Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 18255 

1Section 102 of the Reorganization Plan No. 4 of 

1978, 5 U.S.C. App. at 214 (2000 ed.), generally 

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. 

For purposes of this exemption, references to 

specific provisions of Title I of the Act, unless 

otherwise specified, refer also to the corresponding 

provisions of the Code. 

Type of review: New information 

collection request. 

OMB Number: None. 

Affected Public: Private sector, public 

sector, individuals, and households. 

For the FMLA Employee survey: 

Frequency: Once. 

Total Responses: 3,000 respondents. 

Average Time per Response: 26 

minutes. 

Estimated Total Burden Hours: 1,292 

hours. 

Total Burden Cost: $0. 

For the FMLA Employer Survey: 

Frequency: Once. 

Total Responses: 1800 firms. 

Average Time per Response: 36 

minutes. 

Estimated Total Burden Hours: 2164 

hours. 

Total Burden Cost: $0. 

Note that, due to rounding, the 

numbers for the totals may differ from 

the sum of the component numbers. 

Comments submitted in response to 

this request will be summarized and/or 

included in the request for Office of 

Management and Budget approval; they 

will also become a matter of public 

record. 

Signed at Washington, DC, this 23rd day of 

March 2011. 

Mary Ziegler, 

Director, Division of Regulations, Legislation, 

and Interpretation. 

[FR Doc. 2011–7345 Filed 3–28–11; 8:45 am] 

BILLING CODE 4510–27–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Application Number D–11221] 

ZRIN 1210–ZA09 

Amendment to Prohibited Transaction 

Exemption (PTE) 96–23 for Plan Asset 

Transactions Determined by In-House 

Asset Managers 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Adoption of amendment to PTE 

96–23. 

SUMMARY: This document amends PTE 

96–23, a class exemption that permits 

various transactions involving employee 

benefit plans whose assets are managed 

by in-house asset managers (INHAMs), 

provided the conditions of the 

exemption are met. The amendment 

affects participants and beneficiaries of 

employee benefit plans, the sponsoring 

employers of such plans, INHAMs, and 

other persons engaging in the described 

transactions. 

DATES: The amendment is effective 

April 1, 2011, unless specified 

otherwise. 

FOR FURTHER INFORMATION CONTACT: 

Chris Motta, Office of Exemption 

Determinations, Employee Benefits 

Security Administration, U.S. 

Department of Labor, Room N–5700, 

200 Constitution Avenue NW., 

Washington DC 20210, (202) 693–8540 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: On June 

14, 2010, a notice was published in the 

Federal Register (75 FR 33642) of the 

pendency before the Department of 

Labor (the Department) of a proposed 

amendment to PTE 96–23 (61 FR 15975, 

April 10, 1996). PTE 96–23 provides an 

exemption from certain restrictions of 

sections 406 and 407(a) of ERISA, and 

from certain taxes imposed by section 

4975(a) and (b) of the Code, by reason 

of section 4975(c)(1) of the Code. The 

Department proposed the amendment 

on its own motion, 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 (55 FR 32836, 32847, 

August 10, 1990).1

Description of the Proposed 

Amendment 

In the Notice published on June 14, 

2010, the Department proposed to 

amend PTE 96–23 in several respects, 

including: Expanding the definition of 

INHAM to include a subsidiary that is 

80% or more owned by the employer or 

parent company; broadening the scope 

of Part I(e) of the class exemption to 

permit transactions with a ‘‘co-joint 

venturer’’ if the joint venture 

relationship is the entity’s sole 

relationship to the employer (or if the 

co-joint venturer is both a joint venturer 

and a service provider); and extending 

relief to certain existing leases with an 

employer or an affiliate resulting from 

the plan’s acquisition of the underlying 

office or commercial space. In the 

Notice, the Department further proposed 

to: Increase the 5% ownership threshold 

for related persons (the ‘‘related’’ to test) 

to 10%, and increase the amount of 

assets that must be managed by an 

INHAM, from $50 million to $85 

million. 

