).
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PTE 75-1, Part II
Part II of PTE 75-1 provides relief from the restrictions of 406(a)
of ERISA and the taxes imposed by section 4975(a) and (b) of the Code,
by reason of section 4975(c)(1)(A) through (D) of the Code, for the
purchase or sale of a security between an employee benefit plan and a
broker-dealer registered under the Securities Exchange Act of 1934 (the
1934 Act), a reporting dealer who makes primary markets in securities
of the U.S. Government or of any agency thereof and reports daily to
the Federal Reserve Bank of New York its positions with respect to
Government securities and borrowings thereon, or a bank supervised by
the United States or a State.\3\
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\3\ The exemption defines the terms ``broker-dealer,''
``reporting dealer'' and ``bank'' to include such entities and any
affiliate thereof, and ``affiliate'' is defined as in 29 CFR 2510.3-
21(e) and 26 CFR 54.4975-9(e).
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The exemption further provides relief from the restrictions of
section 406(b) of the Act and the taxes imposed by section 4975(a) and
(b) of the Code, by reason of section 4975(c)(1)(E) and (F) of the
Code, for the purchase or sale by a plan of securities issued by an
open-end investment company registered under the Investment Company Act
of 1940, provided that a fiduciary with respect to the plan is not a
principal underwriter for, or affiliated with, such investment company
within the meaning of sections 2(a)(29) and 2(a)(3) of the Investment
Company Act of 1940.
The conditions of PTE 75-1, Part II, require that, in the case of a
broker-dealer, it customarily purchases and sells securities for its
own account in the ordinary course of its business as a broker-dealer.
Reporting dealers and banks must customarily purchase and sell
Government securities for their own accounts in the ordinary course of
their businesses, and the purchase or sale between the plan and such
reporting dealer or bank must be a purchase or sale of Government
securities.
All transactions must be at least as favorable to the plan as an
arm's length transaction with an unrelated party would be, and must not
be, at the time of the transaction, a prohibited transaction within the
meaning of section 503(b) of the Code.
Except with respect to the transactions described above involving
shares of securities issued by open-end investment companies registered
under the Investment Company Act of 1940, the broker-dealer, reporting
dealer or bank may not be a fiduciary with respect to the plan, and the
broker-dealer, reporting dealer or bank may be a party in interest or
disqualified person with respect to the plan solely by reason of
section 3(14)(B) of the Act or section 4975(e)(2)(B) of the Code or a
relationship to a person described in those sections. For purposes of
this condition, a broker-dealer, reporting dealer or bank is not deemed
to be a fiduciary with respect to a plan solely by reason of providing
securities custodial services for a plan. Lastly, the exemption for
principal transactions also contains certain recordkeeping
requirements.
PTE 75-1, Part V
Part V of PTE 75-1 provides relief from the restrictions of section
406 of ERISA and the taxes imposed by section 4975(a) and (b) of the
Code, by reason of section 4975(c)(1) of the Code, for any extension of
credit to a plan by a broker or dealer registered under the 1934
Act.\4\ The broker-dealer extending credit may not be a fiduciary with
respect to any assets of the plan, unless no interest or other
consideration is received by such
[[Page 23218]]
fiduciary or any affiliate in connection with the extension of credit.
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\4\ The exemption defines the terms ``broker'' and ``dealer'' to
include such entities and any affiliate thereof, and affiliate is
defined as in 29 CFR 2510.3-21(e) and 26 CFR 54.4975-9(e).
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The extension of credit must be extended in connection with the
purchase or sale or securities, must be lawful under the 1934 Act, and
may not be a prohibited transaction within the meaning of section
503(b) of the Code. Lastly, the exemption for extensions of credit also
contains certain recordkeeping requirements.
Description of Proposed Amendment
The Department first intends to clarify the exemption for purchases
or sales of investment company securities currently contained in PTE
75-1, Part II(d). In order to provide more clarity, the Department
proposes to reposition the following language found in section (d) of
Part II of the exemption:
Neither the restrictions of this paragraph nor (if the other
conditions of this exemption are met) the restrictions of section
406(b) of the Act and the taxes imposed by section 4975(a) and (b)
of the Code, by reason of section 4975(c)(1)(E) and (F) of the Code,
shall apply to the purchase or sale by the plan of securities issued
by an open-end investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a-1 et seq.), provided that a
fiduciary with respect to the plan is not a principal underwriter
for, or affiliated with, such investment company within the meaning
of sections 2(a)(29) and 2(a)(3) of the Investment Company Act of
1940 (15 U.S.C. 80a-2(a)(29) and 80a-2(a)(3)).
