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Employee Benefits Security Administration

EBSA Federal Register Notice

Amendment to Prohibited Transaction Exemption (PTE) 75-1, Exemptions From Prohibitions Respecting Certain Classes of Transactions Involving Employee Benefit Plans and Certain Broker-Dealers, Reporting Dealers and Banks [02/03/2006]

[PDF Version]

Volume 71, Number 23, Page 5883-5887

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Application No. D-11184]

 
Amendment to Prohibited Transaction Exemption (PTE) 75-1, 
Exemptions From Prohibitions Respecting Certain Classes of Transactions 
Involving Employee Benefit Plans and Certain Broker-Dealers, Reporting 
Dealers and Banks

AGENCY: Employee Benefits Security Administration.

ACTION: Final Amendment to PTE 75-1, Part II and Part V.

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SUMMARY: This document amends PTE 75-1, Part II and Part V (40 FR 
50845, October 31, 1975). PTE 75-1, Part II, permits the purchase or 
sale of a security in a principal transaction between an employee 
benefit plan and a broker-dealer, reporting dealer, or bank. PTE 75-1, 
Part V, permits an extension of credit to a plan by a broker-dealer in 
connection with the purchase or sale of securities. The amendment 
affects participants, beneficiaries and fiduciaries of employee benefit 
plans, and broker-dealers, reporting dealers and banks entering into 
the described transactions.

DATES: Effective Date: This amendment is effective January 1, 1975.

FOR FURTHER INFORMATION CONTACT: Brian Buyniski or Karen Lloyd, Office 
of Exemption Determinations, Employee Benefits Security Administration, 
U.S. Department of Labor, Room N-5649, 200 Constitution Avenue, NW., 
Washington, DC 20210, 202-693-8540. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: On April 28, 2004, notice was published in 
the Federal Register (69 FR 23216) of the pendency before the 
Department of Labor (the Department) of a proposed amendment to PTE 75-
1, Part II and Part V. PTE 75-1 provides exemptive relief from certain 
of the restrictions of section 406 of the Employee Retirement Income 
Security Act of 1974 (ERISA or the Act), and from certain taxes imposed 
by section 4975(a) and (b) of the Internal Revenue Code of 1986 (the 
Code), by reason of section 4975(c)(1) of the Code. The amendment was 
proposed by the Department 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, August 10, 1990).\1\
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    \1\ Section 102 of 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 exemptions under section 
4975(c)(2) of the Code to the Secretary of Labor.
    In the discussion of the exemption, references to specific 
provisions of the Act should be read to refer as well to the 
corresponding provisions of section 4975 of the Code.
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    The notice gave interested persons an opportunity to comment or to 
request a hearing on the proposed amendment. The Department received 
three comments which are discussed below. One commenter requested a 
public hearing if the Department determined to modify a specific 
provision of the exemption. As the Department has not modified that 
provision in the final exemption, a public hearing will not be held 
with regard to this amendment.

Executive Order 12866 Statement

    Under Executive Order 12866, the Department must determine whether 
the

[[Page 5884]]

regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by the Office 
of Management and Budget (OMB). Under section 3(f), the order defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule (1) having an annual effect on the economy of $100 million or 
more, or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    This amendment has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this amendment is not a ``significant 
regulatory action'' under Executive Order 12866, section 3(f). 
Accordingly, it does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that order.

Paperwork Reduction Act

    The information collection request (ICR) included in the existing 
PTE 75-1 is currently approved under Office of Management and Budget 
(OMB) control number 1210-0092 (through March 31, 2007). The amendment 
does not modify the information collection provisions of the exemption. 
Therefore, the Department has not submitted an ICR to OMB in connection 
with this Final Amendment to PTE 75-1.

Description of the Exemption

    Part I of PTE 75-1 provides relief for agency transactions and 
services; \2\ Part II for principal transactions; Part III for 
underwritings; Part IV for market-making; and Part V for extension of 
credit.
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    \2\ Part I(a) expired on May 1, 1978. It ultimately was replaced 
by PTE 86-128 (51 FR 41686, Nov. 18, 1986).
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PTE 75-1, Part II

