78768 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

1For purposes of this proposed exemption, 

references to section 406 of ERISA should be read 

to refer as well to the corresponding provisions of 

section 4975 of the Code. 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 13th day of 

December 2010. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2010–31571 Filed 12–15–10; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Proposed Exemptions From Certain 

Prohibited Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemptions. 

SUMMARY: This document contains 

notices of pendency before the 

Department of Labor (the Department) of 

proposed exemptions from certain of the 

prohibited transaction restrictions of the 

Employee Retirement Income Security 

Act of 1974 (ERISA or the Act) and/or 

the Internal Revenue Code of 1986 (the 

Code). This notice includes the 

following proposed exemptions: D– 

11592, TD Ameritrade, Inc. (TD 

Ameritrade or the Applicant); and D– 

11638, Owens & Minor, Inc.; et al. 

DATES: All interested persons are invited 

to submit written comments or requests 

for a hearing on the pending 

exemptions, unless otherwise stated in 

the Notice of Proposed Exemption, 

within 45 days from the date of 

publication of this Federal Register 

Notice. 

ADDRESSES: Comments and requests for 

a hearing should state: (1) The name, 

address, and telephone number of the 

person making the comment or request, 

and (2) the nature of the person’s 

interest in the exemption and the 

manner in which the person would be 

adversely affected by the exemption. A 

request for a hearing must also state the 

issues to be addressed and include a 

general description of the evidence to be 

presented at the hearing. 

All written comments and requests for 

a hearing (at least three copies) should 

be sent to the Employee Benefits 

Security Administration (EBSA), Office 

of Exemption Determinations, Room N– 

5700, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210. Attention: Application No. 

__, stated in each Notice of Proposed 

Exemption. Interested persons are also 

invited to submit comments and/or 

hearing requests to EBSA via e-mail or 

FAX. Any such comments or requests 

should be sent either by e-mail to: 

moffitt.betty@dol.gov, or by FAX to 

(202) 219–0204 by the end of the 

scheduled comment period. The 

applications for exemption and the 

comments received will be available for 

public inspection in the Public 

Documents Room of the Employee 

Benefits Security Administration, U.S. 

Department of Labor, Room N–1513, 

200 Constitution Avenue, NW., 

Washington, DC 20210. 

Warning: If you submit written 

comments or hearing requests, do not 

include any personally-identifiable or 

confidential business information that 

you do not want to be publiclydisclosed. All comments and hearing 

requests are posted on the Internet 

exactly as they are received, and they 

can be retrieved by most Internet search 

engines. The Department will make no 

deletions, modifications or redactions to 

the comments or hearing requests 

received, as they are public records. 

SUPPLEMENTARY INFORMATION: 

Notice to Interested Persons 

Notice of the proposed exemptions 

will be provided to all interested 

persons in the manner agreed upon by 

the applicant and the Department 

within 15 days of the date of publication 

in the Federal Register. Such notice 

shall include a copy of the notice of 

proposed exemption as published in the 

Federal Register and shall inform 

interested persons of their right to 

comment and to request a hearing 

(where appropriate). The proposed 

exemptions were requested in 

applications filed pursuant to section 

408(a) of the Act and/or section 

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

accordance with procedures set forth in 

29 CFR Part 2570, Subpart B (55 FR 

32836, 32847, August 10, 1990). 

Effective December 31, 1978, section 

102 of Reorganization Plan No. 4 of 

1978, 5 U.S.C. App. 1 (1996), transferred 

the authority of the Secretary of the 

Treasury to issue exemptions of the type 

requested to the Secretary of Labor. 

Therefore, these notices of proposed 

exemption are issued solely by the 

Department. 

The applications contain 

representations with regard to the 

proposed exemptions which are 

summarized below. Interested persons 

are referred to the applications on file 

with the Department for a complete 

statement of the facts and 

representations. 

TD Ameritrade, Inc. (TD Ameritrade 

or the Applicant) Located in Omaha, 

NE. 

[Application No. D–11592] 

Proposed Exemption 

The Department is considering 

granting an exemption under the 

authority of section 408(a) of the 

Employee Retirement Income Security 

Act of 1974 (ERISA or 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).1

SECTION I. SALES OF AUCTION 

RATE SECURITIES FROM PLANS TO 

TD AMERITRADE: UNRELATED TO A 

SETTLEMENT AGREEMENT 

If the proposed exemption is granted, 

the restrictions of section 406(a)(1)(A) 

and (D) and section 406(b)(1) and (2) of 

the Act and the sanctions resulting from 

the application of section 4975 of the 

Code, by reason of section 4975(c)(1)(A), 

(D), and (E) of the Code, shall not apply, 

effective July 20, 2009, to the sale by a 

Plan (as defined in Section V(e)) of an 

Auction Rate Security (as defined in 

Section V(c)) to TD Ameritrade, where 

such sale (an Unrelated Sale) is 

unrelated to, is not made in connection 

with, and is entered into after the 

finalization of, a Settlement Agreement 

(as defined in Section V(f)), provided 

that the conditions set forth in Section 

II have been met. 

SECTION II. CONDITIONS 

APPLICABLE TO TRANSACTIONS 

DESCRIBED IN SECTION I 

(a) The Plan acquired the Auction 

Rate Security in connection with 

brokerage services provided by TD 

Ameritrade to the Plan; 

(b) The last auction for the Auction 

Rate Security was unsuccessful; 

(c) The Unrelated Sale is made 

pursuant to a written offer by TD 

Ameritrade (the Unrelated Offer) 

containing all of the material terms of 

the Unrelated Sale, including, but not 

limited to: (1) The identity and par 

value of the Auction Rate Security; (2) 

the interest or dividend amounts that 

are due with respect to the Auction Rate 

Security; and (3) the most recent 

information for the Auction Rate 

Security (if reliable information is 

available). 

(d) The Unrelated Sale is for no 

consideration other than cash payment 

against prompt delivery of the Auction 

Rate Security; 

(e) The sales price for the Auction 

Rate Security is equal to the par value 

of the Auction Rate Security, plus any 


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Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78769 

2The Department notes that the Act’s general 

standards of fiduciary conduct also would apply to 

the transactions described herein. In this regard, 

section 404 of the Act requires, among other things, 

that a fiduciary discharge his duties respecting a 

plan solely in the interest of the plan’s participants 

and beneficiaries and in a prudent manner. 

