[Federal Register Volume 75, Number 113 (Monday, June 14, 2010)]
[Notices]
[Pages 33642-33651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14205]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Application Number D-11221]
ZRIN 1210-ZA09


Proposed Amendment to Prohibited Transaction Exemption (PTE) 96-
23 for Plan Asset Transactions Determined by In-House Asset Managers

AGENCY: Employee Benefits Security Administration.

ACTION: Notice of Proposed Amendment to PTE 96-23.

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SUMMARY: This document contains a notice of pendency before the 
Department of Labor (the Department) of a proposed amendment to PTE 96-
23. The exemption permits various transactions involving employee 
benefit plans whose assets are managed by in-house asset managers 
(INHAMs), provided the conditions of the exemption are met. The 
proposed amendment would affect participants and beneficiaries of 
employee benefit plans, the sponsoring employers of such plans, INHAMs, 
and other persons engaging in the described transactions.

DATES: Written comments must be received by the Department on or before 
August 13, 2010.

ADDRESSES: All written comments and requests for a public hearing 
concerning the proposed amendment should be sent to the Office of 
Exemption Determinations, Employee Benefits Security Administration, 
Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington DC 20210, Attention: PTE 96-23 Amendment. Interested persons 
are also invited to submit comments and hearing requests to EBSA via e-
mail to: [email protected] or by fax to 202-219-0204 by the end of 
the scheduled comment period. The comments received will be available 
for public inspection in the Public Disclosure Room of the Employee 
Benefits Security Administration, U.S. Department of Labor, Room N-
1513, 200 Constitution Avenue, NW., Washington, DC 20210. Comments and 
hearing requests will also be available online at http://www.regulations.gov and http://www.dol.gov/ebsa, at no charge.
    Warning: If you submit written comments or hearing requests, do not 
include any personally-identifiable or confidential business 
information that you do not want to be publicly-disclosed. All comments 
and hearing requests are posted on the Internet exactly as they are 
received, and they can be retrieved by most Internet search engines. 
The Department will make no deletions, modifications or redactions to 
the comments or hearing requests received, as they are public records.

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

SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency 
before the Department of a proposed amendment to PTE 96-23 (61 FR 
15975, April 10, 1996). PTE 96-23 provides an exemption from certain of 
the restrictions of sections 406 and 407(a) of ERISA, and from certain 
taxes imposed by section 4975(a) and (b) of the Code, by reason of 
section 4975(c)(1) of the Code. The Department is proposing this 
amendment to PTE 96-23 on its own motion, pursuant to section 408(a) of 
ERISA and section 4975(c)(2) of the Code, and in accordance with the 
procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 
32847, August 10, 1990).\1\
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    \1\ Section 102 of the Reorganization Plan No. 4 of 1978, 5 
U.S.C. App. at 214 (2000 ed.), generally transferred the authority 
of the Secretary of the Treasury to issue administrative exemptions 
under section 4975(c)(2) of the Code to the Secretary of Labor. For 
purposes of this exemption, references to specific provisions of 
Title I of the Act, unless otherwise specified, refer also to the 
corresponding provisions of the Code.
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Executive Order 12866 Statement

    Under Executive Order 12866 (58 FR 51735), the Department must 
determine whether a regulatory action is ``significant'' and therefore 
subject to review by the Office of Management and Budget (OMB). Section 
3(f) of the Executive Order defines a ``significant regulatory action'' 
as an action that is likely to result in a rule (1) having an annual 
effect on the economy of $100

[[Page 33643]]

million or more, or adversely and materially affecting a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities 
(also referred to as ``economically significant''); (2) creating 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants; user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    OMB has designated this Notice as a significant action under 
Executive Order 12866 and has reviewed its contents.

Paperwork Reduction Act Analysis

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 (PRA 
95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data 
can be provided in the desired format, reporting burden (time and 
financial resources) is minimized, collection instruments are clearly 
understood, and the impact of collection requirements on respondents 
can be properly assessed.
    Currently, the Department is soliciting comments concerning the 
proposed information collection request (ICR) included in the Proposed 
Amendment to Prohibited Transaction Exemption (PTE) 96-23 for Plan 
Asset Transactions Determined by In-House Asset Managers. A copy of the 
ICR may be obtained by contacting the PRA addressee shown below or at 
http://www.RegInfo.gov. PRA Addressee: G. Christopher Cosby, Office of 
Policy and Research, U.S. Department of Labor, Employee Benefits 
Security Administration, 200 Constitution Avenue, NW., Room N-5718, 
Washington, DC 20210. Telephone (202) 693-8410; Fax: (202) 219-5333. 
These are not toll-free numbers. ICRs submitted to OMB are also 
available at reginfo.gov (http://www.reginfo.gov/public/do/PRAMain).
    The Department has submitted a copy of the proposed amendment to 
OMB in accordance with 44 U.S.C. 3507(d) for review of its information 
collections. The Department and OMB are particularly interested in 
comments that:
     Evaluate whether the collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the collection of information, including the validity of the 
methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Comments should be sent to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Room 10235, New Executive 
Office Building, Washington, DC 20503; Attention: Desk Officer for the 
Employee Benefits Security Administration. Comments also may be 
submitted by using the Federal eRulemaking portal at http://www.regulations.gov (follow instructions for submission of comments). 
OMB requests that comments be received within 30 days of publication of 
the proposed amendment to ensure their consideration. Please note that 
comments submitted to OMB are a matter of the public record.
    The Department notes that a Federal agency cannot conduct or 
sponsor a collection of information unless it is approved by OMB under 
the PRA, and displays a currently valid OMB control number, and the 
public is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.\2\ Also, 
notwithstanding any other provisions of law, no person shall be subject 
to penalty for failing to comply with a collection of information if 
the collection of information does not display a currently valid OMB 
control number.\3\
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    \2\ 5 CFR 1320.5 and 1320.3(c).
    \3\ 5 CFR 1320.6.
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    The INHAM exemption permits various parties in interest to employee 
benefit plans to engage in transactions involving plan assets if, among 
other requirements, the assets are managed by an INHAM. The Department 
included in the exemption certain requirements intended to preserve 
plan assets and protect plan participant benefits. The exemption 
includes a requirement for written guidelines between an INHAM and a 
property manager that an INHAM has retained to act on its behalf. 
Because it is a customary business practice for agreements related to 
the investment of plan assets or transactions relating to the leasing 
of space to be described in writing, no burden was estimated for this 
provision. The information collection requirements included in this 
paperwork burden estimate consist of the requirements that the INHAM 
develop written policies and procedures designed to assure compliance 
with the conditions of the exemption, and have an independent auditor 
conduct an annual INHAM exemption audit and issue a written audit 
report.
    The Department has made certain specific basic assumptions in order 
to establish a reasonable estimate of the paperwork burden of this 
information collection.
    First, the Department assumes that INHAMs, which are large, 
sophisticated financial institutions, will use existing in-house 
resources to prepare the policies and procedures, rather than hiring 
outside service providers to do this work. This assumption does not 
apply to the audit requirements.
    Second, given the nature of the information collection 
requirements, the Department assumes a combination of personnel will 
perform the information collection. Using data from the Bureau of Labor 
Statistics, the Department assumes an hourly wage rate of $107 for 
2010, including both wages and benefits, for a financial manager and an 
hourly wage rate of $26, similarly including wages and benefits, for 
clerical personnel.\4\ Legal professional time is similarly assumed to 
be $119 per hour.
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    \4\ EBSA estimates of labor rates include wages, other benefits, 
and overhead based on the National Occupational Employment Survey 
(May 2008, Bureau of Labor Statistics) and the Employment Cost Index 
(June 2009, Bureau of Labor Statistics). Figures are projected 
forward to 2010. Financial manager wage and benefits estimates of 
$107.23 are based on metropolitan wage estimates for financial 
managers. Clerical wage and benefits estimates of $26.14 are based 
on metropolitan wage rates for executive secretaries and 
administrative assistants. Legal professional wage and benefits 
estimates of $119.03 are based on metropolitan wage rates for 
lawyers.
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    Third, the Department assumes that maintenance of records of the 
policies and procedures and the audits is generally a usual and 
customary business practice that would be undertaken regardless of the 
exemption. The proposed amendment does not contain any additional 
recordkeeping requirements; no additional burden has been assumed for 
recordkeeping costs.

