Exemption From Certain Prohibited Transaction Restrictions Involving the Goldman Sachs Group, Inc. (Goldman Sachs or the Applicant) Located in New York, New York, 28896-28905 [2021-11366]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 86, Number 102 (Friday, May 28, 2021)]
[Notices]
[Pages 28896-28905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11366]


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

DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2021-02; Exemption Application No. D-
12030]


Exemption From Certain Prohibited Transaction Restrictions 
Involving the Goldman Sachs Group, Inc. (Goldman Sachs or the 
Applicant) Located in New York, New York

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of exemption.

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

SUMMARY: This document contains a notice of exemption 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). The exemption affects the ability of certain entities with 
specified relationships to Goldman Sachs to continue to rely upon 
relief provided by Prohibited Transaction Exemption 84-14 (PTE-84-14).

DATES: This exemption will be in effect for a period of up to five (5) 
years, beginning on the date of the conviction of Goldman Sachs 
(Malaysia) Sdn. Bhd. (Goldman Sachs Malaysia), an indirect, wholly-
owned subsidiary of Goldman Sachs, provided that the conditions set out 
below in Section I are satisfied.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Brennan of the Department 
at (202) 693-8456. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On January 4, 2021, the Department published 
a notice of proposed exemption in the Federal Register at 86 FR 131, 
permitting certain entities with specified relationships to Goldman 
Sachs and Goldman Sachs Malaysia to continue to rely upon the relief 
provided by PTE 84-14 \1\ for a period of five years, notwithstanding 
the criminal conviction of Goldman Sachs Malaysia for conspiracy to 
violate the anti-bribery provisions of the Foreign Corrupt Practices 
Act of 1977 (the Goldman Sachs Malaysia FCPA Conviction).
---------------------------------------------------------------------------

    \1\ 49 FR 9494, March 13, 1984, as corrected at 50 FR 41430 
(October 10, 1985), as amended at 70 FR 49305 (August 23, 2005) and 
as amended at 75 FR 38837 (July 6, 2010), hereinafter referred to as 
PTE 84-14 or the QPAM exemption.
---------------------------------------------------------------------------

    The Department is granting this exemption to ensure that Covered 
Plans \2\ with assets managed by an asset

[[Page 28897]]

manager within the corporate family of Goldman Sachs may continue to 
benefit from the relief provided by PTE 84-14.
---------------------------------------------------------------------------

    \2\ ``Covered Plan'' is a plan subject to Part 4 of Title 1 of 
ERISA (``ERISA-covered plan'') or a plan subject to section 4975 of 
the Code (``IRA'') with respect to which a Goldman Sachs Affiliated 
QPAM or a Goldman Sachs Related QPAM relies on PTE 84-14, or with 
respect to which a Goldman Sachs Affiliated QPAM or a Goldman Sachs 
Related QPAM (or any Goldman Sachs affiliate) has expressly 
represented that the manager qualifies as a QPAM or relies on the 
QPAM class exemption (PTE 84-14). A Covered Plan does not include an 
ERISA-covered plan or IRA to the extent the Goldman Sachs Affiliated 
QPAM or a Goldman Sachs Related QPAM has expressly disclaimed 
reliance on QPAM status or PTE 84-14 in entering into its contract, 
arrangement, or agreement with the ERISA-covered plan or IRA.
---------------------------------------------------------------------------

    The grant of this five-year exemption does not imply that the 
Department will grant additional relief for the Goldman Sachs 
Affiliated QPAMs and the Goldman Sachs Related QPAMs to continue to 
rely on the relief in PTE 84-14 beyond the end of this exemption's 
five-year term. This exemption provides only the relief specified in 
the text of the exemption, and only with respect to the criminal 
convictions or criminal conduct described herein. It provides no relief 
from violations of any law other the prohibited transaction provisions 
of ERISA and the Code.
    The Department intends for the terms of this exemption to promote 
adherence to basic fiduciary standards under ERISA and the Code. This 
exemption also aims to ensure that Covered Plans can terminate 
relationships in an orderly and cost-effective fashion in the event the 
fiduciary of a Covered Plan determines it is prudent to terminate the 
relationship with a Goldman Sachs Affiliated QPAM or a Goldman Sachs 
Related QPAM. The Department makes the requisite findings under ERISA 
section 408(a) based on adherence to all the conditions of the 
exemption. Accordingly, affected parties should be aware that the 
conditions incorporated in this exemption are, taken as a whole, 
necessary for the Department to grant the relief requested by the 
Applicant. Absent these or similar conditions, the Department would not 
have granted this exemption.
    The Applicant requested an individual exemption pursuant to section 
408(a) of ERISA and section 4975(c)(2) of the Code, and in accordance 
with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 
66637, 66644, October 27, 2011). Effective December 31, 1978, section 
102 of the Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), 
transferred the authority of the Secretary of the Treasury to issue 
administrative exemptions under section 4975(c)(2) of the Code to the 
Secretary of Labor. Accordingly, the Department grants this exemption 
under its sole authority.

Department's Comment

    The Department cautions that the relief in this exemption will 
terminate immediately if an entity within the Goldman Sachs corporate 
structure is convicted of a crime described in Section I(g) of PTE 84-
14 (other than the Goldman Sachs Malaysia Conviction) during the 
Exemption Period. Although the Goldman Sachs Affiliated QPAMs and the 
Goldman Sachs Related QPAMs could apply for a new exemption in that 
circumstance, the Department would not be obligated to grant the 
exemption. The Department specifically designed the terms of this 
exemption to permit plans to terminate their relationships in an 
orderly and cost effective fashion in the event of an additional 
conviction, or the expiration of this exemption without additional 
relief, or a determination that it is otherwise prudent for a plan to 
terminate its relationship with an entity covered by the exemption.

Written Comments

    The Department invited all interested persons to submit written 
comments and/or requests for a public hearing with respect to the 
notice of proposed exemption. In this regard, the Applicant was given 
seven days to provide notice to interested persons, and all comments 
and requests for a hearing were initially due by February 10, 2021. 
However, the Applicant subsequently informed the Department that the 
Applicant did not provide notice to 968 interested persons within the 
seven day period. Accordingly, the Department extended the comment 
period for those persons to March 6, 2021. The Department received two 
written comments: One from the Applicant and one from a member of the 
public. After considering the entire record developed in connection 
with the Applicant's exemption request, the Department has determined 
to grant the exemption, as described below.

