Exemptions From Certain Prohibited Transaction Restrictions, 70491-70495 [2011-29234]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 76, Number 219 (Monday, November 14, 2011)]
[Notices]
[Pages 70491-70495]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29234]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employee Benefits Security Administration


Exemptions From Certain Prohibited Transaction Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of Individual Exemptions.

-----------------------------------------------------------------------

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). 
This notice includes the following: D-11601, 2011-21, BB&T Asset 
Management, Inc.; and D-11608, 2011-22, Russell Trust Company.

SUPPLEMENTARY INFORMATION: 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.

[[Page 70492]]

    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.
    BB&T Asset Management, Inc. (BB&T AM), Located in Winston-Salem, 
North Carolina, [Prohibited Transaction Exemption 2011-21; Exemption 
Application No. D-11601].

Exemption

Section I: Covered Transactions

    The sanctions resulting from the application of Code section 4975, 
by reason of Code section 4975(c)(1)(A) and (C)-(F), shall not apply, 
effective April 30, 2002 until December 27, 2005, to (1) directed 
trades by BB&T AM and its successors in interest (together, the 
Applicant) as an investment manager and investment adviser to certain 
plans, subject to Code section 4975, but not subject to Title I of 
ERISA (the IRAs), which resulted in the IRAs purchasing or selling 
securities from Scott & Stringfellow, LLC (S&S), an affiliated broker-
dealer of BB&T AM (collectively, the Transactions); and (2) 
compensation paid by the IRAs to S&S in connection with the 
Transactions (the Transaction Compensation).
    This exemption is subject to the conditions set forth below in 
Sections II and III.

Section II: Specific Conditions

    (a) The Transactions and the Transaction Compensation were 
corrected (1) pursuant to the requirements set forth in the 
Department's Voluntary Fiduciary Correction Program (the VFC Program) 
\1\ and (2) in a manner consistent with those transactions described in 
the Applicant's VFC Program application, dated January 22, 2010 (the 
VFC Program Application), that were substantially similar to the 
Transactions but that involved plans described in Code section 
4975(e)(1) and subject to Title I of ERISA (the Qualified Plan 
Transactions).
---------------------------------------------------------------------------

    \1\ 71 FR 20262 (April 19, 2006).
---------------------------------------------------------------------------

    (b) The Applicant received a ``no-action letter'' from the 
Department in connection with the Qualified Plan Transactions described 
in the VFC Program Application.
    (c) The fair market value of the securities involved in the 
Transactions was determined in accordance with Section 5 of the VFC 
Program.
    (d) The terms of the Transactions and the Transaction Compensation 
were at least as favorable to the IRAs as the terms generally available 
in arm's length transactions between unrelated parties.
    (e) The Transactions and Transaction Compensation were not part of 
an agreement, arrangement or understanding designed to benefit a 
disqualified person, as defined in Code section 4975(e)(2).
    (f) The Applicant did not take advantage of the relief provided by 
the VFC Program and Prohibited Transaction Exemption 2002-51 \2\ (PTE 
2002-51) for three (3) years prior to the date of the Applicant's 
submission of the VFC Program Application.
---------------------------------------------------------------------------

    \2\ 71 FR 20135 (April 19, 2006).
---------------------------------------------------------------------------

