78758 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

Department of Labor’s List of Goods 

Produced by Child Labor or Forced 

Labor. 

The Department invites public 

comment on whether these products 

(and/or other products, regardless of 

whether they are mentioned in this 

Notice) should be included on or 

removed from the revised List of 

products requiring federal contractor 

certification as to the use of forced or 

indentured child labor. To the extent 

possible, comments provided should 

address the criteria for inclusion of a 

product on the List contained in the 

Procedural Guidelines discussed above. 

The Department is also interested in 

public comments relating to whether 

products initially determined to be on 

the List are designated with appropriate 

specificity and whether alternative 

designations would better serve the 

purposes of EO 13126. 

The bibliography providing the 

preliminary basis for adding handwoven textiles from Ethiopia on the List 

and additional documentation on the 

removal of charcoal from Brazil are 

available on the Internet at http:// 

www.dol.gov/ILAB/regs/eo13126/ 

main.htm. 

As explained, following receipt and 

consideration of comments on the 

revised List set out above, the 

Department of Labor, in consultation 

and cooperation with the Departments 

of State Homeland Security, will issue 

a final determination in the Federal 

Register. The Department of Labor 

intends to continue to revise the List 

periodically, to add and/or delete 

products, as justified by new 

information. 

Signed at Washington, DC, this 8th day of 

December, 2010. 

Sandra Polaski, 

Deputy Undersecretary, Bureau of 

International Labor Affairs. 

[FR Doc. 2010–31213 Filed 12–15–10; 8:45 am] 

BILLING CODE 4510–28–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Bureau of International Labor Affairs; 

Labor Advisory Committee for Trade 

Negotiations and Trade Policy 

ACTION: Meeting notice. 

SUMMARY: Pursuant to the provisions of 

the Federal Advisory Committee Act 

(Pub. L. 92–463, as amended), notice is 

hereby given of a meeting of the Labor 

Advisory Committee for Trade 

Negotiation and Trade Policy. 

Date, Time, Place: January 12, 2011; 

10 a.m.–11:30 a.m.; U.S. Department of 

Labor, Secretary’s Conference Room, 

200 Constitution Ave., NW., 

Washington, DC. 

Purpose: The meeting will include a 

review and discussion of current issues 

which influence U.S. trade policy. 

Potential U.S. negotiating objectives and 

bargaining positions in current and 

anticipated trade negotiations will be 

discussed. Pursuant to 19 U.S.C. 2155(f) 

it has been determined that the meeting 

will be concerned with matters the 

disclosure of which would seriously 

compromise the Government’s 

negotiating objectives or bargaining 

positions. Accordingly, the meeting will 

be closed to the public. 

FOR FURTHER INFORMATION, CONTACT: 

Gregory Schoepfle, Director, Office of 

Trade and Labor Affairs; Phone: (202) 

693–4887. 

Signed at Washington, DC, the 10th day of 

December, 2010. 

Sandra Polaski, 

Deputy Undersecretary International Affairs. 

[FR Doc. 2010–31582 Filed 12–15–10; 8:45 am] 

BILLING CODE 4510–28–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Prohibited Transaction Exemptions 

From Certain Prohibited Transaction 

Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of Individual Exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). 

This notice includes the following: 

2010–31, Deutsche Asset Management 

(UK) Limited, D–11495; 2010–32, 

Sherburne Tele Systems, Inc. Amended 

and Restored Stock Ownership Plan and 

Trust (the ‘‘ESOP’’), D–11569; 2010–33, 

Citigroup Global Markets, Inc. and Its 

Affiliates (together, CGMI or the 

Applicant), D–11573; and 2010–34, 

Retirement Plan for Employees of the 

Rehabilitation Institute of Chicago (the 

Plan), D–11585. 

SUPPLEMENTARY INFORMATION: A notice 

was published in the Federal Register of 

the pendency before the Department of 

a proposal to grant such exemption. The 

notice set forth a summary of facts and 

representations contained in the 

application for exemption and referred 

interested persons to the application for 

a complete statement of the facts and 

representations. The application has 

been available for public inspection at 

the Department in Washington, DC. The 

notice also invited interested persons to 

submit comments on the requested 

exemption to the Department. In 

addition, the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The applicant 

has represented that it has complied 

with the requirements of the notification 

to interested persons. No requests for a 

hearing were received by the 

Department. Public comments were 

received by the Department as described 

in the granted exemption. 

The notice of proposed exemption 

was issued and the exemption is being 

granted solely by the Department 

because, effective December 31, 1978, 

section 102 of Reorganization Plan No. 

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

transferred the authority of the Secretary 

of the Treasury to issue exemptions of 

the type proposed to the Secretary of 

Labor. 

Statutory Findings 

In accordance with section 408(a) of 

the Act and/or section 4975(c)(2) of the 

Code and the procedures set forth in 29 

CFR Part 2570, Subpart B (55 FR 32836, 

32847, August 10, 1990) and based upon 

the entire record, the Department makes 

the following findings: 

(a) The exemption is administratively 

feasible; 

(b) The exemption is in the interests 

of the plan and its participants and 

beneficiaries; and 

(c) The exemption is protective of the 

rights of the participants and 

beneficiaries of the plan. 

Deutsche Asset Management (UK) 

Limited (the Applicant), Located in 

London, England, a Wholly-Owned 

Subsidiary of Deutsche Bank AG, 

Located in Frankfurt, Germany, and 

Throughout the World 

[Prohibited Transaction Exemption 

2010–31; Exemption Application 

Number D–11495] 

Exemption 

Section I—Covered Transactions 

The restrictions of sections 

406(a)(1)(A), 406(a)(1)(B), 406(a)(1)(D), 

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

the sanctions resulting from the 

application of section 4975 of the Code, 

by reason of sections 4975(c)(1)(A), (B), 

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

to certain foreign exchange Hedging and 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78759 

Administrative Conversion transactions 

that occurred between November 30, 

2007 and May 30, 2008, inclusive, 

between the DB Torus Japan Master 

Portfolio (the Master Fund), in which 

the assets of a client employee benefit 

plan (the Client Plan) were invested, 

and Deutsche Bank AG, a party in 

interest with respect to the Client Plan, 

provided that the conditions contained 

herein are satisfied. 

Section II—General Conditions 

(a) The Foreign Exchange 

Transactions were executed solely in 

connection with the Master Fund’s 

Hedging of the Japanese yen currency 

risk for its share classes denominated in 

U.S. dollars (USD), and for 

Administrative Conversions; 

(b) At the time that the Foreign 

Exchange Transactions were entered 

into, the terms of such transactions were 

not less favorable to the Master Fund 

than the terms generally available in 

comparable arm’s length Foreign 

Exchange Transactions between 

unrelated parties; 

(c) Any Foreign Exchange 

Transactions authorized by Deutsche 

Asset Management (UK) Ltd. and 

executed by Deutsche Bank AG were not 

part of any agreement, arrangement, or 

understanding, written or otherwise, 

designed to benefit the foregoing entities 

or their Affiliates (collectively, Deutsche 

Bank), or any other party in interest; 

(d) Prior to investing in DB Torus 

Japan Fund Ltd. (hereinafter the Feeder 

Fund, the vehicle through which 

investments in the Master Fund are 

effected), the fiduciary of the Client Plan 

received the offering memorandum for 

the Feeder Fund; 

(e) The exchange rate used for a 

particular Foreign Exchange Transaction 

did not deviate by more than three 

percent (above or below) the interbank 

bid and asked rate for such currency at 

the time of such transaction, as 

displayed on an independent, 

nationally-recognized service that 

reports rates of exchange in the foreign 

currency market for such currency; 

(f) Prior to the granting of this 

exemption concerning the subject 

Foreign Exchange Transactions, 

Deutsche Asset Management (UK) Ltd. 

reimbursed the Client Plan for its prorata share of: (1) The Spread on each 

Foreign Exchange Transaction subject to 

this exemption; and (2) Any fees 

charged by Deutsche Bank AG for 

executing the subject Foreign Exchange 

Transaction(s), plus interest at the 

applicable Internal Revenue Service (the 

Service) underpayment penalty rate up 

to the date of reimbursement; 