Accordingly, a plan fiduciary must act prudently 

with respect to, among other things, the decision to 

sell the Auction Rate Security to TD Ameritrade for 

the par value of the Auction Rate Security, plus 

unpaid interest and dividends. The Department 

further emphasizes that it expects Plan fiduciaries, 

prior to entering into any of the proposed 

transactions, to fully understand the risks 

associated with this type of transaction following 

disclosure by TD Ameritrade of all relevant 

information. 

accrued but unpaid interest or 

dividends; 

(f) The Plan does not waive any rights 

or claims in connection with the 

Unrelated Sale; 

(g) The decision to accept the 

Unrelated Offer or retain the Auction 

Rate Security is made by a Plan 

fiduciary or Plan participant or IRA 

owner who is independent (as defined 

in Section V(d)) of TD Ameritrade.2

(h) Neither TD Ameritrade nor any 

affiliate exercises investment discretion 

or renders investment advice within the 

meaning of 29 CFR 2510.3–21(c) with 

respect to the decision to accept the 

Unrelated Offer or retain the Auction 

Rate Security; 

(i) The Plan does not pay any 

commissions or transaction costs with 

respect to the Unrelated Sale; 

(j) The Unrelated Sale is not part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest to the Plan; 

(k) TD Ameritrade and its affiliates, as 

applicable, maintain, or cause to be 

maintained, for a period of six (6) years 

from the date of the Unrelated Sale, 

such records as are necessary to enable 

the persons described below in 

paragraph (l)(1), to determine whether 

the conditions of this exemption, if 

granted, have been met, except that: 

(1) No party in interest with respect 

to a Plan which engages in an Unrelated 

Sale, other than TD Ameritrade and its 

affiliates, as applicable, shall be subject 

to a civil penalty under section 502(i) of 

the Act or the taxes imposed by section 

4975(a) and (b) of the Code, if such 

records are not maintained, or not 

available for examination, as required, 

below, by paragraph (l)(1); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of TD Ameritrade or 

its affiliates, as applicable, such records 

are lost or destroyed prior to the end of 

the six-year period; 

(l)(1) Except as provided below in 

paragraph (l)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

(b) of section 504 of the Act, the records 

referred to above in paragraph (k) are 

unconditionally available at their 

customary location for examination 

during normal business hours by: 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission 

(the Commission); 

(B) Any fiduciary of any Plan, 

including any IRA owner, that engages 

in an Unrelated Sale, or any duly 

authorized employee or representative 

of such fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a Plan that engages in the 

Unrelated Sale, or any authorized 

employee or representative of these 

entities; 

(2) None of the persons described 

above in paragraphs (l)(1)(B)–(C) shall 

be authorized to examine trade secrets 

of TD Ameritrade, or commercial or 

financial information which is 

privileged or confidential; and 

(3) Should TD Ameritrade refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, TD Ameritrade shall, by the 

close of the thirtieth (30th) day 

following the request, provide a written 

notice advising that person of the 

reasons for the refusal and that the 

Department may request such 

information. 

SECTION III. SALES OF AUCTION 

RATE SECURITIES FROM PLANS TO 

TD AMERITRADE: RELATED TO A 

SETTLEMENT AGREEMENT 

If the proposed exemption is granted, 

the restrictions of section 406(a)(1)(A) 

and (D) and section 406(b)(1) and (2) of 

the Act and the sanctions resulting from 

the application of section 4975 of the 

Code, by reason of section 4975(c)(1)(A), 

(D), and (E) of the Code shall not apply, 

effective July 20, 2009, to the sale by a 

Plan of an Auction Rate Security to TD 

Ameritrade, where such sale (a 

Settlement Sale) is related to, and made 

in connection with, a Settlement 

Agreement, provided that the conditions 

set forth in Section IV have been met. 

SECTION IV. CONDITIONS 

APPLICABLE TO TRANSACTIONS 

DESCRIBED IN SECTION III 

(a) The terms and delivery of the offer 

(the Purchase Offer) are consistent with 

the requirements set forth in the 

Settlement Agreement; 

(b) The Purchase Offer or other 

documents available to the Plan 

specifically describe, among other 

things: 

(1) How a Plan may determine: the 

Auction Rate Securities held by the Plan 

with TD Ameritrade; the number of 

shares and par value of the Auction Rate 

Securities; the interest or dividend 

amounts that are due with respect to the 

Auction Rate Securities; purchase dates 

for the Auction Rate Securities; and (if 

reliable information is available) the 

most recent rate information for the 

Auction Rate Securities; 

(2) The background of the Purchase 

Offer; 

(3) That neither the tender of Auction 

Rate Securities nor the purchase of any 

Auction Rate Securities pursuant to the 

Purchase Offer will constitute a waiver 

of any claim of the tendering Plan; 

(4) The methods and timing by which 

Plans may accept the Purchase Offer; 

(5) The purchase dates, or the manner 

of determining the purchase dates, for 

Auction Rate Securities tendered 

pursuant to the Purchase Offer; 

(6) The timing for acceptance by TD 

Ameritrade of tendered Auction Rate 

Securities; 

(7) The timing of payment for Auction 

Rate Securities accepted by TD 

Ameritrade for payment; 

(8) The methods and timing by which 

a Plan may elect to withdraw tendered 

Auction Rate Securities from the 

Purchase Offer; 

(9) The expiration date of the 

Purchase Offer; 

(10) The fact that TD Ameritrade may 

make purchases of Auction Rate 

Securities outside of the Purchase Offer 

following the termination or expiration 

of the Purchase Offer and may otherwise 

buy, sell, hold or seek to restructure, 

redeem or otherwise dispose of the 

Auction Rate Securities; 

(11) A description of the risk factors 

relating to the Purchase Offer as TD 

Ameritrade deems appropriate; 

(12) How to obtain additional 

information concerning the Purchase 

Offer; and 

(13) The manner in which 

information concerning material 

amendments or changes to the Purchase 

Offer will be communicated to the Plan. 

(c) The terms of the Settlement Sale 

are consistent with the requirements set 

forth in the Settlement Agreement; and 

(d) All the conditions of Section II 

have been met. 

SECTION V. DEFINITIONS 

For purposes of this proposed 

exemption: 

(a) The term ‘‘affiliate’’ means any 

person directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 


srobinson on DSKHWCL6B1PROD with NOTICES
78770 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

3The Applicant states that it did not have a 

practice of holding ARS in inventory or for 

investment purposes. The Applicant explains that 

at any given time and in the ordinary course of 

business, its Fixed Income Trading Desk (the Desk) 

may have held a nominal number of ARS units in 

proprietary accounts in between auctions as a result 

of data entry or communications errors that may 

have resulted in a customer account receiving more 

ARS units than the customer intended to purchase. 

The Applicant further explains that it was the 

Desk’s practice to sell such units in the next 

auction. The Applicant also states that on other 

isolated occasions, it received the opportunity to 

obtain a nominal number of ARS units in 

connection with an initial public offering by the 

issuer. On such occasions, the Applicant states that 

it would obtain those units at a discount and sell 

them at par to clients seeking to purchase such 

securities. 

