(a) Except as provided in
paragraph (c) of this section, every application for an individual exemption must include, in addition to the information specified in
§ 2570.34, the following information:
(1) The name, address, email address, telephone number, and type of plan or plans to which the requested exemption applies;
(2) The Employer Identification Number (EIN) and the plan number (PN) used by such plan or plans in all reporting and disclosure required by the Department (individuals should not submit Social Security numbers);
(3) Whether any plan or trust affected by the requested exemption is currently under investigation for violation of, or has ever been found by the Department, the Internal Revenue Service, or by a court to have violated, the exclusive benefit rule of
Code section 401(a),
Code section 4975(c)(1), ERISA
sections 406 or
407(a), or
5 U.S.C. 8477(c)(3), including a description of the circumstances surrounding such violation;
(4) Whether any relief under
ERISA section 408(a),
Code section 4975(c)(2), or
5 U.S.C. 8477(c)(3) has been requested by, or provided to, the applicant or any parties in interest (or their affiliates) involved in the exemption transaction and, if so, the exemption application number or the prohibited transaction exemption number;
(5) Whether the applicant or any party in interest (or its affiliates) involved in the exemption transaction is currently, or has been within the last five years, a defendant in any lawsuits or criminal actions concerning its conduct as a fiduciary or party in interest with respect to any plan (other than lawsuits with respect to a routine claim for benefits), and a description of the circumstances of the lawsuits or criminal actions;
(6)
(i) Whether the applicant (including any person described in
§ 2570.34(b)(6)(ii)) or any of the parties in interest involved in the exemption transaction has, within the last 13 years, been:
(A) Convicted or released from imprisonment, whichever is later, as a result of any felony involving abuse or misuse of such person's position or employment with an employee benefit plan or a labor organization; any felony arising out of the conduct of the business of a broker, dealer, investment adviser, bank, insurance company, or fiduciary; income tax evasion; any felony involving the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds or securities; conspiracy or attempt to commit any such crimes or a crime of which any of the foregoing crimes is an element; or any crime identified in
ERISA section 411, regardless of whether the conviction occurred in a U.S. or foreign jurisdiction; or
(B) Convicted by a foreign court of competent jurisdiction or released from imprisonment, whichever is later, as a result of any crime, however denominated by the laws of the relevant foreign government, that is substantially equivalent to an offense described in
paragraph (a)(6)(i)(A) of this section and a description of the circumstances of any such conviction in paragraph (a)(6)(i)(A) or this paragraph (a)(6)(i)(B); and
(ii) For purposes of this paragraph (a), a person shall be deemed to have been “convicted” from the date of the judgment of the trial court (or the date of the judgment of any court in a foreign jurisdiction that is the equivalent of a U.S. Federal or state trial court), regardless of whether that judgment remains under appeal and regardless of whether the foreign jurisdiction considers a trial court judgment final while under appeal;
(7) Whether, within the last five years, any plan affected by the exemption transaction, the applicant, or any party in interest (or its affiliates) involved in the exemption transaction, has been under investigation or examination by, or has been engaged in litigation or a continuing controversy with, the Department, the Internal Revenue Service, the Justice Department, the Pension Benefit Guaranty Corporation, the Federal Retirement Thrift Investment Board, or any other regulatory body involving compliance with provisions of ERISA, FERSA, the Code, or any other Federal or state law involving:
(i) Compliance with provisions of ERISA or FERSA;
(ii) Representation of or position or employment with any employee benefit plan, including investigations or controversies involving ERISA or the Code, or any other Federal or state law;
(iii) Conduct of the business of a broker, dealer, investment adviser, bank, insurance company, or fiduciary;
(iv) Income tax evasion; or
(v) Any felony or conspiracy involving the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds or securities. If so, the applicant must provide a brief statement describing the investigation, examination, litigation, or controversy. The Department reserves the right to require the production of additional information or documentation concerning any of the matters in this paragraph (a)(7). In this regard, a denial of the exemption application may result from an applicant's failure to provide additional information requested by the Department;
(8) Whether any plan affected by the requested exemption has experienced a reportable event under
ERISA section 4043, and, if so, a description of the circumstances of any such reportable event;
(9) Whether a notice of intent to terminate has been filed under
ERISA section 4041 with respect to any plan affected by the requested exemption, and, if so, a description of the circumstances for the issuance of the notice;
(10) Names, addresses, phone numbers, and email addresses of all parties in interest (or their affiliates) involved in the exemption transaction;
(11) The estimated number of participants and beneficiaries in each plan affected by the requested exemption as of the date of the application;
(12) The percentage of the fair market value of the total assets of each affected plan that is involved in the exemption transaction. If the exemption transaction includes the acquisition of an asset by the plan, the fair market value of the asset to be acquired must be included in both the numerator and denominator of the fraction;
(13) Whether the exemption transaction has been consummated or will be consummated only if the exemption is granted;
(14) If the exemption transaction has already been consummated:
(i) The circumstances which resulted in plan fiduciaries causing the plan(s) to engage in the exemption transaction before obtaining an exemption from the Department;
