218.760—Exemption from definition of “broker” for banks accepting orders to effect transactions in securities from or on behalf of custody accounts.
(a) Employee benefit plan accounts and individual retirement accounts or similar accounts.
A bank is exempt from the definition of the term “broker” under section 3(a)(4) of the Act (15 U.S.C. 78c(a)(4)) to the extent that, as part of its customary banking activities, the bank accepts orders to effect transactions in securities for an employee benefit plan account or an individual retirement account or similar account for which the bank acts as a custodian if:
(1) Employee compensation restriction and additional conditions.
The bank complies with the employee compensation restrictions in paragraph (c) of this section and the other conditions in paragraph (d) of this section ;
(i)
Advertise that the bank accepts orders for securities transactions for employee benefit plan accounts or individual retirement accounts or similar accounts, except as part of advertising the other custodial or safekeeping services the bank provides to these accounts; or
(ii)
Advertise that such accounts are securities brokerage accounts or that the bank's safekeeping and custody services substitute for a securities brokerage account; and
(3) Advertisements and sales literature for individual retirement or similar accounts.
Advertisements and sales literature issued by or on behalf of the bank do not describe the securities order-taking services provided by the bank to individual retirement accounts or similar accounts more prominently than the other aspects of the custody or safekeeping services provided by the bank to these accounts.
(b) Accommodation trades for other custodial accounts.
A bank is exempt from the definition of the term “broker” under section 3(a)(4) of the Act (15 U.S.C. 78c(a)(4)) to the extent that, as part of its customary banking activities, the bank accepts orders to effect transactions in securities for an account for which the bank acts as custodian other than an employee benefit plan account or an individual retirement account or similar account if:
(1) Accommodation.
The bank accepts orders to effect transactions in securities for the account only as an accommodation to the customer;
(2) Employee compensation restriction and additional conditions.
The bank complies with the employee compensation restrictions in paragraph (c) of this section and the other conditions in paragraph (d) of this section;
(3) Bank fees.
Any fee charged or received by the bank for effecting a securities transaction for the account does not vary based on:
(4) Advertisements.
Advertisements by or on behalf of the bank do not state that the bank accepts orders for securities transactions for the account;
(i)
Does not state that the bank accepts orders for securities transactions for the account except as part of describing the other custodial or safekeeping services the bank provides to the account; and
(ii)
Does not describe the securities order-taking services provided to the account more prominently than the other aspects of the custody or safekeeping services provided by the bank to the account; and
(6) Investment advice and recommendations.
The bank does not provide investment advice or research concerning securities to the account, make recommendations to the account concerning securities or otherwise solicit securities transactions from the account; provided, however, that nothing in this paragraph (b)(6) shall prevent a bank from:
(i)
Publishing, using or disseminating advertisements and sales literature in accordance with paragraphs (b)(4) and (b)(5) of this section; and
(ii)
Responding to customer inquiries regarding the bank's safekeeping and custody services by providing:
(A)
Advertisements or sales literature consistent with the provisions of paragraphs (b)(4) and (b)(5) of this section describing the safekeeping, custody and related services that the bank offers;
(B)
A prospectus prepared by a registered investment company, or sales literature prepared by a registered investment company or by the broker or dealer that is the principal underwriter of the registered investment company pertaining to the registered investment company's products;
(C)
Information based on the materials described in paragraphs (b)(6)(ii)(A) and (B) of this section; or
(iii)
Responding to inquiries regarding the bank's safekeeping, custody or other services, such as inquiries concerning the customer's account or the availability of sweep or other services, so long as the bank does not provide investment advice or research concerning securities to the account or make a recommendation to the account concerning securities.
(c) Employee compensation restriction.
A bank may accept orders pursuant to this section for a securities transaction for an account described in paragraph (a) or (b) of this section only if no bank employee receives compensation, including a fee paid pursuant to a plan under 17 CFR 270.12b-1, from the bank, the executing broker or dealer, or any other person that is based on whether a securities transaction is executed for the account or that is based on the quantity, price, or identity of securities purchased or sold by such account, provided that nothing in this paragraph shall prohibit a bank employee from receiving compensation that would not be considered incentive compensation under § 218.700(b)(1) as if a referral had been made by the bank employee, or any compensation described in § 218.700(b)(2).
(d) Other conditions.
