Grant of Individual Exemptions; The Southwest Gas Corporation (Southwest Gas), 48788-48792 [E6-13622]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 71, Number 161 (Monday, August 21, 2006)]
[Notices]
[Pages 48788-48792]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-13622]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2006-09; Exemption Application No. D-
11033 et al.]


Grant of Individual Exemptions; The Southwest Gas Corporation 
(Southwest Gas)

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of individual exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
    A notice was published in the Federal Register of the pendency 
before the Department of a proposal to grant such exemption. The notice 
set forth a summary of facts and representations contained in the 
application for exemption and referred interested persons to the 
application for a complete statement of the facts and representations. 
The application has been available for public inspection at the 
Department in Washington, DC. The notice also invited interested 
persons to submit comments on the requested exemption to the 
Department. In addition the notice stated that any interested person 
might submit a written request that a public hearing be held (where 
appropriate). The applicant has represented that it has complied with 
the requirements of the notification to interested persons. No requests 
for a hearing were received by the Department. Public comments were 
received by the Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), transferred the authority of the Secretary of the Treasury to 
issue exemptions of the type proposed to the Secretary of Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:
    (a) The exemption is administratively feasible;
    (b) The exemption is in the interests of the plan and its 
participants and beneficiaries; and
    (c) The exemption is protective of the rights of the participants 
and beneficiaries of the plan.

The Southwest Gas Corporation (Southwest Gas) Located in Las Vegas, 
Nevada

[Prohibited Transaction Exemption 2006-09; Exemption Application No. D-
11033]

Exemption

Section I--Transactions & Conditions

    The sanctions resulting from the application of section 4975 of the 
Code, by reason of section 4975(c)(1)(A) and (D) of the Code, shall not 
apply to the direct or indirect purchase, from Southwest Gas, of the 
common stock of Southwest Gas by an individual retirement account (IRA) 
that is (i) established for the benefit of a non-employee of Southwest 
Gas,\1\ (ii) operated pursuant to the terms of the Southwest Gas 
Corporation Dividend Reinvestment and Stock Purchase Plan (the DRIP), 
and (iii) maintained in part through administrative services provided 
by Southwest Gas, a disqualified person with respect to the IRA, 
provided that the following conditions are satisfied:
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    \1\ Pursuant to 29 CFR 2510.3-2(d), the subject IRAs are not 
``employee benefit plans'' covered by Title I of the Act. However, 
because the IRA is a ``plan'' for purposes of section 4975 of the 
Code, the Department has jurisdiction under Title II of the Act over 
this matter.
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    (a) The IRA that is established by a DRIP participant pursuant to 
the terms of the DRIP (the DRIP IRA) is maintained for the exclusive 
benefit of the individual covered under the IRA (the IRA Owner), his or 
her spouse, or their beneficiaries;
    (b) Southwest Gas complies with all applicable securities laws 
relating to the Southwest Gas DRIP;
    (c) Administrative and recordkeeping services provided by Southwest 
Gas to the DRIP IRA are rendered pursuant to a written agreement 
between Southwest Gas and an independent trustee of the DRIP IRA (the 
IRA Trustee) in which Southwest Gas agrees to act as the IRA Trustee's 
agent for the provision of such services;

[[Page 48789]]