Section III: General Conditions

    (a) The Applicant maintains, or causes to be maintained, for a 
period of six (6) years from the date of any Transaction such records 
as are necessary to enable the persons described in Section III(b)(1), 
to determine whether the conditions of this exemption have been met, 
except that:
    (1) A separate prohibited transaction shall not be considered to 
have occurred if, due to circumstances beyond the control of Applicant, 
the records are lost or destroyed prior to the end of the six-year 
period; and
    (2) No disqualified person with respect to an IRA, other than 
Applicant, shall be subject to excise taxes imposed by Code section 
4975, if such records are not maintained, or are not available for 
examination, as required by Section III(b)(1).
    (b) (1) Except as provided in Section III(b)(2), the records 
referred to in Section III(a) are unconditionally available at their 
customary location for examination during normal business hours by:
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the Securities and 
Exchange Commission;
    (B) Any fiduciary of any IRA that engaged in a Transaction, or any 
duly authorized employee or representative of such fiduciary; or
    (C) Any owner or beneficiary of an IRA that engaged in a 
Transaction or a representative of such owner or beneficiary.
    (2) None of the persons described in Sections III(b)(1)(B) and (C) 
shall be authorized to examine trade secrets of Applicant, or 
commercial or financial information which is privileged or 
confidential.
    (3) Should Applicant refuse to disclose information on the basis 
that such information is exempt from disclosure, Applicant shall, by 
the close of the thirtieth (30th) day following the request, provide a 
written notice advising that person of the reasons for the refusal and 
that the Department may request such information.
    Effective Date: This exemption is effective from April 30, 2002 
until December 27, 2005.
    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 August 11, 2011 at 76 FR 
49791.

FOR FURTHER INFORMATION CONTACT: Mr. Brian Shiker of the Department, 
telephone (202) 693-8552. (This is not a toll-free number.)
Russell Trust Company (RTC or the Applicant),
Located in Seattle, Washington.
[Prohibited Transaction Exemption 2011-22;
Exemption Application No. D-11608]

Exemption

Section I--Covered Transactions

    (a) The restrictions of sections 406(a)(1)(A), (a)(1)(B), 
(a)(1)(D), 406(b)(1) and 406(b)(2) of the Act, and the sanctions 
resulting from the application of section 4975 of the Code, by reason 
of section 4975(c)(1)(A), (c)(1)(B), (c)(1)(D), and (c)(1)(E) of the 
Code, shall not apply, between September 14, 2009 and September 14, 
2010, inclusive, to an arrangement involving the following 
transactions:
    (1) The extension of credit, through a revised capital support 
agreement, to certain employee benefit plans (the Plans) invested, 
directly or indirectly, in the Russell Securities Lending Short-Term 
Investment Fund (the SecLending Fund) by the Frank Russell Company 
(FRC), the parent company of RTC and a party in interest with respect 
to the Plans, in connection with the

[[Page 70493]]

SecLending Fund's holding of certain notes (the Notes) issued by Lehman 
Brothers Holdings Inc. or its affiliates (the Revised SecLending Fund 
CSA);
    (2) The extension of credit, through a revised capital support 
agreement, to certain Plans invested, directly or indirectly, in the 
RTC Russell Liquidity Fund (the Liquidity Fund) by FRC in connection 
with the Liquidity Fund's holding of the Notes (the Revised Liquidity 
Fund CSA);
    (3) The provision of a revised guarantee to FRC by its parent 
company, the Northwest Mutual Life Insurance Company (NML), a party in 
interest with respect to the Plans, in order to ensure FRC's foregoing 
capital support obligation to the SecLending Fund (the Revised 
SecLending Fund Guarantee);
    (4) The provision of a revised guarantee to FRC by NML in order to 
ensure FRC's foregoing capital support obligation to the Liquidity Fund 
(the Revised Liquidity Fund Guarantee);
    (5) The accrual and periodic payment of certain supplemental yield 
contributions by FRC to the SecLending Fund (the SecLending Fund 
Supplemental Yield Contributions); and
    (6) The accrual and periodic payment of certain supplemental yield 
contributions by FRC to the Liquidity Fund (the Liquidity Fund 
Supplemental Yield Contributions);
    (b) The restrictions of sections 406(a)(1)(A), (a)(1)(B), 406(b)(1) 
and (b)(2) of the Act, and the sanctions resulting from the application 
of section 4975 of the Code, by reason of section 4975(c)(1)(A), 
(c)(1)(B), and (c)(1)(E) of the Code shall not apply to the September 
10, 2010 cash sale (the Sale) of all of the Notes held by both the 
SecLending Fund and the Liquidity Fund (taken together, the Funds) to 
FRC, which transaction was settled on September 14, 2010 upon receipt 
by the Funds of the cash proceeds of the Sale; provided that all of the 
conditions set forth below in Section II are satisfied.

