Notice of Exemption Involving Deutsche Bank AG (Deutsche Bank or the Applicant) Located in Frankfurt, Germany, 53574-53577 [2015-22034]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 80, Number 172 (Friday, September 4, 2015)]
[Notices]
[Pages 53574-53577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-22034]



[[Page 53574]]

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2015-15; Application No. D-11696]


Notice of Exemption Involving Deutsche Bank AG (Deutsche Bank or 
the Applicant) Located in Frankfurt, Germany

AGENCY: Employee Benefits Security Administration, U.S. Department of 
Labor.

ACTION: Notice of temporary exemption.

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SUMMARY: This document contains a temporary exemption issued by the 
Department of Labor (the Department). The exemption permits certain 
entities with specified relationships to Deutsche Bank to continue to 
rely upon the relief provided by Prohibited Transaction Class Exemption 
(PTE) 84-14, for a period of nine months, following the criminal 
conviction of Deutsche Securities Korea Co. (Deutsche Securities Korea 
Co. or DSK) for spot/futures-linked market price manipulation.

DATES: Effective Date: This exemption is effective for a period of nine 
months, beginning on the date (the Conviction Date) that a judgment of 
conviction against DSK is entered in Seoul Central District Court, 
South Korea, relating to charges filed against DSK under Articles 176, 
443, and 448 of South Korea's Financial Investment Services and Capital 
Markets Act for spot/futures-linked market price manipulation.

FOR FURTHER INFORMATION CONTACT: Scott Ness, telephone (202) 693-8561, 
Office of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor (this is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: On August 24, 2015, the Department of Labor 
(the Department) published a notice of proposed temporary exemption in 
the Federal Register at 80 FR 51314, for certain entities with 
specified relationships to Deutsche Bank to continue to rely on the 
relief provided by Prohibited Transaction Class Exemption (PTE) 84-
14,\1\ notwithstanding an impending judgment of conviction, in Seoul 
Central District Court, South Korea, against DSK, which could be 
entered as early as September 3, 2015, for spot/futures-linked market 
price manipulation (the Conviction).
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    \1\ 49 FR 9494 (March 13, 1984), as corrected at 50 FR 41430 
(October 10, 1985), as amended at 70 FR 49305 (August 23, 2005), and 
as amended at 75 FR 38837 (July 6, 2010).
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    This exemption was requested by Deutsche Bank pursuant to section 
408(a) of the Employee Retirement Income Security Act of 1974, as 
amended (ERISA) 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 (76 FR 66637, 66644, October 27, 
2011). Effective December 31, 1978, section 102 of the Reorganization 
Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority 
of the Secretary of the Treasury to issue administrative exemptions 
under section 4975(c)(2) of the Code to the Secretary of Labor. 
Accordingly, this notice of temporary exemption is being issued solely 
by the Department.
    As noted in the proposed exemption, once DSK is convicted, asset 
managers affiliated with DSK (the DB QPAMs) will be unable to rely on 
the relief provided by PTE 84-14. In this regard, Section I(g) of PTE 
84-14 precludes a person who may otherwise meet the definition of a 
QPAM from relying on the relief provided by that class exemption if 
that person or its ``affiliate'' has, within 10 years immediately 
preceding the transaction, been either convicted or released from 
imprisonment, whichever is later, as a result of certain specified 
criminal activity described therein. This exemption preserves the 
ability of DB QPAMs to continue to rely on the relief provided by PTE 
84-14, following the Conviction, for a period of nine months beginning 
on the Conviction Date, as long as the conditions herein are met. 
Absent this temporary relief, plans and IRAs with assets managed by the 
DB QPAMs may incur substantial costs in being forced to liquidate and 
reinvest their portfolios, and hire new investment managers on short 
notice. This exemption insulates these plans and IRAs from such sudden 
costs and/or losses, in a manner that is protective of the plans and 
IRAs.
    Following Deutsche Bank's submission of Exemption Application No. 
D-11696, which is the subject of this exemption (the First Request), 
Deutsche Bank filed an additional exemption application (Exemption 
Application No. D-11856, hereinafter, the Second Request) regarding an 
additional impending criminal conviction. The Second Request seeks 
exemptive relief for DB QPAMs to continue to rely on PTE 84-14 for a 
period of ten years, notwithstanding both: The criminal conviction of 
DSK for market manipulation that is the subject of this exemption; and 
the criminal conviction of a Deutsche Bank affiliate, DB Group Services 
UK Limited, for one count of wire fraud in connection with its role in 
manipulating LIBOR.
    The Department has tentatively denied the Second Request, upon 
initially determining that the exemption sought is not in the interest 
of affected plans and IRAs, and not protective of those plans and IRAs. 
If the Department makes a final decision not to propose the Second 
Request, the DB QPAMs will be unable to rely on the relief set forth in 
PTE 84-14 upon the earlier of the day that follows the nine month term 
of this exemption, or the date any of the conditions herein are not 
met. The Department notes that Deutsche Bank has requested a conference 
to afford Deutsche Bank the opportunity to provide additional 
information in support of its exemption request. Following the 
conference, the Department will review the entire record, including any 
additional information provided in connection with the conference, 
before determining whether to continue processing the Second Request.

