Prohibited Transaction Exemption 2006-06 for Services Provided in Connection With the Termination of Abandoned Individual Account Plans, 43675-43684 [2024-09030]
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Federal Register / Vol. 89, No. 97 / Friday, May 17, 2024 / Rules and Regulations
Signed at Washington, DC, this 22nd day
of April, 2024.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2024–09029 Filed 5–16–24; 8:45 am]
BILLING CODE 4510–29–C
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
29 CFR Part 2550
[Application Number D–11657]
ZRIN 1210–ZA20
Prohibited Transaction Exemption
2006–06 for Services Provided in
Connection With the Termination of
Abandoned Individual Account Plans
Employee Benefits Security
Administration, Department of Labor.
ACTION: Exemption amendment.
AGENCY:
This document gives notice of
an amendment to prohibited transaction
exemption (PTE) 2006–06, a class
exemption issued under the Employee
Retirement Income Security Act of 1974
(ERISA). The exemption permits a
‘‘qualified termination administrator’’
(QTA) of an individual account pension
plan that has been abandoned by its
sponsoring employer to select itself to
provide services to the plan in
connection with the plan’s termination
and pay itself fees for the services. This
amendment to PTE 2006–06 permits
chapter 7 trustees who elect to be QTAs
to rely on the exemption. This
amendment to PTE 2006–06 also
permits ‘‘eligible designees’’ of such
chapter 7 trustees to rely on the
exemption. The amendment is issued in
connection with amendments to three
related regulations under ERISA,
published elsewhere in this issue of the
Federal Register, that provide
streamlined procedures for the
termination of, and distribution of
benefits from, abandoned individual
account pension plans. The amendment
would affect employee pension benefit
plans (primarily small defined
contribution plans), participants and
beneficiaries of such plans, service
providers, and individuals appointed to
serve as bankruptcy trustees under
chapter 7 of the U.S. Bankruptcy Code.
DATES: This amendment will be
effective on July 16, 2024.
FOR FURTHER INFORMATION CONTACT:
Susan Wilker, telephone (202) 693–
8540, Office of Exemption
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SUMMARY:
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Determinations, Employee Benefits
Security Administration, U.S.
Department of Labor (this is not a tollfree number).
SUPPLEMENTARY INFORMATION:
A. Summary Overview
On April 21, 2006, the Department of
Labor issued three regulations that
established the Employee Benefits
Security Administration’s (EBSA)
Abandoned Plan Program to facilitate
the orderly and efficient termination of,
and distribution of benefits from,
individual account pension plans that
have been abandoned by their
sponsoring employers.1 The first
regulation (the QTA Regulation)
establishes standards for determining
when individual account plans may be
considered ‘‘abandoned’’ and
procedures by which financial
institutions, called ‘‘qualified
termination administrators’’ (QTAs)
holding the assets of such plans may
terminate the plans and distribute
benefits to participants and
beneficiaries, with limited liability
under Title I of the Employee
Retirement Income Security Act
(ERISA).2 The second regulation (the
Safe Harbor Regulation) provides a
fiduciary safe harbor for QTAs to make
distributions on behalf of participants
and beneficiaries who fail to elect a
form of benefit distribution. These
participants and beneficiaries are
sometimes referred to as ‘‘missing
participants.’’ 3 The third regulation
establishes a simplified method for
filing a terminal report for abandoned
individual account plans.4
The 2006 regulations were
accompanied by a class prohibited
transaction exemption, PTE 2006–06,
that facilitates the goal of the 2006
regulations by permitting a QTA who
meets the exemption’s conditions to (1)
select itself or an affiliate to carry out
the termination and winding up
activities specified in the 2006
regulations, and (2) pay fees to itself or
an affiliate for those services. In
addition, PTE 2006–06 permits QTAs to
receive fees in connection with
establishing an individual retirement
plan or other account and selecting the
initial investment product for missing
participants. These activities are
prohibited under the following
1 71 FR 20820. See also, 73 FR 58459 (Oct. 7,
2008) for subsequent amendments with regard to
distributions on behalf of a missing non-spouse
beneficiary.
2 29 CFR 2578.1.
3 29 CFR 2550.404a–3. This safe harbor also is
available to fiduciaries of terminated individual
account plans that are not abandoned.
4 29 CFR 2520.103–13.
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43675
provisions of Title I of ERISA (and
parallel Code provisions) in the absence
of a prohibited transaction exemption:
• ERISA section 406(a)(1)(C), which
prohibits a plan fiduciary from causing
the plan to engage in a transaction that
constitutes a direct or indirect
furnishing of goods, services, or
facilities between the plan and a party
in interest;
• ERISA section 406(a)(1)(D), which
prohibits a fiduciary from entering into
a transaction that constitutes a direct or
indirect transfer of plan assets to a party
in interest, or the use of plan assets by
or for the benefit of a party in interest;
• ERISA section 406(b)(1), which
prohibits a plan fiduciary from dealing
with the assets of the plan in the
fiduciary’s own interest or for the
fiduciary’s own account; and
• ERISA section 406(b)(2), which
prohibits a plan fiduciary from acting,
in any transaction involving the plan,
on behalf of a party (or representing a
party) whose interests are adverse to the
interests of the plan or its participants
or beneficiaries.
On December 12, 2012, the
Department published proposed
amendments to the 2006 regulations and
the associated PTE 2006–06.5 The
purpose of proposed amendments to the
2006 regulations was to advance the
interests of participants and
beneficiaries by:
(1) facilitating the orderly and
efficient termination of individual
account plans whose sponsors are in
liquidation under chapter 7 of the
Bankruptcy Code (‘‘Chapter 7 ERISA
Plans’’); 6
(2) reducing administrative burden
and costs imposed on Chapter 7 ERISA
Plan Plans that terminate in accordance
with the regulations; and
(3) providing an avenue for
bankruptcy trustees to discharge their
duties under ERISA and the Bankruptcy
Code with respect to Chapter 7 ERISA
Plans.
The purpose of the proposed
amendments to PTE 2006–06 was to
supplement the amendments to the
2006 regulations by providing the
necessary prohibited transaction relief
to facilitate the termination of Chapter
7 ERISA Plans.
The Department received seven
written comment letters on the 2012
proposed amendments, several of which
raised issues related to the proposed
amendment to PTE 2006–06 that are
5 77
FR 74063; 77 FR 74056.
proposal referred to these plans as ‘‘chapter
7 plans.’’ The new term ‘‘Chapter 7 ERISA Plans’’
is used for avoidance of confusion regarding the
term chapter 7 plan used in the bankruptcy context.
6 The
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available on the Department’s website.7
The Department considered the issues
raised by the commenters in granting
this amendment to PTE 2006–06. The
Department also issued interim final
amendments to the 2006 regulations
with a request for comment (referred to
as the ‘‘Regulations’’) 8 that appear
elsewhere in this issue of the Federal
Register.
In granting this amendment to PTE
2006–06, the Department has
determined that the amendment is
administratively feasible, in the
interests of plans and their participants
and beneficiaries, and protective of the
rights of plan participants and
beneficiaries as required by ERISA
section 408(a) and Internal Revenue
Code (Code) section 4975(c)(2).9
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B. Fiduciary Status of Bankruptcy
Trustees and Prohibited Transactions
In bankruptcy cases, as with
abandoned plans generally, the sponsor
usually is not in a position to carry out
the activities associated with formally
terminating the plan. Instead, the
Department expected that, in chapter 7
bankruptcy cases, the appointed
bankruptcy trustee would take the
necessary steps to terminate the plan,
wind up its affairs, and distribute plan
benefits. The issue of the bankruptcy
trustee’s authority to terminate and
wind up the plan was addressed by the
enactment of 11 U.S.C. 704(a)(11) as
part of the Bankruptcy Abuse
Prevention and Consumer Protection
Act of 2005.10 Under that provision,
when an entity that sponsors an
individual account plan is liquidated
under chapter 7 of the Bankruptcy Code,
the appointed bankruptcy trustee
administering the liquidation
proceeding is required to continue to
perform the plan administration
obligations that would otherwise be
required of the bankrupt entity.11
7 Available at https://www.dol.gov/agencies/ebsa/
laws-and-regulations/rules-and-regulations/publiccomments/1210-AB47.
8 The Department intends that PTE 2006–06 will
cover transactions related to the interim final
regulations or any subsequent final regulations
published thereafter. The Department will consider
proposing an additional amendment to PTE 2006–
06 if it makes changes to the Abandoned Plan
Program that impact the relief available under this
exemption.
9 Effective December 31, 1978, section 102 of
Reorganization Plan No. 4 of 1978, 5 U.S.C. App.
(2018), transferred the authority of the Secretary of
the Treasury to issue exemptions of the type
proposed to the Secretary of Labor. Therefore, this
amendment is issued solely by the Department.
10 Public Law 109–8, 119 Stat. 23.
11 11 U.S.C. 704(a)(11) refers to whether the
debtor (or any entity designated by the debtor)
serves as the administrator (as defined in ERISA
section 3) of an employee benefit plan. ERISA
section 3(16) defines the ‘‘administrator’’ as the
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Such obligations include taking the
steps necessary to terminate the plan,
wind up the affairs of the plan, and
distribute plan benefits to participants
and beneficiaries. A bankruptcy trustee
who undertakes these plan
responsibilities is a fiduciary within the
meaning of ERISA section 3(21) 12 who
is obligated under ERISA section 404 to
act prudently and solely in the interests
of plan participants and beneficiaries.
The Department has concluded that
expanding the Abandoned Plan Program
regulations to cover Chapter 7 ERISA
Plans and making other technical
changes in response to the public
comments would result in an improved
Abandoned Plan Program. The
Department acknowledges that it has
been over 10 years since the comment
period closed for the 2012 proposal.
However, the purposes of the
Department’s regulatory action and its
rationale for the 2012 proposal continue
to be relevant and would advance the
interests of participants and
beneficiaries in abandoned plans. The
Department is relying on the 2012
proposal, its consideration of comments
on that proposal, and its understanding
of the challenges facing Chapter 7
ERISA Plans in granting this exemption.
Although, the procedures and
requirements in the program are
voluntary, in the Department’s view, a
bankruptcy trustee that follows the
Regulations should generally be able to
reduce its administrative burden and
costs that are associated with
terminating an abandoned plan.
C. Description of the Amendment
1. Summary of Major Changes in This
Granted Exemption Amendment
This amendment to PTE 2006–06
expands the types of service providers
that are eligible to serve as QTAs to
include bankruptcy trustees and entities
designated by bankruptcy trustees to
terminate and wind up the affairs of
plans according to the Regulations
(referred to as ‘‘eligible designees’’).
This amendment would permit these
parties to rely on PTE 2006–06 to select
and pay themselves fees for services
provided in terminating and winding up
plan sponsor in the absence of any designation in
the plan document of another person as
administrator.
12 In this regard, section 3(21)(A)(i) of ERISA
provides that a person is a ‘‘fiduciary’’ with respect
to a plan to the extent he exercises any
discretionary authority or discretionary control
respecting management of such plan or exercises
any authority or control respecting management or
disposition of its assets. In addition, section
3(21)(A)(iii) of ERISA provides that a person is a
‘‘fiduciary’’ with respect to a plan to the extent he
has any discretionary authority or discretionary
responsibility in the administration of such plan.
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the affairs of a plan. Furthermore, for
the accounts of missing participants of
an abandoned plan, the amendment will
permit certain eligible designees to
select themselves or an Affiliate 13 (and
receive fees) to establish an Individual
Retirement Plan 14 or other account and
to select the initial investment product.
The prohibited transaction relief
provided by the exemption is available
only if the exemption conditions are
satisfied, which are designed to protect
the interests of the plans and their
participants and beneficiaries as
required by ERISA section 408(a) and
Code section 4975(c)(2).
2. Definition of ‘‘Qualified Termination
Administrator’’
To be a QTA that is eligible for the
prohibited transaction relief under the
original version of PTE 2006–06, an
entity was required to (i) be eligible to
serve as a trustee or issuer of an
individual retirement plan or other
account, within the meaning of Code
section 7701(a)(37) and (ii) hold assets
of the plan that is considered
abandoned. Bankruptcy trustees
ordinarily would not be eligible for the
exemptive relief as QTAs under this
definition.
As noted above, the Regulations are
amended elsewhere in this issue of the
Federal Register to include bankruptcy
trustees and their eligible designees.
Therefore, the final amendment likewise
expands the exemption’s QTA
definition to include a bankruptcy
trustee in a liquidation proceeding
under chapter 7 of title 11 of the United
States Code with responsibility under
11 U.S.C. 704(a)(11) to administer one
or more individual account plans
sponsored by the entity that is the
subject of the proceeding, who elects to
be a QTA under 29 CFR 2578.1(j)(6).15
The Regulations expand the group of
entities that can serve as a QTA by
13 Affiliate is defined to include: (1) Any person
directly or indirectly controlling, controlled by, or
under common control with, the person; or (2) Any
officer, director, partner or employee of the person.
The terms ‘‘controlling, controlled by, or under
common control’’ means the power to exercise a
controlling influence over the management or
policies of a person other than an individual. See
Sections V(e) and V(f) of this exemption
amendment.
14 Section V(b) of this exemption defines
Individual Retirement Plan to mean: an individual
retirement plan described in section 7701(a)(37) of
the Code. For purposes of Section III of this
exemption, the term ‘‘Individual Retirement Plan’’
shall also include an inherited individual
retirement plan (within the meaning of section
402(c)(11) of the Code) established to receive a
distribution on behalf of a non-spouse beneficiary.
Notwithstanding the foregoing, the term
‘‘Individual Retirement Plan’’ shall not include an
employee benefit plan covered by Title I of ERISA.
15 Eligible designees are defined in 29 CFR
2578.1(j)(4)(i) and (ii).
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allowing the bankruptcy trustee to also
appoint as an eligible designee either a
traditional asset custodian or a person,
other than the bankruptcy trustee of the
plan sponsor’s case, who has served
within the previous five years as a
bankruptcy trustee in a case under
chapter 7 of the Bankruptcy Code
(referred to as the ‘‘independent
bankruptcy trustee practitioner’’). This
amendment correspondingly expands
the prohibited transaction relief in PTE
2006–06 by including these ‘‘eligible
designees’’ in the exemption’s definition
of QTA.16
The Department also added a new
clarification which indicates that if a
bankruptcy trustee designates an
eligible designee, it shall not be
considered a QTA with respect to the
relief provided in this exemption. The
Department is making this additional
modification to the QTA definition
because the QTA Regulation considers
the bankruptcy trustee and the eligible
designee to be the QTA for certain
purposes.17 In connection with the
exemption, however, the Department
determined that once an eligible
designee is appointed, the eligible
designee should be the only entity
authorizing appropriate payments to the
bankruptcy trustee.