The Applicant represents that the sales of ARS 

units out of its inventory to plans are exempt 

transactions under Part II of Prohibited Transaction 

Exemption (PTE) 75–1 (40 FR 50845, October 31, 

1975, 71 FR 5883, February 3, 2006), with respect 

to principal transactions. In those isolated 

situations when it had ARS units in its inventory, 

the Applicant explains that it sold them to plans at 

par, which satisfies the condition of PTE 75–1 that 

the transaction be at least as favorable to the plan 

as an arm’s length transaction with an unrelated 

party. This is because a plan would have paid the 

same price for the particular ARS unit regardless of 

where it purchased such unit. 

The Department expresses no opinion herein on 

whether these transactions comply with the 

provisions of PTE 75–1. Accordingly, the 

Department is not proposing any relief beyond that 

offered by PTE 75–1. 

4The relief contained in this proposed exemption 

does not extend to the fiduciary provisions of 

section 404 of the Act. 

5The Department notes that PTE 80–26 (45 FR 

28545 (April 29, 1980), as amended at 71 FR 17917 

(April 7, 2006)), permits interest-free loans or other 

(b) The term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual; 

(c) The term ‘‘Auction Rate Security’’ 

means a security: (1) That is either a 

debt instrument (generally with a longterm nominal maturity) or preferred 

stock; and (2) with an interest rate or 

dividend that is reset at specific 

intervals through a Dutch Auction 

process; 

(d) A person is ‘‘independent’’ of TD 

Ameritrade if the person is (1) not TD 

Ameritrade or an affiliate; and (2) not a 

relative (as defined in section 3(15) of 

the Act) of the party engaging in the 

transaction; 

(e) The term ‘‘Plan’’ means an 

individual retirement account or similar 

account described in section 

4975(e)(1)(B) through (F) of the Code (an 

IRA); an employee benefit plan as 

defined in section 3(3) of the Act; or an 

entity holding plan assets within the 

meaning of 29 CFR 2510.3–101, as 

modified by section 3(42) of the Act; 

and 

(f) The term ‘‘Settlement Agreement’’ 

means a legal settlement involving TD 

Ameritrade and a U.S. state or federal 

authority that provides for the purchase 

of an Auction Rate Security by TD 

Ameritrade from a Plan. 

Effective Date: If granted, this 

proposed exemption will be effective as 

of July 20, 2009. 

Summary Of Facts And 

Representations 

1. The Applicant, TD Ameritrade, is a 

New York corporation headquartered in 

Omaha, Nebraska. The Applicant is an 

online broker-dealer that provides 

market access and electronic tools to 

self-directed investors. The Applicant is 

registered as a broker-dealer with the 

Commission pursuant to section 15(c) of 

the Securities Exchange Act of 1934 and 

is a member of the Financial Industry 

Regulatory Authority. The Applicant is 

also a wholly-owned subsidiary of TD 

Ameritrade Holding Corporation (TD 

Ameritrade Holding). As of September 

30, 2009, TD Ameritrade Holding had 

total assets of $18,371,810,000. As of the 

same date, TD Ameritrade had total 

assets of $3,240,360,000. 

The Applicant was formed as a result 

of the consolidation of retail brokerage 

operations of Ameritrade, Inc. and TD 

Waterhouse Investors Services, Inc. 

following TD Ameritrade Holding’s 

acquisition of TD Waterhouse Group, 

Inc. on January 24, 2006. The Applicant 

and its affiliates and subsidiaries 

provide a wide range of investmentrelated services, including discount 

brokerage and investment advisory 

services. In this regard, the Applicant 

acts as a broker and dealer with respect 

to the purchase and sale of securities, 

including Auction Rate Securities, as 

discussed herein. 

2. The Applicant describes Auction 

Rate Securities (or ARS) and the 

arrangement by which ARS are bought 

and sold as follows. Auction Rate 

Securities are preferred stock or bonds 

that are generally issued with maturities 

of thirty years, but the maturities can 

range from five years to perpetuity. ARS 

interest rates or dividend yields are 

determined and periodically reset at 

auctions commonly referred to as 

‘‘Dutch Auctions,’’ during which ARS 

are auctioned at par. Ordinarily, ARS 

can be bought or sold only at a Dutch 

Auction. Dutch Auctions are 

customarily held every seven, twentyeight, or thirty-five days. 

Under the typical procedures for a 

Dutch Auction, investors who wish to 

purchase ARS submit a bid to a brokerdealer selected by the entity that issued 

the ARS, which includes the minimum 

interest or dividend rate that the 

investors will accept. Holders of ARS 

may either choose to keep their 

securities until the next auction or 

submit an offer to sell their ARS. An 

auction agent collects all of the bids and 

offers for a particular auction. The final 

rate at which all of the ARS offered for 

sale are sold in the auction is the 

‘‘clearing rate’’ that applies to that 

particular ARS until the next auction. 

Bids with the lowest rate and then 

successively higher rates are accepted 

until all of the sell orders are filled. 

If there are not enough bids to cover 

the securities offered for sale in a Dutch 

Auction, then the auction will fail. In a 

failed auction, investors who want to 

sell securities are not able to do so, and 

hold their ARS until at least the next 

auction. In this event, the issuer pays 

the holders a maximum rate or ‘‘penalty’’ 

rate. These rates might be higher or 

lower than the prior clearing rate or 

market rates on similar products. 

3. The Applicant states that to 

facilitate the auction process, the issuers 

of the ARS selected one or more brokerdealers to underwrite the offering and to 

manage the auction process. In many 

instances, these broker-dealers 

submitted their own bids to support the 

auctions and to prevent the auctions 

from failing. The Applicant states that it 

did not act as an underwriter, manager 

or agent for any issuer of ARS. Instead, 

the Applicant represents that it acted 

solely as an agent, both on a solicited 

and unsolicited basis, for its customers 

by submitting their bids to purchase and 

orders to sell ARS. Specifically, the 

Applicant would act as an order taker 

and process client-generated requests to 

purchase ARS. As a so-called 

‘‘distributing’’ or ‘‘downstream’’ brokerdealer, the Applicant represents that it 

did not submit bids in an effort to 

support any of the Dutch Auctions or to 

prevent them from failing. The 

Applicant further represents that it did 

not hold any significant inventory of 

ARS in its proprietary accounts.3

However, the Applicant represents that, 

in certain instances, it may have 

previously advised or otherwise caused 

a Plan to acquire and hold ARS.4

4. According to the Applicant, in the 

early part of 2008, the broker-dealers 

that acted as underwriters of the ARS 

offerings or as lead managers for the 

Dutch Auctions stopped submitting 

their own bids in support of the Dutch 

Auctions. As a result, by February 13, 

2008, the ARS market began 

experiencing widespread auction 

failures, leaving investors unable to sell 

their ARS holdings. Consequently, Plans 

holding ARS may or may not have 

sufficient liquidity to make benefit 

payments, mandatory payments and 

withdrawals and expense payments 

when due.5


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78771 

extensions of credit from a party in interest to a 

plan if, among other things, the proceeds of the loan 

or extension of credit are used only: (1) For the 

payment of ordinary operating expenses of the plan, 

including the payment of benefits in accordance 

with the terms of the plan and periodic premiums 

under an insurance or annuity contract, or (2) for 

a purpose incidental to the ordinary operation of 

the plan. 

