Amendment to Prohibited Transaction Exemption (PTE) 84-14 for Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers, 38837-38845 [2010-16302]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 75, Number 128 (Tuesday, July 6, 2010)]
[Notices]
[Pages 38837-38845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16302]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

ZRIN 1210 ZA07
[Application Number D-11270]


Amendment to Prohibited Transaction Exemption (PTE) 84-14 for 
Plan Asset Transactions Determined by Independent Qualified 
Professional Asset Managers

AGENCY: Employee Benefits Security Administration.

ACTION: Adoption of amendment to PTE 84-14.

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SUMMARY: This document amends PTE 84-14, a class exemption that permits 
various parties that are related to employee benefit plans to engage in 
transactions involving plan assets if, among other conditions, the 
assets are managed by ``qualified professional asset managers'' 
(QPAMs), which are independent of the parties in interest and which 
meet specified financial standards. Additional exemptive relief is 
provided for employers to furnish limited amounts of goods and services 
to a managed fund in the ordinary course of business. Limited relief is 
also provided for leases of office or commercial space between managed 
funds and QPAMs or contributing employers. Finally, relief is provided 
for transactions involving places of public accommodation owned by a 
managed fund. The amendment permits a QPAM to manage an investment fund 
containing the assets of the QPAM's own plan or the plan of an 
affiliate.
    The amendment affects participants and beneficiaries of employee 
benefit plans, the sponsoring employers of such plans, and other 
persons engaging in the described transactions.

DATES: The amendment is effective November 3, 2010.

FOR FURTHER INFORMATION CONTACT: Christopher Motta, Office of Exemption 
Determinations, Employee Benefits Security Administration, U.S. 
Department of Labor, Room N-5700, 200 Constitution Avenue, NW., 
Washington, DC 20210, (202) 693-8540 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: On August 23, 2005, a notice was published 
in the Federal Register (70 FR 49312) of the pendency before the 
Department of Labor (the Department) of a proposed amendment to PTE 84-
14 (49 FR 9494, March 13, 1984, as corrected at 50 FR 41430, October 
10, 1985, and amended at 70 FR 49305 (August 23, 2005)). PTE 84-14 
provides an exemption from certain of the restrictions of section 406 
of the Employee Retirement Income Security Act of 1974 (ERISA), and 
from certain of the taxes imposed by section 4975(a) and (b) of the 
Code, by reason of section 4975(c)(1) of the Code. The Department 
proposed the amendment 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).\1\
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    \1\ Section 102 of the Reorganization Plan No. 4 of 1978, 5 
U.S.C. App. 1 (1996), generally transferred the authority of the 
Secretary of Treasury to issue administrative exemptions under 
section 4975(c)(2) of the Code to the Secretary of Labor.
    For purposes of this exemption, references to specific 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.

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[[Page 38838]]

    The notice of pendency gave interested persons an opportunity to 
comment on the proposed exemption. The Department received five written 
comments, each of which raised several issues. Upon consideration of 
these comments, the Department has determined to grant the proposed 
amendment, subject to certain modifications. These modifications and 
the major comments are discussed below.

Executive Order 12866 Statement

    Under Executive Order 12866 (58 FR 51735), a ``significant'' 
regulatory action is subject to review by the Office of Management and 
Budget (OMB). Section 3(f) of the Executive 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.
    When proposed, this amendment was determined to be a ``significant 
regulatory action'' and was reviewed by OMB. The finalization of the 
proposal has also been determined to be a ``significant regulatory 
action'' under Executive Order 12866.

Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 (PRA 
95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, the reporting burden 
(time and financial resources) is minimized, and the Department can 
properly assess the impact of collection requirements on respondents.
    The Department requested public comments on the information 
collection requirements of the proposed amendments to PTE 84-14 in the 
notice published in the Federal Register (70 FR 49312) of the pendency 
before the Department of the proposed amendment to PTE 84-14, described 
earlier in the preamble. No comments specifically addressing the 
Department's paperwork burden estimates were received. Following the 
closing of the 60-day comment period, the Department submitted an 
Information Collection Request (ICR) to OMB, which approved the 
information collection requirements included in the proposed amendments 
under OMB Control Number 1210-0128 in a Notice of Action dated October 
18, 2005. The approval was scheduled to expire October 31, 2008; 
therefore, on October 22, 2008, the Department filed with OMB a request 
to discontinue the control number on October 22, 2008, because it was 
clear that the proposed amendment would not be finalized before the ICR 
was scheduled to expire. OMB approved the Department's request on the 
same day. The Department is hereby filing a request to reinstate the 
control number with the changes discussed below.
    The information collection requirements of this final amendment are 
essentially unchanged from the proposal and consist, in part, of the 
requirements that the QPAM develop written policies and procedures 
designed to ensure compliance with the conditions of the exemptions and 
have an independent auditor conduct an annual exemption audit and issue 
an audit report to each QPAM-sponsored plan managed by the QPAM. 
Although no program changes have been made that would require revision 
of the prior paperwork burden estimates, the Department is adjusting 
its estimates of the cost burden of this final amendment in two 
respects. First, the Department is revising its estimate of the number 
of respondents, based on more recent Form 5500 data. Second, the 
Department is revising its estimate of the cost of the exemption audit 
and report, based on public comments on the substance of the proposed 
amendments. The Department will submit, contemporaneously with 
publication of this final amendment, a change worksheet to OMB for 
approval of these adjustments, which are described further below.
    In the proposed amendment, the Department estimated the total 
number of institutions (banks, savings institutions, insurance 
companies, and investment advisors) that might choose to act as QPAMs 
for their own plans at 6,500. Based on more recent information from the 
2007 Form 5500 filings, the Department now estimates that number at 
4,400. Assuming that all eligible institutions would choose to take 
advantage of the exemption, the aggregate cost of developing written 
policies and procedures, assuming one hour of a legal professional's 
time at $119 per hour, is estimated at $523,700.\2\ As explained in the 
preamble to the proposed amendment, the actual amount of time required, 
and the resulting cost burden, may be even lower because the Department 
has described the objective requirements of the exemption that are to 
be included in the policies and procedures. In future years, the 
Department is assuming that an additional one percent of the currently 
existing QPAMs, or 44 institutions will annually establish new policies 
and procedures for managing their own plans, at an annual cost of 
approximately $5,200.
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    \2\ EBSA estimates of labor rates include wages, other benefits, 
and overhead based on the National Occupational Employment Survey 
(May 2008, Bureau of Labor Statistics) and the Employment Cost Index 
(June 2009, Bureau of Labor Statistics). Figures are projected 
forward to 2010. Legal professional wage and benefits estimates of 
$119.03 are based on metropolitan wage rates for lawyers.
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    In the paperwork burden estimates for the proposal, the Department 
assumed that the exemption audit report would not impose any additional 
paperwork burden on respondents because preparation of a written report 
is usual and customary for any independent audit. In several of the 
comments received in response to the proposed amendment, which are 
described further below, commenters asserted that the exemption audit 
as proposed would be substantially different in nature from other 
internal audits currently performed by QPAMs, but similar to the 
exemption audit currently required under PTE 96-23 (relating to the 
activities of in-house asset managers (INHAMs)). Two commenters 
estimated the cost of an INHAM exemption audit to be at least $20,000. 
The Department further obtained information from industry 
representatives describing INHAM exemption audits as ranging in cost 
from $10,000 to $25,000, depending on the asset size of the plan. In 
light of this information, the Department has decided to adjust its 
burden estimates to recognize the cost of preparing an annual exemption 
report. Because the asset size of QPAM-sponsored plans is likely to be 
smaller than the asset size

