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Secretary of Labor Thomas E. Perez
Proposed Amendment to Prohibited Transaction Exemption 86-128 (PTE 86-128) for Securities Transactions Involving Employee Benefit Plans and Broker-Dealers [Notices] [05/10/2002]

EBSA (Formerly PWBA) Federal Register Notice

Proposed Amendment to Prohibited Transaction Exemption 86-128 (PTE 86-128) for Securities Transactions Involving Employee Benefit Plans and Broker-Dealers [05/10/2002]

[PDF Version]

Volume 67, Number 91, Page 31838-31842

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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Application Number D-10845]

 
Proposed Amendment to Prohibited Transaction Exemption 86-128 
(PTE 86-128) for Securities Transactions Involving Employee Benefit 
Plans and Broker-Dealers

AGENCY: Pension and Welfare Benefits Administration, Department of 
Labor.

ACTION: Notice of Proposed Amendment to PTE 86-128.

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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 86-
128. PTE 86-128 is a class exemption that permits certain persons who 
serve as fiduciaries for employee benefit plans to effect or execute 
securities transactions on behalf of those plans, provided that 
specified conditions are met. The exemption also allows sponsors of 
pooled separate accounts and other pooled investment funds to use their 
affiliates to effect or execute securities transactions for such 
accounts when certain conditions are met. Currently, PTE 86-128 
generally is not available to any person (or any affiliate thereof) who 
is a trustee [other than a nondiscretionary trustee], plan 
administrator or an employer, any of whose employees are covered by the 
plan. The proposed amendment, if adopted, would allow a fiduciary that 
is a plan trustee to engage in a transaction covered by PTE 86-128. The 
proposed amendment would affect participants and beneficiaries of 
employee benefit plans, fiduciaries with respect to such plans, and 
other persons engaging in the described transactions.

DATES: If adopted, the proposed amendment will be effective as of the 
date the granted amendment is

[[Page 31839]]

published in the Federal Register. Written comments and requests for a 
public hearing should be received by the Department on or before June 
24, 2002.

ADDRESSES: All written comments and requests for a public hearing 
(preferably three copies) should be addressed to the U.S. Department of 
Labor, Office of Exemption Determinations, Pension and Welfare Benefits 
Administration, Room N-5649, 200 Constitution Avenue, NW., Washington, 
DC 20210, (attention: PTE 86-128 Amendment).

FOR FURTHER INFORMATION CONTACT: Christopher Motta, Office of 
Exemptions Determinations, Pension and Welfare Benefits Administration, 
U.S. Department of Labor, (202) 693-8544. (This is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency 
before the Department of a proposed amendment to PTE 86-128 (51 FR 
41686, Nov. 18, 1986). PTE 86-128 provides an exemption from the 
restrictions of section 406(b) \1\ of the Employee Retirement Income 
Security Act of 1974 (ERISA or the Act) and from the taxes imposed by 
section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(E) 
or (F) of the Code.
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    \1\ References to section 406 of ERISA as they appear throughout 
this proposed amendment should be read to refer as well to the 
corresponding provisions of section 4975 of the Internal Revenue 
Code of 1986 (the Code).
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    The amendment to PTE 86-128 proposed herein was requested in an 
application, dated October 29, 1999, on behalf of the Securities 
Industry Association (the SIA), a trade association for securities 
broker-dealers. The Department is proposing the amendment to PTE 86-128 
pursuant to section 408(a) of ERISA and section 4975(c)(2) of the Code, 
and in accordance with the procedures set forth in 29 CFR part 2570, 
subpart B (55 FR 32836, 32847, August 10, 1990).\2\
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    \2\ Section 102 of the Reorganization Plan No. 4 of 1978 (5 
U.S.C. App. 1 [1996] generally transferred the authority of the 
Secretary of the Treasury to issue administrative exemptions under 
section 4975 of the Internal Revenue Code of 1986 (the Code) to the 
Secretary of Labor.
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Paperwork Reduction Act Analysis

    The Department of Labor, as part of its continuing effort to reduce 
paperwork and respondent burden, conducts a preclearance consultation 
program to provide the general public and other 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 program 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 Pension and 
Welfare Benefits Administration is soliciting comments concerning the 
proposed revision of a currently approved collection of information: 
Prohibited Transaction Class Exemption 86-128 for Securities 
Transactions Involving Employee Benefit Plans and Broker-Dealers. A 
copy of the proposed information collection request (ICR) can be 
obtained by contacting the Department of Labor Clearance Officer, ATTN: 
Marlene Howze, at (202) 693-4158.