6The Applicant states that there has been only 

one Unrelated Sale since the close of the Purchase 

Offer under the Settlement Agreement and that the 

purchase occurred as if there had been a timely 

tender of the securities under the Purchase Offer. 

In that case, the widow of an IRA holder, who did 

not realize that her husband held ARS in his IRA, 

discovered the holding after the deadline had 

passed. TD Ameritrade waited until the tender 

period had closed and bought back the ARS on 

April 12, 2010. TD Ameritrade treated the 

Unrelated Sale as though the ARS holder had 

timely tendered under the Purchase Offer and used 

the pricing methodology set forth in the Settlement 

Agreement (i.e., par plus accrued and unpaid 

interest and/or dividends). 

7Pursuant to the Settlement Agreement, TD 

Ameritrade was permitted to extend the Purchase 

Offer period up until, but not beyond, June 30, 2010 

for those Eligible Customers with more than 

$250,000 in ‘‘Eligible ARS’’. 

8The Applicant represents that the amount of 

ARS involved in the Unrelated Sale described in 

Footnote 6 above is included in this amount. 

5. The Applicant further states that 

from February 13, 2008 through the 

present, the ARS market continues to 

experience widespread failures, making 

many ARS holdings illiquid. Although 

ARS have been redeemed by their 

issuers since that time, numerous 

investors, including some of TD 

Ameritrade’s customers, currently hold 

ARS that they have been unable to sell 

through the auction process or redeem 

by the issuers. 

6. The Applicant is requesting 

exemptive relief for the sale of ARS 

under two different circumstances: (a) 

Where a Plan sells ARS to TD 

Ameritrade and such sale (i.e., an 

Unrelated Sale) is unrelated to, is not 

made in connection with, and is entered 

into after the finalization of, a 

Settlement Agreement; and (b) where a 

Plan sells ARS to TD Ameritrade and 

such sale (i.e., a Settlement Sale) is 

related to, and made in connection with, 

a Settlement Agreement. If granted, the 

exemption would be effective as of July 

20, 2009. 

7. With respect to Unrelated Sales, the 

Applicant represents that it may 

purchase ARS from its customers 

outside the Purchase Offer at times and 

on terms other than those provided in 

the Purchase Offer (i.e., an Unrelated 

Offer). For example, TD Ameritrade may 

purchase ARS from Plans who failed to 

respond to the Purchase Offer prior to 

the expiration of the Purchase Offer or 

from Plans not covered by the 

Settlements and the Purchase Offer.6 In 

determining whether to make an 

Unrelated Offer, TD Ameritrade will 

consider the relevant facts and 

circumstances. With respect to Plans 

covered by the Settlements and the 

Purchase Offer as well as Plans not 

covered by the Settlements and the 

Purchase Offer, any Unrelated Offer will 

be made at the same price offered under 

the Purchase Offer (i.e., par plus accrued 

and unpaid interest and/or dividends). 

Therefore, TD Ameritrade is requesting 

retroactive relief (and prospective relief) 

for an Unrelated Sale that has occurred 

outside the Settlement process and in 

the event a sale of ARS by a Plan to TD 

Ameritrade occurs outside the 

Settlement process in the future. 

8. With respect to Settlement Sales, 

the Applicant represents that it entered 

into Settlement Agreements with certain 

U.S. state and federal authorities in 

connection with TD Ameritrade’s role in 

the acquisition and holding of ARS by 

various TD Ameritrade customers (the 

Eligible Customers), including Plans. As 

of July 20, 2009, the date that the 

Settlements were publicly announced, 

the Applicant’s Eligible Customers held 

approximately $456 million in ARS. Of 

this amount, $5.8 million was held in 87 

brokerage accounts for Eligible 

Customers of the Applicant that were 

Plans. 

9. Pursuant to the Settlement 

Agreements, among other things, TD 

Ameritrade was required to send a 

written offer (i.e., the Purchase Offer) to 

certain Plans that held ARS in 

connection with the brokerage services 

provided by TD Ameritrade. Only ARS 

purchased from the Applicant on or 

before February 13, 2008 that had failed 

at auction at least once since February 

13, 2008 were considered ‘‘Eligible ARS’’ 

for purposes of the Purchase Offer. The 

Purchase Offer explained what Eligible 

Customers had to do to participate and 

it informed them of the relevant terms 

of the Settlement Agreement and other 

material terms regarding their rights. 

The Settlement Agreements required 

that the Purchase Offer be sent by 

August 10, 2009. 

10. Eligible Customers had different 

lengths of time to respond to the 

Purchase Offer depending on various 

factors described in the Settlement 

Agreements. In general, Eligible 

Customers with assets of $250,000 or 

less as of March 13, 2009 had 75 days 

from the date the Purchase Offer was 

sent to respond; Eligible Customers with 

more than $250,000 had until March 23, 

2010, which gave them as much as 

seven months or more to respond, 

depending on when they were 

identified as eligible.7 As described in 

further detail below, Eligible Customers 

that accepted the Purchase Offer were 

permitted to sell the ARS to TD 

Ameritrade for cash equal to the par 

value of such securities, plus any 

accrued interest and/or dividends. 

Eligible Customers that did not respond 

to the Purchase Offer within a specified 

period of time were sent a second notice 

informing them of the Applicant’s 

Purchase Offer, the relevant terms of the 

Settlement Agreement, and any other 

material issues regarding such 

customer’s rights. To assist Eligible 

Customers, the Applicant established a 

dedicated toll-free telephone assistance 

line and a public Internet page to 

provide information and to respond to 

questions concerning the terms of the 

Settlement Agreements. The Applicant 

maintained the telephone assistance 

line and Internet page through March 

31, 2010, the date of the Applicant’s last 

payment under the Settlement 

Agreement. 

11. The Applicant states that ARS 

units have been tendered by Plans to TD 

Ameritrade pursuant to a Purchase Offer 

issued by TD Ameritrade under a 

Settlement Agreement. In this regard, 

the Applicant states that with respect to 

the Purchase Offer that closed on March 

23, 2010, it purchased approximately 

$302.9 million of ARS from 

approximately 1,180 Eligible Customers, 

which includes $5,525,000 8 in ARS 

held by thirty Eligible Customers that 

were Plans. The Applicant estimates 

that as of the close of the tender offer 

period on March 23, 2010, 

approximately $81.9 million in ‘‘Eligible 

ARS’’ remained outstanding, including 

ARS that had been transferred away 

from TD Ameritrade and that could not 

be confirmed. Accordingly, the 

Applicant is requesting exemptive relief 

retroactive to July 20, 2009 for 

Settlement Sales. 

