49034 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 

securities and that the methodology was 

reasonably applied. 

24. According to the Applicant, the 

Sale and Cash Infusion were intended to 

protect the plans and their participants 

by increasing the assets available to 

meet benefit payment obligations and 

redemption requests and by reducing 

certain risks inherent in each Account’s 

portfolio resulting from market 

conditions, thereby eliminating or 

reducing the Wrap Providers’ incentives 

to exercise their contractual termination 

or immunization rights. State Street 

represents that it took all appropriate 

actions necessary to safeguard the 

interests of each Account and each 

employee benefit plan with a direct or 

indirect interest in an Account. 

25. In summary, the Applicant 

represents that the statutory criteria of 

section 408(a) of the Act and section 

4975 of the Code are satisfied because: 

(a) The exemption is administratively 

feasible, as the transaction is already 

completed and all relevant details have 

been fully disclosed; 

(b) The transaction, if covered by an 

exemption, is in the interest of the 

participating plans and their 

participants and beneficiaries because 

the transaction will reduce the 

likelihood that the Wrap Providers will 

exercise their immunization and 

termination rights, which would 

adversely affect the plans and their 

participants; 

(c) The exemption is protective of the 

rights of participants and beneficiaries 

of the plans, because: (i) The assets sold 

were identified for disposition in arm’s 

length negotiations between State Street 

and two bidders for the acquisition of 

State Street’s stable value business, (ii) 

independent pricing services were used 

to value and price the assets sold to 

State Street, and (iii) no commissions or 

transaction costs were charged in 

connection with the sale of the assets. 

FOR FURTHER INFORMATION CONTACT: 

Karen E. Lloyd of the Department, at 

(202) 693–8554. This is not a toll-free 

number. 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions of the Act and/or the Code, 

including any prohibited transaction 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which, among other things, 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

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

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) Before an exemption may be 

granted under section 408(a) of the Act 

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

the Department must find that the 

exemption is administratively feasible, 

in the interests of the plan and of its 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The proposed exemptions, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transitional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(4) The proposed exemptions, if 

granted, will be subject to the express 

condition that the material facts and 

representations contained in each 

application are true and complete, and 

that each application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 21st day of 

September, 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–23168 Filed 9–24–09; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Grant of Individual Exemptions and 

Prohibited Transaction Exemptions 

Involving: M&T Bank Corporation 

Pension Plan, PTE 2009–26; Bank of 

New York Mellon Corporation, PTE 

2009–27; and Ford Motor Company 

and Its Affiliates (Collectively, Ford), 

PTE 2009–28 

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). 

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. 

M&T Bank Corporation Pension Plan, 

Located in Buffalo, NY. 

[Prohibited Transaction Exemption 

2009–26 

Exemption Application No. D–11470] 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 49035 

Exemption 

Section I. Transactions 

Effective January 18, 2007, the 

restrictions of sections 406(a)(1)(A) 

through (D) and 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) 

through (E) of the Code, shall not apply 

to the in-kind redemptions (the 

Redemptions) of shares (the Shares) 

held by the M&T Bank Corporation 

Pension Plan (the Plan) of the MTB Mid 

Cap Growth Fund and the MTB Large 

Cap Stock Fund (the Fund(s)) for which 

affiliates of Manufacturers and Traders 

Trust Company (M&T) provide 

investment advisory services and other 

services. 

Section II. Conditions 

This exemption is subject to the 

following conditions: 

(a) The Plan paid no sales 

commissions, redemption fees, or other 

similar fees in connection with the 

Redemptions (other than customary 

transfer charges paid to parties other 

than M&T and affiliates of M&T (M&T 

Affiliates). 

(b) The assets transferable to the Plan 

consisted of only cash and Transferable 

Securities, as defined in Section III; 

(c) With certain exceptions explained 

in Representation 6 below, the Plan 

received a pro rata portion of the 

Transferable Securities, pursuant to the 

Redemptions that, when added to the 

cash received, was equal in value to the 

number of Shares redeemed for such 

Transferable Securities, as determined 

in a single valuation (using sources 

independent of M&T and M&T affiliates) 

performed in the same manner and as of 

the close of business on the same day as 

the day of the Redemptions, in 

accordance with Rule 2a–4 under the 

Investment Company Act of 1940, as 

amended from time to time (the 1940 

Act), and the then-existing procedures 

established by the Fund that are in 

compliance with the 1940 Act, and the 

Plan received the Transferable 

Securities on the next business day 

following the date of the Redemptions; 

(d) Neither M&T nor any M&T 

Affiliate received any fees, including 

any fees payable pursuant to Rule 12b– 

1 under the 1940 Act, in connection 

with the Redemptions; 

(e) M&T retained an Independent 

Fiduciary, as such term is defined in 

Section III. The Independent Fiduciary 

determined that the terms of the 

Redemptions were fair to the 

participants of the Plan and comparable 

to and no less favorable than terms 

obtainable at arm’s length between 

unaffiliated parties, and that the 

Redemptions were in the best interest of 

the Plan and its participants and 

beneficiaries; 