Comments From Goldman Sachs

I. Certification of Audit Report

    Section I(i)(8) of the proposed exemption states: ``The Goldman 
Sachs Board of Directors is provided a copy of the Audit Report; and a 
senior executive officer of the Audit Committee established by the 
Goldman Sachs Board of Directors must review the Audit Report for each 
Goldman Sachs QPAM and must certify in writing, under penalty of 
perjury, that such officer has reviewed the Audit Report.''
    The Applicant states that the Audit Committee of Goldman Sachs' 
Board of Directors is composed solely of independent directors and, 
accordingly, there is no Goldman Sachs ``senior executive officer'' who 
is an Audit Committee member.
    The Applicant requests that the Department revise Section I(i)(8) 
of the proposed exemption to require that the Audit Report be reviewed 
by the Chairperson of the Audit Committee and one of: (a) The general 
counsel of the Goldman Sachs Affiliated QPAM to which the Audit Report 
applies; (b) one of the three most senior executive officers of the 
Goldman Sachs Affiliated QPAM to which the Audit Report applies; or (c) 
the Chief Compliance Officer of Goldman Sachs. The Applicant further 
requests that the Department replace the language that reads, ``and 
must certify in writing, under penalty of perjury, that such officer 
has reviewed the Audit Report,'' with ``certify in writing, under 
penalty of perjury, that a copy of such Audit Report was provided to 
the Board of Directors and that the Audit Report was reviewed with the 
Chairperson of the Audit Committee.''
    Section I(i)(8) of this Exemption: The Department agrees with the 
Applicant's comment, and Section I(i)(8) of this exemption is now 
consistent with the Applicant's request, but has additional clarifying 
language. Section I(i)(8) of this exemption now reads, in relevant 
part: ``. . . must certify in writing, under penalty of perjury, that a 
copy of such Audit Report was provided to the Board of Directors, and 
that the Audit Report was reviewed with and by the Chairperson of the 
Audit Committee . . .''

II. Timing of Notices

A. Notice of Obligations

    Section I(j)(7) of the proposed exemption states: ``Within four (4) 
months of the effective date of this five-year exemption, each Goldman 
Sachs Affiliated QPAM must provide a notice of its obligations under 
this Section I(j) to each Covered Plan. For Covered Plans that enter 
into a written asset or investment management agreement with a Goldman 
Sachs Affiliated QPAM on or after the effective date of this exemption, 
if granted, the Goldman Sachs Affiliated QPAM must agree to its 
obligations under this Section I(j) in an updated investment management 
agreement between the Goldman Sachs Affiliated QPAM and such clients, 
or other written contractual agreement. Notwithstanding the above, a 
Goldman Sachs Affiliated QPAM will not violate the condition solely 
because a Plan or

[[Page 28898]]

IRA refuses to sign an updated investment management agreement.''
    The Applicant states that it will be operationally difficult for 
the Goldman Sachs Affiliated QPAMs to provide these prospective clients 
with physical copies of such documents beginning on the effective date, 
given the various system-driven account opening processes utilized 
among the impacted lines of business. According to the Applicant, it is 
probable that many such prospective clients have already received 
copies of current account opening agreements, which they are reviewing 
and will sign and return over the following several weeks or months. 
The Applicant requests clarification that, with respect to Covered 
Plans that enter into a written investment management agreement on or 
after the effective date of the exemption, the Goldman Sachs Affiliated 
QPAMs may provide the updated written investment management agreements 
within four months of the effective date of the exemption.
    Section I(j)(7) of this Exemption: The Department agrees with the 
Applicant's comment, and Section I(j)(7) of this exemption is now 
consistent with the Applicant's request.

B. Notice to Covered Plans

    Section I(k) of the proposed exemption states: ``Within 60 days of 
the effective date of this five-year exemption, each Goldman Sachs 
Affiliated QPAM will provide a Federal Register copy of the notice of 
the exemption, along with a separate summary describing the facts that 
led to the Goldman Sachs Malaysia FCPA Conviction (the Summary), which 
has been submitted to the Department, and a prominently displayed 
statement (the Statement) that the Goldman Sachs Malaysia FCPA 
Conviction results in a failure to meet a condition in PTE 84-14, to 
each sponsor and beneficial owner of a Covered Plan that has entered 
into a written asset or investment management agreement with a Goldman 
Sachs Affiliated QPAM, or the sponsor of an investment fund in any case 
where a Goldman Sachs Affiliated QPAM acts as a sub-advisor to the 
investment fund in which such ERISA-covered plan and IRA invests. All 
Covered Plan clients that enter into a written asset or investment 
management agreement with a Goldman Sachs Affiliated QPAM after that 
date must receive a copy of the notice of the exemption, the Summary, 
and the Statement prior to, or contemporaneously with, the Covered 
Plan's receipt of a written asset or investment management agreement 
from the Goldman Sachs Affiliated QPAM. The notices may be delivered 
electronically (including by an email that has a link to the five-year 
exemption).''
    The Applicant requests a revision clarifying that the phrase 
``Covered Plan clients that enter into a written asset or investment 
management agreement with a Goldman Sachs Affiliated QPAM after that 
date'' refers to Covered Plans that enter into a written asset or 
investment management agreement after a date that is sixty days from 
the effective date of the exemption.
    Section I(k) of this Exemption: The Department agrees with the 
Applicant's comment, and Section I(k) of this exemption is now 
consistent with the Applicant's request.

III. Compliance Officer

    Section I(m)(1) of the proposed exemption, which provides for 
designation of a Compliance Officer, states: ``Within 60 days of the 
effective date of this exemption, Goldman must designate a senior 
compliance officer (the Compliance Officer) who will be responsible for 
compliance with the Policies and Training requirements described 
herein. . . With respect to the Compliance Officer, the following 
conditions must be met: (i) The Compliance Officer must be a 
professional who has extensive experience with, and knowledge of, the 
regulation of financial services and products, including under ERISA 
and the Code; and (ii) The Compliance Officer must have a direct 
reporting line within [Goldman's] Audit Committee and a direct 
reporting line to the highest ranking corporate officer in charge of 
compliance for the applicable Goldman Sachs Affiliated QPAM.''
    The Applicant states that this condition, as written, cannot be 
fulfilled within the Applicant's organization because no compliance 
officer has a direct reporting line within the Applicant's Audit 
Committee. The Applicant states that the most senior compliance officer 
within the organization regularly provides reports directly to the 
Audit Committee, but does not formally report to the Committee.
    The Applicant further states that, with respect to the second 
clause of the condition, the most senior compliance officer within the 
organization (i.e., the only compliance officer with a reporting 
relationship to the Audit Committee) would not have a reporting line to 
the highest-ranking compliance officer for any Goldman Sachs Affiliated 
QPAM, as the former is senior to the latter. In order to ensure the 
condition is met, the Applicant requests that the condition require 
appointment of one or more Compliance Officers who are: (i) A 
compliance officer who regularly reports to the Audit Committee, (ii) 
the highest-ranking compliance officer at the Goldman Sachs Affiliated 
QPAM, or (iii) a compliance officer who reports to the highest ranking 
compliance officer at the QPAM.
    In addition, the Applicant requests that the Department provide 
clarification by confirming that each Goldman Sachs Affiliated QPAM or 
relevant line of business may designate its own compliance officer.
    Section I(m) of this Exemption: The Department agrees, in part, 
with the Applicant's comment, and Section I(m) of this exemption now 
allows each Goldman Sachs Affiliated QPAM to designate its own 
compliance officer. The designated compliance officer must be someone 
who regularly reports to the Goldman Sachs Audit Committee or who is 
the highest-ranking compliance officer at the Goldman Sachs Affiliated 
QPAM. However, the Applicant has not demonstrated the necessity of 
allowing a Compliance Officer to include a person who reports to the 
highest ranking compliance officer at the QPAM.