[[Page 38839]]

of plans whose assets are managed by INHAMs, the Department has assumed 
that the average cost of an exemption audit required under the 
amendment at $10,000, with an estimated additional annual cost burden 
of $44,000,000 ($10,000 * 4,400 QPAMs).

Description of the Exemption

    PTE 84-14 consists of four separate parts. The General Exemption, 
set forth in Part I, permits an investment fund managed by a QPAM to 
engage in a wide variety of transactions described in ERISA section 
406(a)(1)(A) through (D) with virtually all parties in interest except 
the QPAM which manages the assets involved in the transaction and those 
parties most likely to have the power to influence the QPAM.
    Part II of the exemption provides limited relief from both section 
406(a) and (b) of ERISA for certain transactions involving those 
employers and certain of their affiliates which could not qualify for 
the General Exemption provided by Part I.
    Part III of the exemption provides limited relief from section 
406(a) and (b) of ERISA for the leasing of office or commercial space 
by an investment fund to the QPAM, an affiliate of the QPAM, or a 
person who could not qualify for the General Exemption provided by Part 
I because it held the power of appointment, as such term is described 
in paragraph (a) of Part I.
    Part IV of the exemption provides limited relief from sections 
406(a) and 406(b)(1) and (2) of ERISA for the furnishing of services 
and facilities by a place of public accommodation owned by an 
investment fund managed by a QPAM, to all parties in interest, if the 
services and facilities are furnished on a comparable basis to the 
general public.
    In the notice published on August 23, 2005, the Department proposed 
to amend PTE 84-14 to permit a QPAM to prospectively manage an 
investment fund that contains the assets of its own plan or the plan of 
an affiliate (retroactive and transitional relief in this regard is 
provided in the notice of final amendment to PTE 84-14 that was 
published on the same day (as cited above)). This prospective relief is 
described in Part V of the proposed amendment, which specifically 
provides relief for transactions described in Parts I, III and IV of 
PTE 84-14 that involve a QPAM-managed fund containing the assets of a 
plan sponsored by such QPAM. Among other things, relief is contingent 
upon an ``independent auditor'' conducting an annual ``exemption 
audit'' to determine whether the written procedures adopted by the QPAM 
are designed to assure compliance with the conditions of the exemption. 
The term ``exemption audit'' is defined in Part VI, the ``Definitions'' 
section of the proposed amendment.

