,i #aadth ,,congress #ast ,session ,h4 ,r4 #cibb ,,in ,,the ,,house ,,of ,,representatives ,november #d1 #bjae ,mr4 ,kelly of ,pennsylvania 7for himself and ,mr4 ,sam ,johnson of ,texas7 introduced the following bill2 which was referred to the ,committee on ,education and the ,workforce1 and in addition to the ,committee on ,ways and ,means1 for a period to be subsequently determined by the ,speaker1 in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned ,a ,,bill ,to amend the ,internal ,revenue ,code of #aihf and the ,employee ,retirement ,income and ,security ,act of #aigd to provide for a best interest standard for advice fiduciaries1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,retirement ,choice ,protection ,act of #bjae4 #b4 ,transfer to ,secretary of the ,treasury of authorities regarding individual retirement plans 7a7 ,in general ,section #ajb of ,reorganization ,plan ,no4 #d of #aigh 7ratified and affirmed as law by ,public ,law #ih-ecb 7#ih ,stat4 #bgje77 is amended-- 7#a7 in subsection 7a7-- 7,a7 by striking and at the end of clause 7ii72 7,b7 by striking and at the end of clause 7iii72 and 7,c7 by inserting after clause 7iii7 the following3 7iv7 regulations1 rulings1 opinions1 and exemptions relating to individual retirement accounts described in section #djh7;a7 of the ,code and individual retirement annuities described in section #djh7;b7 of the ,code1 including simplified employee pensions under section #djh7k7 of the ,code and simple retirement accounts under section #djh7p7 of the ,code2 and 7v7 regulations described in section #ajc7;b7 of this ,plan2 2 and 7#b7 by adding at the end the following new flush sentence3 ,the ,secretary of the ,treasury shall consult with the ,securities and ,exchange ,commission in prescribing regulations1 rulings1 opinions1 and exemptions under subsection 7a77iv7 that provide guidance of general application as to the professional standards of care 7whether involving fiduciary1 suitability1 or other standards7 owed by brokers and investment advisors to owners and account holders of accounts and annuities described in such subsection44 7b7 ,joint authority ,section #ajc of such ,plan is amended-- 7#a7 by striking ,in the case of and inserting3 7a7 ,in the case of2 and 7#b7 by adding at the end the following3 7b7 7#a7 ,the ,secretary of the ,treasury and the ,secretary of ,labor shall have joint authority to issue regulations described in this subsection1 and any such regulations shall be issued jointly by such ,secretaries4 7#b7 ,a regulation is described in this subsection if 7i7 the regulation is not described in clause 7i71 7ii71 7iii71 or 7iv7 of section #ajb7;a7 of this ,plan and 7ii7 defines or interprets a term or requirement that is included in section #dige of the ,code or section #djf of ,,erisa4 ,the determination of whether any regulation is described in this subsection shall be made without regard to whether any such term or requirement is also used or defined in any other provision of the ,code or ,,erisa4 4 7c7 ,effective date 7#a7 ,in general ,the amendments made by this section shall apply to regulations1 rulings1 opinions1 and exemptions which have not been finalized as of ,july #h1 #bjac4 7#b7 ,transition ,any final regulation1 ruling1 opinion1 or exemption described in section #ajb7;a77iv7 or #ajc7;b7 of ,reorganization ,plan ,no4 #d of #aigh 7as added by the amendments made by this section7 which was issued by the ,secretary of ,labor before ,july #i1 #bjac1 shall apply until such time as such regulation1 ruling1 opinion1 or exemption is revoked or modified pursuant to such amendments4 #c4 ,best interest standard for advice fiduciaries 7a7 ,amendments to the ,internal ,revenue ,code of #aihf 7#a7 ,best interest standard for advice fiduciaries regarding iras and non-erisa plans ,section #dige7;c7 of the ,internal ,revenue ,code of #aihf is amended by adding the following new paragraph 7#g73 7#g7 ,best interest recommendation rule for advice fiduciaries to iras and non-erisa plans 7,a7 ,best interest prohibited transaction ,for purposes of this section and with respect to plans not subject to section #djd of title ,i1 subtitle ,b of the ,employee ,retirement ,income ,security ,act of #aigd 7relating to fiduciary obligations71 the term prohibited transaction includes the receipt of any consideration for his own personal account by any disqualified person who is a fiduciary by reason of providing investment advice 7within the meaning of section #dige7;e77#c77;,b77 from the plan or any party in connection with a transaction involving the investment of income or assets of the plan resulting from the recommendation of such person1 unless such investment advice constitutes a best interest recommendation4 ,this paragraph shall not apply to any transaction unless such transaction is described