Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Notices 9361 

electronic docket (EDIS) at http:// 

edis.usitc.gov. Hearing-impaired 

persons are advised that information on 

this matter can be obtained by 

contacting the Commission’s TDD 

terminal on (202) 205–1810. 

SUPPLEMENTARY INFORMATION: The 

Commission instituted this investigation 

on August 19, 2010, based on a 

complaint filed by Vizio, Inc. of Irvine, 

California. 75 FR 51285–86 (August 19, 

2010). The complaint alleges violations 

of section 337 of the Tariff Act of 1930, 

as amended, 19 U.S.C. 1337, in the 

importation into the United States, the 

sale for importation, and the sale within 

the United States after importation of 

certain flat panel digital televisions and 

components thereof by reason of 

infringement of certain claims of U.S. 

Patent Nos. 5,703,887 (‘‘the ’887 

patent’’); 5,233,629 (‘‘the ’629 patent’’); 

5,511,096; 5,621,761; 5,745,522; 

5,511,082; and 5,396,518. The 

complaint further alleges the existence 

of a domestic industry. The 

Commission’s notice of investigation 

named the following respondents: LG 

Electronics, Inc. of South Korea and LG 

Electronics, Inc. of Englewood Cliffs, 

New Jersey. 

On November 24, 2010, the 

Commission issued notice of its 

determination not to review the ALJ’s ID 

terminating the investigation as to 

claims 15–21 of the ’887 patent, and all 

asserted claims of the ’629 patent, based 

on withdrawal of these ’887 patent 

claims and the ’629 patent. 

On January 18, 2011, complainant and 

respondents jointly moved to terminate 

the investigation on the basis of a 

settlement agreement. The Commission 

investigative attorney filed a response in 

support of the motion. 

The ALJ issued the subject ID on 

January 26, 2011, granting the motion 

for termination. He found that the 

motion for termination satisfies 

Commission rule 210.21(b). He further 

found, pursuant to Commission rule 

210.50(b)(2), that termination of this 

investigation by settlement agreement is 

in the public interest. No party 

petitioned for review of the ID. The 

Commission has determined not to 

review the ID, and the investigation is 

terminated. 

The authority for the Commission’s 

determination is contained in section 

337 of the Tariff Act of 1930, as 

amended, 19 U.S.C. 1337, and in 

sections 210.21 and 210.42(h) of the 

Commission’s Rules of Practice and 

Procedure, 19 CFR 210.21, 210.42(h). 

By order of the Commission. 

Issued: February 11, 2011. 

William R. Bishop, 

Hearings and Meetings Coordinator. 

[FR Doc. 2011–3538 Filed 2–16–11; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Public Availability of Department of 

Justice FY 2010 Service Contract 

Inventory 

AGENCY: Justice Management Division, 

Department of Justice. 

ACTION: Notice of Public Availability of 

FY 2010 Service Contract Inventories. 

SUMMARY: In accordance with Section 

743 of Division C of the Consolidated 

Appropriations Act of 2010 (Pub. L. 

111–117), the Department of Justice is 

publishing this notice to advise the 

public of the availability of the FY 2010 

Service Contract inventory. This 

inventory provides information on 

service contract actions over $25,000 

that were made in FY 2010. The 

information is organized by function to 

show how contracted resources are 

distributed throughout the agency. The 

inventory has been developed in 

accordance with guidance issued on 

November 5, 2010 by the Office of 

Management and Budget’s Office of 

Federal Procurement Policy (OFPP). 

OFPP’s guidance is available at http:// 

www.whitehouse.gov/sites/default/files/ 

omb/procurement/memo/servicecontract-inventories-guidance11052010.pdf. The Department of 

Justice has posted its inventory and a 

summary of the inventory on the 

Department of Justice Senior 

Procurement Executive homepage at the 

following link: http://www.justice.gov/ 

jmd/pe/service-contract-inventory.html. 

FOR FURTHER INFORMATION CONTACT: 

Questions regarding the service contract 

inventory should be directed to Dennis 

R. McCraw in the Justice Management 

Division, Management and Planning 

Staff, Procurement Policy and Review 

Group at (202) 616–3754 or 

dennis.mccraw@usdoj.gov. 