In the Notice, the Department also 

offered several clarifications. The 

Department explained that PTE 96–23: 

provides relief for an INHAM to act on 

behalf of its own plan; does not allow 

an INHAM to direct a QPAM to 

negotiate specific terms of a deal that 

has already been generally agreed upon 

by the INHAM or an employer; and may 

be available for a continuing transaction 

(e.g., a loan or lease), notwithstanding a 

failure to satisfy one or more of the 

conditions of the exemption after the 

transaction is entered into. The Notice 

also amends the exemption in 

accordance with the Department’s views 

and expectations regarding the class 

exemption’s audit and written report 

requirements. For a more complete 

discussion of the changes made to the 

original exemption, see the notice of 

pendency. 

The notice of pendency gave 

interested persons sixty days (the 

comment period) to comment on the 

proposed amendment. While the 

Department did not receive any formal 

comments within the comment period, 

the Department was informally 

contacted and informed that some 

INHAMs may benefit to the extent the 

changes proposed for Part I(e) are made 

retroactive to the original effective date 

of PTE 96–23 (i.e., April 10, 1996). The 

Department, after having concluded that 

the amendment to Part I(e) is 

sufficiently protective of plans on a 

prospective basis, believes that such 

conclusion is similarly applicable to a 

decision in favor of amending Part I(e) 

on a retroactive basis. 

Accordingly, the Department has 

determined to make the amendment to 

Part I(e) retroactive to April 10, 1996. As 

noted above, the proposed amendment 

sets forth the Department’s views and 

expectations regarding the exemption 

audit and written report. Among other 

things, section I(h) of the class 

exemption now requires that the 

exemption audit and written report 

must be completed within six months 

following the end of the year to which 

the audit relates. To remove any 

uncertainty regarding the completion 

date of the first exemption audit and 

written report performed after the 

adoption of this amendment, the 

Department has determined to make the 

amended section I(h) effective as of 

December 31, 2011. Accordingly, for an 

INHAM that operates on a calendar year 

basis, the exemption audit and written 

report attributable to the INHAM’s 2011 

calendar year must be completed by 

June 30, 2012. Where an INHAM 

operates on a fiscal year basis, and such 

fiscal year begins after January 1, 2011 

(e.g. April 1, 2011), the exemption audit 

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18256 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 

and written report must be completed 

within six months following the end of 

such fiscal year (e.g., the exemption 

audit and written report must be 

completed no later than September 30, 

2012). 

The Department notes that the 

amended exemption does not provide 

any relief for the receipt of 

compensation by the INHAM or any 

minority owner of the INHAM in 

connection with the provision of 

investment management services to a 

plan maintained by the INHAM or an 

affiliate of the INHAM. Moreover, under 

section 406(b)(1) of ERISA, no INHAM 

may receive compensation from the 

plan for the provision of services in 

excess of direct expenses (see 29 CFR 

section 2550.408b-2(e)). The Department 

also notes that the INHAM exemption 

only provides relief from the restrictions 

of ERISA section 406(a)(1)(A) through 

(D) for transactions between a party in 

interest and a plan sponsored by the 

INHAM (an INHAM must be 80% or 

more owned by the employer or a parent 

corporation of such employer) or an 

affiliate of the INHAM. The exemption 

does not apply to transactions engaged 

in by an INHAM on behalf of other 

plans that are not maintained by the 

INHAM or affiliates of the INHAM. 

Executive Order 12866 Statement 

Under Executive Order 12866 (58 FR 

51735), the Department must determine 

whether a regulatory action is 

‘‘significant’’ and therefore subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of the 

Executive Order defines a ‘‘significant 

regulatory action’’ as an action that is 

likely to result in a rule (1) Having an 

annual effect on the economy of $100 

million or more, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants; user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

OMB has determined that this final 

amendment is not ‘‘significant’’ under 

section 3(f)(4) of the Executive Order; 

and, therefore, it is not subject to OMB 

review. 