    (d) Southwest Gas receives no compensation, fees, or commissions, 
directly or indirectly, for the provision of such administrative and 
recordkeeping services, including any portion of the fees that the IRA 
Trustee may be entitled to receive from the DRIP IRA;
    (e) The combined total of all fees and other consideration 
received, direct or indirect, by any disqualified persons (other than 
Southwest Gas) for the provision of services to the DRIP IRA is not in 
excess of ``reasonable compensation'' within the meaning of section 
4975(d)(2) of the Code;
    (f) The DRIP IRA and/or IRA Owner does not pay a brokerage fee or 
commission in connection with the purchase of the common stock of 
Southwest Gas;
    (g) Neither Southwest Gas, the IRA Trustee, nor any affiliate 
thereof has any discretionary authority or control regarding the 
determination to acquire, manage, or dispose of the DRIP IRA assets, or 
renders investment advice (within the meaning of 26 CFR 54.4975-9(c)) 
respecting those assets;
    (h) Cash dividends paid on Southwest Gas common stock held in the 
DRIP IRA account that are used to purchase Original Issue Shares of 
Southwest Gas common stock are automatically reinvested in additional 
shares of Southwest Gas common stock on the earliest date that such 
dividends can reasonably be segregated;
    (i) Cash dividends paid on Southwest Gas common stock held in a 
DRIP IRA account that will be used to purchase Open Market Shares of 
Southwest Gas common stock under the DRIP are temporarily invested by 
the IRA Trustee, on the earliest date that such cash dividends can 
reasonably be segregated, in a no-load money market mutual fund 
registered under the Investment Company Act of 1940, and earnings 
accrued thereon are allocated at the end of each quarter on a pro-rata 
basis among those IRA Owners who earned such dividends during that 
quarter and then applied immediately towards the purchase of additional 
shares of Southwest Gas common stock for the accounts of such IRA 
Owners;
    (j) Pending the IRA Trustee's investment of the cash contributions 
of IRA Owners (including rollover contributions), such amounts are 
temporarily invested by the IRA Trustee, on the earliest date that the 
IRA Owners' contributions can reasonably be segregated, in a no-load 
money market mutual fund registered under the Investment Company Act of 
1940, and earnings accrued thereon are allocated at the end of each 
quarter on a pro-rata basis among those IRA Owners who made a 
contribution during that quarter and then applied immediately towards 
the purchase of additional shares of Southwest Gas common stock for the 
accounts of such IRA Owners;
    (k) The terms of both the money market mutual fund and of any 
purchase of Southwest Gas common stock pursuant to the terms of the 
DRIP (including the purchase price) are at least as favorable to the 
DRIP IRA as those obtainable in a comparable arm's length transaction 
with an unrelated party;
    (l) Prior to participation in the DRIP IRA, each IRA Owner receives 
a written disclosure, drafted in a manner calculated to be understood 
by the average IRA Owner, which contains: (i) The general terms and 
conditions of the DRIP IRA; (ii) The identity of the no-load money 
market mutual fund; (iii) Any fees, commissions, or compensation paid 
to the IRA Trustee and/or its affiliates in connection with the DRIP 
IRA, including the investment advisory and other fees paid by the 
mutual fund to the IRA Trustee and/or its affiliates; (iv) A disclosure 
of the right of IRA Owners to receive written notice of any amendment 
to the terms of the DRIP or the DRIP IRA at least 30 days in advance of 
its effective date (and the right of such IRA Owners to refuse consent 
to any amendment); and (v) Information about this exemption from the 
prohibited transaction rules applicable to the DRIP IRA and the right 
of each IRA Owner to request a copy of both the April 28, 2006 notice 
of proposed exemption and a copy of this final exemption;
    (m) An IRA Owner participating in the DRIP IRA is furnished 
periodically with a statement, at least quarterly, containing (i) the 
date, quantity, and price with respect to each purchase of common stock 
that occurred during the prior quarter and (ii) information concerning 
the quarterly, pro rata allocation of money market mutual fund earnings 
attributable to each IRA Owner's account during the period immediately 
preceding the investment of cash amounts in Southwest Gas stock;
    (n) Southwest Gas retains, at least annually and at its own 
expense, an independent certified public accountant to perform an 
audit, in accordance with generally accepted auditing standards, of the 
DRIP IRAs, and provides the IRA Trustee with the current audit report 
prepared by such accountant, together with any written commentary from 
the accountant that accompanies the audit; and
    (o) The IRA Owner is permitted to terminate his or her 
participation in the DRIP IRA at any time, without penalty, and 
transfer his or her IRA account balance to an IRA at another financial 
institution.

