Pte 84-24

Federal Register / Vol. 71, No. 23 / Friday, February 3, 2006 / Notices
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 sixyear 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 30th day of
January, 2006.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations,
Employee Benefits Security Administration,
Department of Labor.
[FR Doc. E6–1484 Filed 2–2–06; 8:45 am]

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BILLING CODE 4520–29–P

DEPARTMENT OF LABOR
Employee Benefits Security
Administration
[Exemption Application D–11069]

Amendment to Prohibited Transaction
Exemption 84–24 (PTE 84–24) For
Certain Transactions Involving
Insurance Agents and Brokers,
Pension Consultants, Insurance
Companies, Investment Companies
and Investment Company Principal
Underwriters
Employee Benefits Security
Administration, U.S. Department of
Labor.
ACTION: Adoption of Amendment to PTE
84–24.
AGENCY:

SUMMARY: This document amends PTE
84–24, a class exemption that provides
relief for certain transactions relating to
the purchase, with plan assets, of
investment company securities or
insurance or annuity contracts, and the
payment of associated sales
commissions to insurance agents or
brokers, pension consultants, or
investment company principal
underwriters that are parties in interest
with respect to such plan. The
amendment extends relief to purchase
transactions involving insurance agents
and brokers, pension consultants, and
investment company principal
underwriters whose affiliates exercise
investment discretion over plan assets
that are not involved in the transaction.
DATES: The amendment is effective
February 3, 2006.
FOR FURTHER INFORMATION CONTACT:
Christopher Motta, Office of Exemption
Determinations, Employee Benefits
Security Administration, U.S.
Department of Labor, (202) 693–8540
(this is not a toll-free number).
SUPPLEMENTARY INFORMATION: On
September 14, 2004, notice was
published in the Federal Register (69
FR 55463) of the pendency before the
Department of a proposed amendment
to PTE 84–24 (49 FR 13208 (April 3,
1984) as corrected at 49 FR 24819 (June
15, 1984)). PTE 84–24 provides an
exemption from the restrictions of
section 406(a)(1)(A) through (D) and
section 406(b) of the Employee
Retirement Income Security Act of 1974
(ERISA or the Act) and from 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.1
1 References to section 406 of ERISA as they
appear throughout this amendment should be read
to refer as well to the corresponding provisions of
section 4975 of the Internal Revenue Code of 1986,
as amended (the Code).

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The amendment to PTE 84–24 was
proposed by the Department 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, 32847,
August 10, 1990).2 The notice of
pendency gave interested persons an
opportunity to comment or to request a
hearing on the proposed amendment.
The Department received one comment
on the proposed amendment. That
comment, from the Investment
Company Institute, supported the
amendment as proposed. The
Department did not receive a request for
a public hearing.
For the sake of convenience, the
entire text of PTE 84–24, as amended,
has been reprinted in this notice.
Executive Order 12866 Statement
Under Executive Order 12866, 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). 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
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 amendment has been drafted and
reviewed in accordance with Executive
Order 12866, section 1(b), Principles of
Regulation. The Department has
determined that this 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.
2 Section 102 of the Reorganization Plan No. 4 of
1978 (5 U.S.C. App. at 214, 2000 ed.) generally
transferred the authority of the Secretary of the
Treasury to issue administrative exemptions under
section 4975 of the Code to the Secretary of Labor.