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3. The ‘‘Designating Bankruptcy
Trustee’’
The amendment includes a new
defined term for a ‘‘Designating
Bankruptcy Trustee.’’ 18 A Designating
Bankruptcy Trustee is a bankruptcy
trustee that designates an eligible
designee instead of serving as the QTA
itself.19 Importantly, this amendment
would allow the Designating
Bankruptcy Trustee to provide services
to the plan before designating an eligible
designee. These services could include
making reasonable and diligent efforts
to determine whether the plan is owed
any employee or employer
contributions, notifying the eligible
designee of its findings with respect to
missing or delinquent contributions,
establishing procedures to ensure the
eligible designee has reasonable access
to records in possession of the
bankruptcy trustee which are needed to
wind up the plan, selecting an eligible
designee, and subsequently monitoring
16 See
Section V(a) of this exemption amendment.
29 CFR 2578.1(e)(4).
18 See Section V(h) of this exemption amendment.
19 As noted above, the QTA Regulation indicates
that the bankruptcy trustee and eligible designee are
both considered the QTA for certain purposes. The
Department’s limitations with respect to the
bankruptcy trustee being considered the QTA for
purposes of this exemption do not modify or
otherwise supersede the QTA Regulation.
eligible designees in accordance with
ERISA section 404(a)(1)(A) and (B). As
noted in the QTA Regulation, the duty
to monitor the eligible designee is
ongoing throughout the termination and
winding up process.
From a prohibited transaction
standpoint, the Department determined
there may be uncertainty regarding an
eligible designee’s decision to pay the
Designating Bankruptcy Trustee with
plan assets. This is due, at least in part,
to the role of the bankruptcy trustee in
the QTA Regulation. To avoid this
uncertainty and facilitate the use of the
Abandoned Plan Program and PTE
2006–06 when an eligible designee is
selected, this amendment includes
specific prohibited transaction relief for
this scenario that is described in the
next section, below.
4. Covered Transactions and
Conditions—Overview
The prohibited transaction relief
provided by the amended exemption
would permit four general categories of
transactions in connection with
termination services. First, it would
permit the QTA to select itself or an
Affiliate to provide services to the plan.
Second, it would permit the QTA to pay
fees to itself or an Affiliate for those
services. Third, it would permit the
QTA to pay fees to itself for services
provided before the plan’s deemed
termination.20 Finally, it would permit
the QTA to pay fees to a Designating
Bankruptcy Trustee for services
provided to the plan. Without the
availability of the prohibited transaction
exemption, QTAs, their Affiliates, and
bankruptcy trustees would be unable to
use plan assets as a source of
compensation for their services, even
though those plan assets are usually the
only available source of payment.
The amended exemption would also
permit certain distribution transactions.
First, an asset custodian QTA could
designate itself or an Affiliate as the
provider of an Individual Retirement
Plan, other account, or a federally
insured bank or savings association
account for the distribution of benefits
if participants and beneficiaries do not
respond to the QTA regarding how they
would like their benefits distributed.21
Second, the amended exemption would
permit the asset custodian QTA to select
a proprietary investment product as the
17 See
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20 See
29 CFR 2578.1(c).
explained in more detail below with respect
to Section I(b), this prohibited transaction relief is
available only to eligible designee QTAs that are
asset custodians. It is not available for QTAs that
are bankruptcy trustees. It is also not available for
eligible designees that are independent bankruptcy
trustee practitioners.
21 As
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43677
initial investment in connection with
such distributions. Third, the QTA or its
Affiliate may receive fees in connection
with establishing and maintaining the
Individual Retirement Plan or other
account. Fourth, the QTA may pay
investment fees to itself or an Affiliate
as a result of investment in a qualifying
proprietary investment product.
(a) Termination Services and Payment
of Fees—Generally
Section I(a) of the amended
exemption provides prohibited
transaction relief for a QTA to select and
pay itself fees for services to the plan,
subject to the conditions in Sections II
and IV.22 Generally, the exemption
would permit a QTA to use its authority
to select itself or an Affiliate to provide
services to the plan and to pay itself or
an Affiliate fees for services performed
as the QTA. Prohibited transaction relief
under Section I(a) is available to all
entities that may serve as a QTA
according to the QTA Regulation.
Therefore, if the applicable conditions
are satisfied, a bankruptcy trustee could
select itself to be the QTA and also pay
itself for the QTA services it provides to
the plan. Similarly, if the bankruptcy
trustee appoints an eligible designee to
be the QTA, the eligible designee could
pay itself for services it provides to the
plan.
The amended exemption also
provides prohibited transaction relief
for plan-related services provided by a
bankruptcy trustee before a formal
determination is made regarding who
will be the QTA.23 If the bankruptcy
trustee becomes the QTA, the
exemption would permit the bankruptcy
trustee to pay itself for the non-QTA
services that were performed before it
becomes the QTA. The Department
provides this relief to ensure that
necessary plan services can continue to
be performed while a decision is made
regarding the selection of a QTA.
Relatedly, the amended exemption also
permits the eligible designee to pay the
bankruptcy trustee for services provided
22 Section I(a) provides prohibited transaction
relief for ERISA sections 406(a)(1)(A) through (D),
406(b)(1), and 406(b)(2) and the taxes imposed by
Code section 4975(a) and (b) by reason of Code
section 4975(c)(1)(A) through (E).
23 As noted above and described in the QTA
Regulation, these services include making
reasonable and diligent efforts to determine
whether the plan is owed any employee or
employer contributions, notifying the eligible
designee of its findings with respect to missing or
delinquent contributions, establishing procedures
to ensure the eligible designee has reasonable
access to records in possession of the bankruptcy
trustee which are needed to wind up the plan, and
selecting and monitoring eligible designees in
accordance with ERISA section 404(a)(1)(A) and
(B).
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to the plan if the eligible designee is the
QTA. This includes paying the
bankruptcy trustee for services provided
to the plan before the eligible designee
provided notice to the Department of its
intention to serve as QTA 24 or for
ongoing services provided after the
notice is submitted (such as monitoring
the QTA).
Section II of the amended exemption
includes conditions for covered
termination services and the
corresponding receipt of fees. Section
II(a) provides prohibited transaction
relief only if the requirements of the
QTA Regulation are satisfied. Section
II(b) provides that when the QTA, its
Affiliate, and any Designating
Bankruptcy Trustee are paid fees and
expenses, they must comply with the
applicable provisions regarding
reasonable expenses of the QTA
Regulation. Therefore, for QTAs that are
not chapter 7 bankruptcy trustees or
their eligible designees, the exemption
cross references paragraph
(d)(2)(v)(B)(2)(i) and (ii) of the QTA
Regulation. For chapter 7 bankruptcy
trustee QTAs and their eligible
designees, the exemption cross
references paragraph (j)(7)(iv) of the
QTA Regulation.25
The fee provisions in the QTA
Regulation generally provide that plan
assets may be used to pay reasonable
expenses of plan termination. What is
reasonable is judged in light of industry
rates for ordinary plan administration
under ERISA.26 Consequently, these
provisions do not allow a bankruptcy
trustee or eligible designee to charge
attorney hourly rates for plan
administration activities of termination
and winding up the plan.
The QTA Regulation contains a
limited exception to the general rule
regarding fees that would apply to
services provided by the eligible
designee in connection with the duty to
collect delinquent contributions on
behalf of the plan. Under the exception,
the fees must be consistent with rates
ordinarily charged by firms or
individuals representing or assisting a
bankruptcy trustee in performing
similar collection services on behalf of
24 See
29 CFR 2578.1(j)(6).
amendment cross references these
provisions instead of restating them to avoid any
potential confusion regarding the standards and to
accommodate future amendments to the QTA
Regulation that would not otherwise require an
amendment to PTE 2006–06. If, in the future, the
Department makes changes to the QTA Regulation
in the cross-referenced provisions, the Department
will consider whether the statutory exemption
requirements in ERISA section 408(a) and Code
section 4975(c)(2) necessitate proposing an
amendment to the exemption.
26 See 29 CFR 2578.1(d)(2)(v).
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an estate in a chapter 7 proceeding. This
limited exception applies to activities
such as filing proofs of claims, tracing
assets, responding to objections, motion
practice, and litigation on behalf of the
plan, but it does not apply to
determining whether the plan is owed
contributions. The act of determining
whether a plan is owed a contribution
is a routine act of plan administration
and is therefore covered under the
general rule rather than the exception.
(b) Termination Services and Payment
of Fees—Before Notice of Intent To
Serve as QTA
Additional conditions apply to
transactions in which a QTA pays itself
fees for services provided to a plan
before submitting notice to the
Department of its intent to act as the
QTA.27 Section II(c) requires any such
services to be performed in good faith
according to an executed written
agreement or otherwise in full
compliance with the QTA Regulation.
The QTA must represent under penalty
of perjury that such services were
actually performed and/or will actually
be performed (in the case of services
provided after notice but before deemed
termination). This condition specifically
requires a prospective representation for
such services in the notice of intent to
serve as QTA.28 The Department
believes this will avoid uncertainty as to
services that will be performed after
notice is provided to the Department but
before the deemed termination. If past
services were performed according to a
contract, a copy of the executed contract
that authorized such services must be
provided to the Department along with
the notice.
For transactions in which the eligible
designee QTA pays the Designating
Bankruptcy Trustee, the exemption
requires the services to be performed by
the Designating Bankruptcy Trustee in
full compliance with the QTA
Regulation. Additionally, the
Designating Bankruptcy Trustee must
represent under penalty of perjury that
the services were actually performed
and/or will actually be performed (in
the case of services provided after notice
but before deemed termination). The
Designating Bankruptcy Trustee must
provide this written representation to
the QTA for the QTA to submit to the
Department.
27 See
Section I(a)(3) of this exemption
amendment.
28 See paragraph 29 CFR 2578.1(c)(3) of the QTA
Regulation or in the case of a QTA described in
Section V(a)(2)(i) of this exemption, 29 CFR
2578.1(j)(6).
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(c) Distribution Transactions
Section I(b) provides prohibited
transaction relief for an asset custodian
QTA to designate itself or an Affiliate as
the provider of an Individual Retirement
Plan, other account, or a federally
insured bank or savings association
account for the distribution of
benefits.29 Section I(b) is available only
to eligible designees that are asset
custodians and QTAs, as defined in
section V(a)(1) and V(a)(2)(ii) of this
amendment. The relief in Section I(b) is
not available to QTAs that are
bankruptcy trustees or independent
bankruptcy trustee practitioners. In the
2012 proposed exemption amendment,
the Department noted that bankruptcy
trustees do not maintain proprietary
investment vehicles; thus, the relief in
Section I(b) was not proposed to extend
to bankruptcy trustees. The Department
did not receive comments on this issue
with respect to the 2012 proposed
exemption amendment, so the
Department has maintained the same
scope of relief in Section I(b) of this
amendment.
Generally, the prohibited transaction
relief in Section I(b) applies only if the
participant or beneficiary has otherwise
failed to notify the QTA regarding how
they want to take their distribution. The
relief in Section I(b) is subject to the
additional conditions of Sections III and
IV. More specifically, Section I(b)
permits a QTA to use its authority in
connection with the termination of an
abandoned individual account plan to
designate itself or an Affiliate as the
service provider of (1) an Individual
Retirement Plan, (2) an inherited
Individual Retirement Plan in the case
of a distribution on behalf of a nonspouse beneficiary as described in
paragraph (d)(1)(ii) of the Safe Harbor
Regulation, or (3) an interest bearing,
federally insured bank or savings
association account for a distribution
described in paragraph (d)(1)(iii) of the
Safe Harbor Regulation.30
Section I(b) also permits a QTA to
engage in certain activities in
connection with establishing an
Individual Retirement Plan or other
account. First, the QTA may make the
initial investment of a participant’s or
beneficiary’s account balance in its or
its Affiliate’s propriety investment
product. Second, the QTA or its
Affiliate may receive fees in connection
29 Section I(b) of the amended exemption
provides relief from the restrictions of ERISA
sections 406(a)(1)(A) through (D), 406(b)(1), and
406(b)(2) and the taxes imposed by Code section
4975(a) and (b) by reason of Code section
4975(c)(1)(A) through (E).
30 See 29 CFR 2550.404a–3.
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with establishing and maintaining the
Individual Retirement Plan or other
account. Third, the QTA may pay
investment fees to itself or an Affiliate
as a result of investment in a proprietary
investment product that qualifies as an
Eligible Investment Product defined in
Section V(c).
Section III provides conditions for the
transactions described in Section I(b)
and was not altered by the 2012
proposed exemption amendment. This
final amendment makes minor
ministerial changes to Section III, such
as the addition of headings to facilitate
the ease of use of the exemption.
Section III(a) requires compliance
with the QTA Regulation, and Section
III(b) requires additional notifications to
participants or beneficiaries to
accompany the notice to participants
and beneficiaries described in the QTA
Regulation.31 Section III(c) requires each
Individual Retirement Plan or other
account to be established and
maintained for the exclusive benefit of
the Individual Retirement Plan account
holder or other account holder or their
beneficiaries. This requirement is
consistent with Code section 408(a) and
ensures that the establishment of such
plans or accounts does not conflict with
the basic purpose for which Congress
afforded them special tax benefits (i.e.,
to provide retirement savings for
account holders and their beneficiaries).
Section III(d) requires the terms of the
Individual Retirement Plan or other
account to be no less favorable than
those available to comparable
Individual Retirement Plans or other
accounts established for reasons other
than the receipt of a rollover
distribution described in the QTA
Regulation. This exemption condition
applies to all terms, including the fees
and expenses for establishing and
maintaining the Individual Retirement
Plan or other account.
Section III(e) requires distributions to
be invested in an Eligible Investment
Product as defined in section V(c) of
this amendment.32 The definition of
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31 See
29 CFR 2578.1(d)(2)(vi).
32 This is an investment product designed to
preserve principal and provide a reasonable rate of
return, whether or not such return is guaranteed,
consistent with liquidity. For this purpose, the
product must be offered by a Regulated Financial
Institution and shall seek to maintain, over the term
of the investment, the dollar value that is equal to
the amount invested in the product by the
Individual Retirement Plan or other account. An
Eligible Investment Product includes money market
funds maintained by registered investment
companies, and interest-bearing savings accounts
and certificates of deposit of a bank or similar
financial institution. In addition, it would also
include ‘‘stable value products’’ issued by a
financial institution that are fully benefitresponsive to the Individual Retirement Plan
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Eligible Investment Product was not
changed as part of this amendment.
Section III(f) requires the rate of
return or investment performance of
plans or accounts established in
connection with QTA Regulation to be
the same as other similar type of plans
or accounts. This condition was
designed to work in tandem with the
requirement in Section III(d). It ensures
fees are not hidden within separately
designed investment products provided
only to plans or accounts established
under the QTA Regulation.