(g) Within 30 days after taking the 

corrective action described in Section 

II(f) above, Deutsche Asset Management 

(UK) Ltd. provided the independent 

fiduciary of the Client Plan whose assets 

were involved in the Foreign Exchange 

Transactions with: (1) Written 

information, formulas, and/or other 

documentation sufficient to enable such 

fiduciaries to independently verify that 

the Plans have been reimbursed in 

accordance with the requirements of 

Section II(f) above; and (2) a copy of the 

Notice of Proposed Exemption (the 

Notice); 

(h) Within 30 days after taking the 

corrective action described in Section 

II(f) above, Deutsche Asset Management 

(UK) Ltd. provided the Department with 

written documentation demonstrating 

that the foregoing reimbursements to the 

Client Plan were correctly computed 

and paid; 

(i) Effective May 31, 2008, Deutsche 

Asset Management (UK) Ltd., in 

conjunction with the administrator of 

both the Master Fund and the Feeder 

Fund (together, the Funds), 

continuously monitors the percentage of 

total assets invested by benefit plan 

investors in the Funds so that, as of each 

acquisition or redemption of equity 

interests, Deutsche Asset Management 

(UK) Ltd. and the administrator of the 

Funds are able to verify whether equity 

participation in the Funds by benefit 

plan investors is not significant 

pursuant to section 3(42) of the Act and 

29 CFR 2510.3–101; 

(j) Deutsche Asset Management (UK) 

Ltd. maintains, or causes to be 

maintained, for a period of six years 

from the date of the transactions that are 

the subject of this exemption, the 

following records, as well as any other 

records necessary to enable the persons 

described in Section II(l) of this 

exemption, to determine whether the 

conditions of this exemption have been 

met: 

(1) The account name; 

(2) The trade and settlement dates of 

the subject foreign exchange Hedging 

and Administrative Conversion 

transactions; 

(3) The USD/Japanese yen currency 

exchange rates for each covered 

transaction; 

(4) The interbank bid and asked 

currency rates for USD/Japanese yen 

exchanges on Bloomberg or a similar 

independent service at the time of the 

transaction; 

(5) The identification of the type of 

currency trade undertaken (whether 

spot or forward or other contractual 

trade); 

(6) The amount of Japanese yen sold 

or purchased in the Hedging and 

Administrative Conversion transactions; 

and 

(7) The amount of U.S. dollars 

exchanged for Japanese yen in the 

Hedging and Administrative Conversion 

transactions. 

(k) The following are exceptions to 

the requirements of Section II(j): 

(1) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Deutsche Asset 

Management (UK) Ltd. or its Affiliates, 

the records necessary to enable the 

persons described in Section II(l) to 

determine whether the conditions of the 

exemption have been met are lost or 

destroyed prior to the end of the sixyear period; and 

(2) No party in interest, other than 

Deutsche Asset Management (UK) Ltd. 

and its Affiliates, shall be subject to the 

civil penalty that may be assessed under 

section 502(i) of the Act or to the excise 

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

of the Code if the records are not 

maintained for examination as required 

by Section II(l) below. 

(l)(1) Except as provided in paragraph 

(2) of this Section II(l) and 

notwithstanding the provisions of 

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

of the Act, the records referred to above 

in Section II(j) are unconditionally 

available for examination during normal 

business hours at their customary 

location to the following persons or an 

authorized representative thereof: 

(i) Any duly authorized employee or 

representative of the Department or the 

Service; 

(ii) The independent fiduciary of the 

Client Plan (or a duly authorized 

employee or representative of such 

fiduciary), or 

(iii) Any participant or beneficiary of 

the Client Plan or any duly authorized 

employee of representative of a 

participant or beneficiary in such Client 

Plan. 

(2) None of the persons described 

above in paragraphs (ii) and (iii) of 

Section II(l)(1) shall be authorized to 

examine trade secrets of Deutsche Bank 

or its Affiliates, or any commercial or 

financial information which is 

privileged or confidential. 

(3) Should Deutsche Asset 

Management (UK) Ltd. refuse to disclose 

information to the persons described 

above in paragraphs (ii) and (iii) of 

Section II(l)(1) on the basis that such 

information is exempt from disclosure, 

Deutsche Asset Management (UK) 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 


srobinson on DSKHWCL6B1PROD with NOTICES
78760 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

Department may request such 

information. 

Section III—Definitions 

For purposes of this exemption: 

(a) An ‘‘Affiliate’’ of Deutsche Asset 

Management (UK) Ltd. means: 

(1) Any person or entity directly or 

indirectly, through one or more 

intermediaries, controlling, controlled 

by, or under common control with such 

person or entity; (2) Any officer, 

director, partner, employee, or relative 

(as defined in section 3(15) of the Act) 

of such other person or entity; and (3) 

Any corporation or partnership of 

which such other person or entity is an 

officer, director, partner, or employee. 

(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 ‘‘Client Plan’’ means an 

employee benefit plan, other than a plan 

sponsored by Deutsche Bank and its 

affiliates, as described in section 3(3) of 

the Act or section 4975(e)(1) of the Code 

that invested directly or indirectly in 

the Master Fund, and for which 

Deutsche Asset Management (UK) Ltd. 

or its affiliate served as an investment 

advisor. 

(d) The term ‘‘Foreign Exchange 

Transaction’’ means the exchange of the 

currency of one nation for the currency 

of another nation, or a contract for such 

an exchange. The term foreign exchange 

transaction includes options contracts 

on such transactions. 

(e) The term ‘‘Hedging’’ means a 

strategy used to offset the investment 

risk of future gains or losses resulting 

from anticipated fluctuations in the 

value of currency, such as an investor’s 

decision to exchange foreign currency in 

anticipation of upward or downward 

movement in the value of that currency. 

(f) The term ‘‘Administrative 

Conversions’’ means, with respect to 

foreign exchange transactions, those 

transactions necessary to effect (1) 

subscriptions, (2) redemptions, or (3) 

the payment of fees and expenses 

identified below: 

(i) December 27, 2007 spot 

conversions in the total amount of 

$552,650 for management fees, 

incentive fees, administration fees and 

expenses, legal fees, the Funds’ Board of 

Directors fees, the Funds’ Conflict 

Advisory Board fees, translation 

services, and bank charges; and 

(ii) January 30, 2008 spot conversions 

in the total amount of $554,637 for 

management fees, incentive fees, 

administration fees and expenses, legal 

fees, the Funds’ Board of Directors fees, 

the Funds’ Conflicts Advisory Board 

fees, translation services, and bank 

charges. 

(g) The term ‘‘Spread’’ means the 

difference between (i) the rate at which 

the transaction occurred and (ii) the 

reported market price (i.e., the interbank 

bid or asked price depending on the 

direction of the trade) at the time of the 

transaction as reflected by a ‘‘screen 

shot’’ taken from an independent pricing 

service. 

Written Comments 

1. The Notice of Proposed Exemption 

(the Notice), published in the January 

19, 2010 issue of the Federal Register 

beginning at page 3067, invited all 

interested persons to submit written 

comments and requests for a hearing to 

the Department within forty-five (45) 

days of the date of its publication. In 

response, the Department received an 

extensive written comment from the 

Applicant regarding the content of the 

Notice. This comment, which was the 

only one received by the Department in 

connection with the Notice, suggested a 

number of clarifications and editorial 

adjustments to the operative language of 

Section I (‘‘Covered Transactions’’), 

Section II (‘‘General Conditions’’), and 

Section III (‘‘Definitions’’) of the Notice, 

which are detailed below; those 

modifications suggested by the 

Applicant which the Department has 

determined to adopt are reflected in the 

text of this final grant (the Grant) of 

exemption. The Applicant’s comment 

also requested certain clarifications to 

the text of the ‘‘Summary of Facts and 

Representations’’ section of the Notice, 

which are also generally described 

below. The Department notes that it did 

not receive any requests for a hearing 

from the Applicant or from any other 

person during the aforementioned 45- 

day comment period. 