(f) M&T or the relevant Fund provided 

to the Independent Fiduciary a written 

confirmation regarding such 

Redemptions containing: 

(1) The number of Shares held by the 

Plan immediately before the 

Redemptions (and the related per Share 

net asset value and the total dollar value 

of the Shares held), 

(2) the identity (and related aggregate 

dollar value) of each Transferable 

Security provided to the Plan at the time 

of the Redemptions, including each 

Transferable Security valued in 

accordance with Rule 2a–4 under the 

1940 Act and the then-existing 

procedures established by the Fund 

(using sources independent of M&T and 

M&T Affiliates) for obtaining prices 

from independent pricing services or 

market-makers, 

(3) the market price of each 

Transferable Security received by the 

Plan at the time of the Redemptions, 

and 

(4) the identity of each pricing service 

or market-marker consulted in 

determining the value of each 

Transferable Security at the time of the 

Redemptions. 

(g) The value of the Transferable 

Securities and cash received by the Plan 

for each redeemed Share equaled the net 

asset value of such Share at the time of 

the transaction, and such value equaled 

the value that would have been received 

by any other investor for shares of the 

same class of the Fund at the time; 

(h) For a period of six months 

following the Redemptions, MTB 

Investment Advisors (MTBIA), an M&T 

Affiliate and the investment advisor to 

the MTB Group of Funds (MTB Funds) 

reimbursed the Plan for commissions 

and fees incurred in connection with 

Transferable Securities received as a 

result of the Redemptions and 

subsequently sold; 

(i) Following the Redemptions, M&T, 

on behalf of the Plan, has paid and will 

continue to pay investment management 

fees for the Plan’s investment in the 

separate accounts so long as MTBIA 

serves as the investment manager for the 

Plan; 

(j) Subsequent to the Redemptions, 

the Independent Fiduciary performs a 

post-transaction review that includes, 

among other things, testing a sampling 

of material aspects of the Redemptions 

deemed in its judgment to be 

representative, including pricing; 

(k) M&T maintains, or causes to be 

maintained, for a period of six years 

from the date the Redemptions, such 

records as are necessary to enable the 

person described in paragraph (l)(1) 

below to determine whether the 

conditions of this exemption have been 

met, except that 

(1) if the records necessary to enable 

the persons described in Section II(l)(1) 

to determine whether the conditions of 

this exemption have been met are lost, 

or destroyed, due to circumstances 

beyond the control of M&T, then no 

prohibited transaction will be 

considered to have occurred solely on 

the basis of the unavailability of those 

records; and 

(2) no party in interest with respect to 

the Plan other than M&T shall be subject 

to the civil penalty that may be assessed 

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

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

of the Code if such records are not 

maintained or are not available for 

examination as required by Section II(k). 

(l)(1) Except as provided in this 

Section II(l)(2) and notwithstanding any 

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

the act, the records referred to in 

Section II(k) are unconditionally 

available at their customary locations 

for examination during normal business 

hours by: 

(i) Any duly authorized employee or 

representative of the United States 

Department of Labor (the Department), 

the Internal Revenue Service, or the 

Securities and Exchange Commission, 

(ii) any fiduciary of the Plan or any 

duly authorized representative of such 

participant or beneficiary, 

(iii) any participant or beneficiary of 

the Plan or duly authorized 

representative of such participant or 

beneficiary, 

(iv) any employer whose employees 

are covered by the Plan, and 

(v) any employee organization whose 

members are covered by such Plan; 

(2) None of the persons described in 

Section II(l)(1)(ii) through (v) shall be 

authorized to examine trade secrets of 

M&T, the Funds, or the investment 

advisor for the Funds, or commercial or 

financial information which is 

privileged or confidential; and 

(3) Should M&T, the Funds, or the 

investment advisor for the Funds refuse 

to disclose information on the basis that 

such information is exempt from 

disclosure pursuant to Section II(l)(2) 

above, M&T, the Funds, or the 

investment advisor shall, by the close of 

the 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. 


jlentini on DSKJ8SOYB1PROD with NOTICES
49036 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 

Section III—Definitions 

For purposes of this proposed 

exemption, 

(a) The term ‘‘M & T’’ means 

Manufacturers and Traders Trust 

Company which is a wholly-owned 

subsidiary of the M&T Bank 

Corporation. 

(b) The term ‘‘affiliate’’ means: 

(1) Any person (including a 

corporation or partnership) directly or 

indirectly through one or more 

intermediaries, controlling, controlled 

by, or under common control with the 

person; 

(2) Any officer, director, employee, or 

partner in any such person; and 

(3) Any corporation or partnership of 

which such person is an officer, 

director, partner, or employee. 

(c) The term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual. 

