Federal Register, Volume 80 Issue 75 (Monday, April 20, 2015)
[Federal Register Volume 80, Number 75 (Monday, April 20, 2015)]
[Proposed Rules]
[Pages 22035-22042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08839]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2550
[Application Number D-11820]
ZRIN 1210-ZA25
Proposed Amendments to Class Exemptions 75-1, 77-4, 80-83 and 83-
1
AGENCY: Employee Benefits Security Administration (EBSA), U.S.
Department of Labor.
ACTION: Notice of proposed amendments to class exemptions.
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SUMMARY: This document contains a notice of pendency before the
Department of Labor of proposed amendments to prohibited transaction
exemptions (PTEs) 75-1, 77-4, 80-83 and 83-1. Generally, the Employee
Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue
Code (the Code) prohibit fiduciaries with respect to employee benefit
plans and individual retirement accounts (IRAs) from engaging in self-
dealing, including using their authority, control or responsibility to
affect or increase their own compensation. These existing exemptions
generally permit fiduciaries to receive compensation or other benefits
as a result of the use of their fiduciary authority, control or
responsibility in connection with investment transactions involving
plans or IRAs. The proposed amendments would require the fiduciaries to
satisfy uniform Impartial Conduct Standards in order to obtain the
relief available under each exemption. The proposed amendments would
affect participants and beneficiaries of plans, IRA owners, and
fiduciaries with respect to such plans and IRAs.
DATES: Comments: Written comments must be received by the Department on
or before July 6, 2015.
Applicability: The Department proposes to make these amendments
applicable eight months after publication of the final exemption in the
Federal Register.
ADDRESSES: All written comments concerning the proposed amendments to
the class exemptions should be sent to the Office of Exemption
Determinations by any of the following methods, identified by ZRIN:
1210-ZA25:
Federal eRulemaking Portal: http://www.regulations.gov at Docket ID
number: EBSA-2014-0016. Follow the instructions for submitting
comments.
Email to: e-OED@ dol.gov.
Fax to: (202) 693-8474.
Mail: Office of Exemption Determinations, Employee Benefits
Security Administration, (Attention: D-11820), U.S. Department of
Labor, 200 Constitution Avenue NW., Suite 400, Washington, DC 20210.
Hand Delivery/Courier: Office of Exemption Determinations, Employee
Benefits Security Administration, (Attention: D-11820), U.S. Department
of Labor, 122 C St. NW., Suite 400, Washington, DC 20001. Instructions.
All comments must be received by the end of the comment period. The
comments received will be available for public inspection in the Public
Disclosure Room of the Employee Benefits Security Administration, U.S.
Department of Labor, Room N-1513, 200 Constitution Avenue NW.,
Washington, DC 20210. Comments will also be available online at
www.regulations.gov, at Docket ID number: EBSA-2014-0016 and
www.dol.gov/ebsa, at no charge.
Warning: All comments will be made available to the public. Do not
include any personally identifiable information (such as Social
Security number, name, address, or other contact information) or
confidential business information that you do not want publicly
disclosed. All comments may be posted on the Internet and can be
retrieved by most Internet search engines.
FOR FURTHER INFORMATION CONTACT: Brian Shiker, Office of Exemption
Determinations, Employee Benefits Security Administration, U.S.
Department of Labor, (202) 693-8854 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: The Department is proposing the amendments
to the class exemptions on its own motion, pursuant to ERISA section
408(a) and Code section 4975(c)(2), and in accordance with the
procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637
(October 27, 2011)).
Executive Summary
Purpose of Regulatory Action
The Department is proposing these amendments to existing class
exemptions in connection with its proposed regulation defining a
fiduciary under ERISA section 3(21)(A)(ii) and Code section
4975(e)(3)(B) (Proposed Regulation), published elsewhere in this issue
of the Federal Register. The Proposed Regulation specifies when an
entity is a fiduciary by reason of the provision of investment advice
for a fee or other compensation regarding assets of a plan or IRA. If
adopted, the Proposed Regulation would replace an
[[Page 22036]]
existing regulation that was adopted in 1975. The Proposed Regulation
is intended to take into account the advent of 401(k) plans and IRAs,
the dramatic increase in rollovers, and other developments that have
transformed the retirement plan landscape and the associated investment
market over the four decades since the existing regulation was issued.
In light of the extensive changes in retirement investment practices
and relationships, the Proposed Regulation would update existing rules
to distinguish more appropriately between the sorts of advice
relationships that should be treated as fiduciary in nature and those
that should not.
This notice proposes that new ``Impartial Conduct Standards'' be
made conditions of the following exemptions: PTEs 75-1, Part III, 75-1,
Part IV, 77-4, 80-83 and 83-1. Fiduciaries would be required to act in
accordance with these standards in transactions permitted by the
exemptions. The standards will be uniformly imposed in multiple class
exemptions, including new proposed exemptions published elsewhere in
this issue of the Federal Register, to ensure that fiduciaries relying
on the exemptions are held to a uniform set of standards and that these
standards are applicable to transactions involving both plans and IRAs.
The proposed amendments, if granted, would apply prospectively to
fiduciaries relying on the exemptions.