Michael H. Allen, 

Deputy Assistant Attorney General, Policy 

Management and Planning, U.S. Department 

of Justice, Justice Management Division. 

[FR Doc. 2011–3561 Filed 2–16–11; 8:45 am] 

BILLING CODE 4410–DB–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Exemptions From Certain Prohibited 

Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of individual exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). This notice includes 

the following: D–11591, Citigroup Inc. 

and its affiliates (Citigroup), the 

Citigroup 401(k) Plan, the Citibuilder 

401(k) Plan for Puerto Rico (the 

Citibuilder Plan and collectively with 

the Citigroup 401(k) Plan, the 

Participant Directed Plans), the 

Citigroup Pension Plan (and collectively 

with the Participant Directed Plans, the 

Plans) (the Applicants), PTE 2011–04; 

and D–11592, TD Ameritrade, Inc. (TD 

Ameritrade), 2011–05. 

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. 


jlentini on DSKJ8SOYB1PROD with NOTICES
9362 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Notices 

1For purposes of this exemption, references to 

provisions of Title I of the Act, unless otherwise 

specified, refer also to the corresponding provisions 

of the Code. 

2The Department’s determination to grant relief 

for these transactions should not be viewed as an 

endorsement of the Rights Plan, nor is it offering 

any views as to whether such transactions satisfy 

any other requirements of ERISA, the Code or other 

relevant statutory provisions. Rather, this 

exemption is designed to place the Plans and their 

participants and beneficiaries in the same position 

as other holders of Citigroup Stock with respect to 

the acquisition of the Rights and to prevent the 

possible dilution of the Plans’ investment in the 

Citigroup Stock. 

3The Applicants represent that, because the 

fiduciaries for the Citibuilder 401(k) Plan for Puerto 

Rico have not made an election under section 

1022(i)(2) of the Act, whereby such plan would be 

treated as a trust created and organized in the 

United States for purposes of tax qualification 

under section 401(a) of the U.S. Code, jurisdiction 

under Title II of the Act does not apply. 

Accordingly, the Applicant is not seeking any relief 

for the prohibitions, as set forth in Title II of the 

Act, for the acquisition of the Rights by the 

Citibuilder Plan. 

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. 

Citigroup Inc. and Its Affiliates 

(Citigroup), the Citigroup 401(k) Plan, 

the Citibuilder 401(k) Plan for Puerto 

Rico (the Citibuilder Plan and 

Collectively With the Citigroup 401(k) 

Plan, the Participant Directed Plans), 

the Citigroup Pension Plan (and 

Collectively With the Participant 

Directed Plans, the Plans) (the 

Applicants), Located in Greenwich, CT 

[Prohibited Transaction Exemption 

2011–04; Exemption Application No. D– 

11591] 

Exemption 

Section I: Transactions 

(a) The restrictions of sections 406(a), 

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

Act 1 shall not apply, effective June 22, 

2009 (the Record Date) and until June 

10, 2012, to: 

(1) The acquisition of stock rights (the 

Rights) by certain plans, described 

below in Section I(a)(1)(A) through (C) 

of this exemption, in connection with 

holding shares of common stock of 

Citigroup Inc. (Citigroup Stock) on the 

Record Date established pursuant to an 

offering of such Rights (the Offering) in 

accordance with the Tax Benefits 

Preservation Plan (the Rights Plan) by 

Citigroup Inc. (Citigroup), a party in 

interest with respect to the following 

plans, and/or the acquisition of 

Citigroup Stock and the attached Rights 

by the plans in the future pursuant to 

the Offering: 

(A) The Citigroup 401(k) Plan (the 

Citigroup 401(k) Plan); 

(B) The Citibuilder 401(k) Plan for 

Puerto Rico (the Citibuilder Plan and 

collectively with the Citigroup 401(k) 

Plan, the Participant Directed Plans); 

and 

(C) The Citigroup Pension Plan (the 

Citigroup Pension Plan and collectively 

with the Participant Directed Plans, the 

Plans); 

(2) The holding of the Rights by the 

Plans until the date the Plans exercise 

or otherwise dispose of the Rights or the 

expiration of such Rights in accordance 

with the terms and conditions of the 

Rights Plan, whichever is earlier; and 

(3) The exercise or other disposition 

of the Rights by the Plans; provided that 

the conditions in Section II of this 

exemption, as set forth below, are 

satisfied.2

(b) The sanctions resulting from the 

application of section 4975 of the 

Internal Revenue Code of 1986 (the 

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

through (E) shall not apply, effective 

June 22, 2009, to the acquisition of the 

Rights by the Plans, described above in 

Section I(a)(1)(A), and Section I(a)(1)(C) 

of this exemption; 3 provided that the 

conditions in Section II of this 

exemption, as set forth below, are 

satisfied. 