2. In its written comment, the 

Applicant expressed its view that the 

scope of exemptive relief proposed in 

Section I of the Notice for ‘‘foreign 

exchange hedging transactions’’ could be 

construed as limiting such relief to 

those spot and forward transactions 

directly related to the purpose of 

hedging currencies, while potentially 

excluding certain ‘‘administrative 

conversion’’ activities. The Applicant’s 

comment explained that the term 

‘‘administrative conversions’’ is 

intended to encompass those 

transactions necessary to effect: (i) 

Subscriptions (through the conversion 

of U.S. dollars (USD) to the Japanese 

yen, the Funds’ base currency, as 

required by the terms of Class A of the 

Feeder Fund); (ii) redemptions out of 

the Funds’ base currency and back into 

the currency required to be paid to 

investors (through the conversion of yen 

to USD as required by the terms of Class 

A of the Feeder Fund); or (iii) the 

payment of assorted fees and expenses 

(through the spot conversion of such 

expenses from yen to USD). 

Accordingly, the Applicant’s comment 

requested that the Department insert the 

words ‘‘and administrative conversion’’ 

after the words ‘‘foreign exchange 

hedging’’ and before the word 

‘‘transactions’’ in Section I of the Grant 

in order to clarify that exemptive relief 

extends to the administrative 

conversion activities necessary for the 

completion of the foreign exchange 

transactions. After due consideration of 

the Applicant’s request, the Department 

agrees to the insertion of this clarifying 

language in this Grant. 

The Applicant’s comment further 

requested that a definition for the term 

‘‘administrative conversions’’ in Section 

III(f) be made consistent with the 

various activities described in the 

previous paragraph; this revised 

definition would also reference the 

specific categories of fees and expenses 

incurred by the Funds with respect to 

certain spot conversions that occurred 

during the period of exemptive relief. In 

addition, the Applicant has requested 

that conforming adjustments to the text 

be made to Sections II(j)(2), II(j)(6), and 

II(j)(7) of the Grant by adding the term 

‘‘administrative conversions’’ to each of 

these general conditions for relief, and 

that a reference to the administrative 

conversion activities described in 

Section III(f) be added at the conclusion 

of Section II(a). The Department agrees 

that each of these suggested insertions 

and adjustments would provide 

additional clarity and consistency to the 

text, and has, therefore, decided to 

incorporate each of the foregoing 

modifications. In this connection, the 

Department notes that the adoption of 

these adjustments should not be 

construed to mean that the Department 

is expressing an opinion herein as to 

whether the assessment of the various 

fees and expenses charged to the Funds 

in connection with the administrative 

conversion transactions were consistent 

with, or in violation of, the fiduciary 

requirements of Part 4 of Title I of the 

Act. 

3. In its comment, the Applicant also 

requested that a number of references 

made in the text of the Notice to 

Deutsche Bank AG and/or its affiliates 

be adjusted and clarified in the final 

Grant. In this connection, the Applicant 

requested that the initial reference to 

‘‘Deutsche Bank Asset Management (UK) 

Ltd. or its affiliates (collectively, 

Deutsche Bank)’’ in Section I of the 

Notice be deleted, and that the words 


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Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78761 

‘‘Deutsche Bank AG’’ be substituted in 

lieu thereof. Concomitantly, the 

Applicant requested that the language of 

the general condition at Section II(c) 

should be amended to read: ‘‘Any 

foreign exchange transactions 

authorized by Deutsche Asset 

Management (UK) Ltd. and executed by 

Deutsche Bank AG were not part of any 

agreement, arrangement, or 

understanding, written or otherwise, 

designed to benefit Deutsche Bank, its 

affiliates, or any other party in interest.’’ 

The Applicant further requested that all 

references to ‘‘Deutsche Bank’’ made in 

the Notice at Sections II(f), II(g), II(h), 

II(i), II(j), and II(k) of the Notice be 

deleted, and that the term ‘‘Deutsche 

Asset Management (UK) Ltd.’’ be 

substituted in lieu thereof in each 

instance. After reviewing these 

suggested clarifications concerning 

references to Deutsche Bank entities, the 

Department has agreed to adopt each of 

these modifications in the text of the 

final Grant. 

4. In its comment, the Applicant 

stated that a definition for the term 

‘‘spread’’ be added to the text of Section 

III of the final Grant. According to the 

Applicant, ‘‘spread’’ means the 

difference between (i) the rate at which 

the transaction occurred and (ii) the 

reported market price (i.e., the bid or 

asked price depending on the direction 

of the trade) at the time of the 

transaction as reflected by a ‘‘screen 

shot’’ taken from an independent pricing 

service. The Applicant commented that 

the screen shot provides an accurate 

reflection of the market price since the 

prices quoted on the screen shot depict 

the prices at the time a trade occurred. 

The Department concurs that the 

inclusion of such a definition would 

improve the clarity of the exemption, 

and accordingly has modified the 

definition at Section III(g) of the Grant. 

5. In addition, the Applicant 

requested in its comment that the 

definition of ‘‘foreign exchange 

transaction’’ appearing at Section III(d) 

of the Notice be modified by adding 

similar language found in the definition 

of the same term that appears in the text 

of an administrative class exemption, 

PTE 94–20 (59 FR 51216, February 10, 

1994). Section IV(a) of PTE 94–20 states 

that ‘‘a ‘foreign exchange transaction’ 

means the exchange of the currency of 

one nation for the currency of another 

nation, or a contract for such an 

exchange. The term foreign exchange 

transaction includes options contracts 

on foreign exchange transactions.’’ The 

Applicant’s comment further requested 

that the clause ‘‘including a synthetic 

contract’’ be added to this definition 

after the word ‘‘contract’’. In its 

comment, the Applicant equated the 

term ‘‘synthetic contract’’ with a ‘‘swap,’’ 

which, according to the Applicant, is 

the economic equivalent of continuous 

currency forwards selling the yen for the 

USD, settling differences in cash and 

then putting the same trade on 

immediately at the close of each forward 

trade.’’ 

After due consideration of this 

request, the Department has determined 

to substitute, in Section III(d) of the 

Grant, the exact language defining a 

‘‘foreign exchange transaction’’ found in 

Section IV(a) of PTE 94–20 in lieu of the 

definitional language contained in 

Section III(d) of the Notice; however, the 

Department declines to insert an 

additional ‘‘synthetic contracts’’ clause 

to the foregoing definition. In this 

regard, the Department is of the view 

that the exemptive relief provided in 

this Grant encompasses the various 

foreign exchange transactions activities 

described by the Applicant in its 

application, and that there is 

insufficient information on the record 

for the Department to determine the 

scope of the term ‘‘synthetic contracts’’ 

as they relate to foreign exchange 

transactions. 

6. The Applicant’s comment also 

suggested several additional 

modifications to the text of Section II(j) 

of the Notice. At Section II(j)(3), the 

Applicant requested that the words ‘‘on 

the trade and settlement dates’’ be 

deleted, and that the words ‘‘for each 

covered transaction’’ be substituted in 

lieu thereof in the final Grant. After due 

consideration, the Department agrees to 

this change. At Section II(j)(4), the 

Applicant also requested the deletion of 

the words ‘‘The high and low currency 

prices on Bloomberg or similar 

independent service on the dates of the 

subject transactions’’ and the 

substitution of language in the text of 

the Grant that would require the 

utilization of the interbank bid and 

asked currency rates for Japanese yen/ 

USD exchanges on Bloomberg or a 

similar independent service at the time 

of the transaction. As described above in 

Item 4, the Applicant explained that it 

desires this modification because it 

believes that the currency rates at the 

time of the transaction are ‘‘a better 

indicator of market prices than the high 

and low for the day.’’ The Department 

concurs, and adopts this substitution in 

Section II(j)(4) of the Grant. At Section 

II(j)(5), the Applicant requested the 

insertion of the words ‘‘or other 

contractual trade’’ after the word 

‘‘forward’’ in the text of the final Grant. 

The Applicant explains in its comment 

that these ‘‘other contractual trades’’ 

represent ‘‘continuous currency 

forwards’’ in which yen are sold in 

exchange for the USD. After due 

consideration, the Department agrees to 

the Applicant’s suggested modification 

at Section II(j)(5). 

7. In its comment, the Applicant 

requested that the language contained in 

Section II(l)(1)(iii) of the Notice, which 

permits ‘‘[A]ny participant of beneficiary 

of such Client Plans or any duly 

authorized employee or representative 

of a participant or beneficiary in such 

Client Plans’’ to inspect the records 

required to be maintained by Deutsche 

Asset Management (UK) Ltd. pursuant 

to Section II(j) of the Grant, be deleted 

in its entirety from the text of the final 

Grant. In requesting this change, the 

Applicant’s comment stated that the 

class of individuals comprising these 

participants and beneficiaries ‘‘could 

exceed tens of thousands of individuals, 

which could cause an extraordinary 

burden to the Applicant.’’ The Applicant 

further stated that ‘‘[b]ecause any plan 

invested in the [Feeder] Fund was a 

defined benefit plan, we request that 

only plan fiduciaries (and the 

Department and Service) have access to 

the Applicant’s records.’’ After due 

consideration of this comment, the 

Department has determined not to adopt 

the Applicant’s suggested modification. 