Written Comments

Independent Audit Requirement

    Several of the commenters requested that the ``exemption audit'' 
requirement be eliminated. One commenter stated that the ``exemption 
audit'' is unnecessary given existing regulatory oversight and internal 
audit requirements. This commenter identified numerous regulators that 
oversee financial institutions that act as QPAMs. Additionally, the 
commenter noted that that QPAMs are subject to external examinations, 
internal audits, and reviews designed to assure compliance with the 
laws and regulations that affect the QPAMs' activities.
    As noted in the preamble to the proposed amendment, PTE 84-14 was 
developed and granted based on the essential premise that broad relief 
could be afforded for all types of transactions in which a plan engages 
only if the commitments and the investments of plan assets and the 
negotiations leading thereto are the sole responsibility of an 
independent, discretionary, manager. The arrangement described in the 
proposed amendment diverges from the original premise of PTE 84-14 in 
that it involves the retention by a plan sponsor/QPAM of the discretion 
to invest the assets of plans sponsored by the QPAM in an investment 
fund managed by the QPAM. In order to address this lack of QPAM 
independence, the proposed amendment relies on the ``exemption audit;'' 
which is an annual audit designed to ensure that, among other things, 
the conditions of the exemption have been met. None of the regulatory 
oversight identified by the commenter similarly addresses this concern. 
Although financial institutions that act as QPAMs perform certain 
audits internally, this type of audit does not address the potential 
for the exercise of undue influence which may arise in the absence of 
an independent investment manager.
    One commenter stated that the ``exemption audit'' is not necessary 
where a QPAM has a track record of ensuring that the conditions of the 
class exemption have been met (i.e., where the QPAM manages more than 
$100 million in assets other than the assets of plans sponsored by the 
QPAM). The Department does not believe that a certain stated dollar 
amount of plan assets managed by a QPAM (other than the assets of a 
plan sponsored by the QPAM or an affiliate) is an adequate substitute 
for the lack of an independent fiduciary that would be responsible for 
monitoring the activities of the QPAM with respect to its own in-house 
plan.
    Two commenters argue that the Department should modify the 
``exemption audit'' if it determines not to eliminate it altogether. 
These commenters state that the cost of the audit is burdensome and/or 
unnecessary given the availability of different alternatives. One of 
these commenters recommends that the audit be performed less frequently 
(i.e., every five years); the other commenter recommends that the audit 
requirement be altered to consist of an in-house review or in-house 
``audit of exemption compliance,'' together with the additional 
requirement that an independent firm conduct an exemption audit every 
five years.
    It is the view of the Department that performance of the 
``exemption audit'' on a less than an annual basis will weaken an 
important plan protection. The Department believes that an annual 
review of, among other things, a QPAM's written policies and procedures 
and a representative sample of plan transactions by an independent 
auditor is necessary to address the lack of QPAM independence. With 
regards to the costs associated with the ``exemption audit,'' the 
Department notes that a financial services entity is under no 
obligation to serve as a QPAM for its own plan under the amended 
exemption if it is determined not to be cost effective.
    Two commenters express the view that the ``exemption audit'' is 
unnecessary given that QPAMs are motivated to comply with the terms of 
the class exemption regardless of whether an ``exemption audit'' is 
performed. These commenters state that QPAMs are responsible for any 
losses resulting from any non-exempt transactions (i.e., losses that 
arise in connection with transactions that fail to comply with the 
terms of PTE 84-14) and, accordingly, are self-motivated to comply with 
the terms of the amended class exemption.
    The Department is not persuaded that a QPAM's motivation to avoid 
losses from non-exempt transactions is an adequate substitute for the 
``exemption audit.'' As noted in the preamble to the proposed 
amendment, the Department believes that the involvement of an 
independent party in overseeing compliance with the exemption would 
serve as a meaningful safeguard. In addition, the ``exemption audit'' 
protects plans by ensuring that an investment

[[Page 38840]]

manager, who may not otherwise have experience managing ERISA plan 
assets, complies with the provisions of ERISA.
    Upon considering all the comments, the Department has determined 
not to modify the ``exemption audit'' requirement in the final QPAM 
class exemption. Although the proposed amendment provided only that the 
``exemption audit'' must be performed on an ``annual basis,'' it did 
not specify the date by which each year's audit must be completed. To 
avoid any uncertainty on this issue, the final amendment specifies that 
the ``exemption audit'' must be completed within six months following 
the end of the year to which it relates.

Diverse Clientele Test

    Several commenters commented on section I(e) of the class 
exemption.\3\ Two of these commenters state that the Diverse Clientele 
Test is duplicative and/or unnecessary in light of the exemption audit 
and should be waived where a QPAM acts as a manager for its own plan or 
the plan of an affiliate. Another commenter states that the diverse 
clientele test should be stricter and recommends that the 20% 
limitation should be lowered to 10%.
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    \3\ Part I(e) of PTE 84-14 provides that a QPAM may not enter 
into a transaction with a party in interest with respect to any plan 
whose assets managed by the QPAM, when combined with the assets of 
other plans established or maintained by the same employer or 
affiliates of the employer or by the same employee organization, and 
managed by the QPAM, represent more than 20 percent of the total 
clients assets managed by the QPAM at the time of the transaction.
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    The Department notes that the Diverse Clientele Test, as it applies 
to the amended class exemption, ensures that the assets of plans 
sponsored by a QPAM or its affiliates do not constitute a significant 
percentage of the assets of an investment fund managed by the QPAM. In 
this regard, as stated in the preamble to PTE 84-14, the Department 
believes that the presence of independent business provides an 
important protection under the class exemption.\4\ Accordingly, the 
Department has determined not to eliminate the percentage limitation of 
the Diverse Clientele Test. However, in consideration of the nature of 
the transactions exempted and the additional protections embodied in 
the class exemption, the Department does not believe that it is 
necessary to reduce the current percentage to ten percent.
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    \4\ 49 FR 9504.
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    Another commenter notes that PTE 96-23, a class exemption which 
permits various transactions involving employee benefit plans whose 
assets are managed by in-house managers (INHAMs), does not contain a 
limitation that parallels the Diverse Clientele Test in PTE 84-14. This 
commenter notes that banks and insurance companies, which do not meet 
the definition of INHAM and therefore do not qualify for relief under 
that class exemption, will be subject to a limitation that is not 
otherwise applicable to financial institutions that qualify for relief 
under the INHAM class exemption.
    In this regard, the Department notes that this amendment of PTE 84-
14 does not foreclose future consideration of additional exemptive 
relief under PTE 96-23 for financial institutions that do not meet the 
Diverse Clientele Test and currently do not qualify as INHAMs, if the 
requisite findings under section 408(a) of ERISA can be made.

Scope of Relief

    One of the commenters stated that it is unclear whether the 
proposed amendment would permit a QPAM to manage an investment fund 
that contains the assets of a plan sponsored by an affiliate of the 
QPAM. The Department has revised Part V of the final amendment to 
clarify that relief is being granted for a QPAM to manage an investment 
fund that contains the assets of a plan sponsored by a QPAM and/or a 
plan sponsored by an affiliate thereof.