IV. Other Clarifications

A. Policies and Training

    Section I(h)(1) of the proposed exemption states: ``Within four 
months of the effective date of this five-year exemption, each Goldman 
Sachs Affiliated QPAM must immediately develop, maintain, implement, 
and follow written policies and procedures (the Policies) . . .''
    Section I(h)(3) of the proposed exemption states: ``Within six 
months of the effective date of the exemption, each Goldman Sachs 
Affiliated QPAM must immediately develop, maintain, adjust (to the 
extent necessary) and implement a program of training during the 
Exemption Period, to be conducted at least annually, for all relevant 
Goldman Sachs Affiliated QPAM asset/portfolio management, trading, 
legal, compliance, and internal audit personnel . . .''
    The Applicant requests that the Department increase the development 
period in section I(h)(1) of the proposed exemption to six months. The 
Applicant states that Goldman Sachs Affiliated QPAMs manage assets for 
hundreds of ERISA plan mandates through separate accounts, more than 
14,000 IRAs, and several collective investment trusts through various 
lines of business. The Applicant states that many of those businesses 
have different compliance

[[Page 28899]]

officers (along with the various levels within the businesses 
themselves) that must coordinate to implement and review compliance 
routines and surveillance measures, as well as oversee the 
implementation of the Policies. The Applicant states that a six-month 
period would align with the period for development of the Training, as 
set forth in Section I(h)(3) of the proposed exemption.
    The Applicant requests the corresponding deletion of the term 
``immediately'' in Section I(h)(1) of the proposed exemption 
(concerning the Policies) and Section I(h)(3) of the proposed exemption 
(concerning the Training).
    Section I(h)(1) and (h)(3) of this Exemption: The Department agrees 
with the Applicant's comment, and Sections I(h)(1) and I(h)(3) of this 
exemption are now consistent with the Applicant's request.

B. Completion of Audit Report

    Section I(i)(1) of the proposed exemption states: ``The first audit 
must cover the twelve month period that ends on the date that is two 
years following the date of the Goldman Sachs Malaysia FCPA Conviction, 
and must be completed within sixty days thereafter. The second audit 
must cover the twelve month period that ends on the date that is four 
years following the date of the Goldman Sachs Malaysia FCPA Conviction, 
and must be within completed sixty days thereafter. The third audit 
must cover the fifth year covered by this exemption, and must be 
completed within sixty days thereafter.''
    The Applicant requests that, consistent with the Department's other 
exemptions and in order for the exemption to be workable for any 
independent auditor selected by the Applicant, the auditor have six 
months after the close of each audit period to complete the Audit 
Report for that period.
    Section I(i)(1) of this Exemption: The Department agrees with the 
Applicant's comment, and Section I(i)(1) of this exemption is now 
consistent with the Applicant's request.

D. Right To Obtain Policies

    Section I(r) of the proposed exemption states: ``Within 60 days of 
the effective date of the five-year exemption, each Goldman Sachs 
Affiliated QPAM, in its agreements with, or in other written 
disclosures provided to Covered Plans, will clearly and prominently 
inform Covered Plan clients of their right to obtain a copy of the 
Policies or a description (Summary Policies) which accurately 
summarizes key components of the Goldman Sachs Affiliated QPAM's 
written Policies developed in connection with this exemption . . .''
    The Applicant requests that this condition be modified to provide 
for notice of Covered Plans' right to obtain the Policies or Summary 
Policies within sixty days after the date on which the Policies must be 
completed under the terms of the exemption, rather than sixty days 
after the effective date.
    Section I(r) of this Exemption: The Department agrees with the 
Applicant's comment, and Section I(r) of this exemption is now 
consistent with the Applicant's request.

E. Definition of ``Affiliated QPAMs''

    Section II(d) of the proposed exemption defines the term ``Goldman 
Sachs Affiliated QPAM'' to mean: ``The Goldman Sachs Trust Company, 
N.A.; Goldman Sachs Bank USA; Goldman Sachs & Co. LLC; Goldman Sachs 
Asset Management, L.P.; Goldman Sachs Asset Management International; 
Goldman Sachs Hedge Fund Strategies LLC; GS Investment Strategies, LLC; 
GSAM Stable Value, LLC; The Ayco Company, L.P.; Aptitude Investment 
Management LP; Rocaton Investment Advisors, LLC; United Capital 
Financial Advisers, LLC; and PFE Advisors, Inc., and any future 
`affiliate' of Goldman (as defined in Part VI(d) of PTE 84-14) that 
qualifies as a 'qualified professional asset manager' (as defined in 
Section VI(a) of PTE 84-14) and that relies on the relief provided by 
PTE 84-14. The term `Goldman Sachs Affiliated QPAMs' excludes Goldman 
Sachs Malaysia.''
    The Applicant requests that the Department modify the definition of 
Goldman Sachs Affiliated QPAM so that it covers all of the Applicant's 
current affiliates, not just the specific existing QPAMs listed in the 
application and future affiliates.
    Section II(d) of this Exemption: The Department agrees with the 
Applicant's comment, and Section II(d) of this exemption is now 
consistent with the Applicant's request.

V. Additional Requested Revisions

    In addition to the comments noted above, the Applicant requested 
the Department note the following regarding certain statements in the 
Proposed Exemption:
    A. Paragraph 8 of the proposed exemption states: ``For purposes of 
Section I(g) of PTE 84-14, the date Goldman is sentenced is the 
Conviction Date.'' The Applicant notes that, ``Goldman Sachs Malaysia'' 
is the pleading entity.
    B. Paragraph 10 of the proposed exemption states: ``Tim Leissner 
(Leissner) was employed by Goldman between 1998 and 2016.'' The 
Applicant notes that Leissner was never employed by Goldman itself, but 
by various Goldman subsidiaries.

Comment From the Public

    The Department received one comment from the public. The commenter 
requested that the Department deny the Applicant's exemption request, 
without raising any substantive issues.
    After full consideration and review of the entire record, the 
Department has decided to grant the exemption, with the modifications 
discussed above. The complete application file (D-12030) is available 
in the Public Disclosure Room of the Employee Benefits Security 
Administration, Room N-1515, U.S. Department of Labor, 200 Constitution 
Avenue NW, Washington, DC 20210. 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 
January 4, 2021 at 86 FR 131.