[[Page 33644]]

Further, given the sophisticated nature of the parties involved, the 
Department assumes that communications between the parties will occur 
electronically via means already in existence. Therefore, the costs 
arising from electronic communications will be negligible.
    The Department estimates that there will be approximately 20 INHAMs 
that will utilize the amended prohibited transaction exemption. 
Information provided by CIEBA, an industry trade group, indicates that 
approximately 24 of CIEBA's members manage plan assets in-house and 
approximately 14-16 of those currently maintain INHAMs and utilize the 
exemptive relief provided in PTE 96-23.\5\ CIEBA's membership is 
estimated to include about 80 percent of all the large firms that 
manage plan assets in-house. That leads to an estimate of approximately 
18 INHAMs. In addition, the Department expects approximately two more 
INHAMs to be established due to proposed changes to the definition of 
an INHAM. The number of INHAMs is assumed to be constant over time.
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    \5\ CIEBA is a trade association whose membership includes 
corporate financial officers who serve as fiduciaries of employee 
benefit plans subject to ERISA and the Code. CIEBA's approximately 
115 member companies collectively oversee about $1.4 trillion of 
defined benefit and defined contribution plan assets for about 16 
million plan participants and beneficiaries. For defined benefit 
plans in 2008, the member companies oversaw more than $652 billion 
in plan assets for more than 10.2 million plan participants. CIEBA 
2008 Membership Profile Executive Summary. This figure represents 
approximately 35 percent of the defined benefit plan assets in the 
United States. This calculation is based on a projection computed by 
applying percentage changes in pension assets derived from the 
Federal Reserve Board's Flow of Funds Accounts to the 2006 Form 5500 
filings with the U.S. Department of Labor.
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Written Policies and Procedures

    The Department assumes that INHAMs will use existing in-house 
resources to prepare the written policies and procedures. The 
Department estimates that each INHAM will use 15 hours of a legal 
professional's time to develop policies and procedures. This leads to 
an hour burden in the first year of 300 hours.\6\ At $119 per hour, the 
equivalent cost will be $35,700 for the first year.\7\
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    \6\ 20 INHAMs x 15 hours = 300 hours.
    \7\ 300 hours x $119 per hour = $35,700.
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    For subsequent years, the Department assumes that INHAMs will 
change their policies and procedures very infrequently. Therefore, the 
hour burden for subsequent years is estimated to be negligible. The 
Department invites comments from interested persons on the 
appropriateness of this assumption.

Audit Requirements

    INHAMs are assumed to use either a law firm or an accounting firm 
to conduct the annual audit required by the proposed amendment. The 
Department has received information from industry representatives that 
the cost of the annual audit required by PTE 96-23 may range from 
approximately $10,000 to $25,000, depending on asset size and how many 
years the INHAM has used the auditing firm. The Department has used a 
conservative estimate for the cost of the outside auditing firm for 
each audit of $20,000. This leads to a cost estimate for the annual 
audits of $400,000.\8\
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    \8\ $20,000 x 20 INHAMs = $400,000.
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    For purposes of the hour burden, the Department estimates that each 
INHAM will use in-house legal professional, financial manager, and 
clerical time to provide documents and respond to questions from the 
auditor. Each annual audit will require about ten hours of a legal 
professional's time, 25 hours of a financial manager's time, and twelve 
hours of clerical time. This leads to an hour burden of 940 hours.\9\ 
The equivalent cost of this hour burden for the annual audits is 
approximately $83,700.\10\
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    \9\ (10 hours + 25 hours + 12 hours) x 20 INHAMs = 940 hours.
    \10\ (10 hours x $119 per hour + 25 hours x $107 per hour + 12 
hours x $26 per hour) x 20 INHAMs = $83,700.
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Summary

    For the first year, the Department estimates that the total hour 
burden imposed by the information collection is about 1,240 hours.\11\ 
The total equivalent cost of this hour burden is approximately 
$119,400.\12\ The total cost burden is $400,000.
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    \11\ 300 hours + 940 hours = 1,240 hours.
    \12\ $35,700 + $83,700 = $119,400.
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    For subsequent years, the total annual hour burden is approximately 
940 hours. The total equivalent annual cost of this hour burden is 
about $83,700. The total annual outside cost is $400,000.
    The paperwork burden estimates are summarized as follows:
    Type of Collection: New collection (Request for new OMB Control 
Number).
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Proposed Amendment to PTE 96-23 for Plan Asset Transactions 
Determined by In-House Asset Managers.
    OMB Control Number: New.
    Affected Public: Business or other for-profit; not-for-profit 
institutions.
    Estimated Number of Respondents: 20.
    Estimated Number of Annual Responses: 40 in the first year, 20 in 
each subsequent year.
    Frequency of Response: Annually; occasionally.
    Estimated Total Annual Burden Hours: 1,240 in the first year, 940 
in each subsequent year.
    Estimated Total Annual Burden Cost: $400,000.