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5888

Federal Register / Vol. 71, No. 23 / Friday, February 3, 2006 / Notices

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Paperwork Reduction Act
This amendment does not contain any
‘‘collection of information’’ as defined
in the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) (PRA) and
therefore is not subject to the
requirements of the PRA. The
recordkeeping requirement that is one of
the conditions imposed under PTE 84–
24 (section V(e)(1)), both prior to this
amendment and hereinafter, has been
approved by OMB as part of the
information collection request assigned
OMB control number 1210–0059. The
approval is currently scheduled to
expire on August 31, 2008.
Description of the Exemption, as
Amended
PTE 84–24 provides relief for certain
classes of transactions involving
purchases with plan assets of insurance
or annuity contracts and of securities
issued by registered investment
companies, and the receipt of sales
commissions in connection therewith.
Section I and section II of PTE 84–24
provide retroactive and prospective
relief for covered transactions. Section
III describes the transactions covered by
the class exemption as follows: (a) The
direct or indirect receipt by an
insurance agent or broker or a pension
consultant of a sales commission from
an insurance company in connection
with the purchase, with plan assets of
an insurance or annuity contract; (b) the
receipt of a sales commission by a
principal underwriter for an investment
company registered under the
Investment Company Act of 1940
(hereinafter, an investment company) in
connection with the purchase, with plan
assets, of securities issued by an
investment company; (c) the effecting by
an insurance agent or broker, pension
consultant or investment company
principal underwriter of a transaction
for the purchase, with plan assets, of an
insurance or annuity contract or
securities issued by an investment
company; (d) the purchase, with plan
assets, of an insurance or annuity
contract from an insurance company; (e)
the purchase, with plan assets, of an
insurance or annuity contract from an
insurance company which is a fiduciary
or a service provider (or both) with
respect to the plan solely by reason of
the sponsorship of a master or prototype
plan; and (f) the purchase, with plan
assets, of securities issued by an
investment company from, or the sale of
such securities to, an investment
company or an investment company
principal underwriter, when such
investment company, principal
underwriter, or the investment company

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investment adviser is a fiduciary or a
service provider (or both) with respect
to the plan solely by reason of: (1) The
sponsorship of a master or prototype
plan; or (2) the provision of
nondiscretionary trust services to the
plan; or (3) both (1) and (2).
Section IV contains general
conditions applicable to all transactions
described in section III. Section V of the
class exemption contains conditions
specific to transactions described in
section III(a) through (d). Section VI
defines certain terms that are used in
the class exemption. Section VI(b)
defines the terms ‘‘insurance agent or
broker,’’ ‘‘pension consultant,’’
‘‘insurance company,’’ ‘‘investment
company,’’ and ‘‘principal underwriter’’
to mean such persons and any affiliates
thereof.
Section V excludes certain persons
from engaging in transactions covered
by the class exemption. In this regard,
sections V(a)(1) and V(a)(3) provided
that the insurance agent or broker,
pension consultant, insurance company,
or investment company principal
underwriter may not engage in a
covered transaction if such person is a
trustee of the plan (other than a
nondiscretionary trustee who does not
render investment advice with respect
to any assets of the plan) or a fiduciary
who is expressly authorized in writing
to manage, acquire or dispose of the
assets of the plan on a discretionary
basis. The amendment adopted by this
notice provides a limited exception to
such restrictions (which otherwise
remain in effect). In this regard, section
V(a), as amended, now provides that,
notwithstanding the restriction
contained therein, an insurance agent or
broker, pension consultant, insurance
company, or investment company
principal underwriter that is affiliated
with a trustee or investment manager
with respect to a plan may engage in a
transaction described in section III(a)
through (d) of this exemption on behalf
of a plan if such trustee or investment
manager has no discretionary authority
or control over the plan assets involved
in the transaction other than as a
nondiscretionary trustee.3
3 As described in the notice of proposed
amendment to PTE 84–24, the Department and the
Service previously took the view that the class
exemption extends relief to a plan’s purchase of an
insurance or annuity contract through an agent or
broker affiliated with an entity that manages certain
of the plan’s assets to the extent that the investment
manager is not, with respect to the transaction, a
fiduciary expressly authorized in writing to
manage, acquire, or dispose of, on a discretionary
basis, the assets of the plan involved in the
purchase transaction. See letter from the
Department of the Service to John A. Cardon, Esq.,
et al., part 6 (October 31, 1977).

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The amendment adopted in this
notice also modifies the definition of the
term ‘‘nondiscretionary trust services’’
in section VI(g) of PTE 84–24 to permit
a party to use the exemption,
notwithstanding its affiliation with a
nondiscretionary trustee, including a
directed trustee that performs such
services pursuant to directions in
accordance with ERISA section
403(a)(1), with respect to the plan assets
involved in the transaction.
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 section
408(a) of ERISA 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, 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 section 404 of ERISA
which require, among other things, that
a fiduciary discharge his or her duties
respecting the plan solely in the
interests of the participants and
beneficiaries of the plan; nor does it
affect the requirement of section 401(a)
of the Code that the plan must operate
for the exclusive benefit of the
employees of the employer maintaining
the plan and their beneficiaries;
(2) In accordance with section 408(a)
of ERISA and 4975(c)(2) of the Code, the
Department makes the following
determinations:
(i) The amendment set forth herein is
administratively feasible;
(ii) the amendment set forth herein is
in the interests of plans and of their
participants and beneficiaries; and
(iii) the amendment set forth herein is
protective of the rights of participants
and beneficiaries of plans;
(3) The amendment is applicable to a
particular transaction only if the
transaction satisfies the conditions
specified in the exemption; and
(4) The amendment is 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.
Exemption
Accordingly, PTE 84–24 is amended
under the authority of section 408(a) of
the Employee Retirement Income