Section II--Conditions

    (a) With respect to the arrangement involving (i) the Revised 
SecLending Fund CSA and the Revised Liquidity Fund CSA transactions 
(together, the Revised CSAs), (ii) the Revised SecLending Fund 
Guarantee and the Revised Liquidity Fund Guarantee transactions 
(together, the Revised Guarantees), and (iii) the SecLending Fund 
Supplemental Yield Contributions and the Liquidity Fund Supplemental 
Yield Contribution transactions (together, the Supplemental Yield 
Contributions):
    (1) The decision to enter into each of these transactions was made 
on behalf of the Funds (and the employee benefit plans invested, 
directly or indirectly, in the Funds) by an independent fiduciary (the 
Independent Fiduciary), who reviewed their terms and conditions of each 
of the foregoing transactions and determined that they were protective 
of, and in the interest of, the Funds and the Plans investing therein;
    (2) The foregoing transactions were entered into pursuant to 
written agreements that contained all of the relevant terms and 
conditions relating to such transactions; and
    (3) The Funds did not pay any fees, commissions or other expenses 
in connection with the foregoing transactions;
    (b) With respect to the Sale of the Notes by each Fund to FRC:
    (1) The Sale was a one-time transaction for cash;
    (2) In connection with the Sale, the applicable Fund received an 
amount which was equal to the greater of: (i) The market value of the 
Notes being sold on the date of the Sale; or (ii) the sum of the 
amortized cost of such Notes, plus any accrued but unpaid interest on 
such Notes through the earlier of the maturity date of the applicable 
Note or September 14, 2009, in each case calculated at the contract 
rate;
    (3) The Funds did not pay any fees, commissions or other expenses 
in connection with the Sale;
    (4) The decision to sell all of the Notes held by the Funds to FRC 
was made by an Independent Fiduciary, who determined that the Sale of 
the Notes was appropriate for, and in the best interests of, each of 
the Funds and the Plans invested, directly or indirectly, in the Funds, 
at the time of the Sale transaction;
    (5) The Independent Fiduciary has taken all appropriate actions 
necessary to safeguard the interests of the Funds, and of the employee 
benefit plans invested, directly or indirectly, in the Funds, in 
connection with the transaction;
    (6) If the exercise of any of FRC's rights, claims, or causes of 
action in connection with its ownership of the Notes results in 
recovering from the issuer of the Notes, or any third party, an 
aggregate amount that is in excess of the sum of: (i) The Sale price 
paid for the Notes by FRC; and (ii) interest on such Sale price paid 
for the Notes from and after September 10, 2010, determined at the face 
interest rate for the applicable Note, then FRC will refund such excess 
amount promptly to the Funds (after deducting all reasonable expenses 
incurred in connection with the recovery);
    (c) RTC and its affiliates, as applicable, maintain, or cause to be 
maintained, for a period of six (6) years from the date of any covered 
transaction such records as are necessary to enable the person 
described below in paragraph (d)(1), to determine whether the 
conditions of this exemption have been met, except that:
    (1) No party in interest with respect to a plan which engages in 
the covered transaction, other than FRC, RTC and their affiliates, as 
applicable, shall be subject to a civil penalty under section 502(i) of 
the Act or the taxes imposed by section 4975(a) and (b) of the Code, if 
such records are not maintained, or not available for examination, as 
required, below, by paragraph (d)(1);
    (2) A separate prohibited transaction shall not be considered to 
have occurred solely because due to circumstances beyond the control of 
FRC, RTC or their affiliates, as applicable, such records are lost or 
destroyed prior to the end of the six-year period.
    (d)(1) Except as provided, below, in paragraph (d)(2), and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to, above, in paragraph (c) are 
unconditionally available at their customary location for examination 
during normal business hours by--
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the Securities and 
Exchange Commission; or
    (B) Any fiduciary of any plan that engages in the covered 
transaction, or any duly authorized employee or representative of such 
fiduciary; or
    (C) Any employer of participants and beneficiaries and any employee 
organization whose members are covered by a plan that engages in the 
covered transaction, or any authorized employee or representative of 
these entities; or
    (D) Any participant or beneficiary of a plan that engages in the 
covered transaction, or duly authorized employee or representative of 
such participant or beneficiary;
    (2) None of the persons described, above, in paragraph (d)(1)(B)-
(D) shall be authorized to examine trade secrets of FRC, RTC or their 
affiliates, or commercial or financial information which is privileged 
or confidential; and
    (3) Should RTC refuse to disclose information on the basis that 
such information is exempt from disclosure, RTC shall, by the close of 
the thirtieth (30th) day following the request, provide a written 
notice advising that person of the reasons for the refusal and