(d) The term ‘‘net asset value’’ means 

the amount for purposes of pricing all 

purchases and sales calculated by 

dividing the value of securities, 

determined by a method as set forth in 

the Fund’s prospectus and statement of 

additional information, and other assets 

belonging to the Fund, less the 

liabilities charged to each such 

Portfolio, by the number of outstanding 

shares. 

(e) The term ‘‘Independent Fiduciary’’ 

means a fiduciary who is: 

(1) Independent of and unrelated to 

M&T and its affiliates, and 

(2) Appointed to act on behalf of the 

Plan with respect to the Redemptions. 

For purposes of this exemption, a 

fiduciary will not be deemed to be 

independent of and unrelated to M&T if: 

(3) Such fiduciary directly or 

indirectly controls, is controlled by or is 

under common control with M&T; 

(4) Such fiduciary, directly or 

indirectly receives any compensation or 

other consideration in connection with 

any transaction described in this 

exemption (except that an independent 

fiduciary may receive compensation 

from M&T in connection with the 

transactions discussed herein if the 

amount or payment of such 

compensation is not contingent upon or 

in any way affected by the independent 

fiduciary’s ultimate decision); or 

(5) Such fiduciary receives, in its 

current fiscal year, from M&T or its 

affiliates, an amount that would have 

exceeded one percent (1%) of such 

fiduciary’s gross income in the prior 

fiscal year. 

(f) The term ‘‘Transferable Securities’’ 

shall mean securities 

(1) For which market quotations are 

readily available from persons 

independent of M&T as determined 

pursuant to procedures established by 

the Funds under Rule 2a–4 of the 1940 

Act; and 

(2) Which are not: 

(i) Securities which, if publicly 

offered or sold, would require 

registration under the Securities Act of 

1933; 

(ii) Securities issued by entities in 

countries which (A) restrict or prohibit 

the holding of securities by nonnationals other than through qualified 

investment vehicles, such as the Funds, 

or (B) permit transfers of ownership of 

securities to be effected only by 

transactions conducted on a local stock 

exchange; 

(iii) Certain portfolio positions (such 

as forward foreign currency contracts, 

futures and options contracts, swap 

transactions, certificates of deposit and 

repurchase agreements) that, although 

they may be liquid and marketable, 

involve the assumption of contractual 

obligations, require trading facilities or 

can only be traded with the counterparty to the transaction to effect a 

change in beneficial ownership; 

(iv) Cash equivalents (such as 

certificates of deposit, commercial paper 

and repurchase agreements); 

(v) Other assets which are not readily 

distributable (including receivables and 

prepaid expenses), net of all liabilities 

(including accounts payable); and 

(vi) Securities subject to ‘‘stop 

transfer’’ instructions or similar 

contractual restrictions on transfer. 

Effective Date: This exemption is 

effective as of the date of this grant. 

Written Comments 

In the Notice of Proposed Exemption 

(the Notice), the Department invited all 

interested persons to submit written 

comments and requests for a hearing. 

During the comment period, the 

Department received no requests for a 

hearing. The Department did receive a 

comment from the Applicant dated May 

1, 2009. The Applicant cited several 

issues with regard to the Notice as 

follows. 

1) Section II(c) of the Notice reads as 

follows: 

With certain exceptions explained in 

Representation 6 below, the Plan received a 

pro rata portion of the Transferable 

Securities, pursuant to the Redemptions that, 

when added to the cash received, was equal 

in value to the number of Shares redeemed 

for such Transferable Securities, as 

determined in a single valuation (using 

sources independent of M&T and M&T 

affiliates) performed in the same manner and 

as of the close of business on the same day 

as the day of receipt of the Transferable 

Securities, in accordance with Rule 2a–4 

under the Investment Company Act of 1940, 

as amended from time to time (the 1940 Act), 

and the then-existing procedures established 

by the Fund that are in compliance the 1940 

Act; 

The Applicant explains that the 

valuation described in section II(c) of 

the Notice and the actual receipt of the 

Transferable Securities by the Plan 

could have occurred on different days. 

The Applicant represents that although 

the valuation occurred on the same day 

as the date of the Redemptions, the 

actual receipt of the Transferable 

Securities by the Plan occurred on the 

next business day following the date of 

the Redemptions. Based on the 

Applicant’s clarification, the 

Department has determined to amend 

the language of section II(c) as follows: 

With certain exceptions explained in 

Representation 6 below, the Plan received a 

pro rata portion of the Transferable 

Securities, pursuant to the Redemptions that, 

when added to the cash received, was equal 

in value to the number of Shares redeemed 

for such Transferable Securities, as 

determined in a single valuation (using 

sources independent of M&T and M&T 

affiliates) performed in the same manner and 

as of the close of business on the same day 

as the day of the Redemptions, in accordance 

with Rule 2a–4 under the Investment 

Company Act of 1940, as amended from time 

to time (the 1940 Act), and the then-existing 

procedures established by the Fund that are 

in compliance the 1940 Act, and the Plan 

received the Transferable Securities on the 

next business day following the date of the 

Redemptions; 

2) The Applicant requested that 

section II(i) and subparagraph (e) of 

Paragraph 15 of the Summary of Facts 

and Representations of the Notice 

should be deleted. The condition set 

forth in Section II(i) of the Notice and 

subparagraph (e) of Paragraph 15 reads 

as follows: 

Following the Redemptions, M&T, on 

behalf of the Plan, has paid and will continue 

to pay total annual expenses, including 

investment management fees for the Plan’s 

investment in the separate accounts; 

In addition, the subparagraph (d) of 

Paragraph 14 of the Summary of Facts 

and Representations of the Notice reads 

as follows: 

The Plan will no longer pay investment 

management fees with respect to its 

investment in the separate accounts charged 

by MTBIA. 