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 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 of the Act and/or the Code, 
including any prohibited transaction 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 or her 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) In accordance with section 408(a) of ERISA and section 
4975(c)(2) of the Code, the Department makes the following 
determinations: The exemption is administratively feasible, the 
exemption is in the interests of affected plans and of their 
participants and beneficiaries, and the exemption is protective of the 
rights of participants and beneficiaries of such plans;

[[Page 28900]]

    (3) The exemption is supplemental to, and not in derogation of, any 
other provisions of ERISA, including statutory or administrative 
exemptions and transitional 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
    (4) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describe all material terms of the transaction 
which is the subject of the exemption.
    Accordingly, the following exemption is granted under the authority 
of section 408(a) of ERISA and section 4975(c)(2) of the Code and in 
accordance with the procedures set forth in 29 CFR part 2570, subpart B 
(76 FR 66637, 66644, October 27, 2011):

Exemption

Section I. Covered Transactions

    The Goldman Sachs Affiliated QPAMs and the Goldman Sachs Related 
QPAMs (as defined in Section II(d) and (e)) will not be precluded from 
relying on the exemptive relief provided by Prohibited Transaction 
Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption) \3\ during the 
Exemption Period, notwithstanding the Goldman Sachs Malaysia 
Conviction, as defined in Section II(a), provided that the following 
conditions are satisfied:
---------------------------------------------------------------------------

    \3\ 49 FR 9494 (March 13, 1984), as corrected at 50 FR 41430, 
(October 10, 1985), as amended at 70 FR 49305(August 23, 2005), and 
as amended at 75 FR 38837 (July 6, 2010).
---------------------------------------------------------------------------

    (a) Other than a single individual who worked for a non-fiduciary 
business within a Goldman Sachs Affiliated QPAM, and who had no 
responsibility for, and exercised no authority in connection with, the 
management of plan assets, the Goldman Sachs Affiliated QPAMs and 
Goldman Sachs Related QPAMs (including their officers, directors, 
agents (other than Goldman Sachs Malaysia), and the employees of the 
Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs) did not 
know of, did not have reason to know of, or did not participate in the 
criminal conduct of Goldman Sachs Malaysia that is the subject of the 
Goldman Sachs Malaysia Conviction. Further, any other party engaged on 
behalf of the Goldman Sachs Affiliated QPAMs and Goldman Sachs Related 
QPAMs who had responsibility for, or exercised authority in connection 
with the management of plan assets did not know of, did not have reason 
to know of, or participate in the criminal conduct of Goldman Sachs 
Malaysia that is the subject of the Goldman Sachs Malaysia Conviction. 
For purposes of this proposed exemption, ``participate in'' refers not 
only to active participation in the criminal conduct that is the 
subject of the Goldman Sachs Malaysia Conviction, but also to knowing 
approval of the criminal conduct, or knowledge of such conduct without 
taking active steps to prohibit such conduct, including reporting the 
conduct to the individual's supervisors, and to the Board of Directors;
    (b) Other than a single individual who worked for a non-fiduciary 
business within a Goldman Sachs Affiliated QPAM, and who had no 
responsibility for, and exercised no authority in connection with, the 
management of plan assets, the Goldman Sachs Affiliated QPAMs and the 
Goldman Sachs Related QPAMs (including their officers, directors, 
agents (other than Goldman Sachs Malaysia), and employees of such 
Goldman Sachs Affiliated QPAMs) did not receive direct compensation, or 
knowingly receive indirect compensation, in connection with the 
criminal conduct of Goldman Sachs Malaysia that is the subject of the 
Goldman Sachs Malaysia Conviction. Further, any other party engaged on 
behalf of the Goldman Sachs Affiliated QPAMs and the Goldman Sachs 
Related QPAMs who had responsibility for, or exercised authority in 
connection with the management of plan assets did not receive direct 
compensation, or knowingly receive indirect compensation, in connection 
with the criminal conduct of Goldman Sachs Malaysia that is the subject 
of the Goldman Sachs Malaysia Conviction;
    (c) The Goldman Sachs Affiliated QPAMs do not currently and will 
not in the future employ or knowingly engage any of the individuals who 
participated in the criminal conduct of Goldman Sachs Malaysia that is 
the subject of the Goldman Sachs Malaysia Conviction;
    (d) At all times during the Exemption Period, no Goldman Sachs 
Affiliated QPAM will use its authority or influence to direct an 
``investment fund'' (as defined in Section VI(b) of PTE 84-14) that is 
subject to ERISA or the Code and managed by such Goldman Sachs 
Affiliated QPAM with respect to one or more Covered Plans (as defined 
in Section II(b)) to enter into any transaction with Goldman Sachs 
Malaysia or to engage Goldman Sachs Malaysia to provide any service to 
such investment fund, for a direct or indirect fee borne by such 
investment fund, regardless of whether such transaction or service may 
otherwise be within the scope of relief provided by an administrative 
or statutory exemption;
    (e) Any failure of a Goldman Sachs Affiliated QPAM or a Goldman 
Sachs Related QPAM to satisfy Section I(g) of PTE 84-14 arose solely 
from the Goldman Sachs Malaysia Conviction;
    (f) A Goldman Sachs Affiliated QPAM or a Goldman Sachs Related QPAM 
did not exercise authority over the assets of any plan subject to Part 
4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the 
Code (an IRA) in a manner that it knew or should have known would 
further the criminal conduct that is the subject of the Goldman Sachs 
Malaysia Conviction; or cause the Goldman Sachs Affiliated QPAM, 
Related QPAM or its affiliates to directly or indirectly profit from 
the criminal conduct that is the subject of the Goldman Sachs Malaysia 
Conviction;
    (g) Other than with respect to employee benefit plans maintained or 
sponsored for its own employees or the employees of an affiliate, 
Goldman Sachs Malaysia will not act as a fiduciary within the meaning 
of section 3(21)(A)(i) or (iii) of ERISA, or section 4975(e)(3)(A) and 
(C) of the Code, with respect to ERISA-covered plan and IRA assets; 
provided, however, that Goldman Sachs Malaysia will not be treated as 
violating the conditions of this exemption solely because they acted as 
an investment advice fiduciary within the meaning of section 
3(21)(A)(ii) of ERISA or section 4975(e)(3)(B) of the Code;
    (h)(1) Within six months of the effective date of this five-year 
exemption, each Goldman Sachs Affiliated QPAM must develop, maintain, 
implement, and follow written policies and procedures (the Policies). 
The Policies must require, and must be reasonably designed to ensure 
that:
    (i) The asset management decisions of the Goldman Sachs Affiliated 
QPAM are conducted independently of Goldman Sachs' corporate management 
and business activities, and the corporate management and business 
activities of Goldman Sachs' Malaysia. This condition does not preclude 
a Goldman Sachs Affiliated QPAM from receiving publicly available 
research and other widely available information from Goldman Sachs 
Malaysia;
    (ii) The Goldman Sachs Affiliated QPAM fully complies with ERISA's 
fiduciary duties, and with ERISA and the Code's prohibited transaction 
provisions, in each case as applicable with respect to each Covered 
Plan, and does not knowingly participate in any