Paperwork Reduction Act Analysis 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520) (PRA 95), the Department 

submitted the information collection 

request (ICR) included in the Proposed 

Amendment to PTE 96–23 for Plan 

Asset Transactions Determined by InHouse Asset Managers to OMB for 

review and clearance at the time the 

Notice of the proposed exemption was 

published in the Federal Register (June 

14, 2010, 75 FR 33642). OMB approved 

the amendment under OMB control 

number 1210–0145, on July 26, 2010. 

The approval will expire on July 31, 

2013. 

The Department solicited comments 

concerning the ICR in connection with 

the notice of proposed amendment. The 

Department received no comments 

addressing its burden estimates; 

therefore, no substantive changes have 

been made in the final amendment that 

would affect the Department’s earlier 

burden estimates. 

The paperwork burden estimates are 

summarized as follows: 

Type of Collection: New collection 

(Request for new OMB Control 

Number). 

Agency: Employee Benefits Security 

Administration, Department of Labor. 

Title: Final Amendment to PTE 96–23 

for Plan Asset Transactions Determined 

by In-House Asset Managers. 

OMB Control Number: new. 

Affected Public: Business or other forprofit; not-for-profit institutions. 

Estimated Number of Respondents: 

20. 

Estimated Number of Annual 

Responses: 40 in the first year, 20 in 

each subsequent year. 

Frequency of Response: Annually; 

occasionally. 

Estimated Total Annual Burden 

Hours: 1,240 in the first year, 940 in 

each subsequent year. 

Estimated Total Annual Burden Cost: 

$400,000. 

Description of the Exemption 

The INHAM exemption consists of 

four separate parts. Part I sets forth the 

general exemption and enumerates 

certain conditions applicable to the 

transactions described therein. The 

general exemption allows that portion of 

a plan which is managed by an INHAM 

to engage in all transactions described 

in section 406(a)(1)(A) through (D) of 

ERISA with virtually all party in interest 

service providers except the INHAM or 

a person related to the INHAM. The 

general exemption does not extend to 

transactions that would give rise to 

violations of section 406(b) of ERISA. 

Part II of the exemption provides 

limited relief under both sections 406(a) 

and (b), and 407(a), of ERISA for certain 

transactions involving employers and 

their affiliates who cannot qualify for 

the general exemption provided by Part 

I. Section II(a) provides limited relief for 

the leasing of office or commercial space 

by a plan to an employer if the plan 

acquired the property subject to an 

outstanding lease with an employer or 

affiliate as a result of foreclosure on a 

mortgage or deed of trust. Section II(b) 

permits a plan to lease residential space 

to an employee of an employer any of 

whose employees are covered by such 

plan, or to any employee of a 50% or 

more parent or subsidiary of the 

employer. 

Part III of the exemption provides 

relief from sections 406(a)(1)(A) through 

(D), 406(b)(1) and (b)(2) of ERISA for the 

furnishing of services, facilities and any 

goods incidental thereto by a place of 

accommodation owned by a plan 

managed by an INHAM to a party in 

interest with respect to the plan, if the 

services, facilities or incidental goods 

are furnished on a comparable basis to 

the general public. 

Part IV contains definitions of certain 

terms used in the exemption. 

Part V sets forth the date the changes 

adopted pursuant to this amendment are 

effective. 

For the sake of convenience, the 

entire text of PTE 96–23 has been 

reprinted with this notice. 

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 ERISA and section 4975(c)(2) 

of the Code does not relieve a fiduciary 

or other party in interest or disqualified 

person with respect to a plan from 

certain other provisions of ERISA and 

the Code, including any prohibited 

transaction provisions to which the 

exemption does not apply and the 

general fiduciary responsibility 

provisions of section 404 of ERISA 

which require, among other things, that 

a fiduciary discharge his or her duties 

respecting the plan solely in the 

interests of the participants and 

beneficiaries of the plan. Additionally, 

the fact that a transaction is the subject 

of an exemption does not 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) The Department finds that the 

amended exemption is administratively 

feasible, in the interests of the plan and 

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Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 18257 

of its participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The amended exemption is 

applicable to a particular transaction 

only if the transaction satisfies the 

conditions specified in the amendment; 

and 

(4) The amended exemption is 

supplemental to, and not in derogation 

of, any other provisions of ERISA and 

the Code, 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. 