[[Page 70494]]

that the Department may request such information.

Written Comments

    1. The Notice of Proposed Exemption (the Notice), published in the 
June 13, 2011 issue of the Federal Register beginning at page 34261, 
invited all interested persons to submit written comments and requests 
for a hearing to the Department within forty-five (45) days of the date 
of its publication. In response, the Department received a written 
comment from the Applicant on July 21, 2011 (which was supplemented by 
an additional clarifying letter from the Applicant on July 26, 2011) 
regarding the content of the Notice. This comment, which was the only 
one received by the Department in connection with the Notice, suggested 
certain clarifications and editorial adjustments to the operative 
language contained in Section I (``Covered Transactions'') and Section 
II (``Conditions'') of the Notice, which are described in detail below; 
those modifications suggested by the Applicant which the Department has 
determined to adopt are reflected in the text of this final grant (the 
Grant) of exemption. The Applicant's comment also requested certain 
adjustments to the text of the ``Summary of Facts and Representations'' 
section of the Notice, which are described and incorporated below. The 
Department notes that it did not receive any requests for a hearing 
from the Applicant or from any other person during the aforementioned 
45-day comment period.
    2. In its written comment, the Applicant expressed its view that 
the applicable period for exemptive relief described in Section I(a) of 
the Notice (the text of which begins at the first column of page 34261 
of the June 13, 2011 issue of the Federal Register) should be modified 
in the Grant to encompass the period from September 10, 2009 through 
September 14, 2010. In requesting this adjustment, the Applicant noted 
that while FRC's and NML's primary obligations under the Revised 
SecLending Fund CSA, the Revised Liquidity Fund CSA, the Revised 
SecLending Fund Guarantee, and the Revised Liquidity Fund Guarantee may 
have technically terminated upon the closing of the Sale on September 
10, 2010, the Supplemental Yield Contributions continued to accrue (and 
the proceeds of the Sale were not received by the Funds) until 
September 14, 2010. Therefore, the Applicant stated, all of the 
transactions covered by the exemption were not completed until 
September 14, 2010.
    In support of this view, the Applicant's comment noted that 
Sections I(a)(5) and (6) of the Notice, which proposes exemptive relief 
for the ``accrual and periodic payment'' of the Supplemental Yield 
Contributions, would not in fact exempt the final payment of such 
contributions on September 14, 2010, nor the accrual of such 
contributions from September 10 through September 14, 2010. Moreover, 
the Applicant states, because the Supplemental Yield Contributions were 
made a part of the Revised CSAs, it could be concluded that the 
transactions described in Sections I(a)(1) through I(a)(4) of the 
Notice also were not completed until September 14, 2010. After due 
consideration, the Department concurs with the Applicant's suggested 
modification, and has determined to amend the text of lines 9 and 10 of 
Section I(a) in the Grant by deleting ``September 10, 2010'' and 
inserting in lieu thereof ``September 14, 2010''.
    In this connection, the Applicant's comment also suggested an 
adjustment to the language of Section I(b) of the Notice (which begins 
at the second column of page 34261 of the same issue of the Federal 
Register) to reflect that the Sale, which was executed on September 10, 
2010, ultimately settled on September 14, 2010 with receipt of the full 
Sale proceeds by the Funds on that date. The Department also concurs 
with this suggested modification, and amends the text of Section I(b) 
in the Grant by inserting a comma after ``FRC'' at line 11, and 
inserting of the words ``which transaction was settled on September 14, 
2010 upon receipt by the Funds of the cash proceeds of the Sale'' prior 
to the concluding semicolon.
    3. In its comment letter, the Applicant noted that Section I(b) of 
the Notice proposes to exempt the Sale transaction from ``[t]he 
restrictions of section 406(a)(1)(A), 406(b)(1) and (b)(2) of the Act 
and the sanctions resulting from the application of section 4975 of the 
Code, by reason of section 4975(c)(1)(A) and (E) of the Code.'' With 
respect to this provision, the Applicant requested that the scope of 
exemptive relief for the Sale transaction be expanded to encompass 
relief from the restrictions of section 406(a), generally. The 
Applicant commented that the Sale could be viewed as a ``transfer to * 
* * a party in interest, of any assets of the plan,'' within the 
meaning of section 406(a)(1)(D) of the Act.\3\ The Applicant further 
commented that it is possible that aspects of the Sale could be deemed 
to constitute the ``lending of money or other extension of credit 
between the plan and a party in interest,'' within the meaning of 
section 406(a)(1)(B) of the Act, especially if the Sale is viewed in 
conjunction with the other transactions described in Section I(a) of 
the Notice. Additionally, the Applicant noted in its comment that, in 
granting a number of recent individual exemptions covering 
substantially similar sale transactions and containing substantially 
similar conditions, the Department has provided relief in many of these 
exemptions from all of the provisions of section 406(a) of the Act.\4\ 
Accordingly, in light of these recent exemptions, the Applicant stated 
that it saw no reason that the Sale should not be covered by the same 
scope of relief.
---------------------------------------------------------------------------