The Department is of the view that 

providing participants and beneficiaries 

with a right of inspection of records that 

are otherwise required to be maintained 

promotes transparency and is not 

onerous or burdensome. In this 

connection, the Department, on its own 

motion, has also determined to add a 

new Section II(l)(3) to the text of the 

final Grant which would require 

Deutsche Asst Management (UK) Ltd., 

in instances where it refuses to disclose 

the foregoing information to an 

independent plan fiduciary, participant, 

and/or beneficiary on the basis that such 

information is exempt from disclosure, 

to provide to such persons with a 

written notice advising them of the 

reasons for the refusal. 

8. The Applicant’s comment included 

additional recommendations for 

technical and clarifying changes. In this 

regard, the Applicant requested that the 

first reference to ‘‘Master Fund’’ made in 

Section II(d) of the Notice be deleted, 

and the words ‘‘Feeder Fund (and 

indirectly in the Master Fund through 

the Feeder Fund)’’ be substituted in lieu 

thereof. In response to the Applicant’s 

suggestion, the Department has 

determined to clarify and reformulate 

the text of Section II(d) in the Grant by 

stating that, ‘‘[p]rior to investing in DB 

Torus Japan Fund Ltd. (hereinafter the 

Feeder Fund, the vehicle through which 

investments in the Master Fund are 


srobinson on DSKHWCL6B1PROD with NOTICES
78762 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

1Section 404(a) of the Act requires, among other 

things, that the fiduciary of a plan act prudently, 

solely in the interests of the plan’s participants and 

beneficiaries, and for the exclusive purpose of 

providing benefits to participants and beneficiaries 

when making investment decisions on behalf of a 

plan. In granting this exemption, the Department is 

expressing no opinion herein as to whether the 

fiduciary provisions of Part 4 of Title I of the Act 

have been satisfied. 

2For purposes of this exemption, references to 

provisions of Title I in the Act, unless otherwise 

specified, should be read to refer also to the 

corresponding provisions of the Code. 

effected), the fiduciary of each Client 

Plan received the offering memorandum 

for the Feeder Fund.’’ 

The Applicant also requested that the 

reference to ‘‘Applicant’’, found in 

Section III(a) of the Notice (which 

defines ‘‘affiliate’’) be deleted, and that 

the word ‘‘Deutsche Asset Management 

(UK) Ltd.’’ be substituted in lieu thereof 

in the final Grant. In addition, the 

Applicant requested that the first 

reference to the ‘‘Applicant’’ in Section 

III(c) of the Notice (which defines the 

term ‘‘Client Plan’’) be deleted and the 

words ‘‘Deutsche Bank’’ be substituted 

in lieu thereof in the text of the Grant; 

similarly, the Applicant requested that 

the second reference to the ‘‘Applicant’’ 

in Section III(c) of the Notice be deleted, 

and the words ‘‘Deutsche Asset 

Management (UK) Ltd.’’ be substituted 

in lieu thereof in the final Grant. Also, 

the Applicant requests that the text of 

Section III(c) of the Notice be further 

amended in the Grant by inserting the 

words ‘‘directly or indirectly’’ after the 

word ‘‘invested,’’ and by deleting the 

words ‘‘and the Feeder Fund’’ after the 

words ‘‘Master Fund.’’ After 

consideration of these clarifying 

modifications suggested by the 

Applicant, the Department has 

determined to adopt each of them in the 

text of the final Grant. 

9. In its comment, the Applicant also 

requested several technical 

clarifications to the text of the Summary 

of Facts and Representations section of 

the Notice. The majority of these 

adjustments involved the systematic 

substitution in the text of the names of 

various Deutsche Bank entities in the 

same manner as the substitutions 

described in Items 3 and 8 above; other 

systematic modifications suggested by 

the Applicant involved the multiple 

additions of the term ‘‘administrative 

conversion’’ after each use of the words 

‘‘foreign exchange hedging transaction’’ 

when referencing the scope of relief 

covered by the exemption. Accordingly, 

the Department herewith adopts the 

foregoing systemic, clarifying 

modifications suggested by the 

Applicant to the text of the Facts and 

Representations section of the Notice. 

In addition, the Applicant requests 

that the Department amend the language 

contained in the penultimate sentence 

of the second paragraph of 

Representation 7 of the Notice by 

inserting the words ‘‘may have’’ before 

the phrase ‘‘caused a breach of the 25% 

limitation until approximately April 15, 

2008.’’ The Department has determined 

to adopt this suggested modification in 

order to maintain the internal 

consistency of the text of the Facts and 

Representations contained in the Notice. 

The Department has also determined 

to make the following additional 

technical clarifications to the text of the 

Facts and Representations section of the 

Notice that were requested by the 

Applicant in its comment: Deleting the 

word ‘‘is’’ in line 8 of the first paragraph 

of Representation 1 and inserting in lieu 

thereof the words ‘‘until June 19, 2009 

was’’; inserting the word ‘‘indirectly’’ 

before the words ‘‘wholly-owned’’ in 

line 11 of the second paragraph of 

Representation 1; inserting the words 

‘‘and that its subscription will be 

converted to yen, its redemptions will 

be converted to USD, and fees and 

expenses will be converted to the 

appropriate currency for the recipient’’ 

at the conclusion of the third sentence 

of Representation 4; inserting the words 

‘‘in advance’’ before the words ‘‘the 

execution of currency trades’’ in the 

final sentence of Representation 4; 

inserting the words ‘‘bid or asked’’ 

before the phrase ‘‘rate available on 

these trades based on the 

aforementioned Bloomberg screen 

prints’’ in the final sentence of the first 

paragraph of Representation 8; 

substituting the word ‘‘subscriptions’’ in 

lieu of the word ‘‘investments’’ at the 

beginning of item (ii) at line 17 of 

Representation 9; inserting the words 

‘‘any class of shares in’’ before the word 

‘‘either’’ in item (v) of Representation 9; 

inserting the words ‘‘any class of shares’’ 

at the end of the final sentence of 

Representation 9; and inserting the 

words ‘‘at the same time’’ after the words 

‘‘unrelated third party’’ in the second 

sentence of Representation 10. 

10. The Department notes that, 

subsequent to the submission of the 

exemption application, the Applicant 

determined that only a single Client 

Plan was affected by the foreign 

exchange and administrative 

conversions covered by this exemption.1

The Applicant also made a subsequent 

representation to the Department that no 

fees were charged by the Applicant’s 

affiliates or other financial institutions 

for executing the exemption 

transactions; accordingly, there were no 

fees to add to the principal amount (i.e., 

the Spread on each Foreign Exchange 

Transaction subject to the exemption) in 

determining the interest component of 

the reimbursement owed to the Client 

Plan pursuant to Section II(f) of the 

exemption. In computing this interest 

component, the Applicant confirms that 

it utilized the Department’s online 

Voluntary Fiduciary Correction Program 

(VFCP) calculator to arrive at the 

applicable Internal Revenue Service 

underpayment rate described in Section 

5(b)(5) of the VFCP at 71 FR 20271 

(April 19, 2006). The Applicant 

represents that, pursuant to Section II(g) 

of the exemption, a copy of the Notice 

was furnished to the independent 

fiduciary for the affected Client Plan on 

February 3, 2010. The Applicant further 

represents that, on September 9, 2010, 

in accordance with Section II(f) of the 

exemption, Deutsche Asset Management 

(UK) Ltd. paid the affected Client Plan 

$6,396.16, which amount included 

$741.20 in interest. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the text of the Notice 

at 75 FR 3067 (January 19, 2010). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Judge of the Department, 

telephone (202) 693–8550. (This is not 

a toll-free number.) 

Sherburne Tele Systems, Inc. 2008 

Amended and Restated Employee 

Stock Ownership Plan and Trust (the 

‘‘ESOP’’) Located in Big Lake, 

Minnesota 

[Prohibited Transaction Exemption 

2010–32; Exemption Application No. 