Written Comments

    The Department invited all interested persons to submit written 
comments and/or requests for a public hearing with respect to the 
notice of proposed exemption published in the Federal Register on 
August 24, 2015. The Department did not receive any comments or 
requests for a hearing.
    This exemption contains several conditions, including an audit to 
be performed by an independent auditor that is designed to ensure legal 
compliance by each DB QPAM by requiring rigorous training on fiduciary 
duties and ethical conduct, as outlined in Subsections I(e) and (f). In 
addition, each DB QPAM is generally required to permit plans and IRAs 
to transfer their assets to another asset manager without imposing an 
additional fee, penalty, or charge on such plan or IRA. Also, the DB 
QPAMs may not require that plans or IRAs insulate the QPAM from 
liability for violating ERISA or the Code or engaging in prohibited 
transactions.
    As a final note, the Department stresses that the act of selecting 
and retaining an investment manager service provider is a fiduciary 
act; and that a plan fiduciary is under a continuing duty to monitor 
the service provider's performance at reasonable intervals. Fiduciaries 
(including investment managers) should be reviewed by the appointing 
fiduciaries in such a manner as may be reasonably expected to ensure

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that their performance has been in compliance with the terms of the 
plan and statutory standards (e.g., prudence, exclusive benefit, and 
prohibited transactions rules). Such review may cause the appointing 
fiduciary to reconsider the prudence of employing the fiduciary as a 
service provider to its ERISA-covered plan.
    The Department has decided to grant this temporary exemption after 
giving full consideration to: The types of transactions covered by this 
exemption; the potential harm to plans and IRAs if temporary relief is 
not granted; and the protective nature of the conditions imposed 
herein. The complete application file, with copies of the comments, is 
available for public inspection in the Public Disclosure Room of the 
Employee Benefits Security Administration, Room N-1515, U.S. Department 
of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the proposed exemption published in the Federal Register on August 24, 
2015, at 80 FR 51314.

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 the Act or section 4975(c)(2) of the Code does 
not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions of the Act and/or the Code, 
including any prohibited transaction provisions to which the exemption 
does not apply and the general fiduciary responsibility provisions of 
section 404 of the Act, which, among other things, require a fiduciary 
to discharge his duties respecting the plan solely in the interest of 
the participants and beneficiaries of the plan and in a prudent fashion 
in accordance with section 404(a)(1)(B) of the Act; 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 section 
4975(c)(2) of the Code, the Department makes the following 
determinations: The exemption is administratively feasible, the 
exemption is in the interests of the plan and of its participants and 
beneficiaries, and the exemption is protective of the rights of 
participants and beneficiaries of the plan;
    (3) The exemption is supplemental to, and not in derogation of, any 
other provisions of ERISA, 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; and
    (4) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describe all material terms of the transaction 
which is the subject of the exemption.
    Accordingly, the following exemption is granted under the authority 
of 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 
(76 FR 66637, 66644, October 27, 2011):