Transitional Relief

    One commenter urged the Department to delay the effective date of 
the final amendment in order to give parties more time to comply with 
the changes. Specifically, the commenter requested that the amendment 
be effective 120 days after publication in the Federal Register. The 
Department agrees that additional time may be needed for QPAMs to 
conform to the amended class exemption. Accordingly, the final 
amendment is effective 120 days following the date of publication of 
this amendment in the Federal Register. In the interim, a QPAM may 
continue to act as an investment manager for its own in-house plan in 
reliance on the transitional relief provided in the amendment to PTE 
84-14 published on August 23, 2005.

Definition of QPAM

    One commenter recommended that the amendment permit only financial 
institutions that are registered investment advisers (and not, for 
example, proprietary trading operations) to act as QPAMs for their own 
plans. In this regard, the Department notes that Part VI(a) of the 
amended class exemption defines the term ``qualified professional asset 
manager'' or ``QPAM'' to mean an independent fiduciary which is (1) A 
bank, as defined in section 202(a)(2) of the Investment Advisers Act of 
1940, or (2) a savings and loan association, or (3) an insurance 
company which is qualified under the laws of more than one State to 
manage, acquire, or dispose of any assets of a plan, or (4) an 
investment adviser registered under the Investment Advisers Act of 
1940. In light of the above, the Department believes that it is 
unnecessary to amend the definition of QPAM as requested.

Additional Clarifications

    In the preamble to the proposed amendment, the Department noted 
that the exemption audit is substantially similar to the audit required 
under PTE 96-23 (61 FR 15975 (Apr. 10, 1996)). However, following 
publication of the proposed amendment, the Department became aware of 
practitioner uncertainty regarding certain aspects of the audit 
requirement in PTE 96-23. Because of the similarity of the audit 
requirements in the proposed amendment to PTE 84-14 with the audit 
requirement in PTE 96-23, the Department is providing additional 
clarifying language in sections VI(p) and V(c) of PTE 84-14 as 
described below, and, further, is offering the following additional 
guidance.
    Section VI(p) of the proposed amendment requires, in part, an 
auditor to test a representative sample of a plan's transactions 
covered by the exemption in order to make findings regarding whether 
the QPAM is in compliance with the QPAM's policies and procedures, and 
with the objective requirements of the exemption. The Department notes, 
however, that in certain instances, an auditor may need to construct 
and test more than one set of transactions in order to have a 
reasonable basis for an opinion on the QPAM's compliance with the 
exemption. For example, an auditor may initially believe that the most 
appropriate way to make the required findings is to construct a sample 
that represents the total universe of relevant transactions engaged in 
by the QPAM under the exemption. In testing the sample, however, the 
auditor should look for, and may find, patterns of compliance failures 
that indicate that certain types of transactions are more prone to 
compliance failures than others. If such patterns appear, the auditor 
may need to test additional transactions to more accurately assess the 
extent and causes of non-compliant transactions. Since, as noted in the 
preamble to the proposed amendment, the audit requirement is, among 
other things, intended to protect plans by

[[Page 38841]]

ensuring that an investment manager complies with the requirements of 
the exemption, the sample should also be sufficient in size and nature 
for the auditor to render an overall opinion regarding whether the 
QPAM's program complied with the objective requirements of the 
exemption, and with the QPAM's own policies and procedures.
    Accordingly, the Department has clarified section VI(p)(2) of PTE 
84-14 in a manner that is consistent with the views expressed above.
    Section V(c) of the proposed amendment requires that an independent 
auditor conduct an exemption audit on an annual basis, and issue a 
written report to the plan presenting its specific findings regarding 
the level of compliance with the policies and procedures adopted by the 
QPAM. However, the proposed amendment does not specify the date by 
which each audit must be completed. To avoid any uncertainty on this 
issue, section V(c) of PTE 84-14 now expressly provides that the audit 
must be completed within six months following the end of the year to 
which it relates. For consistency with the changes to section VI(p)(2) 
described above, section V(c) also expressly provides that the written 
report must contain the specific findings required under section 
VI(p)(2), and an overall opinion regarding the level of compliance of 
the QPAM's program with the policies and procedures adopted by the QPAM 
and the objective requirements of the exemption.
    The Department notes that relief is not available under PTE 84-14 
for those transactions that did not satisfy its conditions. As a 
result, the Department anticipates that an auditor's report will 
clearly identify each transaction examined by the auditor that does not 
comply with the QPAM's policies and procedures or the exemption. In 
this regard, the report should identify the specific policies, 
procedures or exemption conditions that were not satisfied. The 
Department expects further that each written report will include a 
description of the steps, if any, taken by the QPAM to remedy 
transactions that did not comply with the objective requirements of the 
exemption. The report should also contain a description of the steps 
taken by the auditor to construct the sample(s) and an explanation as 
to why the auditor believes that the sample on which the required 
findings are based is an adequate representation of the total universe 
of transactions engaged in by the QPAM.
    The QPAM retains responsibility for reviewing the written report 
and taking any appropriate actions deemed necessary for assuring 
compliance with the exemption. The Department cautions that the failure 
of the QPAM to take appropriate steps to address any adverse findings 
or prohibited transactions in an audit would raise issues under the 
fiduciary responsibility provisions of section 404 of ERISA.
    For the sake of convenience, the entire text of PTE 84-14 has been 
reprinted with this notice.