DATES: Written comments must be submitted on or before July 9, 2002. 
Comments concerning the ICR should be directed to the Office of 
Management and Budget, ATTN: Desk Officer for Pension and Welfare 
Benefits Administration, 725 17th St., NW., Washington, DC.

Desired Focus of Comments

    The Department of Labor and OMB are particularly interested in 
comments that:
     Evaluate whether the proposed 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 proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected;
     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.

Current Action

    Prohibited Transaction Class Exemption 86-128 permits certain 
persons who serve as fiduciaries for employee benefit plans to effect 
or execute securities transaction on behalf of those plans, provided 
that specified conditions are met. The exemption also allows sponsors 
of pooled separate accounts and other pooled investment funds to use 
their affiliates to effect or execute securities transactions under 
certain conditions. The conditions of the existing class exemption 
include specific information disclosure provisions currently approved 
under OMB control number 1210-0059.
    This proposed amendment would allow a fiduciary that is a plan 
trustee to engage in a transaction covered by PTE 86-128. The existing 
PTE 86-128 is generally not available to any person (or any affiliate 
thereof) who is a trustee, plan administrator, or an employer, any of 
whose employees are covered by the plan. The proposed amendment would 
add such trustees, subject to conditions involving (1) the size of the 
plan, and (2) at least annual reporting to the authorizing fiduciary of 
each plan of annual brokerage commissions expressed in dollars paid to 
(a) brokerage firms affiliated with the trustee, and (b) brokerage 
firms unaffiliated with the trustee, and (3) at least annual reporting 
of average brokerage commissions expressed as cents per share paid to 
(a) brokerage firms affiliated with the trustee, and (b) brokerage 
firms unaffiliated with the trustee.
    This amendment, if finalized, would result is a larger number of 
respondents and disclosure requirements that are specific to those 
respondents. The existing burdens and burden estimated to be associated 
with the proposed amendment are shown below.
    Agency: Department of Labor, Pension and Welfare Benefits 
Administration
    Title: PTE 86-128 for Certain Transactions Involving Employee 
Benefit Plans and Securities Broker-Dealers
    Type of Review: Revision of a currently approved collection OMB 
Number: 1210-0059
    Affected Public: Business or other for-profit; Not-for-profit 
institutions
    Total Respondents: 22,974 existing; 700 proposal; 23,674 total
    Total Responses: 542,813 existing; 700 proposal; 543,513 total
    Frequency of Response: Quarterly; Annually
    Total Annual Burden: 98,158 hours existing; 875 proposal; 99,033 
total
    Total Annual Cost (Operating & Maintenance): $188,200 (no addition 
for proposal)
    Comments submitted in response to this notice will be summarized 
and/or included in the request for OMB approval of the information 
collection request; they will also become a matter of public record.

A. General Background

    The prohibited transaction provisions of the Act prohibit certain 
transactions between a plan and a party in interest

[[Page 31840]]

(including a fiduciary) with respect to such plan. Specifically, unless 
a statutory or administrative exemption is applicable, section 406(a) 
of ERISA prohibits, among other things: the provision of services 
between a plan and parties in interest [including fiduciaries] with 
respect to such plan; and the transfer of assets from a plan to a party 
in interest with respect to such plan. In addition, unless exempted, 
section 406(b) of ERISA prohibits, among other things, a fiduciary's 
dealing with the assets of a plan in his or her own interest. Although 
section 408(b)(2) of ERISA provides a conditional statutory exemption 
permitting plans to make reasonable contractual arrangements with 
parties in interest for the provision of services necessary for plan 
operations, that exemption does not extend to acts of self-dealing 
described in section 406(b) of ERISA.
    A fiduciary performing both investment management and brokerage 
services for the same plan is in a position where his or her decision 
to engage in a portfolio trade on behalf of the plan, as an exercise of 
fiduciary discretion, would result in the plan paying the fiduciary an 
additional fee for the provision of the brokerage services. In the 
Department's view, such a decision involves an act of self-dealing 
prohibited by ERISA section 406(b) with respect to which section 
408(b)(2) of ERISA does not provide relief.