D–11569] 

Exemption 

The restrictions of sections 

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

406(b)(2) of the Act and the sanctions 

imposed under section 4975 of the 

Code, by reason of sections 

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

shall not apply to the sale by the ESOP 

of all its shares of common stock (the 

‘‘ESOP Shares’’) in Sherburne Tele 

Systems, Inc. (the ‘‘Company’’) to the 

Company, a party in interest with 

respect to the ESOP, provided that the 

following conditions are satisfied:2

(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 ESOP 

as those that the ESOP could obtain in 

an arm’s length transaction with an 

unrelated third party; 

(c) The sales price is the greater of (i) 

$5.01 per share, or (ii) the fair market 

value of the ESOP Shares as of the date 


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3For the avoidance of doubt, unless the context 

suggests otherwise, the term ‘‘Portfolio’’ includes the 

Stable Value Investments Fund, a collective trust 

fund established and maintained by First State 

Trust Company, formerly a wholly-owned 

subsidiary of Citigroup. 

of the sale, as determined by a qualified, 

independent appraiser (the appraiser); 

(d) The sales proceeds received by the 

ESOP pursuant to the transaction are 

valued at a share price that is greater 

than the share price received by the 

non-ESOP shareholders; 

(e) The benefits received by the 

members of the board of directors and 

officers of the Company pursuant to the 

board of directors awards program, the 

Company’s phantom stock plan and 

retention plans, which were paid, 

coincident with the closing of the asset 

sale of the Company to Iowa 

Telecommunications Services, Inc. were 

reasonable; 

(f) A qualified, independent fiduciary 

(the ‘‘Independent Fiduciary’’) for the 

ESOP was and is responsible for (i) 

reviewing the terms of the sale of the 

Company’s assets; (ii) engaging the 

appraiser to value the ESOP Shares; (iii) 

reviewing and, if appropriate, approving 

the methodology used by the appraiser, 

to ensure that such methodology is 

properly applied in determining the fair 

market value of the ESOP Shares, to be 

updated as of the date of the sale; (iv) 

negotiating the terms of the sale of the 

ESOP Shares to the Company to ensure 

that the ESOP participants receive at 

least the fair market value of the ESOP 

Shares; (v) determining, and 

documenting in writing, whether the 

terms of the sale are fair and reasonable 

to the ESOP and whether it is prudent 

to proceed with the transaction; (vi) 

approving the transaction; and (vii) 

determining whether the transaction 

satisfies the criteria set forth in section 

404 and section 408(a) of the Act; 

(g) The ESOP pays no fees, 

commissions, or other expenses in 

connection with the sale (including the 

fees paid to the appraiser and the 

Independent Fiduciary), other than a 

one-time $500.00 escrow fee (as 

described in the notice of proposed 

exemption’s Summary of Facts and 

Representations #10); and 

(h) The proceeds from the sale are 

promptly forwarded to the ESOP’s trust 

simultaneously with the transfer of the 

ESOP Shares to the Company. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on 

August 6, 2010 at 75 FR 47639. 

Written Comments 

No written comments were received 

by the Department with respect to the 

notice of proposed exemption. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

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

a toll-free number.) 

Citigroup Global Markets, Inc. and Its 

Affiliates (together, CGMI or the 

Applicant), Located in New York, 

New York 

[Prohibited Transaction Exemption 

2010–33; Exemption Application No. 

D–11573] 

Exemption 

Section I. Covered Transactions 

A. The restrictions of section 406(a) of 

the Act and the sanctions resulting from 

the application of section 4975 of the 

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

through (D) of the Code, shall not apply, 

effective May 31, 2009, to the purchase 

or redemption of shares by an employee 

benefit plan, an individual retirement 

account (an IRA), a retirement plan for 

self-employed individuals (a Keogh 

Plan), or an individual account pension 

plan that is subject to the provisions of 

Title I of the Act and established under 

section 403(b) of the Code (the Section 

403(b) Plan) (collectively, the Plans) in 

the Trust for Consulting Group Capital 

Markets Funds (the Trust), sponsored by 

MSSB in connection with such Plans’ 

participation in the TRAK Personalized 

Investment Advisory Service (the TRAK 

Program). 

B. The restrictions of section 406(b) of 

the Act and the sanctions resulting from 

the application of section 4975 of the 

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

and (F) of the Code, shall not apply, 

effective May 31, 2009, with respect to 

the provision of (i) investment advisory 

services by the Adviser or (ii) an 

automatic reallocation option as 

described below (the Automatic 

Reallocation Option) to an independent 

fiduciary of a participating Plan (the 

Independent Plan Fiduciary), which 

may result in such fiduciary’s selection 

of a portfolio (the Portfolio) 3 in the 

TRAK Program for the investment of 

Plan assets. 

This exemption is subject to the 

following conditions set forth below in 

Section II. 

Section II. General Conditions 

(a) The participation of Plans in the 

TRAK Program is approved by an 

Independent Plan Fiduciary. For 

purposes of this requirement, an 

employee, officer or director of the 

Adviser and/or its affiliates covered by 

an IRA not subject to Title I of the Act 

will be considered an Independent Plan 

Fiduciary with respect to such IRA. 

(b) The total fees paid to the Adviser 

and its affiliates will constitute no more 

than reasonable compensation. 

(c) No Plan pays a fee or commission 

by reason of the acquisition or 

redemption of shares in the Trust. 

(d) The terms of each purchase or 

redemption of Trust shares remain at 

least as favorable to an investing Plan as 

those obtainable in an arm’s length 

transaction with an unrelated party. 

(e) The Adviser provides written 

documentation to an Independent Plan 

Fiduciary of its recommendations or 

evaluations based upon objective 

criteria. 

(f) Any recommendation or evaluation 

made by the Adviser to an Independent 

Plan Fiduciary is implemented only at 

the express direction of such 

Independent Plan Fiduciary, provided, 

however, that — 

(1) If such Independent Plan 

Fiduciary elects in writing (the 

Election), on a form designated by the 

Adviser from time to time for such 

purpose, to participate in the Automatic 

Reallocation Option under the TRAK 

Program, the affected Plan or participant 

account is automatically reallocated 

whenever the Adviser modifies the 

particular asset allocation 

recommendation which the 

Independent Plan Fiduciary has chosen. 

Such Election continues in effect until 

revoked or terminated by the 

Independent Plan Fiduciary in writing. 

(2) Except as set forth below in 

paragraph II(f)(3), at the time of a change 

in the Adviser’s asset allocation 

recommendation, each account based 

upon the asset allocation model (the 

Allocation Model) affected by such 

change is adjusted on the business day 

of the release of the new Allocation 

Model by the Adviser, except to the 

extent that market conditions, and order 

purchase and redemption procedures, 

may delay such processing through a 

series of purchase and redemption 

transactions to shift assets among the 

affected Portfolios. 

(3) If the change in the Adviser’s asset 

allocation recommendation exceeds an 

increase or decrease of more than 10 

percent in the absolute percentage 

allocated to any one investment 

medium (e.g., a suggested increase in a 

15 percent allocation to greater than 25 

percent, or a decrease of such 15 percent 

allocation to less than 5 percent), the 

Adviser sends out a written notice (the 

Notice) to all Independent Plan 

Fiduciaries whose current investment 

allocation may be affected, describing 

the proposed reallocation and the date 

on which such allocation is to be 


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4The fact that certain transactions and fee 

arrangements are the subject of an administrative 

exemption does not relieve the Independent Plan 

Fiduciary from the general fiduciary responsibility 

provisions of section 404 of the Act. In this regard, 

the Department expects the Independent Plan 

Fiduciary to consider carefully the totality of the 

fees and expenses to be paid by the Plan, including 

any fees paid directly to MSSB, CGMI or to other 

third parties. 

instituted (the Effective Date). If the 

Independent Plan Fiduciary notifies the 

Adviser, in writing, at any time within 

the period of 30 calendar days prior to 

the proposed Effective Date that such 

fiduciary does not wish to follow such 

revised asset allocation 

recommendation, the Allocation Model 

remains at the current level, or at such 

other level as the Independent Plan 

Fiduciary then expressly designated, in 

writing. If the Independent Plan 

Fiduciary does not affirmative ‘opt out’ 

of the new Adviser recommendation, in 

writing, prior to the proposed Effective 

Date, such new recommendation is 

automatically effected by a dollar-fordollar liquidation and purchase of the 

required amounts in the respective 

account. 

