VIA ELECTRONIC MAIL April 13, 2007 Office of Exemption Determinations
Employee Benefits Security Administration
Room N-5700
U.S. Department of Labor
Washington, DC 20210 Attention: Cross-Trading Policies and Procedures Interim Final Rule Ladies and Gentlemen: The Investment Company Institute1 appreciates the opportunity to comment on behalf of its members on the Department's interim final rule on cross trading policies and procedures, adopted under the statutory exemption for cross trading enacted in the Pension Protection Act (PPA). The Institute's membership has a substantial interest in this exemption. Many Institute members manage separate accounts or collective funds that hold "plan assets" subject to ERISA fiduciary responsibility rules and that could benefit from the cross trading exemption. As the Institute has consistently described, investment management clients can obtain significant benefits from cross trading by saving commissions and other transaction costs. These benefits accrue to both the selling and purchasing accounts, since no broker is involved and the investment manager derives no separate fee or other benefit from a cross trade. In adding the cross trades exemption to ERISA, Congress recognized both that cross trades can be beneficial and that cross trading can be implemented in a manner that protects plans.2 Congress included in the ERISA exemption relevant conditions of the SEC rule governing cross trades by mutual funds, which has proved effective in governing mutual fund cross trades for 40 years. We commend the Department for issuing prompt interim guidance on the cross trading exemption. The Department's rule will allow investment managers to extend their existing cross trading programs to ERISA plans that meet the requirements of the statutory exemption. We are pleased that in describing the requirements for an investment manager's policies and procedures on cross trading, the Department has followed, in many respects, the conditions of Rule 17a-7 under the Investment Company Act of 1940. We believe certain aspects of the interim final rule warrant clarification or additional guidance. First, we urge the Department to clarify that the exemption applies to cross trading between accounts managed by affiliated investment managers and to pooled funds where at least one participating plan has assets of at least $100 million. Second, we make several suggestions to streamline the required policies and procedures and enhance their compatibility with Rule 17a-7. We also request that the Department revise the interim rule to permit annual determinations on whether a plan meets the $100 million asset requirement. Finally, we recommend that the Department use its existing exemptive authority to go beyond the statutory exemption and permit plans of all sizes to enjoy the benefits of cross trading. Table of Contents
 I. The Department Should Clarify the Scope of the Exemption
II. The Department Should Clarify Certain Content Requirements
III. The Department Should Provide Administrative Exemptive Relief for Smaller Plans
I. The Department Should Clarify the Scope of the Exemption
We ask the Department to clarify that the exemption covers cross trades between affiliated managers and that the exemption is available to commingled funds that are subject to ERISA, where at least one participating plan satisfies the asset requirement. A. Cross Trading with Accounts of Affiliated Advisers
The exemption in ERISA section 408(b)(19) covers transactions between a plan and any other account "managed by the same investment manager." Many cross trading programs cover trades between accounts of affiliated managers. For example, a financial institution may have one investment adviser subsidiary that manages mutual funds, another that manages separate account investments, and possibly also a trust company subsidiary that manages collective investment funds. To maximize the opportunities for clients to benefit from cross trading, the firm would want to consider all of its subsidiaries' managed accounts for this purpose. There is no apparent reason for limiting the scope of the exemption to accounts of a single investment manager, as opposed to covering both that manager and its affiliates. Therefore, the Institute urges the Department to clarify that the term "same investment manager" as used in section 408(b)(19) covers both a single investment manager as well as affiliated investment managers, with "affiliate" defined to cover an entity controlling, controlled by, or under common control with the investment manager. B. Common or Collective Trusts
Another way to improve the utility of the exemption would be to clarify that the exemption is available to a common or collective trust or other pooled investment vehicle where at least one participating plan has assets of at least $100 million. This interpretation should extend to master-feeder trust arrangements, where the only investors in the "master" collective trust (the entity that would engage in cross trades) are other collective trusts. So long as one of the participating "feeder" trusts includes a plan with $100 million, the entire master trust should be permitted to cross trade with the consent of a fiduciary of the $100 million plan. Otherwise, it is unclear whether a plan that by itself meets the asset requirement can take advantage of cross trading if it participates in a collective trust or master-feeder arrangement. It would serve no purpose to restrict the ability of common or collective trusts to cross trade. The other participating plans would benefit from cross trading within the collective fund. Furthermore, while acting to protect its own interests, the qualifying plan will protect the other participants in the fund. II. The Department Should Clarify Certain Content Requirements
A. Scope of Policies and Procedures Requirements