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Federal Register / Vol. 71, No. 23 / Friday, February 3, 2006 / Notices
Security Act of 1974 (the Act) and
section 4975(c)(2) of the Internal
Revenue Code of 1986, as amended (the
Code), and in accordance with the
procedures set forth in 29 CFR part
2570, subpart B (55 FR 32836, 32847,
August 10, 1990), as set forth below:
Section I—Retroactive Application
The restrictions of sections
406(a)(1)(A) through (D) and 406(b) of
the Act and the taxes imposed by
section 4975 of the Code do not apply
to any of the transactions described in
section III of this exemption in
connection with purchases made before
November 1, 1977, if the conditions set
forth in section IV are met.

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Section II—Prospective Application
The restrictions of section
406(a)(1)(A) through (D) and 406(b) of
the Act and the taxes imposed by
section 4975 of the Code do not apply
to any of the transactions described in
section III of this exemption in
connection with purchases made after
October 31, 1977, if the conditions set
forth in sections IV and V are met.
Section III—Transactions
(a) The receipt, directly or indirectly,
by an insurance agent or broker or a
pension consultant of a sales
commission from an insurance company
in connection with the purchase, with
plan assets, of an insurance or annuity
contract.
(b) The receipt of a sales commission
by a principal underwriter for an
investment company registered under
the Investment Company Act of 1940
(hereinafter referred to as an investment
company) in connection with the
purchase, with plan assets, of securities
issued by an investment company.
(c) The effecting by an insurance
agent or broker, pension consultant or
investment company principal
underwriter of a transaction for the
purchase, with plan assets, of an
insurance or annuity contract or
securities issued by an investment
company.
(d) The purchase, with plan assets, of
an insurance or annuity contract from
an insurance company.
(e) The purchase, with plan assets, of
an insurance or annuity contract from
an insurance company which is a
fiduciary or a service provider (or both)
with respect to the plan solely by reason
of the sponsorship of a master or
prototype plan.
(f) The purchase, with plan assets, of
securities issued by an investment
company from, or the sale of such
securities to, an investment company or
an investment company principal

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underwriter, when such investment
company, principal underwriter, or the
investment company investment adviser
is a fiduciary or a service provider (or
both) with respect to the plan solely by
reason of: (1) The sponsorship of a
master or prototype plan; or (2) the
provision of nondiscretionary trust
services to the plan; or (3) both (1) and
(2).
Section IV—Conditions With Respect to
Transactions Described in Section III
(a) The transaction is effected by the
insurance agent or broker, pension
consultant, insurance company or
investment company principal
underwriter in the ordinary course of its
business as such a person.
(b) The transaction is on terms at least
as favorable to the plan as an arm’slength transaction with an unrelated
party would be.
(c) The combined total of all fees,
commissions and other consideration
received by the insurance agent or
broker, pension consultant, insurance
company, or investment company
principal underwriter:
(1) For the provision of services to the
plan; and
(2) In connection with the purchase of
insurance or annuity contracts or
securities issued by an investment
company is not in excess of ‘‘reasonable
compensation’’ within the
contemplation of section 408(b)(2) and
408(c)(2) of the Act and sections
4975(d)(2)and 4975(d)(10) of the Code.
If such total is in excess of ‘‘reasonable
compensation,’’ the ‘‘amount involved’’
for purposes of the civil penalties of
section 502(i) of the Act and the excise
taxes imposed by section 4975 (a) and
(b) of the Code is the amount of
compensation in excess of ‘‘reasonable
compensation.’’
Section V—Conditions for Transactions
Described in Section III (a) Through (d)
The following conditions apply solely
to a transaction described in paragraphs
(a), (b), (c) or (d) of section III:
(a) The insurance agent or broker,
pension consultant, insurance company,
or investment company principal
underwriter is not (1) a trustee of the
plan (other than a nondiscretionary
trustee who does not render investment
advice with respect to any assets of the
plan), (2) a plan administrator (within
the meaning of section 3(16)(A) of the
Act and section 414(g) of the Code), (3)
a fiduciary who is expressly authorized
in writing to manage, acquire or dispose
of the assets of the plan on a
discretionary basis, or (4) for
transactions described in sections III (a)
through (d) entered into after December