(4) An Independent Plan Fiduciary 

will receive a trade confirmation of each 

reallocation transaction. In this regard, 

for all Plan investors other than Section 

404(c) Plan accounts (i.e., 401(k) Plan 

accounts), CGMI or MSSB, as 

applicable, mails trade confirmations on 

the next business day after the 

reallocation trades are executed. In the 

case of Section 404(c) Plan participants, 

notification depends upon the 

notification provisions agreed to by the 

Plan recordkeeper. 

(g) The Adviser generally gives 

investment advice in writing to an 

Independent Plan Fiduciary with 

respect to all available Portfolios. 

However, in the case of a Plan providing 

for participant-directed investments (the 

Section 404(c) Plan), the Adviser 

provides investment advice that is 

limited to the Portfolios made available 

under the Plan. 

(h) Any sub-adviser (the Sub-Adviser) 

that acts for the Trust to exercise 

investment discretion over a Portfolio is 

independent of Morgan Stanley, Inc. 

(Morgan Stanley), CGMI, MSSB and 

their respective affiliates (collectively, 

the Affiliated Entities). 

(i) Immediately following the 

acquisition by a Portfolio of any 

securities that are issued by any 

Affiliated Entity, such as Citigroup or 

Morgan Stanley common stock (the 

Adviser Common Stock), the percentage 

of that Portfolio’s net assets invested in 

such securities will not exceed one 

percent. However, this percentage 

limitation may be exceeded if— 

(1) The amount held by a Sub-Adviser 

in managing a Portfolio is held in order 

to replicate an established third-party 

index (the Index). 

(2) The Index represents the 

investment performance of a specific 

segment of the public market for equity 

securities in the United States and/or 

foreign countries. The organization 

creating the Index is: 

(i) Engaged in the business of 

providing financial information; 

(ii) A publisher of financial news 

information; or 

(iii) A public stock exchange or 

association of securities dealers. 

The Index is created and maintained 

by an organization independent of the 

Affiliated Entities and is a generallyaccepted standardized Index of 

securities which is not specifically 

tailored for use by the Affiliated 

Entities. 

(3) The acquisition or disposition of 

Adviser Common Stock does not 

include any agreement, arrangement or 

understanding regarding the design or 

operation of the Portfolio acquiring such 

Adviser Common Stock, which is 

intended to benefit the Affiliated 

Entities or any party in which any of the 

Affiliated Entities may have an interest. 

(4) The Independent Plan Fiduciary 

authorizes the investment of a Plan’s 

assets in an Index Fund which 

purchases and/or holds the Adviser 

Common Stock and the Sub-Adviser is 

responsible for voting any shares of 

Adviser Common Stock that are held by 

an Index Fund on any matter in which 

shareholders of Adviser Common Stock 

are required or permitted to vote. 

(j) The quarterly investment advisory 

fee that is paid by a Plan to the Adviser 

for investment advisory services 

rendered to such Plan is offset by any 

amount in excess of 20 basis points that 

MSSB retains from any Portfolio (with 

the exception of the Money Market 

Investments Portfolio and the Stable 

Value Investments Portfolio for which 

neither MSSB nor the Trust will retain 

any investment management fee) which 

contains investments attributable to the 

Plan investor. 

(k) With respect to its participation in 

the TRAK Program prior to purchasing 

Trust shares, 

(1) Each Plan receives the following 

written or oral disclosures from the 

Adviser: 

(A) A copy of the Prospectus for the 

Trust discussing the investment 

objectives of the Portfolios comprising 

the Trust, the policies employed to 

achieve these objectives, the corporate 

affiliation existing among the Adviser 

and its affiliates, and the compensation 

paid to such entities.4

(B) Upon written or oral request to the 

Adviser, a Statement of Additional 

Information supplementing the 

Prospectus which describes the types of 

securities and other instruments in 

which the Portfolios may invest, the 

investment policies and strategies that 

the Portfolios may utilize and certain 

risks attendant to those investments, 

policies and strategies. 

(C) A copy of the investment advisory 

agreement between the Adviser and 

such Plan which relates to participation 

in the TRAK Program and describes the 

Automatic Reallocation Option. 

(D) Upon written request of the 

Adviser, a copy of the respective 

investment advisory agreement between 

MSSB and 

(E) the Sub-Advisers. 

(F) In the case of a Section 404(c) 

Plan, if required by the arrangement 

negotiated between the Adviser and the 

Plan, an explanation by an Adviser 

representative (the Financial Advisor) to 

eligible participants in such Plan, of the 

services offered under the TRAK 

Program and the operation and 

objectives of the Portfolios. 

(G) A copy of the proposed exemption 

and the final exemption pertaining to 

the exemptive relief described herein. 

(2) If accepted as an investor in the 

TRAK Program, an Independent Plan 

Fiduciary of an IRA or Keogh Plan is 

required to acknowledge, in writing, 

prior to purchasing Trust shares that 

such fiduciary has received copies of 

the documents described above in 

subparagraph (k)(1) of this section. 

(3) With respect to a Section 404(c) 

Plan, written acknowledgement of the 

receipt of such documents is provided 

by the Independent Plan Fiduciary (i.e., 

the Plan administrator, trustee or named 

fiduciary, as the recordholder of Trust 

shares). Such Independent Plan 

Fiduciary is required to represent in 

writing to the Adviser that such 

fiduciary is (a) independent of the 

Affiliated Entities and (b) 

knowledgeable with respect to the Plan 

in administrative matters and funding 

matters related thereto, and able to make 

an informed decision concerning 

participation in the TRAK Program. 

(4) With respect to a Plan that is 

covered under Title I of the Act, where 

investment decisions are made by a 

trustee, investment manager or a named 

fiduciary, such Independent Plan 

Fiduciary is required to acknowledge, in 

writing, receipt of such documents and 

represent to the Adviser that such 

fiduciary is (a) independent of the 

Affiliated Entities, (b) capable of making 


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an independent decision regarding the 

investment of Plan assets and (c) 

knowledgeable with respect to the Plan 

in administrative matters and funding 

matters related thereto, and able to make 

an informed decision concerning 

participation in the TRAK Program. 

(l) Subsequent to its participation in 

the TRAK Program, each Plan receives 

the following written or oral disclosures 

with respect to its ongoing participation 

in the TRAK Program: 

(1) The Trust’s semi-annual and 

annual report including a financial 

statement for the Trust and investment 

management fees paid by each Portfolio. 

(2) A written quarterly monitoring 

statement containing an analysis and an 

evaluation of a Plan investor’s account 

to ascertain whether the Plan’s 

investment objectives have been met 

and recommending, if required, changes 

in Portfolio allocations. 

(3) If required by the arrangement 

negotiated between the Adviser and a 

Section 404(c) Plan, a quarterly, detailed 

investment performance monitoring 

report, in writing, provided to an 

Independent Plan Fiduciary of such 

Plan showing Plan level asset 

allocations, Plan cash flow analysis and 

annualized risk adjusted rates of return 

for Plan investments. In addition, if 

required by such arrangement, Financial 

Advisors meet periodically with 

Independent Plan Fiduciaries of Section 

404(c) Plans to discuss the report as 

well as with eligible participants to 

review their accounts’ performance. 

(4) If required by the arrangement 

negotiated between the Adviser and a 

Section 404(c) Plan, a quarterly 

participant performance monitoring 

report provided to a Plan participant 

which accompanies the participant’s 

benefit statement and describes the 

investment performance of the 

Portfolios, the investment performance 

of the participant’s individual 

investment in the TRAK Program, and 

gives market commentary and toll-free 

numbers that enable the participant to 

obtain more information about the 

TRAK Program or to amend his or her 

investment allocations. 

(5) On a quarterly and annual basis, 

written disclosures to all Plans of (a) the 

percentage of each Portfolio’s brokerage 

commissions that are paid to the 

Affiliated Entities and (b) the average 

brokerage commission per share paid by 

each Portfolio to the Affiliated Entities, 

as compared to the average brokerage 

commission per share paid by the Trust 

to brokers other than the Affiliated 

Entities, both expressed as cents per 

share. 