12. The Applicant opines that 

Settlement Sales and Unrelated Sales 

(hereinafter, each, a Covered Sale) are in 

the interests of Plans. In this regard, the 

Applicant states that the Covered Sales 

allow Plans to normalize their 

investments. The Applicant represents 

that each Covered Sale has been and 

will be for no consideration other than 

cash payment against prompt delivery 

of the ARS, and such cash has equaled 

and will equal the par value of the ARS, 

plus any accrued but unpaid interest or 

dividends. The Applicant represents 

further that Plans have not paid and will 

not pay any commissions or transaction 

costs with respect to any Covered Sale. 

13. The Applicant also represents that 

the proposed exemption is protective of 

the Plans. The Applicant states that 

each Covered Sale has been made and 


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9The Applicant states that while there may have 

been or may be communication between a Plan and 

TD Ameritrade subsequent to a Purchase Offer, 

such communication has not involved and will not 

involve advice regarding whether the Plan should 

accept the Purchase Offer. 

will be made pursuant to a written 

Purchase Offer and the decision to 

accept such offer or retain the ARS has 

been made and will be made by a Plan 

fiduciary or Plan participant or IRA 

owner who is independent of TD 

Ameritrade. Additionally, each 

Purchase Offer has been delivered and 

will be delivered in a manner designed 

to alert a Plan fiduciary that TD 

Ameritrade is willing to purchase ARS 

from the Plan. Purchase Offers made in 

connection with a Settlement 

Agreement have specifically included, 

among other things: The background of 

the Purchase Offer; the method and 

timing by which a Plan may accept the 

Purchase Offer; the expiration date of 

the Purchase Offer; a description of 

certain risk factors relating to the 

Purchase Offer; how to obtain additional 

information concerning the Purchase 

Offer; and the manner in which 

information concerning material 

amendments or changes to the Purchase 

Offer will be communicated. Further, 

the Applicant states that, neither TD 

Ameritrade nor any affiliate has 

exercised or will exercise investment 

discretion or render investment advice 

within the meaning of 29 CFR 2510.3– 

21(c) with respect to a Plan’s decision 

to accept the Purchase Offer or to retain 

the ARS.9

In addition, an Unrelated Offer made 

in connection with an Unrelated Sale 

has included and will include all of the 

material terms of the Unrelated Sale as 

follows: The identity and par value of 

the ARS; the interest or dividend 

amounts that are due with respect to the 

ARS; and the most recent information 

for the ARS (if reliable information is 

available). The Applicant represents 

further that Plans have not waived and 

will not waive any rights or claims in 

connection with any Covered Sale. 

14. The Applicant further represents 

that the proposed exemption, if granted, 

would be administratively feasible. In 

this regard, the Applicant notes that 

each Covered Sale has occurred and will 

occur at the par value of the affected 

ARS, plus accrued but unpaid interest 

and dividends, to the extent applicable, 

and such value is readily ascertainable. 

The Applicant represents further that 

TD Ameritrade has maintained and will 

maintain the records necessary to enable 

the Department and Plan fiduciaries, 

among others, to determine whether the 

conditions of this exemption, if granted, 

have been met. 

15. In summary, the Applicant 

represents that the transactions 

described herein have satisfied or will 

satisfy the statutory criteria for an 

exemption under section 408(a) of the 

Act because, among other things: 

(a) Each Covered Sale has been made 

and shall be made pursuant to a written 

Purchase Offer; 

(b) Each Covered Sale has been and 

shall be for no consideration other than 

cash payment against prompt delivery 

of the ARS; 

(c) The amount of each Covered Sale 

has equaled and shall equal the par 

value of the ARS, plus any accrued but 

unpaid interest or dividends; 

(d) No Plan has waived nor shall 

waive any rights or claims in connection 

with any Covered Sale; 

(e)(1) The decision to accept a 

Purchase Offer or retain the ARS has 

been made and shall be made by a Plan 

fiduciary or Plan participant or IRA 

owner who is independent of TD 

Ameritrade; and (2) neither TD 

Ameritrade nor any affiliate has 

exercised or shall exercise investment 

discretion or render investment advice 

within the meaning of 29 CFR 2510.3– 

21(c) with respect to the decision to 

accept the Purchase Offer or retain the 

ARS; 

(f) Plans have not paid and shall not 

pay any commissions or transaction 

costs with respect to any Covered Sale; 

(g) A Covered Sale has not been part 

of and shall not be part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest to the affected Plan; 

(h) With respect to any Settlement 

Sale, the terms and delivery of the 

Purchase Offer, and the terms of 

Settlement Sale, have been consistent 

with and shall be consistent with the 

requirements set forth in the Settlement 

Agreement; 

(i) TD Ameritrade has made and shall 

make available in connection with an 

Unrelated Sale the material terms of the 

Unrelated Sale, including: (1) The 

identity and par value of the Auction 

Rate Security; (2) the interest or 

dividend amounts that are due but 

unpaid with respect to the Auction Rate 

Security; and (3) the most recent 

information for the Auction Rate 

Security (if reliable information is 

available). 

(j) Each Purchase Offer made in 

connection with a Settlement 

Agreement has described or shall 

describe the material terms of the 

Settlement Sale, including the following 

(and shall not constitute a waiver of any 

claim of the tendering Plan): (1) How 

the Plan can determine: The ARS held 

by the Plan with TD Ameritrade, the 

number of shares and par value of the 

ARS, interest or dividend amounts, and 

purchase dates for the ARS, and (if 

reliable information is available) the 

most recent rate information for the 

ARS; (2) the background of the Purchase 

Offer; (3) the methods and timing by 

which the Plan may accept the Purchase 

Offer; (4) the purchase dates, or the 

manner of determining the purchase 

dates, for ARS pursuant to the Purchase 

Offer and the timing for acceptance by 

TD Ameritrade of tendered ARS for the 

payment; (5) the expiration date of the 

Purchase Offer; and (6) how to obtain 

additional information concerning the 

Purchase Offer. 

Notice to Interested Persons 

The Applicant represents that the 

potentially interested participants and 

beneficiaries cannot all be identified, 

and, therefore, the only practical means 

of notifying such participants and 

beneficiaries of this proposed 

exemption is by the publication of this 

notice in the Federal Register. 

Comments and requests for a hearing 

must be received by the Department not 

later than 30 days from the date of 

publication of this notice of proposed 

exemption in the Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Anna Mpras Vaughan of the 

Department, telephone (202) 693–8565. 