Section 408(a) of ERISA specifically authorizes the Secretary of
Labor to grant administrative exemptions from ERISA's prohibited
transaction provisions.\1\ Regulations at 29 CFR 2570.30 to 2570.52
describe the procedures for applying for an administrative exemption.
Before granting an exemption, the Department must find that it is
administratively feasible, in the interests of plans and their
participants and beneficiaries and IRA owners, and protective of the
rights of participants and beneficiaries of such plans and IRA owners.
Interested parties are permitted to submit comments to the Department
on these proposed amendments, through July 6, 2015. Additionally, the
Department plans to hold an administrative hearing within 30 days of
the close of the comment period. The Department will ensure ample
opportunity for public comment by reopening the record following the
hearing and publication of the hearing transcript. Specific information
regarding the date, location and submission of requests to testify will
be published in a notice in the Federal Register.
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\1\ Code section 4975(c)(2) authorizes the Secretary of the
Treasury to grant exemptions from the parallel prohibited
transaction provisions of the Code. Reorganization Plan No. 4 of
1978 (5 U.S.C. app. at 214 (2000)) generally transferred the
authority of the Secretary of the Treasury to grant administrative
exemptions under Code section 4975 to the Secretary of Labor.
References in this document to sections of ERISA should be read to
refer also to the corresponding sections of the Code. These proposed
amendments to the class exemptions would apply to relief from the
indicated prohibited transaction provisions of both ERISA and the
Code.
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Summary of the Major Provisions
The proposal would amend prohibited transaction exemptions 75-1,
Part III, 75-1, Part IV, 77-4, 80-83 and 83-1. Each proposed amendment
would apply the same Impartial Conduct Standards. The amendments would
require a fiduciary that satisfies ERISA section 3(21)(A)(i) or (ii),
or the corresponding provisions of Code section 4975(e)(3)(A) or (B),
with respect to the assets involved in the investment transaction, to
meet the standards with respect to the investment transactions
described in the applicable exemption.
Regulatory Impact Analysis
Executive Order 12866 and 13563 Statement
Under Executive Orders 12866 and 13563, the Department must
determine whether a 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). Executive Orders
13563 and 12866 direct agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety effects,
distributive impacts, and equity). Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing and streamlining rules, and of promoting flexibility. It
also requires federal agencies to develop a plan under which the
agencies will periodically review their existing significant
regulations to make the agencies' regulatory programs more effective or
less burdensome in achieving their regulatory objectives.
Under Executive Order 12866, ``significant'' regulatory actions are
subject to the requirements of the Executive Order and review by the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866, 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 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''
regulatory actions); (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. Pursuant to the terms of the Executive Order,
OMB has determined that this action is ``significant'' within the
meaning of Section 3(f)(4) of the Executive Order. Accordingly, the
Department has undertaken an assessment of the costs and benefits of
the proposed amendment, and OMB has reviewed this regulatory action.
Background
Proposed Regulation
As explained more fully in the preamble to the Department's
Proposed Regulation on the definition of fiduciary under ERISA section
3(21)(A)(ii) and Code section 4975(e)(3)(B), also published in this
issue of the Federal Register, ERISA is a comprehensive statute
designed to protect the interests of plan participants and
beneficiaries, the integrity of employee benefit plans, and the
security of retirement, health, and other critical benefits. The broad
public interest in ERISA-covered plans is reflected in its imposition
of stringent fiduciary responsibilities on parties engaging in
important plan activities, as well as in the tax-favored status of plan
assets and investments. One of the chief ways in which ERISA protects
employee benefit plans is by requiring that plan fiduciaries comply
with fundamental obligations rooted in the law of trusts. In
particular, plan fiduciaries must manage plan assets prudently and with
undivided loyalty to the plans and their participants and
beneficiaries.\2\ In addition, they must refrain from engaging in
``prohibited transactions,'' which ERISA forbids because of the dangers
posed by the fiduciaries' conflicts of interest with respect to the
transactions.\3\ When fiduciaries violate
[[Page 22037]]
ERISA's fiduciary duties or the prohibited transaction rules, they may
be held personally liable for the breach.\4\ In addition, violations of
the prohibited transaction rules are subject to excise taxes under the
Code.
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\2\ ERISA section 404(a).
\3\ ERISA section 406. ERISA also prohibits certain transactions
between a plan and a ``party in interest.''
\4\ ERISA section 409; see also ERISA section 405.
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The Code also has rules regarding fiduciary conduct with respect to
tax-favored accounts that are not generally covered by ERISA, such as
IRAs. Although ERISA's general fiduciary obligations of prudence and
loyalty do not govern the fiduciaries of IRAs, these fiduciaries are
subject to the prohibited transaction rules. In this context,
fiduciaries engaging in the illegal transactions are subject to an
excise tax enforced by the Internal Revenue Service. Unlike
participants in plans covered by Title I of ERISA, under the Code, IRA
owners cannot bring suit against fiduciaries under ERISA for violation
of the prohibited transaction rules and fiduciaries are not personally
liable to IRA owners for the losses caused by their misconduct.
Elsewhere in this issue of the Federal Register, however, the
Department is proposing two new class exemptions that would create
contractual obligations for the adviser to adhere to certain standards
(the Impartial Conduct Standards). IRA owners would have a right to
enforce these new contractual rights.