Background

    On March 13, 1984, the Department granted Prohibited Transaction 
Exemption (PTE) 84-14 for Plan Asset Transactions Determined by 
Independent Qualified Professional Asset Managers (49 FR 9494), a class 
exemption that permits various parties who are related to employee 
benefit plans to engage in transactions involving plan assets if, among 
other conditions, the assets are managed by a ``qualified professional 
asset manager'' (QPAM). The Department recently amended the QPAM 
exemption.\13\
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    \13\ See Amendment to Prohibited Transaction Exemption (PTE) 84-
14 for Plan Asset Transactions Determined by Independent Qualified 
Professional Asset Managers, 70 FR 49305 (August 23, 2005). See also 
Proposed Amendment to Prohibited Transaction Exemption (PTE) 84-14 
for Plan Asset Transactions Determined by Independent Qualified 
Professional Asset Managers, 70 FR 49312 (August 23, 2005).
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    The QPAM exemption granted in 1984 did not provide relief for 
transactions involving the assets of plans managed by in-house asset 
managers. The Committee on Investment of Employee Benefit Assets 
(CIEBA) subsequently requested such relief. CIEBA represented that in-
house managers encountered technical problems under the prohibited 
transaction rules of ERISA in the course of considering arm's-length 
transactions that would be in the interests of their plans.
    CIEBA stated, in its original exemption application, that in-house 
managers have become an established part of many large companies that 
manage some or all of their plan assets in-house. According to CIEBA, 
many of the large corporations that made up its membership maintained 
one or more employee benefit plans holding, in the aggregate, assets in 
excess of $250 million. These large corporations determined that they 
could reduce costs and maintain high quality management by developing 
an in-house asset management capability rather than relying exclusively 
on outside managers or consultants. CIEBA represented that, in addition 
to providing reduced costs

[[Page 33645]]

for comparable or better quality management, in-house managers were 
attractive to employers because they devoted their time solely to the 
plan's asset management activities, while outside managers had other 
clients and responsibilities. The applicant also asserted that the 
named plan fiduciaries benefited from having access to in-house 
expertise and advice to assist them in carrying out their fiduciary 
responsibilities.
    CIEBA represented that, unless the Department provided broad 
exemptive relief for in-house asset managers, in-house plans would be 
disadvantaged because of the restrictions on the types of transactions 
an in-house manager could engage in on behalf of such a plan. The 
applicant explained that very large plans may have thousands of parties 
in interest, making the task of determining whether a particular 
transaction was prohibited a considerable burden for the plan 
fiduciaries. According to the applicant, if the in-house manager wished 
to enter into a transaction he or she believed would be beneficial to 
the plan but which also involved a party in interest, that manager 
would be required to either: (1) Seek an individual prohibited 
transaction exemption; (2) retain a QPAM for the transaction; or (3) 
forgo the transaction. The applicant argued that seeking an individual 
exemption involved time and legal expenses. In addition, the use of a 
QPAM entailed additional expenses for the plan despite the fact that 
the in-house manager had already done most of the work required for the 
transaction, including performing the necessary due diligence as to, 
for example, the creditworthiness of the other parties to the 
transaction.\14\ Finally, the applicant argued that forgoing the 
transaction might cause the plan to miss out on a beneficial 
opportunity. CIEBA argued that a class exemption for in-house asset 
managers was necessary because these limitations on a plan's investment 
choices could raise a plan's investment costs in the short run by 
limiting the parties with whom it may deal, and could adversely affect 
investment performance in the long run. Based on the record developed, 
the Department determined that relief would be appropriate and granted 
the Class Exemption for Plan Asset Transactions Determined by In-House 
Asset Managers (INHAMs).\15\
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    \14\ The Department is expressing no opinion as to whether the 
above described transaction would come within the scope of relief 
provided by PTE 84-14, as amended.
    \15\ 61 FR 15975 (April 10, 1996).
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Description of Existing Relief

    The INHAM exemption consists of four separate parts. Part I sets 
forth the general exemption and enumerates certain conditions 
applicable to the transactions described therein. The general exemption 
allows that portion of a plan which is managed by an INHAM to engage in 
all transactions described in section 406(a)(1)(A) through (D) of ERISA 
with virtually all party in interest service providers except the INHAM 
or a person related to the INHAM. The general exemption does not extend 
to transactions that would give rise to violations of section 406(b) of 
ERISA.
    Part II of the exemption provides limited relief under both 
sections 406(a) and (b), and 407(a), of ERISA for certain transactions 
involving employers and their affiliates who cannot qualify for the 
general exemption provided by Part I. Section II(a) provides limited 
relief for the leasing of office or commercial space by a plan to an 
employer if the plan acquired the property subject to an outstanding 
lease with an employer or affiliate as a result of foreclosure on a 
mortgage or deed of trust. Section II(b) permits a plan to lease 
residential space to an employee of an employer any of whose employees 
are covered by such plan, or to any employee of a 50% or more parent or 
subsidiary of the employer.
    Part III of the exemption provides relief from sections 
406(a)(1)(A) through (D), 406(b)(1) and (b)(2) of ERISA for the 
furnishing of services, facilities and any goods incidental thereto by 
a place of accommodation owned by a plan managed by an INHAM to a party 
in interest with respect to the plan, if the services, facilities or 
incidental goods are furnished on a comparable basis to the general 
public.
    Part IV contains definitions of certain terms used in the 
exemption.

Description of the Proposed Amendments

Definition of INHAM

    The Department is proposing to amend several provisions of the 
INHAM exemption, including the definition of INHAM in section IV(a). 
Section IV(a) currently provides that:

    The term ``in-house asset manager'' or ``INHAM'' means an 
organization which is--
    (1) Either (A) a direct or indirect wholly-owned subsidiary of 
an employer, or a direct or indirect wholly-owned subsidiary of a 
parent organization of such employer, or (B) a membership nonprofit 
corporation a majority of whose members are officers or directors of 
such an employer or parent organization; and
    (2) an investment adviser registered under the Investment 
Advisers Act of 1940 that, as of the last day of its most recent 
fiscal year, has under its management and control total assets 
attributable to plans maintained by affiliates of the INHAM (as 
defined in section IV(b)) in excess of $50 million; provided that if 
it has no prior fiscal year as a separate legal entity as a result 
of it constituting a division or group within the employer's 
organizational structure, then this requirement will be deemed met 
as of the date during its initial fiscal year as a separate legal 
entity that responsibility for the management of such assets in 
excess of $50 million was transferred to it from the employer.
    In addition, plans maintained by affiliates of the INHAM and/or 
the INHAM, must have, as of the last day of each plan's reporting 
year, aggregate assets of at least $250 million.
    The Department has been informed by interested persons that the 
requirement that an INHAM be a wholly owned subsidiary of an employer 
or its parent organization unduly limited some entities from serving as 
INHAMs. Interested parties requested, in comments submitted in 
connection with the proposed amendment to the QPAM class exemption [68 
FR 52419, September 3, 2003], that the Department consider broadening 
the definition of INHAM to permit a greater number of entities to take 
advantage of the relief provided by the exemption.
    In response to such comments, the Department proposes to expand the 
definition of INHAM to include a subsidiary that is 80% or more owned 
by the employer or parent company. Additionally, the plan assets under 
management requirement would be increased from $50 million to $85 
million, effective as of the last day of the first fiscal year 
beginning on or after the date of publication in the Federal Register 
of the final amendment to this exemption. The increase reflects the 
change in the Consumer Price Index.

