Securities and Exchange Commission § 247.760
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Securities and Exchange Commission § 247.760 § 247.760 Exemption from definition of dian other than an employee benefit ‘‘broker’’ for banks accepting orders plan account or an individual retire- to effect transactions in securities ment account or similar account if: from or on behalf of custody ac- (1) Accommodation. The bank accepts counts. orders to effect transactions in securi- (a) Employee benefit plan accounts and ties for the account only as an accom- individual retirement accounts or similar modation to the customer; accounts. A bank is exempt from the (2) Employee compensation restriction definition of the term ‘‘broker’’ under and additional conditions. The bank section 3(a)(4) of the Act (15 U.S.C. complies with the employee compensa- 78c(a)(4)) to the extent that, as part of tion restrictions in paragraph (c) of its customary banking activities, the this section and the other conditions in bank accepts orders to effect trans- paragraph (d) of this section; actions in securities for an employee (3) Bank fees. Any fee charged or re- benefit plan account or an individual ceived by the bank for effecting a secu- retirement account or similar account rities transaction for the account does for which the bank acts as a custodian not vary based on: if: (i) Whether the bank accepted the (1) Employee compensation restriction order for the transaction; or and additional conditions. The bank (ii) The quantity or price of the secu- complies with the employee compensa- rities to be bought or sold; tion restrictions in paragraph (c) of (4) Advertisements. Advertisements by this section and the other conditions in or on behalf of the bank do not state paragraph (d) of this section; that the bank accepts orders for securi- (2) Advertisements. Advertisements by ties transactions for the account; or on behalf of the bank do not: (5) Sales literature. Sales literature (i) Advertise that the bank accepts issued by or on behalf of the bank: orders for securities transactions for (i) Does not state that the bank ac- employee benefit plan accounts or indi- cepts orders for securities transactions vidual retirement accounts or similar for the account except as part of de- accounts, except as part of advertising scribing the other custodial or safe- the other custodial or safekeeping serv- keeping services the bank provides to ices the bank provides to these ac- the account; and counts; or (ii) Does not describe the securities (ii) Advertise that such accounts are order-taking services provided to the securities brokerage accounts or that account more prominently than the the bank’s safekeeping and custody other aspects of the custody or safe- services substitute for a securities bro- keeping services provided by the bank kerage account; and to the account; and (3) Advertisements and sales literature (6) Investment advice and recommenda- for individual retirement or similar ac- tions. The bank does not provide invest- counts. Advertisements and sales lit- ment advice or research concerning se- erature issued by or on behalf of the curities to the account, make rec- bank do not describe the securities ommendations to the account con- order-taking services provided by the cerning securities or otherwise solicit bank to individual retirement accounts securities transactions from the ac- or similar accounts more prominently count; provided, however, that nothing than the other aspects of the custody in this paragraph (b)(6) shall prevent a or safekeeping services provided by the bank from: bank to these accounts. (i) Publishing, using or disseminating (b) Accommodation trades for other cus- advertisements and sales literature in todial accounts. A bank is exempt from accordance with paragraphs (b)(4) and the definition of the term ‘‘broker’’ (b)(5) of this section; and under section 3(a)(4) of the Act (15 (ii) Responding to customer inquiries U.S.C. 78c(a)(4)) to the extent that, as regarding the bank’s safekeeping and part of its customary banking activi- custody services by providing: ties, the bank accepts orders to effect (A) Advertisements or sales lit- transactions in securities for an ac- erature consistent with the provisions count for which the bank acts as custo- of paragraphs (b)(4) and (b)(5) of this 711 VerDate Mar<15>2010 12:19 Jun 06, 2013 Jkt 229058 PO 00000 Frm 00721 Fmt 8010 Sfmt 8010 Q:\17\17V3.TXT ofr150 PsN: PC150 § 247.760 17 CFR Ch. II (4–1–13 Edition) section describing the safekeeping, cus- dling any order for a securities trans- tody and related services that the bank action for the account; and offers; (3) Complies with section (B) A prospectus prepared by a reg- 3(a)(4)(B)(viii)(II) of the Act (15 U.S.C. istered investment