Under this statutory framework, the determination of who is a
``fiduciary'' is of central importance. Many of ERISA's protections,
duties, and liabilities hinge on fiduciary status. In relevant part,
section 3(21)(A) of ERISA and section 4975(e)(3) of the Code provide
that a person is a fiduciary with respect to a plan or IRA to the
extent he or she (1) exercises any discretionary authority or
discretionary control with respect to management of such plan or IRA,
or exercises any authority or control with respect to management or
disposition of its assets; (2) renders investment advice for a fee or
other compensation, direct or indirect, with respect to any moneys or
other property of such plan or IRA, or has any authority or
responsibility to do so; or, (3) has any discretionary authority or
discretionary responsibility in the administration of such plan or IRA.
The statutory definition deliberately casts a wide net in assigning
fiduciary responsibility with respect to plan and IRA assets. Thus,
``any authority or control'' over plan or IRA assets is sufficient to
confer fiduciary status, and any persons who render ``investment advice
for a fee or other compensation, direct or indirect'' are fiduciaries,
regardless of whether they have direct control over the plan's or IRA's
assets and regardless of their status as an investment adviser or
broker under the federal securities laws. The statutory definition and
associated fiduciary responsibilities were enacted to ensure that plans
and IRAs can depend on persons who provide investment advice for a fee
to provide recommendations that are untainted by conflicts of interest.
In the absence of fiduciary status, persons who provide investment
advice would neither be subject to ERISA's fundamental fiduciary
standards, nor accountable for imprudent, disloyal, or tainted advice
under ERISA or the Code, no matter how egregious the misconduct or how
substantial the losses. Plans, individual participants and
beneficiaries, and IRA owners often are not financial experts and
consequently must rely on professional advice to make critical
investment decisions. The statutory definition, prohibitions on
conflicts of interest, and core fiduciary obligations of prudence and
loyalty, all reflect Congress' recognition in 1974 of the fundamental
importance of such advice. In the years since then, the significance of
financial advice has become still greater with increased reliance on
participant-directed plans and IRAs for the provision of retirement
benefits.
In 1975, the Department issued a regulation, at 29 CFR 2510.3-21(c)
defining the circumstances under which a person is treated as providing
``investment advice'' to an employee benefit plan within the meaning of
section 3(21)(A)(ii) of ERISA (the ``1975 regulation'').\5\ The
regulation narrowed the scope of the statutory definition of fiduciary
investment advice by creating a five-part test that must be satisfied
before a person can be treated as rendering investment advice for a
fee. Under the regulation, for advice to constitute ``investment
advice,'' an adviser who does not have discretionary authority or
control with respect to the purchase or sale of securities or other
property of the plan must--(1) render advice as to the value of
securities or other property, or make recommendations as to the
advisability of investing in, purchasing or selling securities or other
property (2) on a regular basis (3) pursuant to a mutual agreement,
arrangement or understanding, with the plan or a plan fiduciary that
(4) the advice will serve as a primary basis for investment decisions
with respect to plan assets, and that (5) the advice will be
individualized based on the particular needs of the plan. The
regulation provides that an adviser is a fiduciary with respect to any
particular instance of advice only if he or she meets each and every
element of the five-part test with respect to the particular advice
recipient or plan at issue. A 1976 Department of Labor Advisory Opinion
further limited the application of the statutory definition of
``investment advice'' by stating that valuations of employer securities
in connection with employee stock ownership plan (ESOP) purchases would
not be considered fiduciary advice.\6\
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\5\ The Department of Treasury issued a virtually identical
regulation, at 26 CFR 54.4975-9(c), which interprets Code section
4975(e)(3).
\6\ Advisory Opinion 76-65A (June 7, 1976).
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As the marketplace for financial services has developed in the
years since 1975, the five-part test may now undermine, rather than
promote, the statutes' text and purposes. The narrowness of the 1975
regulation allows professional advisers, consultants and valuation
firms to play a central role in shaping plan investments, without
ensuring the accountability that Congress intended for persons having
such influence and responsibility when it enacted ERISA and the related
Code provisions. Even when plan sponsors, participants, beneficiaries
and IRA owners clearly rely on paid consultants for impartial guidance,
the regulation allows consultants to avoid fiduciary status and
disregard ERISA's fiduciary obligations of care and prohibitions on
disloyal and conflicted transactions. As a consequence, these advisers
can steer customers to investments based on their own self-interest,
give imprudent advice, and engage in transactions that would otherwise
be categorically prohibited by ERISA and Code, without any liability
under ERISA or the Code. In the Proposed Regulation, the Department
seeks to replace the existing regulation with one that more
appropriately distinguishes between the sorts of advice relationships
that should be treated as fiduciary in nature and those that should
not, in light of the legal framework and financial marketplace in which
plans and IRAs currently operate.\7\
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\7\ The Department initially proposed an amendment to its
regulation under ERISA section 3(21)(A)(ii) and Code section
4975(e)(3)(B) on October 22, 2010, at 75 FR 65263. It subsequently
announced its intention to withdraw the proposal and propose a new
rule, consistent with the President's Executive Orders 12866 and
13563, in order to give the public a full opportunity to evaluate
and comment on the new proposal and updated economic analysis.