(ii) Whether the exemption transaction has been terminated;
(iv) Whether Form 5330, Return of Excise Taxes Related to Employee Benefit Plans, has been filed with the Internal Revenue Service with respect to the exemption transaction; and
(v) Whether any excise taxes due under
Code section 4975(a) and (b), or any civil penalties due under
ERISA section 502(i) or (l) by reason of the exemption transaction have been paid. If so, the applicant should submit documentation (
e.g., a canceled check) demonstrating that the excise taxes or civil penalties were paid;
(15) The name of every person who has authority or investment discretion over any plan assets involved in the exemption transaction and the relationship of each such person to the parties in interest involved in the exemption transaction and the affiliates of such parties in interest;
(16) Whether the assets of the affected plan(s) are invested, directly or indirectly, in:
(i) loans to any party in interest (or its affiliates) involved in the exemption transaction;
(ii) Property leased to any party in interest (or its affiliates) involved in the exemption transaction; or
(iii) Securities issued by any party in interest (or its affiliates) involved in the exemption transaction, and, if such investments exist, a statement for each of these three types of investments which indicates:
(A) The type of investment to which the statement pertains;
(B) The aggregate fair market value of all investments of this type as reflected in the plan's most recent annual report;
(C) The approximate percentage of the fair market value of the plan's total assets as shown in such annual report that is represented by all investments of this type; and
(D) The statutory or administrative exemption covering these investments, if any;
(17) The approximate aggregate fair market value of the total assets of each affected plan;
(18) The person(s) or entity who will bear the costs of:
(i) The exemption application;
(ii) Any commissions, fees, or costs associated with the exemption transaction, and any related transaction; and
(iii) Notifying interested persons;
(19) Whether an independent fiduciary is or will be involved in the exemption transaction and, if so, the names of the persons who will bear the cost of the fee payable to such fiduciary; and
(20) Any prior transaction between:
(i) The plan or plan sponsor; and
(ii) Any party in interest (or its affiliates) involved in the exemption transaction.
(b) Each application for an individual exemption must also include:
(1) True copies of all contracts, deeds, agreements, and instruments, as well as relevant portions of plan documents, trust agreements, and any other documents bearing on the exemption transaction;
(2) A discussion of the facts relevant to the exemption transaction that are reflected in the documents listed in
paragraph (b)(1) of this section and an analysis of their bearing on the requested exemption;
(3) A copy of the most recent financial statements of each plan affected by the requested exemption; and
(4) A net worth statement with respect to any party that is providing a personal guarantee with respect to the exemption transaction.
(c) Special rules for applications for individual exemption involving pooled funds are as follows:
(1) The information required by paragraphs (a)(8) through (12) of this section is not required to be furnished in an application for individual exemption involving one or more pooled funds.
(2) The information required by paragraphs (a)(1) through (7) and (13) through (19) of this section and by paragraphs (b)(1) through (3) of this section must be furnished in reference to the pooled fund, rather than to the plans participating therein. (For purposes of this paragraph (c)(2), the information required by
paragraph (a)(16) of this section relates solely to other pooled fund transactions with, and investments in, parties in interest involved in the exemption transaction which are also sponsors of plans which invest in the pooled fund.)
(3) The following information must also be furnished—
(i) The estimated number of plans that are participating (or will participate) in the pooled fund; and
(ii) The minimum and maximum limits imposed by the pooled fund (if any) on the portion of the total assets of each plan that may be invested in the pooled fund.
(4) Additional requirements for applications for individual exemptions involving pooled funds in which certain plans participate are as follows:
(i) This paragraph (c)(4) applies to any application for an individual exemption involving one or more pooled funds in which any plan participating therein—
(A) Invests an amount which exceeds 20 percent of the total assets of the pooled fund; or
(B) Covers employees of:
(1) The party sponsoring or maintaining the pooled fund, or any affiliate of such party; or
(2) Any fiduciary with investment discretion over the pooled fund's assets, or any affiliate of such fiduciary.
(ii) The exemption application must include, with respect to each plan described in
paragraph (c)(4)(i) of this section, the information required by paragraphs (a)(1) through (3), (5) through (7), (10), (12) through (16), (18), and (19) of this section. The information required by this paragraph (c)(4)(ii) must be furnished in reference to the plan's investment in the pooled fund (
e.g., the names, addresses, phone numbers, and email addresses of all fiduciaries responsible for the plan's investment in the pooled fund (
paragraph (a)(10) of this section), the percentage of the assets of the plan invested in the pooled fund (
paragraph (a)(12) of this section), whether the plan's investment in the pooled fund has been consummated or will be consummated only if the exemption is granted (
paragraph (a)(13) of this section, etc.)).
(iii) The information required by this paragraph (c)(4) is in addition to the information required by paragraphs (c)(2) and (3) of this section relating to information furnished by reference to the pooled fund.
(5) The special rule and the additional requirements described in paragraphs (c)(1) through (4) of this section do not apply to an individual exemption request solely for the investment by a plan in a pooled fund. Such an application must provide the information required by paragraphs (a) and (b) of this section.