Example 1: Assume a customer opens
a new Individual Retirement Plan and
invests in a one-year certificate of
deposit that returns 2.0%. The one-year
certificate of deposit that returns 2.0%
is also available to an Individual
Retirement Plan established at the same
time in accordance with the QTA
Regulation. This is a permissible
investment option.
Example 2: Assume a customer opens
a new Individual Retirement Plan and
invests in a one-year certificate of
deposit that returns 2.0%. For
Individual Retirement Plans established
under the QTA Regulation, all
certificates of deposit have a 5% lower
return so that the one-year certificate of
deposit only returns 1.9%. This is not
a permissible investment option.
Section III(g) does not permit the
Individual Retirement Plan or other
account to pay a sales commission in
connection with the acquisition of an
Eligible Investment Product.
Furthermore, Section III(h) indicates
that the Individual Retirement Plan
account holder or other account holder
must be able to transfer their account
balance to a different investment offered
by the QTA or its Affiliate within a
reasonable period of time after their
request. In connection with the request,
the QTA or its Affiliate may not assess
any penalty against the principal
amount of the account balance.
According to those same standards, the
Individual Retirement Plan account
holder or other account holder must be
able to transfer their account balance to
an Individual Retirement Plan
established with a different financial
institution.
Finally, Section III(i) includes
restrictions on fees and expenses
account holder or other account holder (i.e., that
provide a liquidity guarantee by a financially
responsible third party of principal and previously
accrued interest for liquidations or transfers
initiated by the Individual Retirement Plan account
holder or other account holder exercising their right
to withdraw or transfer funds under the terms of an
arrangement that does not include substantial
restrictions to the account holder to access the
Individual Retirement Plan or other account’s
assets).
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associated with the Individual
Retirement Plan or other account
including with respect to investment of
assets. This provision requires equal
treatment for any such charges, which
includes but is not limited to:
establishment charges, maintenance
fees, investment expenses, termination
costs, and surrender charges. The fees
and expenses may not exceed those
charged by the QTA for comparable
Individual Retirement Plans or other
accounts established for reasons other
than the receipt of a rollover
distribution made pursuant to the QTA
Regulation. Relatedly, fees and expenses
associated with the Individual
Retirement Plan or other account, other
than establishment charges, may be
charged only against the income earned
by the Individual Retirement Plan or
other account and may not be charged
against principal. Finally, fees and
expenses may not exceed reasonable
compensation within the meaning of
Code section 4975(d)(2).
5. Recordkeeping
Section IV of the amended exemption
contains a recordkeeping requirement
that is mostly unchanged from the
proposed amendment. The Department
made a minor modification in Section
IV(a) by replacing the phrase
‘‘determination of plan abandonment
and its election’’ with ‘‘intent’’ so that
the recordkeeping requirement clearly
applies to the new categories of QTAs
(i.e., chapter 7 bankruptcy trustees and
eligible designees). Ultimately, this
means that any party serving as a QTA
must maintain records to enable certain
persons to determine whether the
applicable conditions of the class
exemption have been satisfied. The
records must be available for
examination by the Department of the
Treasury, the Department, and any
account holder of an Individual
Retirement Plan or other account
established pursuant to this exemption
or any duly authorized representative of
such account holder.
D. Other Ministerial Changes
The Department is also making a few
ministerial changes to the exemption
that will not substantively alter the
conditions or relief provided under the
exemption. Specifically, the Department
has capitalized most of the defined
terms, added the word ‘‘Section’’ to
each section, modified the text of the
headings slightly, added headings in
Sections II and III to facilitate ease of
use of the exemption, and made other
edits to improve readability. The
Department also removed the reference
to ‘‘spouse’’ in Section III(c) because the
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exclusive benefit rule in Code section
408(a) does not separately reference a
spouse.
E. Discussion of Comments
While the Department did not receive
any comments on the 2012 proposed
amendment’s expansion to bankruptcy
trustees, it received several comments
on other aspects of the 2012 proposed
amendment. One commenter requested
elimination of a condition in the
exemption limiting the amount of fees
and expenses that may be charged when
a QTA recommends itself or an affiliate
as a provider of an Individual
Retirement Plan or other account. The
condition in Section III(i)(2) requires
fees and expenses charged to the
Individual Retirement Plan or other
account may only be taken from the
income earned by the Individual
Retirement Plan or other account with
the exception of establishment charges.
The Department considered a similar
request to remove Section III(i)(2) when
it first granted PTE 2006–06. The
Department continues to believe that
removal of this condition is not
warranted because the Regulations
provide significant flexibility for small
account balances to be distributed by
methods other than through a rollover to
an Individual Retirement Plan or other
account sponsored by the QTA or its
affiliate. For example, participant
account balances of $1,000 or less that
are below the minimum amount
required for investment in the QTA’s
Individual Retirement Plan investment
product may be distributed to: (i) an
interest-bearing federally insured bank
or savings association account in the
name of the participant or beneficiary;
(ii) the unclaimed property fund of the
State in which the participant’s or
beneficiary’s last known address is
located; or (iii) to an unaffiliated
Individual Retirement Plan if the
Individual Retirement Plan is also
offered to the public at the time of the
distribution. The Department continues
to believe that Section III(i)(2) is
necessary to preserve the principal
balance of missing and non-responsive
participants and beneficiaries
(consistent with protecting the
retirement savings for participants and
their beneficiaries). Section III(i)(2) also
provides a valuable safeguard against
potential conflicts of interest associated
with a QTA’s selection of its own or its
affiliate’s Individual Retirement Plan or
account and initial investment product.
Another commenter requested
clarification that providers of Individual
Retirement Plans or investment
accounts who are not affiliated or
related to a QTA and accept distribution
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accounts from a QTA into their own
proprietary investment products, are not
subject to the same fee and expense
restrictions described in Section III(i)(2)
of the exemption. The Department
responds that the scenario described by
the commenter does not appear to
involve a prohibited transaction, and
parties only are required to rely on the
exemption (including complying with
Section III(i)(2)) if the receipt of
compensation in connection with these
transactions involves a prohibited
transaction.
F. Regulatory Impact Analysis
1. Background and Need for Regulatory
Action
As stated earlier in this preamble, this
document contains an amendment to
PTE 2006–06 which expands the types
of service providers that are eligible to
serve as QTAs to include bankruptcy
trustees and entities designated by
bankruptcy trustees to terminate and
wind up the affairs of plans according
to the Regulations that facilitate the
termination of, and distribution of
benefits from, individual account
pension plans that have been
abandoned by their sponsoring
employers. The need for the
amendments is explained in detail
above in this preamble, as well as the
preamble to the 2012 proposal and
preamble to the Regulations that appear
elsewhere in this issue of the Federal
Register.
The Department has examined the
effects of these amendments as required
by Executive Order 12866,33 Executive
Order 13563,34 the Congressional
Review Act,35 the Paperwork Reduction
Act of 1995,36 the Regulatory Flexibility
Act,37 section 202 of the Unfunded
Mandates Reform Act of 1995,38 and
Executive Order 13132.39
2. Executive Orders 12866 and 13563
Statement
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
33 Regulatory Planning and Review, 58 FR 51735
(Oct. 4, 1993).
34 Improving Regulation and Regulatory Review,
76 FR 3821 (Jan. 21, 2011).
35 5 U.S.C. 804(2) (1996).
36 44 U.S.C. 3506(c)(2)(A) (1995).
37 5 U.S.C. 601 et seq. (1980).
38 2 U.S.C. 1501 et seq. (1995).
39 Federalism, 64 FR 43255 (Aug. 10, 1999).
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equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing and
streamlining rules, and of promoting
flexibility. It also requires federal
agencies to develop a plan under which
the agencies will periodically review
their existing significant regulations to
make the agencies’ regulatory programs
more effective or less burdensome in
achieving their regulatory objectives.
The Department identified the
amendments to the 2006 regulations as
part of a retrospective regulatory review
project consistent with the principles of
Executive Order 13563. The changes
will improve the overall efficiency of
the program established under the 2006
regulations, increase its usage, and
substantially reduce burdens and costs
on bankruptcy trustees (or their
designees) terminating the plans of
sponsors in chapter 7 liquidation, the
plans of bankrupt sponsors, and the
participants in these plans.
Under Executive Order 12866,
‘‘significant’’ regulatory actions are
subject to the requirements of the
executive order and review by the Office
of Management and Budget (OMB). As
amended by Executive Order 14094 40
entitled ‘‘Modernizing Regulatory
Review,’’ 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 $200 million
or more (adjusted every 3 years by the
Administrator of OIRA for changes in
gross domestic product); or adversely
affect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
territorial, or tribal governments or
communities; (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 legal or policy
issues for which centralized review
would meaningfully further the
President’s priorities or the principles
set forth in this Executive order, as
specifically authorized in a timely
manner by the Administrator of OIRA in
each case.
3. Affected Entities
The group of entities affected by the
amendments consists of affected
abandoned plans as defined under the
2006 regulations, Chapter 7 ERISA Plans
40 88
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newly eligible to utilize the abandoned
plan rules, and the financial firms and
bankruptcy trustees who serve as QTAs.
4. Benefits
The key benefit of the amendment to
PTE 2006–06 is facilitation of the
benefits provided by the Regulations, as
explained in the Regulatory Impact
Analysis that accompanies the
Regulations, published elsewhere in this
issue of the Federal Register. Without
the accompanying amendment to PTE
2006–06, certain of the benefits of the
Regulations may be impeded due to the
existence of prohibited transactions.
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5. Costs
The cost of the amendment to PTE
2006–06 is captured in the Regulatory
Impact Analysis that accompanies the
Regulations, published elsewhere in this
issue of the Federal Register. The only
additional cost associated with this
amendment to PTE 2006–06 is related to
a new condition that is applicable in
cases where a Designating Bankruptcy
Trustees provides services to the plan.
In that situation, the Designating
Bankruptcy Trustee must represent
under penalty of perjury that such
services were actually performed and/or
will actually be performed and provide
the QTA with such representation for
the QTA to provide to the Department
in the notice of intent to serve as
qualified termination administrator. As
noted in the Paperwork Reduction Act
section of the preamble to the
Regulations, the Department did not
include a cost burden for this new
condition because it is expected to be de
minimis and included in other notices
sent to the Department.
G. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (PRA) (44 U.S.C.
3506(c)(2)(A)), the Department solicited
comments concerning the information
collection requirements (ICRs) included
in the December 12, 2012, proposed
amendments to the 2006 regulations at
77 FR 74063 and the proposed
amendments to the class exemption PTE
2006–06 at 77 FR 74055. At the same
time, the Department also submitted the
ICR to OMB in accordance with 44
U.S.C. 3507(d).
The amendment to PTE 2006–06
would only be used by QTAs that also
take advantage of the amendments to
the Regulations, published elsewhere in
this issue of the Federal Register. The
Department has combined the hour and
cost burdens associated with the
proposed amendment to PTE 2006–06
with the hour and cost burden
associated with the Regulations, under
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existing OMB Control Number 1210–
0127.
By using a single ICR, the Department
believes that the regulated community
will gain a better understanding of the
overall burden impact of terminating
abandoned plans pursuant to the
amendments. The specific burden for
PTE 2006–06 includes the penalty of
perjury statements required to be
submitted by the QTA and/or
Designating Bankruptcy Trustee and a
recordkeeping requirement for QTAs.
The hour and cost burden for the ICR is
described more fully in the preamble to
the Regulations under the Paperwork
Reduction Act section. A copy of the
ICR for OMB Control Number 1210–
0127 may be obtained by contacting the
PRA addressee listed in the following
sentence or at www.RegInfo.gov. For
additional information, contact: James
Butikofer, Office of Research and
Analysis, U.S. Department of Labor,
Employee Benefits Security
Administration, 200 Constitution
Avenue NW, Room N–5718,
Washington, DC 20210; or ebsa.opr@
dol.gov. The OMB will consider all
comments that they receive on or before
June 17, 2024. Comments and
recommendations for the information
collection should be sent within 30 days
of publication of this notice to
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
30-day Review—Open for Public
Comments’’ or by using the search
function.
H. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) (RFA) applies to most
Federal rules that are subject to the
notice and comment requirements of
section 553(b) of the Administrative
Procedure Act (5 U.S.C. 551 et seq.).
Unless an agency certifies that such a
rule will not have a significant
economic impact on a substantial
number of small entities, section 603 of
the RFA requires the agency to present
a final regulatory flexibility analysis at
the time of the publication of the
rulemaking describing the impact of the
rule on small entities. Small entities
include small businesses, organizations,
and governmental jurisdictions. For
purposes of analysis under the RFA, the
Department considers a small entity to
be an employee benefit plan with fewer
than 100 participants. The basis of this
definition is found in section 104(a)(3)
of ERISA, which permits the Secretary
of Labor to prescribe simplified annual
reports for welfare benefit plans that
cover fewer than 100 participants.
While some large employers may have
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43681
small plans, in general, small employers
maintain most small plans. Thus, the
Department believes that assessing the
impact of these final regulations on
small plans is an appropriate substitute
for evaluating the effect on small
entities. The definition of small entity
considered appropriate for this purpose
differs, however, from a definition of
small business that is based on size
standards promulgated by the Small
Business Administration (SBA) (13 CFR
121.201) pursuant to the Small Business
Act (15 U.S.C. 631 et seq.). The
Department requested comments on the
appropriateness of this size standard at
the proposed rule stage and received no
adverse responses.
Due to the small number of small
plans involved and relatively low cost
per plan, the Assistant Secretary of the
Employee Benefit Security
Administration hereby certifies under 5
U.S.C. 605 that this amended exemption
in combination with the Regulations
will not have a significant economic
impact on a substantial number of small
entities.41
I. Congressional Review Act
This amendment is subject to the
Congressional Review Act provisions of
the Small Business Regulatory
Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.) and will be
transmitted to the Congress and the
Comptroller General for review. The
exemption is not a ‘‘major rule’’ as that
term is defined in 5 U.S.C. 804, because
it is not likely to result in (1) an annual
effect on the economy of $100 million
or more; (2) a major increase in costs or
prices for consumers, individual
industries, or Federal, State, or local
government agencies, or geographic
regions; or (3) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
J. Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4), the rule does not include any
Federal mandate that will result in
expenditures by state, local, or tribal
governments in the aggregate of more
than $100 million, adjusted for
inflation, or increase expenditures by
the private sector of more than $100
million, adjusted for inflation.
41 2,506 abandoned plans each year divided by
the roughly 6 million establishments with less than
50 participants results in less than 0.05%.