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. 
Additionally, the fact that a transaction is the subject of an 
exemption does not 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) The Department finds that the amended 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) The amended exemption is applicable to a particular transaction 
only if the transaction satisfies the conditions specified in the 
amendment; and
    (4) The amended exemption 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

    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), effective as noted, 
the Department amends PTE 84-14 as set forth below:

Part I--General Exemption

    Effective as of August 23, 2005, the restrictions of ERISA section 
406(a)(1)(A) through (D) and the taxes imposed by Code section 4975(a) 
and (b), by reason of Code section 4975(c)(1)(A) through (D), shall not 
apply to a transaction between a party in interest with respect to an 
employee benefit plan and an investment fund (as defined in section 
VI(b)) in which the plan has an interest, and which is managed by a 
qualified professional asset manager (QPAM) (as defined in section 
VI(a)), if the following conditions are satisfied:
    (a) At the time of the transaction (as defined in section VI(i)) 
the party in interest, or its affiliate (as defined in section VI(c)), 
does not have the authority to--
    (1) Appoint or terminate the QPAM as a manager of the plan assets 
involved in the transaction, or
    (2) Negotiate on behalf of the plan the terms of the management 
agreement with the QPAM (including renewals or modifications thereof) 
with respect to the plan assets involved in the transaction;
    Notwithstanding the foregoing, in the case of an investment fund in 
which two or more unrelated plans have an interest, a transaction with 
a party in interest with respect to an employee benefit plan will be 
deemed to satisfy the requirements of section I(a) if the assets of the 
plan managed by the QPAM in the investment fund, when combined with the 
assets of other plans established or maintained by the same employer 
(or affiliate thereof described in section VI(c)(1) of the exemption) 
or by the same employee organization, and managed in the same 
investment fund, represent less than 10 percent of the assets of the 
investment fund;
    (b) The transaction is not described in--
    (1) Prohibited Transaction Exemption 2006-16 (71 FR 63786; October 
31, 2006) (relating to securities lending arrangements) (as amended or 
superseded),
    (2) Prohibited Transaction Exemption 83-1 (48 FR 895; January 7, 
1983) (relating to acquisitions by plans of interests in mortgage 
pools) (as amended or superseded), or
    (3) Prohibited Transaction Exemption 82-87 (47 FR 21331; May 18, 
1982) (relating to certain mortgage financing arrangements) (as amended 
or superseded);

[[Page 38842]]

    (c) The terms of the transaction are negotiated on behalf of the 
investment fund by, or under the authority and general direction of, 
the QPAM, and either the QPAM, or (so long as the QPAM retains full 
fiduciary responsibility with respect to the transaction) a property 
manager acting in accordance with written guidelines established and 
administered by the QPAM, makes the decision on behalf of the 
investment fund to enter into the transaction, provided that the 
transaction is not part of an agreement, arrangement or understanding 
designed to benefit a party in interest;
    (d) The party in interest dealing with the investment fund is 
neither the QPAM nor a person related to the QPAM (within the meaning 
of section VI(h));
    (e) The transaction is not entered into with a party in interest 
with respect to any plan whose assets managed by the QPAM, when 
combined with the assets of other plans established or maintained by 
the same employer (or affiliate thereof described in section VI(c)(1) 
of this exemption) or by the same employee organization, and managed by 
the QPAM, represent more than 20 percent of the total client assets 
managed by the QPAM at the time of the transaction;
    (f) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification thereof that requires the 
consent of the QPAM, the terms of the transaction are at least as 
favorable to the investment fund as the terms generally available in 
arm's length transactions between unrelated parties;
    (g) Neither the QPAM nor any affiliate thereof (as defined in 
section VI(d)), nor any owner, direct or indirect, of a 5 percent or 
more interest in the QPAM is a person who within the 10 years 
immediately preceding the transaction has been either convicted or 
released from imprisonment, whichever is later, as a result of: Any 
felony involving abuse or misuse of such person's employee benefit plan 
position or employment, or position or employment with a labor 
organization; any felony arising out of the conduct of the business of 
a broker, dealer, investment adviser, bank, insurance company or 
fiduciary; income tax evasion; any felony involving the larceny, theft, 
robbery, extortion, forgery, counterfeiting, fraudulent concealment, 
embezzlement, fraudulent conversion, or misappropriation of funds or 
securities; conspiracy or attempt to commit any such crimes or a crime 
in which any of the foregoing crimes is an element; or any other crime 
described in section 411 of ERISA. For purposes of this section (g), a 
person shall be deemed to have been ``convicted'' from the date of the 
judgment of the trial court, regardless of whether that judgment 
remains under appeal.

Part II--Specific Exemption for Employers

    Effective as of August 23, 2005, the restrictions of sections 
406(a), 406(b)(1) and 407(a) of ERISA and the taxes imposed by section 
4975(a) and (b) of the Code, by reason of Code section 4975(c)(1)(A) 
through (E), shall not apply to:
    (a) The sale, leasing, or servicing of goods (as defined in section 
VI(j)), or to the furnishing of services, to an investment fund managed 
by a QPAM by a party in interest with respect to a plan having an 
interest in the fund, if--
    (1) The party in interest is an employer any of whose employees are 
covered by the plan or is a person who is a party in interest by virtue 
of a relationship to such an employer described in section VI(c),
    (2) The transaction is necessary for the administration or 
management of the investment fund,
    (3) The transaction takes place in the ordinary course of a 
business engaged in by the party in interest with the general public,
    (4) Effective for taxable years of the party in interest furnishing 
goods and services after August 23, 2005, the amount attributable in 
any taxable year of the party in interest to transactions engaged in 
with an investment fund pursuant to section II(a) of this exemption 
does not exceed one (1) percent of the gross receipts derived from all 
sources for the prior taxable year of the party in interest, and
    (5) The requirements of sections I(c) through (g) are satisfied 
with respect to the transaction;
    (b) The leasing of office or commercial space by an investment fund 
maintained by a QPAM to a party in interest with respect to a plan 
having an interest in the investment fund, if--
    (1) The party in interest is an employer any of whose employees are 
covered by the plan or is a person who is a party in interest by virtue 
of a relationship to such an employer described in section VI(c),
    (2) No commission or other fee is paid by the investment fund to 
the QPAM or to the employer, or to an affiliate of the QPAM or employer 
(as defined in section VI(c)), in connection with the transaction,
    (3) Any unit of space leased to the party in interest by the 
investment fund is suitable (or adaptable without excessive cost) for 
use by different tenants,
    (4) The amount of space covered by the lease does not exceed 
fifteen (15) percent of the rentable space of the office building, 
integrated office park, or of the commercial center (if the lease does 
not pertain to office space),
    (5) In the case of a plan that is not an eligible individual 
account plan (as defined in section 407(d)(3) of ERISA), immediately 
after the transaction is entered into, the aggregate fair market value 
of employer real property and employer securities held by investment 
funds of the QPAM in which the plan has an interest does not exceed 10 
percent of the fair market value of the assets of the plan held in 
those investment funds. In determining the aggregate fair market value 
of employer real property and employer securities as described herein, 
a plan shall be considered to own the same proportionate undivided 
interest in each asset of the investment fund or funds as its 
proportionate interest in the total assets of the investment fund(s). 
For purposes of this requirement, the term ``employer real property'' 
means real property leased to, and the term ``employer securities'' 
means securities issued by, an employer any of whose employees are 
covered by the plan or a party in interest of the plan by reason of a 
relationship to the employer described in subparagraphs (E) or (G) of 
ERISA section 3(14), and
    (6) The requirements of sections I(c) through (g) are satisfied 
with respect to the transaction.

