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Exemption From Certain Prohibited Transaction Restrictions Involving Phillips 66 Company (Phillips 66 or the Applicant) Located in Houston, TX Publication: Federal Register Agency: Employee Benefits Security Administration Byline: Timothy P. Hauser Date: 19 April 2022 Subject: American Government  , Labor, Petroleum
Topic: Phillips 66 |
[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23245-23249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08305]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
[Prohibited Transaction Exemption 2022-02; Exemption Application No. L-
12008]
Exemption From Certain Prohibited Transaction Restrictions
Involving Phillips 66 Company (Phillips 66 or the Applicant) Located in
Houston, TX
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Notice of exemption.
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SUMMARY: This document contains a notice of exemption issued by the
Department of Labor (the Department) from certain of the prohibited
transaction restrictions of the Employee Retirement Income Security Act
of 1974
[[Page 23246]]
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
Under the exemption, the Phillips 66 Group Life Insurance Plan (the
Plan) will enter into an insurance contract with an unrelated A-rated
insurance company (the Fronting Insurer) that will, in turn, enter into
a reinsurance contract with Spirit Insurance Company (Spirit), an
affiliate of Phillips 66 (the Reinsurance Arrangement). Under the
Reinsurance Arrangement, Spirit will reinsure the Plan's risks.
FOR FURTHER INFORMATION CONTACT: Mr. Joseph Brennan of the Department
at (202) 693-8456. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On September 20, 2021, the Department
published a notice of proposed exemption in the Federal Register at 86
FR 52210, permitting: (1) The reinsurance of risks; and (2) the receipt
of premiums by Spirit in connection with insurance contracts sold by
Zurich American Life Insurance Company (or any successor Fronting
Insurer) to provide Group Term Life and Accidental Death and
Dismemberment benefits to Plan participants.
This exemption provides only the relief specified in the text of
the exemption. It provides no relief from violations of any law other
the prohibited transaction provisions of ERISA expressly stated herein.
The Department makes the requisite findings under ERISA Section
408(a) based on adherence to all of the conditions of the exemption.
Accordingly, affected parties should be aware that the conditions
incorporated in this exemption are, taken as a whole, necessary for the
Department to grant the relief requested by the Applicant. Absent these
or similar conditions, the Department would not have granted this
exemption.
The Applicant requested an individual exemption pursuant to ERISA
Section 408(a) in accordance with the procedures set forth in 29 CFR
part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
Written Comments
In the proposed exemption, the Department invited all interested
persons to submit written comments and/or requests for a public hearing
with respect to the notice of proposed exemption. All comments and
requests for a hearing were due to the Department by November 5, 2021.
The Department received one written comment from the Applicant and
three calls from Plan participants seeking to better understand the
proposed exemption. The Department did not receive any requests for a
public hearing from any of the commenters.
Comments From the Applicant
I. Text of Exemptive Relief in Section II
Section II of the proposed exemption at 86 FR 52215 states: ``The
exemption would provide relief from the prohibited transactions
provisions of ERISA sections 406(a)(1)(A), (D), and 406(b)(1) and
(b)(3), and the excise tax imposed by Code section 4975(a) and (b) (due
to the operation of parallel prohibited transaction provisions
contained in Code section 4975(c)(1)(A), (D), (E), and (F)) with
respect to . . .''
The Applicant notes that it requested exemptive relief from ERISA
Sections 406(a)(1)(A), (C) and (D), and 406(b)(1), (2), and (3), along
with the parallel provisions of the Code.
The Applicant requests that the Department either directly state
that it does not need relief from ERISA Sections 406(a)(1)(C) and
406(b)(2) because the Reinsurance Arrangement would not violate those
sections, or broaden the exemption in Section II to include relief from
ERISA Sections 406(a)(1)(C) and 406(b)(2).
Department's Response: The Department intended to include exemptive
relief from ERISA Section 406(b)(2) in Section II of the proposed
exemption and has revised that section of the exemption accordingly.
