Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 67817 

3 88 FR 8472 (2/9/2023). 

does not extend to ERISA Section 404, 

and no inference should be drawn from 

the fact that the Department is not 

opining on FCI’s statement that it acted 

prudently on behalf of the Plans. 

2. Plan Participants Seek Clarification or 

Express Their Opinions Regarding the 

Proposed Exemption 

Four comments were submitted 

anonymously. Six commenters, 

including the four anonymous 

commenters, either expressed their 

opinions about whether the proposed 

exemption should be granted, or they 

sought clarification regarding how the 

exemption would affect their benefits. 

Department’s Response: The 

Department explained the proposed 

exemption to each of the nonanonymous commenters, via phone or 

email. However, the Department was 

unable to directly respond to the four 

Plan participants who submitted their 

comments anonymously. 

The complete application files (D– 

12032 and D–12033) are available for 

public inspection in the Public 

Disclosure Room of the Employee 

Benefits Security Administration, Room 

N–1515, U.S. Department of Labor, 200 

Constitution Avenue NW, Washington, 

DC 20210. For a more complete 

statement of the facts and 

representations supporting the 

Department’s decision to grant this 

exemption, refer to the proposed 

exemption.3

Accordingly, after considering the 

entire record developed in connection 

with the Applicants’ exemption 

application, the Department has 

determined to grant the exemption 

described below. 

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 ERISA 

Section 408(a) does not relieve a 

fiduciary or other party in interest from 

certain requirements of other ERISA 

provisions, including any prohibited 

transaction provisions to which the 

exemption does not apply and the 

general fiduciary responsibility 

provisions of ERISA Section 404, which, 

among other things, require a fiduciary 

to discharge his or her duties respecting 

the plan solely in the interest of the 

plan’s participants and beneficiaries and 

in a prudent fashion in accordance with 

ERISA Section 404(a)(1)(B). 

(2) As required by ERISA Section 

408(a), the Department hereby finds that 

the exemption is: (a) administratively 

feasible; (b) in the interests of affected 

plans and of their participants and 

beneficiaries; and (c) protective of the 

rights of participants and beneficiaries 

of the plans. 

(3) This exemption is supplemental to 

and not in derogation of any other 

ERISA provisions, 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 to determining whether 

the transaction is in fact a prohibited 

transaction. 

(4) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describe all material terms of the 

transactions that are the subject of the 

exemption. 

Accordingly, the Department grants 

the following exemption under the 

authority of ERISA Section 408(a)in 

accordance with the procedures set 

forth in 29 CFR part 2570, subpart B (76 

FR 66637, 66644, October 27, 2011): 

Exemption 

Section I. Covered Transactions 

The restrictions of ERISA Sections 

406(a)(1)(E), 406(a)(2) and 407(a)(1)(A), 

does not apply to the acquisition and 

holding by the Plans of Warrants, issued 

by Oxy, provided the conditions set 

forth in Section II below have been met. 

Section II. Conditions 

(a) The Warrants were issued by Oxy 

to all Oxy common stockholders, 

including the Plans; 

(b) All Oxy common stockholders, 

including the Plans, were treated in the 

same manner with respect to the 

acquisition and holding of the Warrants; 

(c) All Oxy common stockholders, 

including the Plans, were issued the 

same proportionate number of Warrants 

based on the number of shares of Oxy 

common stock held by such 

stockholder; 

(d) The Plans’ acquisition of the 

Warrants was a result of a unilateral and 

independent corporate act of Oxy 

without any participation by the Plans; 

(e) All decisions regarding whether to 

hold, sell, or exercise the Warrants by 

the Plans were made by FCI while 

acting solely in the interests of the Plans 

and their participants and beneficiaries 

and in accordance with the Plan’s 

provisions; 

(f) FCI determined that it was 

protective and in the interests of the 

Plans and their participants and 

beneficiaries to sell all of the Warrants 

received by the Plans in blind 

transactions on the NYSE; 

(g) FCI will provide a written 

statement to the Department 

demonstrating that the covered 

transactions have met all of the 

exemption conditions within 90 days 

after the exemption is granted; 