Exemption 

Under section 408(a) of the Act and 

section 4975(c)(2) of the Code and in 

accordance with the procedures set 

forth in 29 CFR part 2570, subpart B (55 

FR 32836, 32847, August 10, 1990), the 

Department amends PTE 96–23 as set 

forth below: 

Part I—Basic Exemption 

The restrictions of section 

406(a)(1)(A) through (D) of the Act and 

the taxes imposed by section 4975(a) 

and (b) of the Code, by reason of section 

4975(c)(1)(A) through (D) of the Code, 

shall not apply to a transaction between 

a party in interest with respect to a plan 

(as defined in section IV(h)) and such 

plan, provided that an in-house asset 

manager (INHAM) (as defined in section 

IV(a)) has discretionary authority or 

control with respect to the plan assets 

involved in the transaction and the 

following conditions are satisfied: 

(a) The terms of the transaction are 

negotiated on behalf of the plan by, or 

under the authority and general 

direction of, the INHAM, and either the 

INHAM, or (so long as the INHAM 

retains full fiduciary responsibility with 

respect to the transaction) a property 

manager acting in accordance with 

written guidelines established and 

administered by the INHAM, makes the 

decision on behalf of the plan to enter 

into the transaction. Notwithstanding 

the foregoing, a transaction involving an 

amount of $5,000,000 or more, which 

has been negotiated on behalf of the 

plan by the INHAM will not fail to meet 

the requirements of this section I(a) 

solely because the plan sponsor or its 

designee retains the right to veto or 

approve such transaction; 

(b) The transaction is not described 

in— 

(1) Prohibited Transaction Exemption 

2006–16 (71 FR 63786, October 31, 

2006) (relating to securities lending 

arrangements) (as amended or 

superseded); 

(2) Prohibited Transaction Exemption 

83–1 (48 FR 895, January 7, 1983) 

(relating to acquisitions by plans of 

interests in mortgage pools) (as 

amended or superseded); or 

(3) Prohibited Transaction Exemption 

88–59 (53 FR 24811, June 30, 1988) 

(relating to certain mortgage financing 

arrangements) (as amended or 

superseded); 

(c) The transaction is not part of an 

agreement, arrangement or 

understanding designed to benefit a 

party in interest; 

(d) At the time the transaction is 

entered into, and at the time of any 

subsequent renewal or modification 

thereof that requires the consent of the 

INHAM, the terms of the transaction are 

at least as favorable to the plan as the 

terms generally available in arm’s length 

transactions between unrelated parties; 

(e) Effective April 10, 1996, the party 

in interest dealing with the plan: (1) Is 

a party in interest with respect to the 

plan (including a fiduciary) either (i) 

solely by reason of providing services to 

the plan, or solely by reason of a 

relationship to a service provider 

described in section 3(14)(F), (G), (H) or 

(I) of ERISA or (ii) solely by reason of 

being a 10-percent or more shareholder, 

partner or joint venturer, in a person, 

which is 50 percent or more owned by 

an employer of employees covered by 

the plan (directly or indirectly in capital 

or profits), or the parent company of 

such an employer, provided that such 

person is not controlled by, controlling, 

or under common control with such 

employer, or (iii) by reason of both (i) 

and (ii) only, and (2) does not have 

discretionary authority or control with 

respect to the investment of the plan 

assets involved in the transaction and 

does not render investment advice 

(within the meaning of 29 CFR 2510.3– 

21(c)) with respect to those assets; 