in subparagraph 7,e7 or 7,f7 of subsection 7c77#a7 7without regard to any exemption from the prohibitions of subsection 7c774 7,b7 ,best interest recommendation 7i7 ,for purposes of this paragraph1 the term best interest recommendation means a recommendation provided by a person acting with the care1 skill1 prudence1 and diligence under the circumstances then prevailing that a prudent person would exercise based on the information obtained through the reasonable diligence of the person regarding factors such as the advice recipient's age1 and any other information that the advice recipient discloses to the person in connection with receiving such recommendation1 where the person does not subordinate the interests of the plan or advice recipient1 as applicable1 to its own4 7ii7 ,best interest recommendations may include1 without limitation1 recommendations that-- 7,i7 are based on a limited range of products1 providers or offerings 7including recommendations that include1 or are limited only to1 proprietary products and providers71 where such limits are clearly disclosed to the advice recipient at any time prior to a transaction based on the recommendation1 or 7,,ii7 may result in variable compensation to the person 7or its affiliate71 such as transaction1 services1 placement1 or other types of compensation that differ by product or service1 where the receipt of such compensation is clearly disclosed to the advice recipient4 7iii7 ,for purposes of this paragraph1 clear disclosure of variable compensation means notification at any time prior to a transaction based on the person's recommendation1 in a manner calculated to be understood by the average individual1 of the following information1 which can be provided in one or more statements or documents3 7,i7 ,the person 7or its affiliate7 may receive varying amounts of fees or other compensation or consideration with respect to recommended transactions4 7,,ii7 ,the amount of any fee or other compensation or consideration that is directly payable to the person 7or its affiliate7 from the plan or advice recipient with respect to recommended transactions1 provided that any such amount may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate or range of such compensation or consideration4 7,,iii7 ,a description of the types and ranges of indirect compensation that may be paid to the person 7or its affiliate7 by any third party in connection with recommended transactions1 provided that any such ranges may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate of such compensation or consideration4 7,,iv7 ,upon the advice recipient's request prior to the transaction1 a disclosure of the specific amounts of compensation described in subclause 7,,ii7 or 7,,iii7 that the person will receive in connection with the particular transaction1 provided that any such amounts may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate of such compensation or consideration4 ,no recommendation will fail to be a best interest recommendation solely because the person1 acting in good faith and with reasonable diligence1 makes an error or omission in disclosing the information specified in this subparagraph1 provided that the person discloses the correct information to the advice recipient as soon as practicable1 but not later than #cj days from the date on which the person knows of such error or omission4 7,c7 ,correction ,for purposes of this section and notwithstanding subsection 7f77#e7 to the contrary1 the terms correction and correct mean1 with respect to this prohibited transaction only1 the payment to1 or reimbursement of1 actual damages of the plan resulting directly from the plan's reliance on such investment advice1 if any1 that have not otherwise been paid or reimbursed to the plan1 including payments and reimbursements made pursuant to subsection 7f77#e74 ,any such damages shall be determined in a manner consistent with the damages that would be payable with respect to such prohibited transaction under the ,employee ,retirement ,income ,security ,act of #aigd4 7,d7 ,calculation of amount involved ,for purposes of this section and notwithstanding subsection 7f77#d7 to the contrary1 the term amount involved means1 with respect to this prohibited transaction only1 the amount of such consideration received by the disqualified person with respect to the transaction that has not otherwise been paid or reimbursed to the plan1 including payments and reimbursements made pursuant to subsection 7f77#e74 4 7#b7 ,modification of existing statutory exemptions to ,apply the best interest standard to advice fiduciaries of iras and non-erisa plans through section #dige7;c77#g7 ,section #dige7;d7 of such ,code is amended by deleting the language preceding paragraph 7#a7 and replacing it with the following3 7d7 ,exemptions ,except as provided in