(m) The Adviser maintains or causes 

to be maintained, for a period of (6) six 

years, the records necessary to enable 

the persons described in paragraph 

(m)(1) of this section to determine 

whether the applicable conditions of 

this exemption have been met. Such 

records are readily available to assure 

accessibility by the persons identified in 

paragraph (1) of this section. 

(1) Notwithstanding any provisions of 

section 504(a)(2) and (b) of the Act, the 

records referred to in the first paragraph 

of this section are unconditionally 

available at their customary location for 

examination during normal business 

hours by— 

(i) Any duly authorized employee or 

representative of the Department or the 

Internal Revenue Service; 

(ii) Any fiduciary of a participating 

Plan or any duly authorized 

representative of such fiduciary; 

(iii) Any contributing employer to any 

participating Plan or any duly 

authorized employee representative of 

such employer; and 

(iv) Any participant or beneficiary of 

any participating Plan, or any duly 

authorized representative of such 

participant or beneficiary. 

(2) A prohibited transaction is not 

deemed to have occurred if, due to 

circumstances beyond the control of the 

Adviser, the records are lost or 

destroyed prior to the end of the sixyear period, and no party in interest 

other than the Adviser is subject to the 

civil penalty that may be assessed under 

section 502(i) of the Act or to the taxes 

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

the Code if the records are not 

maintained or are not available for 

examination as required by paragraph 

(1) of this section. 

(3) None of the persons described in 

subparagraphs (ii)–(iv) of section (m)(1) 

is authorized to examine the trade 

secrets of the Adviser or commercial or 

financial information which is 

privileged or confidential. 

(4) Should the Adviser refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, the Adviser shall, by the 

close of the thirtieth (30th) day 

following the request, provide written 

notice advising that person of the reason 

for the refusal and that the Department 

may request such information. 

Section III. Definitions 

For purposes of this exemption: 

(a) The term ‘‘Adviser’’ means CGMI or 

MSSB as investment adviser to Plans. 

(b) The term ‘‘Affiliated Entities’’ 

means Morgan Stanley, CGMI, MSSB 

and their respective affiliates. 

(c) The term ‘‘CGMI’’ means Citigroup 

Global Markets Inc. and any affiliate of 

Citigroup Global Markets Inc. 

(d) An ‘‘affiliate’’ of any of the 

Affiliated Entities includes: 

(1) Any person directly or indirectly 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with the Affiliated 

Entity. (For purposes of this 

subparagraph, the term ‘‘control’’ means 

the power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual); 

(2) Any individual who is an officer 

(as defined in Section III(g) hereof), 

director or partner in the Affiliated 

Entity or a person described in 

subparagraph (d)(1); 

(3) Any corporation or partnership of 

which the Affiliated Entity, or an 

affiliate described in subparagraph 

(d)(1), is a 10 percent or more partner 

or owner; and 

(4) Any corporation or partnership of 

which any individual which is an 

officer or director of the Affiliated Entity 

is a 10 percent or more partner or 

owner. 

(e) An ‘‘Independent Plan Fiduciary’’ 

is a Plan fiduciary which is independent 

of the Affiliated Entities and is either: 

(1) A Plan administrator, sponsor, 

trustee or named fiduciary, as the 

recordholder of Trust shares under a 

Section 404(c) Plan; 

(2) A participant in a Keogh Plan; 

(3) An individual covered under (i) a 

self-directed IRA or (ii) a Section 403(b) 

Plan, which invests in Trust shares; 

(4) A trustee, investment manager or 

named fiduciary responsible for 

investment decisions in the case of a 

Title I Plan that does not permit 

individual direction as contemplated by 

Section 404(c) of the Act; or 

(5) A participant in a Plan, such as a 

Section 404(c) Plan, who is permitted 

under the terms of such Plan to direct, 

and who elects to direct, the investment 

of assets of his or her account in such 

Plan. 

(f) The term ‘‘MSSB’’ means Morgan 

Stanley Smith Barney Holdings LLC, 

together with its subsidiaries. 

(g) The term ‘‘officer’’ means a 

president, any vice president in charge 

of a principal business unit, division or 

function (such as sales, administration 

or finance), or any other officer who 

performs a policymaking function for 

the entity. 

Section IV. Effective date 

This exemption is effective as of May 

31, 2009 with respect to the Covered 

Transactions, the General Conditions 

and the Definitions that are described in 

Sections I, II and III. 


srobinson on DSKHWCL6B1PROD with NOTICES
78766 Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 

5For 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. 

6Hewitt, PBGC, IRS, and Deloitte are collectively 

referred to, herein, as the Service Providers. 7 71 FR 17917, April 7, 2006. 

Written Comments 

The Department invited all interested 

persons to submit written comments 

and/or requests for a public hearing 

with respect to the notice of proposed 

exemption on or before August 25, 2010. 

During the comment period, the 

Department received 13 telephone calls 

and 2 comment letters from participants 

or beneficiaries in Plans with 

investments in the TRAK Program, 

which concerned the commenters’ 

difficulty in understanding the notice of 

proposed exemption or the effect of the 

exemption on the commenters’ benefits. 

The Department also received one 

written comment from the Applicant, 

which concerned the correction of a 

publication error appearing in the 

operative language of Section II of the 

proposed exemption and the correction 

of a typographical error appearing in 

Representation 15 of the Summary of 

Facts and Representations (the 

Summary). The Department received no 

hearing requests during the comment 

period. 

With respect to the operative 

language, the Applicant notes that the 

first two paragraphs of Section II, 

General Conditions read: 

(a) The participation of Plans in the TRAK 

Program is 

(b) Approved by an Independent Plan 

Fiduciary. For purposes of this requirement, 

an employee, officer or director of the 

Adviser and/or its affiliates covered by an 

IRA not subject to Title I of the Act will be 

considered an Independent Plan Fiduciary 

with respect to such IRA. 

Accordingly, the Applicant requests that 

parenthetical ‘‘(b)’’ be deleted and the 

sentence fragments reproduced above be 

combined into a single paragraph 

following the parenthetical ‘‘(a)’’, and 

that the ensuing paragraphs in Section 

II be re-lettered for consistency. The 

Department concurs with the 

Applicant’s requested correction of this 

publication error and it has revised 

Section II of the final exemption. 

With respect to the Summary, the 

Applicant notes that, at the end of 

Representation 15, which describes 

revisions to the operative language of 

PTE 2009–12, the proposed exemption 

states that ‘‘a new definition of MSSB is 

added in Section III(f) to mean Morgan 

Stanley Smith Barney Holdings LLC, 

together with its affiliates.’’ However, 

the Applicant points out that the 

definition of MSSB in Section III(f) of 

the proposed exemption includes the 

term ‘‘subsidiaries,’’ rather than 

‘‘affiliates.’’ Accordingly, the Applicant 

requests that, at the end of 

Representation 15, the word ‘‘affiliates’’ 

be replaced with the word 

‘‘subsidiaries,’’ in order to be consistent 

with Section III(f) of the Definitions. 

The Department concurs and takes note 

of the foregoing revision to 

Representation 15 of the Summary. 

After giving full consideration to the 

entire record, including the written 

comments, the Department has decided 

to grant the exemption, as described 

above. The complete application file is 

made available for public inspection in 

the Public Documents Room of the 

Employee Benefits Security 

Administration, Room N–1513, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption refer to the proposed 

exemption published in the Federal 

Register on June 11, 2010 at 75 FR 

33344. 

FOR FURTHER INFORMATION CONTACT: 

Warren Blinder of the Department, 

telephone (202) 693–8553. (This is not 

a toll-free number.) 

