29 C.F.R. § 2570.35 Information to be included in applications for individual exemptions only.
Title 29 - Labor
(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, 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; (3) Whether any plan or trust affected by the requested exemption has ever been found by the Department, the Internal Revenue Service, or by a court to have violated the exclusive benefit rule of section 401(a) of the Code, or to have engaged in a prohibited transaction under section 503(b) of the Code or corresponding provisions of prior law, section 4975(c)(1) of the Code, section 406 or 407(a) of ERISA, or 5 U.S.C. 8477(c)(3); (4) Whether any relief under section 408(a) of ERISA, section 4975(c)(2) of the Code, or 5 U.S.C. 8477(c)(3) has been requested by, or provided to, the applicant or any of the parties on behalf of whom the exemption is sought and, if so, the exemption application number or the prohibited transaction exemption number; (5) Whether the applicant or any of the parties in interest involved in the exemption transaction is currently, or has been within the last five years, a defendant in any lawsuit or criminal action concerning such person's conduct as a fiduciary or party in interest with respect to any plan; (6) Whether the applicant or any of the parties in interest involved in the exemption transaction has, within the last 13 years, been convicted of any crime described in section 411 of ERISA; (7) Whether, within the last five years, any plan affected by the exemption transaction or any party in interest 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, or the Federal Retirement Thrift Investment Board involving compliance with provisions of ERISA, provisions of the Code relating to employee benefit plans, or provisions of FERSA relating to the Federal Thrift Savings Fund. If so, the applicant must submit copies of all correspondence with the Department, the Internal Revenue Service, the Justice Department, the Pension Benefit Guaranty Corporation, or the Federal Retirement Thrift Investment Board regarding the substantive issues involved in the investigation, examination, litigation, or controversy which relate to compliance with the provisions of part 1 or 4 of subtitle B of title I of ERISA, section 4975 of the Code, or section 8477 or 8478 of FERSA. For this purpose, the term “examination” does not include routine audits conducted by the Department pursuant to section 8477(g) of FERSA; (8) Whether any plan affected by the requested exemption has experienced a reportable event under section 4043 of ERISA; (9) Whether a notice of intent to terminate has been filed under section 4041 of ERISA respecting any plan affected by the requested exemption; (10) Names, addresses, and taxpayer identifying numbers of all parties in interest involved in the subject 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; (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 subject transaction before obtaining an exemption from the Department; (ii) Whether the transaction has been terminated; (iii) Whether the transaction has been corrected as defined in Code section 4975(f)(5); (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 transaction; and (v) Whether any excise taxes due under section 4975(a) and (b) of the Code by reason of the transaction have been paid. (15) The name of every person who has investment discretion over any 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 or not the assets of the affected plan(s) are invested in loans to any party in interest involved in the exemption transaction, in property leased to any such party in interest, or in securities issued by any such party in interest, and, if such investments exist, a statement for each of these three types of investments which indicates: (i) The type of investment to which the statement pertains; (ii) The aggregate fair market value of all investments of this type as reflected in the plan's most recent annual report; (iii) 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 (iv) 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) who will bear the costs of the exemption application and of notifying interested persons; and (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. (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 these documents and an analysis of their bearing on the requested exemption; and (3) A copy of the most recent financial statements of each plan affected by the requested exemption. (c) Special rule for applications for individual exemption involving pooled funds. (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 (a)(13) through (19) of this section and by paragraphs (b)(1) through (3) of this section must be furnished by reference to the pooled fund, rather than to the plans participating therein. (For purposes of this paragraph, 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 exemption involving pooled funds in which certain plans participate. (i) This paragraph applies to any application for individual exemption involving one or more pooled funds in which any plan participating therein— (A) Invests an amount which exceeds 20% 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), (a)(5) through (7), (a)(10), (a)(12) through (16) and, (a)(18) and (19), of this section. The information required by this paragraph must be furnished by reference to the plan's investment in the pooled fund (e.g., the names, addresses and taxpayer identifying numbers of all fiduciaries responsible for the plan's investment in the pooled fund [§2570.35(a) (10)], the percentage of the assets of the plan invested in the pooled fund [§2570.35(a)(12)], whether the plan's investment in the pooled fund has been consummated or will be consummated only if the exemption is granted [§2570.35(a)(13)], etc.). (iii) The information required by paragraph (c)(4) of this section 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. [55 FR 32847, Aug. 10, 1990; 56 FR 14861, Apr. 12, 1991]
Title 29: Labor
PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
Subpart B—Procedures for Filing and Processing Prohibited Transaction Exemption Applications
§ 2570.35 Information to be included in applications for individual exemptions only.