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The Proposed Regulation describes the types of advice that
constitute ``investment advice'' with respect to plan or IRA assets for
purposes of the
[[Page 22038]]
definition of a fiduciary at ERISA section 3(21)(A)(ii) and Code
section 4975(e)(3)(B). The proposal provides, subject to certain carve-
outs, that a person renders investment advice with respect to a plan or
IRA if, among other things, the person provides, directly to a plan, a
plan fiduciary, a plan participant or beneficiary, IRA or IRA owner one
of the following types of advice:
(1) A recommendation as to the advisability of acquiring, holding,
disposing or exchanging securities or other property, including a
recommendation to take a distribution of benefits or a recommendation
as to the investment of securities or other property to be rolled over
or otherwise distributed from a plan or IRA;
(2) A recommendation as to the management of securities or other
property, including recommendations as to the management of securities
or other property to be rolled over or otherwise distributed from the
plan or IRA;
(3) An appraisal, fairness opinion or similar statement, whether
verbal or written, concerning the value of securities or other
property, if provided in connection with a specific transaction or
transactions involving the acquisition, disposition or exchange of such
securities or other property by the plan or IRA; and
(4) A recommendation of a person who is also going to receive a fee
or other compensation for providing any of the types of advice
described in paragraphs (1) through (3), above.
In addition, to be a fiduciary, such person must either (1) represent
or acknowledge that it is acting as a fiduciary within the meaning of
ERISA (or the Code) with respect to the advice, or (2) render the
advice pursuant to a written or verbal agreement, arrangement or
understanding that the advice is individualized to, or that such advice
is specifically directed to, the advice recipient for consideration in
making investment or management decisions with respect to securities or
other property of the plan or IRA.
For advisers who do not represent that they are acting as ERISA (or
Code) fiduciaries, the Proposed Regulation provides that advice
rendered in conformance with certain carve-outs will not cause the
adviser to be treated as a fiduciary under ERISA or the Code. For
example, under the seller's carve-out, counterparties in arm's length
transactions with plans may make investment recommendations without
acting as fiduciaries if certain conditions are met.\8\ Similarly, the
proposal contains a carve-out from fiduciary status for persons who
provide appraisals, fairness opinions, or statements of value in
specified contexts (e.g., with respect to ESOP transactions). The
proposal additionally carves out from fiduciary status the marketing of
investment alternative platforms, certain assistance in selecting
investment alternatives and other activities. Finally, the Proposed
Regulation contains a carve-out from fiduciary status for the provision
of investment education.
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\8\ Although the preamble adopts the phrase ``seller's carve-
out'' as a shorthand way of referring to the carve-out and its
terms, the regulatory carve-out is not limited to sellers but rather
applies more broadly to counterparties in arm's length transactions
with plan investors with financial expertise.
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Prohibited Transactions
Fiduciaries under ERISA and the Code are subject to certain
prohibited transaction restrictions. ERISA section 406(b)(1) and Code
section 4975(c)(1)(E) prohibit a fiduciary from dealing with the income
or assets of a plan or IRA in his own interest or his own account.
ERISA section 406(b)(2) provides that a fiduciary with respect to an
employee benefit plan shall not ``in his individual or in any other
capacity act in any transaction involving the plan on behalf of a party
(or represent a party) whose interests are adverse to the interests of
the plan or the interests of its participants or beneficiaries.'' \9\
ERISA section 406(b)(3) and Code section 4975(c)(1)(F) prohibit a
fiduciary from receiving any consideration for his own personal account
from any party dealing with the plan or IRA in connection with a
transaction involving the plan or IRA. Parallel regulations issued by
the Departments of Labor and the Treasury explain that these provisions
impose on fiduciaries a duty not to act on conflicts of interest that
may affect the fiduciary's best judgment on behalf of the plan or
IRA.\10\
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\9\ The Code does not contain a parallel provision.
\10\ See 29 CFR 2550.408b-2(e); 26 CFR 54.4975-6(a)(5).
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Prohibited Transaction Exemptions
ERISA and the Code counterbalance the broad proscriptive effect of
the prohibited transaction provisions with numerous statutory
exemptions. For example, ERISA section 408(b)(14) and Code section
4975(d)(17) specifically exempt transactions in connection with the
provision of fiduciary investment advice to a participant or
beneficiary of an individual account plan or IRA owner, where the
advice, resulting transaction, and the adviser's fees meet certain
conditions. ERISA and the Code also provide for administrative
exemptions that the Secretary of Labor may grant on an individual or
class basis if the Secretary finds that the exemption is (1)
administratively feasible, (2) in the interests of plans and of their
participants and beneficiaries and IRA owners and (3) protective of the
rights of the participants and beneficiaries of such plans and IRA
owners.
Over the years, the Department has granted several conditional
administrative class exemptions from the prohibited transactions
provisions of ERISA and the Code pursuant to which fiduciaries may
receive compensation or other benefits in connection with investment
transactions by plans and IRAs, under circumstances that would
otherwise violate ERISA section 406(b) and Code section 4975(c)(1)(E)
and (F). The exemptions focus on specific types of transactions or
specific types of compensation arrangements. Reliance on these
exemptions is subject to certain conditions that the Department has
found necessary to protect the interests of plans and IRAs.