(h) No brokerage fees, commissions, 

subscription fees, or other charges were 

paid by the Plans to Oxy with respect 

to the acquisition and holding of the 

Warrants, nor were they paid to any 

affiliate of Oxy or FCI with respect to 

the sale of the Warrants; 

(i) No party related to this exemption 

application has or will indemnify FCI, 

in whole or in part, for negligence and/ 

or any violation of state or federal law 

that may be attributable to FCI in 

performing its duties overseeing the 

transaction. In addition, no contract or 

instrument may purport to waive FCI’s 

liability under state or federal law for 

any such violations; and 

(j) Each Plan participant received the 

entire amount they were due with 

respect to the acquisition of the 

Warrants and the sale of the Warrants. 

Effective Date: This exemption will be 

in effect for the period beginning August 

3, 2020, through August 12, 2027. 

George Christopher Cosby, 

Director Office of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2023–21732 Filed 9–29–23; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Prohibited Transaction Exemption 2023– 

19; Exemption Application No. D–12003] 

Exemption From Certain Prohibited 

Transaction Restrictions Involving the 

Mitsubishi UFJ Trust and Banking 

Corporation Located in New York, NY 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of exemption. 

SUMMARY: This document contains a 

notice of an exemption 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). The exemption 

permits certain transactions arising from 

credit arrangements involving 

Mitsubishi UFJ Trust and Banking 

Corporation (the Applicant or MUTB) 

and investment funds in which 

employee benefit plans invest. 


lotter on DSK11XQN23PROD with NOTICES1
67818 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 

1The procedures for requesting an exemption are 

set forth in 29 CFR part 2570, subpart B (76 FR 

66637, 66644, October 27, 2011). Effective 

December 31, 1978, section 102 of the 

Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 

1 (1996), transferred the authority of the Secretary 

of the Treasury to issue administrative exemptions 

under the Code Section 4975(c)(2) to the Secretary 

of Labor. Accordingly, the Department grants this 

exemption under its sole authority. 

2Applicants and recipients of an exemption are 

strongly cautioned to immediately alert the 

Department regarding any material statement in an 

application or proposed exemption that may not be, 

or may no longer be, completely and factually 

accurate. 

3All information submitted by the Applicant to 

the Department in connection with this exemption 

is available through the Department’s Public 

Disclosure Office, by referencing D–12003. 

4The term Prior Credit Facility Exemptions refers 

to similar exemptions that the Department has 

either granted or authorized; see PTE 2004–02, FAN 

2005–19E, FAN 2006–04E, FAN 2007–07E, and 

FAN 2008–01E. 

DATES: This exemption will be in effect 

on the date that this grant notice is 

published in the Federal Register. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Frank Gonzalez of the Department at 

(202) 693–8553. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: The 

Applicant requested an exemption 

pursuant to ERISA Section 408(a) and 

supplemented the request with certain 

additional information (collectively, this 

information is referred to as ‘‘the Initial 

Application’’).1 On June 28, 2021, the 

Department published a notice of 

proposed exemption in the Federal 

Register at 86 FR 34048 (Proposed 

Exemption). 

Based on the record, the Department 

has determined to grant the Proposed 

Exemption. This exemption provides 

only the relief specified herein. It 

provides no relief from violations of any 

law other than the prohibited 

transaction provisions of ERISA, as 

expressly stated herein. 

The Department makes the requisite 

findings under ERISA Section 408(a) 

based on the Applicants’ adherence to 

all the conditions of the exemption. 

Accordingly, affected parties should be 

aware that the conditions incorporated 

in this exemption are, taken 

individually and as a whole, necessary 

for the Department to grant the relief 

requested by the Applicants. Absent 

these conditions, the Department would 

not have granted this exemption. 

Background 

The Applicant seeks to provide 

secured revolving lines of credit (a 

Credit Facility or Credit Facilities) for 

certain funds (Fund(s)). The Funds 

invest directly or indirectly in private 

equity investments, real estate 

investments, non-real estate operating 

company ventures, or other 

investments. The Funds are formed and 

operated through the Funds’ organizing 

and governing documents (Fund 

Agreements). 