Section II--Definitions

    (a) The term ``IRA'' means an individual retirement account 
described in Code section 408(a). For purposes of this exemption, the 
term ``IRA'' shall not include an individual retirement account that is 
an employee benefit plan covered by Title I of the Act.
    (b) The term ``DRIP'' (an acronym for Dividend Reinvestment Plan) 
refers to the ``Southwest Gas Corporation Dividend Reinvestment and 
Stock Purchase Plan'', which allows investors to purchase Southwest Gas 
common stock and to automatically reinvest cash dividends paid on such 
stock into additional shares of Southwest Gas stock.
    (c) The term ``Original Issue Shares'' refers to authorized but 
unissued shares of Southwest Gas common stock purchased directly from 
Southwest Gas.
    (d) The term ``Open Market Shares'' refers to outstanding shares of 
Southwest Gas common stock purchased on the open market or through 
negotiated transactions.
    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 April 28, 2006 at 71 FR 
25229.
    For Further Information Contact: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (This is not a toll-free number.)

Massachusetts Mutual Life Insurance Company Located in Springfield, 
Massachusetts

[Prohibited Transaction Exemption 2006-10; Exemption Application Number 
D-11228]

Exemption

Section I--Transactions

    (a) If the conditions of Sections II, III and V are met, the 
restrictions of section 406(a)(1)(B) and (D) of the Act, and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of section 4975(c)(1)(B) and (D) of the Code, shall not apply 
to: (1) The extension of credit (``Market Rate Advance or Advances'') 
by Massachusetts Mutual Life Insurance Company (``MassMutual'') to a 
participant-directed individual account plan (``the Plan''); and (2) 
the Plan's repayment of a Market Rate Advance or Advances, plus accrued 
interest; and
    (b) If the conditions of Sections II, IV and V are met, the 
restrictions of section 406(a)(1)(B) and (D) and 406(b)(2) of the

[[Page 48790]]

Act and the sanctions resulting from the application of section 4975 of 
the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, 
shall not apply to: (1) The interest-free extension of credit 
(``Interest-free Advance'') to a Plan by its respective sponsor (``the 
Plan Sponsor'') and (2) the repayment, by the Plan to the Plan Sponsor, 
of any Interest-free Advance.