The Applicant clarified its application 

to indicate that it intended to pay only 

investment management fees on behalf 

of the Plan’s investment in the M&T 

separate accounts. In this regard, 

Evercore Trust Company, N.A. 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 49037 

1For 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. 

(Evercore), the independent fiduciary 

and the successor of U.S. Trust 

Company, stated in a June 9, 2009 letter 

to the Department that the Funds’ total 

annual expenses include certain 

expenses that have no clear counterpart 

when assets are separately managed 

(e.g., transfer agency fees, custody fees, 

shareholder servicing fees). The only 

fees specifically associated with a 

separately managed arrangement are the 

manager’s investment management fees. 

Given that M&T has agreed to pay for 

the investment management fees 

associated with the separate accounts, it 

is therefore consistent to describer the 

Plan’s on-going savings as the Fund’s 

total annual expenses. 

The Applicant also clarified its 

application to indicate that it did not 

intend to absorb permanently the 

investment management costs 

associated with the separate accounts on 

behalf of the Plan. The Applicant 

represents that if the Plan should cease 

using MTBIA and hire an investment 

manager unaffiliated with the 

Applicant, the Applicant may at that 

time cease paying the investment 

management fees. 

The Department has revised section 

II(i) of the Notice to read as follows: 

Following the Redemptions, M&T, on 

behalf of the Plan, has paid and will continue 

to pay investment management fees for the 

Plan’s investment in the separate accounts so 

long as MTBIA serves as the investment 

manager for the Plan; 

In addition, subparagraph (d) of 

Paragraph 14 and subparagraph (e) of 

Paragraph 15 of the Summary of Facts 

and Representations in the Notice 

should read as follows: 

Following the Redemptions, M&T, on 

behalf of the Plan, has paid and will continue 

to pay investment management fees for the 

Plan’s investment in the separate accounts so 

long as MTBIA serves as the investment 

manager for the Plan; 

3) The Applicant requests that the 

language contained in paragraph 2 of 

the Summary of Facts and 

Representations in the Notice be 

revised, in order to reflect the fact that 

M&T manages Plan investments and 

does not manage the Plan itself. 

Paragraph 2 of the Summary of Facts 

and Representations in the Notice reads 

as follows: 

‘‘M&T serves as trustee of the Plan and 

manages the Plan.’’ 

The Department concurs with the 

Applicant’s suggested revision. In this 

regard, the last sentence of paragraph 2 

of the Summary of Facts and 

Representations, as set forth in the 

Notice, should read as follows: 

‘‘M&T serves as trustee of the Plan and 

manages the Plan’s investments.’’ 

(4) The Applicant requested that the 

second sentence of paragraph 5 of the 

Summary of Facts and Representations 

in the Notice be clarified. The second 

sentence of Paragraph 5 of the Summary 

of Facts and Representations in the 

Notice reads as follows: 

M&T determined that the Plan’s 

investments in the Funds were large enough 

so that an all-cash redemption would 

adversely impact the Funds and to proceed 

with the Redemptions. 

The Applicant represents that 

specifically, it was the board of the MTB 

Funds that determined that an all-cash 

redemption would adversely impact the 

MTB Funds. 

The Department concurs with the 

Applicant’s suggested revisions. In this 

regard, the second sentence of 

paragraph 5 of the Summary of Facts 

and Representations, as set forth in the 

Notice is revised to read as follows: 

The board of the MTB Funds determined 

that the Plan’s investments in the Funds were 

large enough so that an all-cash redemption 

would adversely impact the Funds and to 

proceed with the Redemptions. 

(5) The Applicant requested a 

clarification of the word ‘‘it’’ which 

should have read the ‘‘MTB Funds’’ in 

the third sentence of footnote 9 of the 

Summary of Facts and Representations. 

The third sentence of footnote 9 of the 

Summary of Facts and Representations 

in the Notice reads as follows: 

M&T represents it has adopted procedures 

in accordance with the Signature Financial 

Letter for use in affiliated transactions, and 

those procedures must be followed for 

transactions with the Plan, as the Plan is 

treated as an affiliate under the 1940 Act of 

the funds whose shares are being redeemed. 