Part III--Specific Lease Exemption for QPAMs

    Effective as of August 23, 2005, the restrictions of section 
406(a)(1)(A) through (D) and 406(b)(1) and (2) of ERISA and the taxes 
imposed by Code section 4975(a) and (b), by reason of Code section 
4975(c)(1)(A) through (E), shall not apply to the leasing of office or 
commercial space by an investment fund managed by a QPAM to the QPAM, a 
person who is a party in interest of a plan by virtue of a relationship 
to such QPAM described in subparagraphs (G), (H), or (I) of ERISA 
section 3(14) or a person not eligible for the General Exemption of 
Part I by reason of section I(a), if --
    (a) The amount of space covered by the lease does not exceed the 
greater of 7500 square feet or one (1) percent of the rentable space of 
the office building, integrated office park or of the commercial center 
in which the investment fund has the investment,
    (b) The unit of space subject to the lease is suitable (or 
adaptable without

[[Page 38843]]

excessive cost) for use by different tenants,
    (c) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification thereof that requires the 
consent of the QPAM, the terms of the transaction are not more 
favorable to the lessee than the terms generally available in arm's 
length transactions between unrelated parties, and
    (d) No commission or other fee is paid by the investment fund to 
the QPAM, any person possessing the disqualifying powers described in 
section I(a), or any affiliate of such persons (as defined in section 
VI(c)), in connection with the transaction.

Part IV--Transactions Involving Places of Public Accommodation

    Effective as of August 23, 2005, the restrictions of section 
406(a)(1)(A) through (D) and 406(b)(1) and (2) of ERISA and the taxes 
imposed by Code section 4975(a) and (b), by reason of Code section 
4975(c)(1)(A) through (E), shall not apply to the furnishing of 
services and facilities (and goods incidental thereto) by a place of 
public accommodation owned by an investment fund managed by a QPAM to a 
party in interest with respect to a plan having an interest in the 
investment fund, if the services and facilities (and incidental goods) 
are furnished on a comparable basis to the general public.

Part V--Specific Exemption Involving QPAM--Sponsored Plans

    Effective after November 3, 2010, the relief provided by Parts I, 
III or IV of PTE 84-14 from the applicable restrictions of ERISA 
section 406(a), section 406(b)(1) and (2), and the taxes imposed by 
Code section 4975(a) and (b), by reason of Code section 4975(c)(1)(A) 
through (E), shall apply to a transaction involving the assets of a 
plan sponsored by the QPAM or an affiliate of the QPAM if:
    (a) The QPAM has discretionary authority or control with respect to 
the plan assets involved in the transaction;
    (b) The QPAM adopts written policies and procedures that are 
designed to assure compliance with the conditions of the exemption;
    (c) An independent auditor, who has appropriate technical training 
or experience and proficiency with ERISA's fiduciary responsibility 
provisions and so represents in writing, conducts an exemption audit 
(as defined in section VI(p) on an annual basis. Following completion 
of the exemption audit, the auditor shall issue a written report to the 
plan presenting its specific findings regarding the level of 
compliance: (1) With the policies and procedures adopted by the QPAM in 
accordance with section V(b); and (2) with the objective requirements 
of the exemption. The written report shall also contain the auditor's 
overall opinion regarding whether the QPAM's program complied: (1) with 
the policies and procedures adopted by the QPAM; and (2) with the 
objective requirements of the exemption. The exemption audit and the 
written report must be completed within six months following the end of 
the year to which the audit relates;
    (d) The transaction meets the applicable requirements set forth in 
Parts I, III, or IV of the exemption.