[[Page 28901]]

violation of these duties and provisions with respect to Covered Plans;
    (iii) The Goldman Sachs Affiliated QPAM does not knowingly 
participate in any other person's violation of ERISA or the Code with 
respect to Covered Plans;
    (iv) Any filings or statements made by the Goldman Sachs Affiliated 
QPAM to regulators, including, but not limited to, the Department, the 
Department of the Treasury, the Department of Justice, and the Pension 
Benefit Guaranty Corporation, on behalf of or in relation to Covered 
Plans, are materially accurate and complete, to the best of such QPAM's 
knowledge at that time;
    (v) To the best of its knowledge at that time, the Goldman Sachs 
Affiliated QPAM does not make material misrepresentations or omit 
material information in its communications with such regulators with 
respect to Covered Plans, or make material misrepresentations or omit 
material information in its communications with Covered Plans; and
    (vi) The Goldman Sachs Affiliated QPAM complies with the terms of 
this five-year exemption;
    (2) Any violation of, or failure to comply with an item in 
subparagraphs (h)(1)(ii) through (vi), is corrected as soon as 
reasonably possible upon discovery, or as soon after the QPAM 
reasonably should have known of the noncompliance (whichever is 
earlier), and any such violation or compliance failure not so corrected 
is reported, upon the discovery of such failure to so correct, in 
writing. This report must be made to the head of compliance and the 
general counsel (or their functional equivalent) of the relevant 
Goldman Sachs Affiliated QPAM that engaged in the violation or failure, 
and the independent auditor responsible for reviewing compliance with 
the Policies. A Goldman Sachs Affiliated QPAM will not be treated as 
having failed to develop, implement, maintain, or follow the Policies, 
provided that it corrects any instance of noncompliance as soon as 
reasonably possible upon discovery, or as soon as reasonably possible 
after the Goldman Sachs Affiliated QPAM reasonably should have known of 
the noncompliance (whichever is earlier), and provided that it adheres 
to the reporting requirements set forth in this subparagraph (2);
    (3) Within six months of the effective date of the exemption, each 
Goldman Sachs Affiliated QPAM must develop, maintain, adjust (to the 
extent necessary) and implement a program of training during the 
Exemption Period, to be conducted at least annually, for all relevant 
Goldman Sachs Affiliated QPAM asset/portfolio management, trading, 
legal, compliance, and internal audit personnel. The Training must:
    (i) At a minimum, cover the Policies, ERISA and Code compliance 
(including applicable fiduciary duties and the prohibited transaction 
provisions), ethical conduct, the consequences for not complying with 
the conditions of this exemption (including any loss of exemptive 
relief provided herein), and the requirement for prompt reporting of 
wrongdoing; and
    (ii) Be conducted by a professional who has been prudently selected 
and who has appropriate technical training and proficiency with ERISA 
and the Code to perform the tasks required by this exemption;
    (i)(1) Each Goldman Sachs Affiliated QPAM submits to three audits 
conducted by an independent auditor, who has been prudently selected 
and who has appropriate technical training and proficiency with ERISA 
and the Code, to evaluate the adequacy of, and each Goldman Sachs 
Affiliated QPAM's compliance with, the Policies and Training described 
herein. The audit requirement must be incorporated in the Policies. The 
first audit must cover the twelve month period that ends on the date 
that is two years following the date of the Goldman Sachs Malaysia 
Conviction, and must be completed within six months thereafter. The 
second audit must cover the twelve month period that ends on the date 
that is four years following the date of the Goldman Sachs Malaysia 
Conviction, and must be completed within six months thereafter. The 
third audit must cover the fifth year covered by this exemption, and 
must be completed within six months thereafter. The corresponding 
certified Audit Reports must be submitted to the Department no later 
than 45 days following the completion of the audit.
    (2) Within the scope of the audit and to the extent necessary for 
the auditor, in its sole opinion, to complete its audit and comply with 
the conditions for relief described herein, and only to the extent such 
disclosure is not prevented by state or federal statute, or involves 
communications subject to attorney-client privilege, each Goldman Sachs 
Affiliated QPAM and, if applicable, Goldman Sachs, will grant the 
auditor unconditional access to its business, including, but not 
limited to: Its computer systems; business records; transactional data; 
workplace locations; training materials; and personnel. Such access is 
limited to information relevant to the auditor's objectives as 
specified by the terms of this exemption;
    (3) The auditor's engagement must specifically require the auditor 
to determine whether each Goldman Sachs Affiliated QPAM has developed, 
implemented, maintained, and followed the Policies in accordance with 
the conditions of this five-year exemption, and has developed and 
implemented the Training, as required herein;
    (4) The auditor's engagement must specifically require the auditor 
to test each Goldman Sachs Affiliated QPAM's operational compliance 
with the Policies and Training. In this regard, the auditor must test, 
for each Goldman Sachs Affiliated QPAM, a sample of such Goldman Sachs 
Affiliated QPAM's transactions involving Covered Plans, sufficient in 
size and nature to afford the auditor a reasonable basis to determine 
such Goldman Sachs Affiliated QPAM's operational compliance with the 
Policies and Training;
    (5) For each audit, on or before the end of the relevant period 
described in Section I(i)(1) for completing the audit, the auditor must 
issue a written report (the Audit Report) to Goldman Sachs and the 
Goldman Sachs Affiliated QPAM to which the audit applies that describes 
the procedures performed by the auditor in connection with its 
examination. The auditor, at its discretion, may issue a single 
consolidated Audit Report that covers all the Goldman Sachs Affiliated 
QPAMs. The Audit Report must include the auditor's specific 
determinations regarding:
    (i) The adequacy of each Goldman Sachs Affiliated QPAM's Policies 
and Training; each Goldman Sachs Affiliated QPAM's compliance with the 
Policies and Training; the need, if any, to strengthen such Policies 
and Training; and any instance of the respective Goldman Sachs 
Affiliated QPAM's noncompliance with the written Policies and Training 
described in Section I(h) above. The Goldman Sachs Affiliated QPAM must 
promptly address any noncompliance. The Goldman Sachs Affiliated QPAM 
must promptly address or prepare a written plan of action to address 
any determination as to the adequacy of the Policies and Training and 
the auditor's recommendations (if any) with respect to strengthening 
the Policies and Training of the respective Goldman Sachs Affiliated 
QPAM. Any action taken or the plan of action to be taken by the 
respective Goldman Sachs Affiliated QPAM must be included in an 
addendum to the Audit Report (such addendum must be completed prior to 
the certification described in Section I(i)(7) below). In the event 
such a plan