A Credit Facility provides a Fund 

with access to direct or indirect 

borrowing, letters of credit and similar 

forms of credit arrangements without 

the Fund having to seek permanent or 

interim financing before making an 

investment. The Credit Facility 

eliminates the delay that a Fund will 

encounter in obtaining capital if it 

makes capital calls to Investors. Covered 

plans may invest in the Funds, as may 

endowment funds, private or public 

persons, insurance companies, public or 

private corporations, trusts, and 

individuals (collectively, Investors). 

The Credit Facility’s collateral 

security includes the right to make 

capital calls on Investors, including in 

the event of a Fund’s default, and apply 

the proceeds to the repayment of the 

Fund’s obligations, a secured interest in 

an account (Collateral Account) the 

Fund maintains in a financial 

institution into which capital 

contributions can be made, and the 

Investor’s acknowledgement of the 

Fund’s assignment of rights to the 

Lender (Investor Consent). The Investor 

Consent may include an agreement 

between the Investor and MUTB in 

which the Investor: (1) acknowledges 

the Credit Facility, including, amongst 

others, that the Investor will make 

capital contributions only to the 

Collateral Account (except in limited 

circumstances); and (2) will make 

Capital Contributions to the Fund 

without setoff, reduction, counterclaim, 

or defense of any kind or nature, for the 

purpose of repayment of the Credit 

Facility (Agreement to Fund). The 

Agreement to Fund does not limit the 

Investor’s right to assert a claim or 

defense in a separate action against the 

Fund, and keeps the risk of the Fund 

mismanagement or fraud between the 

Investors and the Funds. 

The Department invited all interested 

persons to submit written comments 

and/or requests for a public hearing 

with respect to the Proposed Exemption. 

On August 12, 2021, the Department 

received one written comment, which 

came from the Applicant, and raised a 

number of issues regarding the accuracy 

of the Proposed Exemption.2 On March 

10, 2022, the Department held a 

tentative denial conference with the 

Applicant to address these accuracy 

issues. 

On April 1, 2022, the Applicant 

submitted additional information to the 

Department. The material issues that the 

Applicant raised and the material 

information it submitted to the 

Department are discussed below.3

Written Comments 

Comments From the Applicant 

As a general comment, the Applicant 

states that its primary goal is to obtain 

a credit facility exemption that is 

substantially similar (if not identical in 

all material respects) to the Prior Credit 

Facility Exemptions,4 and thereby to 

have equal footing with other financial 

institutions that have received the Prior 

Credit Facility Exemptions. The 

Applicant maintains it is critical for the 

final exemption to be substantially 

similar to the Prior Credit Facility 

Exemptions. 

The Department notes that the 

existence of previously issued 

administrative exemptions is not 

determinative of whether the 

Department will propose future 

exemption applications with the same 

or similar facts, or whether a proposed 

exemption will contain the same 

conditions as a similar previously 

issued administrative exemption. The 

Department has the sole authority to 

issue exemptions and is not bound by 

the facts or conditions of prior 

exemptions in making determinations 

with respect to an exemption 

application. This policy allows the 

Department to retain sufficient 

flexibility to grant exemptions that are 

appropriate in an ever-changing 

business, legislative, and regulatory 

policy environment. 

I. Section I(e) of the Proposed 

Exemption 

Section I(e) states that: ‘‘A Covered 

Plan’s execution of an agreement (the 

Investor Consent) consenting to the 

assignment by the Fund and General 

Partner (or Manager) to Mitsubishi 

Bank, as sole Lender or Agent, of their 

right to make Capital Calls.’’ 