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K. Federalism Statement
Executive Order 13132 (August 4,
1999) outlines fundamental principles
of federalism and requires the
adherence to specific criteria by Federal
agencies in the process of their
formulation and implementation of
policies that have substantial direct
effects on the States, the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. This rule
does not have federalism implications
because it has no substantial direct
effect on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. Section
514 of ERISA provides, with certain
exceptions specifically enumerated, that
the provisions of Titles I and IV of
ERISA supersede any and all laws of the
States as they relate to any employee
benefit plan covered under ERISA. The
requirements implemented in the rule
do not alter the fundamental provisions
of the statute with respect to employee
benefit plans, and as such would have
no implications for the States or the
relationship or distribution of power
between the national government and
the States.
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L. General Information
The attention of interested persons is
directed to the following:
(1) The fact that a transaction is the
subject of an exemption under ERISA
section 408(a) and Code section
4975(c)(2) does not relieve a fiduciary,
or other party in interest or disqualified
person with respect to a plan, from
certain other provisions of ERISA and
the Code, including any prohibited
transaction provisions to which the
exemption does not apply and the
general fiduciary responsibility
provisions of ERISA section 404 which
require, among other things, that a
fiduciary act prudently and discharge
their 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
requirements of Code section 401(a),
including 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 ERISA section
408(a) and Code section 4975(c)(2), and
based on the entire record, the
Department finds that this exemption is
administratively feasible, in the
interests of Plans, their participants and
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beneficiaries, and IRA owners, and
protective of the rights of participants
and beneficiaries of the Plan and IRA
owners;
(3) The amended exemption is
applicable to a particular transaction
only if the transaction satisfies the
conditions specified in the exemption;
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.
The Department is granting the
following amendment on its own
motion, pursuant to its authority under
ERISA section 408(a) and Code section
4975(c)(2) and in accordance with
procedures set forth in 29 CFR part
2570, subpart B (76 FR 66637 (October
27, 2011)).42
Amended Exemption
Section I. Covered Transactions
(a) Provided the conditions of Section
II and IV are satisfied, the restrictions of
ERISA sections 406(a)(1)(A) through (D),
406(b)(1) and 406(b)(2), and the taxes
imposed by Internal Revenue Code
(Code) section 4975(a) and (b), by reason
of section 4975(c)(1)(A) through (E),
shall not apply to a Qualified
Termination Administrator (as defined
in paragraph (a)(1) or (a)(2) of Section V
and referred to as a QTA) using its
authority in connection with the
termination of an abandoned individual
account plan pursuant to the
Department’s regulation at 29 CFR
2578.1, relating to the Termination of
Abandoned Individual Account Plans
(the QTA Regulation) 43 to:
(1) Select itself or an affiliate to
provide services to the plan;
(2) Receive fees for the services
performed as a QTA;
42 Reorganization Plan No. 4 of 1978 (5 U.S.C.
App. 1 (2018)) generally transferred the authority of
the Secretary of the Treasury to grant administrative
exemptions under Code section 4975 to the
Secretary of Labor. Procedures Governing the Filing
and Processing of Prohibited Transaction
Exemption Applications were amended effective
April 8, 2024 (29 CFR part 2570, subpart B (89 FR
4662 (January 24, 2024)).
43 The Department intends that this exemption
will cover transactions related to the interim final
regulations published in this edition of the Federal
Register as well as any subsequent final regulations
published thereafter. The Department will consider
amending this exemption if changes are made to the
final regulation that impact the relief available
under this exemption.
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(3) Pay itself fees for services
provided to the plan before the deemed
termination of the plan; and
(4) Pay fees to the Designating
Bankruptcy Trustee for services
provided to the plan; and
(b) Provided that the conditions set
forth in Sections III and IV of this
exemption are satisfied, the restrictions
of ERISA sections 406(a)(1)(A) through
(D), 406(b)(1) and 406(b)(2), 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 a QTA (as defined in paragraph
(a)(1) or (a)(2)(ii) of Section V) using its
authority in connection with the
termination of an abandoned individual
account plan pursuant to the QTA
Regulation to:
(1) Designate itself or an affiliate as:
(i) provider of an Individual Retirement
Plan; (ii) provider, in the case of a
distribution on behalf of a designated
beneficiary (as defined by Code section
401(a)(9)(E)) who is not the surviving
spouse of the deceased participant, of an
inherited Individual Retirement Plan
(within the meaning of Code section
402(c)(11)) established to receive the
distribution on behalf of the non-spouse
beneficiary under the circumstances
described in paragraph (d)(1)(ii) of the
Safe Harbor Regulation for Terminated
Plans (29 CFR 2550.404a-3) (the Safe
Harbor Regulation); or (iii) provider of
an interest bearing, federally insured
bank or savings association account
maintained in the name of the
participant or beneficiary, in the case of
a distribution described in paragraph
(d)(1)(iii) of the Safe Harbor Regulation,
for the distribution of the account
balance of the participant or beneficiary
of the abandoned individual account
plan who does not provide direction as
to the disposition of such assets;
(2) Make the initial investment of the
account balance of the participant or
beneficiary in the QTA’s or its affiliate’s
proprietary investment product;
(3) Receive fees in connection with
the establishment or maintenance of the
Individual Retirement Plan or other
account; and
(4) Pay itself or an affiliate investment
fees as a result of the investment of the
Individual Retirement Plan or other
account assets in the QTA’s or its
affiliate’s proprietary investment
product.
Section II. Conditions for Provision of
Covered Termination Services and
Receipt of Fees
(a) QTA Regulation. The requirements
of the QTA Regulation are met. The
QTA provides, in a timely manner, any
other reasonably available information
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requested by the Department regarding
the proposed termination.
(b) Fees and expenses. Fees and
expenses paid to the QTA and its
affiliate, and any Designating
Bankruptcy Trustee, in connection with
the termination of the plan and the
distribution of benefits comply with
paragraphs (d)(2)(v)(B)(2)(i) and (ii) of
the QTA Regulation or paragraph
(j)(7)(iv) of the QTA Regulation, as
applicable;
(c) Fees for services before the deemed
termination of the plan. In the case of
a transaction described in Section
I(a)(3):
(1) Such services: (i) were performed
in good faith pursuant to the terms of a
written agreement executed before the
service provider became a QTA; or (ii)
were performed pursuant to the QTA
Regulation; and
(2) The QTA, in the notice of plan
abandonment and intent to serve as
qualified termination administrator
described in paragraph (c)(3) of the QTA
Regulation or in the case of a QTA
described in Section V(a)(2)(i), the
notice of intent to serve as qualified
termination administrator described in
paragraph (j)(6) of the QTA Regulation:
(i) represents under penalty of perjury
that such services were actually
performed and/or will be performed (in
the case of services provided after the
notice but before deemed termination);
and (ii) in the case of Section II(c)(1)(i)
above, provides the Department with a
copy of the executed contract between
the QTA and a plan fiduciary or the
plan sponsor that authorized such
services.
(d) Paying the Designating Bankruptcy
Trustee. In the case of a transaction
described in Section I(a)(4):
(1) Such services were performed by
the Designating Bankruptcy Trustee
pursuant to the QTA Regulation; and
(2) The Designating Bankruptcy
Trustee represents under penalty of
perjury that such services were actually
performed and/or will actually be
performed and provides the QTA with
such representation for the QTA to
provide to the Department in the notice
of intent to serve as qualified
termination administrator described in
paragraph (j)(6) of the QTA Regulation.
Section III. Conditions for Covered
Distribution Transactions
(a) QTA Regulation. The conditions of
the QTA Regulation (29 CFR 2578.1) are
met.
(b) Notice to participants and
beneficiaries. In connection with the
notice to participants and beneficiaries
described in the QTA Regulation, a
statement is provided explaining that:
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17:45 May 16, 2024
Jkt 262001
(1) If the participant or beneficiary
fails to make an election within the 30day period referenced in the QTA
Regulation, the QTA will directly
distribute the account balance to an
Individual Retirement Plan or other
account offered by the QTA or its
affiliate;
(2) The proceeds of the distribution
may be invested in the QTA’s (or
affiliate’s) own proprietary investment
product, which is designed to preserve
principal and provide a reasonable rate
of return and liquidity.
(c) Exclusive benefit. The Individual
Retirement Plan or other account is
established and maintained for the
exclusive benefit of the Individual
Retirement Plan account holder or other
account holder or their beneficiaries.
(d) Account terms, fees, and expenses.
The terms of the Individual Retirement
Plan or other account, including the fees
and expenses for establishing and
maintaining the Individual Retirement
Plan or other account, are no less
favorable than those available to
comparable Individual Retirement Plans
or other accounts established for reasons
other than the receipt of a distribution
described in the QTA Regulation.
(e) Eligible Investment Product.
Except in the case of a QTA providing
a bank or savings account pursuant to
Section I(b)(1)(iii) of the exemption, the
distribution proceeds are invested in an
Eligible Investment Product(s), as
defined in Section V(c) of this class
exemption.
(f) Investment performance. The rate
of return or the investment performance
of the Individual Retirement Plan or
other account is no less favorable than
the rate of return or investment
performance of an identical
investment(s) that could have been
made at the same time by comparable
Individual Retirement Plans or other
accounts established for reasons other
than the receipt of a distribution
described in the QTA Regulation.
(g) No sales commissions. The
Individual Retirement Plan or other
account does not pay a sales
commission in connection with the
acquisition of an Eligible Investment
Product.
(h) Transferring account. The
Individual Retirement Plan account
holder or other account holder must be
able to transfer their account balance to
a different investment offered by the
QTA or its affiliate, or to a different
financial institution not related to the
QTA or its affiliate, within a reasonable
period of time after their request and
without penalty to the principal amount
of the investment.
PO 00000
Frm 00049
Fmt 4701
Sfmt 4700
43683
(i) Fees and expenses. (1) Fees and
expenses attendant to the Individual
Retirement Plan or other account,
including the investment of the assets of
such plan or account, (e.g.,
establishment charges, maintenance
fees, investment expenses, termination
costs, and surrender charges) shall not
exceed the fees and expenses charged by
the QTA for comparable Individual
Retirement Plans or other accounts
established for reasons other than the
receipt of a distribution made pursuant
to the QTA Regulation;
(2) Fees and expenses attendant to the
Individual Retirement Plan or other
account, with the exception of
establishment charges, may be charged
only against the income earned by the
Individual Retirement Plan or other
account; and
(3) Fees and expenses attendant to the
Individual Retirement Plan or other
account are not in excess of reasonable
compensation within the meaning of
Code section 4975(d)(2).
Section IV. Recordkeeping
(a) The QTA maintains or causes to be
maintained, for a period of six (6) years
from the date the QTA provides notice
to the Department of its intent to serve
as the QTA described in the QTA
Regulation, the records necessary to
enable the persons described in
paragraph (b) of this Section to
determine whether the applicable
conditions of this exemption have been
met. Such records must be readily
available to assure accessibility by the
persons identified in paragraph (b) of
this Section.
(b) Notwithstanding any provisions of
ERISA section 504(a)(2) and (b), the
records referred to in paragraph (a) of
this section are unconditionally
available at their customary location for
examination during normal business
hours by—
(1) Any duly authorized employee or
representative of the Department of
Labor or the Internal Revenue Service;
and
(2) Any account holder of an
Individual Retirement Plan or other
account established pursuant to this
exemption, or any duly authorized
representative of such account holder.
(c) A prohibited transaction will not
be considered to have occurred if due to
circumstances beyond the control of the
QTA, the records necessary to enable
the persons described in paragraph (b)
to determine whether the conditions of
the exemption have been met are lost or
destroyed, and no party in interest other
than the QTA shall be subject to the
civil penalty that may be assessed under
ERISA section 502(i) or to the taxes
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imposed by Code sections 4975(a) and
(b), the records are not maintained or
are not available for examination as
required by paragraph (b).
(3) None of the persons described in
paragraph (b)(2) of this Section shall be
authorized to examine the trade secrets
of the QTA or its affiliates or
commercial or financial information
that is privileged or confidential.
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Section V. Definitions
(a) A termination administrator is
qualified and considered a ‘‘QTA’’ for
purposes of this exemption only if:
(1)(i) It is eligible to serve as a trustee
or issuer of an individual retirement
plan, within the meaning of Code
section 7701(a)(37), and (ii) it holds
assets of the plan that is found
abandoned; or
(2)(i) It is a bankruptcy trustee in a
liquidation proceeding under chapter 7
of title 11 of the United States Code
with responsibility under 11 U.S.C.
704(a)(11) to administer one or more
individual account plans sponsored by
the entity that is the subject of the
proceeding, who elects to be a QTA
under 29 CFR 2578.1(j)(6); (ii) it is an
‘‘eligible designee,’’ as defined in 29
CFR 2578.1(j)(4)(i); or (iii) it is an
‘‘eligible designee’’ as defined in 29 CFR
2578.1(j)(4)(ii).
If a bankruptcy trustee designates an
eligible designee, then it shall not be
considered a QTA with respect to the
relief provided in this exemption.
(b) The term ‘‘Individual Retirement
Plan’’ means an individual retirement
plan described in Code section 7701(a)
(37). For purposes of Section III of this
exemption, the term ‘‘Individual
Retirement Plan’’ shall also include an
inherited individual retirement plan
(within the meaning of Code section
402(c)(11)) established to receive a
distribution on behalf of a non-spouse
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17:45 May 16, 2024
Jkt 262001
beneficiary. Notwithstanding the
foregoing, the term ‘‘Individual
Retirement Plan’’ shall not include an
employee benefit plan covered by Title
I of ERISA.
(c) The term ‘‘Eligible Investment
Product’’ means an investment product
designed to preserve principal and
provide a reasonable rate of return,
whether or not such return is
guaranteed, consistent with liquidity.
For this purpose, the product must be
offered by a Regulated Financial
Institution as defined in paragraph (d) of
this Section and shall seek to maintain,
over the term of the investment, the
dollar value that is equal to the amount
invested in the product by the
Individual Retirement Plan or other
account. Such term includes money
market funds maintained by registered
investment companies, and interestbearing savings accounts and certificates
of deposit of a bank or similar financial
institution. In addition, the term
includes ‘‘stable value products’’ issued
by a financial institution that are fully
benefit-responsive to the Individual
Retirement Plan account holder or other
account holder, i.e., that provide a
liquidity guarantee by a financially
responsible third party of principal and
previously accrued interest for
liquidations or transfers initiated by the
Individual Retirement Plan account
holder or other account holder
exercising their right to withdraw or
transfer funds under the terms of an
arrangement that does not include
substantial restrictions to the account
holder’s access to the Individual
Retirement Plan or other account’s
assets.
(d) The term ‘‘Regulated Financial
Institution’’ means an entity that: (i) is
subject to state or federal regulation, and
(ii) is a bank or savings association, the
PO 00000
Frm 00050
Fmt 4701
Sfmt 9990
deposits of which are insured by the
Federal Deposit Insurance Corporation;
a credit union, the member accounts of
which are insured within the meaning
of section 101(7) of the Federal Credit
Union Act; an insurance company, the
products of which are protected by state
guaranty associations; or an investment
company registered under the
Investment Company Act of 1940.