Section II: Conditions 

The relief provided in this exemption 

is conditioned upon adherence to the 

material facts and representations 

described herein and as set forth in the 

application file and upon compliance 

with the conditions, as set forth in this 

exemption. 

(a) The acquisition by each of the 

Plans of the Rights occurred or will 

occur in connection with the June 22, 

2009 Offering made available by 

Citigroup on the same terms to all 

shareholders of the common stock of 

Citigroup (the Citigroup Stock), 

including the acquisition of the Rights 

at no cost to the Plans; 

(b) The acquisition of the Rights by 

the Participant Directed Plans on the 

Record Date resulted from an 

independent act of Citigroup as a 

corporate entity. The acquisition of the 

Citigroup Stock and the attached Rights 

by the Plans in the future will occur 

either at the direction of individual 

participants (in the case of the 

Participant Directed Plans), at the 

direction of an Independent Fiduciary 

(in the case of the Citigroup Pension 

Plan), or in connection with in-kind 

contributions to the Citigroup Pension 

Plan by Citigroup of Citigroup Stock and 

the attached Rights (a Stock/Right 

Contribution), in each case incidental 

to, and as a direct consequence of, the 

purchase or other acquisition of 

Citigroup Stock. All holders of Citigroup 

Stock, which include the Rights (other 

than an Acquiring Person, as defined in 

the Rights Plan), including the Plans, 

were, and will continue to be, treated in 

the same manner with respect to the 

acquisition of the Rights; 

(c) All shareholders of Citigroup 

Stock, including the Plans acquired, or 

will acquire, the same proportionate 

number of Rights based on the number 

of shares of Citigroup Stock held by 

such shareholders, including the Plans; 

(d) The acquisition of the Rights by 

the Participant Directed Plans was 

made, or will be made, pursuant to 

provisions of each such plan for 

individually-directed investment of 

participant accounts; 

(e) All decisions regarding the Rights 

that will be made by the Participant 

Directed Plans will be made in 

accordance with the provisions of such 

Participant Directed Plans for 

individually-directed investment of 

participant accounts by the individual 

participants whose accounts in each 

such Participant Directed Plan acquired 

the Rights in connection with the 

Offering, and if no instructions are 

received, the Rights will expire in 

accordance with the terms and 

conditions of the Rights Plan; 

(f) All decisions regarding the 

Citigroup Stock and the attached Rights 

will be made on behalf of the Citigroup 

Pension Plan by an Independent 

Fiduciary acting as an investment 

manager. Such Independent Fiduciary 

will have sole discretionary 

responsibility relating to the acquisition, 

holding, ongoing management and 

disposition of the Citigroup Stock and 

the attached Rights. The Independent 

Fiduciary will determine, before taking 

any action regarding the Citigroup Stock 

and the attached Rights, that each such 

action is in the interest of the Citigroup 

Pension Plan. 

(g) To the extent the Citigroup board 

of directors exercises its rights under the 

Offering to redeem the Rights at the 

redemption price set forth in the 

Offering, all shareholders of Citigroup 


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Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Notices 9363 

Stock will be treated the same, 

including the Plans; and 

(h) The acquisition of the Rights as a 

result of a Stock/Right Contribution by 

Citigroup to the Citigroup Pension Plan 

shall result from a determination by 

Citigroup as a corporate entity. 

(i) Neither the Participant Directed 

Plan participants nor the Citigroup 

Pension Plan will pay any fees or 

commissions in connection with the 

exercise of the Rights other than the 

aggregate Purchase Price with respect to 

the Rights then being exercised and an 

amount equal to any applicable transfer 

tax or other governmental charge. 

Section III: Definition 

The term ‘‘Independent Fiduciary’’ 

means an investment manager, as 

described in section 3(38) of the Act, 

that is: 

(a) Independent of, and unrelated to, 

Citigroup Inc. and its affiliates 

(Citigroup), and 

(b) Appointed to act on behalf of the 

Citigroup Pension Plan for the purposes 

described in Section II.(f) above. 