B. Description of Existing Relief

    PTE 86-128 provides relief from the restrictions of section 406(b) 
for a plan fiduciary to use its authority to cause a plan to pay a fee 
to such fiduciary for effectuating or executing securities transactions 
as agent for the plan. Section I of PTE 86-128 contains definitions and 
special rules. Notably, for purposes of this class exemption, a 
``person'' is defined to include ``the person and affiliates of the 
person'', and an ``affiliate'' of a ``person'' is defined, in part, to 
include: (1) Any person directly or indirectly controlling, controlled 
by, or under common control with, the person; (2) any officer, 
director, partner, employee, relative (as defined in section 3(15) of 
ERISA), brother, sister, or spouse of a brother or sister, of the 
person; and (3) any corporation or partnership of which the person is 
an officer, director or partner.
    Section II describes the transactions covered under PTE 86-128, to 
include: A plan fiduciary using his or her authority to cause a plan to 
pay a fee for effecting or executing securities transactions to that 
person as agent for the plan, but only to the extent that such 
transactions are not excessive, under the circumstances, in either 
amount or frequency; a plan fiduciary acting as the agent in an agency 
cross transaction for both the plan and one or more other parties to 
the transaction; and the receipt by a plan fiduciary of reasonable 
compensation for effecting or executing an agency cross transaction to 
which a plan is a party in interest from one or more other parties to 
the transaction.
    Section III contains conditions designed to protect the interests 
of plan participants and beneficiaries. These conditions require prior 
authorization to engage in covered transactions and periodic disclosure 
of the fiduciary's activities to the authorizing plan fiduciary. 
Section III(a) provides that the person engaging in a covered 
transaction is not a trustee (other than a nondiscretionary trustee) or 
an administrator of the plan, or an employer any of whose employees are 
covered by the plan. The term ``person'' is defined to include 
``affiliates'' of the person, thus discretionary trustees, plan 
administrators, sponsoring employers, and their affiliates are 
generally precluded from relying on the relief provided by the 
exemption.
    Section IV contains exceptions to several of the conditions in 
section III. Specifically, section IV provides that the conditions of 
section III do not apply to covered transactions to the extent such 
transactions are engaged in on behalf of individual retirement accounts 
which meet the requirement set forth in 29 CFR 2510.3-2(d) or plans, 
other than training programs, that do not cover any employees within 
the meaning of 29 CFR 2510.3-3. In addition, section IV provides that 
the conditions of section III do not apply in the case of agency cross 
transactions to the extent that the person effecting or executing the 
transaction: Does not render investment advice to any plan for a fee 
with respect to the transaction; is not otherwise a fiduciary who has 
investment discretion with respect to any plan assets involved in the 
transaction; and does not have the authority to engage, retain or 
discharge any person who is, or is proposed to be, a fiduciary 
regarding any such plan assets. Section IV also provides that a plan 
trustee, plan administrator, or sponsoring employer may engage in a 
covered transaction if he or she returns or credits to the plan all 
profits earned by that person in connection with the securities 
transactions associated with the covered transaction. Finally, Section 
IV contains special rules for pooled investment funds.

C. Discussion of the Proposed Exemption

    The SIA requests an amendment to PTE 86-128 which would enable a 
discretionary trustee of an ERISA covered plan, or an affiliate of such 
trustee, to use its fiduciary authority to cause the plan to pay a fee 
to such trustee for effectuating or executing securities transactions 
as agent for the plan. The applicant represents that the amendment is 
necessary since, as a result of the consolidation in the nation's 
financial services industry, plans are finding it increasingly 
difficult to select service providers that are unaffiliated with plan 
trustees. In addition, the applicant notes that banks, as trustees with 
investment discretion, are currently precluded under PTE 86-128 from 
using their affiliated broker-dealers to execute securities 
transactions.
    According to the applicant, there has been an increase in the 
number of discretionary trustees that have affiliates providing 
brokerage services. The applicant states that, as a result, there are 
fewer brokers that are not affiliated in some way with a plan trustee. 
The applicant represents that further consolidation is likely under the 
Gramm-Leach-Bliley Act, signed into law on November 12, 1999 (Pub. L. 
106-102, 113 Stat. 1338 (1999).\3\
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    \3\ The new law will facilitate cross-ownership and control 
among bank holding companies and securities firms through the 
creation of ``financial hold companies'' that will be permitted to 
engage in broad range of financial and related activities, including 
underwriting and dealing activities.
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    The SIA represents that, as a result of this consolidation, the 
discretionary trustees of larger plans, or affiliated investment 
managers thereof, often have little choice but to pay the higher 
transaction costs associated with executing securities transactions 
only through unaffiliated broker-dealers. In addition, the SIA 
represents that the investment strategies of certain plans, such as 
small cap, emerging markets or international investing, are 
increasingly becoming stunted as the number of available brokers having 
the requisite specialized expertise decreases. The proposed amendment, 
the applicant represents, will therefore be beneficial to plans because 
plan fiduciaries will no longer be forced to: appoint a plan trustee 
that does not have affiliated investment managers; appoint investment 
managers that are not affiliated with the trustee; or effect or execute 
securities transactions only through unaffiliated broker-dealers.
    The SIA states that the relief sought in this application was 
originally

