29 C.F.R. Subpart B—Procedures for Filing and Processing Prohibited Transaction Exemption Applications
Title 29 - Labor
Source: 55 FR 32847, Aug. 10, 1990, unless otherwise noted.
(a)(1) The rules of procedure set forth in this subpart apply to all applications for exemption which the Department has authority to issue under: (i) Section 408(a) of the Employee Retirement Income Security Act of 1974 (ERISA); (ii) Section 4975(c)(2) of the Internal Revenue Code of 1986 (the Code) (see Reorganization Plan No. 4 of 1978); or (iii) The Federal Employees' Retirement System Act of 1986 (FERSA) (5 U.S.C. 8477(c)(3)). (b) The Department will generally treat any exemption application which is filed solely under section 408(a) of ERISA or solely under section 4975(c)(2) of the Code as an exemption filed under both section 408(a) and section 4975(c)(2) if it relates to a transaction that would be prohibited both by ERISA and by the corresponding provisions of the Code. (c) The procedures set forth in this subpart represent the exclusive means by which the Department will issue administrative exemptions. The Department will not issue exemptions upon oral request alone. Likewise, the Department will not grant exemptions orally. An applicant for an administrative exemption may request and receive oral advice from Department employees in preparing an exemption application. However, such advice does not constitute part of the administrative record and is not binding on the Department in its processing of an exemption application or in its examination or audit of a plan. For purposes of these procedures, the following definitions apply: (a) An affiliate of a person means— (1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person; (2) Any director of, relative of, or partner in, any such person; (3) Any corporation, partnership, trust, or unincorporated enterprise of which such person is an officer, director, or a 5 percent or more partner or owner; and (4) Any employee or officer of the person who— (i) Is highly compensated (as defined in section 4975(e)(2)(H) of the Code), or (ii) Has direct or indirect authority, responsibility, or control regarding the custody, management, or disposition of plan assets. (b) A class exemption is an administrative exemption, granted under section 408(a) of ERISA, section 4975(c)(2) of the Code, and/or 5 U.S.C. 8477(c)(3), which applies to any parties in interest within the class of parties in interest specified in the exemption who meet the conditions of the exemption. (c) Department means the U.S. Department of Labor and includes the Secretary of Labor or his delegate exercising authority with respect to prohibited transaction exemptions to which this subpart applies. (d) Exemption transaction means the transaction or transactions for which an exemption is requested. (e) An individual exemption is an administrative exemption, granted under section 408(a) of ERISA, section 4975(c)(2) of the Code, and/or 5 U.S.C. 8477(c)(3), which applies only to the specific parties in interest named or otherwise defined in the exemption. (f) A party in interest means a person described in section 3(14) of ERISA or 5 U.S.C. 8477(a)(4) and includes a disqualified person, as defined in section 4975(e)(2) of the Code. (g) Pooled fund means an account or fund for the collective investment of the assets of two or more unrelated plans, including (but not limited to) a pooled separate account maintained by an insurance company and a common or collective trust fund maintained by a bank or similar financial institution. (a) The Department may initiate exemption proceedings on its own motion. In addition, the Department will initiate exemption proceedings upon the application of: (1) Any party in interest to a plan who is or may be a party to the exemption transaction; (2) Any plan which is a party to the exemption transaction; or (3) In the case of an application for an exemption covering a class of parties in interest or a class of transactions, in addition to any person described in paragraphs (a)(1) and (a)(2) of this section, an association or organization representing parties in interest who may be parties to the exemption transaction. (b) An application by or for a person described in paragraph (a) of this section, may be submitted by the applicant or by his authorized representatives. If the application is submitted by a representative of the applicant, the representative must submit proof of his authority in the form of: (1) A power of attorney; or (2) A written certification from the applicant that the representation is authorized. (c) If the authorized representative of an applicant submits an application for an exemption to the Department together with proof of his authority to file the application as required by paragraph (b) of this section, the Department will direct all correspondence and inquiries concerning the application to the representative unless requested to do otherwise by the applicant. (a) The Department will not ordinarily consider: (1) An application that fails to include all the information required by §§2570.34 and 2570.35 or otherwise fails to conform to the requirements of these procedures; or (2) An application for exemption involving a transaction or transactions which are the subject of an investigation for possible violations of part 1 or 4 of subtitle B of title I of ERISA or section 8477 or 8478 of FERSA or an application for an exemption involving a party in interest who is the subject of such an investigation or who is a defendant in an action by the Department or the Internal Revenue Service to enforce the above-mentioned provisions of ERISA or FERSA. (b) If for any reason the Department decides not to consider an exemption application, it will inform the applicant of that decision in writing and of the reasons therefor. (c) An application for an individual exemption relating to a specific transaction or transactions will ordinarily not be considered separately if the Department is considering a class exemption relating to the same type of transaction or transactions. (a) All applications for exemptions must contain the following information: (1) The name(s) of the applicant(s); (2) A detailed description of the exemption transaction and the parties in interest for whom an exemption is requested, including a description of any larger integrated transaction of which the exemption transaction is a part; (3) Whether the affected plan(s) and any parties in interest will be represented by the same person with regard to the exemption application; (4) Reasons a plan would have for entering into the exemption transaction; (5) The prohibited transaction provisions from which exemptive relief is requested and the reason why the transaction would violate each such provision; (6) Whether the exemption transaction is customary for the industry or class involved; (7) Whether the exemption transaction is or has been the subject of an investigation or enforcement action by the Department or by the Internal Revenue Service; and (8) The hardship or economic loss, if any, which would result to the person or persons on behalf of whom the exemption is sought, to affected plans, and to their participants and beneficiaries from denial of the exemption. (b) All applications for exemption must also contain the following: (1) A statement explaining why the requested exemption would be— (i) Administratively feasible; (ii) In the interests of affected plans and their participants and beneficiaries; and (iii) Protective of the rights of participants and beneficiaries of affected plans. (2) With respect to the notification of interested persons required by §2570.43: (i) A description of the interested persons to whom the applicant intends to provide notice; (ii) The manner in which the applicant will provide such notice; and (iii) An estimate of the time the applicant will need to furnish notice to all interested persons following publication of a notice of the proposed exemption in the (3) If an advisory opinion has been requested with respect to any issue relating to the exemption transaction— (i) A copy of the letter concluding the Department's action on the advisory opinion request; or (ii) If the Department has not yet concluded its action on the request: (A) A copy of the request or the date on which it was submitted together with the Department's correspondence control number as indicated in the acknowledgment letter; and (B) An explanation of the effect of a favorable advisory opinion upon the exemption transaction. (4) If the application is to be signed by anyone other than an individual party in interest seeking exemptive relief on his own behalf, a statement which— (i) Identifies the individual who will be signing the application and his position with the applicant; and (ii) Explains briefly the basis of his familiarity with the matters discussed in the application. (5)(i) A declaration in the following form:
Under penalty of perjury, I declare that I am familiar with the matters discussed in this application and, to the best of my knowledge and belief, the representations made in this application are true and correct. (ii) This declaration must be dated and signed by: (A) The applicant himself in the case of an individual party in interest seeking exemptive relief on his own behalf; (B) A corporate officer or partner where the applicant is a corporation or partnership; (C) A designated officer or official where the applicant is an association, organization or other unincorporated enterprise; (D) The plan fiduciary who has the authority, responsibility, and control with respect to the exemption transaction where the applicant is a plan. (iii) Specialized statements from third-party experts, such as appraisals or analyses of market conditions, submitted to support an application for exemption must also be accompanied by a statement of consent from such expert acknowledging that he or she knows that his or her statement is being submitted to the Department as part of an application for exemption. (iv) For those applications requiring an independent fiduciary to represent the plan in the exemption transaction, each statement submitted by said independent fiduciary must contain a signed and dated declaration under penalty of perjury that, to the best of said fiduciary's knowledge and belief, the representations