(f) The party in interest dealing with 

the plan is neither the INHAM nor a 

person related to the INHAM (within 

the meaning of section IV(d)); 

(g) The INHAM adopts written 

policies and procedures that are 

designed to assure compliance with the 

conditions of the exemption; and 

(h) An independent auditor, who has 

appropriate technical training or 

experience and proficiency with 

ERISA’s fiduciary responsibility 

provisions and so represents in writing, 

conducts an exemption audit (as 

defined in section IV(f)) on an annual 

basis. Following completion of the 

exemption audit, the auditor shall issue 

a written report to the plan presenting 

its specific findings regarding the level 

of compliance: (1) With the policies and 

procedures adopted by the INHAM in 

accordance with section I(g); and (2) 

with the objective requirements of the 

exemption. The written report shall also 

contain the auditor’s overall opinion 

regarding whether the INHAM’s 

program complied: (1) With the policies 

and procedures adopted by the INHAM; 

and (2) with the objective requirements 

of the exemption. Effective December 

31, 2011, the exemption audit and the 

written report must be completed 

within six months following the end of 

the year to which the audit relates. 

Part II—Specific Exemptions 

The restrictions of sections 406(a), 

406(b)(1), 406(b)(2) and 407(a) of the Act 

and the taxes imposed by section 

4975(a) and (b) of the Code, by reason 

of Code section 4975(c)(1)(A) through 

(E), shall not apply to: 

(a) The leasing of office or commercial 

space owned by a plan managed by an 

INHAM to an employer any of whose 

employees are covered by the plan or an 

affiliate of such employer (as defined in 

section 407(d)(7) of the Act), if— 

(1) The plan acquires the office or 

commercial space subject to an existing 

lease with the employer or its affiliate; 

(2) The lease was negotiated by a 

party unrelated to the employer or its 

affiliate; 

(3) The INHAM makes the decision on 

behalf of the plan to acquire the office 

or commercial space as part of the 

exercise of its discretionary authority; 

(4) The exemption provided for 

transactions engaged in with a plan 

pursuant to section II(a) is effective until 

the later of the expiration of the lease 

term or any renewal thereof which does 

not require the consent of the plan 

lessor; 

(5) The amount of space covered by 

the lease does not exceed fifteen (15) 

percent of the rentable space of the 

office building or the commercial 

center; and 

(6) The requirements of sections I(c), 

I(g) and I(h) are satisfied with respect to 

the transaction. 

(b) The leasing of residential space by 

a plan to a party in interest if— 

(1) The party in interest leasing space 

from the plan is an employee of an 

employer any of whose employees are 

covered by the plan or an employee of 

an affiliate of such employer (as defined 

in section 407(d)(7) of the Act); 

(2) The employee who is leasing space 

does not have any discretionary 

authority or control with respect to the 

investment of the assets involved in the 

lease transaction and does not render 

investment advice (within the meaning 

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18258 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 

of 29 CFR 2510.3–21(c)) with respect to 

those assets; 

(3) The employee who is leasing space 

is not an officer, director, or a 10% or 

more shareholder of the employer or an 

affiliate of such employer; 

(4) At the time the transaction is 

entered into, and at the time of any 

subsequent renewal or modification 

thereof that requires the consent of the 

INHAM, the terms of the transaction are 

not less favorable to the plan than the 

terms afforded by the plan to other, 

unrelated lessees in comparable arm’s 

length transactions; 

(5) The amount of space covered by 

the lease does not exceed five percent 

(5%) of the rentable space of the 

apartment building or multi-unit 

residential subdivision [townhouses or 

garden apartments], and the aggregate 

amount of space leased to all employees 

of the employer or an affiliate of such 

employer does not exceed ten percent 

(10%) of such rentable space; and 

(6) The requirements of sections I(a), 

I(c), I(d), I(g) and I(h) are satisfied with 

respect to the transaction. 