(e) An ‘‘Affiliate’’ of a person
includes:
(1) Any person directly or indirectly
controlling, controlled by, or under
common control with, the person; or
(2) Any officer, director, partner or
employee of the person.
(f) The terms ‘‘controlling, controlled
by, or under common control’’ means
the power to exercise a controlling
influence over the management or
policies of a person other than an
individual.
(g) The term ‘‘Individual Account
Plan’’ means an individual account plan
as that term is defined in ERISA section
3(34).
(h) The term ‘‘Designating Bankruptcy
Trustee’’ means a bankruptcy trustee in
a liquidation proceeding under chapter
7 of title 11 of the United States Code
with responsibility under 11 U.S.C.
704(a)(11) to administer one or more
individual account plans sponsored by
the entity that is the subject of the
proceeding, that provides services to the
plan but is not the QTA because of the
appointment of an eligible designee.
Signed at Washington, DC, on April 22,
2024.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2024–09030 Filed 5–16–24; 8:45 am]
BILLING CODE 4510–29–P
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]]>Agencies
[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Rules and Regulations]
[Pages 43675-43684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09030]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2550
[Application Number D-11657]
RIN 1210-ZA20
Prohibited Transaction Exemption 2006-06 for Services Provided in
Connection With the Termination of Abandoned Individual Account Plans
AGENCY: Employee Benefits Security Administration, Department of Labor.
ACTION: Exemption amendment.
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SUMMARY: This document gives notice of an amendment to prohibited
transaction exemption (PTE) 2006-06, a class exemption issued under the
Employee Retirement Income Security Act of 1974 (ERISA). The exemption
permits a ``qualified termination administrator'' (QTA) of an
individual account pension plan that has been abandoned by its
sponsoring employer to select itself to provide services to the plan in
connection with the plan's termination and pay itself fees for the
services. This amendment to PTE 2006-06 permits chapter 7 trustees who
elect to be QTAs to rely on the exemption. This amendment to PTE 2006-
06 also permits ``eligible designees'' of such chapter 7 trustees to
rely on the exemption. The amendment is issued in connection with
amendments to three related regulations under ERISA, published
elsewhere in this issue of the Federal Register, that provide
streamlined procedures for the termination of, and distribution of
benefits from, abandoned individual account pension plans. The
amendment would affect employee pension benefit plans (primarily small
defined contribution plans), participants and beneficiaries of such
plans, service providers, and individuals appointed to serve as
bankruptcy trustees under chapter 7 of the U.S. Bankruptcy Code.
DATES: This amendment will be effective on July 16, 2024.
FOR FURTHER INFORMATION CONTACT: Susan Wilker, telephone (202) 693-
8540, Office of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor (this is not a toll-free
number).
SUPPLEMENTARY INFORMATION:
A. Summary Overview
On April 21, 2006, the Department of Labor issued three regulations
that established the Employee Benefits Security Administration's (EBSA)
Abandoned Plan Program to facilitate the orderly and efficient
termination of, and distribution of benefits from, individual account
pension plans that have been abandoned by their sponsoring
employers.\1\ The first regulation (the QTA Regulation) establishes
standards for determining when individual account plans may be
considered ``abandoned'' and procedures by which financial
institutions, called ``qualified termination administrators'' (QTAs)
holding the assets of such plans may terminate the plans and distribute
benefits to participants and beneficiaries, with limited liability
under Title I of the Employee Retirement Income Security Act
(ERISA).\2\ The second regulation (the Safe Harbor Regulation) provides
a fiduciary safe harbor for QTAs to make distributions on behalf of
participants and beneficiaries who fail to elect a form of benefit
distribution. These participants and beneficiaries are sometimes
referred to as ``missing participants.'' \3\ The third regulation
establishes a simplified method for filing a terminal report for
abandoned individual account plans.\4\
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\1\ 71 FR 20820. See also, 73 FR 58459 (Oct. 7, 2008) for
subsequent amendments with regard to distributions on behalf of a
missing non-spouse beneficiary.
\2\ 29 CFR 2578.1.
\3\ 29 CFR 2550.404a-3. This safe harbor also is available to
fiduciaries of terminated individual account plans that are not
abandoned.
\4\ 29 CFR 2520.103-13.
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The 2006 regulations were accompanied by a class prohibited
transaction exemption, PTE 2006-06, that facilitates the goal of the
2006 regulations by permitting a QTA who meets the exemption's
conditions to (1) select itself or an affiliate to carry out the
termination and winding up activities specified in the 2006
regulations, and (2) pay fees to itself or an affiliate for those
services. In addition, PTE 2006-06 permits QTAs to receive fees in
connection with establishing an individual retirement plan or other
account and selecting the initial investment product for missing
participants. These activities are prohibited under the following
provisions of Title I of ERISA (and parallel Code provisions) in the
absence of a prohibited transaction exemption:
ERISA section 406(a)(1)(C), which prohibits a plan
fiduciary from causing the plan to engage in a transaction that
constitutes a direct or indirect furnishing of goods, services, or
facilities between the plan and a party in interest;
ERISA section 406(a)(1)(D), which prohibits a fiduciary
from entering into a transaction that constitutes a direct or indirect
transfer of plan assets to a party in interest, or the use of plan
assets by or for the benefit of a party in interest;
ERISA section 406(b)(1), which prohibits a plan fiduciary
from dealing with the assets of the plan in the fiduciary's own
interest or for the fiduciary's own account; and
ERISA section 406(b)(2), which prohibits a plan fiduciary
from acting, in any transaction involving the plan, on behalf of a
party (or representing a party) whose interests are adverse to the
interests of the plan or its participants or beneficiaries.
On December 12, 2012, the Department published proposed amendments
to the 2006 regulations and the associated PTE 2006-06.\5\ The purpose
of proposed amendments to the 2006 regulations was to advance the
interests of participants and beneficiaries by:
---------------------------------------------------------------------------
\5\ 77 FR 74063; 77 FR 74056.
---------------------------------------------------------------------------
(1) facilitating the orderly and efficient termination of
individual account plans whose sponsors are in liquidation under
chapter 7 of the Bankruptcy Code (``Chapter 7 ERISA Plans''); \6\
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\6\ The proposal referred to these plans as ``chapter 7 plans.''
The new term ``Chapter 7 ERISA Plans'' is used for avoidance of
confusion regarding the term chapter 7 plan used in the bankruptcy
context.
---------------------------------------------------------------------------
(2) reducing administrative burden and costs imposed on Chapter 7
ERISA Plan Plans that terminate in accordance with the regulations; and
(3) providing an avenue for bankruptcy trustees to discharge their
duties under ERISA and the Bankruptcy Code with respect to Chapter 7
ERISA Plans.
The purpose of the proposed amendments to PTE 2006-06 was to
supplement the amendments to the 2006 regulations by providing the
necessary prohibited transaction relief to facilitate the termination
of Chapter 7 ERISA Plans.
The Department received seven written comment letters on the 2012
proposed amendments, several of which raised issues related to the
proposed amendment to PTE 2006-06 that are
[[Page 43676]]
available on the Department's website.\7\ The Department considered the
issues raised by the commenters in granting this amendment to PTE 2006-
06. The Department also issued interim final amendments to the 2006
regulations with a request for comment (referred to as the
``Regulations'') \8\ that appear elsewhere in this issue of the Federal
Register.
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\7\ Available at https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-AB47.
\8\ The Department intends that PTE 2006-06 will cover
transactions related to the interim final regulations or any
subsequent final regulations published thereafter. The Department
will consider proposing an additional amendment to PTE 2006-06 if it
makes changes to the Abandoned Plan Program that impact the relief
available under this exemption.
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In granting this amendment to PTE 2006-06, the Department has
determined that the amendment is administratively feasible, in the
interests of plans and their participants and beneficiaries, and
protective of the rights of plan participants and beneficiaries as
required by ERISA section 408(a) and Internal Revenue Code (Code)
section 4975(c)(2).\9\
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\9\ Effective December 31, 1978, section 102 of Reorganization
Plan No. 4 of 1978, 5 U.S.C. App. (2018), transferred the authority
of the Secretary of the Treasury to issue exemptions of the type
proposed to the Secretary of Labor. Therefore, this amendment is
issued solely by the Department.
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B. Fiduciary Status of Bankruptcy Trustees and Prohibited Transactions
In bankruptcy cases, as with abandoned plans generally, the sponsor
usually is not in a position to carry out the activities associated
with formally terminating the plan. Instead, the Department expected
that, in chapter 7 bankruptcy cases, the appointed bankruptcy trustee
would take the necessary steps to terminate the plan, wind up its
affairs, and distribute plan benefits. The issue of the bankruptcy
trustee's authority to terminate and wind up the plan was addressed by
the enactment of 11 U.S.C. 704(a)(11) as part of the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005.\10\ Under that
provision, when an entity that sponsors an individual account plan is
liquidated under chapter 7 of the Bankruptcy Code, the appointed
bankruptcy trustee administering the liquidation proceeding is required
to continue to perform the plan administration obligations that would
otherwise be required of the bankrupt entity.\11\
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\10\ Public Law 109-8, 119 Stat. 23.
\11\ 11 U.S.C. 704(a)(11) refers to whether the debtor (or any
entity designated by the debtor) serves as the administrator (as
defined in ERISA section 3) of an employee benefit plan. ERISA
section 3(16) defines the ``administrator'' as the plan sponsor in
the absence of any designation in the plan document of another
person as administrator.
---------------------------------------------------------------------------
Such obligations include taking the steps necessary to terminate
the plan, wind up the affairs of the plan, and distribute plan benefits
to participants and beneficiaries. A bankruptcy trustee who undertakes
these plan responsibilities is a fiduciary within the meaning of ERISA
section 3(21) \12\ who is obligated under ERISA section 404 to act
prudently and solely in the interests of plan participants and
beneficiaries.
---------------------------------------------------------------------------
\12\ In this regard, section 3(21)(A)(i) of ERISA provides that
a person is a ``fiduciary'' with respect to a plan to the extent he
exercises any discretionary authority or discretionary control
respecting management of such plan or exercises any authority or
control respecting management or disposition of its assets. In
addition, section 3(21)(A)(iii) of ERISA provides that a person is a
``fiduciary'' with respect to a plan to the extent he has any
discretionary authority or discretionary responsibility in the
administration of such plan.
---------------------------------------------------------------------------
The Department has concluded that expanding the Abandoned Plan
Program regulations to cover Chapter 7 ERISA Plans and making other
technical changes in response to the public comments would result in an
improved Abandoned Plan Program. The Department acknowledges that it
has been over 10 years since the comment period closed for the 2012
proposal. However, the purposes of the Department's regulatory action
and its rationale for the 2012 proposal continue to be relevant and
would advance the interests of participants and beneficiaries in
abandoned plans. The Department is relying on the 2012 proposal, its
consideration of comments on that proposal, and its understanding of
the challenges facing Chapter 7 ERISA Plans in granting this exemption.
Although, the procedures and requirements in the program are voluntary,
in the Department's view, a bankruptcy trustee that follows the
Regulations should generally be able to reduce its administrative
burden and costs that are associated with terminating an abandoned
plan.
C. Description of the Amendment
1. Summary of Major Changes in This Granted Exemption Amendment
This amendment to PTE 2006-06 expands the types of service
providers that are eligible to serve as QTAs to include bankruptcy
trustees and entities designated by bankruptcy trustees to terminate
and wind up the affairs of plans according to the Regulations (referred
to as ``eligible designees''). This amendment would permit these
parties to rely on PTE 2006-06 to select and pay themselves fees for
services provided in terminating and winding up the affairs of a plan.
Furthermore, for the accounts of missing participants of an abandoned
plan, the amendment will permit certain eligible designees to select
themselves or an Affiliate \13\ (and receive fees) to establish an
Individual Retirement Plan \14\ or other account and to select the
initial investment product. The prohibited transaction relief provided
by the exemption is available only if the exemption conditions are
satisfied, which are designed to protect the interests of the plans and
their participants and beneficiaries as required by ERISA section
408(a) and Code section 4975(c)(2).
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\13\ Affiliate is defined to include: (1) Any person directly or
indirectly controlling, controlled by, or under common control with,
the person; or (2) Any officer, director, partner or employee of the
person. The terms ``controlling, controlled by, or under common
control'' means the power to exercise a controlling influence over
the management or policies of a person other than an individual. See
Sections V(e) and V(f) of this exemption amendment.
\14\ Section V(b) of this exemption defines Individual
Retirement Plan to mean: an individual retirement plan described in
section 7701(a)(37) of the Code. For purposes of Section III of this
exemption, the term ``Individual Retirement Plan'' shall also
include an inherited individual retirement plan (within the meaning
of section 402(c)(11) of the Code) established to receive a
distribution on behalf of a non-spouse beneficiary. Notwithstanding
the foregoing, the term ``Individual Retirement Plan'' shall not
include an employee benefit plan covered by Title I of ERISA.
---------------------------------------------------------------------------
2. Definition of ``Qualified Termination Administrator''
To be a QTA that is eligible for the prohibited transaction relief
under the original version of PTE 2006-06, an entity was required to
(i) be eligible to serve as a trustee or issuer of an individual
retirement plan or other account, within the meaning of Code section
7701(a)(37) and (ii) hold assets of the plan that is considered
abandoned. Bankruptcy trustees ordinarily would not be eligible for the
exemptive relief as QTAs under this definition.
As noted above, the Regulations are amended elsewhere in this issue
of the Federal Register to include bankruptcy trustees and their
eligible designees. Therefore, the final amendment likewise expands the
exemption's QTA definition to include a bankruptcy trustee in a
liquidation proceeding under chapter 7 of title 11 of the United States
Code with responsibility under 11 U.S.C. 704(a)(11) to administer one
or more individual account plans sponsored by the entity that is the
subject of the proceeding, who elects to be a QTA under 29 CFR
2578.1(j)(6).\15\
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\15\ Eligible designees are defined in 29 CFR 2578.1(j)(4)(i)
and (ii).
---------------------------------------------------------------------------
The Regulations expand the group of entities that can serve as a
QTA by
[[Page 43677]]
allowing the bankruptcy trustee to also appoint as an eligible designee
either a traditional asset custodian or a person, other than the
bankruptcy trustee of the plan sponsor's case, who has served within
the previous five years as a bankruptcy trustee in a case under chapter
7 of the Bankruptcy Code (referred to as the ``independent bankruptcy
trustee practitioner''). This amendment correspondingly expands the
prohibited transaction relief in PTE 2006-06 by including these
``eligible designees'' in the exemption's definition of QTA.\16\
---------------------------------------------------------------------------
\16\ See Section V(a) of this exemption amendment.