Exemption

Section I: Covered Transactions

    The DB QPAMs (as defined in Section II(b)) shall not be precluded 
from relying on the exemptive relief provided by Prohibited Transaction 
Exemption (PTE) 84-14,\2\ notwithstanding the Conviction (as defined in 
Section II(a)), for a period of nine months beginning on the date of 
the Conviction (the Conviction Date), provided that the following 
conditions are satisfied:
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    \2\ 49 FR 9494 (March 13, 1984), as corrected at 50 FR 41430 
(October 10, 1985), as amended at 70 FR 49305 (August 23, 2005), and 
as amended at 75 FR 38837 (July 6, 2010).
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    (a) The DB QPAMs (including their officers, directors, agents other 
than Deutsche Bank, and employees of such DB QPAMs) did not know of, 
have reason to know of, or participate in the criminal conduct of DSK 
that is the subject of the Conviction;
    (b) Any failure of the DB QPAMs to satisfy Section I(g) of PTE 84-
14 arose solely from the Conviction;
    (c) The DB QPAMs did not directly receive compensation in 
connection with the criminal conduct that is the subject of the 
Conviction;
    (d) A DB QPAM will not use its authority or influence to direct an 
``investment fund'' (as defined in Section VI(b) of PTE 84-14) that is 
subject to ERISA and managed by such DB QPAM to enter into any 
transaction with DSK or engage DSK to provide additional services to 
such investment fund, for a direct or indirect fee borne by such 
investment fund regardless of whether such transactions or services may 
otherwise be within the scope of relief provided by an administrative 
or statutory exemption;
    (e)(1) Each DB QPAM immediately develops, implements, maintains, 
and follows written policies (the Policies) requiring and reasonably 
designed to ensure that: (i) The asset management decisions of the DB 
QPAM are conducted independently of Deutsche Bank's management and 
business activities; (ii) the DB QPAM fully complies with ERISA's 
fiduciary duties and ERISA and the Code's prohibited transaction 
provisions and does not knowingly participate in any violations of 
these duties and provisions with respect to ERISA-covered plans and 
IRAs; (iii) the DB QPAM does not knowingly participate in any other 
person's violation of ERISA or the Code with respect to ERISA-covered 
plans and IRAs; (iv) any filings or statements made by the DB QPAM to 
regulators, including but not limited to, the Department of Labor, the 
Department of the Treasury, the Department of Justice, and the Pension 
Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs 
are materially accurate and complete, to the best of such QPAM's 
knowledge at that time; (v) the DB QPAM does not make material 
misrepresentations or omit material information in its communications 
with such regulators with respect to ERISA-covered plans or IRAs, or 
make material misrepresentations or omit material information in its 
communications with ERISA-covered plan and IRA clients; (vi) the DB 
QPAM complies with the terms of this exemption; and (vii) any 
violations of or failure to comply with items (ii) through (vi) are 
corrected promptly upon discovery and any such violations or compliance 
failures not promptly corrected are reported, upon discovering the 
failure to promptly correct, in writing, to appropriate corporate 
officers, the head of Compliance, and the General Counsel of the 
relevant DB QPAM, the independent auditor responsible for reviewing 
compliance with the Policies, and a fiduciary of any affected ERISA-
covered plan or IRA where such fiduciary is independent of Deutsche 
Bank; however, with respect to any ERISA-covered plan or IRA sponsored 
by an ``affiliate'' (as defined in Section VI(d) of PTE 84-14) of 
Deutsche Bank or beneficially owned by an employee of Deutsche Bank or 
its affiliates, such fiduciary does not need to be independent of 
Deutsche Bank; DB QPAMs will not be treated as having failed to 
develop, implement, maintain, or follow the Policies, provided that