The Department proposes to include the relief provided by this
provision in a new paragraph (2) of the exemption for principal
transactions, which specifically describes the relief provided by Part
II of PTE 75-1. The Department has amended the language of this section
to clarify that the fiduciary referenced therein is the fiduciary who
makes the decision on behalf of the plan to enter into the transaction.
The Department seeks public comments regarding the current utility of
the exemption provided in the new paragraph (2).
The Department proposes to further amend the language of condition
(d) which states, in relevant part, that:
Such broker-dealer, reporting dealer or bank is not a fiduciary
with respect to the plan, and such broker-dealer, reporting dealer
or bank is a party in interest or disqualified person with respect
to the plan solely by reason of section 3(14)(B) of the Act or
section 4975(e)(2)(B) of the Code or a relationship to a person
described in such sections. For purposes of this paragraph, a
broker-dealer, reporting dealer, or bank shall not be deemed to be a
fiduciary with respect to a plan solely by reason of providing
securities custodial services for a plan.
The Department recognizes that, due to the consolidation in the
financial services industry, this condition may now unduly restrict the
ability of plans to engage in securities transactions. Thus, for
example, the exemption may not be available to a bank or broker-dealer
that was only a service provider with respect to the assets involved in
the transaction, but exercised discretionary authority over a
collective investment fund in which other assets of the plan were
invested. In more recently granted exemptions, the Department has more
narrowly focused the exclusion from relief on fiduciaries who have
discretionary authority or control with respect to the investment of
the plan assets involved in the transaction or who render investment
advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to the
investment of those assets.\5\
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\5\ See e.g., PTE 94-20 (59 FR 8022, February 17, 1994); PTE 98-
54 (63 FR 63503, November 13, 1998).
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In addition, the current condition may result in difficulties for
employee benefit plans with bank trustees, if such bank serves as a
directed trustee with respect to all of a plan's assets, even if the
trustee has no investment discretion and no responsibility for
directing the purchase and sale of securities on behalf of the plan. In
such cases, PTE 75-1, Part II, may not be available to the plan for the
purchase of securities from, or the sale of securities to, the bank
trustee or any broker-dealer affiliate of the bank, notwithstanding
that the plan fiduciary directing the trade is independent of the bank
trustee.
In response to the requests to amend this condition, and in
recognition of the importance to plans of obtaining these financial
services and products from broker-dealers, reporting dealers and banks,
the Department proposes to amend condition (d) of PTE 75-1, Part II. As
amended, the exemption would permit plans to engage in transactions
with broker-dealers, reporting dealers, banks and their affiliates
except where the broker-dealer, reporting dealer, bank or an affiliate
has or exercises any discretionary authority or control (except as a
directed trustee) with respect to the investment of plan assets
involved in the transaction, or renders investment advice (within the
meaning of 29 CFR 2510.3-21(c)) with respect to the investment of those
assets.\6\
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\6\ Nothing herein should be construed to imply that a directed
trustee is not a fiduciary under the Act. See 29 U.S.C. 1103(a)(1).
A plan may expressly provide that a trustee is subject to the
direction of a named fiduciary who is not a trustee, in which case
the trustee shall be subject to proper directions of such fiduciary
which are made in accordance with the terms of the plan and which
are not contrary to the Act.
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For the reasons explained above, the Department likewise proposes
to amend condition (a)(2) of PTE 75-1, Part V, which requires that the
party in interest or disqualified person providing the extension of
credit to the plan:
[i]s not a fiduciary with respect to any assets of such plan, unless
no interest or other consideration is received by such fiduciary or
any affiliate thereof in connection with such extension of credit.
Under the proposed amendment, section (a)(2) would state that the
party in interest or disqualified person extending credit to the plan:
does not have or exercise any discretionary authority or control
(except as a directed trustee) with respect to the investment of the
plan assets involved in the transaction, nor does it render
investment advice (within the meaning of 29 CFR section 2510.3-
21(c)) with respect to those assets, unless no interest or other
consideration is received by the party in interest or disqualified
person or any affiliate thereof in connection with such extension of
credit.
As noted above, this amendment would be consistent with more recent
exemptions granted by the Department.