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31, 1978, an employer any of whose
employees are covered by the plan.
Notwithstanding the above, an
insurance agent or broker, pension
consultant, insurance company, or
investment company principal
underwriter that is affiliated with a
trustee or an investment manager
(within the meaning of section VI(b))
with respect to a plan may engage in a
transaction described in section III(a)
through (d) of this exemption on behalf
of the plan if such trustee or investment
manager has no discretionary authority
or control over the plan assets involved
in the transaction other than as a
nondiscretionary trustee.
(b)(1) With respect to a transaction
involving the purchase with plan assets
of an insurance or annuity contract or
the receipt of a sales commission
thereon, the insurance agent or broker or
pension consultant provides to an
independent fiduciary with respect to
the plan prior to the execution of the
transaction the following information in
writing and in a form calculated to be
understood by a plan fiduciary who has
no special expertise in insurance or
investment matters:
(A) If the agent, broker, or consultant
is an affiliate of the insurance company
whose contract is being recommended,
or if the ability of such agent, broker or
consultant to recommend insurance or
annuity contracts is limited by any
agreement with such insurance
company, the nature of such affiliation,
limitation, or relationship;
(B) The sales commission, expressed
as a percentage of gross annual premium
payments for the first year and for each
of the succeeding renewal years, that
will be paid by the insurance company
to the agent, broker or consultant in
connection with the purchase of the
recommended contract; and
(C) For purchases made after June 30,
1979, a description of any charges, fees,
discounts, penalties or adjustments
which may be imposed under the
recommended contract in connection
with the purchase, holding, exchange,
termination or sale of such contract.
(2) Following the receipt of the
information required to be disclosed in
paragraph (b)(1), and prior to the
execution of the transaction, the
independent fiduciary acknowledges in
writing receipt of such information and
approves the transaction on behalf of
the plan. Such fiduciary may be an
employer of employees covered by the
plan, but may not be an insurance agent
or broker, pension consultant or
insurance company involved in the
transaction. Such fiduciary may not
receive, directly or indirectly (e.g.
through an affiliate), any compensation

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Federal Register / Vol. 71, No. 23 / Friday, February 3, 2006 / Notices

or other consideration for his or her own
personal account from any party dealing
with the plan in connection with the
transaction.
(c)(1) With respect to a transaction
involving the purchase with plan assets
of securities issued by an investment
company or the receipt of a sales
commission thereon by an investment
company principal underwriter, the
investment company principal
underwriter provides to an independent
fiduciary with respect to the plan, prior
to the execution of the transaction, the
following information in writing and in
a form calculated to be understood by a
plan fiduciary who has no special
expertise in insurance or investment
matters:
(A) If the person recommending
securities issued by an investment
company is the principal underwriter of
the investment company whose
securities are being recommended, the
nature of such relationship and of any
limitation it places upon the principal
underwriter’s ability to recommend
investment company securities;
(B) The sales commission, expressed
as a percentage of the dollar amount of
the plan’s gross payment and of the
amount actually invested, that will be
received by the principal underwriter in
connection with the purchase of the
recommended securities issued by the
investment company; and
(C) For purchases made after
December 31, 1978, a description of any
charges, fees, discounts, penalties, or
adjustments which may be imposed
under the recommended securities in
connection with the purchase, holding,
exchange, termination or sale of such
securities.
(2) Following the receipt of the
information required to be disclosed in
paragraph (c)(1), and prior to the
execution of the transaction, the
independent fiduciary approves the
transaction on behalf of the plan. Unless
facts or circumstances would indicate
the contrary, such approval may be
presumed if the fiduciary permits the
transaction to proceed after receipt of
the written disclosure. Such fiduciary
may be an employer of employees
covered by the plan, but may not be a
principal underwriter involved in the
transaction. Such fiduciary may not
receive, directly or indirectly (e.g.
through an affiliate), any compensation
or other consideration for his or her own
personal account from any party dealing
with the plan in connection with the
transaction.
(d) With respect to additional
purchases of insurance or annuity
contracts or securities issued by an
investment company, the written