Part III—Places of Public 

Accommodation 

The restrictions of sections 

406(a)(1)(A) through (D) and 406(b)(1) 

and (2) of ERISA and the taxes imposed 

by Code section 4975(a) and (b), by 

reason of Code section 4957(c)(1)(A) 

through (E), shall not apply to the 

furnishing of services and facilities (and 

goods incidental thereto) by a place of 

public accommodation owned by a plan 

and managed by an INHAM to a party 

in interest with respect to the plan, if 

the services and facilities (and 

incidental goods) are furnished on a 

comparable basis to the general public. 

Part IV—Definitions 

For purposes of this exemption: 

(a) The term ‘‘in-house asset manager’’ 

or ‘‘INHAM’’ means an organization 

which is— 

(1) Either (A) a direct or indirect 80 

percent or more owned subsidiary of an 

employer, or a direct or indirect 80 

percent more owned subsidiary of a 

parent organization of such an 

employer, or (B) a membership 

nonprofit corporation a majority of 

whose members are officers or directors 

of such an employer or parent 

organization; and 

(2) An investment adviser registered 

under the Investment Advisers Act of 

1940 that, as of the last day of its most 

recent fiscal year, has under its 

management and control total assets 

attributable to plans maintained by 

affiliates of the INHAM (as defined in 

section IV(b)) in excess of $50 million; 

provided that if it has no prior fiscal 

year as a separate entity as a result of 

it constituting a division or group 

within the employer’s organizational 

structure, then this requirement will be 

deemed met as of the date during its 

initial fiscal year as a separate legal 

entity that responsibility for the 

management of such assets in excess of 

$50 million was transferred to it from 

the employer. Effective as of the last day 

of the first fiscal year of the investment 

adviser beginning on or after the date of 

publication of this adopted amendment 

in the Federal Register, substitute 

‘‘$85 million’’ for ‘‘$50 million’’ in (a)(2) 

of section IV above. 

In addition, plans maintained by 

affiliates of the INHAM and/or the 

INHAM must have, as of the last day of 

each plan’s reporting year, aggregate 

assets of at least $250 million. 

(b) For purposes of sections IV(a) and 

IV(h), an ‘‘affiliate’’ of an INHAM means 

a member of either (1) a controlled 

group of corporations (as defined in 

section 414(b) of the Code) of which the 

INHAM is a member, or (2) a group of 

trades or businesses under common 

control (as defined in section 414(c) of 

the Code) of which the INHAM is a 

member; provided that ‘‘50 percent’’ 

shall be substituted for ‘‘80 percent’’ 

wherever ‘‘80 percent’’ appears in 

section 414(b) or 414(c) or the rules 

thereunder. 

(c) The term ‘‘party in interest’’ means 

a person described in the Act section 

3(14) and includes a ‘‘disqualified 

person’’ as defined in Code section 

4975(e)(2). 

(d) An INHAM is ‘‘related’’ to a party 

in interest for purposes of section I(f) of 

this exemption if, as of the last day of 

its most recent calendar quarter: (i) The 

INHAM (or a person controlling, or 

controlled by, the INHAM) owns a ten 

percent or more interest in the party in 

interest; or (ii) the party in interest (or 

a person controlling, or controlled by, 

the party in interest) owns a ten percent 

or more interest in the INHAM. For 

purposes of this definition: 

(1) The term ‘‘interest’’ means with 

respect to ownership of an entity— 

(A) The combined voting power of all 

classes of stock entitled to vote or the 

total value of the shares of all classes of 

stock of the entity if the entity is a 

corporation, 

(B) The capital interest or the profits 

interest of the entity if the entity is a 

partnership, or 

(C) The beneficial interest of the 

entity if the entity is a trust or 

unincorporated enterprise; and 

(2) A person is considered to own an 

interest if, other than in a fiduciary 

capacity, the person has or shares the 

authority— 

(A) To exercise any voting rights or to 

direct some other person to exercise the 

voting rights relating to such interest, or 

(B) To dispose or to direct the 

disposition of such interest; and 

(3) The term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual. 