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
granted under section 408(a) of the Act and section 4975(c)(2) of the
Code does not relieve a fiduciary or other party in interest or
disqualified person with respect to a plan to which the exemption is
applicable from certain other provisions of the Act and the Code,
including any prohibited transaction provisions to which the exemption
does not apply and the general fiduciary responsibility provisions of
section 404 of the Act which, among other things, require a fiduciary
to discharge his duties respecting the plan solely in the interest of
the plan's participants and beneficiaries and in a prudent fashion in
accordance with subsection (a)(1)(B) of section 404 of the Act; nor
does it affect the requirement of section 401(a) of the Code that a
plan must operate for the exclusive benefit of employees of the
employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of
ERISA and section 4975(c)(2) of the Code, the Department must find that
the exemption is administratively feasible, in the interests of the
plan and of its participants and beneficiaries, and protective of the
rights of participants and beneficiaries of the plan;
(3) If granted, the proposed amendment is applicable to a
particular
[[Page 23219]]
transaction only if the transaction satisfies the conditions specified
in the exemption; and
(4) The proposed amendment, if granted, will be supplemental to,
and not in derogation of, any other provisions of the Act and the Code,
including statutory and other exemptions and transitional rules.
Furthermore, the fact that a transaction is the subject of an exemption
is not dispositive of whether the transaction would have been a
prohibited transaction in the absence of such exemption.
Written Comments and Hearing Requests
The Department invites all interested persons to submit written
comments or requests for a public hearing on the proposed amendment to
the address and within the time period set forth above. All comments
received will be made a part of the record. Comments and requests for a
hearing should state the reasons for the writer's interest in the
proposed amendment. Comments received will be available for public
inspection at the above address.
Proposed Amendment
Under section 408(a) of the Act and section 4975(c)(2) of the Code,
and in accordance with the procedures set forth in 29 CFR part 2570,
subpart B (55 FR 32836, 32847, August 10, 1990), the Department
proposes to amend PTE 75-1 as set forth below:
I. PTE 75-1, Part II, is amended in its entirety to read as
follows:
(1) The restrictions of section 406(a) of the Employee Retirement
Income Security Act of 1974 (the Act) and the taxes imposed by section
4975(a) and (b) of the Internal Revenue Code of 1986 (the Code), by
reason of section 4975(c)(1)(A) through (D) of the Code, shall not
apply to any purchase or sale of a security between an employee benefit
plan and a broker-dealer registered under the Securities Exchange Act
of 1934 (15 U.S.C. 78a et seq.), a reporting dealer who makes primary
markets in securities of the United States Government or of any agency
of the United States Government (``Government securities'') and reports
daily to the Federal Reserve Bank of New York its positions with
respect to Government securities and borrowings thereon, or a bank
supervised by the United States or a State, and
(2) The restrictions of section 406(a) and 406(b) of the Act and
the taxes imposed by section 4975(a) and (b) of the Code, by reason of
section 4975(c)(1)(A) through (F) of the Code, shall not apply to the
purchase or sale by a plan of securities issued by an open-end
investment company registered under the Investment Company Act of 1940
(15 U.S.C. 80a-1 et seq.), provided that no fiduciary with respect to
the plan who makes the decision on behalf of the plan to enter into the
transaction is a principal underwriter for, or affiliated with, such
investment company within the meaning of sections 2(a)(29) and 2(a)(3)
of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(29) and 80a-
2(a)(3)).
The exemptions set forth in (1) and (2) above are subject to the
following conditions:
(a) In the case of such broker-dealer, it customarily purchases and
sells securities for its own account in the ordinary course of its
business as a broker-dealer.
(b) In the case of such reporting dealer or bank, it customarily
purchases and sells Government securities for its own account in the
ordinary course of its business and such purchase or sale between the
plan and such reporting dealer or bank is a purchase or sale of
Government securities.
(c) Such transaction is at least as favorable to the plan as an
arm's length transaction with an unrelated party would be, and it was
not, at the time of such transaction, a prohibited transaction within
the meaning of section 503(b) of the Code.
(d) Except with respect to transactions described in section (2)
above, neither the broker-dealer, reporting dealer, bank, nor any
affiliate thereof has or exercises any discretionary authority or
control (except as a directed trustee) with respect to the investment
of the plan assets involved in the transaction, or renders investment
advice (within the meaning of 29 CFR section 2510.3-21(c)) with respect
to those assets.