Section II--General Conditions

    (a) Each Market Rate Advance and each Interest-free Advance 
(collectively ``the Advance or Advances'') is made in connection with 
the administration of a portion of the Plan's assets by MassMutual as a 
unitized fund (``Unitized Fund'') in order to enable daily 
transactions, such as participant investment transfers, distributions 
or participant loans, and to facilitate redemptions from the Unitized 
Fund;
    (b) Each Advance is unsecured, uncollateralized, and without 
recourse;
    (c) No commitment fees or commissions are paid by the Plan with 
respect to the Advances;
    (d) The aggregate amount advanced on any business day that an 
Advance is initiated does not, after the Advance is made, exceed 25% of 
the total market value of the Unitized Fund;
    (e) Each Advance is made in accordance with the terms of a written 
agreement between MassMutual, the Plan, and, if Interest-free Advances 
by the Plan Sponsor are being offered, the Plan Sponsor (``the 
Agreement''). The Agreement describes the terms and procedures for the 
Advances, including instructions addressing the initiation, amount and 
repayment. With respect to Market Rate Advances, the Agreement sets 
forth the formula or method for determining the interest rate payable 
with respect to each Advance. The Agreement is approved in writing by a 
fiduciary of the Plan who is independent of, and not an affiliate of, 
MassMutual (``Independent Plan Fiduciary'');
    (f) The Agreement may be terminated by the Independent Plan 
Fiduciary at any time, subject to the Plan's repayment of any 
outstanding Advances, with no penalty for such termination;
    (g) The fair market value of the assets in the Unitized Fund is 
determined by an objective method specified in the Agreement;
    (h) Any employer security in a Unitized Fund is a ``publicly traded 
qualifying employer security'' as defined below;
    (i) The Plan is required to repay each Advance and any accrued 
interest in accordance with the terms of the Agreement as soon as 
possible after the initiation of the advance;
    (j) Within one business day after an Advance is initiated, 
MassMutual notifies the Independent Plan Fiduciary of the amount of the 
Advance and, if a Market Rate Advance, the actual interest rate to be 
applied;
    (k) Within ten (10) days after a Market Rate Advance is fully 
repaid, MassMutual provides the Independent Plan Fiduciary with a 
confirmation statement including the date of repayment, the amount of 
the Advance, and if a Market Rate Advance, the actual interest rate 
applied, and the total amount of interest paid by the Plan;
    (l) Each Advance is initiated, accounted for and administered by 
MassMutual, in accordance with the terms of the Agreement and the Act;
    (m) Neither MassMutual nor any of its affiliates is: (1) A trustee 
of the Plan (other than a nondiscretionary trustee who does not render 
investment advice with respect to the assets of the Unitized Fund); (2) 
a plan administrator (within the meaning of section 3(16)(A) of the Act 
and Code section 414(g)); (3) a fiduciary who is expressly authorized 
in writing to manage, acquire, or dispose of, on a discretionary basis, 
any assets of the Unitized Fund; or (4) an employer any of whose 
employees are covered by the Plan;
    (n) MassMutual maintains or causes to be maintained for a period of 
six years, in a manner that is accessible for audit and examination, 
the records necessary to enable the persons described in the next 
paragraph to determine whether the conditions of this exemption have 
been met, except that:
    (1) if the records necessary to enable the persons described in the 
next paragraph to determine whether the conditions of the exemption 
have been met are lost or destroyed, due to circumstances beyond the 
control of MassMutual, then no prohibited transaction will be 
considered to have occurred solely on the basis of the unavailability 
of those records; and
    (2) No party in interest, other than MassMutual which is 
responsible for recordkeeping, shall be subject to the civil penalty 
that may be assessed under section 502(i) of the Act or the taxes 
imposed by section 4975(a) and (b) of the Code if the records are not 
maintained or are not available for examination as required by the next 
paragraph;
    (o)(1) Except as provided below in subparagraph (2) and 
notwithstanding any provisions of section 504(a)(2) and (b) of the Act, 
the records referred to in the above paragraph are unconditionally 
available at their customary location for examination during normal 
business hours by--
    (A) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service;
    (B) Any fiduciary of the plan or any duly authorized employee or 
representative of such fiduciary;
    (C) Any contributing employer and any employee organization whose 
members are covered by the plan, or any authorized employee or 
representative of these entities; or
    (D) Any participant or beneficiary of the plan or the duly 
authorized representative of such participant or beneficiary.
    (2) None of the persons described in subparagraph (1)(B)-(D) above 
shall be authorized to examine trade secrets or commercial or financial 
information which is privileged or confidential.

Section III--Conditions Specific to Market Rate Advances

    The relief provided under Section I (a) is available only if the 
following conditions are met:
    (a) Market Rate Advances are made on terms at least as favorable to 
the Plan as those the Plan could obtain in an arm's length transaction 
with an unrelated party;
    (b) Neither MassMutual nor its affiliate has or exercises any 
discretionary authority or control with respect to the initiation of a 
Market Rate Advance, the amount of a Market Rate Advance, the interest 
rate payable on a Market Rate Advance, or the repayment of the Market 
Rate Advance;
    (c) Interest payable by the Plan on each Market Rate Advance is 
determined in accordance with an objective formula or method described 
in the Agreement.