Part VI--Definitions and General Rules

    For purposes of this exemption:
    (a) The term ``qualified professional asset manager'' or ``QPAM'' 
means an independent fiduciary (as defined in section VI(o)) which is 
--
    (1) A bank, as defined in section 202(a)(2) of the Investment 
Advisers Act of 1940 that has the power to manage, acquire or dispose 
of assets of a plan, which bank has, as of the last day of its most 
recent fiscal year, equity capital (as defined in section VI(k)) in 
excess of $1,000,000, or
    (2) A savings and loan association, the accounts of which are 
insured by the Federal Savings and Loan Insurance Corporation, that has 
made application for and been granted trust powers to manage, acquire 
or dispose of assets of a plan by a State or Federal authority having 
supervision over savings and loan associations, which savings and loan 
association has, as of the last day of its most recent fiscal year, 
equity capital (as defined in section VI(k)) or net worth (as defined 
in section VI(l)) in excess of $1,000,000, or
    (3) An insurance company which is qualified under the laws of more 
than one State to manage, acquire, or dispose of any assets of a plan, 
which company has, as of the last day of its most recent fiscal year, 
net worth (as defined in section VI(l)) in excess of $1,000,000 and 
which is subject to supervision and examination by a State authority 
having supervision over insurance companies, or
    (4) An investment adviser registered under the Investment Advisers 
Act of 1940 that has total client assets under its management and 
control in excess of $50,000,000 as of the last day of its most recent 
fiscal year, and either (A) shareholders' or partners' equity (as 
defined in section VI(m)) in excess of $750,000, or (B) payment of all 
of its liabilities including any liabilities that may arise by reason 
of a breach or violation of a duty described in sections 404 and 406 of 
ERISA is unconditionally guaranteed by--(i) A person with a 
relationship to such investment adviser described in section VI(c)(1) 
if the investment adviser and such affiliate have shareholders' or 
partners' equity, in the aggregate, in excess of $750,000, or (ii) A 
person described in (a)(1), (a)(2) or (a)(3) of section VI above, or 
(iii) A broker-dealer registered under the Securities Exchange Act of 
1934 that has, as of the last day of its most recent fiscal year, net 
worth in excess of $750,000; and (C) effective as of the last day of 
the first fiscal year of the investment adviser beginning on or after 
August 23, 2005, substitute ``$85,000,000'' for ``$50,000,000'' and 
``$1,000,000'' for ``$750,000'' in (a)(4)(A) or (B) of section VI 
above;

Provided that such bank, savings and loan association, insurance 
company or investment adviser has acknowledged in a written management 
agreement that it is a fiduciary with respect to each plan that has 
retained the QPAM.
    (b) An ``investment fund'' includes single customer and pooled 
separate accounts maintained by an insurance company, individual trusts 
and common, collective or group trusts maintained by a bank, and any 
other account or fund to the extent that the disposition of its assets 
(whether or not in the custody of the QPAM) is subject to the 
discretionary authority of the QPAM.
    (c) For purposes of section I(a) and Part II, an ``affiliate'' of a 
person means--
    (1) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person,
    (2) Any corporation, partnership, trust or unincorporated 
enterprise of which such person is an officer, director, 10 percent or 
more partner (except with respect to Part II this figure shall be 5 
percent), or highly compensated employee as defined in section 
4975(e)(2)(H) of the Code (but only if the employer of such employee is 
the plan sponsor), and
    (3) Any director of the person or any employee of the person who is 
a highly compensated employee, as defined in section 4975(e)(2)(H) of 
the Code, or who has direct or indirect authority, responsibility or 
control regarding the custody, management or disposition of plan assets 
involved in the transaction. A named fiduciary (within the meaning of 
section 402(a)(2) of ERISA) of a plan with respect to the plan assets 
involved in the transaction and an employer any of whose employees are 
covered by the

[[Page 38844]]