    Part II of PTE 75-1 provides relief from the restrictions of 406(a) 
of ERISA 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, for the 
purchase or sale of a security between an employee benefit plan and: 
(1) A broker-dealer registered under the Securities Exchange Act of 
1934 (the 1934 Act); (2) a reporting dealer who makes primary markets 
in securities of the U.S. Government or of any agency thereof and 
reports daily to the Federal Reserve Bank of New York its positions 
with respect to Government securities and borrowings thereon; or (3) a 
bank supervised by the United States or a State.\3\
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    \3\ The exemption defines the terms ``broker-dealer,'' 
``reporting dealer'' and ``bank'' to include such entities and any 
affiliate thereof. The term ``affiliate'' is defined as in 29 CFR 
2510.3-21(e) and 26 CFR 54.4975-9(e).
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    The exemption further provides relief from the restrictions of 
section 406(b) of ERISA and the taxes imposed by section 4975(a) and 
(b) of the Code, by reason of section 4975(c)(1)(E) and (F) of the 
Code, for the purchase or sale by a plan of securities issued by an 
open-end investment company registered under the Investment Company Act 
of 1940, provided that a fiduciary with respect to the plan is not a 
principal underwriter for, or affiliated with, such investment company 
within the meaning of sections 2(a)(29) and 2(a)(3) of the Investment 
Company Act of 1940 (the Mutual Fund Exemption).
    The conditions of PTE 75-1, Part II, require that a broker-dealer 
must customarily purchase and sell securities for its own account in 
the ordinary course of its business as a broker-dealer. The conditions 
further require that reporting dealers and banks must customarily 
purchase and sell Government securities for their own accounts in the 
ordinary course of their businesses, and that any purchase or sale 
between the plan and such reporting dealer or bank be limited to a 
purchase or sale of Government securities.
    All transactions entered into pursuant to Part II must be at least 
as favorable to the plan as an arm's length transaction with an 
unrelated party would be, and must not be, at the time of the 
transaction, a prohibited transaction within the meaning of section 
503(b) of the Code.
    Except with respect to the Mutual Fund Exemption, Part II as 
originally granted provided that the broker-dealer, reporting dealer or 
bank may not be a fiduciary with respect to the plan, and such broker-
dealer, reporting dealer or bank may be a party in interest or 
disqualified person with respect to the plan solely by reason of 
section 3(14)(B) of the Act or section 4975(e)(2)(B) of the Code or a 
relationship to a person described in those sections. For purposes of 
this condition, a broker-dealer, reporting dealer or bank is not deemed 
to be a fiduciary with respect to a plan solely by reason of providing 
securities custodial services for a plan. Lastly, the exemption for 
principal transactions also contains certain recordkeeping 
requirements.

PTE 75-1, Part V

    Part V of PTE 75-1 provides relief from the restrictions of section 
406 of ERISA and the related excise taxes imposed by section 4975(a) 
and (b) of the Code, by reason of section 4975(c)(1) of the Code, for 
any extension of credit to a plan by a broker or dealer registered 
under the 1934 Act.\4\ As originally granted, Part V provided that the 
broker-dealer extending credit may not be a fiduciary with respect to 
any assets of the plan, unless no interest or other consideration is 
received by such fiduciary or any affiliate in connection with the 
extension of credit.
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    \4\ The exemption defines the terms ``broker'' and ``dealer'' to 
include such entities and any affiliate thereof. The term 
``affiliate'' is defined as in 29 CFR 2510.3-21(e) and 26 CFR 
54.4975-9(e).
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    Under Part V, the extension of credit must be made in connection 
with the purchase or sale of securities, must be lawful under the 1934 
Act, and may not be a prohibited transaction within the meaning of 
section 503(b) of the Code. Lastly, the exemption for extensions of 
credit also contains certain recordkeeping requirements.

Amendment

    As part of the proposed amendment, the Department repositioned the 
following language found in section (d) of Part II of the exemption:

    Neither the restrictions of this paragraph nor (if the other 
conditions of this exemption are met) the restrictions of section 
406(b) of the Act and the taxes imposed by section 4975(a) and (b) 
of the Code, by reason of section 4975(c)(1)(E) and (F) of the Code, 
shall apply to the purchase or sale by the plan of securities issued 
by an open-end investment company registered under the Investment 
Company Act of 1940 (15 U.S.C. 80a-1 et seq.), provided that a 
fiduciary with respect to the plan is not a principal underwriter 
for, or affiliated with, such investment company within the meaning 
of sections 2(a)(29) and 2(a)(3) of the Investment Company Act of 
1940 (15 U.S.C. 80a-2(a)(29) and 80a-2(a)(3)).