made in such statement are true and correct. (c) An application for exemption may also include a draft of the requested exemption which defines the transaction and parties in interest for which exemptive relief is sought and the specific conditions under which the exemption would apply. (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] The Department's prohibited transaction exemption program is administered by the Employee Benefits Security Administration (EBSA). Any exemption application governed by these procedures should be mailed or otherwise delivered to: Exemption Application, EBSA, Office of Exemption Determinations, Division of Exemptions, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. (a) During the pendency of his exemption application, an applicant must promptly notify the Division of Exemptions in writing if he discovers that any material fact or representation contained in his application or in any documents or testimony provided in support of the application is inaccurate, if any such fact or representation changes during this period, or if, during the pendency of the application, anything occurs that may affect the continuing accuracy of any such fact or representation. (b) If, at any time during the pendency of his exemption application, an applicant or any other party in interest who would participate in the exemption transaction becomes the subject of an investigation or enforcement action by 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, the applicant must promptly notify the Division of Exemptions. (c) The Department may require an applicant to provide documentation it considers necessary to verify any statements contained in the application or in supporting materials or documents. (a) If, after reviewing an exemption file, the Department concludes that it will not grant the exenption, it will notify the applicant in writing of its tentative denial of the exemption application. At the same time, the Department will provide a short statement of the reasons for its tentative denial. (b) An applicant will have 20 days from the date of a tentative denial letter to request a conference under §2570.40 of these procedures and/or to notify the Department of its intent to submit additional information in writing under §2570.39 of these procedures. If the Department does not receive a request for a conference or a notification of intent to submit additional information within that time, it will issue a final denial letter pursuant to §2570.41. (c) The Department need not issue a tentative denial letter to an applicant before issuing a final denial letter where the Department has conducted a hearing on the exemption pursuant to either §2570.46 or §2570.47 of these procedures. (a) An applicant may notify the Department of its intent to submit additional information supporting an exemption application either by telephone or by letter sent to the address furnished in the applicant's tentative denial letter. At the same time, the applicant should indicate generally the type of information that he will submit. (b) An applicant will have 30 days from the date of the notification discussed in paragraph (a) of this section to submit in writing all of the additional information he intends to provide in support of his application. All such information must be accompanied by a declaration under penalty of perjury attesting to the truth and correctness of the information provided, which is dated and signed by a person qualified under §2570.34(b)(5) of these procedures to sign such a declaration. (c) If, for reasons beyond his control, an applicant is unable to submit in writing all the additional information he intends to provide in support of his application within the 30-day period described in paragraph (b) of this section, he may request an extension of time to furnish the information. Such requests must be made before the expiration of the 30-day period and will be granted only in unusual circumstances and for limited periods of time. (d) If an applicant is unable to submit all of the additional information he intends to provide in support of his exemption application within the 30-day period specified in paragraph (b) of this section, or within any additional period of time granted to him pursuant to paragraph (c) of this section, the applicant may withdraw the exemption application before expiration of the applicable time period and reinstate it later pursuant to §2570.44 of these procedures. (e) The Department will issue, without further notice, a final denial letter denying the requested exemption pursuant to §2570.41 of these procedures where— (1) The Department has not received the additional information that the applicant indicated he would submit within the 30-day period described in paragraph (b) of this section, or within any additional period of time granted pursuant to paragraph (c) of this section; (2) The applicant did not request a conference pursuant to §2570.38(b) of these procedures; and (3) The applicant has not withdrawn his application as permitted by paragraph (d) of this section. (a) Any conference between the Department and an applicant pertaining to a requested