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The Department also added a new clarification which indicates that
if a bankruptcy trustee designates an eligible designee, it shall not
be considered a QTA with respect to the relief provided in this
exemption. The Department is making this additional modification to the
QTA definition because the QTA Regulation considers the bankruptcy
trustee and the eligible designee to be the QTA for certain
purposes.\17\ In connection with the exemption, however, the Department
determined that once an eligible designee is appointed, the eligible
designee should be the only entity authorizing appropriate payments to
the bankruptcy trustee.
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\17\ See 29 CFR 2578.1(e)(4).
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3. The ``Designating Bankruptcy Trustee''
The amendment includes a new defined term for a ``Designating
Bankruptcy Trustee.'' \18\ A Designating Bankruptcy Trustee is a
bankruptcy trustee that designates an eligible designee instead of
serving as the QTA itself.\19\ Importantly, this amendment would allow
the Designating Bankruptcy Trustee to provide services to the plan
before designating an eligible designee. These services could include
making reasonable and diligent efforts to determine whether the plan is
owed any employee or employer contributions, notifying the eligible
designee of its findings with respect to missing or delinquent
contributions, establishing procedures to ensure the eligible designee
has reasonable access to records in possession of the bankruptcy
trustee which are needed to wind up the plan, selecting an eligible
designee, and subsequently monitoring eligible designees in accordance
with ERISA section 404(a)(1)(A) and (B). As noted in the QTA
Regulation, the duty to monitor the eligible designee is ongoing
throughout the termination and winding up process.
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\18\ See Section V(h) of this exemption amendment.
\19\ As noted above, the QTA Regulation indicates that the
bankruptcy trustee and eligible designee are both considered the QTA
for certain purposes. The Department's limitations with respect to
the bankruptcy trustee being considered the QTA for purposes of this
exemption do not modify or otherwise supersede the QTA Regulation.
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From a prohibited transaction standpoint, the Department determined
there may be uncertainty regarding an eligible designee's decision to
pay the Designating Bankruptcy Trustee with plan assets. This is due,
at least in part, to the role of the bankruptcy trustee in the QTA
Regulation. To avoid this uncertainty and facilitate the use of the
Abandoned Plan Program and PTE 2006-06 when an eligible designee is
selected, this amendment includes specific prohibited transaction
relief for this scenario that is described in the next section, below.
4. Covered Transactions and Conditions--Overview
The prohibited transaction relief provided by the amended exemption
would permit four general categories of transactions in connection with
termination services. First, it would permit the QTA to select itself
or an Affiliate to provide services to the plan. Second, it would
permit the QTA to pay fees to itself or an Affiliate for those
services. Third, it would permit the QTA to pay fees to itself for
services provided before the plan's deemed termination.\20\ Finally, it
would permit the QTA to pay fees to a Designating Bankruptcy Trustee
for services provided to the plan. Without the availability of the
prohibited transaction exemption, QTAs, their Affiliates, and
bankruptcy trustees would be unable to use plan assets as a source of
compensation for their services, even though those plan assets are
usually the only available source of payment.
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\20\ See 29 CFR 2578.1(c).
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The amended exemption would also permit certain distribution
transactions. First, an asset custodian QTA could designate itself or
an Affiliate as the provider of an Individual Retirement Plan, other
account, or a federally insured bank or savings association account for
the distribution of benefits if participants and beneficiaries do not
respond to the QTA regarding how they would like their benefits
distributed.\21\ Second, the amended exemption would permit the asset
custodian QTA to select a proprietary investment product as the initial
investment in connection with such distributions. Third, the QTA or its
Affiliate may receive fees in connection with establishing and
maintaining the Individual Retirement Plan or other account. Fourth,
the QTA may pay investment fees to itself or an Affiliate as a result
of investment in a qualifying proprietary investment product.
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\21\ As explained in more detail below with respect to Section
I(b), this prohibited transaction relief is available only to
eligible designee QTAs that are asset custodians. It is not
available for QTAs that are bankruptcy trustees. It is also not
available for eligible designees that are independent bankruptcy
trustee practitioners.
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(a) Termination Services and Payment of Fees--Generally
Section I(a) of the amended exemption provides prohibited
transaction relief for a QTA to select and pay itself fees for services
to the plan, subject to the conditions in Sections II and IV.\22\
Generally, the exemption would permit a QTA to use its authority to
select itself or an Affiliate to provide services to the plan and to
pay itself or an Affiliate fees for services performed as the QTA.
Prohibited transaction relief under Section I(a) is available to all
entities that may serve as a QTA according to the QTA Regulation.
Therefore, if the applicable conditions are satisfied, a bankruptcy
trustee could select itself to be the QTA and also pay itself for the
QTA services it provides to the plan. Similarly, if the bankruptcy
trustee appoints an eligible designee to be the QTA, the eligible
designee could pay itself for services it provides to the plan.
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\22\ Section I(a) provides prohibited transaction relief for
ERISA sections 406(a)(1)(A) through (D), 406(b)(1), and 406(b)(2)
and the taxes imposed by Code section 4975(a) and (b) by reason of
Code section 4975(c)(1)(A) through (E).
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The amended exemption also provides prohibited transaction relief
for plan-related services provided by a bankruptcy trustee before a
formal determination is made regarding who will be the QTA.\23\ If the
bankruptcy trustee becomes the QTA, the exemption would permit the
bankruptcy trustee to pay itself for the non-QTA services that were
performed before it becomes the QTA. The Department provides this
relief to ensure that necessary plan services can continue to be
performed while a decision is made regarding the selection of a QTA.
Relatedly, the amended exemption also permits the eligible designee to
pay the bankruptcy trustee for services provided
[[Page 43678]]
to the plan if the eligible designee is the QTA. This includes paying
the bankruptcy trustee for services provided to the plan before the
eligible designee provided notice to the Department of its intention to
serve as QTA \24\ or for ongoing services provided after the notice is
submitted (such as monitoring the QTA).
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\23\ As noted above and described in the QTA Regulation, these
services include making reasonable and diligent efforts to determine
whether the plan is owed any employee or employer contributions,
notifying the eligible designee of its findings with respect to
missing or delinquent contributions, establishing procedures to
ensure the eligible designee has reasonable access to records in
possession of the bankruptcy trustee which are needed to wind up the
plan, and selecting and monitoring eligible designees in accordance
with ERISA section 404(a)(1)(A) and (B).
\24\ See 29 CFR 2578.1(j)(6).
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Section II of the amended exemption includes conditions for covered
termination services and the corresponding receipt of fees. Section
II(a) provides prohibited transaction relief only if the requirements
of the QTA Regulation are satisfied. Section II(b) provides that when
the QTA, its Affiliate, and any Designating Bankruptcy Trustee are paid
fees and expenses, they must comply with the applicable provisions
regarding reasonable expenses of the QTA Regulation. Therefore, for
QTAs that are not chapter 7 bankruptcy trustees or their eligible
designees, the exemption cross references paragraph (d)(2)(v)(B)(2)(i)
and (ii) of the QTA Regulation. For chapter 7 bankruptcy trustee QTAs
and their eligible designees, the exemption cross references paragraph
(j)(7)(iv) of the QTA Regulation.\25\
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\25\ This amendment cross references these provisions instead of
restating them to avoid any potential confusion regarding the
standards and to accommodate future amendments to the QTA Regulation
that would not otherwise require an amendment to PTE 2006-06. If, in
the future, the Department makes changes to the QTA Regulation in
the cross-referenced provisions, the Department will consider
whether the statutory exemption requirements in ERISA section 408(a)
and Code section 4975(c)(2) necessitate proposing an amendment to
the exemption.
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The fee provisions in the QTA Regulation generally provide that
plan assets may be used to pay reasonable expenses of plan termination.
What is reasonable is judged in light of industry rates for ordinary
plan administration under ERISA.\26\ Consequently, these provisions do
not allow a bankruptcy trustee or eligible designee to charge attorney
hourly rates for plan administration activities of termination and
winding up the plan.
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\26\ See 29 CFR 2578.1(d)(2)(v).
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The QTA Regulation contains a limited exception to the general rule
regarding fees that would apply to services provided by the eligible
designee in connection with the duty to collect delinquent
contributions on behalf of the plan. Under the exception, the fees must
be consistent with rates ordinarily charged by firms or individuals
representing or assisting a bankruptcy trustee in performing similar
collection services on behalf of an estate in a chapter 7 proceeding.
This limited exception applies to activities such as filing proofs of
claims, tracing assets, responding to objections, motion practice, and
litigation on behalf of the plan, but it does not apply to determining
whether the plan is owed contributions. The act of determining whether
a plan is owed a contribution is a routine act of plan administration
and is therefore covered under the general rule rather than the
exception.
(b) Termination Services and Payment of Fees--Before Notice of Intent
To Serve as QTA
Additional conditions apply to transactions in which a QTA pays
itself fees for services provided to a plan before submitting notice to
the Department of its intent to act as the QTA.\27\ Section II(c)
requires any such services to be performed in good faith according to
an executed written agreement or otherwise in full compliance with the
QTA Regulation. The QTA must represent under penalty of perjury that
such services were actually performed and/or will actually be performed
(in the case of services provided after notice but before deemed
termination). This condition specifically requires a prospective
representation for such services in the notice of intent to serve as
QTA.\28\ The Department believes this will avoid uncertainty as to
services that will be performed after notice is provided to the
Department but before the deemed termination. If past services were
performed according to a contract, a copy of the executed contract that
authorized such services must be provided to the Department along with
the notice.
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\27\ See Section I(a)(3) of this exemption amendment.
\28\ See paragraph 29 CFR 2578.1(c)(3) of the QTA Regulation or
in the case of a QTA described in Section V(a)(2)(i) of this
exemption, 29 CFR 2578.1(j)(6).
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For transactions in which the eligible designee QTA pays the
Designating Bankruptcy Trustee, the exemption requires the services to
be performed by the Designating Bankruptcy Trustee in full compliance
with the QTA Regulation. Additionally, the Designating Bankruptcy
Trustee must represent under penalty of perjury that the services were
actually performed and/or will actually be performed (in the case of
services provided after notice but before deemed termination). The
Designating Bankruptcy Trustee must provide this written representation
to the QTA for the QTA to submit to the Department.
(c) Distribution Transactions
Section I(b) provides prohibited transaction relief for an asset
custodian QTA to designate itself or an Affiliate as the provider of an
Individual Retirement Plan, other account, or a federally insured bank
or savings association account for the distribution of benefits.\29\
Section I(b) is available only to eligible designees that are asset
custodians and QTAs, as defined in section V(a)(1) and V(a)(2)(ii) of
this amendment. The relief in Section I(b) is not available to QTAs
that are bankruptcy trustees or independent bankruptcy trustee
practitioners. In the 2012 proposed exemption amendment, the Department
noted that bankruptcy trustees do not maintain proprietary investment
vehicles; thus, the relief in Section I(b) was not proposed to extend
to bankruptcy trustees. The Department did not receive comments on this
issue with respect to the 2012 proposed exemption amendment, so the
Department has maintained the same scope of relief in Section I(b) of
this amendment.
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\29\ Section I(b) of the amended exemption provides relief from
the restrictions of ERISA sections 406(a)(1)(A) through (D),
406(b)(1), and 406(b)(2) and the taxes imposed by Code section
4975(a) and (b) by reason of Code section 4975(c)(1)(A) through (E).
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Generally, the prohibited transaction relief in Section I(b)
applies only if the participant or beneficiary has otherwise failed to
notify the QTA regarding how they want to take their distribution. The
relief in Section I(b) is subject to the additional conditions of
Sections III and IV. More specifically, Section I(b) permits a QTA to
use its authority in connection with the termination of an abandoned
individual account plan to designate itself or an Affiliate as the
service provider of (1) an Individual Retirement Plan, (2) an inherited
Individual Retirement Plan in the case of a distribution on behalf of a
non-spouse beneficiary as described in paragraph (d)(1)(ii) of the Safe
Harbor Regulation, or (3) an interest bearing, federally insured bank
or savings association account for a distribution described in
paragraph (d)(1)(iii) of the Safe Harbor Regulation.\30\
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\30\ See 29 CFR 2550.404a-3.
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Section I(b) also permits a QTA to engage in certain activities in
connection with establishing an Individual Retirement Plan or other
account. First, the QTA may make the initial investment of a
participant's or beneficiary's account balance in its or its
Affiliate's propriety investment product. Second, the QTA or its
Affiliate may receive fees in connection
[[Page 43679]]
with establishing and maintaining the Individual Retirement Plan or
other account. Third, the QTA may pay investment fees to itself or an
Affiliate as a result of investment in a proprietary investment product
that qualifies as an Eligible Investment Product defined in Section
V(c).
Section III provides conditions for the transactions described in
Section I(b) and was not altered by the 2012 proposed exemption
amendment. This final amendment makes minor ministerial changes to
Section III, such as the addition of headings to facilitate the ease of
use of the exemption.
Section III(a) requires compliance with the QTA Regulation, and
Section III(b) requires additional notifications to participants or
beneficiaries to accompany the notice to participants and beneficiaries
described in the QTA Regulation.\31\ Section III(c) requires each
Individual Retirement Plan or other account to be established and
maintained for the exclusive benefit of the Individual Retirement Plan
account holder or other account holder or their beneficiaries. This
requirement is consistent with Code section 408(a) and ensures that the
establishment of such plans or accounts does not conflict with the
basic purpose for which Congress afforded them special tax benefits
(i.e., to provide retirement savings for account holders and their
beneficiaries).
---------------------------------------------------------------------------
\31\ See 29 CFR 2578.1(d)(2)(vi).
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Section III(d) requires the terms of the Individual Retirement Plan
or other account to be no less favorable than those available to
comparable Individual Retirement Plans or other accounts established
for reasons other than the receipt of a rollover distribution described
in the QTA Regulation. This exemption condition applies to all terms,
including the fees and expenses for establishing and maintaining the
Individual Retirement Plan or other account.
Section III(e) requires distributions to be invested in an Eligible
Investment Product as defined in section V(c) of this amendment.\32\
The definition of Eligible Investment Product was not changed as part
of this amendment.
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\32\ This is an investment product designed to preserve
principal and provide a reasonable rate of return, whether or not
such return is guaranteed, consistent with liquidity. For this
purpose, the product must be offered by a Regulated Financial
Institution and shall seek to maintain, over the term of the
investment, the dollar value that is equal to the amount invested in
the product by the Individual Retirement Plan or other account. An
Eligible Investment Product includes money market funds maintained
by registered investment companies, and interest-bearing savings
accounts and certificates of deposit of a bank or similar financial
institution. In addition, it would also include ``stable value
products'' issued by a financial institution that are fully benefit-
responsive to the Individual Retirement Plan account holder or other
account holder (i.e., that provide a liquidity guarantee by a
financially responsible third party of principal and previously
accrued interest for liquidations or transfers initiated by the
Individual Retirement Plan account holder or other account holder
exercising their right to withdraw or transfer funds under the terms
of an arrangement that does not include substantial restrictions to
the account holder to access the Individual Retirement Plan or other
account's assets).