    The Department included the relief provided by this provision in a 
new paragraph (2) of Part II of the exemption for principal 
transactions. The Department also proposed to amend the language of 
this section to clarify that the fiduciary referenced therein is the

[[Page 5885]]

fiduciary who makes the decision on behalf of the plan to enter into 
the transaction. The Department also requested public comment on the 
current utility of this exemption.
    The Department additionally proposed to amend another provision of 
section (d) of Part II, which stated, in relevant part, that:

    Such broker-dealer, reporting dealer or bank is not a fiduciary 
with respect to the plan, and such broker-dealer, reporting dealer 
or bank is a party in interest or disqualified person with respect 
to the plan solely by reason of section 3(14)(B) of the Act or 
section 4975(e)(2)(B) of the Code or a relationship to a person 
described in such sections. For purposes of this paragraph, a 
broker-dealer, reporting dealer, or bank shall not be deemed to be a 
fiduciary with respect to a plan solely by reason of providing 
securities custodial services for a plan.

    Under the proposed amendment, the exemption permits plans to engage 
in transactions with broker-dealers, reporting dealers, banks and their 
affiliates except where the broker-dealer, reporting dealer, bank or an 
affiliate has or exercises any discretionary authority or control 
(except as a directed trustee) with respect to the investment of plan 
assets involved in the transaction, or renders investment advice 
(within the meaning of 29 CFR 2510.3-21(c)) with respect to the 
investment of those assets.\5\
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    \5\ Nothing herein should be construed to imply that a directed 
trustee is not a fiduciary under the Act. See 29 U.S.C. 103(a)(1). A 
plan may expressly provide that a trustee is subject to the 
direction of a named fiduciary who is not a trustee, in which case 
the trustee shall be subject to proper directions of such fiduciary 
which are made in accordance with the terms of the plan and which 
are not contrary to the Act.
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    The Department likewise proposed to amend condition (a)(2) of PTE 
75-1, Part V, which required that the party in interest or disqualified 
person providing the extension of credit to the plan:

    [i]s not a fiduciary with respect to any assets of such plan, 
unless no interest or other consideration is received by such 
fiduciary or any affiliate thereof in connection with such extension 
of credit.

    Under the proposed amendment, section (a)(2) states that the party 
in interest or disqualified person extending credit to the plan:

    does not have or exercise any discretionary authority or control 
(except as a directed trustee) with respect to the investment of the 
plan assets involved in the transaction, nor does it render 
investment advice (within the meaning of 29 CFR section 2510.3-
21(c)) with respect to those assets, unless no interest or other 
consideration is received by the party in interest or disqualified 
person or any affiliate thereof in connection with such extension of 
credit.

Discussion of Comments

    The Department received one comment concerning the effective date 
of the proposed amendments. The commenter requested that, with respect 
to the proposed amendments to condition (d) of Part II and condition 
(a)(2) of Part V, the Department state that it was the intention of the 
Department at the time of the granting of the final exemption in 1975 
to focus only on fiduciaries with respect to the plan assets involved 
in the transaction, as opposed to any fiduciary of the plan. The 
commenter referenced the following language in the preamble of the 
proposed exemption in August 1975 regarding proposed regulations under 
the definition of fiduciary at section 3(21) of the Act:

    It should be noted, moreover, that under the regulations 
proposed in conjunction with these proposed exemptions relating to 
the definition of the term ``fiduciary,'' a person who is a plan 
fiduciary would be deemed to be a fiduciary only with respect to 
those plan assets with respect to which he exercises those functions 
which make him a fiduciary.

40 FR 33566. The Department received a follow up submission from this 
commenter requesting that, in order to avoid confusion and uncertainty, 
this amendment to PTE 75-1 be made retroactive to October 31, 1975. The 
Department also has been urged informally to adopt a retroactive 
effective date.
    While the Department acknowledges that some confusion may have 
arisen from the fact that two conditions of PTE 75-1, Part II and Part 
V, regarding fiduciaries, were broader than the Department's 
regulations regarding the definition of a fiduciary under section 3(21) 
of the Act, the Department is unable to concur with the commenter that 
its original intent with respect to such conditions was in fact to 
limit them to fiduciaries with respect to the plan assets involved in 
the transaction.\6\ The conditions contained in the Department's 
administrative exemptions are designed to ensure that the Department 
can make findings required pursuant to section 408(a) of ERISA and 
4975(c)(2) of the Code that the exemption is administratively feasible, 
and in the interests of, and protective of the rights of, plan 
participants and beneficiaries. The Department's regulations do not 
govern the scope of the conditions of its administrative exemptions. 
Therefore, the fact that a regulation defining the term ``fiduciary'' 
may have focused on the plan assets with respect to which a person 
exercises fiduciary functions does not necessarily govern the meaning 
of a condition of an administrative exemption. Prior to this amendment, 
the conditions in PTE 75-1, Part II and V, clearly referred to a 
fiduciary with respect to a plan.
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    \6\ The Department notes that the language quoted by the 
commenter appeared in the preamble to Part III of PTE 75-1, which is 
not the subject of this amendment.
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    Nevertheless, in the Department's view, an interpretation of the 
conditions of PTE 75-1, Part II and Part V, which focused on 
fiduciaries with respect to the plan assets involved in the transaction 
would not have created an undue risk of loss of plan assets. As the 
Department has concluded that the amendments are sufficiently 
protective of plan assets on a prospective basis, the Department 
believes a similar conclusion would dictate in favor of granting the 
amendments on a retroactive basis. Accordingly, the Department has 
determined to make these amendments to PTE 75-1 retroactive to January 
1, 1975, which is the effective date of PTE 75-1.
    The Department received three comments on the current utility of 
the Mutual Fund Exemption. Based on the information received, the 
Department believes that additional time is needed to more fully 
consider the issues raised by the commenters. However, the Department 
does not wish to unduly delay finalization of the other amendments to 
PTE 75-1. Accordingly, this document contains final amendments to Parts 
II and V of PTE 75-1 and adopts the repositioning of the Mutual Fund 
Exemption to paragraph (2) of PTE 75-1, Part II, and adopts the 
clarifying language. As a result, the Mutual Fund Exemption remains in 
effect pending further action by the Department.