exemption will be held in Washington, DC, except that a telephone conference will be held at the applicant's request. (b) An applicant is entitled to only one conference with respect to any exemption application. An applicant will not be entitled to a conference, however, where the Department has held a hearing on the exemption under either §2570.46 or §2570.47 of these procedures. (c) Insofar as possible, conferences will be scheduled as joint conferences with all applicants present where: (1) More than one applicant has requested an exemption with respect to the same or similar types of transactions; (2) The Department is considering the applications together as a request for a class exemption; (3) The Department contemplates not granting the exemption; and (4) More than one applicant has requested a conference. (d) The Department will attempt to schedule a conference under this section for a mutually convenient time during the 45-day period following the later of— (1) The date the Department receives the applicant's request for a conference, or (2) The date the Department notifies the applicant, after reviewing additional information submitted pursuant to §2570.39, that it is still not prepared to propose the requested exemption. If the applicant is unable to attend a conference at any of the times proposed by the Department during this 45-day period or if the applicant fails to appear for a scheduled conference, he will be deemed to have waived his right to a conference unless circumstances beyond his control prevent him from scheduling a conference or attending a scheduled conference within this period. (e) Within 20 days after the date of any conference held under this section, the applicant may submit to the Department a written record of any additional data, arguments, or precedents discussed at the conference but not previously or adequately presented in writing. (a) The Department will issue a final denial letter denying a requested exemption where: (1) The conditions for issuing a final denial letter specified in §2570.38(b) or §2570.39(e) of these procedures are satisfied; (2) After issuing a tentative denial letter under §2570.38 of this part and considering the entire record in the case, including all written information submitted pursuant to §2570.39 and §2570.40(e) of these procedures, the Department decides not to propose an exemption or to withdraw an exemption already proposed; or (3) After proposing an exemption and conducting a hearing on the exemption under either §2570.46 or §2570.47 of this part and after considering the entire record in the case, including the record of the hearing, the Department decides to withdraw the proposed exemption. (b) [Reserved] If the Department tentatively decides, based on all the information submitted by an applicant, that the exemption should be granted, it will publish a notice of proposed exemption in the (a) Explain the exemption transaction and summarize the information received by the Department in support of the exemption; (b) Specify any conditions under which the exemption is proposed; (c) Inform interested persons of their right to submit comments in writing to the Department relating to the proposed exemption and establish a deadline for receipt of such comments; (d) If the proposed exemption includes relief from the prohibitions of section 406(b) of ERISA, section 4975(c)(1)(E) or (F) of the Code, or section 8477(c)(2) of FERSA, inform interested persons of their right to request a hearing under §2570.46 of this part and establish a deadline for receipt of requests for such hearings. (a) If, as set forth in the exemption application, the notification that an applicant intends to provide to interested persons upon publication of a notice of proposed exemption in the (b) If a notice of proposed exemption is published in the (1) A copy of the notice of proposed exemption; and (2) A supplemental statement in the following form:
You are hereby notified that the United States Department of Labor is considering granting an exemption from the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, or the Federal Employees' Retirement System Act of 1986. The exemption under consideration is explained in the enclosed Notice of Proposed Exemption. As a person who may be affected by this exemption, you have the right to comment on the proposed exemption by [date].1 1 The applicant will write in this space the date of the last day of the time period specified in the notice of proposed exemption. 2 To be added in the case of an exemption that provides relief from section 406(b) of ERISA or corresponding sections of the Code or FERSA.
Comments or requests for a hearing should be addressed to: Office of Exemption Determinations, Employee Benefits Security Administration, room ___,3 3 The applicant will fill in the room number of the Division of Exemptions. As of the date of this final regulation, the room number of the Division of Exemptions was N–5671. 4 The applicant will fill in the exemption application number, which is stated in the notice of proposed exemption, as well as in all correspondence from the Department to the applicant regarding the application.