Requested Clarifications

    The Department has also been asked informally to clarify several 
issues regarding the definition of an INHAM and the scope of the 
exemption. First, the Department has been asked whether an INHAM can 
act on behalf of its own plans. The exemption provides relief for 
transactions involving a ``plan'' as defined in section IV(h). As noted 
by the Department in the preamble to the original exemption, the 
definition of plan adopted by the Department includes a plan maintained 
by the INHAM or an affiliate of the INHAM. Accordingly, the exemption 
currently provides relief for an INHAM to act on behalf of its own 
plans.
    Additionally, interested persons have asked the Department to 
clarify certain aspects of transactions involving both INHAMs and 
QPAMs. The Department

[[Page 33646]]

was asked whether a QPAM could be employed to negotiate the specific 
terms of a deal after an employer or its INHAM have agreed on general 
terms with the counterparty. The Department stated in the preamble to 
the original QPAM class exemption that, while a QPAM may adhere to 
investment guidelines established by persons with the power to appoint 
it, the retention of a veto or approval power by the plan sponsor or 
its designee would be inconsistent with the underlying concept of the 
QPAM exemption, that is, the transfer of plan assets to an independent, 
discretionary, manager.\16\ In the Department's view, an INHAM 
directing a QPAM to negotiate specific terms of a deal that has already 
been generally agreed upon by the INHAM or the employer represents a 
more significant limitation on the QPAM's discretion than the 
imposition of investment guidelines. Similar to a veto or approval 
power, this amount of involvement would be inconsistent with the basic 
premise of the QPAM exemption.
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    \16\ 49 FR 9497.
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    Interested persons also asked the Department to clarify that a 
transaction that is entered into by an INHAM, but subsequently overseen 
by a QPAM, or vice versa, may satisfy the terms of the INHAM and the 
QPAM exemption, as applicable. The Department believes that, unlike the 
situation described in the previous paragraph, the INHAM and the QPAM 
may each operate independently of one another and have discretionary 
authority for different aspects of the same plan investment. Thus, for 
example, the INHAM may exercise its discretionary authority to purchase 
an office building on behalf of the plan. Pursuant to an investment 
management agreement with the plan, the QPAM may have independent 
discretionary authority to operate the building on a day to day basis, 
including negotiating all lease agreements. Under those circumstances, 
the Department agrees that the QPAM and the INHAM exemptions would be 
available for the transactions independently negotiated by the INHAM 
and QPAM, respectively, provided that the conditions of the relevant 
exemption are satisfied.
    Interested persons also requested that the Department clarify 
section I(b) of PTE 96-23 in a manner similar to the clarification made 
by the Department in the proposed amendment to the QPAM class 
exemption.\17\ Section I(b) of PTE 96-23 excludes from exemptive relief 
those transactions described in PTEs 81-6 (relating to securities 
lending arrangements), 83-1 (relating to acquisitions by plans of 
interests in mortgage pools) and 88-59 (relating to certain mortgage 
financing arrangements). The Department understands that there is 
uncertainty regarding the application of the INHAM class exemption to 
certain types of transactions that, although similar to the 
transactions that are the subject of the three specialized exemptions, 
are beyond the scope of relief provided by those exemptions. It is the 
view of the Department that the INHAM class exemption would provide 
relief for such transactions if the conditions of the exemption are 
otherwise satisfied. The Department cautions, however, that the INHAM 
class exemption would not be available for any transaction specifically 
described in PTEs 81-6, 83-1 or 88-59, if a person determines not to 
satisfy one or more of the conditions of the specialized exemptions 
solely in order to take advantage of the relief provided by the INHAM 
class exemption.
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    \17\ See 68 FR 52422, September 3, 2003.
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    The Department notes that on October 31, 2006, it amended and 
replaced PTEs 81-6 and 82-63, relating to securities lending 
arrangements (PTE 2006-16, 71 FR 63786). That amendment extended the 
relief provided under PTEs 81-6 and 82-63 to additional parties and 
additional forms of collateral, subject to modified conditions. 
Recognizing that class exemptions are often amended over time to 
reflect changes in the marketplace, the Department intends that section 
I(b)(1) of the INHAM class exemption will continue to exclude from 
relief transactions described in PTE 2006-16 as it is amended or 
superseded. Accordingly, the Department proposes to amend the reference 
to PTE 2006-16 in section I(b), as well as the references in that 
section to the other class exemptions, to include the phrase ``as 
amended or superseded.''

Permitted Counterparties

    The Department also received requests from interested persons to 
amend section I(e) of the exemption, which as currently drafted 
provides that the party in interest dealing with the plan: (1) Is a 
party in interest with respect to the plan (including a fiduciary) 
solely by reason of providing services to the plan, or solely by reason 
of a relationship to a service provider described in section 3(14)(F), 
(G), (H), or (I) of ERISA; and (2) does not have discretionary 
authority or control with respect to the investment of the plan assets 
involved in the transaction and does not render investment advice 
(within the meaning of 29 CFR 2510.3-21(c)) with respect to those 
assets.
    On occasion, since the issuance of PTE 96-23, the Department has at 
times been asked to remove all limits on the types of parties in 
interest that could engage in transactions with the plan pursuant to 
the exemption. The Department also received a more limited request to 
permit the plan to engage in transactions with ``co-joint venturers.'' 
Such entities own at least 10% of a joint venture in which an employer 
(or its parent) has at least a 50% interest and are parties in interest 
pursuant to section 3(14)(I) of ERISA. The interested person 
represented that it is administratively burdensome for INHAMs to 
monitor every joint venture in which employers may participate.
    The Department has determined not to remove all restrictions on the 
types of parties in interest that may engage in transactions with plans 
pursuant to the exemption. In this regard, the Department notes that a 
commenter on the original INHAM exemption requested that the 
restrictions on parties in interest be removed, and at that time the 
Department stated that there had not been a sufficient showing that the 
safeguards contained in the proposed exemption would adequately 
discourage the exercise of undue influence upon the INHAM if the 
exemption were expanded in such manner. For that reason, the Department 
is not persuaded at this time that such an amendment is warranted.
    However, the Department has determined to propose the more limited 
relief requested for entities that are parties in interest because they 
are ``co-joint venturers.'' Section I(e) would provide as follows:

    (e) The party in interest dealing with the plan: (1) Is a party 
in interest with respect to the plan (including a fiduciary) either 
(i) solely by reason of providing services to the plan, or solely by 
reason of a relationship to a service provider described in section 
3(14)(F), (G), (H) or (I) of ERISA, or (ii) solely by reason of 
being a 10 percent or more shareholder, partner or joint venturer, 
in a person, which is 50 percent or more owned by an employer of 
employees covered by the plan (directly or indirectly in capital or 
profits), or the parent company of such an employer, provided that 
such person is not controlled by, controlling, or under common 
control with such employer, or (iii) by reason of both (i) and (ii) 
only, and (2) does not have discretionary authority or control with 
respect to the investment of the plan assets involved in the 
transaction and does not render investment advice (within the 
meaning of 29 CFR 2510.3-21(c)) with respect to those assets.