In connection with the development of the Department's proposed
definition of fiduciary under ERISA section 3(21)(A)(ii) and Code
section 4975(e)(3)(B), the Department has considered public input
indicating the need for additional prohibited transaction relief for
the wide variety of compensation structures that exist today in the
marketplace for investment transactions. After consideration of the
issue, the Department determined to propose, elsewhere in this issue of
the Federal Register, two new class exemptions as well as amendments to
two other existing class exemptions. These new and amended class
exemptions provide relief for a fiduciary's receipt of compensation or
other benefit resulting from its provision of investment advice to
plans and IRAs in the context of many different types of investment
transactions.
While each of the proposed new and amended class exemptions sets
forth conditions that are tailored to their respective transactions,
each also conditions relief on a fiduciary's compliance with certain
Impartial Conduct Standards. The Department has determined that the
Impartial Conduct Standards comprise important baseline safeguards that
should be required of fiduciaries relying on other existing exemptions
providing relief for plan and IRA investment transactions. Accordingly,
this notice proposes that the Impartial Conduct Standards be made
conditions of the following
[[Page 22039]]
existing exemptions: PTEs 75-1, Part III, 75-1, Part IV, 77-4, 80-83
and 83-1.
Under the amendments, fiduciaries would be required to act in
accordance with the Impartial Conduct Standards in transactions
governed by the exemptions. This will result in additional protections
for all plans, but most particularly for IRA owners. That is because
fiduciaries' dealings with IRAs are governed by the Code, not by
ERISA,\11\ and the Code, unlike ERISA, does not directly impose
responsibilities of prudence and loyalty on fiduciaries. The amendments
to the exemptions would condition relief under the exemptions on the
satisfaction of these responsibilities. For purposes of these
amendments, the term IRA means any trust, account or annuity described
in Code section 4975(e)(1)(B) through (F), including, for example, an
individual retirement account described in section 408(a) of the Code
and a health savings account described in section 223(d) of the
Code.\12\ The impartial conduct standards will work across multiple
class exemptions to ensure that these fiduciaries are held to a single
set of standards and that these standards are applicable to both plans
and IRAs. The proposed amendments, if granted, will apply prospectively
to fiduciaries relying on the exemptions.
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\11\ See ERISA section 404.
\12\ The Department notes that PTE 2002-13 amended PTEs 80-83
and 83-1 so that the terms ``employee benefit plan'' and ``plan''
refer to an employee benefit plan described in ERISA section 3(3)
and/or a plan described in section 4975(e)(1) of the Code. See 67 FR
9483 (March 1, 2002). At the same time, in the preamble to PTE 2002-
13, the Department explained that it had determined, after
consulting with the Internal Revenue Service, that plans described
in 4975(e)(1) of the Code are included within the scope of relief
provided by PTEs 75-1 and 77-4, because they were issued jointly by
the Department and the Service. For simplicity and consistency with
the other new proposed exemptions and proposed amendments to
existing exemptions published elsewhere in this issue of the Federal
Register, the Department has proposed this specific definition of
IRA.
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Description of the Proposal
The proposal would amend prohibited transaction exemptions 75-1,
Part III, 75-1, Part IV, 77-4, 80-83 and 83-1. Specifically, these
exemptions provide the following relief:
PTE 75-1, Part III \13\ permits a fiduciary to cause a
plan or IRA to purchase securities from a member of an underwriting
syndicate other than the fiduciary, when the fiduciary is also a member
of the syndicate;
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\13\ Exemptions from Prohibitions Respecting Certain Classes of
Transactions Involving Employee Benefit Plans and Certain Broker-
Dealers, Reporting Dealers and Banks, 40 FR 50845 (Oct. 31, 1975),
as amended at 71 FR 5883 (Feb. 3, 2006).
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PTE 75-1, Part IV \14\ permits a plan or IRA to purchase
securities in a principal transaction from a fiduciary that is a market
maker with respect to such securities;
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\14\ Exemptions from Prohibitions Respecting Certain Classes of
Transactions Involving Employee Benefit Plans and Certain Broker-
Dealers, Reporting Dealers and Banks, 40 FR 50845 (Oct. 31, 1975),
as amended at 71 FR 5883 (Feb. 3, 2006).
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PTE 77-4 \15\ provides relief for a plan's or IRA's
purchase or sale of open-end investment company shares where the
investment adviser for the open-end investment company is also a
fiduciary to the plan or IRA;
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\15\ Class Exemption for Certain Transactions Between Investment
Companies and Employee Benefit Plans, 42 FR 18732 (Apr. 8, 1977).
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PTE 80-83 \16\ provides relief for a fiduciary causing a
plan or IRA to purchase a security when the proceeds of the securities
issuance may be used by the issuer to retire or reduce indebtedness to
the fiduciary or an affiliate; and
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\16\ Class Exemption for Certain Transactions Involving Purchase
of Securities Where Issuer May Use Proceeds to Reduce or Retire
Indebtedness to Parties in Interest, 45 FR 73189 (Nov. 4, 1980), as
amended at 67 FR 9483 (March 1, 2002).
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PTE 83-1 \17\ provides relief for the sale of certificates
in an initial issuance of certificates, by the sponsor of a mortgage
pool to a plan or IRA, when the sponsor, trustee or insurer of the
mortgage pool is a fiduciary with respect to the plan or IRA assets
invested in such certificates.