A bank may accept orders for a securities transaction for an account for which the bank acts as a custodian under this section only if the bank:
(1)
Does not act in a trustee or fiduciary capacity (as defined in section 3(a)(4)(D) of the Act (15 U.S.C. 78c(a)(4)(D)) with respect to the account, other than as a directed trustee;
(2)
Complies with section 3(a)(4)(C) of the Act (15 U.S.C. 78c(a)(4)(C)) in handling any order for a securities transaction for the account; and
(3)
Complies with section 3(a)(4)(B)(viii)(II) of the Act (15 U.S.C. 78c(a)(4)(B)(viii)(II)) regarding carrying broker activities.
(e) Non-fiduciary administrators and recordkeepers.
A bank that acts as a non-fiduciary and non-custodial administrator or recordkeeper for an employee benefit plan account for which another bank acts as custodian may rely on the exemption provided in this section if:
(1)
Both the custodian bank and the administrator or recordkeeper bank comply with paragraphs (a), (c) and (d) of this section; and
(2)
The administrator or recordkeeper bank does not execute a cross-trade with or for the employee benefit plan account or net orders for securities for the employee benefit plan account, other than:
(i)
Crossing or netting orders for shares of open-end investment companies not traded on an exchange, or
(ii)
Crossing orders between or netting orders for accounts of the custodian bank that contracted with the administrator or recordkeeper bank for services.
(f) Subcustodians.
A bank that acts as a subcustodian for an account for which another bank acts as custodian may rely on the exemptions provided in this section if:
(1)
For employee benefit plan accounts and individual retirement accounts or similar accounts, both the custodian bank and the subcustodian bank meet the requirements of paragraphs (a), (c) and (d) of this section;
(2)
For other custodial accounts, both the custodian bank and the subcustodian bank meet the requirements of paragraphs (b), (c) and (d) of this section; and
(3)
The subcustodian bank does not execute a cross-trade with or for the account or net orders for securities for the account, other than:
(i)
Crossing or netting orders for shares of open-end investment companies not traded on an exchange, or
(g) Evasions.
In considering whether a bank meets the terms of this section, both the form and substance of the relevant account(s), transaction(s) and activities (including advertising activities) of the bank will be considered in order to prevent evasions of the requirements of this section.
(iii)
An account established by a written agreement between the bank and the customer that sets forth the terms that will govern the fees payable to, and rights and obligations of, the bank regarding the safekeeping or custody of securities; or
(2)
Advertisement means any material that is published or used in any electronic or other public media, including any Web site, newspaper, magazine or other periodical, radio, television, telephone or tape recording, videotape display, signs or billboards, motion pictures, or telephone directories (other than routine listings).
(3)
Directed trustee means a trustee that does not exercise investment discretion with respect to the account.
(4)
Employee benefit plan account means a pension plan, retirement plan, profit sharing plan, bonus plan, thrift savings plan, incentive plan, or other similar plan, including, without limitation, an employer-sponsored plan qualified under section 401(a) of the Internal Revenue Code (26 U.S.C. 401(a) ), a governmental or other plan described in section 457 of the Internal Revenue Code (26 U.S.C. 457 ), a tax-deferred plan described in section 403(b) of the Internal Revenue Code (26 U.S.C. 403(b) ), a church plan, governmental, multiemployer or other plan described in section 414(d), (e) or (f) of the Internal Revenue Code (26 U.S.C. 414(d), (e) or (f)), an incentive stock option plan described in section 422 of the Internal Revenue Code (26 U.S.C. 422 ); a Voluntary Employee Beneficiary Association Plan described in section 501(c)(9) of the Internal Revenue Code (26 U.S.C. 501(c)(9) ), a non-qualified deferred compensation plan (including a rabbi or secular trust), a supplemental or mirror plan, and a supplemental unemployment benefit plan.
(5)
Individual retirement account or similar account means an individual retirement account as defined in section 408 of the Internal Revenue Code (26 U.S.C. 408 ), Roth IRA as defined in section 408A of the Internal Revenue Code (26 U.S.C. 408A ), health savings account as defined in section 223(d) of the Internal Revenue Code (26 U.S.C. 223(d) ), Archer medical savings account as defined in section 220(d) of the Internal Revenue Code (26 U.S.C. 220(d) ), Coverdell education savings account as defined in section 530 of the Internal Revenue Code (26 U.S.C. 530 ), or other similar account.
(6)
Sales literature means any written or electronic communication, other than an advertisement, that is generally distributed or made generally available to customers of the bank or the public, including circulars, form letters, brochures, telemarketing scripts, seminar texts, published articles, and press releases concerning the bank's products or services.
(7)
Principal underwriter has the same meaning as in section 2(a)(29) of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(29) ).