We make two suggestions with respect to the scope of the policies and procedures as outlined in subsection (b)(3) of the interim final rule. First, subsection (b)(3)(i) requires that the manager's policies and procedures, among other things, "be fair and equitable to all accounts participating in its cross-trading program." The meaning of this standard is somewhat unclear, but the goal should be for accounts to be treated fairly and equitably in the resulting transactions. That is, the fairness and equity of the policies and procedures should be judged based not on their terms, but on the results they achieve in transactions carried out pursuant to those terms. Policies and procedures should be reasonably designed to achieve such results. To give more precise meaning to this standard, subsection (i) should be reworded as follows (strike-through text indicating deletions and italicized text indicating insertions): (i) An investment manager's policies and procedures must be reasonably designed (1) to ensure that transactions entered into pursuant to the policies and procedures are fair and equitable to all accounts participating in its cross-trading program and (2) reasonably designed to ensure compliance with the requirements of section 408(b)(19)(H) of the Act and the requirements of this regulation. Second, we ask the Department to clarify that non-compliance with the written policies and procedures required to be adopted under the interim final rule, in itself, would not mean that the exemption ceases to be available, either for a specific transaction or for all the cross trades of the particular manager. This interpretation is consistent with the statutory language requiring that the annual compliance report describe any specific instances of non-compliance with the manager's written policies and procedures (see section 408(b)(19)(I)). There is no indication that Congress intended that non-compliance with the policies and procedures, in itself, would cause the exemption not to be available for cross trades by a particular manager, so long as the non-compliance does not result in the failure to meet one of the conditions in subsections (A) through (G) of the statute. The statute contemplates, in subsection (I), a process by which an individual will monitor compliance with the policies and procedures, and will describe any specific instances of non-compliance in a report that is furnished to the authorizing plan fiduciary. The authorizing fiduciary can then determine, based on the information in the report, whether any action is warranted based on the described instance of non-compliance, including termination of the authorization. B. Requirement to Describe How Manager Will Mitigate Conflicts
Under the interim final rule, policies and procedures are required to contain: (D) A description of how the investment manager will mitigate any potentially conflicting division of loyalties and responsibilities to the parties involved in any cross-trade transaction. We believe this requirement is unnecessary because conflicts of interest are adequately addressed by other provisions in the regulation.3 All the other required elements under the policies and procedures are designed to serve this same purpose. The principal protections for accounts participating in the cross trading program are the requirements that (1) the transaction be beneficial to both parties to the cross trade;4 (2) the cross trade be effected at the independent current market price of the security;5 and (3) the cross trading opportunities be allocated in an objective and equitable manner.6 These enumerated protections address any potentially conflicting loyalties and responsibilities, by assuring that the underlying transaction is beneficial to both parties and that the trade is effected in a fair and equitable manner. Since the requirement in subparagraph (D) overlaps with other conditions in the exemption and interim final rule and does not provide any additional protection, it should be deleted to avoid confusion. C. Role of Compliance Officer
The interim final rule describes the role of the compliance officer as being to determine whether the manager's cross trading program complies with the policies and procedures required by section 408(b)(19)(H), without describing the specific steps that the compliance officer should take. We support this approach because it allows an investment manager to integrate policies and procedures on cross trading for ERISA accounts with its over-all compliance policies and procedures. In this regard, we request that the Department clarify that the compliance officer of an SEC-registered investment adviser may operate in a manner consistent with the SEC rules regarding the role of a chief compliance officer under the Investment Advisers Act of 1940 and the Investment Company Act of 1940. These rules permit a chief compliance officer to rely on others (including independent third parties such as an independent certified public accounting firm) to carry out the review of the adequacy and effectiveness of implementation of policies and procedures, and do not require the review to cover every transaction. The compliance review under section 408(b)(19)(I) should be under the oversight of the designated compliance officer but it should be possible for the compliance officer to delegate responsibility for specific segments of the review. The compliance officer also should be able to focus on the overall adequacy and effectiveness of the implementation of the policies and procedures, including reviewing a sampling of transactions rather than reviewing each individual transaction. This would be consistent with the statutory requirement, which describes the role of the designated compliance officer as "periodically reviewing" the purchases and sales effected under the procedures. D. Verification of $100 Million Asset Requirement
Section 408(b)(19)(E) of ERISA requires that any plan (or master trust containing the assets of plans maintained by employers in the same controlled group) participating in a cross trade transaction have assets of at least $100 million. Subsection (b)(3)(i)(C) of the interim rule states that a plan or master trust will meet the minimum asset size requirement if it meets the requirement upon its initial participation in the cross trading program and on a quarterly basis thereafter. While it is helpful that the interim rule provides guidance on how frequently a manager must monitor plan size, we believe annual verification would be more suitable. Many managers only obtain updated information regarding their customers on an annual basis. It is not uncommon for an investment manager to manage only a portion of a plan's assets, in which case, the manager would not have continuous access to information on the client plan's overall asset level. Therefore, we urge the Department to permit annual verification of a plan's satisfaction of the asset requirement. III. The Department Should Provide Administrative Exemptive Relief for Smaller Plans