    The Department cautions that, under section I(e), a co-joint 
venturer may engage in a transaction with a plan only if the joint 
venture relationship is the

[[Page 33647]]

entity's sole relationship to the employer, or if the entity is both a 
joint venturer and a service provider or an entity with a relationship 
to a service provider as described above. If a person has any other 
relationship with the employer described in section 3(14) of the Act, 
the person would not fall within the scope of section I(e), and, 
therefore, could not take advantage of the relief provided by the 
exemption. In addition, the co-joint venturer may not be controlled by, 
controlling, or under common control with such employer. Finally, 
section I(e) clarifies that the co-joint venturer may not have 
discretionary authority or control with respect to the investment of 
the plan assets involved in the transaction and may not render 
investment advice (within the meaning of 29 CFR 2510.3-21(c)) with 
respect to those assets.

Parties Related to the INHAM

    The Department proposes to amend the definition of ``related'' to 
in section IV(d) of the exemption. Under section I(f), the party in 
interest dealing with the plan may not be the INHAM nor a person 
related to the INHAM. Section IV(d) currently provides that an INHAM is 
related to a party in interest.

    If the party in interest (or a person controlling, or controlled 
by, the party in interest) owns a five percent or more interest in 
the INHAM or if the INHAM (or a person controlling, or controlled 
by, the INHAM) owns a five percent or more interest in the party in 
interest.

    The Department understands that compliance with the ``related'' to 
requirement may create administrative burdens for a number of INHAMs. 
In order to ease such burdens, the Department determined to increase 
the five percent threshold in section IV(d) to ten percent.
    The Department notes that, under the proposed amendment, the 
requirements in section I(f) may overlap with the limitations contained 
in section I(e) under certain circumstances. Thus, for example, if the 
party in interest owns a 10 percent interest in the INHAM, the party in 
interest would fail section I(e) because, as a 10% shareholder of the 
INHAM, it would no longer be a party in interest solely by reason of 
being a service provider to the plan. In addition, it would fail 
section I(f) as it would be considered ``related'' to the INHAM because 
of its ownership interest. Conversely, under the proposed amendment, 
relief would be available to a service provider that is 9% owned by the 
parent corporation of the INHAM.
    In addition, the Department is proposing to make several other 
amendments to section IV(d) to ease compliance burdens. As amended, 
that section would require ownership interests to be calculated only as 
of the last day of the entity's most recent calendar quarter. Finally, 
ownership interests held in a fiduciary capacity would not have to be 
considered in applying the percentage limitation in section IV(d) of 
the exemption.

Continuing Transactions

    The Department has received several inquiries about section IV(e) 
of PTE 96-23, which defines ``the time as of which any transaction 
occurs.'' The Department understands that there is uncertainty 
regarding the role of an INHAM in a continuing transaction. Section 
IV(e) states the following with respect to a continuing transaction:

    [I]n the case of a transaction that is continuing, the 
transaction shall be deemed to occur until it is terminated. If any 
transaction is entered into on or after April 10, 1996, or any 
renewal that requires the consent of the INHAM occurs on or after 
April 10, 1996, and the requirements of this exemption are satisfied 
at the time the transaction is entered into or renewed, 
respectively, the requirements will continue to be satisfied 
thereafter with respect to the transaction. Nothing in this 
paragraph shall be construed as exempting a transaction entered into 
by a plan which becomes a transaction described in section 406 of 
the Act or section 4975 of the Code while the transaction is 
continuing, unless the conditions of the exemption were met either 
at the time the transaction was entered into or at the time the 
transaction would have become prohibited but for this exemption. In 
determining compliance with the conditions of the exemption at the 
time that the transaction was entered into for purposes of the 
preceding sentence, section I(e) will be deemed satisfied if the 
transaction was entered into between a plan and a person who was not 
then a party in interest.

In the Department's view, the exemption would be available for a 
continuing transaction (e.g., a loan or lease), provided that all the 
conditions of the exemption are satisfied on the date on which the 
transaction is entered into (or on the date of a renewal that requires 
the consent of the INHAM), notwithstanding the subsequent failure to 
satisfy one or more of the conditions of the exemption. Nonetheless, 
the Department cautions that, although Part I may continue to be 
available for the entire term of a continuing transaction which 
subsequently fails to satisfy one or more of the conditions of that 
Part, no relief would be provided for an act of self-dealing described 
in section 406(b)(1) of ERISA if the INHAM has an interest in the 
person which may affect the exercise of its best judgment as a 
fiduciary. Although Part I provides an exemption from section 
406(a)(1)(A) through (D) of ERISA, it does not provide relief from acts 
described in section 406(b) of ERISA. The Department urges fiduciaries 
to take appropriate steps to avoid engaging in 406(b) violations should 
circumstances change during the course of a continuing transaction.

Exemption Audit

    It has come to the Department's attention that practitioner 
uncertainty exists regarding certain aspects of the exemption audit, as 
required by section I(h), and defined in section IV(f), of PTE 96-23. 
The Department is therefore proposing to amend the class exemption, and 
is offering the following views, to provide clarity to those sections.
    Section IV(f) of PTE 96-23 currently requires, in part, an auditor 
to test a representative sample of a plan's transactions covered by the 
exemption in order to make findings regarding whether the INHAM is in 
compliance with the INHAM's policies and procedures, and with the 
objective requirements of the exemption. The Department notes, however, 
that in certain instances, an auditor may need to construct and test 
more than one sample of transactions. For example, an auditor may 
initially believe that the most appropriate way to make the required 
findings is to construct a sample that represents a subset of the total 
universe of relevant transactions engaged in by the INHAM under the 
exemption. In testing the sample, however, the auditor should look for, 
and may find, patterns of compliance failures that indicate that 
certain types of transactions are more prone to compliance failures 
than others. If such patterns appear, the auditor may need to test 
additional transactions to more accurately assess the extent and causes 
of non-compliant transactions. Ultimately, an auditor must construct 
and test a sampling of transactions that is sufficient in size (i.e., 
number of transactions) and nature (i.e., type of transactions) to 
afford the auditor a reasonable basis to make its required 
determinations under the class exemption. Since, as noted in the 
preamble to PTE 96-23, the sole purpose of the audit is to assure 
compliance with the exemption, the sample should also be sufficient in 
size and nature for the auditor to render an overall opinion regarding 
whether the INHAM's program complied with the objective requirements of 
the exemption, and with the INHAM's own policies and procedures.
    Accordingly, the Department is proposing to amend section IV(f)(2) 
of