[[Page 28902]]

of action to address the auditor's recommendation regarding the 
adequacy of the Policies and Training is not completed by the time of 
submission of the Audit Report, the following period's Audit Report 
must state whether the plan was satisfactorily completed. Any 
determination by the auditor that a Goldman Sachs Affiliated QPAM has 
implemented, maintained, and followed sufficient Policies and Training 
must not be based solely or in substantial part on an absence of 
evidence indicating noncompliance. In this last regard, any finding 
that a Goldman Sachs Affiliated QPAM has complied with the requirements 
under this subparagraph must be based on evidence that the particular 
Goldman Sachs Affiliated QPAM has actually implemented, maintained, and 
followed the Policies and Training required by this exemption. 
Furthermore, the auditor must not solely rely on the Exemption Report 
created by the Compliance Officer, as described in Section I(m) below, 
as the basis for the auditor's conclusions in lieu of independent 
determinations and testing performed by the auditor as required by 
Section I(i)(3) and (4) above; and
    (ii) The adequacy of the Exemption Review described in Section 
I(m);
    (6) The auditor must notify the respective Goldman Sachs Affiliated 
QPAM of any instance of noncompliance identified by the auditor within 
five (5) business days after such noncompliance is identified by the 
auditor, regardless of whether the audit has been completed as of that 
date;
    (7) With respect to each Audit Report, the general counsel or one 
of the three most senior executive officers of the Goldman Sachs 
Affiliated QPAM to which the Audit Report applies, must certify in 
writing, under penalty of perjury, that the officer has reviewed the 
Audit Report and this exemption; that, to the best of such officer's 
knowledge at the time, the Goldman Sachs Affiliated QPAM has addressed, 
corrected, and remedied any noncompliance and inadequacy or has an 
appropriate written plan to address any inadequacy regarding the 
Policies and Training identified in the Audit Report. This 
certification must also include the signatory's determination that, to 
the best of the officer's knowledge at the time, the Policies and 
Training in effect at the time of signing are adequate to ensure 
compliance with the conditions of this exemption, and with the 
applicable provisions of ERISA and the Code. Notwithstanding the above, 
no person, including any person referenced in the Department of 
Justice's Statement of Facts that gave rise to the Plea Agreement, who 
knew of, or should have known of, or participated in, any misconduct 
described in the Statement of Facts, by any party, may provide the 
certification required by this exemption, unless the person took active 
documented steps to stop the misconduct;
    (8) The Goldman Sachs Board of Directors is provided a copy of the 
Audit Report; a senior executive officer of the Audit Committee 
established by the Goldman Sachs Board of Directors, the general 
counsel of the Goldman Sachs Affiliated QPAM to which the Audit Report 
applies, one of the three most senior executive officers of the Goldman 
Sachs Affiliated QPAM to which the Audit Report applies, or the Chief 
Compliance Officer of Goldman Sachs must (i) review the Audit Report 
for each Goldman Sachs QPAM with the Chairperson of the Audit Committee 
and (ii) must certify in writing, under penalty of perjury, that such 
officer has reviewed the Audit Report, a copy of such Audit Report was 
provided to the Board of Directors, and that the Audit Report was 
reviewed with and by the Chairperson of the Audit Committee;
    (9) Each Goldman Sachs Affiliated QPAM provides its certified Audit 
Report, by regular mail to: Office of Exemption Determinations (OED), 
200 Constitution Avenue NW, Suite 400, Washington, DC 20210. This 
delivery must take place no later than 45 days following completion of 
the Audit Report. The Audit Reports will be made part of the public 
record regarding this five-year exemption. Furthermore, each Goldman 
Sachs Affiliated QPAM must make its Audit Reports unconditionally 
available, electronically or otherwise, for examination upon request by 
any duly authorized employee or representative of the Department, other 
relevant regulators, and any fiduciary of a Covered Plan;
    (10) Any engagement agreement with an auditor to perform the audit 
required by this exemption must be submitted to OED no later than two 
months after the execution of such agreement;
    (11) The auditor must provide the Department, upon request, for 
inspection and review, access to all the workpapers created and used in 
connection with the audit, provided such access and inspection is 
otherwise permitted by law; and
    (12) Goldman Sachs or a Goldman Sachs Affiliated QPAM must notify 
the Department of a change in the independent auditor no later than two 
months after the engagement of a substitute or subsequent auditor and 
must provide an explanation for the substitution or change including a 
description of any material disputes involving the terminated auditor;
    (j) As of the effective date of this five-year exemption, with 
respect to any arrangement, agreement, or contract between a Goldman 
Sachs Affiliated QPAM and a Covered Plan, the Goldman Sachs Affiliated 
QPAM agrees and warrants to Covered Plans:
    (1) To comply with ERISA and the Code, as applicable with respect 
to such Covered Plan; to refrain from engaging in prohibited 
transactions that are not otherwise exempt (and to promptly correct any 
prohibited transactions); and to comply with the standards of prudence 
and loyalty set forth in section 404 of ERISA with respect to each such 
ERISA-covered plan and IRA to the extent that section 404 is 
applicable;
    (2) To indemnify and hold harmless the Covered Plan for any actual 
losses resulting directly from a Goldman Sachs Affiliated QPAM's 
violation of ERISA's fiduciary duties, as applicable, and of the 
prohibited transaction provisions of ERISA and the Code, as applicable, 
a breach of contract by the QPAM, or any claim arising out of the 
failure of such Goldman Sachs Affiliated QPAM to qualify for the 
exemptive relief provided by PTE 84-14 as a result of a violation of 
Section I(g) of PTE 84-14 other than the Goldman Sachs Malaysia 
Conviction. This condition applies only to actual losses caused by the 
Goldman Sachs Affiliated QPAM's violations.
    (3) Not to require (or otherwise cause) the Covered Plan to waive, 
limit, or qualify the liability of the Goldman Sachs Affiliated QPAM 
for violating ERISA or the Code or engaging in prohibited transactions;
    (4) Not to restrict the ability of such Covered Plan to terminate 
or withdraw from its arrangement with the Goldman Sachs Affiliated 
QPAM, with the exception of reasonable restrictions, appropriately 
disclosed in advance, that are specifically designed to ensure 
equitable treatment of all investors in a pooled fund in the event such 
withdrawal or termination may have adverse consequences for all other 
investors. In connection with any such arrangements involving 
investments in pooled funds subject to ERISA entered into after the 
effective date of this exemption, the adverse consequences must relate 
to a lack of liquidity of the underlying assets, valuation issues, or 
regulatory reasons that prevent the fund from promptly redeeming an 
ERISA-covered plan's or IRA's investment, and such restrictions must be 
applicable to all such investors and be effective no longer than 
reasonably necessary to avoid the adverse consequences;

[[Page 28903]]