(This is not a toll-free number.) 

Owens & Minor, Inc., 

Located in Mechanicsville, Virginia. 

[Application No. D–11638] 

Proposed Exemption 

The Department is considering 

granting an exemption under the 

authority of 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). If 

the proposed exemption is granted, the 

restrictions of section 406(a)(1)(A) and 

(D) and section 406(b)(1) and (b)(2) of 

the Act, and the sanctions resulting 

from the application of section 4975 of 

the Code, by reason of section 

4975(c)(1)(A), (D), and (E) of the Code, 

shall not apply to the sale of certain 

shares in a hedge fund (the Shares) by 

the Owens & Minor, Inc. Pension Plan 

(the Plan) to Owens & Minor, Inc. (the 

Employer), a party in interest with 

respect to the Plan, provided that the 

following conditions are satisfied: 

(a) The sale is a one-time transaction 

for cash; 

(b) The terms and conditions of the 

sale are at least as favorable to the Plan 

as those that the Plan could obtain in an 

arm’s-length transaction with an 

unrelated third party; 


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10The Department expresses no opinion herein as 

to whether the acquisition and holding of the 

Shares by the Plan have met the requirements of 

Part 4 in Title I of the Act. 

11 It is represented that, in general, the standard 

investment management fees assessed by the Fund 

had been a 1.25% Advisory Fee per annum and a 

0.35% Program Fee per annum. Because ASG is 

liquidating all investments in the Fund, however, 

the Advisory Fee was reduced to 0.50% per annum 

starting on March 31, 2009. The Limited Liability 

Company Agreement defines the term ‘‘Program’’ as 

comprised of Feeder Funds that provide access to 

underlying Master Funds; thus, the ‘‘Program Fee’’ 

is an annual fee charged to Fund members to 

participate in the Program. As is typical with 

mutual funds and other collective funds, the 

Advisory Fee and the Program Fee are netted out 

of the Fund’s investment performance and 

published net asset value (NAV). The applicant 

further represents that the Plan is not paying 

duplicative fees at the underlying funds level. 

12The exemption application states: ‘‘Although a 

secondary market exists for the Feeder Fund’s 

investments, it is not active and individual 

transactions are typically not observable. When 

transactions do occur in this limited secondary 

market, they may occur at discounts to the reported 

net asset value. It is therefore reasonably possible 

that if the Feeder Funds were to sell these 

investments in the secondary market, a buyer may 

require a discount to the reported net asset value, 

and the discount could be significant.’’ 

(c) The sales price is the greater of: (1) 

$1,029.93 per Share (the highest per 

share purchase price paid by the Plan), 

or (2) the net asset value of the Shares 

reported in the most recently available 

monthly statement, as determined by 

the hedge fund manager, who is 

independent and unrelated to the 

Employer, (which is supported by the 

report of the independent auditors); 

(d) The Plan pays no commissions, 

fees, or other expenses in connection 

with the sale; 

(e) Upon termination of the Plan, the 

Plan participants and beneficiaries will 

be paid 100% of their accrued benefits 

from the assets of the Plan, as a result 

of the Employer’s sufficiency 

contribution to the Plan; 

(f) The Plan has not waived or 

released and does not waive or release 

any claims, demands, and/or causes of 

action that the Plan may have against 

the Employer, the Plan Fiduciary, or the 

hedge fund manager in connection with 

the acquisition, holding and sale of the 

Shares to the Employer; and 

(g) The Employer maintains, or causes 

to be maintained, for a period of at least 

six (6) years from the date of the sale, 

such records as are necessary to enable 

the persons described in paragraph (h), 

below, to determine whether the 

conditions of this exemption, if granted, 

have been met, except that— 

(1) No party in interest with respect 

to the Plan other than the Employer 

shall be subject to a civil penalty under 

section 502(i) of ERISA or the taxes 

imposed by section 4975(a) and (b) of 

the Code, if such records are not 

maintained, or are not available for 

examination, as required, below, by 

paragraph (h); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of the Employer, 

such records are lost or destroyed prior 

to the end of the six-year period; and 

(h)(1) Except as provided in 

subparagraph (2), below, and 

notwithstanding any provisions of 

subsections (a)(2) and (b) of section 504 

of ERISA, the records referred to in 

paragraph (g), above, are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission; 

(B) Any fiduciary of the Plan, or any 

duly authorized employee or 

representative of such fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by the Plan or any authorized 

employee or representative thereof; 

(2) None of the persons described 

above in paragraph (h)(1)(B) or (C) shall 

be authorized to examine trade secrets 

of the Employer, or commercial or 

financial information that is privileged 

or confidential; and 

(3) Should the Employer refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, the Employer shall, by the 

close of the thirtieth (30th) day 

following the request, provide a written 

notice advising that person of the 

reasons for the refusal and that the 

Department may request such 

information. 

Summary of Facts and Representations 

1. The Owens & Minor, Inc. Pension 

Plan (the Plan) is a defined benefit plan 

sponsored by Owens & Minor, Inc. (the 

Employer or the applicant), a distributor 

of national name-brand medical and 

surgical supplies who serves its 

healthcare provider customers from 55 

distribution centers located throughout 

the United States. The Plan was 

originally established effective March 

31, 1957 and was last amended and 

restated effective January 1, 2002. The 

Plan was frozen effective December 31, 

1996. The aggregate fair market value of 

the Plan’s assets was approximately 

$31,276,861, as of April 30, 2010. The 

Plan had 1,789 participants and 

beneficiaries, as of June 4, 2010. The 

Plan’s trustee is Reliance Trust 

Company. The Employer sponsors two 

defined contribution plans, a 401(k) 

profit sharing plan and an employee 

stock purchase plan, in addition to the 

Plan. 

On April 30, 2010, the Employer filed 

a request for a determination as to the 

Plan’s qualified status with the Internal 

Revenue Service (IRS). The Employer 

filed PBGC Form 500 (Standard 

Termination Notice) with the Pension 

Benefit Guaranty Corporation (PBGC) by 

July 30, 2010. If PBGC does not object 

to the proposed termination of the Plan 

within the 60-day period following the 

filing of the Standard Termination 

Notice, the Plan must distribute all its 

assets by its ‘‘Distribution Date,’’ which 

is the later of (i) 180 days after the end 

of PBGC’s 60-day review period, or (ii) 

120 days after receipt of a favorable 

determination from the IRS. 

2. As of April 30, 2010, the assets of 

the Plan consisted of: (i) FDICguaranteed bank notes in the amount of 

$25,540,900, (ii) money market accounts 

valued at $1,835,666, (iii) a brokerage 

account consisting of several alternative 

investments valued at $3,058,882, and 

(iv) 943.66 shares of a non-publicly 

traded hedge fund (the Shares), with a 

value of $841,413 (based upon a net 

asset value (NAV) of $891.65 per share). 