The Department concurs with the 

Applicant’s suggested revisions. In this 

regard, the third sentence of footnote 9 

of the Summary of Facts and 

Representations in the Notice is 

amended to read as follows: 

M&T represents that the MTB Funds have 

adopted procedures in accordance with the 

Signature Financial Letter for use in affiliated 

transactions, and those procedures must be 

followed for transactions with the Plan, as 

the Plan is treated as an affiliate under the 

1940 Act of the funds whose shares are being 

redeemed. 

After reviewing the entire record, 

including the comments submitted, the 

Department has decided to grant this 

exemption as revised herein. 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 February 25, 2009, 74 FR 8576. 

FOR FURTHER INFORMATION CONTACT: 

Anh-Viet Ly of the Department, 

telephone (202) 693–8648. (This is not 

a toll-free number). 

Bank of New York Mellon Corporation, 

Located in Pittsburgh, PA. 

[Prohibited Transaction Exemption 

2009–27 

[Application No. D–11553] 

Exemption 

The restrictions of sections 

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

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

shall not apply, effective November 25, 

2008, to the cash sale of certain 

securities (the Securities) issued by 

Lehman Brothers Holdings Inc. or its 

affiliates (Lehman) for an aggregate 

purchase price of approximately 

$5,512,395 by the EB SMAM Securities 

Lending Temporary Investment Fund 

(the Cash Collateral Fund) to the Bank 

of New York Mellon Corporation 

(BNYMC), a party in interest with 

respect to the employee benefit plans 

(the Plan(s)) invested, directly or 

indirectly, in the Cash Collateral Fund; 

provided that the following conditions 

are met: 

(a) The sale of the Securities was a 

one-time transaction for cash; 

(b) The Cash Collateral Fund received 

an amount for the sale of the Securities 

which was equal to the sum of: 

(1) The amortized cost of the 

Securities, and 

(2) The accrued but unpaid interest on 

each of the Securities, determined as of 

the earlier of: (A) The date of the sale 

of the Securities, or (B) the maturity 

date of each of the Securities; 

(c) The amount received by the Cash 

Collateral Fund for the sale of the 

Securities was greater than the aggregate 

market value of the Securities at the 

time of the sale, as determined based on 

information regarding the then 

prevailing trading prices for the 

Securities obtained from two 

independent broker-dealers; 

(d) The Cash Collateral Fund did not 

bear any commissions, fees, transactions 

costs, or other expenses in connection 

with the sale of the Securities; 

(e) The Bank of New York Mellon 

(BNY Mellon), as trustee of the Cash 

Collateral Fund, determined that the 

sale of the Securities was appropriate 

for and in the best interest of the Cash 

Collateral Fund, and the Plans invested, 


jlentini on DSKJ8SOYB1PROD with NOTICES
49038 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 

directly or indirectly, in the Cash 

Collateral Fund, at the time of the 

transaction; 

(f) BNY Mellon took all appropriate 

actions necessary to safeguard the 

interests of the Cash Collateral Fund, 

and the Plans invested, directly or 

indirectly, in the Cash Collateral Fund, 

in connection with the transaction, 

given that Lehman had filed for 

bankruptcy and that the value of the 

Securities had declined substantially; 

(g) If the exercise of any of BNYMC’s 

rights, claims, or causes of action in 

connection with its ownership of the 

Securities results in BNYMC recovering 

from Lehman, the issuer of the 

Securities, or from any third party, an 

aggregate amount that is more than the 

sum of: 

(1) The purchase price paid for such 

Securities by BNYMC; and 

(2) The interest due on the Securities 

from and after the date BNYMC 

purchased the Securities from the Cash 

Collateral Fund, determined at the lastpublished interest rate on the Securities 

preceding Lehman’s bankruptcy filing, 

BNYMC will refund such excess amount 

promptly to the Cash Collateral Fund 

(after deducting all reasonable expenses 

incurred in connection with the 

recovery); 

(h) BNY Mellon and its affiliates, as 

applicable, maintain, or cause to be 

maintained, for a period of six (6) years 

from the date of the transaction such 

records as are necessary to enable the 

persons described, below, in paragraph 

(i)(1), to determine whether the 

conditions of this exemption have been 

met, except that— 

(1) No party in interest with respect 

to a Plan which engages in the 

transaction, other than BNY Mellon 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 (i)(1); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of BNY Mellon and 

its affiliates, as applicable, such records 

are lost or destroyed prior to the end of 

the six-year period. 

(i)(1) Except as provided, below, in 

paragraph (i)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in paragraph (h) 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 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of a Plan that 

engages in the transaction, 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 

transaction, or any authorized employee 

or representative of these entities; or 

(D) Any participant or beneficiary of 

a Plan that engages in the transaction, or 

duly authorized employee or 

representative of such participant or 

beneficiary; 

(2) None of the persons described, 

above, in paragraph (i)(1)(B)–(D) shall be 

authorized to examine trade secrets of 

BNY Mellon and its affiliates, as 

applicable, or commercial or financial 

information which is privileged or 

confidential; and 

(3) Should BNY Mellon and its 

affiliates, as applicable, refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, BNY Mellon and its 

affiliates, as applicable, 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. 