    (5) Not to impose any fees, penalties, or charges for such 
termination or withdrawal with the exception of reasonable fees, 
appropriately disclosed in advance, that are specifically designed to 
prevent generally recognized abusive investment practices or 
specifically designed to ensure equitable treatment of all investors in 
a pooled fund in the event such withdrawal or termination may have 
adverse consequences for all other investors, provided that such fees 
are applied consistently and in a like manner to all such investors; 
and
    (6) Not to include exculpatory provisions disclaiming or otherwise 
limiting liability of the Goldman Sachs Affiliated QPAM for a violation 
of such agreement's terms. To the extent consistent with Section 410 of 
ERISA, however, this provision does not prohibit disclaimers for 
liability caused by an error, misrepresentation, or misconduct of a 
plan fiduciary or other party hired by the plan fiduciary who is 
independent of Goldman Sachs and its affiliates, or damages arising 
from acts outside the control of the Goldman Sachs Affiliated QPAM;
    (7) Within four (4) months of the effective date of this five-year 
exemption, each Goldman Sachs Affiliated QPAM must provide a notice of 
its obligations under this Section I(j) to each Covered Plan. For 
prospective Covered Plans that enter into a written asset or investment 
management agreement with a Goldman Sachs Affiliated QPAM on or after a 
date that is four (4) months after the effective date of this 
exemption, the Goldman Sachs Affiliated QPAM must agree to its 
obligations under this Section I(j) in an updated investment management 
agreement between the Goldman Sachs Affiliated QPAM and such clients, 
or other written contractual agreement. Notwithstanding the above, a 
Goldman Sachs Affiliated QPAM will not violate the condition solely 
because a Plan or IRA refuses to sign an updated investment management 
agreement;
    (k) Within 60 days of the effective date of this five-year 
exemption, each Goldman Sachs Affiliated QPAM will provide a Federal 
Register copy of the notice of the exemption, along with a separate 
summary describing the facts that led to the Goldman Sachs Malaysia 
FCPA Conviction (the Summary), which has been submitted to the 
Department, and a prominently displayed statement (the Statement) that 
the Goldman Sachs Malaysia FCPA Conviction results in a failure to meet 
a condition in PTE 84-14, to each sponsor and beneficial owner of a 
Covered Plan that has entered into a written asset or investment 
management agreement with a Goldman Sachs Affiliated QPAM, or the 
sponsor of an investment fund in any case where a Goldman Sachs 
Affiliated QPAM acts as a sub-advisor to the investment fund in which 
such ERISA-covered plan and IRA invests. All prospective Covered Plan 
clients that enter into a written asset or investment management 
agreement with a Goldman Sachs Affiliated QPAM after a date that is 60 
days after the effective that date of this exemption must receive a 
copy of the notice of the exemption, the Summary, and the Statement 
prior to, or contemporaneously with, the Covered Plan's receipt of a 
written asset or investment management agreement from the Goldman Sachs 
Affiliated QPAM. The notices may be delivered electronically (including 
by an email that has a link to the five-year exemption);
    (l) The Goldman Sachs Affiliated QPAMs must comply with each 
condition of PTE 84-14, as amended, with the sole exception of the 
violation of Section I(g) of PTE 84-14 that is attributable to the 
Goldman Sachs Malaysia Conviction. If, during the Exemption Period, an 
entity within the Goldman Sachs corporate structure is convicted of a 
crime described in Section I(g) of PTE 84-14 (other than the Goldman 
Sachs Malaysia Conviction), relief in this exemption would terminate 
immediately;
    (m)(1) Within 60 days of the effective date of this exemption, each 
Goldman Sachs Affiliated QPAM must designate a senior compliance 
officer (the Compliance Officer) who will be responsible for compliance 
with the Policies and Training requirements described herein. For 
purposes of this condition (m), each Goldman Sachs Affiliated QPAM or 
applicable line of business may designate its own Compliance 
Officer(s). Notwithstanding the above, no person, including any person 
referenced in the Department of Justice's Statement of Facts that gave 
rise to the Plea Agreement, who knew of, or should have known of, or 
participated in, any misconduct described in the Statement of Facts, by 
any party, may be involved with the designation or responsibilities 
required by this condition, unless the person took active documented 
steps to stop the misconduct. The Compliance Officer must conduct a 
review of each twelve month period of the Exemption Period (the 
Exemption Review), to determine the adequacy and effectiveness of the 
implementation of the Policies and Training. With respect to the 
Compliance Officer, the following conditions must be met:
    (i) The Compliance Officer must be a professional who has extensive 
experience with, and knowledge of, the regulation of financial services 
and products, including under ERISA and the Code; and
    (ii) The Compliance Officer must be: (i) A compliance officer who 
regularly reports to the Audit Committee; or (ii) the highest-ranking 
compliance officer at the applicable Goldman Sachs Affiliated QPAM or 
line of business.
    (2) With respect to the Exemption Review, the following conditions 
must be met:
    (i) The Exemption Review includes a review of the Goldman Sachs 
Affiliated QPAMs' compliance with and effectiveness of the Policies and 
Training and of the following: Any compliance matter related to the 
Policies or Training that was identified by, or reported to, the 
Compliance Officer or the Audit Committee, during the previous year; 
the most recent Audit Report issued pursuant to this exemption; any 
material change in the relevant business activities of the Goldman 
Sachs Affiliated QPAMs; and any change to ERISA, the Code, or 
regulations related to fiduciary duties and the prohibited transaction 
provisions that may be applicable to the activities of the Goldman 
Sachs Affiliated QPAMs;
    (ii) The Compliance Officer prepares a written report for the 
Exemption Review (an Exemption Report) that (A) summarizes his or her 
material activities during the prior year; (B) sets forth any instance 
of noncompliance discovered during the prior year, and any related 
corrective action; (C) details any change to the Policies or Training 
to guard against any similar instance of noncompliance occurring again; 
and (D) makes recommendations, as necessary, for additional training, 
procedures, monitoring, or additional and/or changed processes or 
systems, and management's actions on such recommendations;
    (iii) In the Exemption Report, the Compliance Officer must certify 
in writing that to the best of his or her knowledge at the time: (A) 
The report is accurate; (B) the Policies and Training are working in a 
manner which is reasonably designed to ensure that the Policies and 
Training requirements described herein are met; (C) any known instance 
of noncompliance during the prior year and any related correction taken 
to date have been identified in the Exemption Report; and (D) the 
Goldman Sachs Affiliated QPAMs have complied with the Policies and 
Training, and/or corrected (or are correcting) any known

[[Page 28904]]

instances of noncompliance in accordance with Section I(h) above;
    (iv) The Exemption Report must be provided to appropriate corporate 
officers of Goldman Sachs and Goldman Sachs Affiliated QPAM to which 
such report relates, and to the head of compliance and the general 
counsel (or their functional equivalent) of Goldman Sachs and the 
relevant Goldman Sachs Affiliated QPAM; and the report must be made 
unconditionally available to the independent auditor described in 
Section I(i) above;
    (v) The first Exemption Review, including the Compliance Officer's 
written Exemption Report, must cover the twelve month period beginning 
on the date of the Goldman Sachs Malaysia Conviction. The next four 
Exemption Reviews and Exemption Reports must each cover a twelve month 
period that begins on the date that follows the end of a prior 
Exemption Review coverage period. Each Annual Review, including the 
Compliance Officer's written Annual Report, must be completed within 
three months following the end of the period to which it relates;
    (n) Goldman Sachs imposes its internal procedures, controls, and 
protocols on Goldman Sachs Malaysia to reduce the likelihood of any 
recurrence of conduct that is the subject of the Goldman Sachs Malaysia 
Conviction;
    (o) Goldman Sachs complies in all material respects with the 
requirements imposed by a U.S regulatory authority in connection with 
the Goldman Sachs Malaysia Conviction;
    (p) Each Goldman Sachs Affiliated QPAM will maintain records 
necessary to demonstrate that the conditions of this exemption have 
been met for six years following the date of any transaction for which 
such Goldman Sachs Affiliated QPAM relies upon the relief in this 
exemption;
    (q) During the Exemption Period, Goldman Sachs must: (1) 
Immediately disclose to the Department any Deferred Prosecution 
Agreement (a DPA) or Non-Prosecution Agreement (an NPA) with the U.S. 
Department of Justice, entered into by The Goldman Sachs Group, Inc. or 
any of its affiliates (as defined in Section VI(d) of PTE 84-14) in 
connection with conduct described in Section I(g) of PTE 84-14 or 
section 411 of ERISA; and (2) immediately provide the Department any 
information requested by the Department, as permitted by law, regarding 
the agreement and/or conduct and allegations that led to the agreement;
    (r) Within 60 days of the effective date set forth in Section 
I(h)(1), each Goldman Sachs Affiliated QPAM, in its agreements with, or 
in other written disclosures provided to Covered Plans, will clearly 
and prominently inform Covered Plan clients of their right to obtain a 
copy of the Policies or a description (Summary Policies) which 
accurately summarizes key components of the Goldman Sachs Affiliated 
QPAM's written Policies developed in connection with this exemption. If 
the Policies are thereafter changed, each Covered Plan client must 
receive a new disclosure within six months following the end of the 
calendar year during which the Policies were changed.\4\ With respect 
to this requirement, the description may be continuously maintained on 
a website, provided that such website link to the Policies or Summary 
Policies is clearly and prominently disclosed to each Covered Plan; and
---------------------------------------------------------------------------