subsection 7f77#f71 the prohibitions provided in subsection 7c77#a7 shall not apply to-- 4 7#c7 ,definition of investment advice ,subparagraph 7,b7 of subsection #dige7;e77#c7 of such ,code is amended to read as follows3 7,b7 renders investment advice for a fee or other compensation1 direct or indirect1 with respect to moneys or other property of such plan1 or has any authority or responsibility to do so4 ,investment advice means a recommendation-- 7i7 as to the advisability of acquiring1 holding1 disposing1 or exchanging securities or other investment property1 including a recommendation to take a distribution of benefits or a recommendation as to the investment of securities or other property to be rolled over or otherwise distributed from the plan2 7ii7 as to the management of securities or other property1 including recommendations as to the management of securities or other property to be rolled over or otherwise distributed from the plan2 or 7iii7 of a person who is also going to receive a fee or other compensation for providing any of the types of advice described in clause 7i7 or 7ii72 ,provided that1 such recommendation is rendered pursuant to a mutual agreement1 arrangement1 or understanding between such person and the plan1 plan fiduciary1 or advice recipient that such advice is individualized to the plan and such plan1 fiduciary1 or advice recipient intends to materially rely on such recommendation in making investment or management decisions with respect to moneys1 securities1 or other investment property of the plan4 ,a person shall not be considered to be providing investment advice if such recommendation is provided in conjunction with full and fair disclosure to the recipient1 which can be written or verbal1 that the person is providing or making the recommendation of services or property in its marketing1 sales1 or educational capacity1 and that the person is not undertaking to provide impartial investment advice or to give advice as a fiduciary 7within the meaning of this subparagraph74 ,in addition1 a person shall not be a fiduciary under this subparagraph with respect to the terms and conditions of engagement of the person1 including the scope of the obligation to provide advice1 the products or services with respect to which advice is provided and the compensation payable to the person1 provided the recipient has consented to the terms and conditions of the engagement after disclosure of all material aspects of such terms and conditions1 including fee disclosure that satisfies subclauses 7,i71 7,,ii71 and 7,,iii7 of paragraph 7#g77;,b77i74 ,except as otherwise provided in subparagraph 7,d7 and notwithstanding subparagraph 7,e71 investment advice shall include a recommendation under this subparagraph provided pursuant to a written acknowledgment of fiduciary status with respect to the provision of such recommendation4 ,for purposes of this subparagraph1 property means moneys and investment property1 and management of securities means exercising rights or obligations with respect to securities or other property1 4 7#d7 ,definition of investment advice ,section #dige7;e77#c7 of such ,code is amended by striking the period at the end of subparagraph 7,c7 and inserting a comma and by adding the following new subparagraphs 7,d7 and 7,e73 7,d7 ,the extent of a fiduciary's obligations as such can be defined and limited pursuant to a mutual agreement1 arrangement1 or understanding between the person and the party engaging the person as a fiduciary to the plan4 ,such limitations can include limits on scope1 timing1 and responsibility to provide ongoing monitoring or advice services4 7,e7 ,a person shall not be deemed to be a fiduciary on account of section #dige7;e77#c77;,b7 if such person meets one or more of the following3 7i7 ,counterparties and services providers ,in such person's capacity as a counterparty1 service provider1 or representative thereof1 the person provides advice to a plan fiduciary who is independent of such person and who is independent of the plan sponsor1 with respect to an arm's-length service arrangement1 sale1 purchase1 loan1 or bilateral contract between the plan and person1 each a transaction for purposes of this subclause1 if1 prior to entering into the transaction1 the plan fiduciary represents that it understands that the person has a financial interest in the matter1 and that the person is not undertaking to provide impartial financial advice or to give advice as a fiduciary 7within the meaning of this paragraph72 provided such person has not acknowledged in writing that it is acting as a fiduciary 7within the meaning of this paragraph7 with respect to the transaction4 7ii7 ,swap transactions ,the person is a counterparty1 service provider or representative thereof in connection with a swap or security-based swap1 as