[[Page 31841]]

requested in 1986, when the Department replaced PTE 79-1 with PTE 86-
128. At that time, the Department granted relief only where the trustee 
was strictly custodial and had no discretionary powers noting that ``as 
a general matter, the position of a plan trustee may carry with it so 
great an influence over the general operation of the plan that an 
independent fiduciary may not be effective in examining critically and 
objectively multiple service arrangements'', (Preamble to PTE 86-128, 
51 FR 41686, 41692 (November 18, 1986). However, the SIA represents 
that the comparative benefits gained by continuing to deny relief to 
discretionary trustees and their affiliates are at best speculative. 
They note that federal securities laws and banking laws, and the duties 
imposed upon fiduciaries by ERISA section 404(a), require that 
investment managers, regardless of whether they are affiliated with the 
trustee, seek ``best execution'' in effecting securities transactions 
on behalf of plans. The SIA also states that brokerage commissions have 
become very competitive and very transparent.
    Moreover, the SIA represents that the compensation arrangements 
that investment managers have with plans encourage investment managers 
to seek ``best execution'' in effecting securities transactions through 
affiliated broker-dealers. In this regard, the SIA represents that an 
investment manager is typically compensated based upon the amount of 
assets under its management. The SIA represents further that the amount 
of ``assets under management'', in turn, is reduced by the brokerage 
commissions paid by such investment manager. Thus, according to the 
SIA, investment managers have an incentive to seek ``best execution'' 
in effecting securities transactions through affiliated broker-dealers 
since, to the extent a plan pays higher brokerage commissions than is 
required under the particular circumstances, the amount of compensation 
received by the plan's investment manager will be directly impacted by 
the amount of brokerage commissions paid by the plan.
    The SIA is of the opinion that plans can be additionally protected 
from the risk of discretionary trustees ``steering'' brokerage to a 
broker-dealer affiliate by requiring such trustees to disclose annually 
to an independent fiduciary all brokerage commissions paid to 
affiliated and unaffiliated broker-dealers. They state that a plan 
sponsor, advised in writing of the potential conflicts and provided 
with significant comparative reporting, should be able to oversee the 
investment manager, regardless of whether the manager is affiliated 
with the trustee. The SIA notes that the underwriter exemptions \4\ 
provide similar relief to, among others, fiduciaries, including 
trustees, as long as certain reporting requirements are met and to the 
extent affected plans meet a minimum size threshold. The SIA represents 
that a comparable minimum size threshold and certain reporting 
requirements should adequately protect plans and ensure that the 
requested relief is in the best interest of affected plans.
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    \4\ See e.g., PTE 2000-25 (65 FR 35129, June 1, 2000), an 
individual underwriter exemption which permits purchases of 
securities by the applicant's asset management affiliate, on behalf 
of employee benefit plans for which such asset managment affiliate 
is a fiduciary, from underwriting or selling syndicates where the 
applicants' broker-dealer affiliate participates as a manager or 
syndicate member.
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     Finally, the SIA notes that plan sponsors, especially large ones, 
have become increasingly sophisticated such that many trustees with 
broker-dealer affiliates maintain collective investment funds that 
passively manage portfolios to minimize trading and transaction costs. 
The SIA represents that, in such instances, the use by discretionary 
trustees of their own affiliates to provide brokerage services poses 
very little of the risk previously described by the Department. The SIA 
represents that, for all of the reasons cited above, it is appropriate 
for the Department to reconsider its position.
    On the basis of the SIA's representations, and after reevaluating 
the Department's previously expressed concerns, the Department has 
tentatively concluded that it would be appropriate to extend relief 
under PTE 86-128 to discretionary plan trustees, provided that certain 
additional conditions are met. In this regard, the Department believes 
that a minimum plan size requirement is necessary in order to ensure an 
appropriate level of plan investor sophistication to monitor the 
covered transactions. Thus, the Department proposes to limit relief to 
plans with more than $50 million in assets. While the SIA has agreed to 
this dollar limitation, it has also suggested that this dollar 
limitation be reviewed periodically and that the $50 million 
requirement permit aggregation of all plans of an employer.\5\
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    \5\ PTE 2000-25, Section I (o) provides, in part, that for 
purposes of meeting the net asset tests, where a group of plans is 
maintained by a single employer or controlled group of employers, as 
defined in section 407(d)(7) of the Act, the $50 million net asset 
requirement * * * may be met by aggregating the assets of such 
plans, if the assets are pooled for investment purposes in a single 
master trust.
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    Accordingly, the Department is proposing to limit the relief 
provided to trustees to plans that have net assets valued at least $50 
million. In the case of a pooled fund, the $50 million requirement will 
be met if 50 percent or more of the units of beneficial interest in 
such pooled fund are held by plans having total net assets with a value 
of at least $50 million. For purposes of the net asset tests described 
above, where a group of plans is maintained by a single employer or 
controlled group of employers, as defined in section 407(d)(7) of the 
Act, the $50 million net asset requirement may be met by aggregating 
the assets of such plans, if the assets are pooled for investment 
purposes in a single master trust.
    The Department also proposes that the trustee (other than a 
nondiscretionary trustee) furnish, at least annually, to the 
independent fiduciary of each authorizing plan, the following 
information:
    (i) The total amount of brokerage commissions, expressed in 
dollars, paid by the plan (or fund in situations where a plan invests 
in a pooled fund) to brokerage firms affiliated with the trustee;
    (ii) The total amount of brokerage commissions, expressed in 
dollars, paid by the plan (or fund in situations where a plan invests 
in a pooled fund) to brokerage firms unaffiliated with the trustee;
    (iii) The average brokerage commissions, expressed as cents per 
share, paid by the plan to brokerage firms affiliated with the trustee; 
and
    (iv) The average brokerage commissions, expressed as cents per 
share, paid by the plan to brokerage firms unaffiliated with the 
trustee.