(e) The plan maintains or causes to be maintained for a period of
six years from the date of such transaction such records as are
necessary to enable the persons described in paragraph (f) of this
exemption to determine whether the conditions of this exemption have
been met, except that--
(1) Such broker-dealer, reporting dealer, or bank shall not be
subject to the civil penalty which may be assessed under section 502(i)
of the Act, or to the taxes imposed by section 4975(a) and (b) of the
Code, if such records are not maintained, or are not available for
examination as required by paragraph (f) below; and
(2) A prohibited transaction will not be deemed to have occurred
if, due to circumstances beyond the control of the plan fiduciaries,
such records are lost or destroyed prior to the end of such six-year
period.
(f) Notwithstanding anything to the contrary in subsections (a)(2)
and (b) of section 504 of the Act, the records referred to in paragraph
(e) are unconditionally available for examination during normal
business hours by duly authorized employees of (1) the Department of
Labor, (2) the Internal Revenue Service, (3) plan participants and
beneficiaries, (4) any employer of plan participants and beneficiaries,
and (5) any employee organization any of whose members are covered by
such plan. For purposes of this exemption, the terms ``broker-dealer,''
``reporting dealer'' and ``bank'' shall include such persons and any
affiliates thereof, and the term ``affiliate'' shall be defined in the
same manner as that term is defined in 29 CFR 2510.3-21(e) and 26 CFR
54.4975-9(e).
II. PTE 75-1, Part V, is amended in its entirety to read as
follows:
The restrictions of section 406 of the Employee Retirement Income
Security Act of 1974 (the Act) and the taxes imposed by section 4975(a)
and (b) of the Internal Revenue Code of 1986 (the Code), by reason of
section 4975(c)(1) of the Code, shall not apply to any extension of
credit to an employee benefit plan by a party in interest or a
disqualified person with respect to the plan, provided that the
following conditions are met:
(a) The party in interest or disqualified person--
(1) is a broker or dealer registered under the Securities Exchange
Act of 1934; and
(2) does not have or exercise any discretionary authority or
control (except as a directed trustee) with respect to the investment
of the plan assets involved in the transaction, nor does it render
investment advice (within the meaning of 29 CFR section 2510.3-21(c))
with respect to those assets, unless no interest or other consideration
is received by the party in interest or disqualified person or any
affiliate thereof in connection with such extension of credit.
(b) Such extension of credit--
(1) Is in connection with the purchase or sale of securities;
(2) Is lawful under the Securities Exchange Act of 1934 and any
rules and regulations promulgated thereunder; and
(3) Is not a prohibited transaction within the meaning of section
503(b) of the Code.
(c) The plan maintains or causes to be maintained for a period of
six years from the date of such transaction such
[[Page 23220]]
records as are necessary to enable the persons described in paragraph
(d) of this exemption to determine whether the conditions of this
exemption have been met, except that--
(1) if such party in interest or disqualified person is not a
fiduciary with respect to any assets of the plan, such party in
interest or disqualified person shall not be subject to the civil
penalty which may be assessed under section 502(i) of the Act, or to
the taxes imposed by section 4975(a) and (b) of the Code, if such
records are not maintained, or are not available for examination as
required by paragraph (d) below; and
(2) a prohibited transaction will not be deemed to have occurred
if, due to circumstances beyond the control of the plan fiduciaries,
such records are lost or destroyed prior to the end of such six-year
period.
(d) Notwithstanding anything to the contrary in subsections (a)(2)
and (b) of section 504 of the Act, the records referred to in paragraph
(c) are unconditionally available for examination during normal
business hours by duly authorized employees of (1) the Department of
Labor, (2) the Internal Revenue Service, (3) plan participants and
beneficiaries, (4) any employer of plan participants and beneficiaries,
and (5) any employee organization any of whose members are covered by
such plan. For purposes of this exemption, the terms ``party in
interest'' and ``disqualified person'' shall include such party in
interest or disqualified person and any affiliates thereof, and the
term ``affiliate'' shall be defined in the same manner as that term is
defined in 29 CFR 2510.3-21(e) and 26 CFR 54.4975-9(e).
Signed at Washington, DC this 22nd day of April, 2004.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations, Employee Benefits
Security Administration.
[FR Doc. 04-9632 Filed 4-27-04; 8:45 am]
BILLING CODE 4520-29-P
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