defined in section #a7;a7 of the ,commodity ,exchange ,act 7#g ,u4,s4,c4 #a7;a77 and section #c7;a7 of the ,securities ,exchange ,act 7#ae ,u4,s4,c4 #gh;c7a771 if3 the plan is represented by a fiduciary independent of the person2 the person is a swap clearing firm or other service provider in relation to a swap1 swap dealer1 security-based swap dealer1 major swap participant1 or major security-based swap participant2 the person 7if a swap dealer1 security-based swap dealer1 clearing firm1 or other similar service provider7 is not acting as an advisor to the plan 7within the meaning of section #ds7h7 of the ,commodity ,exchange ,act or section #ae;,f7h7 of the ,securities ,exchange ,act of #aicd7 in connection with the transaction2 and in advance of providing any recommendations with respect to the transaction1 the person obtains a written representation from the independent plan fiduciary1 that the fiduciary will not rely on recommendations provided by the person4 7iii7 ,employees ,in his or her capacity as an employee of any employer or employee organization sponsoring the plan or an affiliate of such plan sponsor1 the person provides the advice 7directly or indirectly7 to the plan1 plan fiduciary1 participant1 or beneficiary1 and he or she receives no fee or other compensation1 direct or indirect1 in connection with the advice beyond the employee's normal compensation for work performed for the employer or employee organization or an affiliate4 ,in such cases1 such an employee is not rendering investment advice for a fee or other compensation4 ,no inference is intended with respect to whether any other person shall be treated as rendering investment advice for a fee or other compensation4 7iv7 ,platform providers ,the person merely markets and makes available to a plan 7including its participants1 beneficiaries1 and fiduciaries 7which includes an owner of an individual retirement plan 7as defined in section #ggja7;a77#cg77771 without regard to the individualized needs of the plan1 its participants1 or beneficiaries1 securities or other property through a platform or similar mechanism 7which may consist of or include one or more annuity contracts7 from which a plan fiduciary may select or monitor investment alternatives1 including qualified default investment alternatives1 into which plan participants or beneficiaries may direct the investment of assets held in1 or contributed to1 their individual accounts1 if the person discloses in writing to the plan fiduciary that the person is not undertaking to provide impartial investment advice or to give advice as a fiduciary 7within the meaning of this paragraph7 when establishing or maintaining the platform4 7v7 ,selection and monitoring assistance ,the person merely identifies investment alternatives that meet objective criteria specified by the plan fiduciary 7including an owner of an individual retirement plan 7as defined in section #ggja7;a77#cg7771 participant1 or beneficiary 7e4g41 stated parameters concerning expense ratios1 size of fund1 type of asset1 or credit quality72 or merely provides objective financial data and comparisons with independent benchmarks to the plan fiduciary1 participant or beneficiary4 7vi7 ,financial reports and valuations ,the person provides or reports valuation information1 but does not represent in writing that it is undertaking to provide such valuation information as a fiduciary 7within the meaning of this subsection74 7vii7 ,education ,the person provides the information-- 7,i7 described in ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a1 as in effect on ,january #a1 #bjae72 7,,ii7 described in ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a1 as in effect on ,january #a1 #bjae7 but for the fact that such education is provided to a plan or plan fiduciary2 7,,iii7 described in ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a1 as in effect on ,january #a1 #bjae7 but for the fact that such education is provided to an owner of an individual retirement plan 7as defined in section #ggja7;a77#cg772 7,,iv7 to participants and beneficiaries regarding the factors to consider in deciding whether to elect to receive a distribution from a plan or an individual retirement plan 7as defined in section #ggja7;a77#cg77 and whether to roll over such distribution to a plan or an individual retirement plan 7as defined in section #ggja7;a77#cg772 such education can include examples of different distribution and rollover alternatives1 so long as all material facts and assumptions on which the examples are based accompany the examples2 or 7,v7 any additional information treated as education by the ,secretary of ,labor4 4 7#e7 ,exemption to preserve investor choice ,section #dige7;d7 of such ,code is amended by adding at the end thereof the following new paragraph3 7#bd7 with respect to