(e) For purposes of this exemption, 

the time as of which any transaction 

occurs is the date upon which the 

transaction is entered into. In addition, 

in the case of a transaction that is 

continuing, the transaction shall be 

deemed to occur until it is terminated. 

If any transaction is entered into on or 

after April 10, 1996, or any renewal that 

requires the consent of the INHAM 

occurs on or after April 10, 1996, and 

the requirements of this exemption are 

satisfied at the time the transaction is 

entered into or renewed, respectively, 

the requirements will continue to be 

satisfied with respect to the transaction. 

Nothing in this paragraph shall be 

construed as exempting a transaction 

entered into by a plan which becomes 

a transaction described in section 406 of 

the Act or section 4975 of the Code 

while the transaction is continuing, 

unless the conditions of the exemption 

were met either at the time the 

transaction was entered into or at the 

time the transaction would have become 

prohibited but for this exemption. In 

determining compliance with the 

conditions of the exemption at the time 

that the transaction was entered into for 

purposes of the preceding sentence, 

section I(e) will be deemed satisfied if 

the transaction was entered into 

between a plan and a person who was 

not then a party in interest. 

(f) Exemption Audit. An ‘‘exemption 

audit’’ of a plan must consist of the 

following: 

(1) A review of the written policies 

and procedures adopted by the INHAM 

pursuant to section I(g) for consistency 

with each of the objective requirements 

of this exemption (as described in 

section IV(g)). 

(2) A test of a sample of the INHAM’s 

transactions during the audit period that 

is sufficient in size and nature to afford 

the auditor a reasonable basis: (A) To 

make specific findings regarding 

whether the INHAM is in compliance 

with (i) the written policies and 

procedures adopted by the INHAM 

pursuant to section I(g) of the exemption 

and (ii) the objective requirements of the 

exemption; and (B) to render an overall 

opinion regarding the level of 

compliance of the INHAM’s program 

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Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Notices 18259 

with section IV(f)(2)(A)(i) and (ii) of the 

exemption. 

(3) A determination as to whether the 

INHAM satisfied the definition of an 

INHAM under the exemption; and 

(4) Issuance of a written report 

describing the steps performed by the 

auditor during the course of its review 

and the auditor’s findings. 

(g) For purposes of section IV(f), the 

written policies and procedures must 

describe the following objective 

requirements of the exemption and the 

steps adopted by the INHAM to assure 

compliance with each of these 

requirements: 

(1) The definition of an INHAM in 

section IV(a). 

(2) The requirements of Part I and 

section I(a) regarding the discretionary 

authority or control of the INHAM with 

respect to the plan assets involved in 

the transaction, in negotiating the terms 

of the transaction, and with regard to 

the decision on behalf of the plan to 

enter into the transaction. 

(3) That any procedure for approval or 

veto of the transaction meets the 

requirements of section I(a). 

(4) For a transaction described in Part 

I: 

(A) That the transaction is not entered 

into with any person who is excluded 

from relief under section I(e)(1), section 

I(e)(2), to the extent such person has 

discretionary authority or control over 

the plan assets involved in the 

transaction, or section I(f), and 

(B) That the transaction is not 

described in any of the class exemptions 

listed in section I(b). 

(5) For a transaction described in Part 

II: 

(A) If the transaction is described in 

section II(a), 

(i) That the transaction is with a party 

described in section II(a); 

(ii) That the transaction occurs under 

the circumstances described in section 

II(a)(1), (2) and (3); 

(iii) That the transaction does not 

extend beyond the period of time 

described in section II(a)(4); and 

(iv) That the percentage test in section 

II(a)(5) has been satisfied or 

(B) If the transaction is described in 

section II(b), 

(i) That the transaction is with a party 

described in section II(b)(1); 

(ii) That the transaction is not entered 

into with any person excluded from 

relief under section II(b)(2) to the extent 

such person has discretionary authority 

or control over the plan assets involved 

in the lease transaction or section 

II(b)(3); and 

(iii) That the percentage test in section 

II(b)(5) has been satisfied. 