However, the Department is not revising the proposed exemption to
include relief from ERISA Section 406(a)(1)(C). Such relief is
available to the Applicant to the extent it meets the requirements of
ERISA Section 408(b)(2), a statutory exemption that provides exemptive
relief from the prohibitions of ERISA Section 406(a) for, among other
things, contracting or making reasonable arrangements with a party in
interest for services necessary to operate the plan. Relief in the
statutory exemption is conditioned on certain requirements being met
that are not included in the conditions of this exemption. The
Department could not make a finding that the exemption would be in the
interest of the Plan if the Department provided the Applicant with
exemptive relief from ERISA Section 406(a)(1)(C) without requiring it
to meet the additional protections afforded by ERISA Section 408(b)(2)
and the requirements set forth in Department's regulations issued
thereunder (29 CFR 2550.408b-2).
Department's Note: Since the Plan is not subject to the provisions
of Title II of ERISA, the Department has revised the scope of relief in
the exemption by removing references to Code Sections 4975(c)(1)(A),
(D), (E) and (F).
II. Limitations on the Use of Participant-Related Data or Information
Section III(o) of the proposed exemption states that: ``Neither
Phillips 66 nor any related entity may use participant-related data or
information generated by or derived from the Reinsurance Arrangement in
a manner that benefits Phillips 66 or a related entity . . . .''
Preamble Section 5 of the proposed exemption states: ``The Department
developed this proposed exemption based on the Applicant's
representation that Phillips 66 is not expected to receive any benefit
from the Reinsurance Arrangement other than the net income increase
described herein, which must be verified annually by the Independent
Fiduciary.''
The Applicant states that, while it does not object to the
Department's concept of an express prohibition on misuse of participant
data, it is concerned that the specific language of the prohibition in
Section III(o) is too broad, and may prohibit activity the Department
did not intend to prohibit. The Applicant further states that the
Preamble description explaining Section III(o) is even broader than the
actual text of Section III(o), stating that ``. . . any participant-
related data . . .'' from the Reinsurance Arrangement cannot be used
``. . . in any manner . . .'' that ``benefits'' Phillips 66 or an
affiliate.
The Applicant reiterates that Phillips 66 intends to derive no
additional benefit from the Reinsurance Arrangement other than what it
has already disclosed, and states that the proposed exemption's broad
language could be read to prevent Phillips 66 from using participant
data and information in perfectly appropriate ways related to better
plan administration. For example, the Applicant asserts that claims
data may be used to improve claims processing and risk mitigation or to
determine whether and how to enhance benefits. The Applicant states
that these purposes would benefit participants but might also be seen
to benefit Phillips 66.
Accordingly, the Applicant requests the following modification to
Section III(o): ``Neither Phillips 66 nor any related entity may
benefit from the use of participant-related data or information
generated by or derived from the Reinsurance Arrangement for purposes
unrelated to Phillips 66's role as a plan sponsor and/or employer. . .
.'' The Applicant states that this language achieves the Department's
objectives without
[[Page 23247]]
unintentionally limiting the appropriate use of plan and participant
data.
Department's Response: The Department declines to make the
Applicant's requested revisions. The prohibition against the use of
participant-related data by Phillips 66 is intentionally expansive in
order to protect the interest of each affected Plan participant as
required by ERISA section 408(a). The Applicant has not demonstrated
that the Plan's participants and beneficiaries would, in all instances,
be adequately protected if Phillips 66 were to use plan-related data in
its role as a plan sponsor and/or employer. However, the Department has
revised Section III(o) to clarify that the condition does not preclude
Phillips 66 from using participant-related data solely to improve the
administration of the Plan, or to enhance the Plan's benefits. Phillips
66 may contact the Office of Exemption Determinations to the extent it
is unsure whether its potential future use of participant-related data
would violate this condition.
III. Technical Edits
The Department has revised the exemption consistent with two non-
substantive edits identified by the Applicant involving the numbering
and lettering of certain paragraphs and sub-paragraphs. For clarity,
the Department added a new definition, which defines the term ``Plan''
as the Phillips 66 Group Life Insurance Plan.