---------------------------------------------------------------------------
Section III(f) requires the rate of return or investment
performance of plans or accounts established in connection with QTA
Regulation to be the same as other similar type of plans or accounts.
This condition was designed to work in tandem with the requirement in
Section III(d). It ensures fees are not hidden within separately
designed investment products provided only to plans or accounts
established under the QTA Regulation.
Example 1: Assume a customer opens a new Individual Retirement Plan
and invests in a one-year certificate of deposit that returns 2.0%. The
one-year certificate of deposit that returns 2.0% is also available to
an Individual Retirement Plan established at the same time in
accordance with the QTA Regulation. This is a permissible investment
option.
Example 2: Assume a customer opens a new Individual Retirement Plan
and invests in a one-year certificate of deposit that returns 2.0%. For
Individual Retirement Plans established under the QTA Regulation, all
certificates of deposit have a 5% lower return so that the one-year
certificate of deposit only returns 1.9%. This is not a permissible
investment option.
Section III(g) does not permit the Individual Retirement Plan or
other account to pay a sales commission in connection with the
acquisition of an Eligible Investment Product. Furthermore, Section
III(h) indicates that the Individual Retirement Plan account holder or
other account holder must be able to transfer their account balance to
a different investment offered by the QTA or its Affiliate within a
reasonable period of time after their request. In connection with the
request, the QTA or its Affiliate may not assess any penalty against
the principal amount of the account balance. According to those same
standards, the Individual Retirement Plan account holder or other
account holder must be able to transfer their account balance to an
Individual Retirement Plan established with a different financial
institution.
Finally, Section III(i) includes restrictions on fees and expenses
associated with the Individual Retirement Plan or other account
including with respect to investment of assets. This provision requires
equal treatment for any such charges, which includes but is not limited
to: establishment charges, maintenance fees, investment expenses,
termination costs, and surrender charges. The fees and expenses may not
exceed those charged by the QTA for comparable Individual Retirement
Plans or other accounts established for reasons other than the receipt
of a rollover distribution made pursuant to the QTA Regulation.
Relatedly, fees and expenses associated with the Individual Retirement
Plan or other account, other than establishment charges, may be charged
only against the income earned by the Individual Retirement Plan or
other account and may not be charged against principal. Finally, fees
and expenses may not exceed reasonable compensation within the meaning
of Code section 4975(d)(2).
5. Recordkeeping
Section IV of the amended exemption contains a recordkeeping
requirement that is mostly unchanged from the proposed amendment. The
Department made a minor modification in Section IV(a) by replacing the
phrase ``determination of plan abandonment and its election'' with
``intent'' so that the recordkeeping requirement clearly applies to the
new categories of QTAs (i.e., chapter 7 bankruptcy trustees and
eligible designees). Ultimately, this means that any party serving as a
QTA must maintain records to enable certain persons to determine
whether the applicable conditions of the class exemption have been
satisfied. The records must be available for examination by the
Department of the Treasury, the Department, and any account holder of
an Individual Retirement Plan or other account established pursuant to
this exemption or any duly authorized representative of such account
holder.
D. Other Ministerial Changes
The Department is also making a few ministerial changes to the
exemption that will not substantively alter the conditions or relief
provided under the exemption. Specifically, the Department has
capitalized most of the defined terms, added the word ``Section'' to
each section, modified the text of the headings slightly, added
headings in Sections II and III to facilitate ease of use of the
exemption, and made other edits to improve readability. The Department
also removed the reference to ``spouse'' in Section III(c) because the
[[Page 43680]]
exclusive benefit rule in Code section 408(a) does not separately
reference a spouse.
E. Discussion of Comments
While the Department did not receive any comments on the 2012
proposed amendment's expansion to bankruptcy trustees, it received
several comments on other aspects of the 2012 proposed amendment. One
commenter requested elimination of a condition in the exemption
limiting the amount of fees and expenses that may be charged when a QTA
recommends itself or an affiliate as a provider of an Individual
Retirement Plan or other account. The condition in Section III(i)(2)
requires fees and expenses charged to the Individual Retirement Plan or
other account may only be taken from the income earned by the
Individual Retirement Plan or other account with the exception of
establishment charges.
The Department considered a similar request to remove Section
III(i)(2) when it first granted PTE 2006-06. The Department continues
to believe that removal of this condition is not warranted because the
Regulations provide significant flexibility for small account balances
to be distributed by methods other than through a rollover to an
Individual Retirement Plan or other account sponsored by the QTA or its
affiliate. For example, participant account balances of $1,000 or less
that are below the minimum amount required for investment in the QTA's
Individual Retirement Plan investment product may be distributed to:
(i) an interest-bearing federally insured bank or savings association
account in the name of the participant or beneficiary; (ii) the
unclaimed property fund of the State in which the participant's or
beneficiary's last known address is located; or (iii) to an
unaffiliated Individual Retirement Plan if the Individual Retirement
Plan is also offered to the public at the time of the distribution. The
Department continues to believe that Section III(i)(2) is necessary to
preserve the principal balance of missing and non-responsive
participants and beneficiaries (consistent with protecting the
retirement savings for participants and their beneficiaries). Section
III(i)(2) also provides a valuable safeguard against potential
conflicts of interest associated with a QTA's selection of its own or
its affiliate's Individual Retirement Plan or account and initial
investment product.
Another commenter requested clarification that providers of
Individual Retirement Plans or investment accounts who are not
affiliated or related to a QTA and accept distribution accounts from a
QTA into their own proprietary investment products, are not subject to
the same fee and expense restrictions described in Section III(i)(2) of
the exemption. The Department responds that the scenario described by
the commenter does not appear to involve a prohibited transaction, and
parties only are required to rely on the exemption (including complying
with Section III(i)(2)) if the receipt of compensation in connection
with these transactions involves a prohibited transaction.
F. Regulatory Impact Analysis
1. Background and Need for Regulatory Action
As stated earlier in this preamble, this document contains an
amendment to PTE 2006-06 which expands the types of service providers
that are eligible to serve as QTAs to include bankruptcy trustees and
entities designated by bankruptcy trustees to terminate and wind up the
affairs of plans according to the Regulations that facilitate the
termination of, and distribution of benefits from, individual account
pension plans that have been abandoned by their sponsoring employers.
The need for the amendments is explained in detail above in this
preamble, as well as the preamble to the 2012 proposal and preamble to
the Regulations that appear elsewhere in this issue of the Federal
Register.
The Department has examined the effects of these amendments as
required by Executive Order 12866,\33\ Executive Order 13563,\34\ the
Congressional Review Act,\35\ the Paperwork Reduction Act of 1995,\36\
the Regulatory Flexibility Act,\37\ section 202 of the Unfunded
Mandates Reform Act of 1995,\38\ and Executive Order 13132.\39\
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\33\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993).
\34\ Improving Regulation and Regulatory Review, 76 FR 3821
(Jan. 21, 2011).
\35\ 5 U.S.C. 804(2) (1996).
\36\ 44 U.S.C. 3506(c)(2)(A) (1995).
\37\ 5 U.S.C. 601 et seq. (1980).
\38\ 2 U.S.C. 1501 et seq. (1995).
\39\ Federalism, 64 FR 43255 (Aug. 10, 1999).
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2. Executive Orders 12866 and 13563 Statement
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing and streamlining rules, and
of promoting flexibility. It also requires federal agencies to develop
a plan under which the agencies will periodically review their existing
significant regulations to make the agencies' regulatory programs more
effective or less burdensome in achieving their regulatory objectives.
The Department identified the amendments to the 2006 regulations as
part of a retrospective regulatory review project consistent with the
principles of Executive Order 13563. The changes will improve the
overall efficiency of the program established under the 2006
regulations, increase its usage, and substantially reduce burdens and
costs on bankruptcy trustees (or their designees) terminating the plans
of sponsors in chapter 7 liquidation, the plans of bankrupt sponsors,
and the participants in these plans.
Under Executive Order 12866, ``significant'' regulatory actions are
subject to the requirements of the executive order and review by the
Office of Management and Budget (OMB). As amended by Executive Order
14094 \40\ entitled ``Modernizing Regulatory Review,'' 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 $200 million or more (adjusted every 3 years by the
Administrator of OIRA for changes in gross domestic product); or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or tribal governments
or communities; (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 legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in this Executive order, as specifically
authorized in a timely manner by the Administrator of OIRA in each
case.
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\40\ 88 FR 21879 (April 6, 2023).
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3. Affected Entities
The group of entities affected by the amendments consists of
affected abandoned plans as defined under the 2006 regulations, Chapter
7 ERISA Plans
[[Page 43681]]
newly eligible to utilize the abandoned plan rules, and the financial
firms and bankruptcy trustees who serve as QTAs.
4. Benefits
The key benefit of the amendment to PTE 2006-06 is facilitation of
the benefits provided by the Regulations, as explained in the
Regulatory Impact Analysis that accompanies the Regulations, published
elsewhere in this issue of the Federal Register. Without the
accompanying amendment to PTE 2006-06, certain of the benefits of the
Regulations may be impeded due to the existence of prohibited
transactions.
5. Costs
The cost of the amendment to PTE 2006-06 is captured in the
Regulatory Impact Analysis that accompanies the Regulations, published
elsewhere in this issue of the Federal Register. The only additional
cost associated with this amendment to PTE 2006-06 is related to a new
condition that is applicable in cases where a Designating Bankruptcy
Trustees provides services to the plan. In that situation, the
Designating Bankruptcy Trustee must represent under penalty of perjury
that such services were actually performed and/or will actually be
performed and provide the QTA with such representation for the QTA to
provide to the Department in the notice of intent to serve as qualified
termination administrator. As noted in the Paperwork Reduction Act
section of the preamble to the Regulations, the Department did not
include a cost burden for this new condition because it is expected to
be de minimis and included in other notices sent to the Department.
G. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (PRA) (44
U.S.C. 3506(c)(2)(A)), the Department solicited comments concerning the
information collection requirements (ICRs) included in the December 12,
2012, proposed amendments to the 2006 regulations at 77 FR 74063 and
the proposed amendments to the class exemption PTE 2006-06 at 77 FR
74055. At the same time, the Department also submitted the ICR to OMB
in accordance with 44 U.S.C. 3507(d).
The amendment to PTE 2006-06 would only be used by QTAs that also
take advantage of the amendments to the Regulations, published
elsewhere in this issue of the Federal Register. The Department has
combined the hour and cost burdens associated with the proposed
amendment to PTE 2006-06 with the hour and cost burden associated with
the Regulations, under existing OMB Control Number 1210-0127.
By using a single ICR, the Department believes that the regulated
community will gain a better understanding of the overall burden impact
of terminating abandoned plans pursuant to the amendments. The specific
burden for PTE 2006-06 includes the penalty of perjury statements
required to be submitted by the QTA and/or Designating Bankruptcy
Trustee and a recordkeeping requirement for QTAs. The hour and cost
burden for the ICR is described more fully in the preamble to the
Regulations under the Paperwork Reduction Act section. A copy of the
ICR for OMB Control Number 1210-0127 may be obtained by contacting the
PRA addressee listed in the following sentence or at www.RegInfo.gov.
For additional information, contact: James Butikofer, Office of
Research and Analysis, U.S. Department of Labor, Employee Benefits
Security Administration, 200 Constitution Avenue NW, Room N-5718,
Washington, DC 20210; or [email protected]. The OMB will consider all
comments that they receive on or before June 17, 2024. Comments and
recommendations for the information collection should be sent within 30
days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function.
H. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) applies
to most Federal rules that are subject to the notice and comment
requirements of section 553(b) of the Administrative Procedure Act (5
U.S.C. 551 et seq.). Unless an agency certifies that such a rule will
not have a significant economic impact on a substantial number of small
entities, section 603 of the RFA requires the agency to present a final
regulatory flexibility analysis at the time of the publication of the
rulemaking describing the impact of the rule on small entities. Small
entities include small businesses, organizations, and governmental
jurisdictions. For purposes of analysis under the RFA, the Department
considers a small entity to be an employee benefit plan with fewer than
100 participants. The basis of this definition is found in section
104(a)(3) of ERISA, which permits the Secretary of Labor to prescribe
simplified annual reports for welfare benefit plans that cover fewer
than 100 participants. While some large employers may have small plans,
in general, small employers maintain most small plans. Thus, the
Department believes that assessing the impact of these final
regulations on small plans is an appropriate substitute for evaluating
the effect on small entities. The definition of small entity considered
appropriate for this purpose differs, however, from a definition of
small business that is based on size standards promulgated by the Small
Business Administration (SBA) (13 CFR 121.201) pursuant to the Small
Business Act (15 U.S.C. 631 et seq.). The Department requested comments
on the appropriateness of this size standard at the proposed rule stage
and received no adverse responses.
Due to the small number of small plans involved and relatively low
cost per plan, the Assistant Secretary of the Employee Benefit Security
Administration hereby certifies under 5 U.S.C. 605 that this amended
exemption in combination with the Regulations will not have a
significant economic impact on a substantial number of small
entities.\41\
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\41\ 2,506 abandoned plans each year divided by the roughly 6
million establishments with less than 50 participants results in
less than 0.05%.
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I. Congressional Review Act
This amendment is subject to the Congressional Review Act
provisions of the Small Business Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.) and will be transmitted to the Congress and
the Comptroller General for review. The exemption is not a ``major
rule'' as that term is defined in 5 U.S.C. 804, because it is not
likely to result in (1) an annual effect on the economy of $100 million
or more; (2) a major increase in costs or prices for consumers,
individual industries, or Federal, State, or local government agencies,
or geographic regions; or (3) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
J. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), the rule does not include any Federal mandate that will result
in expenditures by state, local, or tribal governments in the aggregate
of more than $100 million, adjusted for inflation, or increase
expenditures by the private sector of more than $100 million, adjusted
for inflation.
[[Page 43682]]
K. Federalism Statement
Executive Order 13132 (August 4, 1999) outlines fundamental
principles of federalism and requires the adherence to specific
criteria by Federal agencies in the process of their formulation and
implementation of policies that have substantial direct effects on the
States, the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This rule does not have federalism
implications because it has no substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Section 514 of ERISA provides, with certain
exceptions specifically enumerated, that the provisions of Titles I and
IV of ERISA supersede any and all laws of the States as they relate to
any employee benefit plan covered under ERISA. The requirements
implemented in the rule do not alter the fundamental provisions of the
statute with respect to employee benefit plans, and as such would have
no implications for the States or the relationship or distribution of
power between the national government and the States.