(h) The term ‘‘plan’’ means a plan 

maintained by the INHAM or an affiliate 

of the INHAM. 

Part V—Effective Date 

This amendment to the class 

exemption is effective April 1, 2011, 

unless specified otherwise. 

Signed at Washington, DC, this 25th day of 

March 2011. 

Ivan L. Strasfeld, 

Director, Office of Exemption Determinations, 

Employee Benefits Security Administration, 

Department of Labor. 

[FR Doc. 2011–7655 Filed 3–31–11; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Notice of a Change in Status of an 

Extended Benefit (EB) Period for 

Michigan 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: This notice announces a 

change in benefit period eligibility 

under the EB program for Michigan. 

The following changes have occurred 

since the publication of the last notice 

regarding the State’s EB status: 

• Based on data released by the 

Bureau of Labor Statistics on March 10, 

2011, Michigan no longer meets the 

110% criteria to remain ‘‘on’’ in the EB 

program. As a result, the payable period 

for Michigan in the EB program will 

conclude April 2, 2011. 

The trigger notice covering state 

eligibility for the EB program can be 

found at: http://ows.doleta.gov/ 

unemploy/claims_arch.asp. 

Information for Claimants 

The duration of benefits payable in 

the EB program, and the terms and 

conditions on which they are payable, 

are governed by the Federal-State 

Extended Unemployment Compensation 

Act of 1970, as amended, and the 

operating instructions issued to the 

states by the U.S. Department of Labor. 

In the case of a state beginning an EB 

period, the State Workforce Agency will 

furnish a written notice of potential 

entitlement to each individual who has 

exhausted all rights to regular benefits 

and is potentially eligible for EB (20 

CFR 615.13(c)(1)). 

Persons who believe they may be 

entitled to EB, or who wish to inquire 

about their rights under the program, 

should contact their State Workforce 

Agency. 

FOR FURTHER INFORMATION CONTACT: 

Scott Gibbons, U.S. Department of 

Labor, Employment and Training 

Administration, Office of 

Unemployment Insurance, 200 

Constitution Avenue, NW., Frances 

Perkins Bldg., Room S–4231, 

Washington, DC 20210, telephone 

number (202) 693–3008 (this is not a 

toll-free number) or by e-mail: 

gibbons.scott@dol.gov. 

Signed in Washington, DC, this 28th day of 

March 2011. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. 2011–7659 Filed 3–31–11; 8:45 am] 

BILLING CODE 4510–FW–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Announcement Regarding Delaware 

Triggering ‘‘on’’ Tier Four of 

Emergency Unemployment 

Compensation 2008 (EUC08) 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: Announcement regarding 

Delaware triggering ‘‘on’’ Tier Four of 

Emergency Unemployment 

Compensation 2008 (EUC08). 

Public Law 111–312 extended 

provisions in Public Law 111–92 which 

amended prior laws to create a Third 

and Fourth Tier of benefits within the 

EUC08 program for qualified 

unemployed workers claiming benefits 

in high unemployment states. The 

Department of Labor produces a trigger 

notice indicating which states qualify 

for EUC08 benefits within Tiers Three 

and Four and provides the beginning 

and ending dates of payable periods for 

each qualifying state. The trigger notice 

covering state eligibility for the EUC08 

program can be found at: http:// 

ows.doleta.gov/unemploy/ 

claims_arch.asp. 

Based on data published March 10, 

2011, by the Bureau of Labor Statistics, 

the following trigger change has 

occurred for Delaware in the EUC08 

program: 

• The seasonally-adjusted total 

unemployment rate for the 3-month 

period ending January 2011 for 

Delaware rose to meet or exceed the 

8.5% threshold to be ‘‘on’’ Tier Four of 

the EUC08 program. As a result, the 

payable period for Delaware in Tier 

Four of the EUC08 program will begin 

March 27, 2011, and the maximum 

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