The Department will make no final decision on the proposed exemption until it reviews all comments received in response to the enclosed notice. If the Department decides to hold a hearing on the exemption before making its final decision, you will be notified of the time and place of the hearing. (c) The method used to furnish notice to interested persons must be reasonably calculated to ensure that interested persons actually receive the notice. In all cases, personal delivery and delivery by first-class mail will be considered reasonable methods of furnishing notice. (d) After furnishing the notice required by this section, an applicant must provide the Department with a statement confirming that notice was furnished to the persons and in the manner and time designated in its exemption application or in any superseding agreement with the Department. This statement must be accompanied by a declaration under penalty of perjury attesting to the truth of the information provided in the statement and signed by a person qualified under §2570.34(b)(5) of these procedures to sign such a declaration. No exemption will be granted until such a statement and its accompanying declaration have been furnished to the Department. (a) An applicant may withdraw his application for an exemption at any time by informing the Department, either orally or in writing, of his intent to withdraw. (b) Upon receiving an applicant's notice of intent to withdraw an application for an individual exemption, the Department will confirm by letter the applicant's withdrawal of the application and will terminate all proceedings relating to the application. If a notice of proposed exemption has been published in the (c) Upon receiving an applicant's notice of intent to withdraw an application for a class exemption or for an individual exemption that is being considered with other applications as a request for a class exemption, the Department will inform any other applicants for the exemption of the withdrawal. The Department will continue to process other applications for the same exemption. If all applicants for a particular class exemption withdraw their applications, the Department may either terminate all proceedings relating to the exemption or propose the exemption on its own motion. (d) If, following the withdrawal of an exemption application, an applicant decides to reapply for the same exemption, he may submit a letter to the Department requesting that the application be reinstated and referring to the application number assigned to the original application. If, at the time the original application was withdrawn, any additional information to be submitted to the Department under §2570.39 of these procedures was outstanding, that information must accompany the letter requesting reinstatement of the application. However, the applicant need not resubmit information previously furnished to the Department in connection with a withdrawn application unless reinstatement of the application is requested more than two years after the date of its withdrawal. (e) Any request for reinstatement of a withdrawn application submitted in accordance with paragraph (d) of this section, will be granted by the Department, and the Department will take whatever steps remained at the time the application was withdrawn to process the application. (a) The Department will entertain one request for reconsideration of an exemption application that has been finally denied pursuant to §2570.41 (a)(2) or (a)(3) of this part if the applicant presents in support of the application significant new facts or arguments, which, for good reason, could not have been submitted for the Department's consideration during its initial review of the exemption application. (b) A request for reconsideration of a previously denied application must be made within 180 days after the issuance of the final denial letter and must be accompanied by a copy of the Department's final letter denying the exemption and a statement setting forth the new information and/or arguments that provide the basis for reconsideration. (c) A request for reconsideration must also be accompanied by a declaration under penalty of perjury attesting to the truth of the new information provided, which is signed by a person qualified under §2570.34(b)(5) of these procedures to sign such a declaration. (d) If, after reviewing a request for reconsideration, the Department decides that the facts and arguments presented do not warrant reversal of its original decision to deny the exemption, it will send a letter to the applicant reaffirming that decision. (e) If, after reviewing a request for reconsideration, the Department decides, based on the new facts and arguments submitted, to reconsider its denial letter, it will notify the applicant of its intent to reconsider the application in light of the new information presented. The Department will then take whatever steps remained at the time it issued its final denial letter to process the exemption application. (f) If, at any point during its subsequent processing of the application, the Department decides again that the exemption is unwarranted, it will issue a letter affirming its final denial. (a) Any interested person who may be adversely affected by an exemption which the Department proposes to grant from the restrictions of section 406(b) of ERISA, section 4975(c)(1)(E) or (F) of the Code, or section 8477(c)(2) of FERSA may request a hearing before the Department within the period of time specified in the (1) The name, address, and telephone number of the person making the request; (2) The nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption; and (3) A statement of the issues to be addressed and a general