Accordingly, after considering the entire record developed in
connection with the Applicant's exemption application and comment
letter, the Department has determined to grant the exemption described
below.
The complete application file (L-12008) is available for public
inspection in the Public Disclosure Room of the Employee Benefits
Security Administration, Room N-1515, U.S. Department of Labor, 200
Constitution Avenue NW, Washington, DC 20210. For a more complete
statement of the facts and representations supporting the Department's
decision to grant this exemption, refer to the notice of proposed
exemption published on June 28, 2021, at 86 FR 34048.
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under ERISA Section 408(a) does not relieve a fiduciary or other party
in interest from certain requirements of other ERISA provisions,
including any prohibited transaction provisions to which the exemption
does not apply and the general fiduciary responsibility provisions of
ERISA Section 404, which, among other things, require a fiduciary to
discharge his or her duties respecting the plan solely in the interest
of the plan's participants and beneficiaries and in a prudent fashion
in accordance with ERISA Section 404(a)(1)(B).
(2) As required by ERISA Section 408(a), the Department hereby
finds that the exemption is: (a) Administratively feasible; (b) in the
interests of affected plans and of their participants and
beneficiaries; and (c) protective of the rights of participants and
beneficiaries of such plans.
(3) This exemption is supplemental to, and not in derogation of,
any other ERISA provisions, including statutory or administrative
exemptions and transitional rules. Furthermore, the fact that a
transaction is subject to an administrative or statutory exemption is
not dispositive of determining whether the transaction is in fact a
prohibited transaction.
(4) The availability of this exemption is subject to the express
condition that the material facts and representations contained in the
application accurately describe all material terms of the transactions
that are the subject of the exemption.
Accordingly, the following exemption is granted under the authority
of ERISA Section 408(a), and in accordance with the procedures set
forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27,
2011):
Exemption
Section I. Definitions
(a) An ``affiliate'' of Phillips 66 or Spirit includes: (1) Any
person or entity who controls Phillips 66 or Spirit or is controlled by
or under common control with Phillips 66 or Spirit; (2) any officer,
director, employee, relative, or partner with respect to Phillips 66 or
Spirit; and (3) any corporation or partnership of which the person in
(2) of this paragraph is an officer, director, partner, or employee;
(b) The term ``Benefit Enhancements'' means the following benefits,
unless adjusted in a manner that is consistent with the terms of this
exemption:
(i) The New Care Advocacy Service Benefit. Under this new benefit,
master's degree-level licensed social workers will proactively find
participants needing specialized assistance, including those diagnosed
with a terminal or chronic illness or who are managing a chronic
condition that has confined them to their home or a rehabilitation
center. Care Advocacy support service includes participant education
and assistance with respect to available community resources, and
assistance with scheduling and navigating doctor's appointments,
completing forms, and coordinating care with doctors and specialists.
(ii) The Enhanced Funeral Concierge Service Benefit. Under this
enhancement, the Plan would extend its existing Funeral Concierge
Service Benefit to provide coverage for Plan participants' family
members.
(iii) The Enhanced Accelerated Death Benefit. The Plan currently
provides an Accelerated Death Benefit for terminally-ill participants
with life expectancy of 24 months or less to receive an accelerated
life insurance benefit payment in advance of death of up to 50 percent
of the participant's total life insurance benefit amount. Under this
enhancement, the amount of the Accelerated Death Benefit will increase
to 80 percent of a participant's life insurance benefit.
(iv) The Enhanced Accidental Death & Dismemberment Benefit. The
Plan currently provides that if a participant suffers an injury
resulting in Hemiplegia, the Plan would pay such participant a benefit
equal to 66 percent of the participant's incurred losses from such
injury. Under this enhancement, the payment will increase to 75 percent
of the participant's incurred losses from such injury.
(v) The New Accidental Death & Dismemberment Benefit. Under the
current terms of the Plan, if a participant dies in an automobile
accident while seated in an air bag-protected position and such air bag
system deployed during the accident, the Plan would not pay any
additional benefit to the participant. Under this enhancement, the Plan
will provide a new benefit that pays ten percent of the principal sum,
up to $25,000, upon the occurrence of this event.