For purposes of this exemption, a 

fiduciary will not be deemed to be 

independent of, and unrelated to, 

Citigroup if: (i) Such fiduciary directly 

or indirectly, controls, is controlled by, 

or is under common control with 

Citigroup; (ii) such fiduciary directly or 

indirectly receives any compensation or 

other consideration in connection with 

any transaction described in this 

exemption, except that it may receive 

compensation for acting as an 

independent fiduciary from Citigroup in 

connection with the transactions 

described herein, if the amount or 

payment of such compensation is not 

contingent upon, or in any way affected 

by such fiduciary’s decision; and (iii) 

more than 5 percent of such fiduciary’s 

annual gross revenue in its prior tax 

year will be paid by Citigroup in the 

fiduciary’s current tax year. 

DATES: Effective Date: This exemption is 

effective as of June 22, 2009, the date of 

the announcement of the Offering and 

will expire on June 10, 2012. 

Written Comments 

The Notice of Proposed Exemption, 

published in the October 6, 2010 issue 

of the Federal Register (75 FR 61947), 

invited all interested persons to submit 

comments on the Proposed Exemption 

and/or to request that a public hearing 

be held. In response to the solicitation 

of comments from interested persons, 

the Department received a December 6, 

2010 comment letter on behalf of 

Citigroup (the Citigroup Comment) and 

comments from several other interested 

persons. None of the comments 

requested that a public hearing be held 

on the Proposed Exemption. The 

Citigroup Comment responded to the 

comments received from the other 

interested persons, provided further 

information on the exemption 

transactions and requested modification 

of the definition of Independent 

Fiduciary in the Proposed Exemption. 

The Citigroup Comment notes that 

several participants in the Plans 

provided comments to the Department 

and that two of these participants 

simply voiced a general objection to the 

Proposed Exemption, one without 

providing any rationale and the other 

appearing to question Citigroup’s 

treatment of its employees generally. 

The Applicants stated that these 

comments are not relevant to whether 

the proposed exemption is in the 

interests of the Plans and their 

participants and beneficiaries and 

whether it should be granted. The 

Applicants believe that granting the 

proposed exemption is in the interests 

of the Plans and their participants and 

beneficiaries. The Applicants note that 

another participant objected on the basis 

that the participant believed that the 

Proposed Exemption was unclear as to 

its scope and purpose and that Citigroup 

Stock was an inappropriate investment 

for a pension fund. Two participants 

shared the sentiment that granting the 

exemption would represent a further 

loosening of regulatory restrictions. The 

last participant objected on the grounds 

that the Proposed Exemption would 

permit Citigroup to make future 

contributions to the Citigroup Pension 

Plan in Citigroup Stock rather than cash 

and believed that the Independent 

Fiduciaries should have the right to sell 

the shares of Citigroup Stock. 

The Applicants assert that the 

Proposed Exemption permits the Plans 

to acquire the Rights as opposed to the 

underlying Citigroup Stock and that the 

purpose of the Proposed Exemption is 

not to determine whether acquisition of 

Citigroup Stock (including an 

acquisition as a result of a contribution 

in-kind to one or more of the Plans by 

Citigroup) is in the interests of the 

Plans, nor is the purpose to authorize or 

approve any such acquisition of 

Citigroup Stock. The Applicants, in the 

Citigroup Comment state: 

While the Plans would not be permitted to 

acquire, hold or dispose of Citigroup Stock if 

the requested exemption were not granted, 

this is merely because the Rights, while they 

technically may be a separate ‘security’ under 

Section 3(20) of ERISA, are not severable 

from Citigroup Stock until they become 

exercisable. The analysis as to whether the 

acquisition, holding or disposition of 

Citigroup Stock, as opposed to the Rights, is 

appropriate in any given circumstance would 

necessarily involve a separate analysis under 

ERISA and is not the subject of the proposed 

exemption. Rather, the purpose of the 

proposed exemption is to allow the Plans to 

acquire, hold and, if applicable, dispose of 

the Rights that are attached to the Citigroup 

Stock once the decision has already been 

made to acquire Citigroup Stock. 