description of the evidence to be presented at the hearing. (b) The Department will grant a request for a hearing made in accordance with paragraph (a) of this section where a hearing is necessary to fully explore material factual issues identified by the person requesting the hearing. However, the Department may decline to hold a hearing where: (1) The request for the hearing does not meet the requirements of paragraph (a); (2) The only issues identified for exploration at the hearing are matters of law; or (3) The factual issues identified can be fully explored through the submission of evidence in written form. (c) An applicant for an exemption must notify interested persons in the event that the Department schedules a hearing on the exemption. Such notification must be given in the form, time, and manner prescribed by the Department. Ordinarily, however, adequate notification can be given by providing to interested persons a copy of the notice of hearing published by the Department in the (d) After furnishing the notice required by paragraph (c) of this section, an applicant must submit a statement confirming that notice was given in the form, manner, and time prescribed. This statement must be accompanied by a declaration under penalty of perjury attesting to the truth of the information provided in the statement, which is signed by a person qualified under §2570.34(b)(5) of these procedures to sign such a declaration. (a) In its discretion, the Department may schedule a hearing on its own motion where it determines that issues relevant to the exemption can be most fully or expeditiously explored at a hearing. (b) An applicant for an exemption must notify interested persons of any hearing on an exemption scheduled by the Department in the manner described in §2570.46(c). In addition, the applicant must submit a statement subscribed as true under penalty of perjury like that required in §2570.46(d). (a) If, after considering all the facts and representations submitted by an applicant in support of an exemption application, all the comments received in response to a notice of proposed exemption, and the record of any hearing held in connection with the proposed exemption, the Department determines that the exemption should be granted, it will publish a notice in the (b) A (a) An exemption does not take effect or protect parties in interest from liability with respect to the exemption transaction unless the material facts and representations contained in the application and in any materials and documents submitted in support of the application were true and complete. (b) An exemption is effective only for the period of time specified and only under the conditions set forth in the exemption. (c) Only the specific parties to whom an exemption grants relief may rely on the exemption. If the notice granting an exemption does not limit exemptive relief to specific parties, all parties to the exemption transaction may rely on the exemption. (a) If, after an exemption takes effect, changes in circumstances, including changes in law or policy, occur which call into question the continuing validity of the Department's original conclusions concerning the exemption, the Department may take steps to revoke or modify the exemption. (b) Before revoking or modifying an exemption, the Department will publish a notice of its proposed action in the (c) Ordinarily the revocation or modification of an exemption will have prospective effect only. (a) The administrative record of each exemption application will be open to public inspection and copying at the Public Disclosure Branch, EBSA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. (b) Upon request, the staff of the Public Disclosure Branch will furnish photocopies of an administrative record, or any specified portion of that record, for a specified charge per page. This regulation is effective with respect to all applications for exemptions filed with the Department under section 408(a) of ERISA, section 4975(c)(2) of the Code, or 5 U.S.C. 8477(c)(3) at any time on or after September 10, 1990. Applications for exemptions under section 408(a) of ERISA and/or section 4975 of the Code filed before September 10, 1990, are governed by ERISA Procedure 75–1. Applications for exemption under 5 U.S.C. 8477(c)(3) filed before September 10, 1990, but after December 29, 1988 are governed by part 2585 of chapter XXV of title 29 of the Code of Federal Regulations, (title 29 CFR part 2585 as revised July 1, 1990). Applications under 5 U.S.C. 8477(c)(3) filed before December 29, 1988 are governed by ERISA Procedure 75–1.
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
§ 2570.30 Scope of rules.
§ 2570.31 Definitions.
§ 2570.32 Persons who may apply for exemptions.
§ 2570.33 Applications the Department will not ordinarily consider.
§ 2570.34 Information to be included in every exemption application.
§ 2570.35 Information to be included in applications for individual exemptions only.
§ 2570.36 Where to file an application.
§ 2570.37 Duty to amend and supplement exemption applications.
§ 2570.38 Tentative denial letters.
§ 2570.39 Opportunities to submit additional information.
§ 2570.40 Conferences.
§ 2570.41 Final denial letters.
§ 2570.42 Notice of proposed exemption.
§ 2570.43 Notification of interested persons by applicant.
§ 2570.44 Withdrawal of exemption applications.
§ 2570.45 Requests for reconsideration.
§ 2570.46 Hearings in opposition to exemptions from restrictions on fiduciary self-dealing.
§ 2570.47 Other hearings.
§ 2570.48 Decision to grant exemptions.
§ 2570.49 Limits on the effect of exemptions.
§ 2570.50 Revocation or modification of exemptions.
§ 2570.51 Public inspection and copies.
§ 2570.52 Effective date.
