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Federal Register / Vol. 87, No. 143 / Wednesday, July 27, 2022 / Proposed Rules
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embezzlement, fraudulent conversion, or misappropriation of funds or securities; conspiracy or attempt to commit any such crimes or a crime in which any of the foregoing crimes is an element; or a crime identified in ERISA
section 411; or 2 is convicted by a foreign court of competent jurisdiction as a result of a crime, however denominated by the laws of the relevant foreign government, that is substantially equivalent to an offense described in 1, above.
s Prohibited Misconduct means:
1 any conduct that forms the basis for a non-prosecution or deferred prosecution agreement that, if successfully prosecuted, would have constituted a crime described in Section VIr;
2 any conduct that forms the basis for an agreement, however denominated by the laws of the relevant foreign government, that is substantially equivalent to a non-prosecution agreement or deferred prosecution agreement described in 1;
3 engaging in a systematic pattern or practice of violating the conditions of this exemption in connection with otherwise non-exempt prohibited transactions;
4 intentionally violating the conditions of this exemption in connection with otherwise non-exempt prohibited transactions; or 5 providing materially misleading information to the Department in connection with the conditions of the exemption.
t The QPAM maintains the records necessary to enable the persons described in subsection t2 below to determine whether the conditions of
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this exemption have been met with respect to a transaction for a period of six years from the date of the transaction in a manner that is reasonably accessible for examination. No prohibited transaction will be considered to have occurred solely on the basis of the unavailability of such records if they are lost or destroyed due to circumstances beyond the control of the QPAM before the end of the six-year period.
1 No party, other than the QPAM
responsible for complying with this Section VIr, will be subject to the civil penalty that may be assessed under ERISA section 502i or the excise tax imposed by Code section 4975a and b, if applicable, if the records are not maintained or available for examination as required by this Section VIt below.
2 Except as provided in subsection 3 or precluded by 12 U.S.C. 484
regarding limitations on visitorial powers for national banks, and notwithstanding any provisions of ERISA section 504a2 and b, the records are reasonably available at their customary location during normal business hours for examination by:
A Any authorized employee of the Department or the Internal Revenue Service or another state or federal regulator, B Any fiduciary of a Plan invested in an Investment Fund managed by the QPAM, C Any contributing employer and any employee organization whose members are covered by a Plan invested in an Investment Fund managed by the QPAM, or
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D Any participant or beneficiary of a Plan invested in an Investment Fund managed by the QPAM.
3 None of the persons described in subsection 2B through D above are authorized to examine records regarding an Investment Fund that they are not invested in, privileged trade secrets or privileged commercial or financial information of the QPAM, or information identifying other individuals.
4 Should the QPAM refuse to disclose information to a person described in subsection 2A through D above on the basis that the information is exempt from disclosure, the QPAM must provide a written notice advising the requestor of the reasons for the refusal and that the Department may request such information by the close of the thirtieth 30th day following the request.
5 A QPAMs failure to maintain the records necessary to determine whether the conditions of this exemption have been met will result in the loss of the relief provided under this exemption only for the transaction or transactions for which such records are missing or have not been maintained. Such failure does not affect the relief for other transactions if the QPAM maintains required records for such transactions in compliance with this Section VIt.
Signed at Washington, DC, this 18th day of July, 2022.
Ali Khawar, Acting Assistant Secretary, Employee Benefits Security Administration, U.S. Department of Labor.
FR Doc. 202215702 Filed 72622; 8:45 am BILLING CODE 451029P

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