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they correct any instances of noncompliance promptly when discovered or 
when they reasonably should have known of the noncompliance (whichever 
is earlier), and provided that they adhere to the reporting 
requirements set forth in this item (vii);
    (2) Each DB QPAM immediately develops and implements a program of 
training (the Training), conducted at least annually for relevant DB 
QPAM asset management, legal, compliance, and internal audit personnel; 
the Training shall be set forth in the Policies and, at a minimum, 
cover the Policies, ERISA and Code compliance (including applicable 
fiduciary duties and the prohibited transaction provisions) and ethical 
conduct, the consequences for not complying with the conditions of this 
exemption, (including the loss of the exemptive relief provided 
herein), and prompt reporting of wrongdoing;
    (f)(1) Each DB QPAM submits to an audit conducted by an independent 
auditor, who has been prudently selected and who has appropriate 
technical training and proficiency with ERISA to evaluate the adequacy 
of, and compliance with, the Policies and Training described herein; 
the audit requirement must be incorporated in the Policies. The audit 
must cover the time period during which this exemption is effective, 
and must be completed no later than three (3) months after the period 
to which the audit applies;
    (2) To the extent necessary for the auditor, in its sole opinion, 
to complete its audit and comply with the conditions for relief 
described herein, and as permitted by law, each DB QPAM and, if 
applicable, Deutsche Bank, will grant the auditor unconditional access 
to its business, including, but not limited to: Its computer systems, 
business records, transactional data, workplace locations, training 
materials, and personnel;
    (3) The auditor's engagement shall specifically require the auditor 
to determine whether each DB QPAM has developed, implemented, 
maintained, and followed Policies in accordance with the conditions of 
this exemption and developed and implemented the Training, as required 
herein;
    (4) The auditor's engagement shall specifically require the auditor 
to test each DB QPAM's operational compliance with the Policies and 
Training;
    (5) For each audit, the auditor shall issue a written report (the 
Audit Report) to Deutsche Bank and the DB QPAM to which the audit 
applies that describes the procedures performed by the auditor during 
the course of its examination. The Audit Report shall include the 
auditor's specific determinations regarding the adequacy of, and 
compliance with, the Policies and Training; the auditor's 
recommendations (if any) with respect to strengthening such Policies 
and Training; and any instances of the respective DB QPAM's 
noncompliance with the written Policies and Training described in 
Section I(e) above. Any determinations made by the auditor regarding 
the adequacy of the Policies and Training and the auditor's 
recommendations (if any) with respect to strengthening the Policies and 
Training of the respective DB QPAM shall be promptly addressed by such 
DB QPAM, and any actions taken by such DB QPAM to address such 
recommendations shall be included in an addendum to the Audit Report. 
Any determinations by the auditor that the respective DB QPAM has 
implemented, maintained, and followed sufficient Policies and Training 
shall not be based solely or in substantial part on an absence of 
evidence indicating noncompliance. In this last regard, any finding 
that the DB QPAM has complied with the requirements under this 
subsection must be based on evidence that demonstrates the DB QPAM has 
actually implemented, maintained, and followed the Policies and 
Training required by this exemption, and not solely on evidence that 
demonstrates that the DB QPAM has not violated ERISA;
    (6) The auditor shall notify the respective DB QPAM of any 
instances of noncompliance identified by the auditor within five (5) 
business days after such noncompliance is identified by the auditor, 
regardless of whether the audit has been completed as of that date;
    (7) With respect to each Audit Report, the General Counsel or one 
of the three most senior executive officers of the DB QPAM to which the 
Audit Report applies, certifies, in writing, under penalty of perjury, 
that the officer has reviewed the Audit Report and this exemption; and 
addressed, corrected, or remedied any inadequacies identified in the 
Audit Report;
    (8) An executive officer of Deutsche Bank reviews the Audit Report 
for each DB QPAM and certifies in writing, under penalty of perjury, 
that such officer has reviewed each Audit Report;
    (9) Each DB QPAM provides its certified Audit Report to the 
Department's Office of Exemption Determinations (OED), 200 Constitution 
Avenue NW, Suite 400, Washington DC 20210, no later than 30 days 
following its completion, and each DB QPAM makes its Audit Report 
unconditionally available for examination by any duly authorized 
employee or representative of the Department, other relevant 
regulators, and any fiduciary of an ERISA-covered plan or IRA, the 
assets of which are managed by such DB QPAM;
    (10) Each DB QPAM and the auditor will submit to OED (A) any 
engagement agreement(s) entered into pursuant to the engagement of the 
auditor under this exemption, and (B) any engagement agreement entered 
into with any other entities retained in connection with such QPAM's 
compliance with the Training or Policies conditions of this exemption, 
no later than three (3) months after the date of the Conviction (and 
one month after the execution of any agreement thereafter);
    (11) The auditor shall provide OED, upon request, all of the 
workpapers created and utilized in the course of the audit, including, 
but not limited to: The audit plan, audit testing, identification of 
any instances of noncompliance by the relevant DB QPAM, and an 
explanation of any corrective or remedial actions taken by the 
applicable DB QPAM; and
    (12) Deutsche Bank must notify the Department at least 30 days 
prior to any substitution of an auditor, except that no such 
replacement will meet the requirements of this paragraph unless and 
until Deutsche Bank demonstrates to the Department's satisfaction that 
such new auditor is independent of Deutsche Bank, experienced in the 
matters that are the subject of the exemption, and capable of making 
the determinations required of this exemption;
    (g) With respect to each ERISA-covered plan or IRA for which a DB 
QPAM provides asset management or other discretionary fiduciary 
services, each DB QPAM agrees: (1) To comply with ERISA and the Code, 
as applicable with respect to such ERISA-covered plan or IRA, and 
refrain from engaging in prohibited transactions that are not otherwise 
exempt; (2) not to waive (or cause to be waived), limit, or qualify the 
liability of the DB QPAM for violating ERISA or the Code or engaging in 
prohibited transactions; (3) not to require the ERISA-covered plan or 
IRA (or sponsor of such ERISA-covered plan or beneficial owner of such 
IRA) to indemnify the DB QPAM for violating ERISA or engaging in 
prohibited transactions, except for violations or prohibited 
transactions caused by an error, misrepresentation, or misconduct of a 
plan fiduciary or other party hired by the plan fiduciary who is 
independent of Deutsche Bank; (4) not to restrict the ability of such 
ERISA-covered plan or IRA to terminate or