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\17\ Class Exemption for Certain Transactions Involving Mortgage
Pool Investment Trusts, 48 FR 895 (Jan. 7, 1983), as amended at 67
FR 9483 (March 1, 2002).
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This proposal sets forth an amendment to each of these exemptions.
Each of the amendments is tailored to the structure and language of the
applicable exemption. Therefore, the terminology and numbering varies
from amendment to amendment. Despite such variation, each amendment
would apply the same Impartial Conduct Standards uniformly across each
exemption.
More specifically, the amendments would require a fiduciary that
satisfies ERISA section 3(21)(A)(i) or (ii), or the corresponding
provisions of Code section 4975(e)(3)(A) or (B), with respect to the
assets involved in the investment transaction, to meet the Impartial
Conduct Standards described in the applicable exemption. Under the
proposed amendments' first conduct standard, the fiduciary must act in
the best interest of the plan or IRA. Best interest is defined to mean
acting with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person would exercise
based on the investment objectives, risk tolerance, financial
circumstances, and the needs of the plan or IRA when providing
investment advice to the plan or IRA or managing the plan's or IRA's
assets. Further, under the best interest standard, the fiduciary must
act without regard to the financial or other interests of the fiduciary
or its affiliates or any other party. Under this standard, the
fiduciary must put the interests of the plan or IRA ahead of its own
financial interests or those of any affiliate or other party.
In this regard, the Department notes that while fiduciaries of
plans covered by ERISA are subject to the ERISA section 404 standards
of prudence and loyalty, the Code contains no provisions that hold IRA
fiduciaries to those standards. However, as a condition of relief under
the proposed amendments, both IRA and plan fiduciaries would have to
agree to, and uphold, the best interest requirement. The best interest
standard is defined to effectively mirror the ERISA section 404 duties
of prudence and loyalty, as applied in the context of fiduciary
investment advice. Failure to satisfy the best interest standard would
render the exemption unavailable to the fiduciary with respect to
compensation received in connection with the transaction.
The second conduct standard requires that all compensation received
by the fiduciary and its affiliates in connection with the applicable
transaction be reasonable in relation to the total services they
provide to the plan or IRA. The third conduct standard requires that
statements about recommended investments, fees, material conflicts of
interest, and any other matters relevant to a plan's or IRA owner's
investment decisions, not be misleading. The Department notes in this
regard that a fiduciary's failure to disclose a material conflict of
interest may be considered a misleading statement. Transactions that
violate these requirements are not likely to be in the interests of
plans, their participants and beneficiaries, or IRA owners, or
protective of their rights.
Unlike the new exemption proposals published elsewhere in the
Federal Register, these proposed amendments do not require fiduciaries
to contractually warrant compliance with applicable federal and state
laws. However, the Department notes that significant violations of
applicable federal or state law could also amount to violations of the
Impartial Conduct Standards, such as the best interest standard, in
which case these exemptions, as amended, would be deemed unavailable
for transactions occurring in connection with such violations.
[[Page 22040]]
Applicability Date
The Department is proposing that compliance with the final
regulation defining a fiduciary under ERISA section 3(21)(A)(ii) and
Code section 4975(e)(3)(B) will begin eight months after publication of
the final regulation in the Federal Register (Applicability Date). The
Department proposes to make these amendments, if granted, applicable on
the Applicability Date.
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under ERISA section 408(a) and Code section 4975(c)(2) does not relieve
a fiduciary or other party in interest or disqualified person with
respect to a plan from certain other provisions of ERISA and the Code,
including any prohibited transaction provisions to which the exemption
does not apply and the general fiduciary responsibility provisions of
ERISA section 404 which require, among other things, that a fiduciary
discharge his or her duties respecting the plan solely in the interests
of the plan's participants and beneficiaries and in a prudent fashion
in accordance with ERISA section 404(a)(1)(B);
(2) Before an exemption may be granted under ERISA section 408(a)
and Code section 4975(c)(2), the Department must find that the
exemption is administratively feasible, in the interests of plans and
their participants and beneficiaries and IRA owners, and protective of
the rights of plans' participants and beneficiaries and IRA owners;
(3) If granted, an exemption will be applicable to a particular
transactions only if the transactions satisfy the conditions specified
in the amendments; and
(4) If granted, the amended exemptions will be supplemental to, and
not in derogation of, any other provisions of ERISA and the Code,
including statutory or administrative exemptions and transitional
rules. Furthermore, the fact that a transaction is subject to an
administrative or statutory exemption is not dispositive of whether the
transaction is in fact a prohibited transaction.
Proposed Amendments to Class Exemptions
I. Prohibited Transaction Exemption 75-1, Part III
The Department proposes to amend Prohibited Transaction Exemption
75-1, Part III, under the authority of ERISA section 408(a) and Code
section 4975(c)(2), and in accordance with the procedures set forth in
29 CFR part 2570, subpart B (76 FR 66637, October 27, 2011).
A. A new section III(f) is inserted to read as follows:
(f) Standards of Impartial Conduct. If the fiduciary is a fiduciary
within the meaning of ERISA section 3(21)(A)(i) or (ii), or Code
section 4975(e)(3)(A) or (B), with respect to the assets of a plan or
IRA involved in the transaction, the fiduciary must comply with the
following conditions with respect to the transaction:
(1) The fiduciary acts in the Best Interest of the plan or IRA.