Effective Date: This exemption is 

effective, as of November 25, 2008. 

After giving full consideration to the 

entire record, 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 Notice published 

on July 23, 2009, at 74 FR 36515. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angelena C. Le Blanc of the Department, 

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

a toll-free number.) 

Ford Motor Company and Its Affiliates, 

(collectively, Ford) 

Located in Detroit, MI. 

[Prohibited Transaction Exemption 

2009–28 Application No. L–11451] 

Exemption 

Section I. Covered Transactions 

The restrictions of sections 

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

406(b)(2) of the Act shall not apply, 

effective July 13, 2006, to: (1) monthly 

cash advances to Ford by the 

Independent Health Care Trust for UAW 

Retirees of Ford Motor Company (the 

DC VEBA), as defined in section III(f), 

below, of this exemption, to reimburse 

Ford for the estimated mitigation of 

certain health care expenses (the 

Mitigation), as defined in section III(h), 

below, of this exemption, and during 

the period from July 14, 2006 through 

February 28, 2007, for the payment of 

dental expenses incurred by 

participants in the DC VEBA; and (2) an 

annual ‘‘true-up’’ of the Mitigation 

payments and dental expenses against 

the actual expenses incurred, with the 

result that: (a) if Ford has been 

underpaid by the DC VEBA, Ford 

receives the balance outstanding from 

the DC VEBA with interest, or (b) if the 

DC VEBA has overpaid Ford, Ford 

reimburses the DC VEBA for the amount 

overpaid, with interest. 

Section II. Conditions 

This exemption is conditioned upon 

adherence to the material facts and 

representations described in application 

for exemption, and upon satisfaction of 

the following conditions: 

(a) A committee (the Committee), as 

defined in section III(d), below, of this 

exemption, acting as a fiduciary 

independent of Ford, has represented 

and will continue to represent the DC 

VEBA and its participants and 

beneficiaries for all purposes with 

respect to the Mitigation process under 

the settlement agreement (the DC VEBA 

Settlement Agreement or the Settlement 

Agreement), as defined in section III(g), 

below, of this exemption. 

(b) The Committee for the DC VEBA 

has discharged and will continue to 

discharge its duties consistent with the 

terms of the DC VEBA and the 

Settlement Agreement. 

(c) The Committee and actuaries 

retained by the Committee have 

reviewed and approved and will 

continue to review and approve the 

estimation process involved in the 

Mitigation, which results in the monthly 

Mitigation amount paid to Ford. 

(d) Outside auditors retained by the 

Committee, along with an 

administrative company that is partly 

owned by the DC VEBA, have audited 

and will audit the calculation of the 

true-up to determine whether there are 

any differences between the estimated 

Mitigation and actual Mitigation 

amounts and have made and will make 

such information available to Ford. 

(e) Ford has provided various reports 

and records to the Committee 

concerning dental care reimbursements 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 49039 

for the period from July 14, 2006, 

through February 28, 2007, which were 

subject to review and audit by the 

Committee, and Ford has provided and 

will continue to provide various reports 

and records to the Committee 

concerning the Mitigation required 

under the Settlement Agreement which 

were and will continue to be subject to 

review and audit by the Committee. 

(f) The terms of the covered 

transactions are no less favorable and 

will continue to be no less favorable to 

the DC VEBA than the terms negotiated 

at arm’s length under similar 

circumstances between unrelated third 

parties. 

(g) The interest rate applied to any 

true-up payments is a reasonable rate, as 

set forth in the DC VEBA Settlement 

Agreement, and will continue to be a 

reasonable rate that runs from the 

beginning of the year being trued up and 

does not and will not present a windfall 

or detriment to either party. 

(h) The DC VEBA has not incurred 

and will continue not to incur any fees, 

costs, or other charges (other than those 

described in the DC VEBA and the DC 

VEBA Settlement Agreement) as a result 

of the covered transactions described 

herein. 

(i) Ford and the Committee have 

maintained and will continue to 

maintain for a period of six (6) years 

from the date of any of the covered 

transactions, any and all records 

necessary to enable the persons 

described in section II(j), below, of this 

exemption to determine whether 

conditions of this exemption have been 

and will continue to be met, except that 

(1) a prohibited transaction will not be 

considered to have occurred if, due to 

circumstances beyond the control of 

Ford or the Committee, the records are 

lost or destroyed prior to the end of the 

six-year period, and (2) no party in 

interest other than Ford or the 

Committee shall be subject to the civil 

penalty that may be assessed under 

section 502(i) of the Act if the records 

are not maintained, or are not available 

for examination as required by section 

II(j), below, of this exemption. 