plan will also be considered affiliates with respect to each other for 
purposes of section I(a) if such employer or an affiliate of such 
employer has the authority, alone or shared with others, to appoint or 
terminate the named fiduciary or otherwise negotiate the terms of the 
named fiduciary's employment agreement.
    (d) For purposes of section I(g) an ``affiliate'' of a person 
means--
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person,
    (2) Any director of, relative of, or partner in, any such person,
    (3) Any corporation, partnership, trust or unincorporated 
enterprise of which such person is an officer, director, or a 5 percent 
or more partner or owner, and
    (4) Any employee or officer of the person who--
    (A) Is a highly compensated employee (as defined in section 
4975(e)(2)(H) of the Code) or officer (earning 10 percent or more of 
the yearly wages of such person), or
    (B) Has direct or indirect authority, responsibility or control 
regarding the custody, management or disposition of plan assets.
    (e) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (f) The term ``party in interest'' means a person described in 
ERISA section 3(14) and includes a ``disqualified person,'' as defined 
in Code section 4975(e)(2).
    (g) The term ``relative'' means a relative as that term is defined 
in ERISA section 3(15), or a brother, a sister, or a spouse of a 
brother or sister.
    (h) A QPAM is ``related'' to a party in interest for purposes of 
section I(d) of this exemption if, as of the last day of its most 
recent calendar quarter: (i) The QPAM owns a ten percent or more 
interest in the party in interest; (ii) a person controlling, or 
controlled by, the QPAM owns a twenty percent or more interest in the 
party in interest; (iii) the party in interest owns a ten percent or 
more interest in the QPAM; or (iv) a person controlling, or controlled 
by, the party in interest owns a twenty percent or more interest in the 
QPAM. Notwithstanding the foregoing, a party in interest is ``related'' 
to a QPAM if: (i) A person controlling, or controlled by, the party in 
interest has an ownership interest that is less than twenty percent but 
greater than ten percent in the QPAM and such person exercises control 
over the management or policies of the QPAM by reason of its ownership 
interest; (ii) a person controlling, or controlled by, the QPAM has an 
ownership interest that is less than twenty percent but greater than 
ten percent in the party in interest and such person exercises control 
over the management or policies of the party in interest by reason of 
its ownership interest. For purposes of this definition:
    (1) The term ``interest'' means with respect to ownership of an 
entity--
    (A) The combined voting power of all classes of stock entitled to 
vote or the total value of the shares of all classes of stock of the 
entity if the entity is a corporation,
    (B) The capital interest or the profits interest of the entity if 
the entity is a partnership, or
    (C) The beneficial interest of the entity if the entity is a trust 
or unincorporated enterprise; and
    (2) A person is considered to own an interest if, other than in a 
fiduciary capacity, the person has or shares the authority--
    (A) To exercise any voting rights or to direct some other person to 
exercise the voting rights relating to such interest, or
    (B) To dispose or to direct the disposition of such interest.
    (i) The time as of which any transaction occurs is the date upon 
which the transaction is entered into. In addition, in the case of a 
transaction that is continuing, the transaction shall be deemed to 
occur until it is terminated. If any transaction is entered into on or 
after December 21, 1982, or a renewal that requires the consent of the 
QPAM occurs on or after December 21, 1982 and the requirements of this 
exemption are satisfied at the time the transaction is entered into or 
renewed, respectively, the requirements will continue to be satisfied 
thereafter with respect to the transaction. Notwithstanding the 
foregoing, this exemption shall cease to apply to a transaction exempt 
by virtue of Part I or Part II at such time as the percentage 
requirement contained in section I(e) is exceeded, unless no portion of 
such excess results from an increase in the assets transferred for 
discretionary management to a QPAM. For this purpose, assets 
transferred do not include the reinvestment of earnings attributable to 
those plan assets already under the discretionary management of the 
QPAM. Nothing in this paragraph shall be construed as exempting a 
transaction entered into by an investment fund which becomes a 
transaction described in section 406 of ERISA or section 4975 of the 
Code while the transaction is continuing, unless the conditions of this 
exemption were met either at the time the transaction was entered into 
or at the time the transaction would have become prohibited but for 
this exemption.
    (j) The term ``goods'' includes all things which are movable or 
which are fixtures used by an investment fund but does not include 
securities, commodities, commodities futures, money, documents, 
instruments, accounts, chattel paper, contract rights and any other 
property, tangible or intangible, which, under the relevant facts and 
circumstances, is held primarily for investment.
    (k) For purposes of section VI(a)(1) and (2), the term ``equity 
capital'' means stock (common and preferred), surplus, undivided 
profits, contingency reserves and other capital reserves.
    (l) For purposes of section VI(a)(3), the term ``net worth'' means 
capital, paid-in and contributed surplus, unassigned surplus, 
contingency reserves, group contingency reserves, and special reserves.
    (m) For purposes of section VI(a)(4), the term ``shareholders' or 
partners' equity'' means the equity shown in the most recent balance 
sheet prepared within the two years immediately preceding a transaction 
undertaken pursuant to this exemption, in accordance with generally 
accepted accounting principles.
    (n) The terms ``employee benefit plan'' and ``plan'' refer to an 
employee benefit plan described in section 3(3) of ERISA and/or a plan 
described in section 4975(e)(1) of the Code.
    (o) For purposes of section VI(a), the term ``independent 
fiduciary'' means a fiduciary managing the assets of a plan in an 
investment fund that is independent of and unrelated to the employer 
sponsoring such plan. For purposes of this exemption, the independent 
fiduciary will not be deemed to be independent of and unrelated to the 
employer sponsoring the plan if such fiduciary directly or indirectly 
controls, is controlled by, or is under common control with the 
employer sponsoring the plan. Notwithstanding the foregoing: (1) For 
the period from December 21, 1982, through November 3, 2010, a QPAM 
managing the assets of a plan in an investment fund will not fail to 
satisfy the requirements of this section solely because such fiduciary 
is the employer sponsoring the plan or directly or indirectly controls, 
is controlled by, or is under common control with the employer 
sponsoring the plan; and (2) effective after November 3, 2010 a QPAM 
acting as a manager for its own plan or the plan of an affiliate (as 
defined in section VI(c)(1)) will be deemed to satisfy the requirements 
of

[[Page 38845]]

this section if the requirements of Part V are met.
    (p) Exemption Audit. An ``exemption audit'' of a plan must consist 
of the following:
    (1) A review of the written policies and procedures adopted by the 
QPAM pursuant to section V(b) for consistency with each of the 
objective requirements of this exemption (as described in section 
VI(q)).
    (2) A test of a representative sample of the plan's transactions 
during the audit period that is sufficient in size and nature to afford 
the auditor a reasonable basis:
    (A) To make specific findings regarding whether the QPAM is in 
compliance with (i) the written policies and procedures adopted by the 
QPAM pursuant to section VI(q) of the exemption and (ii) the objective 
requirements of the exemption; and
    (B) To render an overall opinion regarding the level of compliance 
of the INHAM's program with section VI(p)(2)(A)(i) and (ii) of the 
exemption.
    (3) A determination as to whether the QPAM has satisfied the 
definition of an QPAM under the exemption; and
    (4) Issuance of a written report describing the steps performed by 
the auditor during the course of its review and the auditor's findings.
    (q) For purposes of section VI(p), the written policies and 
procedures must describe the following objective requirements of the 
exemption and the steps adopted by the QPAM to assure compliance with 
each of these requirements:
    (1) The definition of a QPAM in section VI(a).
    (2) The requirement of sections V(a) and I(c) regarding the 
discretionary authority or control of the QPAM with respect to the plan 
assets involved in the transaction, in negotiating the terms of the 
transaction and with respect to the decision on behalf of the 
investment fund to enter into the transaction.
    (3) For a transaction described in Part I:
    (A) That the transaction is not entered into with any person who is 
excluded from relief under section I(a), section I(d), or section I(e),
    (B) that the transaction is not described in any of the class 
exemptions listed in section I(b),
    (4) If the transaction is described in section III:
    (A) That the amount of space covered by the lease does not exceed 
the limitations described in section III(a); and
    (B) That no commission or other fee is paid by the investment fund 
as described in section III(d).

    Signed at Washington, DC, this 29th day of June, 2010.
Ivan L. Strasfeld
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2010-16302 Filed 7-2-10; 8:45 am]
BILLING CODE 4510-29-P