    \3\ References made in the Applicant's comment letter to section 
406 of the Act shall be deemed to include references to the 
corresponding provisions of section 4975 of the Code.
    \4\ Among the numerous individual exemptions cited by the 
Applicant's comment in support of its request for relief from all of 
the restrictions of section 406(a) of the Act were: (1) PTE 2011-07 
(exempting a one-time cash sale of certain auction-rate securities 
by a plan to a party in interest from all of the restrictions of 
section 406(a) of the Act; (2) PTE 2009-27 (exempting a one-time 
cash sale of certain Lehman-issued securities by a fund to a party 
in interest of certain plans invested therein from the restrictions 
of section 406(a)(1)(A) through (D) of the Act); and (3) PTE 2008-12 
(exempting a one-time cash sale of certain notes by a fund to a 
party in interest of certain plans invested therein from all of the 
restrictions of section 406(a) of the Act).
---------------------------------------------------------------------------

    In response, the Department has determined, on its own motion, to 
extend the scope of relief covered by Section I(b) of the exemption to 
include sections 406(a)(1)(B) of the Act, as well as of sections 
4975(c)(1)(B) of the Code. The Department is of the view that expanding 
the scope of exemptive relief offered in Section I(b) of the Grant to 
include the foregoing provisions of the Act and the Code is 
appropriate, insofar as Section II(b)(6) of both the Notice and the 
Grant generally requires FRC, as a condition of relief, to refund any 
excess proceeds (plus interest) arising as a consequence of any 
recovery from the issuer of the Notes (or any third party) in 
connection with the exercise of any of FRC's rights, claims, or causes 
of action associated with its pre-Sale ownership of the Notes. Such a 
recovery could result in, or be construed as, an extension of credit 
between FRC and the Funds. Accordingly, the Department amends the 
opening words of Section I(b) in the final Grant of exemption to read 
as follows:

    ``(b) The restrictions of section 406(a)(1)(A), (a)(1)(B), 
406(b)(1), and 406(b)(2) of the Act, and the sanctions resulting 
from the application of section 4975 of the Code, by reason of 
section 4975(c)(1)(A), (c)(1)(B), and (c)(1)(E) of the Code shall 
not apply * * *''


[[Page 70495]]