[[Page 33648]]

the exemption in a manner that is consistent with the views expressed 
above.
    Section I(h) of the exemption requires that an independent auditor 
conduct an exemption audit on an annual basis, and issue a written 
report to the plan presenting its specific findings regarding the level 
of compliance with the policies and procedures adopted by the INHAM. 
However, the exemption does not currently specify the date by which 
each audit must be completed. To avoid any uncertainty on this issue, 
the Department is proposing to amend section I(h) of the exemption to 
expressly provide that the audit must be completed within six months 
following the end of the year to which it relates. The Department is 
further proposing to amend section I(h) to clarify that the written 
report must contain both specific findings required under section 
IV(f)(2), and an overall opinion regarding the level of compliance of 
the INHAM's program with the objective requirements of the exemption.
    The preamble to the original INHAM class exemption points out that 
relief is not available under the exemption for those transactions that 
did not satisfy its conditions. As a result, the Department anticipates 
that an auditor's report will clearly identify each transaction 
examined by the auditor that does not comply with the INHAM's policies 
and procedures or the exemption. In this regard, the report should 
identify the specific policies, procedures or exemption conditions that 
were not satisfied. The Department expects further that each written 
report will include a description of the steps, if any, taken by the 
INHAM to remedy transactions that did not comply with the objective 
requirements of the exemption. The report should also contain a 
description of the steps taken by the auditor to construct the 
sample(s) and an explanation as to why the auditor believes that the 
sample on which the required findings are based is an adequate 
representation of the total universe of transactions engaged in by the 
INHAM.
    The INHAM retains responsibility for reviewing the written report 
and taking any appropriate actions deemed necessary for assuring 
compliance with the exemption. The Department cautions that the failure 
of the INHAM to take appropriate steps to address any adverse findings 
or prohibited transactions in an audit would raise issues under the 
fiduciary responsibility provisions of section 404 of ERISA.

Section II Transactions

    Finally, the Department was asked by CIEBA, the original applicant, 
to amend section II(a) of the exemption, which provides relief for the 
leasing of office or commercial space owned by a plan managed by an 
INHAM to an employer with respect to the plan or an affiliate of such 
employer. As originally granted, the relief provided in section II(a) 
was limited to situations in which the plan acquired the space subject 
to an existing lease as a result of a foreclosure on a mortgage or deed 
of trust. CIEBA noted that situations other than a foreclosure can give 
rise to a lease relationship between a plan and an employer or its 
affiliate. For example, CIEBA noted that the plan may purchase a 
building subject to a pre-existing lease. Alternatively, the employer 
could acquire a company with an existing lease in a building owned by 
the plan. CIEBA asserted that in both situations, the terms of the 
existing lease were negotiated by a third party at arm's length. CIEBA 
additionally requested that section II(a) of the exemption be expanded 
to cover all situations in which the plan's lease to the employer or an 
affiliate arises as a result of a corporate transaction outside the 
INHAM's control.
    The Department concurs with CIEBA that it is appropriate to expand 
the relief provided by section II(a) to include additional situations 
involving existing leases with an employer or an affiliate beyond 
foreclosure situations, provided that the decision to acquire the 
office or commercial space subject to the lease is made by the INHAM. 
The Department has proposed to amend section II(a) accordingly. In the 
case of a transaction involving the employer's acquisition of a company 
with an existing lease in a building purchased by the plan, the 
Department notes that the last sentence of section IV(e) provides that:

    [i]n determining compliance with the conditions of the exemption 
at the time that the transaction was entered into for purposes of 
the preceding sentence, section I(e) will be deemed satisfied if the 
transaction was entered into between a plan and a person who was not 
then a party in interest.

Accordingly, it is the view of the Department that section II(a) would 
be available for the entire lease term, notwithstanding the employer's 
subsequent acquisition of the lessee, provided that the conditions of 
the exemption were met at the time the transaction first was entered 
into. Finally, in light of the fact that the INHAM is affiliated with 
the employer maintaining the plan, the Department is not convinced that 
it is appropriate to provide broad relief for all situations in which 
the plan's lease to the employer or an affiliate arises as a result of 
a corporate transaction outside of the INHAM's control.

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of ERISA and section 4975(c)(2) of the Code does 
not relieve a fiduciary or other party in interest or disqualified 
person with respect to a plan from certain other provisions of ERISA 
and the Code, including any prohibited transaction provisions to which 
the exemption does not apply and the general fiduciary responsibility 
provisions of section 404 of ERISA which require, among other things, 
that a fiduciary discharge his or her duties respecting plan solely in 
the interests of the participants and beneficiaries of the plan. 
Additionally, the fact that a transaction is the subject of an 
exemption does not affect the requirement of section 401(a) of the Code 
that the plan must operate for the exclusive benefit of the employees 
of the employer maintaining the plan and their beneficiaries;
    (2) Before an exemption may be granted under section 408(a) of 
ERISA and 4975(c)(2) of the Code, the Department must find that the 
exemption is administratively feasible, in the interests of the plan 
and of its participants and beneficiaries, and protective of the rights 
of participants and beneficiaries of the plan;
    (3) If granted, the proposed amendment is applicable to a 
particular transaction only if the transaction satisfies the conditions 
specified in the exemption; and
    (4) The proposed amendment, if granted, will be supplemental to, 
and not in derogation of, any other provisions of ERISA and the Code, 
including statutory or administrative exemptions and transitional 
rules. Furthermore, the fact that a transaction is subject to an 
administrative or statutory exemption is not dispositive of whether the 
transaction is in fact a prohibited transaction.

Written Comments and Hearing Requests

    The Department invites all interested persons to submit written 
comments or requests for a public hearing on the proposed amendment to 
the address and within the time period set forth above. All comments 
received will be made a part of the record. Comments and requests for a 
public hearing should

[[Page 33649]]

state the reasons for the writer's interest in the proposed amendment. 
Comments received will be available for public inspection at the above 
address.