Applicant’s Request: The Applicant 

seeks to add the following new language 

to Section I(e), as it relates to the 

Investor Consent. According to the 

Applicant, Covered Plans generally 

expect to see and take comfort in seeing 

the list of items that may be included in 

the Investor Consent, and it reduces 

ambiguity for the Covered Plan 

Investors and improves administrative 

efficiency and negotiation with the 

Covered Plan Investors: 

‘‘(e) The execution by a Covered Plan 

of an agreement (‘‘Investor Consent’’) 

consenting to the assignment by the 

Fund and General Partner (or Manager) 

to Mitsubishi Bank, as sole Lender or 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 67819 

5See the Department’s Plan Assets Regulation, 29 

CFR part 2510.3–101 (51 FR 41280, Nov. 13, 1986), 

as amended at 51 FR 47226, (Dec. 31, 1986). 

the Agent, of their right to make Capital 

Calls, which may contain, among other 

things: (i) an acknowledgment of the 

Covered Plan’s obligation to deliver the 

Covered Plan’s financial information 

statements to Mitsubishi Bank, as sole 

Lender or the Agent; (ii) an 

acknowledgment of the Covered Plan’s 

unpaid and owing capital commitment 

amount and the Covered Plan’s 

obligation to make Capital Contributions 

(up to its unfunded Capital 

Commitment amount) to satisfy the 

indebtedness incurred by the Fund 

under the Credit Facility; (iii) an 

acknowledgment by the Covered Plan of 

the Fund’s assignment to Mitsubishi 

Bank, as sole Lender or the Agent, of the 

right to make Capital Calls upon the 

Covered Plan, enforce the Capital Calls, 

collect the Capital Contributions, and 

apply them to any amount due under 

the Credit Facility; (iv) a consent (as 

either part of the Fund Agreements or as 

a separate agreement) by the Covered 

Plan to make Capital Contributions to 

the Fund without setoff, reduction, 

counterclaim, or defense of any kind or 

nature, for the purpose of repayment of 

the Credit Facility; (v) a representation 

that the Covered Plan has no knowledge 

of claims, offsets or defenses that would 

adversely affect its obligation to fund 

Capital Contributions under the Fund 

Agreements, or events which, with the 

passage of time would constitute a 

default or would constitute a defense to, 

or right of offset against the Covered 

Plan’s obligation to fund its Capital 

Commitment to the Fund; and (vi) an 

agreement that the Covered Plan will 

fund Capital Contributions only into the 

Collateral Account; provided that with 

respect to all transactions described 

above, the conditions set forth below in 

Section III are met.’’ 

Department’s Response: The 

Department has revised the condition 

consistent with the Applicant’s request. 

II. Section III(i) of the Proposed 

Exemption 

Section III(i) of the Proposed 

Exemption states that: ‘‘The Funds will 

not hold ‘plan assets’ for purposes of 

ERISA or Code section 4975.’’ 

Applicant’s Request: The Applicant 

objects to the inclusion of the condition 

in Section III(i). The Applicant states 

that no ‘‘Covered Transaction’’ is 

impacted by, or has any relationship to, 

the ‘‘plan asset’’ status of the Fund. 

Further, the Applicant states that it does 

not have any control over the ‘‘plan 

asset’’ status of the Fund. 

According to the Applicant, to 

condition the availability of the 

exemption on a condition for which the 

Applicant has no control, and for which 

the condition has no impact on the 

relationship between the Covered Plan 

and the Applicant, would be arbitrary 

and lead to inequitable consequences to 

the Covered Plan and the Applicant. 

Although the Prior Credit Facility 

Exemptions note that the Funds 

typically do not hold ‘‘plan assets,’’ the 

operative language in those exemptions 

does not expressly make this status a 

condition. Requiring that the Funds will 

not hold ‘‘plan assets’’ for purposes of 

ERISA or Code section 4975 would 

place the Applicant at a significant 

competitive disadvantage because Fund 

Managers of Plan Asset Entities would 

seek to borrow from Agent/Lenders that 

have a less restrictive exemption that 

does not discriminate against them 

based on their ‘‘plan asset’’ status. 