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
granted under section 408(a) of the Act 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 to which the exemption is 
applicable from certain other provisions of the Act 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 the Act which, among other things, require a fiduciary 
to discharge his duties respecting the plan solely in the interest of 
the plan's participants and beneficiaries and in a prudent fashion in 
accordance with subsection (a)(1)(B) of section 404 of the Act; nor 
does it affect

[[Page 5886]]

the requirement of section 401(a) of the Code that a plan must operate 
for the exclusive benefit of employees of the employer maintaining the 
plan and their beneficiaries;
    (2) The Department finds that the amended exemption is 
administratively feasible, in the interests of the plan and of its 
participants and beneficiaries, and protective of the rights of 
participants and beneficiaries of the plan;
    (3) The amended exemption is applicable to a particular transaction 
only if the transaction satisfies the conditions specified in the 
exemption; and
    (4) The amended exemption is supplemental to, and not in derogation 
of, any other provisions of the Act and the Code, including statutory 
and other exemptions and transitional rules. Furthermore, the fact that 
a transaction is the subject of an exemption is not dispositive of 
whether the transaction would have been a prohibited transaction in the 
absence of such exemption.

Amendment

    Accordingly, PTE 75-1 is amended as follows under the authority of 
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).
    I. PTE 75-1, Part II, is amended in its entirety to read as 
follows:
    (1) The restrictions of section 406(a) of the Employee Retirement 
Income Security Act of 1974 (the Act) and the taxes imposed by section 
4975(a) and (b) of the Internal Revenue Code of 1986 (the Code), by 
reason of section 4975(c)(1)(A) through (D) of the Code, shall not 
apply to any purchase or sale of a security between an employee benefit 
plan and a broker-dealer registered under the Securities Exchange Act 
of 1934 (15 U.S.C. 78a et seq.), a reporting dealer who makes primary 
markets in securities of the United States Government or of any agency 
of the United States Government (``Government securities'') and reports 
daily to the Federal Reserve Bank of New York its positions with 
respect to Government securities and borrowings thereon, or a bank 
supervised by the United States or a State, and
    (2) The restrictions of section 406(a) and 406(b) 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 (F) of the Code, shall not apply to the 
purchase or sale by a plan of securities issued by an open-end 
investment company registered under the Investment Company Act of 1940 
(15 U.S.C. 80a-1 et seq.), provided that no fiduciary with respect to 
the plan who makes the decision on behalf of the plan to enter into the 
transaction is a principal underwriter for, or affiliated with, such 
investment company within the meaning of sections 2(a)(29) and 2(a)(3) 
of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(29) and 80a-
2(a)(3)).
    The exemptions set forth in (1) and (2) above are subject to the 
following conditions:
    (a) In the case of such broker-dealer, it customarily purchases and 
sells securities for its own account in the ordinary course of its 
business as a broker-dealer.
    (b) In the case of such reporting dealer or bank, it customarily 
purchases and sells Government securities for its own account in the 
ordinary course of its business and such purchase or sale between the 
plan and such reporting dealer or bank is a purchase or sale of 
Government securities.
    (c) Such transaction is at least as favorable to the plan as an 
arm's length transaction with an unrelated party would be, and it was 
not, at the time of such transaction, a prohibited transaction within 
the meaning of section 503(b) of the Code.
    (d) Except with respect to transactions described in section (2) 
above, neither the broker-dealer, reporting dealer, bank, nor any 
affiliate thereof has or exercises any discretionary authority or 
control (except as a directed trustee) with respect to the investment 
of the plan assets involved in the transaction, or renders investment 
advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to 
those assets.
    (e) The plan maintains or causes to be maintained for a period of 
six years from the date of such transaction such records as are 
necessary to enable the persons described in paragraph (f) of this 
exemption to determine whether the conditions of this exemption have 
been met, except that:
    (1) Such broker-dealer, reporting dealer, or bank shall not be 
subject to the civil penalty which may be assessed under section 502(i) 
of the Act, or to the taxes imposed by section 4975(a) and (b) of the 
Code, if such records are not maintained, or are not available for 
examination as required by paragraph (f) below; and
    (2) A prohibited transaction will not be deemed to have occurred 
if, due to circumstances beyond the control of the plan fiduciaries, 
such records are lost or destroyed prior to the end of such six-year 
period.
    (f) Notwithstanding anything to the contrary in subsections (a)(2) 
and (b) of section 504 of the Act, the records referred to in paragraph 
(e) are unconditionally available for examination during normal 
business hours by duly authorized employees of (1) the Department of 
Labor, (2) the Internal Revenue Service, (3) plan participants and 
beneficiaries, (4) any employer of plan participants and beneficiaries, 
and (5) any employee organization any of whose members are covered by 
such plan. For purposes of this exemption, the terms ``broker-dealer,'' 
``reporting dealer'' and ``bank'' shall include such persons and any 
affiliates thereof, and the term ``affiliate'' shall be defined in the 
same manner as that term is defined in 29 CFR 2510.3-21(e) and 26 CFR 
54.4975-9(e).
    II. PTE 75-1, Part V, is amended in its entirety to read as 
follows:
    The restrictions of section 406 of the Employee Retirement Income 
Security Act of 1974 (the Act) and the taxes imposed by section 4975(a) 
and (b) of the Internal Revenue Code of 1986 (the Code), by reason of 
section 4975(c)(1) of the Code, shall not apply to any extension of 
credit to an employee benefit plan by a party in interest or a 
disqualified person with respect to the plan, provided that the 
following conditions are met:
    (a) The party in interest or disqualified person:
    (1) Is a broker or dealer registered under the Securities Exchange 
Act of 1934; and
    (2) Does not have or exercise any discretionary authority or 
control (except as a directed trustee) with respect to the investment 
of the plan assets involved in the transaction, nor does it render 
investment advice (within the meaning of 29 CFR 2510.3-21(c)) with 
respect to those assets, unless no interest or other consideration is 
received by the party in interest or disqualified person or any 
affiliate thereof in connection with such extension of credit.
    (b) Such extension of credit:
    (1) Is in connection with the purchase or sale of securities;
    (2) Is lawful under the Securities Exchange Act of 1934 and any 
rules and regulations promulgated thereunder; and
    (3) Is not a prohibited transaction within the meaning of section 
503(b) of the Code.
    (c) The plan maintains or causes to be maintained for a period of 
six years from the date of such transaction such records as are 
necessary to enable the persons described in paragraph (d) of this 
exemption to determine whether

[[Page 5887]]

the conditions of this exemption have been met, except that:
    (1) If such party in interest or disqualified person is not a 
fiduciary with respect to any assets of the plan, such party in 
interest or disqualified person shall not be subject to the civil 
penalty which may be assessed under section 502(i) of the Act, or to 
the taxes imposed by section 4975(a) and (b) of the Code, if such 
records are not maintained, or are not available for examination as 
required by paragraph (d) below; and
    (2) A prohibited transaction will not be deemed to have occurred 
if, due to circumstances beyond the control of the plan fiduciaries, 
such records are lost or destroyed prior to the end of such six-year 
period.
    (d) Notwithstanding anything to the contrary in subsections (a)(2) 
and (b) of section 504 of the Act, the records referred to in paragraph 
(c) are unconditionally available for examination during normal 
business hours by duly authorized employees of (1) the Department of 
Labor, (2) the Internal Revenue Service, (3) plan participants and 
beneficiaries, (4) any employer of plan participants and beneficiaries, 
and (5) any employee organization any of whose members are covered by 
such plan. For purposes of this exemption, the terms ``party in 
interest'' and ``disqualified person'' shall include such party in 
interest or disqualified person and any affiliates thereof, and the 
term ``affiliate'' shall be defined in the same manner as that term is 
defined in 29 CFR 2510.3-21(e) and 26 CFR 54.4975-9(e).

    Signed at Washington DC, this 30th day of January, 2006.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, Department of Labor.
 [FR Doc. E6-1484 Filed 2-2-06; 8:45 am]

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