transactions described in section #dige7;c77#a7 7,a7-7,f71 any transaction or service in connection with the provision of investment advice described in section #dige7;e77#c77;,b7 if the conditions under subparagraphs 7,a71 7,b71 and 7,c7 are satisfied3 7,a7 ,the provision of investment advice with respect to the transaction is subject to subsection 7c77#g7 or section #djd of title ,i1 subtitle ,b of the ,employee ,retirement ,income ,security ,act of #aigd 7relating to fiduciary obligations74 7,b7 ,the conditions of section #dige7;d77#b7 are satisfied when otherwise applicable4 7,c7 ,with respect to plans subject to section #djd of title ,i1 subtitle ,b of the ,employee ,retirement ,income ,security ,act of #aigd1 the investment advice may include recommendations that-- 7i7 are based on a limited range of products1 providers1 or offerings 7including recommendations that include1 or are limited only to1 proprietary products and providers71 where such limits are clearly disclosed to the advice recipient at any time prior to a transaction based on the recommendation1 or 7ii7 may result in variable compensation to the person 7or its affiliate71 such as transaction1 services1 placement1 or other types of compensation that differ by product or service1 where the receipt of such compensation is clearly disclosed to the advice recipient4 7,d7 ,for purposes of this paragraph1 clear disclosure of variable compensation means notification at any time prior to a transaction based on the person's recommendation1 in a manner calculated to be understood by the average individual1 of the following information1 which can be provided in one or more statements or documents3 7i7 ,the person 7or its affiliate7 may receive varying amounts of fees or other compensation or consideration with respect to recommended transactions4 7ii7 ,the amount of any fee or other compensation or consideration that is directly payable to the person 7or its affiliate7 from the plan or advice recipient with respect to recommended transactions1 provided that any such amount may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate or range of such compensation or consideration4 7iii7 ,a description of the types and ranges of indirect compensation that may be paid to the person 7or its affiliate7 by any third party in connection with the recommended transaction1 provided that any such range may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge or estimate of such compensation or consideration4 7iv7 ,upon the advice recipient's request prior to the transaction1 a disclosure of the specific amounts of compensation described in clause 7ii7 or 7iii7 that the person will receive in connection with the particular transaction1 provided that any such amounts may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate of such compensation or consideration4 ,the disclosure requirements described in this subparagraph will not fail to be met solely because the person1 acting in good faith and with reasonable diligence1 makes an error or omission in disclosing the information specified in this subsection1 provided that the person discloses the correct information to the advice recipient as soon as practicable1 but not later than #cj days from the date on which the person knows of such error or omission4 4 7#f7 ,effective date ,the amendments made by this subsection shall apply on or after the #ast day of the #cfth month after the date of the enactment of this ,act1 but the exemption added under section #dige7;d77#bd7 of such ,code shall be available immediately upon enactment of this ,act for persons meeting its conditions 7including the conditions of a best interest recommendation which may not be effective at such time74 ,the ,secretary of ,labor is prohibited from amending any rules or administrative positions promulgated under section #c7ba7 of ,,erisa or section #dige7;e77#c7 of such ,code 7including ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a7 and ,department of ,labor ,advisory ,opinion #bjje-bc;,a7 prior to the effective date of this ,act1 and no such rules or positions promulgated by the ,secretary of ,labor prior to the date of the enactment of this ,act1 but not yet effective or applicable1 may become effective prior to the effective date of this ,act4 7#g7 ,grandfathered transactions and services ,the amendments made to section #dige7;e77#c77;,b7 of such ,code by this ,act shall not apply to any services if such services-- 7,a7 were rendered prior to the effective date of this ,act1 7,b7 relate to a transaction entered into prior to the effective date of this ,act1 7,c7 were paid for prior to the effective date of this ,act1 or 7,d7 are not described in subparagraph 7,a71 7,b71 or 7,c7 but the person performing the services does not receive more compensation 7either as a fixed dollar amount or