Further, under the current terms of the Plan, if a participant dies
100 miles away from his or her primary place of residence, the Plan
would not cover costs incurred to transport the participant's body from
the place of death to a mortuary near the participant's primary
residence. Under this enhancement, the Plan will provide a new benefit
of up to five percent of the AD&D policy amount, up to a maximum of
$5,000, for the cost associated with transporting the deceased
participant's body to a mortuary near his or her primary residence.
Finally, the Plan currently does not cover medical costs incurred
by a participant who suffers third degree burns. Under this
enhancement, the
[[Page 23248]]
Plan will enhance the AD&D benefit by paying a percentage of the
principal sum based on the body area(s) and the percentage of the body
surface affected.
(c) The term ``control'' means the power to exercise a controlling
influence over the management or policies of a person other than an
individual;
(d) The term ``Independent Fiduciary'' means a person who:
(1) Is not Phillips 66 or an affiliate of Phillips 66 or Spirit and
does not hold an ownership interest in Phillips 66, Spirit or
affiliates of Phillips 66 or Spirit;
(2) Was not a fiduciary with respect to the Plan before its
appointment to serve as the Independent Fiduciary;
(3) Has acknowledged in writing that:
(i) It is a fiduciary and has agreed not to participate in any
decision with respect to any transaction in which it has an interest
that might affect its best judgment as a fiduciary; and
(ii) Has appropriate technical training or experience to perform
the services contemplated by the exemption;
(4) For purposes of this definition, no organization or individual
may serve as Independent Fiduciary for any fiscal year if the gross
income received by such organization or individual from Phillips 66,
Spirit, or their affiliates for that fiscal year exceeds two percent of
such organization's or individual's gross income from all sources for
the prior fiscal year. This provision also applies to a partnership or
corporation of which such organization or individual is an officer,
director, or 10 percent or more partner or shareholder and includes as
gross income amounts received as compensation for services provided as
an independent fiduciary under any prohibited transaction exemption
granted by the Department;
(5) No organization or individual that is an Independent Fiduciary
and no partnership or corporation of which such organization or
individual is an officer, director or ten percent or more partner or
shareholder may acquire any property from, sell any property to, or
borrow any funds from Phillips 66, Spirit, or affiliates of Phillips 66
or Spirit while the individual serves as an Independent Fiduciary. This
prohibition would continue for a period of six months after either: (i)
The party ceases to be an Independent Fiduciary or (ii) the Independent
Fiduciary negotiates on behalf of the Plan during the period that such
organization or the individual serves as an Independent Fiduciary; and
(6) In the event a successor Independent Fiduciary is appointed to
represent the interests of the Plan with respect to the subject
transaction, no time should elapse between the resignation or
termination of the former Independent Fiduciary and the appointment of
the successor Independent Fiduciary;
(e) The term ``Plan'' means the Phillips 66 Group Life Insurance
Plan.
Section II. Covered Transactions
The restrictions of ERISA Sections 406(a)(1)(A) and (D), and
406(b)(1), (b)(2) and (b)(3), shall not apply to: (1) The reinsurance
of risks; and (2) the receipt of premiums by Spirit in connection with
insurance contracts sold by Zurich (or any successor Fronting Insurer)
to provide Group Term Life and Accidental Death and Dismemberment
benefits to Plan participants. In order to receive such relief, the
conditions in Section II must be met in conformance with the
definitions set forth in Section I.
(a) Phillips 66 must improve the Plan with the Benefit Enhancements
that are funded solely by Phillips 66 in compliance with (b) through
(e) below;
(b) For every dollar that Phillips 66 and its related parties
directly and indirectly benefit from the Captive Reinsurance
arrangement, Phillips 66 must pay at least $0.51 towards the Benefit
Enhancements, as may be adjusted under condition (e) below (the Primary
Benefit Test);
(c) The Independent Fiduciary must determine whether the Primary
Benefit Test has been met with respect to each successive five-year
period covered by the exemption. The Independent Fiduciary must report
its determinations as part of the Independent Fiduciary's next annual
report. For purposes of the initial five-year period, the Independent
Fiduciary may test only the costs and benefits that inure to Phillips
66 during years two through five of the initial five-year period.
