120 STAT. 954
PUBLIC LAW 109–280—AUG. 17, 2006 under the investment advice program is provided pursuant to a computer model that— ‘‘(i) applies generally accepted investment theories that take into account the historic returns of different asset classes over defined periods of time, ‘‘(ii) utilizes relevant information about the participant, which may include age, life expectancy, retirement age, risk tolerance, other assets or sources of income, and preferences as to certain types of investments, ‘‘(iii) utilizes prescribed objective criteria to provide asset allocation portfolios comprised of investment options available under the plan, ‘‘(iv) operates in a manner that is not biased in favor of investments offered by the fiduciary adviser or a person with a material affiliation or contractual relationship with the fiduciary adviser, and ‘‘(v) takes into account all investment options under the plan in specifying how a participant’s account balance should be invested and is not inappropriately weighted with respect to any investment option. ‘‘(C) CERTIFICATION.— ‘‘(i) IN GENERAL.—The requirements of this subparagraph are met with respect to any investment advice program if an eligible investment expert certifies, prior to the utilization of the computer model and in accordance with rules prescribed by the Secretary, that the computer model meets the requirements of subparagraph (B). ‘‘(ii) RENEWAL OF CERTIFICATIONS.—If, as determined under regulations prescribed by the Secretary, there are material modifications to a computer model, the requirements of this subparagraph are met only if a certification described in clause (i) is obtained with respect to the computer model as so modified. ‘‘(iii) ELIGIBLE INVESTMENT EXPERT.—The term ‘eligible investment expert’ means any person— ‘‘(I) which meets such requirements as the Secretary may provide, and ‘‘(II) does not bear any material affiliation or contractual relationship with any investment adviser or a related person thereof (or any employee, agent, or registered representative of the investment adviser or related person). ‘‘(D) EXCLUSIVITY OF RECOMMENDATION.—The requirements of this subparagraph are met with respect to any investment advice program if— ‘‘(i) the only investment advice provided under the program is the advice generated by the computer model described in subparagraph (B), and ‘‘(ii) any transaction described in subsection (b)(14)(B)(ii) occurs solely at the direction of the participant or beneficiary. Nothing in the preceding sentence shall preclude the participant or beneficiary from requesting investment advice other than that described in subparagraph (A), but
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