368
‘‘(B) to make such currently accurate in-
formation available, upon request and without 
charge, to the recipient of the advice, or 
‘‘(C) in the event of a material change to 
the information described in clauses (i) through 
(iv) of paragraph (1)(A), to provide, without 
charge, such currently accurate information to 
the recipient of the advice at a time reasonably 
contemporaneous to the material change in in-
formation. 
‘‘(4) MAINTENANCE FOR 6 YEARS OF EVIDENCE 
OF COMPLIANCE.—A fiduciary adviser referred to in 
paragraph (1) who has provided advice referred to in 
such paragraph shall, for a period of not less than 
6 years after the provision of the advice, maintain 
any records necessary for determining whether the 
requirements of the preceding provisions of this sub-
section and of subsection (b)(14) have been met. A 
transaction prohibited under section 406 shall not be 
considered to have occurred solely because the 
records are lost or destroyed prior to the end of the 
6-year period due to circumstances beyond the con-
trol of the fiduciary adviser. 
‘‘(5) EXEMPTION FOR PLAN SPONSOR AND CER-
TAIN OTHER FIDUCIARIES.—
369
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), a plan sponsor or other person who 
is a fiduciary (other than a fiduciary adviser) 
shall not be treated as failing to meet the re-
quirements of this part solely by reason of the 
provision of investment advice referred to in 
section 3(21)(A)(ii) (or solely by reason of con-
tracting for or otherwise arranging for the pro-
vision of the advice), if—
‘‘(i) the advice is provided by a fidu-
ciary adviser pursuant to an arrangement 
between the plan sponsor or other fidu-
ciary and the fiduciary adviser for the pro-
vision by the fiduciary adviser of invest-
ment advice referred to in such section, 
‘‘(ii) the terms of the arrangement re-
quire compliance by the fiduciary adviser 
with the requirements of this subsection, 
and 
‘‘(iii) the terms of the arrangement 
include a written acknowledgment by the 
fiduciary adviser that the fiduciary adviser 
is a fiduciary of the plan with respect to 
the provision of the advice.
370
‘‘(B) CONTINUED DUTY OF PRUDENT SE-
LECTION OF ADVISER AND PERIODIC REVIEW.—
Nothing in subparagraph (A) shall be construed 
to exempt a plan sponsor or other person who 
is a fiduciary from any requirement of this part 
for the prudent selection and periodic review of 
a fiduciary adviser with whom the plan sponsor 
or other person enters into an arrangement for 
the provision of advice referred to in section 
3(21)(A)(ii). The plan sponsor or other person 
who is a fiduciary has no duty under this part 
to monitor the specific investment advice given 
by the fiduciary adviser to any particular recipi-
ent of the advice. 
‘‘(C) AVAILABILITY OF PLAN ASSETS FOR 
PAYMENT FOR ADVICE.—Nothing in this part 
shall be construed to preclude the use of plan 
assets to pay for reasonable expenses in pro-
viding investment advice referred to in section 
3(21)(A)(ii). 
‘‘(6) DEFINITIONS.—For purposes of this sub-
section and subsection (b)(14)—
‘‘(A) FIDUCIARY ADVISER.—The term ‘fi-
duciary adviser’ means, with respect to a plan, 
a person who is a fiduciary of the plan by rea-
371
son of the provision of investment advice by the 
person to the plan or to a participant or bene-
ficiary and who is—
‘‘(i) registered as an investment ad-
viser under the Investment Advisers Act of 
1940 (15 U.S.C. 80b–1 et seq.) or under 
the laws of the State in which the fiduciary 
maintains its principal office and place of 
business, 
‘‘(ii) a bank or similar financial insti-
tution referred to in section 408(b)(4) or a 
savings association (as defined in section 
3(b)(1) of the Federal Deposit Insurance 
Act (12 U.S.C. 1813(b)(1))), but only if 
the advice is provided through a trust de-
partment of the bank or similar financial 
institution or savings association which is 
subject to periodic examination and review 
by Federal or State banking authorities, 
‘‘(iii) an insurance company qualified 
to do business under the laws of a State, 
‘‘(iv) a person registered as a broker 
or dealer under the Securities Exchange 
Act of 1934 (15 U.S.C. 78a et seq.),
372
‘‘(v) an affiliate of a person described 
in any of clauses (i) through (iv), or 
‘‘(vi) an employee, agent, or registered 
representative of a person described in any 
of clauses (i) through (v) who satisfies the 
requirements 
of 
applicable 
insurance, 
banking, and securities laws relating to the 
provision of the advice. 
‘‘(B) AFFILIATE.—The term ‘affiliate’ of 
another entity means an affiliated person of the 
entity (as defined in section 2(a)(3) of the In-
vestment Company Act of 1940 (15 U.S.C. 
80a–2(a)(3))). 
‘‘(C) 
REGISTERED
REPRESENTATIVE.—
The term ‘registered representative’ of another 
entity means a person described in section 
3(a)(18) of the Securities Exchange Act of 
1934 (15 U.S.C. 78c(a)(18)) (substituting the 
entity for the broker or dealer referred to in 
such section) or a person described in section 
202(a)(17) of the Investment Advisers Act of 
1940 (15 U.S.C. 80b–2(a)(17)) (substituting 
the entity for the investment adviser referred to 
in such section).’’.