    4. In its written comment, the Applicant also noted that Section 
II(b)(6) of the Notice provides that FRC must refund to the Funds any 
amounts that FRC may recover from the issuer of the Notes or any third 
party that is in excess of the sum of the Sale price paid by FRC for 
the Notes plus any interest on such Sale price paid from September 10, 
2010 to September 14, 2010, inclusive, made by FRC to the Funds. The 
Applicant pointed out, however, that the corresponding conditions for 
relief found in a number of recent individual exemptions covering 
substantially similar sale transactions required the refund of any 
amounts recovered in excess of the applicable purchase price plus 
interest through the date of recovery.\5\ The Applicant also noted 
that, in these corresponding conditions, the applicable interest rate 
credited to the purchase price correlated to an interest rate that was 
tied to the purchased securities. Therefore, the Applicant opined that 
the content of Section II(b)(6) of the Grant should not differ in 
substance from the corresponding conditions for exemptive relief found 
in recent, similar exemptions. For the foregoing reasons, the Applicant 
requested in its comment that Section II(b)(6) be amended in the Grant 
to require the refund to the Funds of any amounts that FRC may receive 
in excess of (i) the Sale proceeds paid for the Notes by FRC, plus (ii) 
interest on such Sale price paid for the Notes from and after September 
10, 2010, determined at the face interest rate for the applicable 
Note.\6\ Accordingly, after due consideration, the Department concurs 
with the Applicant's comment, and has determined to amend the text of 
Section II(b)(6) in the Grant to read as follows:
---------------------------------------------------------------------------

    \5\ Among the numerous individual exemptions cited by the 
Applicant's comment in support of its suggested revision to Section 
II(b)(6) of the Notice governing the refund of excess proceeds 
received from the Sale of the Notes were PTE 2011-07 (see Section 
I(i)); PTE 2009-27 (see Condition (g)); and PTE 2008-12 (see 
Condition (f)).
    \6\ The face interest rates for the various Notes that were the 
subject of the Sale transaction covered by this exemption are 
displayed in a chart contained in the Notice, which is located at 
the conclusion of Representation 15 near the top of page 34266 of 
the June 13, 2011 issue of the Federal Register.

    ``(6) If the exercise of any of FRC's rights, claims, or causes 
of action in connection with its ownership of the Notes results in 
recovering from the issuer of the Notes, or any third party, an 
aggregate amount that is in excess of the sum of (i) The Sale price 
paid for the Notes by FRC; and (ii) interest on such Sale price paid 
for the Notes from and after September 10, 2010, determined at the 
face interest rate for the applicable Note, then FRC will refund 
such excess amount promptly to the Funds (after deducting all 
---------------------------------------------------------------------------
reasonable expenses incurred in connection with the recovery);''

    5. In its comment, the Applicant also requested that the Department 
amend and correct certain language contained in the first sentence of 
the second paragraph of Representation 12 of the ``Summary of Facts and 
Representations'' section of the Notice (which is located in the first 
column of page 34265 of the aforementioned issue of the Federal 
Register) and in the third sentence of Representation 15 of the Notice 
(located in the third column of page 34265) concerning the formula to 
be used to compute the price of the Notes in the event of their sale to 
RTC. Specifically, the Applicant noted in its comment that the Revised 
CSAs did not contain a new provision stipulating the formula for 
determining such a sale price; rather, the Independent Fiduciary 
negotiated this formulaic price for the Notes within a separate term 
sheet prior to the consummation of the Sale. Accordingly, the 
Department has corrected the text of the Notice by deleting the words 
``to include a new provision in each of the Revised CSAs stipulating'' 
that appears after the word ``Funds'' in the first sentence of the 
second paragraph of Representation 12; similarly, the text of the 
Notice is further corrected by deleting the words ``Revised CSAs with 
each of the Funds'' that appears in the parenthetical clause of the 
third sentence of Representation 15 and substituting in lieu thereof 
the words ``term sheet negotiated by the Independent Fiduciary''.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the text of the Notice that begins at 76 FR 34261 (June 13, 2011).

FOR FURTHER INFORMATION CONTACT: Mr. Mark Judge of the Department at 
(202) 693-8550 (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 7th day of November 2011.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2011-29234 Filed 11-10-11; 8:45 am]
BILLING CODE 4510-29-P