Application of FAB 2004-1 safe harbor to Employer who's also the bank offering the HSA

[Übernerd]

Assuming the other conditions of the safe harbor are met, I'm looking for guidance on the "make or influence investment decisions" and "compensation" elements, where the employer is a bank that wants to offer its HSA custodial package to its own employees. Employer would waive its usual transaction and account-maintenance fees, but would receive some indirect income from the accounts (i.e., interchange revenue from debit card use, sweep fees from the program's money market account, and 12b-1 fees from non-proprietary mutual funds and investment management fees from proprietary mutual funds. There is simply no way to "turn off" some of these indirect revenue streams; does that mean that any HSA program the bank offers its employees is unavoidably an ERISA plan?

I've seen a little informal chit-chat advising banks to offer HSAs to their own employees only on the same terms they would give a third party--I'm not sure I understand that. In this case, that would mean keeping the "consideration" the bank is willing to forego, which seems like a direct contravention of the FAB.