Page:United States Statutes at Large Volume 120.djvu/986

 PUBLIC LAW 109–280—AUG. 17, 2006

120 STAT. 955

only if such request has not been solicited by any person connected with carrying out the arrangement. ‘‘(4) EXPRESS AUTHORIZATION BY SEPARATE FIDUCIARY.—The requirements of this paragraph are met with respect to an arrangement if the arrangement is expressly authorized by a plan fiduciary other than the person offering the investment advice program, any person providing investment options under the plan, or any affiliate of either. ‘‘(5) ANNUAL AUDIT.—The requirements of this paragraph are met if an independent auditor, who has appropriate technical training or experience and proficiency and so represents in writing— ‘‘(A) conducts an annual audit of the arrangement for compliance with the requirements of this subsection, and ‘‘(B) following completion of the annual audit, issues a written report to the fiduciary who authorized use of the arrangement which presents its specific findings regarding compliance of the arrangement with the requirements of this subsection. For purposes of this paragraph, an auditor is considered independent if it is not related to the person offering the arrangement to the plan and is not related to any person providing investment options under the plan. ‘‘(6) DISCLOSURE.—The requirements of this paragraph are met if— ‘‘(A) the fiduciary adviser provides to a participant or a beneficiary before the initial provision of the investment advice with regard to any security or other property offered as an investment option, a written notification (which may consist of notification by means of electronic communication)— ‘‘(i) of the role of any party that has a material affiliation or contractual relationship with the financial adviser in the development of the investment advice program and in the selection of investment options available under the plan, ‘‘(ii) of the past performance and historical rates of return of the investment options available under the plan, ‘‘(iii) of all fees or other compensation relating to the advice that the fiduciary adviser or any affiliate thereof is to receive (including compensation provided by any third party) in connection with the provision of the advice or in connection with the sale, acquisition, or holding of the security or other property, ‘‘(iv) of any material affiliation or contractual relationship of the fiduciary adviser or affiliates thereof in the security or other property, ‘‘(v) the manner, and under what circumstances, any participant or beneficiary information provided under the arrangement will be used or disclosed, ‘‘(vi) of the types of services provided by the fiduciary adviser in connection with the provision of investment advice by the fiduciary adviser, ‘‘(vii) that the adviser is acting as a fiduciary of the plan in connection with the provision of the advice, and

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