L. General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under ERISA section 408(a) and Code section 4975(c)(2) does not relieve
a fiduciary, or other party in interest or disqualified person with
respect to a plan, from certain other provisions of ERISA and the Code,
including any prohibited transaction provisions to which the exemption
does not apply and the general fiduciary responsibility provisions of
ERISA section 404 which require, among other things, that a fiduciary
act prudently and discharge their 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 requirements of Code section 401(a),
including 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 ERISA section 408(a) and Code section
4975(c)(2), and based on the entire record, the Department finds that
this exemption is administratively feasible, in the interests of Plans,
their participants and beneficiaries, and IRA owners, and protective of
the rights of participants and beneficiaries of the Plan and IRA
owners;
(3) The amended exemption is applicable to a particular transaction
only if the transaction satisfies the conditions specified in the
exemption; 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.
The Department is granting the following amendment on its own
motion, pursuant to its authority under ERISA section 408(a) and Code
section 4975(c)(2) and in accordance with procedures set forth in 29
CFR part 2570, subpart B (76 FR 66637 (October 27, 2011)).\42\
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\42\ Reorganization Plan No. 4 of 1978 (5 U.S.C. App. 1 (2018))
generally transferred the authority of the Secretary of the Treasury
to grant administrative exemptions under Code section 4975 to the
Secretary of Labor. Procedures Governing the Filing and Processing
of Prohibited Transaction Exemption Applications were amended
effective April 8, 2024 (29 CFR part 2570, subpart B (89 FR 4662
(January 24, 2024)).
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Amended Exemption
Section I. Covered Transactions
(a) Provided the conditions of Section II and IV are satisfied, the
restrictions of ERISA sections 406(a)(1)(A) through (D), 406(b)(1) and
406(b)(2), and the taxes imposed by Internal Revenue Code (Code)
section 4975(a) and (b), by reason of section 4975(c)(1)(A) through
(E), shall not apply to a Qualified Termination Administrator (as
defined in paragraph (a)(1) or (a)(2) of Section V and referred to as a
QTA) using its authority in connection with the termination of an
abandoned individual account plan pursuant to the Department's
regulation at 29 CFR 2578.1, relating to the Termination of Abandoned
Individual Account Plans (the QTA Regulation) \43\ to:
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\43\ The Department intends that this exemption will cover
transactions related to the interim final regulations published in
this edition of the Federal Register as well as any subsequent final
regulations published thereafter. The Department will consider
amending this exemption if changes are made to the final regulation
that impact the relief available under this exemption.
---------------------------------------------------------------------------
(1) Select itself or an affiliate to provide services to the plan;
(2) Receive fees for the services performed as a QTA;
(3) Pay itself fees for services provided to the plan before the
deemed termination of the plan; and
(4) Pay fees to the Designating Bankruptcy Trustee for services
provided to the plan; and
(b) Provided that the conditions set forth in Sections III and IV
of this exemption are satisfied, the restrictions of ERISA sections
406(a)(1)(A) through (D), 406(b)(1) and 406(b)(2), 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 a QTA (as defined in
paragraph (a)(1) or (a)(2)(ii) of Section V) using its authority in
connection with the termination of an abandoned individual account plan
pursuant to the QTA Regulation to:
(1) Designate itself or an affiliate as: (i) provider of an
Individual Retirement Plan; (ii) provider, in the case of a
distribution on behalf of a designated beneficiary (as defined by Code
section 401(a)(9)(E)) who is not the surviving spouse of the deceased
participant, of an inherited Individual Retirement Plan (within the
meaning of Code section 402(c)(11)) established to receive the
distribution on behalf of the non-spouse beneficiary under the
circumstances described in paragraph (d)(1)(ii) of the Safe Harbor
Regulation for Terminated Plans (29 CFR 2550.404a-3) (the Safe Harbor
Regulation); or (iii) provider of an interest bearing, federally
insured bank or savings association account maintained in the name of
the participant or beneficiary, in the case of a distribution described
in paragraph (d)(1)(iii) of the Safe Harbor Regulation, for the
distribution of the account balance of the participant or beneficiary
of the abandoned individual account plan who does not provide direction
as to the disposition of such assets;
(2) Make the initial investment of the account balance of the
participant or beneficiary in the QTA's or its affiliate's proprietary
investment product;
(3) Receive fees in connection with the establishment or
maintenance of the Individual Retirement Plan or other account; and
(4) Pay itself or an affiliate investment fees as a result of the
investment of the Individual Retirement Plan or other account assets in
the QTA's or its affiliate's proprietary investment product.
Section II. Conditions for Provision of Covered Termination Services
and Receipt of Fees
(a) QTA Regulation. The requirements of the QTA Regulation are met.
The QTA provides, in a timely manner, any other reasonably available
information
[[Page 43683]]
requested by the Department regarding the proposed termination.
(b) Fees and expenses. Fees and expenses paid to the QTA and its
affiliate, and any Designating Bankruptcy Trustee, in connection with
the termination of the plan and the distribution of benefits comply
with paragraphs (d)(2)(v)(B)(2)(i) and (ii) of the QTA Regulation or
paragraph (j)(7)(iv) of the QTA Regulation, as applicable;
(c) Fees for services before the deemed termination of the plan. In
the case of a transaction described in Section I(a)(3):
(1) Such services: (i) were performed in good faith pursuant to the
terms of a written agreement executed before the service provider
became a QTA; or (ii) were performed pursuant to the QTA Regulation;
and
(2) The QTA, in the notice of plan abandonment and intent to serve
as qualified termination administrator described in paragraph (c)(3) of
the QTA Regulation or in the case of a QTA described in Section
V(a)(2)(i), the notice of intent to serve as qualified termination
administrator described in paragraph (j)(6) of the QTA Regulation: (i)
represents under penalty of perjury that such services were actually
performed and/or will be performed (in the case of services provided
after the notice but before deemed termination); and (ii) in the case
of Section II(c)(1)(i) above, provides the Department with a copy of
the executed contract between the QTA and a plan fiduciary or the plan
sponsor that authorized such services.
(d) Paying the Designating Bankruptcy Trustee. In the case of a
transaction described in Section I(a)(4):
(1) Such services were performed by the Designating Bankruptcy
Trustee pursuant to the QTA Regulation; and
(2) The Designating Bankruptcy Trustee represents under penalty of
perjury that such services were actually performed and/or will actually
be performed and provides the QTA with such representation for the QTA
to provide to the Department in the notice of intent to serve as
qualified termination administrator described in paragraph (j)(6) of
the QTA Regulation.
Section III. Conditions for Covered Distribution Transactions
(a) QTA Regulation. The conditions of the QTA Regulation (29 CFR
2578.1) are met.
(b) Notice to participants and beneficiaries. In connection with
the notice to participants and beneficiaries described in the QTA
Regulation, a statement is provided explaining that:
(1) If the participant or beneficiary fails to make an election
within the 30-day period referenced in the QTA Regulation, the QTA will
directly distribute the account balance to an Individual Retirement
Plan or other account offered by the QTA or its affiliate;
(2) The proceeds of the distribution may be invested in the QTA's
(or affiliate's) own proprietary investment product, which is designed
to preserve principal and provide a reasonable rate of return and
liquidity.
(c) Exclusive benefit. The Individual Retirement Plan or other
account is established and maintained for the exclusive benefit of the
Individual Retirement Plan account holder or other account holder or
their beneficiaries.
(d) Account terms, fees, and expenses. The terms of the Individual
Retirement Plan or other account, including the fees and expenses for
establishing and maintaining the Individual Retirement Plan or other
account, are no less favorable than those available to comparable
Individual Retirement Plans or other accounts established for reasons
other than the receipt of a distribution described in the QTA
Regulation.
(e) Eligible Investment Product. Except in the case of a QTA
providing a bank or savings account pursuant to Section I(b)(1)(iii) of
the exemption, the distribution proceeds are invested in an Eligible
Investment Product(s), as defined in Section V(c) of this class
exemption.
(f) Investment performance. The rate of return or the investment
performance of the Individual Retirement Plan or other account is no
less favorable than the rate of return or investment performance of an
identical investment(s) that could have been made at the same time by
comparable Individual Retirement Plans or other accounts established
for reasons other than the receipt of a distribution described in the
QTA Regulation.
(g) No sales commissions. The Individual Retirement Plan or other
account does not pay a sales commission in connection with the
acquisition of an Eligible Investment Product.
(h) Transferring account. The Individual Retirement Plan account
holder or other account holder must be able to transfer their account
balance to a different investment offered by the QTA or its affiliate,
or to a different financial institution not related to the QTA or its
affiliate, within a reasonable period of time after their request and
without penalty to the principal amount of the investment.
(i) Fees and expenses. (1) Fees and expenses attendant to the
Individual Retirement Plan or other account, including the investment
of the assets of such plan or account, (e.g., establishment charges,
maintenance fees, investment expenses, termination costs, and surrender
charges) shall not exceed the fees and expenses charged by the QTA for
comparable Individual Retirement Plans or other accounts established
for reasons other than the receipt of a distribution made pursuant to
the QTA Regulation;
(2) Fees and expenses attendant to the Individual Retirement Plan
or other account, with the exception of establishment charges, may be
charged only against the income earned by the Individual Retirement
Plan or other account; and
(3) Fees and expenses attendant to the Individual Retirement Plan
or other account are not in excess of reasonable compensation within
the meaning of Code section 4975(d)(2).
Section IV. Recordkeeping
(a) The QTA maintains or causes to be maintained, for a period of
six (6) years from the date the QTA provides notice to the Department
of its intent to serve as the QTA described in the QTA Regulation, the
records necessary to enable the persons described in paragraph (b) of
this Section to determine whether the applicable conditions of this
exemption have been met. Such records must be readily available to
assure accessibility by the persons identified in paragraph (b) of this
Section.
(b) Notwithstanding any provisions of ERISA section 504(a)(2) and
(b), the records referred to in paragraph (a) of this section are
unconditionally available at their customary location for examination
during normal business hours by--
(1) Any duly authorized employee or representative of the
Department of Labor or the Internal Revenue Service; and
(2) Any account holder of an Individual Retirement Plan or other
account established pursuant to this exemption, or any duly authorized
representative of such account holder.
(c) A prohibited transaction will not be considered to have
occurred if due to circumstances beyond the control of the QTA, the
records necessary to enable the persons described in paragraph (b) to
determine whether the conditions of the exemption have been met are
lost or destroyed, and no party in interest other than the QTA shall be
subject to the civil penalty that may be assessed under ERISA section
502(i) or to the taxes
[[Page 43684]]
imposed by Code sections 4975(a) and (b), the records are not
maintained or are not available for examination as required by
paragraph (b).
(3) None of the persons described in paragraph (b)(2) of this
Section shall be authorized to examine the trade secrets of the QTA or
its affiliates or commercial or financial information that is
privileged or confidential.
Section V. Definitions
(a) A termination administrator is qualified and considered a
``QTA'' for purposes of this exemption only if:
(1)(i) It is eligible to serve as a trustee or issuer of an
individual retirement plan, within the meaning of Code section
7701(a)(37), and (ii) it holds assets of the plan that is found
abandoned; or
(2)(i) It is a bankruptcy trustee in a liquidation proceeding under
chapter 7 of title 11 of the United States Code with responsibility
under 11 U.S.C. 704(a)(11) to administer one or more individual account
plans sponsored by the entity that is the subject of the proceeding,
who elects to be a QTA under 29 CFR 2578.1(j)(6); (ii) it is an
``eligible designee,'' as defined in 29 CFR 2578.1(j)(4)(i); or (iii)
it is an ``eligible designee'' as defined in 29 CFR 2578.1(j)(4)(ii).
If a bankruptcy trustee designates an eligible designee, then it
shall not be considered a QTA with respect to the relief provided in
this exemption.
(b) The term ``Individual Retirement Plan'' means an individual
retirement plan described in Code section 7701(a) (37). For purposes of
Section III of this exemption, the term ``Individual Retirement Plan''
shall also include an inherited individual retirement plan (within the
meaning of Code section 402(c)(11)) established to receive a
distribution on behalf of a non-spouse beneficiary. Notwithstanding the
foregoing, the term ``Individual Retirement Plan'' shall not include an
employee benefit plan covered by Title I of ERISA.
(c) The term ``Eligible Investment Product'' means an investment
product designed to preserve principal and provide a reasonable rate of
return, whether or not such return is guaranteed, consistent with
liquidity. For this purpose, the product must be offered by a Regulated
Financial Institution as defined in paragraph (d) of this Section and
shall seek to maintain, over the term of the investment, the dollar
value that is equal to the amount invested in the product by the
Individual Retirement Plan or other account. Such term includes money
market funds maintained by registered investment companies, and
interest-bearing savings accounts and certificates of deposit of a bank
or similar financial institution. In addition, the term includes
``stable value products'' issued by a financial institution that are
fully benefit-responsive to the Individual Retirement Plan account
holder or other account holder, i.e., that provide a liquidity
guarantee by a financially responsible third party of principal and
previously accrued interest for liquidations or transfers initiated by
the Individual Retirement Plan account holder or other account holder
exercising their right to withdraw or transfer funds under the terms of
an arrangement that does not include substantial restrictions to the
account holder's access to the Individual Retirement Plan or other
account's assets.
(d) The term ``Regulated Financial Institution'' means an entity
that: (i) is subject to state or federal regulation, and (ii) is a bank
or savings association, the deposits of which are insured by the
Federal Deposit Insurance Corporation; a credit union, the member
accounts of which are insured within the meaning of section 101(7) of
the Federal Credit Union Act; an insurance company, the products of
which are protected by state guaranty associations; or an investment
company registered under the Investment Company Act of 1940.
(e) An ``Affiliate'' of a person includes:
(1) Any person directly or indirectly controlling, controlled by,
or under common control with, the person; or
(2) Any officer, director, partner or employee of the person.
(f) The terms ``controlling, controlled by, or under common
control'' means the power to exercise a controlling influence over the
management or policies of a person other than an individual.
(g) The term ``Individual Account Plan'' means an individual
account plan as that term is defined in ERISA section 3(34).
(h) The term ``Designating Bankruptcy Trustee'' means a bankruptcy
trustee in a liquidation proceeding under chapter 7 of title 11 of the
United States Code with responsibility under 11 U.S.C. 704(a)(11) to
administer one or more individual account plans sponsored by the entity
that is the subject of the proceeding, that provides services to the
plan but is not the QTA because of the appointment of an eligible
designee.
Signed at Washington, DC, on April 22, 2024.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits Security Administration, U.S.
Department of Labor.
[FR Doc. 2024-09030 Filed 5-16-24; 8:45 am]
BILLING CODE 4510-29-P