as a percentage of assets7 as a result of the services than the person is contractually eligible to receive for such services prior to the effective date of this ,act4 7b7 ,amendments to the ,employee ,retirement ,income ,security ,act of #aigd 7#a7 ,definition of investment advice ,subparagraph 7,a7 of section #c7ba7 of the ,employee ,retirement ,security ,act of #aigd is amended by amending clause 7ii7 to read as follows3 7ii7 renders investment advice for a fee or other compensation1 direct or indirect1 with respect to moneys or other property of such plan1 or has any authority or responsibility to do so4 ,investment advice means a recommendation-- 7,i7 as to the advisability of acquiring1 holding1 disposing1 or exchanging securities or other investment property1 including a recommendation to take a distribution of benefits or a recommendation as to the investment of securities or other property to be rolled over or otherwise distributed from the plan2 7,,ii7 as to the management of securities or other property1 including recommendations as to the management of securities or other property to be rolled over or otherwise distributed from the plan2 or 7,,iii7 of a person who is also going to receive a fee or other compensation for providing any of the types of advice described in subclause 7,i7 or 7,,ii72 ,provided that1 such recommendation is rendered pursuant to a mutual agreement1 arrangement1 or understanding between such person and the plan1 plan fiduciary1 or advice recipient that such advice is individualized to the plan and such plan1 fiduciary1 or advice recipient intends to materially rely on such recommendation in making investment or management decisions with respect to moneys1 securities1 or other investment property of the plan4 ,a person shall not be considered to be providing investment advice if such recommendation is provided in conjunction with full and fair disclosure to the recipient1 which can be written or verbal1 that the person is providing or making the recommendation of services or property in its marketing1 sales1 or educational capacity1 and that the person is not undertaking to provide impartial investment advice or to give advice as a fiduciary 7within the meaning of this subparagraph74 ,in addition1 a person shall not be a fiduciary under this subparagraph with respect to the terms and conditions of engagement of the person1 including the scope of the obligation to provide advice1 the products or services with respect to which advice is provided and the compensation payable to the person1 provided the recipient has consented to the terms and conditions of the engagement after disclosure of all material aspects of such terms and conditions1 including fee disclosure that satisfies clauses 7i71 7ii71 and 7iii7 of section #djh7;b77#ba77;,c74 ,except as otherwise provided in subparagraph 7,c7 and notwithstanding subparagraph 7,d71 investment advice shall include a recommendation under this subparagraph provided pursuant to a written acknowledgment of fiduciary status with respect to the provision of such recommendation4 ,for purposes of this clause1 property means moneys and investment property1 and management of securities means exercising rights or obligations with respect to securities or other property4 4 7#b7 ,definition of investment advice ,subsection #c7ba7 of such ,act is amended by adding the following new subparagraphs 7,c7 and 7,d73 7,c7 ,the extent of a fiduciary's obligations as such can be defined and limited pursuant to a mutual agreement1 arrangement1 or understanding between the person and the party engaging the person as a fiduciary to the plan4 ,such limitations can include limits on scope1 timing1 and responsibility to provide ongoing monitoring or advice services4 7,d7 ,a person shall not be deemed to be a fiduciary on account of subparagraph 7,a77ii7 if such person meets one or more of the following3 7i7 ,counterparties and services providers ,in such person's capacity as a counterparty1 service provider1 or representative thereof1 the person provides advice to a plan fiduciary who is independent of such person and who is independent of the plan sponsor1 with respect to an arm's-length service arrangement1 sale1 purchase1 loan1 or bilateral contract between the plan and person1 each a transaction for purposes of this clause if1 prior to entering into the transaction1 the plan fiduciary represents that it understands that the person has a financial interest in the matter1 and that the person is not undertaking to provide impartial financial advice or to give advice as a fiduciary 7within the meaning of this subsection72 provided such person has not acknowledged in writing that it is acting as a fiduciary 7within the meaning of this subsection7 with respect to the transaction4 7ii7 ,swap transactions ,the person is