    \4\ In the event the Applicant meets this disclosure requirement 
through Summary Policies, changes to the Policies shall not result 
in the requirement for a new disclosure unless, as a result of 
changes to the Policies, the Summary Policies are no longer 
accurate.
---------------------------------------------------------------------------

    (s) A Goldman Sachs Affiliated QPAM will not fail to meet the terms 
of this five-year exemption solely because a different Goldman Sachs 
Affiliated QPAM fails to satisfy a condition for relief described in 
Sections I(c), (d), (h), (i), (j), (k), (l), (p) or (r); or if the 
independent auditor described in Section I(i) fails a provision of the 
exemption other than the requirement described in Section I(i)(11), 
provided that such failure did not result from any actions or inactions 
of Goldman Sachs or its affiliates.

Section II. Definitions

    (a) The term ``Goldman Sachs Malaysia FCPA Conviction'' means the 
judgment of conviction against Goldman Sachs Malaysia in connection 
with a U.S. plea by Goldman Sachs Malaysia to one count of conspiracy 
to commit offenses against the United States, in violation of Title 18, 
United States Code, Section 371, that is, to violate the anti-bribery 
provisions of the Foreign Corrupt Practices Act of 1977, as amended, 
see Title 15, United States Code, Sections 78dd-1 and 78dd-3.
    (b) The term ``Covered Plan'' means a plan subject to Part IV of 
Title I of ERISA (an ``ERISA-covered plan'') or a plan subject to 
section 4975 of the Code (an ``IRA''), in each case, with respect to 
which a Goldman Sachs Affiliated QPAM relies on PTE 84-14, or with 
respect to which a Goldman Sachs Affiliated QPAM (or any Goldman Sachs 
affiliate) has expressly represented that the manager qualifies as a 
QPAM or relies on the QPAM class exemption (PTE 84-14). A Covered Plan 
does not include an ERISA-covered plan or IRA to the extent the Goldman 
Sachs Affiliated QPAM has expressly disclaimed reliance on QPAM status 
or PTE 84-14 in entering into a contract, arrangement, or agreement 
with the ERISA-covered plan or IRA.
    (c) The term ``Goldman Sachs'' means The Goldman Sachs Group, Inc.
    (d) The term ``Goldman Sachs Affiliated QPAMs'' means The Goldman 
Sachs Trust Company, N.A.; Goldman Sachs Bank USA; Goldman Sachs & Co. 
LLC; Goldman Sachs Asset Management, L.P.; Goldman Sachs Asset 
Management International; Goldman Sachs Hedge Fund Strategies LLC; GS 
Investment Strategies, LLC; GSAM Stable Value, LLC; The Ayco Company, 
L.P.; Aptitude Investment Management LP; Rocaton Investment Advisors, 
LLC; United Capital Financial Advisers, LLC; and PFE Advisors, Inc., 
and any current or future ``affiliate'' of Goldman Sachs (as defined in 
Part VI(d) of PTE 84-14) that qualifies as a ``qualified professional 
asset manager'' (as defined in Section VI(a) of PTE 84-14) \5\ and that 
relies on the relief provided by PTE 84-14 and with respect to which 
Goldman Sachs is a current or future ``affiliate'' (as defined in 
Section VI(d) of PTE 84-14). The term ``Goldman Sachs Affiliated 
QPAMs'' excludes Goldman Sachs Malaysia.
---------------------------------------------------------------------------

    \5\ In general terms, a QPAM is an independent fiduciary that is 
a bank, savings and loan association, insurance company, or 
investment adviser that meets certain equity or net worth 
requirements and other licensure requirements and that has 
acknowledged in a written management agreement that it is a 
fiduciary with respect to each plan that has retained the QPAM.
---------------------------------------------------------------------------

    (e) The term Goldman Sachs Related QPAMs means any current or 
future ``qualified professional asset manager'' (as defined in Section 
VI(a) of PTE 84-14) that relies on the relief provided by PTE 84-14, 
and with respect to which Goldman Sachs owns a direct or indirect five 
(5) percent or more interest, but with respect to which Goldman Sachs 
is not an ``affiliate'' (as defined in section VI(d)(1) of PTE 84-14). 
The term ``Goldman Sachs Related QPAMs'' excludes Goldman Sachs 
Malaysia.
    (f) The term Goldman Sachs Malaysia means Goldman Sachs (Malaysia) 
Sdn. Bhd.
    (g) The term ``Exemption Period'' means the five-year period 
beginning on the date Goldman Sachs Malaysia is sentenced for one count 
of conspiracy to commit offenses against the United States, in 
violation of Title 18, United States Code, Section 371, that is, to 
violate the anti-bribery provisions of the

[[Page 28905]]

Foreign Corrupt Practices Act of 1977, as amended, see Title 15, United 
States Code, Sections 78dd-1 and 78dd-3.
    (h) The term ``Plea Agreement'' means the Plea Agreement entered 
into between the United States of America, by and through the United 
States Department of Justice, Criminal Division, Fraud Section and 
Money Laundering and Asset Recovery Section, and the United States 
Attorney's Office for the Eastern District of New York and Goldman 
Sachs (Malaysia) Sdn. Bhd. Cr. No. 20-438 (MKB).
    Effective Date: This exemption will be in effect for a period of up 
to five (5) years, beginning on the date of the conviction of Goldman 
Sachs (Malaysia) Sdn. Bhd.

    Signed at Washington, DC, this 24th day of May, 2021.
Christopher Motta,
Chief, Division of Individual Exemptions, Office of Exemption 
Determinations, Employee Benefits Security Administration, U.S. 
Department of Labor.
[FR Doc. 2021-11366 Filed 5-27-21; 8:45 am]
BILLING CODE 4510-29-P