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withdraw from its arrangement with the DB QPAM, with the exception of 
reasonable restrictions, appropriately disclosed in advance, that are 
specifically designed to ensure equitable treatment of all investors in 
a pooled fund in the event such withdrawal or termination may have 
adverse consequences for all other investors, provided that such 
restrictions are applied consistently and in like manner to all such 
investors; and (5) not to impose any fees, penalties, or charges for 
such termination or withdrawal with the exception of reasonable fees, 
appropriately disclosed in advance, that are specifically designed to 
prevent generally recognized abusive investment practices or 
specifically designed to ensure equitable treatment of all investors in 
a pooled fund in the event such withdrawal or termination may have 
adverse consequences for all other investors, provided that such fees 
are applied consistently and in like manner to all such investors. 
Within two (2) months of the date of publication of this notice of 
exemption in the Federal Register, each DB QPAM will provide a notice 
of its obligations under this Section I(g) to each ERISA-covered plan 
or IRA for which a DB QPAM provides asset management or other 
discretionary fiduciary services;
    (h) Each DB QPAM will maintain records necessary to demonstrate 
that the conditions of this exemption have been met, for six (6) years 
following the date of any transaction for which such DB QPAM relies 
upon the relief in the exemption; and
    (i) The DB QPAMs comply with each condition of PTE 84-14, as 
amended, with the sole exception of the violation of Section I(g) that 
is attributable to the Conviction;
    (j) The DB QPAMs will not employ any of the individuals that 
engaged in the spot/futures-linked market manipulation activities that 
led to the Conviction;
    (k) The DB QPAMs will provide a notice of the proposed exemption 
and this notice of temporary exemption, along with a separate summary 
describing the facts that led to the Conviction as well as a statement 
that Deutsche Bank has made a separate exemption request, in 
Application No. D-11856, in connection with the potential conviction of 
DB Group Services UK Limited for one count of wire fraud in connection 
with DB Group Services UK Limited's role in manipulating LIBOR, which 
has been submitted to the Department, and a prominently displayed 
statement that the Conviction results in a failure to meet a condition 
in PTE 84-14 to each sponsor of an ERISA-covered plan and each 
beneficial owner of an IRA invested in an investment fund managed by a 
DB QPAM, or the sponsor of an investment fund in any case where a DB 
QPAM acts only as a sub-advisor to the investment fund;
    (l) Deutsche Bank disgorged all of its profits generated by the 
spot/futures-linked market manipulation activities of DSK personnel 
that led to the Conviction;
    (m) Deutsche Bank imposes internal procedures, controls, and 
protocols on DSK designed to reduce the likelihood of any recurrence of 
the conduct that is the subject of the Conviction, to the extent 
permitted by local law;
    (n) DSK has not, and will not, provide fiduciary or QPAM services 
to ERISA-covered plans or IRAs, and will not otherwise exercise 
discretionary control over plan assets;
    (o) No DB QPAM is a subsidiary of DSK, and DSK is not a subsidiary 
of any DB QPAM;
    (p) The criminal conduct of DSK that is the subject of the 
Conviction did not directly or indirectly involve the assets of any 
plan subject to Part 4 of Title I of ERISA or section 4975 of the Code; 
and
    (q) A DB QPAM will not fail to meet the terms of this exemption 
solely because a different DB QPAM fails to satisfy the conditions for 
relief under this exemption described in Sections I(d), (e), (f), (g), 
(h), (i), and (k).

Section II: Definitions

    (a) The term ``Conviction'' means the judgment of conviction 
against DSK to be entered on or about September 3, 2015, in Seoul 
Central District Court, South Korea, relating to charges filed against 
DSK under Articles 176, 443, and 448 of South Korea's Financial 
Investment Services and Capital Markets Act for spot/futures-linked 
market price manipulation;
    (b) The term ``DB QPAM'' means a ``qualified professional asset 
manager'' (as defined in section VI(a) \3\ of PTE 84-14) that relies on 
the relief provided by PTE 84-14 and with respect to which DSK is a 
current or future ``affiliate'' (as defined in section VI(d) of PTE 84-
14); and
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    \3\ In general terms, a QPAM is an independent fiduciary that is 
a bank, savings and loan association, insurance company, or 
investment adviser that meets certain equity or net worth 
requirements and other licensure requirements and that has 
acknowledged in a written management agreement that it is a 
fiduciary with respect to each plan that has retained the QPAM.
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    (c) The term ``DSK'' means Deutsche Securities Korea Co., a South 
Korean ``affiliate'' of Deutsche Bank (as defined in section VI(c) of 
PTE 84-14).

    Signed at Washington, DC, this 1st day of September 2015.
Lyssa Hall,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2015-22034 Filed 9-3-15; 8:45 am]
 BILLING CODE 4510-29-P