EXPRO?

[Guest CABatty]

Under the amended EXPRO program (PTE 96-62, as amended in 2002), an applicant can rely on a transaction that's received final authorization under the EXPRO program within the last 5 years. The EBSA site has a list of EXPRO exemptions with very brief descriptions of the transaction authorized (for example, "Sale by Plan of Common Stock").

Does anyone know whether these EXPRO exemptions that have received final authorization are printed in a bit more detail somewhere, or can I just pick one off this list that has a brief description that is substantially similar to my proposed transaction? Seems to me I'll need to provide more information on the authorized transaction under EXPRO than just the brief description provided on the DOL website, but I'm not finding the authorized transactions printed anywhere.

Thanks....

[Peter Gulia]

The practical effect of the EXPRO exemption is to treat recent exemptions as a persuasive “precedent” for what the Government ought to say yes to.

To rely on the EXPRO exemption one must, before executing the transaction, file with the DoL (EBSA) a written submission that includes “a comparison of the proposed transaction to at least two substantially similar transactions which were the subject of individual exemptions granted by the Department within a sixty[-]month period ending on the date of the filing of the written submission and an explanation as to why any differences should not be considered material for purposes of this exemption[.]”

To explain differences (or confirm the absence of any difference), one would need at least the text of the published exemption. Also, because the independent fiduciary must act to protect the plan and must enforce all conditions and obligations, he or she would want a full understanding of those details. (If I’m the attorney submitting an EXPRO application, I’d want the independent fiduciary to concur in the descriptions and explanations. Or if I’m agreeing to serve as the independent fiduciary I’d want to check the submission to feel comfortable that it doesn’t unfairly describe my scope.)

Although there are also commercial publications, the true source of an exemption is its publication in the Federal Register. A reader can find some individual exemptions that could be a “precedent” for EXPROing at http://www.dol.gov/ebsa/regs/ind_exemptionsmain.html. But rendering the right advice often means research using the full Federal Register (electronic or print) and secondary sources.