The Plan’s investments, including the 

Shares, are approved by the 

Compensation and Benefits Committee 

(the Committee) of the Employer’s 

Board of Directors. The Plan purchased 

2,570.42 Shares at $1,029.931 per share 

on November 28, 2007 and 99.56 Shares 

at $1,004.381 per share on July 30, 2008, 

at a total cost of approximately 

$2,747,351.37.10 The Employer owns no 

shares in the Fund. 

The hedge fund is the Selectinvest 

Institutional ARV ASW Fund (the 

Fund), which, in turn, invests 

substantially all its assets in a ‘‘fund of 

funds,’’ (the Master Feeder Fund). 

The Fund manager is Alternate 

Strategies Group (ASG), a wholly-owned 

subsidiary of Wells Fargo. The Master 

Feeder Fund is unrelated to ASG and is 

managed by Union Bancaire Privee 

Asset Management LLC (UBPAM), 

which is also its investment advisor. 

The Master Feeder Fund invests in the 

following three funds: Selectinvest ARV 

Ltd. (Master Fund I); Selectinvest ARV 

II Ltd. (Master Fund II); and Selectinvest 

ARV L.P. (Master Fund III). UBPAM is 

the investment manager for Master Fund 

I, Master Fund II, and Master Fund III 

(collectively, the Master Funds).11 In 

February 2009, ASG announced that it 

intended to terminate all Selectinvest 

ARV Funds, including the Fund.12

ASG began the process of redeeming 

all interests in the Fund on March 31, 

2009. Since that time, ASG has 

redeemed approximately 1,781 of the 


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13FAS 157 provides guidance for measuring the 

fair value of assets and liabilities, including hardto-value alternative investments. Effective January 

1, 2008, the Fund, the Master Feeder Fund, and 

each of the Master Funds adopted FAS 157. The 

description of these accounting policies appears in 

the financial statements of each fund. 

Plan’s Shares, approximately 67% of the 

Plan’s interest in the Fund, in five 

separate redemptions. The Plan received 

its first redemption payment of 

$811,700 on May 13, 2009, in exchange 

for 972.11 shares, which represents a 

per share value of $834.988. On 

September 10, 2009, the Plan received 

its second redemption payment of 

$319,500, in exchange for 367.01 shares, 

which represents a per share value of 

$870.548. On January 21, 2010, the Plan 

received its third redemption payment 

of $203,100, in exchange for 225.09 

shares, which represents a per share 

value of $902.306. On April 27, 2010, 

the Plan received its fourth redemption 

payment of $148,000, in exchange for 

162.10 shares, which represents a per 

share value of $913.016. On October 20, 

2010, the Plan received its most recent 

redemption payment of $48,100, in 

exchange for 54.79 shares, which 

represents a per share value of $877.897. 

In order for ASG to redeem shares in 

the Fund, the Master Feeder Fund must 

have sufficient cash reserves. Because 

ASG’s complete redemption request 

exceeded such reserves, the redemption 

of the Plan’s Shares will likely not be 

finalized until a sufficient portion of the 

underlying assets of the Master Feeder 

Fund and its ‘‘down-stream’’ 

investments in the Master Funds are 

liquidated. 

3. The Employer represents that all 

the assets of the Plan, including the 

remaining Shares, must be liquidated 

and the proceeds used to fund the 

purchase of annuity contracts and 

distributions of lump sum benefit 

amounts. The Plan is contractually 

prohibited from selling its Shares to a 

third party without the permission of 

ASG. There is only a very limited 

secondary market for the Shares. In the 

event that the Plan’s Shares are not 

entirely redeemed by the Fund prior to 

the Distribution Date, the Employer 

proposes to purchase the remaining 

Shares from the Plan for a price that is 

the greater of: (1) $1,029.93 per Share 

(the highest per share purchase price 

paid by the Plan), or (2) the NAV of the 

Shares as determined by ASG. It is 

represented that the Plan will pay no 

commissions, fees, or other expenses in 

connection with the sale. 

4. The applicant represents that ASG 

determines the Fund’s NAV, which it 

publishes at the end of each month in 

its monthly statements, according to the 

Fund’s membership agreement, based 

upon the current fair market value of the 

underlying investments (based on the 

NAV of the Master Feeder Fund, which 

in turn is based upon the Master Feeder 

Fund’s interest in the Master Funds 

based upon their underlying 

investments). The applicant further 

represents that ASG is the only qualified 

appraiser to determine the value of the 

Plan’s interest in the Fund because ASG 

is solely responsible for the 

determination of the Fund’s NAV. It is 

represented that ASG’s method of 

calculating the Fund’s NAV meets the 

requirements of FAS 157.13 It is also 

represented that ASG is independent 

from the Employer and receives no 

income from the Employer. The Fund’s 

independent auditor is KPMG LLP, 

located in Boston, Massachusetts and 

the applicant represents that the net 

asset value of the Shares reported in the 

most recently available monthly 

statement, as determined by ASG, is 

supported by the report of KPMG. 

The value of the Plan’s membership 

interest in the Fund is calculated as the 

number of Shares owned by the Plan 

relative to all outstanding Fund shares. 

According to ASG’s determination of 

the Fund’s NAV as of April 30, 2010, 

the Plan’s remaining Shares have a 

value of approximately $792,561. 

The applicant represents that the 

Fund’s NAV as set forth in ASG’s most 

recently available statement prior to the 

date of the sale would be used to 

determine the dollar value of the Plan’s 

Shares. Furthermore, the Committee, as 

the Plan fiduciary, will review and 

approve the valuation methodology 

used by ASG, ensure that such 

methodology is properly applied in 

determining the value of the Shares, and 

will also determine whether it is 

prudent to go forward with the 

proposed transaction. The proposed sale 

of the Shares is anticipated to take place 

on or about the Distribution Date, 

contingent upon obtaining the requested 

exemption from the Department. 

5. Because of the Plan’s underfunded 

status, as the final step in the Plan 

termination process, the Employer has 

made a commitment to contribute an 

estimated additional $1,000,000 to the 

Plan to ensure that the Plan has 

sufficient assets to satisfy all its accrued 

benefit obligations. 

In accordance with the requirements 

for a Standard Termination under 

section 4041(b) of the Act and the PBGC 

guidelines, the amount that the 

Employer will contribute to the Plan to 

make it sufficient will be calculated as 

follows: The actuarial present value of 

the total Plan liabilities for accrued 

benefits less (the amount received for 

the remaining Shares, either through the 

redemption process or consummation of 

the proposed sale, plus the value of all 

other Plan assets). 