The Department notes that, to the 

extent that the Citigroup Stock is not a 

qualifying employer security as defined 

in section 407(d)(5) of ERISA, an 

administrative exemption would be 

necessary for the acquisition and 

holding of such stock. Accordingly, the 

final exemption has been clarified to 

provide that the Independent Fiduciary 

of the Citigroup Pension Plan will have 

sole discretionary responsibility to 

determine whether the Citigroup 

Pension Plan should acquire Citigroup 

Stock and the attached Rights whether 

by purchase or contribution by 

Citigroup. As a result, the Department 

believes that the condition requiring the 

appointment of an independent 

fiduciary to represent the interests of the 

Citigroup Pension Plan with respect to 

the acquisition, holding and the exercise 

or other disposition of the Rights that 

are the subject of the exemption request 

should be clarified. 

The Department, however, is not 

making a determination as to whether 

the Citigroup Stock combined with the 

attached Rights is a qualifying employer 

security, as defined in section 407(d)(5) 

of ERISA. Since the Citigroup Stock, 

without the attached Rights, would be a 

qualifying employer security, the 

percentage limitations for qualifying 

employer securities, as set forth in 

sections 407(a) and 407(f) of ERISA (the 

Percentage Limitations), may still be 

applicable. In light of this uncertainty, 

the Applicants have agreed to abide by 

the Percentage Limitations. 

The Citigroup Comment asserts that 

the Proposed Exemption is in the 

interests of the Plans and their 

participants and beneficiaries because 

allowing the Plans to acquire the Rights 

will place the Plans and their 

participants and beneficiaries in the 

same position as other holders of 

Citigroup Stock with respect to the 

acquisition of the Rights and to prevent 

the possible dilution of the Plans’ 

investments in Citigroup Stock. The 

Applicants note that Citigroup Stock 

itself is a qualifying employer security 

and that the acquisition, holding and 

disposition of Citigroup Stock in 

appropriate instances is contemplated 

by the statutory scheme of ERISA. The 

requirement to dispose of the Citigroup 

Stock on a retroactive basis would 

conflict with participants’ rights under 


jlentini on DSKJ8SOYB1PROD with NOTICES
9364 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Notices 

4For purposes of this exemption, references to 

section 406 of the Act should be read to refer as 

well to the corresponding provisions of section 

4975 of the Code. 

the terms of the Participant Directed 

Plans during this period to hold 

Citigroup Stock. Additionally, if the 

Plans held Citigroup Stock but were not 

able to exercise the Rights in the event 

they became exercisable, the value of 

their shares would be diluted 

significantly, resulting in harm to the 

Plans. 

With respect to the participant’s 

statement that the scope and purpose of 

the Proposed Exemption was unclear, 

the Applicants note that the Proposed 

Exemption relates to a complicated tax 

preservation vehicle and a technical 

provision of ERISA. The Applicants, 

however, believe that the Proposed 

Exemption published by the 

Department, as well as the Citigroup 

Comment, provide a clear explanation 

of why the Proposed Exemption is in 

the interests of the Plans and their 

participants and beneficiaries. 

The Citigroup Comment notes that, 

under the definition of an ‘‘Independent 

Fiduciary’’ in the Proposed Exemption, 

the Independent Fiduciary’s 

compensation cannot be affected in any 

way by any decision it makes in 

connection with the Rights. The 

Applicants state that typically an 

Independent Fiduciary’s compensation 

is a fixed percentage (or otherwise a 

function) of the value of the Citigroup 

Pension Plan’s assets under its 

management. In the unlikely event that 

the Rights Plan is triggered and the 

Rights become exercisable, the 

Applicants believe that the Independent 

Fiduciary’s compensation would be 

affected by the Independent Fiduciary’s 

decision in connection with the exercise 

of the Rights. By way of example, if the 

Independent Fiduciary decided not to 

exercise the Rights and other 

stockholders (as would be expected to 

avoid dilution of their own stock) did, 

the value of the Citigroup Stock that the 

Citigroup Pension Plan holds would be 

significantly diluted and, thus, the value 

of the assets managed by the 

Independent Fiduciary would decrease, 

resulting in a lower management fee 

than if it elected to exercise the Rights. 