Section IV--Conditions Specific to Interest-free Advances

    The relief provided under Section I (b) is available only if the 
following conditions are met:
    (a) No interest or other fee is charged to the Plan, and no 
discount for payment in cash is relinquished by the Plan, in connection 
with the Interest Free Advance;
    (b) The Interest-free Advance is not a loan described in section 
408(b)(3) of ERISA and the regulations promulgated there under (29 CFR 
2550.408b-3) or section 4975(d)(3) of the Code and the regulations 
promulgated there under (26 CFR 54.4975-7(b));
    (c) The Interest-free Advance is not made directly or indirectly by 
an employee benefit plan;
    (d) Any Interest-free Advance that is entered into for a term of 60 
days or

[[Page 48791]]

longer must be made pursuant to a written loan agreement that contains 
all of the material terms of such loan.

Section V--Definitions

    (a) The term ``affiliate'' means (i) any person directly or 
indirectly, through one or more intermediaries, controlling, controlled 
by, or under common control with such other person; (ii) any officer, 
director, employee or relative (as defined in section 3(15) of the Act) 
of such other person; and (iii) any corporation or partnership of which 
such other person is an officer, director or partner.
    (b) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (c) The term ``Plan Sponsor'' means the employer of the employees 
covered by the Plan.
    (d) The term ``publicly traded qualifying employer security,'' for 
purposes of this exemption, means a security that meets the definition 
of ``stock'' pursuant to section 407(d)(5)(A) of the Act and the 
definition of ``NMS stock'' as defined in SEC Regulation NMS, 17 CFR 
242.600(b)(47).
    (e) The term ``unitized fund'' for purposes of the exemption means 
a fund that, to facilitate trading and/or accounting, has established 
``units'' representing undivided interests in all of the assets of such 
fund.
    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 in the Federal Register on 
April 28, 2006 at 71 FR 25233.
    For Further Information Contact: Christopher Motta, Office of 
Exemption Determinations, Employee Benefits Security Administration, 
U.S. Department of Labor, telephone (202) 693-8540. (This is not a 
toll-free number.)

The Revlon Employees Savings, Investment and Profit Sharing Plan (the 
Plan) Located in New York, New York

[Prohibited Transaction Exemption No. 2006-11; Application No. D-11355]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) and 
407(a) of the Act and the sanctions resulting from the application of 
section 4975 of the Code, by reason of section 4975(c)(1)(A) through 
(E) of the Code, shall not apply, effective February 17, 2006, to (1) 
the acquisition of certain stock rights (Stock Right(s)) by the Plan in 
connection with a Stock Rights offering by Revlon, Inc. (Revlon), a 
holding company that wholly owns Revlon Consumer Products Corporation 
(RCPC), a party in interest with respect to the Plan; (2) the holding 
of the Stock Rights by the Plan during the subscription period of the 
Stock Rights offering; and (3) the disposition or exercise of the Stock 
Rights by the Plan, provided that the following conditions were met:
    (a) The Stock Rights were acquired pursuant to Plan provisions for 
individually-directed investment of such accounts;
    (b) The Plan's receipt of the Stock Rights occurred in connection 
with a Stock Rights offering made available on the same terms to all 
shareholders of common stock of Revlon;
    (c) All decisions regarding the holding and disposition of the 
Stock Rights by the Plan were made, in accordance with the Plan 
provisions for individually-directed investment of participant 
accounts, by the individual Plan participants whose accounts in the 
Plan received Stock Rights in connection with the Stock Rights 
offering;
    (d) The Plan's acquisition of the Stock Rights resulted from an 
independent act of Revlon as a corporate entity, and all holders of the 
Stock Rights, including the Plan, were treated in the same manner with 
respect to the acquisition; and
    (e) The Plan received the same proportionate number of Stock Rights 
as other owners of Class A common stock.
    Effective Date: This exemption will be effective as of February 17, 
2006.
    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 2, 2006 at 71 FR 
32132.
    During a conversation with the Department, the applicant sought 
clarification with respect to a condition in the Notice, which is 
discussed below. On page 32132 of the Notice, condition (e) states the 
following:
    (e) The price received by the Plan for the Stock Rights was no less 
than the fair market value of the Stock Rights on the date of the Stock 
Rights offering.
    Upon discussion with the applicant, the Department has determined 
that condition (e) should be revised to read as follows:
    (e) The Plan received the same proportionate number of Stock Rights 
as other owners of Class A common stock;
    The Department hereby modifies the exemption to incorporate such 
change.
    For Further Information Contact: Khalif Ford of the Department, 
telephone (202) 693-8540 (this is not a toll-free number).