(2) All compensation received by the fiduciary in connection with
the transaction is reasonable in relation to the total services the
fiduciary provides to the plan or IRA.
(3) The fiduciary's statements about recommended investments, fees,
material conflicts of interest, and any other matters relevant to a
plan's or IRA owner's investment decisions, are not misleading. A
``material conflict of interest'' exists when a fiduciary has a
financial interest that could affect the exercise of its best judgment
as a fiduciary in rendering advice to a plan or IRA owner. For this
purpose, a fiduciary's failure to disclose a material conflict of
interest relevant to the services the fiduciary is providing or other
actions it is taking in relation to a plan's or IRA owner's investment
decisions is deemed to be a misleading statement.
For purposes of this section, a fiduciary acts in the ``Best
Interest'' of the plan or IRA when the fiduciary acts with the care,
skill, prudence, and diligence under the circumstances then prevailing
that a prudent person would exercise based on the investment
objectives, risk tolerance, financial circumstances, and needs of the
plan or IRA, without regard to the financial or other interests of the
fiduciary or any other party. Also for the purposes of this section,
the term IRA means any trust, account or annuity described in Code
section 4975(e)(1)(B) through (F), including, for example, an
individual retirement account described in section 408(a) of the Code
and a health savings account described in section 223(d) of the Code.
B. Sections III(f) and III(g) are redesignated, respectively, as
sections III(g) and III(h).
II. Prohibited Transaction Exemption 75-1, Part IV
The Department proposes to amend Prohibited Transaction Exemption
75-1, Part IV, under the authority of ERISA section 408(a) and Code
section 4975(c)(2), and in accordance with the procedures set forth in
29 CFR part 2570, subpart B (76 FR 66637, October 27, 2011).
A. A new section IV(e) is inserted to read as follows:
(e) Standards of Impartial Conduct. If the fiduciary is a fiduciary
within the meaning of ERISA section 3(21)(A)(i) or (ii), or Code
section 4975(e)(3)(A), or (B), with respect to the assets of a plan or
IRA involved in the transaction, the fiduciary must comply with the
following conditions with respect to the transaction:
(1) The fiduciary acts in the Best Interest of the plan or IRA.
(2) All compensation received by the fiduciary in connection with
the transaction is reasonable in relation to the total services the
fiduciary provides to the plan or IRA.
(3) The fiduciary's statements about recommended investments, fees,
material conflicts of interest, and any other matters relevant to a
plan's or IRA owner's investment decisions, are not misleading. A
``material conflict of interest'' exists when a fiduciary has a
financial interest that could affect the exercise of its best judgment
as a fiduciary in rendering advice to a plan or IRA owner. For this
purpose, a fiduciary's failure to disclose a material conflict of
interest relevant to the services the fiduciary is providing or other
actions it is taking in relation to a plan's or IRA owner's investment
decisions is deemed to be a misleading statement.
For purposes of this section, a fiduciary acts in the ``Best
Interest'' of the plan or IRA when the fiduciary acts with the care,
skill, prudence, and diligence under the circumstances then prevailing
that a prudent person would exercise based on the investment
objectives, risk tolerance, financial circumstances, and needs of the
plan or IRA, without regard to the financial or other interests of the
fiduciary or any other party. Also for the purposes of this section,
the term IRA means any trust, account or annuity described in Code
section 4975(e)(1)(B) through (F), including, for example, an
individual retirement account described in section 408(a) of the Code
and a health savings account described in section 223(d) of the Code.
B. Sections IV(e) and IV(f) are redesignated, respectively, as
sections IV(f) and IV(g).
[[Page 22041]]
III. Prohibited Transaction Exemption 77-4
The Department proposes to amend Prohibited Transaction Exemption
77-4 under the authority of ERISA section 408(a) and Code section
4975(c)(2), and in accordance with the procedures set forth in 29 CFR
part 2570, subpart B (76 FR 66637, October 27, 2011).
A new section II(g) is inserted to read as follows:
(g) Standards of Impartial Conduct. If the fiduciary is a fiduciary
within the meaning of ERISA section 3(21)(A)(i) or (ii), or Code
section 4975(e)(3)(A), or (B), with respect to the assets of a plan or
IRA involved in the transaction, the fiduciary must comply with the
following conditions with respect to the transaction:
(1) The fiduciary acts in the Best Interest of the plan or IRA.
(2) All compensation received by the fiduciary and its affiliates
in connection with the transaction is reasonable in relation to the
total services the fiduciary provides to the plan or IRA.
(3) The fiduciary's statements about recommended investments, fees,
material conflicts of interest, and any other matters relevant to a
plan's or IRA owner's investment decisions, are not misleading. A
``material conflict of interest'' exists when a fiduciary has a
financial interest that could affect the exercise of its best judgment
as a fiduciary in rendering advice to a plan or IRA owner. For this
purpose, a fiduciary's failure to disclose a material conflict of
interest relevant to the services the fiduciary is providing or other
actions it is taking in relation to a plan's or IRA owner's investment
decisions is deemed to be a misleading statement.