(j)(1) Except as provided in section 

II(j)(2), below, of this exemption and 

notwithstanding any provisions of 

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

of the Act, the records referred to in 

section II(i), above, of this exemption 

have been or will be unconditionally 

available at their customary location 

during normal business hours to: 

(A) Any duly authorized employee or 

representative of the Department; 

(B) The International Union, United 

Automobile, Aerospace and Agricultural 

Implement Workers of America (the 

UAW) or any duly authorized 

representative of the UAW; 

(C) Ford or any duly authorized 

representative of Ford; and 

(D) Any participant or beneficiary of 

the DC VEBA, or any duly authorized 

representative of such participant or 

beneficiary. 

(2) None of the persons described in 

section II(j)(1)(B) or (D), above, in this 

exemption is authorized to examine the 

trade secrets of Ford, or commercial or 

financial information that is privileged 

or confidential. 

Section III. Definitions 

For purposes of this exemption, the 

term— 

(a) ‘‘Ford’’ means Ford Motor 

Company and its affiliates. 

(b) ‘‘Affiliate’’ means: 

(1) Any person directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with such other 

person; 

(2) Any officer, director, or partner, 

employee or relative (as defined in 

section 3(15) of the Act) of such other 

person; or 

(3) Any corporation, partnership or 

other entity of which such other person 

is an officer, director or partner. (For 

purposes of this definition, the term 

‘‘control’’ means the power to exercise 

a controlling influence over the 

management or policies of a person 

other than an individual.) 

(c) ‘‘Class’’ or ‘‘Class Members’’ mean 

all persons who, as of the ratification 

date (the Ratification Date), as defined 

in section I(a) of the Settlement 

Agreement, (i.e., December 22, 2005) 

were: (1) Ford/UAW hourly employees 

who had retired from Ford with 

eligibility to participate in retirement in 

the Hospital-Surgical-Medical-DrugDental-Vision Program (the Original 

Plan), as in effect prior to the 

Ratification Date, or (2) the spouses, 

surviving spouses, and dependents of 

Ford/UAW hourly employees, who, as 

of the Ratification Date, were eligible for 

post-retirement or surviving spouse 

health care coverage under the Original 

Plan as a consequence of a Ford/UAW 

hourly employee’s retirement from Ford 

or death prior to retirement. Active 

employees, as defined in section I(A) of 

the Settlement Agreement, are not 

members of the Class. 

(d) ‘‘Committee’’ means the seven (7) 

individuals, consisting of two classes: 

(1) the UAW with three members, and 

(2) the public class with four members, 

who act as the named fiduciary and 

administrator of the DC VEBA. 

(e) ‘‘Court’’ or ‘‘Michigan District 

Court’’ means the United States District 

Court for the Eastern District of 

Michigan. 

(f) ‘‘DC VEBA’’ means the defined 

contribution—Voluntary Employees’ 

Beneficiary Association trust 

established by Ford pursuant to the 

Settlement Agreement and the trust 

agreement (the Trust Agreement). 

(g) ‘‘DC VEBA Settlement Agreement’’ 

or the ‘‘Settlement Agreement’’ means 

the agreement, dated February 13, 2006, 

which was entered into between Ford, 

the UAW, and class representatives, on 

behalf of a class of plaintiffs in a class 

action suit cited as Int’l Union, UAW, et 

al. v. Ford Motor Company (Civil Case 

No. 05–74730 (E.D. Mich. July 13, 2006), 

aff’d, 497 F.3d 615 (6th Cir. 2007) 

(hereinafter referred to as the Hardwick 

I Case). 

(h) ‘‘Mitigation’’ means the reduction 

of monthly contributions, deductibles, 

out-of-pocket maximums, co-insurance 

payments, or any other payment in 

accordance with section 14 of the 

Settlement Agreement to the extent 

payments from the DC VEBA are made, 

as directed by the Committee, to Ford 

and/or to providers, insurance carriers 

and other agreed-upon entities. 

(i) ‘‘OPEB’’ means Other PostEmployment Benefits. The OPEB 

Valuation is an actuarially developed 

valuation of a company’s post 

retirement benefit obligations, other 

than for pension and other retirement 

income plans. The OPEB Valuation is 

based on a set of uniform financial 

reporting standards promulgated by the 

Financial Accounting Standards Board 

and embodied in Financial Accounting 

Standard 106, as revised from time to 

time. The types of benefits addressed in 

an OPEB Valuation typically are retiree 

healthcare (medical, dental, vision, 

hearing) life insurance, tuition 

assistance, and legal services 

(j) ‘‘Shares’’ or ‘‘Stock’’ refers to the 

common stock of Ford for which the par 

value is $.01. 

(k) ‘‘UAW’’ means the International 

Union, United Automobile, Aerospace 

and Agricultural Implement Workers of 

America or the United Auto Workers, if 

shortened. 

(l) ‘‘VEBA’’ means a voluntary 

employees’ beneficiary association. 