Department’s Response: The 

Department notes that the Applicant 

made the following representation in its 

application: ‘‘. . . [i]n certain rare 

instances, a Fund’s underlying assets 

may constitute plan assets for purposes 

of the [Department’s] Plan Assets 

Regulation.5 However, in such cases, the 

Applicant would not enter into a Credit 

Facility with such Fund unless the 

Fund was managed by a QPAM 

[qualified professional asset manager] 

and the extension of credit under the 

Credit Facility to the Fund and the 

Fund’s pledge of collateral would be 

covered by the QPAM Exemption, or 

unless another exemption was 

applicable.’’ The Department has 

revised Section III(i) of this exemption 

for consistency with that representation. 

III. Section III(j) of the Proposed 

Exemption 

Section III(j) of the Proposed 

Exemption states that: ‘‘Any service 

covered by the exemption must be 

necessary for the establishment or 

operation of the plan, and no more than 

reasonable compensation may be paid.’’ 

Applicant’s Request: The Applicant 

objects to this condition. The Applicant 

states that this condition improperly 

implies that there is some form of 

service relationship between the 

Applicant/Lenders and the Covered 

Plan Investors. The condition is 

therefore likely to confuse Covered Plan 

Investors and add additional costs and 

delays if the Covered Plan expends 

additional resources to evaluate this 

condition since it does not appear in the 

Prior Credit Facility Exemptions. 

The Applicant states that while it is 

possible that a Covered Plan Investor 

may inquire about the status of, or 

request information from the Applicant 

or a Lender, with respect to a credit 

facility, including outstanding 

obligations thereunder, these 

communications would be relayed by 

the Covered Plan Investors through the 

Fund to the Applicant/Lenders, and not 

made directly. 

The Applicant represents that these 

would be ‘‘incidental interactions’’ that 

would not cause the Applicant or a 

Lender, to be a ‘‘covered service 

provider’’ for purposes of ERISA Section 

408(b)(2), particularly where no 

compensation is being paid for any 

services. The Applicant states that, to 

the extent there is any ‘‘service’’ 

relationship between the Applicant/ 

Lenders and the Covered Plans, it would 

be appropriate for the Applicant to rely 

on ERISA Section 408(b)(2) and not the 

credit facility exemption. 

Department’s Response: In a letter to 

the Department dated August 7, 2020, 

the Applicant stated that ‘‘. . . from 

time to time, there may be interactions 

between [the Applicant/Lenders] and 

the Covered Plan Investors which may 

be construed as a service. For example, 

Covered Plan Investors may inquire 

about the status and/or request 

information from [the Applicant/ 

Lenders] with respect to the Credit 

Facility and the outstanding obligations 

thereunder, although, typically, such 

communication would be relayed by the 

Covered Plan Investors through the 

Fund to [the Applicant/Lenders], and 

not made directly.’’ 

Although the Department has not 

made any determination regarding 

whether any transaction permitted by 

this exemption falls within the scope of 

ERISA Section 408(b)(2), this exemption 

is not intended to provide exemptive 

relief for any transaction that is within 

the scope of ERISA Section 408(b)(2). 

Accordingly, the Department has 

decided not to delete the condition as 

requested. However, based on the 

Applicant’s representations, the 

Department is revising the condition as 

follows: ‘‘The relief in this exemption 

does not extend to any transaction that 

is within the scope of ERISA Section 

408(b)(2).’’ 

IV. Section III(k) of the Proposed 

Exemption 

Section III(k) of the Proposed 

Exemption states that: ‘‘No Lender will 

have any influence, authority, or control 

over a Client Plan’s investment in the 

Fund.’’ 

Applicant’s Request: The Applicant 

requests that the Department delete this 

condition. The Applicant states that the 

relationship between a Covered Plan 

and the Applicant/Lenders is set forth 


lotter on DSK11XQN23PROD with NOTICES1
67820 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 

6 In determining whether a specific fact or 

representation within the application is material, 

the Applicant is urged to contact the Department’s 

Office of Exemption Determinations prior to such 

fact or representation being changed. 

in Section III(a), which provides that: 

‘‘The decision to invest in the Fund on 

behalf of each Covered Plan and to 

execute an Investor Consent in favor of 

Mitsubishi Bank, as sole Lender or 

Agent, is made by fiduciaries of the 

Covered Plan that are not included 

among and are independent of and 

unaffiliated with, the Lenders 

(including Mitsubishi Bank) and the 

Fund.’’ 