(d)(1) If the Primary Benefit Test has not been met with respect to
a five-year period, Phillips 66 must reduce the participants' portion
of the Plan's premium in the next consecutive year by an amount that is
at least equal to the amount by which the prior five-year Primary
Benefit Test was not met, plus an additional payment of interest on the
shortfall, at the Code's federal underpayment rate set forth in Code
Section 6621(b). The premium reduction must benefit all plan
participants equally, be fully implemented during the course of the
year following the last year of the five-year period to which it
relates, and be verified by the Independent Fiduciary; (2) If the
captive reinsurance arrangement is terminated before the end of a five-
year period (a Shorter Term), and if the Primary Benefit Test has not
been met during the Shorter Term, Phillips 66 must reduce the
participants' portion of the Plan's premium in the following year by an
amount at least equal to the amount by which the Shorter Term Primary
Benefit Test was not met. The premium reduction must benefit all plan
participants equally, be fully implemented during the course of the
year following the last year of the Shorter Term, and be verified by
the Independent Fiduciary. Relief in this proposed exemption does not
extend to prohibited transactions described in this proposed exemption
that occur during the Shorter Term unless the requirements in this
Subsection (d)(2) have been met. The Independent Fiduciary must ensure
the premium reduction was properly implemented, notwithstanding that
the Reinsurance Arrangement has already been terminated;
(e) Phillips 66 may adjust the Benefit Enhancements to the Plan at
any time, if such adjustment is approved in advance by the Independent
Fiduciary after the Independent Fiduciary first determines that each
adjusted Benefit Enhancement is in the interest of the Plan's
participants and beneficiaries and available to them on an equal basis.
The cost incurred by Phillips 66 to fund the Benefit Enhancement may be
used to determine whether the Primary Benefit Test has been met. A
complete description of any new Benefit Enhancements and the
Independent Fiduciary's rationale and determinations regarding such
enhancements must be included in the next Independent Fiduciary report
submitted to the Department.
(f) Spirit must:
(1) Be a party in interest with respect to the Plan based on its
affiliation with Phillips 66 that is described in ERISA Section
3(14)(G); \1\
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\1\ Under ERISA Section 3(14)(G), a corporation is a ``party in
interest'' with respect to an employee benefit plan if 50 percent or
more of the combined voting power of all classes of the
corporation's stock entitled to vote, or the total value of shares
of all classes of stock of the corporation, is owned by an employer
any of whose employees are covered by the employee benefit plan.
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(2) Be licensed to sell insurance or conduct reinsurance operations
in the Vermont;
(3) Have obtained a Certificate of Authority from the insurance
commissioner of Vermont to transact business as a captive insurance
company. Such certificate must not have been revoked or suspended;
(4) Have undergone a financial examination (within the meaning of
the
[[Page 23249]]
law of its domiciliary State of Vermont) by the Insurance Commissioner
of Vermont within five years before the end of the year preceding the
year in which the reinsurance transaction occurred;
(5) Have undergone, and continue to undergo, an examination by an
independent certified public accountant for its last completed taxable
year immediately before the taxable year of the Reinsurance Arrangement
covered by this exemption; and
(6) Be licensed to conduct reinsurance transactions by a state
whose law requires that an actuarial review of reserves be conducted
annually by an independent firm of actuaries and reported to the
appropriate regulatory authority;
(g) In each year of coverage provided by a Fronting Insurer, the
formulae used by the Fronting Insurer to calculate premiums will be
similar to formulae used by other insurers providing comparable life
insurance coverage under similar programs. Furthermore, the premium
charges calculated in accordance with the formulae will be reasonable
and comparable to the premiums charged by the Fronting Insurer and its
competitors with the same or a better financial strength rating
providing the same coverage under comparable programs;
(h) The Plan must pay no commissions with respect to the sale of
