478
tions prescribed by the Secretary, there are 
material modifications to a computer 
model, the requirements of this subpara-
graph are met only if a certification de-
scribed in clause (i) is obtained with re-
spect to the computer model as so modi-
fied. 
‘‘(iii) ELIGIBLE
INVESTMENT
EX-
PERT.—The term ‘eligible investment ex-
pert’ means any person—
‘‘(I) which meets such require-
ments as the Secretary may provide, 
and 
‘‘(II) does not bear any material 
affiliation or contractual relationship 
with any investment adviser or a re-
lated person thereof (or any employee, 
agent, or registered representative of 
the investment adviser or related per-
son). 
‘‘(D) 
EXCLUSIVITY
OF
RECOMMENDA-
TION.—The requirements of this subparagraph 
are met with respect to any investment advice 
program if—
479
‘‘(i) the only investment advice pro-
vided under the program is the advice gen-
erated by the computer model described in 
subparagraph (B), and 
‘‘(ii) any transaction described in sub-
section (b)(14)(B)(ii) occurs solely at the 
direction of the participant or beneficiary. 
Nothing in the preceding sentence shall pre-
clude the participant or beneficiary from re-
questing investment advice other than that de-
scribed in subparagraph (A), but only if such 
request has not been solicited by any person 
connected with carrying out the arrangement. 
‘‘(4) EXPRESS AUTHORIZATION BY SEPARATE 
FIDUCIARY.—The requirements of this paragraph 
are met with respect to an arrangement if the ar-
rangement is expressly authorized by a plan fidu-
ciary other than the person offering the investment 
advice program, any person providing investment op-
tions under the plan, or any affiliate of either. 
‘‘(5) ANNUAL AUDIT.—The requirements of this 
paragraph are met if an independent auditor, who 
has appropriate technical training or experience and 
proficiency and so represents in writing—
480
‘‘(A) conducts an annual audit of the ar-
rangement for compliance with the require-
ments of this subsection, and 
‘‘(B) following completion of the annual 
audit, issues a written report to the fiduciary 
who authorized use of the arrangement which 
presents its specific findings regarding compli-
ance of the arrangement with the requirements 
of this subsection. 
For purposes of this paragraph, an auditor is con-
sidered independent if it is not related to the person 
offering the arrangement to the plan and is not re-
lated to any person providing investment options 
under the plan. 
‘‘(6) DISCLOSURE.—The requirements of this 
paragraph are met if—
‘‘(A) the fiduciary adviser provides to a 
participant or a beneficiary before the initial 
provision of the investment advice with regard 
to any security or other property offered as an 
investment option, a written notification (which 
may consist of notification by means of elec-
tronic communication)—
‘‘(i) of the role of any party that has 
a material affiliation or contractual rela-
481
tionship with the financial adviser in the 
development of the investment advice pro-
gram and in the selection of investment 
options available under the plan, 
‘‘(ii) of the past performance and his-
torical rates of return of the investment 
options available under the plan, 
‘‘(iii) of all fees or other compensation 
relating to the advice that the fiduciary ad-
viser or any affiliate thereof is to receive 
(including compensation provided by any 
third party) in connection with the provi-
sion of the advice or in connection with the 
sale, acquisition, or holding of the security 
or other property, 
‘‘(iv) of any material affiliation or 
contractual relationship of the fiduciary 
adviser or affiliates thereof in the security 
or other property, 
‘‘(v) the manner, and under what cir-
cumstances, any participant or beneficiary 
information provided under the arrange-
ment will be used or disclosed, 
‘‘(vi) of the types of services provided 
by the fiduciary adviser in connection with
482
the provision of investment advice by the 
fiduciary adviser, 
‘‘(vii) that the adviser is acting as a 
fiduciary of the plan in connection with the 
provision of the advice, and 
‘‘(viii) that a recipient of the advice 
may separately arrange for the provision of 
advice by another adviser, that could have 
no material affiliation with and receive no 
fees or other compensation in connection 
with the security or other property, and 
‘‘(B) at all times during the provision of 
advisory services to the participant or bene-
ficiary, the fiduciary adviser—
‘‘(i) maintains the information de-
scribed in subparagraph (A) in accurate 
form and in the manner described in para-
graph (8), 
‘‘(ii) provides, without charge, accu-
rate information to the recipient of the ad-
vice no less frequently than annually, 
‘‘(iii) provides, without charge, accu-
rate information to the recipient of the ad-
vice upon request of the recipient, and