Retail Clerks Welfare Trust Health and Welfare Plan (the Plan) Located 
in Seattle, Washington

[Prohibited Transaction Exemption 2006-12; Exemption Application No. L-
11258]

Exemption

    The restrictions of section 406(a), 406(b)(1) and (b)(2) of the Act 
shall not apply, effective July 1, 2005, to the purchase by Plan 
participants and beneficiaries of prescription drugs from pharmacies 
established and maintained by contributing employers to the Plan, or 
their affiliates (the Custom Network), which are parties in interest 
with respect to the Plan, provided the following conditions are 
satisfied:
    (a) The terms of each transaction are at least as favorable to the 
Plan as those the Plan could obtain in a similar arm's-length 
transaction with an unrelated third party;
    (b) All determinations regarding which party in interest 
pharmacies, if any, may participate in the Custom Network, will be made 
by the Plan's independent fiduciary based on objective standards 
developed by the independent fiduciary in reliance on information 
provided by NMHCrx, the Plan's Pharmacy Benefits Manager, an entity 
which is independent of any contributing employer to the Plan, and the 
Plan's independent actuarial consultants;
    (c) At least 50% of the providers participating in the Custom 
Network are pharmacies of contributing employers other than the 
employer of any individual Plan participant;
    (d) In the aggregate, on an on-going basis, the costs for each plan 
year for the Plan from participants using the Custom Network pharmacies 
will be at least one percentage point less than would be the costs 
through the use of NMHCrx's preferred provider network pharmacies (the 
PPN pharmacies);
    (e) In the aggregate, on an on-going basis, the costs for each plan 
year for the Plan from participants using the PPN pharmacies will be 
significantly less than costs for the retail purchase of prescription 
drugs from non-participating pharmacies;
    (f) The Plan's independent fiduciary will monitor the subject 
transactions to ensure that all conditions of the exemption, including 
conditions (d) and (e) regarding pricing, continue to be satisfied 
during each plan year; and
    (g) All future updated summary plan descriptions, furnished to 
participants, will state that the purchase price of a particular 
prescription drug at Custom

[[Page 48792]]

Network pharmacies may be less than the purchase price that is 
available either through the use of the PPN pharmacies or through 
retail non-participating pharmacies, and that the cost of prescription 
drugs in the aggregate over the course of a 12-month plan year will be: 
(i) Lower at Custom Network pharmacies than at the PPN pharmacies and 
(ii) Significantly lower at the Custom Network pharmacies than at non-
participating retail pharmacies.
    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 2, 2006 at 71 FR 
32129.
    Effective Date: This exemption is effective July 1, 2005.
    For Further Information Contact: Gary H. Lefkowitz of the 
Department, telephone (202) 693-8546. (This is not a toll-free number.)

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 section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions to which the exemption does not 
apply and the general fiduciary responsibility provisions of section 
404 of the Act, which among other things require a fiduciary to 
discharge his duties respecting the plan solely in the interest of the 
participants and beneficiaries of the plan and in a prudent fashion in 
accordance with section 404(a)(1)(B) of the Act; nor does it affect the 
requirement of section 401(a) of the Code that the plan must operate 
for the exclusive benefit of the employees of the employer maintaining 
the plan and their beneficiaries;
    (2) This exemption is supplemental to and not in derogation of, any 
other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 14th day of August, 2006.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
 [FR Doc. E6-13622 Filed 8-18-06; 8:45 am]
BILLING CODE 4510-29-P