Retirement Plan for Employees of the 

Rehabilitation Institute of Chicago 

(the Plan), Located in Chicago, Illinois 

[Prohibited Transaction Exemption 

2010–34; Application No. D–11585] 

Exemption 

Section I: Transactions 

The restrictions of sections 

406(a)(1)(B), 406(a)(1)(D), and 406(b)(2) 

of the Act and the sanctions resulting 

from the application of section 4975 of 

the Code, by reason of section 

4975(c)(1)(B) and 4975(c)(1)(D) of the 

Code,5 shall not apply: 

(1) To a series of interest-free 

Advances in the aggregate amount of 

$701,117 (the Advances or individually, 

an Advance), made to Hewitt 

Associates, LLC (Hewitt), the Pension 

Benefit Guaranty Corporation (PBGC), 

the Internal Revenue Service (the IRS), 

and Deloitte and Touche, LLP 

(Deloitte),6 during the period from 

September 28, 2006, through June 2, 

2009, by the Rehabilitation Institute of 

Chicago (RIC), for the purpose of paying 

ordinary operating expenses incurred on 

behalf of the Plan; and 

(2) To the reimbursement to RIC by 

the Plan of such Advances made during 

the period from September 28, 2006, 

through June 2, 2009, in an aggregate 

amount not to exceed $701,117, where 

each such reimbursement occurred at 

least sixty (60) days but no more than 

365 days after the date of each such 

Advance; provided that the conditions 

as set forth in section II of this 

exemption were satisfied. 

Section II: Conditions 

(1) During the period from September 

28, 2006, through June 2, 2009, when 

RIC made each of the Advances and 

during the period at least sixty (60) days 

but no more than 365 days after the date 

of each such Advance, when the Plan 

reimbursed each such Advance, all of 

the requirements of Prohibited 

Transaction Exemption 80–26 (PTE 80– 

26), as amended, effective December 15, 

2004,7 were satisfied, except for the 

requirement in Section IV(f)(1) of PTE 

80–26 that loans made on or after April 

7, 2006, with a term of sixty (60) days 

or longer be made pursuant to a written 

loan agreement that contains all of the 

material terms of such loan; 

(2) With regard to any reimbursement 

covered by this exemption, an 

independent, qualified auditor certifies 

that such reimbursement matches each 

of the Advances, during the period from 

September 28, 2006, through June 2, 

2009, made by RIC to the Service 

Providers on behalf of the Plan; and 

such reimbursements were made by the 

Plan to RIC during the period at least 

sixty (60) days but no more than 365 

days after the date of each such 

Advance; 

(3) The Advances made by RIC to the 

Service Providers, during the period 

from September 28, 2006, through June 

2, 2009, were for the payment of 

ordinary operating expenses of the Plan 

which were properly incurred on behalf 

of the Plan; 

(4) Within ninety (90) days of the 

publication in the Federal Register of 

the final exemption for the transactions 

which are the subject of this exemption, 

RIC must refund to the Plan an amount 

equal to $74,555 (the Refund Amount), 

plus earning and interest. Such Refund 

Amount represents the total for certain 

reimbursements to RIC by the Plan in 

connection with payments by RIC to 

Monticello Associates Inc. (Monticello), 

Deloitte, the IRS, and the Department in 

the amounts, respectively of $55,500, 

$18,530, $375, and $150. Furthermore, 

RIC must refund to the Plan an 

additional amount attributable to lost 

earnings experienced by the Plan on the 

Refund Amount, and interest on such 

lost earnings, for the period from April 

7, 2006, to the date upon which RIC has 

returned to the Plan the entire Refund 

Amount, the lost earnings on such 

Refund Amount, plus interest on such 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 241 / Thursday, December 16, 2010 / Notices 78767 

8 70 FR 17516, April 6, 2005. 

lost earnings. For the purpose of 

calculating the lost earnings on the 

Refund Amount due to the Plan, plus 

interest, on such lost earnings, RIC must 

use the Online Calculator for the 

Voluntary Fiduciary Correction 

Program 8 that appears on the Web site 

of the Employee Benefits Security 

Administration; and 

(5) Within ninety (90) days of the 

publication in the Federal Register of 

the final exemption for the transactions 

which are the subject of this exemption, 

RIC must file a Form 5330 with the IRS 

and pay to the IRS all applicable excise 

taxes, and any interest on such excise 

taxes deemed to be due and owing with 

respect to the Refund Amount. 

Effective Date: This exemption is 

effective, for each Advance to the 

Service Providers made by RIC from 

September 28, 2006, through June 2, 

2009, and for reimbursements to RIC by 

the Plan of such Advances covered by 

this exemption. 

Written Comments 

In the Notice of Proposed Exemption 

(the Notice), the Department of Labor 

(the Department) invited all interested 

persons to submit written comments 

and requests for a hearing on the 

proposed exemption within forty-four 

(44) days of the date of the publication 

of the Notice in the Federal Register on 

September 16, 2010. All comments and 

requests for a hearing were due by 

October 30, 2010. 

During the comment period, the 

Department received three letters from 

the same commentator requesting a 

hearing. In addition, the Department 

received comment letters, and e-mails 

from seven (7) commentators. The 

concerns expressed by the 

commentators are summarized in the 

paragraph below. 

Generally, the comments from 

commentators have been classified into 

the following categories: (1) Comments 

from individuals who misunderstood 

the subject transactions or requested an 

explanation of the subject transactions 

or requested confirmation that the 

subject transactions do not affect 

benefits under the Plan; and (2) a 

request for clarification from a 

commentator; and (3) a request for 

hearing from a commentator. 

Comments Requesting Explanation 

With respect to the first category of 

comments, it is represented that the 

applicant mailed to all interested 

persons copies of (1) the Notice, and (2) 

the supplemental statement required 

pursuant to the Department’s Regulation 

section 29 CFR § 2570.43 which 

explained the facts and circumstances 

surrounding the subject transactions in 

a summary form. Based on the 

foregoing, the Department maintains 

that the applicant has provided a clear 

explanation and adequate notice 

regarding the subject transactions and 

should not be required to respond 

further to comment letters, and e-mails 

from commentators requesting further 

explanation. 

Clarification From an Individual 

With respect to the second category of 

comments, during the comment period, 

the Department did receive an e-mail 

dated October 6, 2010, from Wayne M. 

Lerner, DPH, FACHE, the President and 

CEO of Holy Cross Hospital in Chicago, 

Illinois. Mr. Lerner requests a 

clarification of the language, as set forth 

in the Summary of Facts and 

Representations on page 56572, column 

2, lines 47–49 in the Notice. In this 

regard, the second and third sentences 

of representation no. 2 in the Notice 

read, as follows: 

As of March 13, 2006, and at the start 

of the relevant period for which relief is 

requested in this proposed exemption, 

the members of the Committee, were: (a) 

Wayne M. Lerner, President and Chief 

Executive Officer of RIC; (b) Edward B. 

Case (Mr. Case), Executive Vice 

President and Chief Financial Officer of 

RIC; (c) Susan H. Cerletty, Executive 

Vice President, Clinical, of RIC and (d) 

Nancy Paridy, Esq. (Ms. Paridy), Senior 

Vice President of RIC and General 

Counsel to RIC. The following 

individuals have been members of the 

Committee, since December 1, 2007: (a) 

Joanne C. Smith, M.D., President and 

Chief Executive Officer of RIC, (b) Mr. 

Case, and (c) Ms. Paridy. 

In Mr. Lerner’s view it can be inferred 

from these two sentences that appeared 

in the Notice that the committee 

membership, as of March 13, 2006, was 

in place until a new committee was 

formed on December 1, 2007. Mr. Lerner 

points out that in fact, he resigned as 

President and CEO of the RIC on June 

7, 2006, and that Ms. Cerletty left RIC 

in August of that same year. The 

Department concurs with Mr. Lerner’s 

requested clarification. 

Requests for Hearing 

With regard to the third category of 

comments, the Department received 

three (3) letters from the same 

commentator requesting a hearing. In 

none of the comment letters did the 

commentator give a reason why a 

hearing should be held. As no material 

issues relating to the subject transaction 

were raised by the commentator during 

the comment period which would 

require the convening of a hearing, the 

Department has determined not to delay 

consideration of the final exemption by 

holding a hearing on application D– 

11585. 

After giving full consideration to the 

entire record, including the written 

comments from the commentators, the 

Department has decided to grant the 

exemption, as described above. The 

complete application file, including the 

written comments from the 

commentators, is made available for 

public inspection in the Public 

Documents Room of the Employee 

Benefits Security Administration, Room 

N–1513, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption refer to the Notice published 

on September 16, 2010, at 75 FR 56568. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angelena C. Le Blanc of the Department, 

telephone (202) 693–8540. (This is not 

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

section 404(a)(1)(B) of the Act; nor does 

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 


srobinson on DSKHWCL6B1PROD with NOTICES
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 


srobinson on DSKHWCL6B1PROD with NOTICES