Although the exemption for cross trading enacted by Congress is long overdue, the statutory exemption is too limited in one critical respect. In addition to the disclosure, consent, pricing, and reporting provisions, the PPA exemption is limited to plans with assets of at least $100 million - a standard met by only 3.9 percent of defined benefit plans.7 In the Institute's view, this "belt and suspenders" approach is not necessary to protect plans and their participants and denies the benefits of cross trading to far too many plans. The disclosure, consent, pricing, compliance and reporting provisions of the PPA exemption are robust and the Department should rely on these conditions to fashion an administrative prohibitive transaction exemption for plans with assets below $100 million. Investment managers enter into cross trades to benefit clients. Cross trading can reduce transaction costs for clients, implement orders more efficiently, and minimize the market impact of large orders. In a cross trade, the client avoids various charges and fees associated with purchasing or selling a security on the market. Both sides of a cross trade save on commissions or benefit from lower bid/ask spreads. These cost-savings are recognized in the mutual fund industry, where mutual funds have been able to engage in cross trades since 1966.8 Reduced transaction costs will result in more money actually being invested (and generating earnings) for plans and their participants. Cross trading also eliminates duplicative efforts (e.g., selling securities piecemeal for one account while simultaneously buying similar securities for another account) and results in faster implementation of orders.9 Moreover, when a plan's trade involves a large amount of securities, an open market purchase or sale can disproportionately affect the market price of the security to the disadvantage of the plan. A large buy or sell order, by itself, can move the price of a security. Cross trades have little or no market impact and result in a fair price for both sides of the transaction, under the independent pricing requirement. Plans below the $100 million limit may have less bargaining power to obtain lower commissions from brokers and potentially could benefit more from cross trading relative to larger plans. Particularly with respect to fixed income securities, smaller trades can be less efficient and have larger bid/ask spreads. Cross trading in these circumstances allows managers to achieve much lower spreads and best execution for their clients. Under section 408(a) of ERISA, the Department has clear authority to grant class exemptions from the prohibited transaction restrictions imposed by section 406. We urge the Department to exercise this authority to provide cross trading relief for plans with assets of less than $100 million. Attached is a statement submitted by the Institute to the ERISA Advisory Council in support of such an exemption. The statement describes various protections that will safeguard any plan that authorizes a cross trading program. We are pleased that the Department has published timely guidance on cross trading policies and procedures and we support the general approach taken in the interim regulation. The Institute has offered several suggestions for clarifying the scope of the statutory exemption and streamlining the information that must be included in the policies and procedures. We also strongly urge the Department to consider using its existing exemptive authority to allow smaller plans to benefit from cross trading. We hope the Department will give serious consideration to these recommendations. The Institute would welcome the opportunity to provide further assistance to the Department in developing the final regulation and a class exemption for smaller plans. Please contact me at 202/326-5826 with any comments or questions. Thank you for your consideration. Sincerely, Mary S. Podesta
Senior Counsel-Pension Regulation Attachment
ENDNOTES1 Institute members include 8,821 open-end investment companies (mutual funds), 664 closed-end investment companies, 385 exchange-traded funds, and four sponsors of unit investment trusts. Mutual fund members of the Institute have total assets of approximately $10.481 trillion (representing 98 percent of all assets of U.S. mutual funds); these funds serve approximately 93.9 million shareholders in more than 53.8 million households. 2 Cross trading involves two separate decisions that occur in separate parts of an organization - the portfolio management decision to purchase or sell a security and the decision on how to execute the transaction. Portfolio management decisions are made based on what is in the interests of the particular accounts, driven by the investment strategies for the accounts and/or the cash flows in and out of the accounts, and are not influenced by whether there may be cross trading opportunities in buying or selling a particular security. The trading decisions relating to cross trading are largely automatic, based on matching buy and sell orders received from portfolio managers on particular securities. 3 Also, as discussed in footnote 2 of this letter and the attached ERISA Advisory Council testimony, there are extensive existing safeguards that protect investment management clients from conflicts of interest. 4 §2550.408b-19(b)(3)(i)(A) 5 §2550.408b-19(b)(3)(i)(B) 6 §2550.408b-19(b)(3)(i)(E) 7 Private Pension Plan Bulletin, Abstract of 2001 Form 5500 Annual Reports, U.S. Dept. of Labor, EBSA, February 2006. 8 In a recent year, one mutual fund organization has reported to us savings of approximately $1.2 million in transaction costs on $500 million in cross trading of equities. Another large mutual fund organization has informed us of estimates that its funds save between $75 million and $100 million annually in commission costs through cross trading. 9 Of course, if a cross trade opportunity does not exist at the time a manager needs to buy or sell a security, the trade will be executed on the market.
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