a counterparty1 service provider or representative thereof in connection with a swap or security-based swap1 as defined in section #a7;a7 of the ,commodity ,exchange ,act 7#g ,u4,s4,c4 #a7;a77 and section #c7;a7 of the ,securities ,exchange ,act 7#ae ,u4,s4,c4 #gh;c7a771 if3 the plan is represented by a fiduciary independent of the person2 the person is a swap clearing firm or other service provider in relation to a swap1 swap dealer1 security-based swap dealer1 major swap participant1 or major security-based swap participant2 the person 7if a swap dealer1 security-based swap dealer1 clearing firm1 or other similar service provider7 is not acting as an advisor to the plan 7within the meaning of section #ds7h7 of the ,commodity ,exchange ,act or section #ae;,f7h7 of the ,securities ,exchange ,act of #aicd7 in connection with the transaction2 and in advance of providing any recommendations with respect to the transaction1 the person obtains a written representation from the independent plan fiduciary1 that the fiduciary will not rely on recommendations provided by the person4 7iii7 ,employees ,in his or her capacity as an employee of any employer or employee organization sponsoring the plan or an affiliate of such plan sponsor1 the person provides the advice 7directly or indirectly7 to the plan1 plan fiduciary1 participant1 or beneficiary1 and he or she receives no fee or other compensation1 direct or indirect1 in connection with the advice beyond the employee's normal compensation for work performed for the employer or employee organization or an affiliate4 ,in such cases1 such an employee is not rendering investment advice for a fee or other compensation4 ,no inference is intended with respect to whether any other person shall be treated as rendering investment advice for a fee or other compensation4 7iv7 ,platform providers ,the person merely markets and makes available to a plan 7including its participants1 beneficiaries1 and fiduciaries71 without regard to the individualized needs of the plan1 its participants1 or beneficiaries1 securities or other property through a platform or similar mechanism 7which may consist of or include one or more annuity contracts7 from which a plan fiduciary may select or monitor investment alternatives1 including qualified default investment alternatives1 into which plan participants or beneficiaries may direct the investment of assets held in1 or contributed to1 their individual accounts1 if the person discloses in writing to the plan fiduciary that the person is not undertaking to provide impartial investment advice or to give advice as a fiduciary 7within the meaning of this subsection7 when establishing or maintaining the platform4 7v7 ,selection and monitoring assistance ,the person merely identifies investment alternatives that meet objective criteria specified by the plan fiduciary1 participant1 or beneficiary 7e4g41 stated parameters concerning expense ratios1 size of fund1 type of asset1 or credit quality72 or merely provides objective financial data and comparisons with independent benchmarks to the plan fiduciary1 participant or beneficiary4 7vi7 ,financial reports and valuations ,the person provides or reports valuation information1 but does not represent in writing that it is undertaking to provide such valuation information as a fiduciary 7within the meaning of this subsection74 7vii7 ,education ,the person provides the information-- 7,i7 described in ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a1 as in effect on ,january #a1 #bjae72 7,,ii7 described in ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a1 as in effect on ,january #a1 #bjae7 but for the fact that such education is provided to a plan or plan fiduciary2 7,,iii7 to participants and beneficiaries regarding the factors to consider in deciding whether to elect to receive a distribution from a plan or an individual retirement plan 7as defined in section #ggja7;a77#cg7 of the ,internal ,revenue ,code of #aihf7 and whether to roll over such distribution to a plan or an individual retirement plan 7as defined in section #ggja7;a77#cg7 of the ,internal ,revenue ,code of #aihf72 such education can include examples of different distribution and rollover alternatives1 so long as all material facts and assumptions on which the examples are based accompany the examples2 or 7,,iv7 any additional information treated as education by the ,secretary4 4 7#c7 ,exemption to preserve investor choice ,section #djh7;b7 of such ,act is amended by adding at the end thereof the following new paragraph3 7#ba7 with respect to transactions described in sections #djf7;a7 and #djf7;b71 any transaction or service in connection with the provision of investment advice described in section #c7ba77;,a77ii7 if the conditions under subparagraphs 7,a71 7,b71 and 7,c7 are satisfied3 