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disclosure required under paragraphs
(b) and (c) of this section V need not be
repeated, unless—
(1) More than three years have passed
since such disclosure was made with
respect to the same kind of contract or
security, or
(2) The contract or security being
recommended for purchase or the
commission with respect thereto is
materially different from that for which
the approval described in paragraphs (b)
and (c) of this section was obtained.
(e)(1)) In the case of any transaction
described in paragraphs (a), (b), or (c) of
section III, the insurance agent or broker
(or the insurance company whose
contract is being described if designated
by the agent or broker), pension
consultant or investment company
principal underwriter shall retain or
cause to be retained for a period of six
years from the date of such transaction,
the following:
(A) The information disclosed
pursuant to paragraphs (b), (c), and (d)
of this section V;
(B) Any additional information or
documents provided to the fiduciary
described in paragraphs (b) and (c) of
this section V with respect to such
transaction; and
(C) The written acknowledgement
described in paragraph (b) of this
section.
(2) A prohibited transaction will not
be deemed to have occurred if, due to
circumstances beyond the control of the
insurance agent or broker, pension
consultant, or principal underwriter,
such records are lost or destroyed prior
to the end of such six-year period.
(3) Notwithstanding anything to the
contrary in section 504(a)(2) and (b) of
the Act, such records are
unconditionally available for
examination during normal business
hours by duly authorized employees or
representatives of the Department of
Labor, the Internal Revenue Service,
plan participants and beneficiaries, any
employer of plan participants and
beneficiaries, and any employee
organization any of whose members are
covered by the plan.
Section VI—Definitions
For purposes of this exemption:
(a) The term ‘‘principal underwriter’’
is defined in the same manner as that
term is defined in section 2(a)(29) of the
Investment Company Act of 1940 (15
U.S.C. 80a–2(a)(29)).
(b) The terms ‘‘insurance agent or
broker,’’ ‘‘pension consultant,’’
‘‘insurance company,’’ ‘‘investment
company,’’ and ‘‘principal underwriter’’
mean such persons and any affiliates
thereof.

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(c) The term ‘‘affiliate’’ of a person
means:
(1) Any person directly or indirectly
controlling, controlled by, or under
common control with such person;
(2) Any officer, director, employee
(including, in the case of principal
underwriter, any registered
representative thereof, whether or not
such person is a common law employee
of such principal underwriter), or
relative of any such person, or any
partner in such person; or
(3) Any corporation or partnership of
which such person is an officer,
director, or employee, or in which such
person is a partner.
(d) The term ‘‘control’’ means the
power to exercise a controlling
influence over the management or
policies of a person other than an
individual.
(e) The term ‘‘relative’’ means a
‘‘relative’’ as that term is defined in
section 3(15) of the Act (or a ‘‘member
of the family’’ as that term is defined in
section 4975(e)(6) of the Code), or a
brother, a sister, or a spouse of a brother
or a sister.
(f) The term ‘‘master or prototype
plan’’ means a plan which is approved
by the Service under Rev. Proc. 72–7,
1972–1 C.B. 715, or Rev. Proc. 72–8,
1972–1 C.B. 716, or their successors.
(g) ‘‘The term ‘‘nondiscretionary trust
services’’ means custodial services,
services ancillary to custodial services,
none of which services are
discretionary, duties imposed by any
provisions of the Code, and services
performed pursuant to directions in
accordance with ERISA section
403(a)(1). The term ‘‘nondiscretionary
trustee’’ of a plan means a trustee whose
powers and duties with respect to the
plan are limited to the provision of
nondiscretionary trust services. For
purposes of this exemption, a person
who is otherwise a nondiscretionary
trustee will not fail to be a
nondiscretionary trustee solely by
reason of his having been delegated, by
the sponsor of a master or prototype
plan, the power to amend such plan.
Signed at Washington, DC this 30th day of
January, 2006.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. E6–1504 Filed 2–2–06; 8:45 am]
BILLING CODE 4520–29–P

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