Although the Independent Fiduciary’s 

compensation would be affected by its 

decision regarding the Rights, the 

Applicants note that the Independent 

Fiduciary’s discretion is quite limited in 

these circumstances. First, any trigger of 

the Rights Plan would be a result of the 

actions of a party unrelated to the 

Independent Fiduciary. Second, given 

that any holder of Citigroup Stock that 

does not exercise the Rights would 

suffer significant dilution, it is difficult 

for the Applicant to imagine a situation 

in which an Independent Fiduciary, 

which is bound by fiduciary obligations 

to the Citigroup Pension Plan, would 

elect not to exercise the Rights and 

allow the Citigroup Pension Plan to 

suffer harm in the form of significant 

dilution of its interest in Citigroup Stock 

and, therefore, a significant reduction in 

the value of that interest. Thus, the 

Applicants believe that the fact that the 

Independent Fiduciary’s compensation 

may be affected by its decision to 

exercise the Rights does not create a 

conflict of interest and is fully 

consistent with the interests of the 

Citigroup Pension Plan and its 

participants and beneficiaries. The 

Independent Fiduciary’s options would 

be extremely limited and, in any case, 

its interests would be fully aligned with 

those of the Citigroup Pension Plan. The 

Applicants request the Department to 

modify the definition of Independent 

Fiduciary accordingly. 

The Department does not believe that 

any modification to this definition is 

necessary since the language of the 

definition does not preclude an 

Independent Fiduciary from receiving 

compensation that is a fixed percentage 

(or otherwise a function) of the value of 

the Citigroup Pension Plan’s assets 

under its management. The language in 

section III that concerns compensation 

of the Independent Fiduciary was 

designed to preclude third party 

contingency payments to the 

Independent Fiduciary that are 

dependent on the Independent 

Fiduciary’s decisions during the 

management of the plan assets. The 

language does not preclude the 

Independent Fiduciary from receiving 

ongoing management fees which are 

determined as a percentage of the value 

of the Citigroup Pension Plan’s assets 

under its management. Rather, the 

provision expresses the Department’s 

concern with additional payments that 

could influence or have an impact on 

the decisions of the Independent 

Fiduciary. Accordingly, the Department 

has not made the Applicant’s requested 

change to the definition of Independent 

Fiduciary contained in section III of the 

Notice. 

The Department has given full 

consideration to the entire record, 

including the comments received in 

response to the Proposed Exemption, 

and has determined to grant the 

exemption. 

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 that was published 

on October 6, 2010 in the Federal 

Register at 75 FR 61947. 

For Further Information Contact: 

Brian Shiker of the Department, 

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

a toll-free number.) 

TD Ameritrade, Inc. (TD Ameritrade), 

Located in Omaha, NE 

[Prohibited Transaction Exemption 

2011–05; Exemption Application No. D– 

11592] 

Exemption 

Section I. Sales of Auction Rate 

Securities From Plans to TD Ameritrade: 

Unrelated to a Settlement Agreement 

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, and 

not made in connection with, a 

Settlement Agreement (as defined in 

Section V(f)), provided that the 

conditions set forth in Section II have 

been met.4

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 

accrued but unpaid interest or 

dividends; 

(f) The Plan does not waive any rights 

or claims in connection with the 

Unrelated Sale; 


jlentini on DSKJ8SOYB1PROD with NOTICES
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5The 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. 

(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.5

(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; 

(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 

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; 

(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 


jlentini on DSKJ8SOYB1PROD with NOTICES
9366 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Notices 

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: This exemption is 

effective as of July 20, 2009. 

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 

December 16, 2009 at 75 FR 78768. 

For Further Information Contact: Ms. 

Anna Mpras Vaughan of the 

Department, telephone (202) 693–8565. 

(This is not a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

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

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 14th day of 

February, 2011. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2011–3589 Filed 2–16–11; 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– 

11528, Wachovia Corporation and Its 

Current and Future Affiliates or 

Successors (collectively, Wachovia or 

the Applicant; and D–11635, The Parvin 

Nahvi, M.D., Inc. 401(k) Profit Sharing 

Trust (the Plan); 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.lll, stated in each Notice of 

Proposed Exemption. Interested persons 

are also invited to submit comments 

and/or hearing requests to EBSA via email 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. 


jlentini on DSKJ8SOYB1PROD with NOTICES