7,a7 ,the provision of investment advice with respect to the transaction is subject to section #djd4 7,b7 ,the conditions of section #djh7;b77#b7 are satisfied when otherwise applicable4 7,c7 ,the investment advice may include recommendations that-- 7i7 are based on a limited range of products1 providers1 or offerings 7including recommendations that include1 or are limited only to1 proprietary products and providers71 where such limits are clearly disclosed to the advice recipient at any time prior to a transaction based on the recommendation1 or 7ii7 may result in variable compensation to the person 7or its affiliate71 such as transaction1 services1 placement1 or other types of compensation that differ by product or service1 where the receipt of such compensation is clearly disclosed to the advice recipient4 7,d7 ,for purposes of this paragraph1 clear disclosure of variable compensation means notification at any time prior to a transaction based on the person's recommendation1 in a manner calculated to be understood by the average individual1 of the following information1 which can be provided in one or more statements or documents3 7i7 ,the person 7or its affiliate7 may receive varying amounts of fees or other compensation or consideration with respect to recommended transactions4 7ii7 ,the amount of any fee or other compensation or consideration that is directly payable to the person 7or its affiliate7 from the plan or advice recipient with respect to recommended transactions1 provided that any such amount may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate or range of such compensation or consideration4 7iii7 ,a description of the types and ranges of indirect compensation that may be paid to the person 7or its affiliate7 by any third party in connection with the recommended transaction1 provided that any such ranges may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge or estimate of such compensation or consideration4 7iv7 ,upon the advice recipient's request prior to the transaction1 a disclosure of the specific amounts of compensation described in clauses 7ii7 and 7iii7 that the person will receive in connection with the particular transaction1 provided that any such amounts may be expressed in terms of a monetary amount1 formula1 percentage of assets1 per capita charge1 or estimate of such compensation or consideration4 ,the disclosure requirements described in this paragraph will not fail to be met solely because the person1 acting in good faith and with reasonable diligence1 makes an error or omission in disclosing the information specified in this subsection1 provided that the person discloses the correct information to the advice recipient as soon as practicable1 but not later than #cj days from the date on which the person knows of such error or omission4 4 7#d7 ,effective date ,the amendments made by this subsection shall apply on or after the #ast day of the #cfth month after the date of the enactment of this ,act1 but the exemption added under section #djh7;b77#ba7 of the ,employee ,retirement ,security ,act of #aigd shall be available immediately upon enactment of this ,act for persons meeting its conditions 7including the conditions of a best interest recommendation which may not be effective at such time74 ,the ,secretary of ,labor is prohibited from amending any rules or administrative positions promulgated under section #c7ba7 of ,,erisa or section #dige7;e77#c7 of the ,internal ,revenue ,code of #aihf 7including ,department of ,labor ,interpretive ,bulletin #if-a 7#bi ,c4,f4,r4 #beji4if-a7 and ,department of ,labor ,advisory ,opinion #bjje-bc;,a7 prior to the effective date of this ,act1 and no such rules or positions promulgated by the ,secretary of ,labor prior to the date of the enactment of this ,act1 but not yet effective or applicable1 may become effective prior to the effective date of this ,act4 7#e7 ,grandfathered transactions and services ,the amendments made to section #c7ba77;,a77ii7 by this ,act shall not apply to any services if such services-- 7,a7 were rendered prior to the effective date of this ,act1 7,b7 relate to a transaction entered into prior to the effective date of this ,act1 7,c7 were paid for prior to the effective date of this ,act1 or 7,d7 are not described in subparagraph 7,a71 7,b71 or 7,c7 but the person performing the services does not receive more compensation 7either as a fixed dollar amount or as a percentage of assets7 as a result of the services than the person is contractually eligible to receive for such services prior to the effective date of this ,act4 #d4 ,regulations ,the ,secretary of the ,treasury and the ,secretary of ,labor shall make rules1 in accordance with subchapter ,,ii of chapter #e of title #e1 ,united ,states ,code1 to carry out this ,act and the amendments made by this ,act4