Proposed Amendment

    Under section 408(a) of the Act and section 4975(c)(2) of the Code 
and in accordance with the procedures set forth in 29 CFR part 2570, 
subpart B (55 FR 32836, 32847, August 10, 1990), the Department 
proposes to amend PTE 96-23, effective as of the date of publication of 
the final class exemption in the Federal Register, as set forth below:

Part I--Basic Exemption

    Effective as of the date of publication of the final class 
exemption in the Federal Register, the restrictions of section 
406(a)(1)(A) through (D) of the Act and the taxes imposed by section 
4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through 
(D) of the Code, shall not apply to a transaction between a party in 
interest with respect to a plan (as defined in section IV(h)) and such 
plan, provided that an in-house asset manager (INHAM) (as defined in 
section IV(a)) has discretionary authority or control with respect to 
the plan assets involved in the transaction and the following 
conditions are satisfied:
    (a) The terms of the transaction are negotiated on behalf of the 
plan by, or under the authority and general direction of, the INHAM, 
and either the INHAM, or (so long as the INHAM retains full fiduciary 
responsibility with respect to the transaction) a property manager 
acting in accordance with written guidelines established and 
administered by the INHAM, makes the decision on behalf of the plan to 
enter into the transaction. Notwithstanding the foregoing, a 
transaction involving an amount of $5,000,000 or more, which has been 
negotiated on behalf of the plan by the INHAM will not fail to meet the 
requirements of this section I(a) solely because the plan sponsor or 
its designee retains the right to veto or approve such transaction;
    (b) The transaction is not described in-
    (1) Prohibited Transaction Exemption 2006-16 (71 FR 63786, October 
31, 2006) (relating to securities lending arrangements) (as amended or 
superseded);
    (2) Prohibited Transaction Exemption 83-1 (48 FR 895, January 7, 
1983) (relating to acquisitions by plans of interests in mortgage 
pools)(as amended or superseded); or
    (3) Prohibited Transaction Exemption 88-59 (53 FR 24811, June 30, 
1988) (relating to certain mortgage financing arrangements) (as amended 
or superseded);
    (c) The transaction is not part of an agreement, arrangement or 
understanding designed to benefit a party in interest;
    (d) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification thereof that requires the 
consent of the INHAM, the terms of the transaction are at least as 
favorable to the plan as the terms generally available in arm's length 
transactions between unrelated parties;
    (e) The party in interest dealing with the plan: (1) Is a party in 
interest with respect to the plan (including a fiduciary) either (i) 
solely by reason of providing services to the plan, or solely by reason 
of a relationship to a service provider described in section 3(14)(F), 
(G), (H) or (I) of ERISA, or (ii) solely by reason of being a 10 
percent or more shareholder, partner or joint venturer, in a person, 
which is 50 percent or more owned by an employer of employees covered 
by the plan (directly or indirectly in capital or profits), or the 
parent company of such an employer, provided that such person is not 
controlled by, controlling, or under common control with such employer, 
or (iii) by reason of both (i) and (ii) only, and (2) does not have 
discretionary authority or control with respect to the investment of 
the plan assets involved in the transaction and does not render 
investment advice (within the meaning of 29 CFR 2510.3-21(c)) with 
respect to those assets.
    (f) The party in interest dealing with the plan is neither the 
INHAM nor a person related to the INHAM (within the meaning of section 
IV(d));
    (g) The INHAM adopts written policies and procedures that are 
designed to assure compliance with the conditions of the exemption; and
    (h) An independent auditor, who has appropriate technical training 
or experience and proficiency with ERISA's fiduciary responsibility 
provisions and so represents in writing, conducts an exemption audit 
(as defined in section IV(f)) on an annual basis. Following completion 
of the exemption audit, the auditor shall issue a written report to the 
plan presenting its specific findings regarding the level of 
compliance: (1) With the policies and procedures adopted by the INHAM 
in accordance with section I(g); and (2) with the objective 
requirements of the exemption. The written report shall also contain 
the auditor's overall opinion regarding whether the INHAM's program 
complied: (1) With the policies and procedures adopted by the IHNAM; 
and (2) with the objective requirements of the exemption. The exemption 
audit and the written report must be completed within six months 
following the end of the year to which the audit relates.

Part II--Specific Exemptions

    Effective as of the date of publication of the final class 
exemption in the Federal Register, the restrictions of sections 406(a), 
406(b)(1), 406(b)(2) and 407(a) of the Act and the taxes imposed by 
section 4975(a) and (b) of the Code, by reason of Code section 
4975(c)(1)(A) through (E), shall not apply to:
    (a) The leasing of office or commercial space owned by a plan 
managed by an INHAM to an employer any of whose employees are covered 
by the plan or an affiliate of such employer (as defined in section 
407(d)(7) of the Act), if --
    (1) The plan acquires the office or commercial space subject to an 
existing lease with the employer or its affiliate;
    (2) The lease was negotiated by a party unrelated to the employer 
or its affiliate;
    (3) The INHAM makes the decision on behalf of the plan to acquire 
the office or commercial space as part of the exercise of its 
discretionary authority;
    (4) The exemption provided for transactions engaged in with a plan 
pursuant to section II(a) is effective until the later of the 
expiration of the lease term or any renewal thereof which does not 
require the consent of the plan lessor;
    (5) The amount of space covered by the lease does not exceed 
fifteen (15) percent of the rentable space of the office building or 
the commercial center; and
    (6) The requirements of sections I(c), I(g) and I(h) are satisfied 
with respect to the transaction.
    (b) The leasing of residential space by a plan to a party in 
interest if --
    (1) The party in interest leasing space from the plan is an 
employee of an employer any of whose employees are covered by the plan 
or an employee of an affiliate of such employer (as defined in section 
407(d)(7) of the Act);
    (2) The employee who is leasing space does not have any 
discretionary authority or control with respect to the investment of 
the assets involved in the lease transaction and does not render 
investment advice (within the meaning of 29 CFR 2510.3-21(c)) with 
respect to those assets;
    (3) The employee who is leasing space is not an officer, director, 
or a 10% or more shareholder of the employer or an affiliate of such 
employer;
    (4) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification

[[Page 33650]]

thereof that requires the consent of the INHAM, the terms of the 
transaction are not less favorable to the plan than the terms afforded 
by the plan to other, unrelated lessees in comparable arm's length 
transactions;
    (5) The amount of space covered by the lease does not exceed five 
percent (5%) of the rentable space of the apartment building or multi-
unit residential subdivision [townhouses or garden apartments], and the 
aggregate amount of space leased to all employees of the employer or an 
affiliate of such employer does not exceed ten percent (10%) of such 
rentable space; and
    (6) The requirements of sections I(a), I(c), I(d), I(g) and I(h) 
are satisfied with respect to the transaction.

Part III--Places of Public Accommodation

    Effective as of the date of publication of the final class 
exemption in the Federal Register, the restrictions of sections 
406(a)(1)(A) through (D) and 406(b)(1) and (2) of ERISA and the taxes 
imposed by Code section 4975(a) and (b), by reason of Code section 
4957(c)(1)(A) through (E), shall not apply to the furnishing of 
services and facilities (and goods incidental thereto) by a place of 
public accommodation owned by a plan and managed by an INHAM to a party 
in interest with respect to the plan, if the services and facilities 
(and incidental goods) are furnished on a comparable basis to the 
general public.