(m) ‘‘Defined Contribution Plan’’ or 

‘‘the Defined Contribution Plan of the 

Independent Health Care Trust for UAW 

Retirees of Ford Motor Company’’ 

means the defined contribution welfare 

benefit plan funded by the DC VEBA 

following the effective date (the 

Effective Date), as defined in section 

I(A) of the Settlement Agreement (i.e., 

July 13, 2006), which will include the 

requirement to make contributions to 


jlentini on DSKJ8SOYB1PROD with NOTICES
49040 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 

the DC VEBA, as set forth in section 13 

of the Settlement Agreement. 

Effective Date: This exemption is 

effective, as of July 13, 2006. 

Written Comments 

In the Notice of Proposed Exemption 

(the Notice), the Department invited all 

interested persons to submit written 

comments and requests for a hearing on 

the proposed exemption within fortyfive (45) days of the date of the 

publication of the Notice in the Federal 

Register on June 26, 2009. 

During the comment period, the 

Department received no requests for a 

hearing. However, the Department 

received a comment from the applicant 

informing the Department of a 

correction to certain language contained 

in the heading of the Notice. In this 

regard, the references to ‘‘Ford Motor 

Corporation,’’ as set forth in the heading 

of the Notice on page 30635, should be 

revised to read ‘‘Ford Motor Company.’’ 

The Department acknowledges the 

correction, as requested by the 

applicant, and in the final exemption 

has amended the reference to Ford 

Motor Company. 

After giving full consideration to the 

entire record, the Department has 

decided to grant the exemption, as 

amended 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 Notice published 

on June 26, 2009, at 74 FR 30635. 

FOR FURTHER INFORMATION CONTACT: 

Angelena C. Le Blanc of the Department 

at telephone number 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 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 21st day of 

September 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–23167 Filed 9–24–09; 8:45 am] 

BILLING CODE 4510–29–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice (09–082)] 

NASA Advisory Council; Science 

Committee; Planetary Science 

Subcommittee; Meeting 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Notice of meeting. 

SUMMARY: The National Aeronautics and 

Space Administration (NASA) 

announces a meeting of the Planetary 

Science Subcommittee of the NASA 

Advisory Council (NAC). This 

Subcommittee reports to the Science 

Committee of the NAC. The Meeting 

will be held for the purpose of soliciting 

from the scientific community and other 

persons scientific and technical 

information relevant to program 

planning. 

DATE: Friday, October 16, 2009, 2 p.m. 

to 5 p.m. Eastern Daylight Time. 

ADDRESSES: This meeting will take place 

telephonically. Any interested person 

may contact Ms. Marian Norris to 

receive a toll free number and pass code 

needed to participate in this meeting by 

telephone. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Marian Norris, Science Mission 

Directorate, NASA Headquarters, 

Washington, DC 20546, (202) 358–4452, 

fax (202) 358–4118, or 

mnorris@nasa.gov. 

SUPPLEMENTARY INFORMATION: The 

agenda for the meeting includes the 

following topics: 

—Planetary Science Division Update. 

—Mars Science Laboratory Update. 

It is imperative that the meeting be 

held on this date to accommodate the 

scheduling priorities of the key 

participants. 

P. Diane Rausch, 

Advisory Committee Management Officer, 

National Aeronautics and Space 

Administration. 

[FR Doc. E9–23176 Filed 9–24–09; 8:45 am] 

BILLING CODE 7510–13–P 

NATIONAL NANOTECHNOLOGY 

COORDINATION OFFICE 

Nanoscale Science, Engineering and 

Technology Subcommittee, National 

Science and Technology Council, 

Committee on Technology; 

Nanomaterials and the Environment & 

Instrumentation, Metrology, and 

Analytical Methods Workshop: 

Nanotechnology Primer Public PreMeeting 

ACTION: Notice of public meeting. 

SUMMARY: The National Nanotechnology 

Coordination Office (NNCO), on behalf 

of the Nanoscale Science, Engineering, 

and Technology (NSET) Subcommittee 

of the Committee on Technology, 

National Science and Technology 

Council (NSTC), will hold a 

Nanotechnology Primer public premeeting on October 5, 2009, prior to the 

public meeting on Nanomaterials and 

the Environment & Instrumentation, 

Metrology, and Analytical Methods 

Workshop. The purpose of this premeeting is to provide general 

background material about 

nanotechnology and Federal 

nanotechnology research to participants. 

DATES: A Nanotechnology Primer public 

pre-meeting will be held on Monday, 

October 5, 2009 from 7 p.m.–8:30 p.m. 

ADDRESSES: The Nanotechnology Primer 

public pre-meeting will be held at the 

Holiday Inn Rosslyn-Key Bridge, 1900 

N. Fort Myer Drive, Arlington, VA 

22209 (Metro stop: Rosslyn on the 

Orange and Blue lines). For directions, 

please see http://www.holidayinn.com. 

Registration: Due to space limitations, 

pre-registration for the workshop is 

required. People interested in attending 

the workshop and/or the 


jlentini on DSKJ8SOYB1PROD with NOTICES