company, or sales 78c(a)(4)(B)(viii)(II)) regarding carrying literature prepared by a registered in- broker activities. vestment company or by the broker or (e) Non-fiduciary administrators and dealer that is the principal underwriter recordkeepers. A bank that acts as a of the registered investment company non-fiduciary and non-custodial admin- pertaining to the registered investment istrator or recordkeeper for an em- company’s products; ployee benefit plan account for which (C) Information based on the mate- another bank acts as custodian may rials described in paragraphs rely on the exemption provided in this (b)(6)(ii)(A) and (B) of this section; or section if: (iii) Responding to inquiries regard- (1) Both the custodian bank and the ing the bank’s safekeeping, custody or administrator or recordkeeper bank other services, such as inquiries con- comply with paragraphs (a), (c) and (d) cerning the customer’s account or the of this section; and availability of sweep or other services, (2) The administrator or record- so long as the bank does not provide in- keeper bank does not execute a cross- vestment advice or research con- trade with or for the employee benefit cerning securities to the account or plan account or net orders for securi- make a recommendation to the ac- ties for the employee benefit plan ac- count concerning securities. count, other than: (c) Employee compensation restriction. (i) Crossing or netting orders for A bank may accept orders pursuant to shares of open-end investment compa- this section for a securities transaction nies not traded on an exchange, or for an account described in paragraph (ii) Crossing orders between or net- (a) or (b) of this section only if no bank ting orders for accounts of the custo- employee receives compensation, in- dian bank that contracted with the ad- cluding a fee paid pursuant to a plan ministrator or recordkeeper bank for under 17 CFR 270.12b–1, from the bank, services. the executing broker or dealer, or any (f) Subcustodians. A bank that acts as other person that is based on whether a a subcustodian for an account for securities transaction is executed for which another bank acts as custodian the account or that is based on the may rely on the exemptions provided quantity, price, or identity of securi- in this section if: ties purchased or sold by such account, (1) For employee benefit plan ac- provided that nothing in this para- counts and individual retirement ac- graph shall prohibit a bank employee counts or similar accounts, both the from receiving compensation that custodian bank and the subcustodian would not be considered incentive com- bank meet the requirements of para- pensation under § 247.700(b)(1) as if a re- graphs (a), (c) and (d) of this section; ferral had been made by the bank em- (2) For other custodial accounts, both ployee, or any compensation described the custodian bank and the subcusto- in § 247.700(b)(2). dian bank meet the requirements of (d) Other conditions. A bank may ac- paragraphs (b), (c) and (d) of this sec- cept orders for a securities transaction tion; and for an account for which the bank acts (3) The subcustodian bank does not as a custodian under this section only execute a cross-trade with or for the if the bank: account or net orders for securities for (1) Does not act in a trustee or fidu- the account, other than: ciary capacity (as defined in section (i) Crossing or netting orders for 3(a)(4)(D) of the Act (15 U.S.C. shares of open-end investment compa- 78c(a)(4)(D)) with respect to the ac- nies not traded on an exchange, or count, other than as a directed trustee; (ii) Crossing orders between or net- (2) Complies with section 3(a)(4)(C) of ting orders for accounts of the custo- the Act (15 U.S.C. 78c(a)(4)(C)) in han- dian bank. 712 VerDate Mar<15>2010 12:19 Jun 06, 2013 Jkt 229058 PO 00000 Frm 00722 Fmt 8010 Sfmt 8010 Q:\17\17V3.TXT ofr150 PsN: PC150 Securities and Exchange Commission § 247.771 (g) Evasions. In considering whether a tion Plan described in section 501(c)(9) bank meets the terms of this section, of the Internal Revenue Code (26 U.S.C. both the form and substance of the rel- 501(c)(9)), a non-qualified deferred com- evant account(s), transaction(s) and ac- pensation plan (including a rabbi or tivities (including advertising activi- secular trust), a supplemental or mir- ties) of the bank will be considered in ror plan, and a supplemental unem- order to prevent evasions of the re- ployment benefit plan. quirements of this section. (5) Individual retirement account or (h) Definitions. When used in this sec- similar account means an individual re- tion: tirement account as defined in section (1) Account for which the bank acts as 408 of the Internal Revenue Code (26 a custodian means an account that is: U.S.C.