Part IV--Definitions

    For purposes of this exemption:
    (a) The term ``in-house asset manager'' or ``INHAM'' means an 
organization which is--
    (1) either (A) a direct or indirect 80 percent or more owned 
subsidiary of an employer, or a direct or indirect 80 percent more 
owned subsidiary of a parent organization of such an employer, or (B) a 
membership nonprofit corporation a majority of whose members are 
officers or directors of such an employer or parent organization; and
    (2) an investment adviser registered under the Investment Advisers 
Act of 1940 that, as of the last day of its most recent fiscal year, 
has under its management and control total assets attributable to plans 
maintained by affiliates of the INHAM (as defined in section IV(b)) in 
excess of $50 million; provided that if it has no prior fiscal year as 
a separate entity as a result of it constituting a division or group 
within the employer's organizational structure, then this requirement 
will be deemed met as of the date during its initial fiscal year as a 
separate legal entity that responsibility for the management of such 
assets in excess of $50 million was transferred to it from the 
employer. Effective as of the last day of the first fiscal year of the 
investment adviser beginning on or after the date of publication of 
this amendment to PTE 96-23 in the Federal Register, substitute ``$85 
million'' for ``$50 million'' in (a)(2) of section IV above.
    In addition, plans maintained by affiliates of the INHAM and/or the 
INHAM must have, as of the last day of each plan's reporting year, 
aggregate assets of at least $250 million.
    (b) For purposes of sections IV(a) and IV(h), an ``affiliate'' of 
an INHAM means a member of either (1) a controlled group of 
corporations (as defined in section 414(b) of the Code) of which the 
INHAM is a member, or (2) a group of trades or businesses under common 
control (as defined in section 414(c) of the Code) of which the INHAM 
is a member; provided that ``50 percent'' shall be substituted for ``80 
percent'' wherever ``80 percent'' appears in section 414(b) or 414(c) 
or the rules thereunder.
    (c) The term ``party in interest'' means a person described in the 
Act section 3(14) and includes a ``disqualified person'' as defined in 
Code section 4975(e)(2).
    (d) An INHAM is ``related'' to a party in interest for purposes of 
section I(f) of this exemption if, as of the last day of its most 
recent calendar quarter: (i) the INHAM (or a person controlling, or 
controlled by, the INHAM) owns a ten percent or more interest in the 
party in interest; or (ii) the party in interest (or a person 
controlling, or controlled by, the party in interest) owns a ten 
percent or more interest in the INHAM. For purposes of this definition:
    (1) The term ``interest'' means with respect to ownership of an 
entity--
    (A) The combined voting power of all classes of stock entitled to 
vote or the total value of the shares of all classes of stock of the 
entity if the entity is a corporation,
    (B) The capital interest or the profits interest of the entity if 
the entity is a partnership, or
    (C) The beneficial interest of the entity if the entity is a trust 
or unincorporated enterprise; and
    (2) A person is considered to own an interest if, other than in a 
fiduciary capacity, the person has or shares the authority--
    (A) To exercise any voting rights or to direct some other person to 
exercise the voting rights relating to such interest, or
    (B) To dispose or to direct the disposition of such interest; and
    (3) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (e) For purposes of this exemption, the time as of which any 
transaction occurs is the date upon which the transaction is entered 
into. In addition, in the case of a transaction that is continuing, the 
transaction shall be deemed to occur until it is terminated. If any 
transaction is entered into on or after April 10, 1996, or any renewal 
that requires the consent of the INHAM occurs on or after April 10, 
1996, and the requirements of this exemption are satisfied at the time 
the transaction is entered into or renewed, respectively, the 
requirements will continue to be satisfied with respect to the 
transaction. Nothing in this paragraph shall be construed as exempting 
a transaction entered into by a plan which becomes a transaction 
described in section 406 of the Act or section 4975 of the Code while 
the transaction is continuing, unless the conditions of the exemption 
were met either at the time the transaction was entered into or at the 
time the transaction would have become prohibited but for this 
exemption. In determining compliance with the conditions of the 
exemption at the time that the transaction was entered into for 
purposes of the preceding sentence, section I(e) will be deemed 
satisfied if the transaction was entered into between a plan and a 
person who was not then a party in interest.
    (f) Exemption Audit. An ``exemption audit'' of a plan must consist 
of the following:
    (1) A review of the written policies and procedures adopted by the 
INHAM pursuant to section I(g) for consistency with each of the 
objective requirements of this exemption (as described in section 
IV(g)).
    (2) A test of a sample of the INHAM's transactions during the audit 
period that is sufficient in size and nature to afford the auditor a 
reasonable basis: (A) To make specific findings regarding whether the 
INHAM is in compliance with (i) the written policies and procedures 
adopted by the INHAM pursuant to section I(g) of the exemption and (ii) 
the objective requirements of the exemption; and (B) to render an 
overall opinion regarding the level of compliance of the INHAM's 
program with section IV(f)(2)(A)(i) and (ii) of the exemption.
    (3) A determination as to whether the INHAM satisfied the 
definition of an INHAM under the exemption; and
    (4) Issuance of a written report describing the steps performed by 
the

[[Page 33651]]

auditor during the course of its review and the auditor's findings.
    (g) For purposes of section IV(f), the written policies and 
procedures must describe the following objective requirements of the 
exemption and the steps adopted by the INHAM to assure compliance with 
each of these requirements:
    (1) The definition of an INHAM in section IV(a).
    (2) The requirements of Part I and section I(a) regarding the 
discretionary authority or control of the INHAM with respect to the 
plan assets involved in the transaction, in negotiating the terms of 
the transaction, and with regard to the decision on behalf of the plan 
to enter into the transaction.
    (3) That any procedure for approval or veto of the transaction 
meets the requirements of section I(a).
    (4) For a transaction described in Part I:
    (A) That the transaction is not entered into with any person who is 
excluded from relief under section I(e)(1), section I(e)(2), to the 
extent such person has discretionary authority or control over the plan 
assets involved in the transaction, or section I(f), and
    (B) that the transaction is not described in any of the class 
exemptions listed in section I(b).
    (5) For a transaction described in Part II:
    (A) If the transaction is described in section II(a),
    (i) that the transaction is with a party described in section 
II(a);
    (ii) that the transaction occurs under the circumstances described 
in section II(a)(1), (2) and (3);
    (iii) that the transaction does not extend beyond the period of 
time described in section II(a)(4); and
    (iv) that the percentage test in section II(a)(5) has been 
satisfied or
    (B) If the transaction is described in section II(b),
    (i) that the transaction is with a party described in section 
II(b)(1);
    (ii) that the transaction is not entered into with any person 
excluded from relief under section II(b)(2) to the extent such person 
has discretionary authority or control over the plan assets involved in 
the lease transaction or section II(b)(3); and
    (iii) that the percentage test in section II(b)(5) has been 
satisfied.
    (h) The term ``plan'' means a plan maintained by the INHAM or an 
affiliate of the INHAM.

    Signed at Washington, DC this 9th day of June 2010.
Ivan L. Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2010-14205 Filed 6-11-10; 8:45 am]
BILLING CODE 4510-29-P