The applicant represents that, if it 

completes the standard termination 

process for the Plan, the PBGC will not 

be liable or responsible for paying any 

Plan benefits, and, in fact, will not pay 

any Plan benefits. Upon termination of 

the Plan, the Plan participants and 

beneficiaries will receive 100% of their 

accrued benefits, as a result of the 

Employer’s sufficiency contribution to 

the Plan. 

6. According to the applicant, if the 

requested exemption is denied and the 

Shares are not fully redeemed prior to 

the Distribution Date, the Plan will lack 

sufficient liquid assets to satisfy the 

distribution deadline. The failure to 

distribute all accrued benefits by the 

Distribution Date could result in the 

PBGC issuing the Plan a notice of 

noncompliance, which would require 

re-starting the standard termination 

process and nullify all actions taken to 

date to terminate the Plan, including the 

re-issuance of the required multiple 

notices to the Plan participants and 

beneficiaries required by the 

termination process, and delay the 

distribution of plan benefits. 

The applicant represents that the 

proposed transaction is in the best 

interests of the Plan and its participants 

and beneficiaries because it will enable 

the Plan to convert an illiquid, nonmarketable asset into cash in order to 

complete the standard termination 

process and purchase of annuity 

contracts and lump-sum distributions to 

satisfy all its accrued benefit 

obligations. The proposed transaction 

would also allow the Plan to avoid the 

discount that would be expected if the 

Shares were sold in the secondary 

market. The Employer is also bearing 

the costs of the exemption application 

and of notifying interested persons. 

7. In summary, the applicant 

represents that the proposed transaction 

satisfies the statutory criteria for an 

exemption under section 408(a) of the 

Act for the following reasons: (a) The 

sale will be a one-time transaction for 

cash; (b) the terms and conditions of the 

sale will be at least as favorable to the 

Plan as those that the Plan could obtain 

in an arm’s length transaction with an 

unrelated third party; (c) the sales price 

will be the greater of: (1) $1,029.93 per 

Share (the highest per share purchase 

price paid by the Plan), or (2) the net 

asset value of the Shares reported in the 

most recently available monthly 

statement, as determined by the hedge 

fund manager, who is independent and 

unrelated to the Employer, (which is 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78775 

supported by the report of the 

independent auditors); (d) the Plan will 

pay no commissions, fees, or other 

expenses in connection with the sale; 

and (e) upon termination of the Plan, 

the Plan participants and beneficiaries 

will be paid 100% of their accrued 

benefits from the assets of the Plan, as 

a result of the Employer’s sufficiency 

contribution to the Plan. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

telephone (202) 693–8557. (This is not 

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

4975(c)(2) of the Code does not relieve 

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions 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 

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) Before an exemption may be 

granted under section 408(a) of the Act 

and/or section 4975(c)(2) of the Code, 

the Department must find that the 

exemption is administratively feasible, 

in the interests of the plan and of its 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The proposed exemptions, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and/or 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; and 

(4) The proposed exemptions, if 

granted, will be subject to the express 

condition that the material facts and 

representations contained in each 

application are true and complete, and 

that each application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 13th day of 

December 2010. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2010–31570 Filed 12–15–10; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

[Docket No. OSHA–2010–0012] 

National Advisory Committee on 

Occupational Safety and Health 

(NACOSH) 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Announcement of meeting of 

the National Advisory Committee on 

Occupational Safety and Health 

(NACOSH) and NACOSH subgroup 

meetings. 

SUMMARY: The National Advisory 

Committee on Occupational Safety and 

Health (NACOSH) will meet January 19 

and 20, 2011, in Washington, DC. 

DATES: NACOSH meeting: NACOSH will 

meet from 8:15 a.m. to 5 p.m., on 

Wednesday, January 19, and from 

8:15 a.m. to 4:15 p.m., on Thursday, 

January 20, 2011. 

Submission of comments, requests to 

speak, and requests for special 

accommodation: Comments, requests to 

speak at the NACOSH meeting, and 

requests for special accommodations for 

the NACOSH meeting must be 

submitted (postmarked, sent, 

transmitted) by January 12, 2011. 

ADDRESSES: NACOSH meeting: 

NACOSH will meet in Room N–N4437 

A/B/C/D, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210. 

Submission of comments and requests 

to speak: You may submit comments 

and requests to speak at the NACOSH 

meeting, identified by docket number 

for this Federal Register notice (Docket 

No. OSHA–2010–0012), by one of the 

following methods: 

Electronically: You may submit 

materials, including attachments, 

electronically at http:// 

www.regulations.gov, the Federal 

eRulemaking Portal. Follow the online 

instructions for making submissions. 

Facsimile: If your submission, 

including attachments, does not exceed 

10 pages, you may fax it to the OSHA 

Docket Office at (202) 693–1648. 

Mail, express delivery, messenger or 

courier service: Submit three copies of 

your submissions to the OSHA Docket 

Office, Room N–2625, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210, telephone 

(202) 693–2350 (TTY (887) 889–5627). 

Deliveries (hand, express mail, 

messenger, courier service) are accepted 

during the Department of Labor’s and 

OSHA Docket Office’s normal business 

hours, 8:15 a.m. to 4:45 p.m. e.t. 

Requests for special accommodation: 

Submit requests for special 

accommodations for the NACOSH 

meeting by hard copy, telephone, or 

e-mail to Ms. Veneta Chatmon, OSHA, 

Office of Communications, Room N– 

3647, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–1999; 

e-mail chatmon.veneta@dol.gov. 

Instructions: All submissions must 

include the Agency name and docket 

number for this Federal Register notice 

(Docket No. OSHA–2010–0012). 

Because of security-related procedures, 

submission by regular mail may result 

in a significant delay in receipt. Please 

contact the OSHA Docket Office for 

information about security procedures 

for making submissions by hand 

delivery, express delivery, messenger or 

courier service. For additional 

information about submitting comments 

and requests to speak, see the 

SUPPLEMENTARY INFORMATION section of 

this notice. 

Comments and requests to speak, 

including personal information 

provided, will be placed in the public 

docket and may be available online. 

Therefore, OSHA cautions interested 

parties about submitting personal 

information such as social security 

numbers and birthdates. 

Docket: To read or download 

documents in the public docket for this 

NACOSH meeting, go to http:// 

www.regulations.gov. All documents in 

the public docket are listed in the index; 

however, some documents (e.g., 

copyrighted material) are not publicly 

available to read or download through 

http://www.regulations.gov. All 

submissions, including copyrighted 

material, are available for inspection 

and copying at the OSHA Docket Office 

at the address above. 

FOR FURTHER INFORMATION CONTACT: For 

press inquiries: MaryAnn Garrahan, 

OSHA, Office of Communications, U.S. 

Department of Labor, Room N3647, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–1999. 

For general information: Ms. Deborah 

Crawford, OSHA, Directorate of 

Evaluation and Analysis, U.S. 


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