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of ERISA and section 4975(c)(2) of the Code does 
not relieve a fiduciary, or other party in interest or disqualified 
person with respect to a plan, from certain other provisions of ERISA 
and the Code, including any prohibited transaction provisions to which 
the exemption does not apply and the general fiduciary responsibility 
provisions of section 404 of ERISA which require, among other things, 
that a fiduciary discharge his or her duties respecting the plan solely 
in the interests of the participants and beneficiaries of the plan. 
Additionally, the fact that a transaction is the subject of an 
exemption does not affect the requirement of section 401(a) of the Code 
that the plan must operate for the exclusive benefit of the employees 
of

[[Page 31842]]

the employer maintaining the plan and their beneficiaries;
    (2) This exemption does not extend to transactions prohibited under 
section 406(a) of the Act;
    (3) 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;
    (4) If granted, the proposed amendment is applicable to a 
particular transaction only if the transaction satisfies the conditions 
specified in the exemption; and
    (5) 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 Request

    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 
hearing should state the reasons for the writer's interest in the 
proposed exemption. 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 86-128 as set forth below:
    (1) Section III(a) is amended to read: ``The person engaging in the 
covered transaction is not an administrator of the plan, or an employer 
any of whose employees are covered by the plan.
    (2) Adding to Section III new paragraph (h) to read: ``(h) A 
trustee [other than a nondiscretionary trustee] may only engage in a 
covered transaction with a plan that has total net assets with a value 
of at least $50 million and in the case of a pooled fund, the $50 
million requirement will be met if 50 percent or more of the units of 
beneficial interest in such pooled fund are held by plans having total 
net assets with a value of at least $50 million.
    For purposes of the net asset tests described above, where a group 
of plans is maintained by a single employer or controlled group of 
employers, as defined in section 407(d)(7) of the Act, the $50 million 
net asset requirement may be met by aggregating the assets of such 
plans, if the assets are pooled for investment purposes in a single 
master trust.
    (3) Adding to Section III new paragraph (i) to read:
    ``(i) The trustee (other than a nondiscretionary trustee) engaging 
in a covered transaction furnishes, at least annually, to the 
authorizing fiduciary of each plan the following:
    (1) The aggregate brokerage commissions, expressed in dollars, paid 
by the plan to brokerage firms affiliated with the trustee;
    (2) The aggregate brokerage commissions, expressed in dollars, paid 
by the plan to brokerage firms unaffiliated with the trustee;
    (3) The average brokerage commissions, expressed as cents per 
share, paid by the plan to brokerage firms affiliated with the trustee; 
and
    (4) The average brokerage commissions, expressed as cents per 
share, paid by the plan to brokerage firms unaffiliated with the 
trustee.''
    For purposes of this paragraph (i), the words ``paid by the plan'' 
shall be construed to mean ``paid by the pooled fund'' when the trustee 
engages in covered transactions on behalf of a pooled fund in which the 
plan participates.

    Signed at Washington, DC, this 6th day of May, 2002.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations, Pension and Welfare 
Benefits Administration, Department of Labor.
[FR Doc. 02-11662 Filed 5-9-02; 8:45 am]
BILLING CODE 4520-29-P