For purposes of this section, a fiduciary acts in the ``Best
Interest'' of the plan or IRA when the fiduciary acts with the care,
skill, prudence, and diligence under the circumstances then prevailing
that a prudent person would exercise based on the investment
objectives, risk tolerance, financial circumstances, and needs of the
plan or IRA, without regard to the financial or other interests of the
fiduciary, any affiliate or other party. Also for the purposes of this
section, the term IRA means any trust, account or annuity described in
Code section 4975(e)(1)(B) through (F), including, for example, an
individual retirement account described in section 408(a) of the Code
and a health savings account described in section 223(d) of the Code.
IV. Prohibited Transaction Exemption 80-83
The Department proposes to amend Prohibited Transaction Exemption
80-83 under the authority of ERISA section 408(a) and Code section
4975(c)(2), and in accordance with the procedures set forth in 29 CFR
part 2570, subpart B (76 FR 66637, October 27, 2011).
A. A new section II(A)(2) is inserted to read as follows:
(2) Standards of Impartial Conduct. If the fiduciary is a fiduciary
within the meaning of ERISA section 3(21)(A)(i) or (ii), or Code
section 4975(e)(3)(A), or (B), with respect to the assets of a plan or
IRA involved in the transaction, the fiduciary must comply with the
following conditions with respect to the transaction:
(a) The fiduciary acts in the Best Interest of the plan or IRA.
(b) All compensation received by the fiduciary and its affiliates
in connection with the transaction is reasonable in relation to the
total services the fiduciary provides to the plan or IRA.
(c) The fiduciary's statements about recommended investments, fees,
material conflicts of interest, and any other matters relevant to a
plan's or IRA owner's investment decisions, are not misleading. A
``material conflict of interest'' exists when a fiduciary has a
financial interest that could affect the exercise of its best judgment
as a fiduciary in rendering advice to a plan or IRA owner. For this
purpose, a fiduciary's failure to disclose a material conflict of
interest relevant to the services the fiduciary is providing or other
actions it is taking in relation to a plan's or IRA owner's investment
decisions is deemed to be a misleading statement.
For purposes of this section, a fiduciary acts in the ``Best
Interest'' of the employee benefit plan or IRA when the fiduciary acts
with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person would exercise based on the
investment objectives, risk tolerance, financial circumstances, and
needs of the employee benefit plan or IRA, without regard to the
financial or other interests of the fiduciary, any affiliate or other
party. Also for the purposes of this section, the term IRA means any
trust, account or annuity described in Code section 4975(e)(1)(B)
through (F), including, for example, an individual retirement account
described in section 408(a) of the Code and a health savings account
described in section 223(d) of the Code.
B. Section II(A)(2) is redesignated as section II(A)(3).
V. Prohibited Transaction Exemption 83-1
The Department proposes to amend Prohibited Transaction Exemption
83-1 under the authority of ERISA section 408(a) and Code section
4975(c)(2), and in accordance with the procedures set forth in 29 CFR
part 2570, subpart B (76 FR 66637, October 27, 2011).
A. A new section II(B) is inserted to read as follows:
(B) Standards of Impartial Conduct. Solely with respect to the
relief provided under section I(B), if the sponsor, trustee or insurer
of such pool who is a fiduciary is a fiduciary within the meaning of
ERISA section 3(21)(A)(i) or (ii), or Code section 4975(e)(3)(A), or
(B), with respect to the assets of a plan or IRA involved in the
transaction, the fiduciary must comply with the following conditions
with respect to the transaction:
(1) The fiduciary acts in the Best Interest of the plan or IRA.
(2) All compensation received by the fiduciary and its affiliates
in connection with the transaction is reasonable in relation to the
total services the fiduciary and its affiliates provide to the plan or
IRA.
(3) The fiduciary's statements about recommended investments, fees,
material conflicts of interest, and any other matters relevant to a
plan's or IRA owner's investment decisions, are not misleading. A
``material conflict of interest'' exists when a fiduciary has a
financial interest that could affect the exercise of its best judgment
as a fiduciary in rendering advice to a plan or IRA owner. For this
purpose, a fiduciary's failure to disclose a material conflict of
interest relevant to the services the fiduciary is providing or other
actions it is taking in relation to a plan's or IRA owner's investment
decisions is deemed to be a misleading statement.
[[Page 22042]]
For purposes of this section, a fiduciary acts in the ``Best
Interest'' of the plan or IRA when the fiduciary acts with the care,
skill, prudence, and diligence under the circumstances then prevailing
that a prudent person would exercise based on the investment
objectives, risk tolerance, financial circumstances, and needs of the
plan or IRA, without regard to the financial or other interests of the
plan or IRA to the financial interests of the fiduciary, any affiliate
or other party. Also for the purposes of this section, the term IRA
means any trust, account or annuity described in Code section
4975(e)(1)(B) through (F), including, for example, an individual
retirement account described in section 408(a) of the Code and a health
savings account described in section 223(d) of the Code.
Signed at Washington, DC, this 14th day of April, 2015.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration,
Department of Labor.
[FR Doc. 2015-08839 Filed 4-15-15; 11:15 am]
BILLING CODE 4510-29-P