such contracts or the Reinsurance Arrangement;
(i) The Fronting Insurer must have a financial strength rating of
``A'' or better from A.M. Best Company (A.M. Best) or an equivalent
rating from another rating agency;
(j) The Reinsurance Arrangement between Spirit and Zurich or any
successor Fronting Insurer must be indemnity insurance only. The
arrangement must not relieve a Fronting Insurer from any responsibility
or liability to the Plan, including liability that would result if
Spirit fails to meet any of its contractual obligations to Zurich or
any successor Fronting Insurer under the Reinsurance Arrangement;
(k) Phillips 66 will not offset or reduce any benefits provided to
Plan participants and beneficiaries in relation to its implementation
of the Benefit Enhancements;
(l) The Independent Fiduciary must:
(1) In compliance with the fiduciary obligations of prudence and
loyalty under ERISA Sections 404(a)(1)(A) and (B) (i) review the
Reinsurance Arrangement and the terms of the exemption; (ii) obtain and
review all current objective, reliable, third-party documentation
necessary to make the determinations required of the Independent
Fiduciary by the exemption; and (iii) confirm in writing that all of
the exemption's terms and conditions have been met (or, due to timing
requirements, can reasonably be expected to be met consistent with the
terms of this proposed exemption) and send this confirmation to the
Department's Office of Exemption Determinations at least 30 days before
Phillips 66 engages in the Reinsurance Arrangement. The confirmation
must include copies of each document relied on by the Independent
Fiduciary and the steps the Independent Fiduciary took to make its
confirmation;
(2) Monitor, enforce and ensure compliance with all conditions of
this exemption, in accordance with its obligations of prudence and
loyalty under ERISA Sections 404(a)(1)(A) and (B), including all
conditions and obligations imposed on any party dealing with the Plan,
throughout the period during which Spirit's assets are directly or
indirectly used in connection with a transaction covered by this
exemption.
(3) Report any instance of non-compliance immediately to the
Department's Office of Exemption Determinations;
(4) Take all appropriate actions to safeguard the interests of the
Plan;
(5) Review all contracts pertaining to the Reinsurance Arrangement,
and any renewals of such contracts, to determine whether the
requirements of this exemption and the terms of Benefit Enhancements
continue to be satisfied;
(6) Submit an annual Independent Fiduciary Report to the Department
certifying under penalty of perjury whether each term and condition of
the exemption is met over the applicable period. Each report must be:
(i) Completed within six months after the end of the twelve-month
period to which it relates (the first twelve-month period begins on the
effective date of the exemption grant); and (ii) submitted to the
Department within 60 days thereafter. The relevant report must include
all of the objective data necessary to demonstrate that the Primary
Benefit Test has been met;
(m) Neither Phillips 66 nor any related entity may use participant-
related data or information generated by or derived from the
Reinsurance Arrangement in a manner that benefits Phillips 66 or a
related entity. Notwithstanding the above, this condition does not
preclude Phillips 66 from using participant-related data solely to
improve the administration of the Plan or to enhance the Plan's
benefits;
(n) No amount of Spirit's reserves that are attributable to the
Plan participants' contributions may be transferred to Phillips 66 or a
related party;
(o) All the facts and representations set forth in the Summary of
Facts and Representation must be true and accurate; and
(p) No party related to this exemption request has or will,
indemnify the Independent Fiduciary, in whole or in part, for
negligence and/or for any violation of state or federal law that may be
attributable to the Independent Fiduciary in performing its duties
under the captive reinsurance arrangement. In addition, no contract or
instrument may purport to waive any liability under state or federal
law for any such violations.
Effective Date: This exemption will be in effect on the date that
this grant notice is published in the Federal Register.
Signed at Washington, DC.
Timothy P. Hauser,
Deputy Assistant Secretary for Program Operations, Employee Benefits
Security Administration, U.S. Department of Labor.
[FR Doc. 2022-08305 Filed 4-18-22; 8:45 am]
BILLING CODE 4510-29-P