Department’s Response: Given the 

similarity between Section III(k) and 

Section III(a), the Department is deleting 

Section III(k). The Department has also 

redesignated Section III(l) of the 

Proposed Exemption (further discussed 

below) as Section III(k) in the final 

exemption. 

Department’s Note: Recipients of any 

administrative exemption from the 

Department, including any Prior Credit 

Facility Exemption, are strongly 

cautioned to immediately alert the 

Department regarding any statement in 

an application or proposed exemption 

that may not be, or may no longer be, 

completely and factually accurate. The 

Department is granting this exemption 

with the expectation that all of the 

material representations that the 

Applicant made in its exemption 

application, including all factual 

information it submitted to the 

Department subsequent to the Proposed 

Exemption’s publication and all of the 

statements set forth in the Proposed 

Exemption’s Summary of Facts and 

Representations, and in this exemption, 

are factually complete and accurate, and 

will be fully complied with and adhered 

to. 

For greater consistency with the 

Department’s most recent individual 

administrative exemptions, the 

Department has revised condition (k) of 

the Proposed Exemption as follows: 

‘‘All of the material facts and 

representations set forth in the 

Summary of Facts and Representations 

are true and accurate. If there is any 

material change in a transaction covered 

by the exemption, or in a material fact 

or representation described by the 

Applicant in the application, the 

exemption will cease to apply as of the 

date of the change.’’ 6

After considering the entire record 

developed in connection with the 

Applicant’s exemption application, 

along with the Applicant’s comment 

letter and the additional factual 

information it submitted subsequent to 

the Proposed Exemption, the 

Department has determined to grant the 

exemption described below. 

The complete application file (D– 

12003) is available for public inspection 

in the Public Disclosure Room of the 

Employee Benefits Security 

Administration, Room N–1515, 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 of 

proposed exemption published on June 

28, 2021, at 86 FR 34048. 

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 ERISA 

Section 408(a) does not relieve a 

fiduciary or other party in interest from 

certain requirements of other ERISA 

provisions, including any prohibited 

transaction provisions to which the 

exemption does not apply and the 

general fiduciary responsibility 

provisions of ERISA Section 404, which, 

among other things, require a fiduciary 

to discharge their duties respecting the 

plan solely in the interest of the plan’s 

participants and beneficiaries and in a 

prudent fashion in accordance with 

ERISA Section 404(a)(1)(B). 

(2) As required by ERISA Section 

408(a), the Department hereby finds that 

the exemption is (1) administratively 

feasible, (2) in the interests of affected 

plans and of their participants and 

beneficiaries, and (3) protective of the 

rights of participants and beneficiaries 

of such plans; 

(3) The exemption is supplemental to, 

and not in derogation of, any other 

ERISA provisions, 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 determining whether 

the transaction is in fact a prohibited 

transaction; and 

(4) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describe all material terms of the 

transaction that are the subject of the 

exemption. 

Accordingly, the following exemption 

is granted under the authority of ERISA 

Section 408(a) and in accordance with 

the procedures set forth in 29 CFR part 

2570, subpart B (76 FR 66637, 66644, 

October 27, 2011): 

Exemption 

Section I. Covered Transactions 

The restrictions of ERISA Sections 

406(a)(1)(A)–(D), and the sanctions 

resulting from the application of Code 

Section 4975, by reason of Code 

Sections 4975(c)(l)(A)–(D), shall not 

apply to: 

(a) The granting by the Funds to 

Mitsubishi UFJ Trust and Banking 

Corporation (Mitsubishi Bank), as an 

agent (Agent) for one or more financial 

institutions (Lender(s)), which may 

include, without limitation, Mitsubishi 

Bank) or as sole Lender, that will fund 

a credit facility (Credit Facility) 

providing credit to certain investment 

funds (Fund(s)), of a security interest in 

and lien on the capital commitments 

(Capital Commitments), reserve 

amounts, and capital contributions 

(Capital Contributions) of certain 

investors (Investors) that are employee 

benefit plans (Covered Plan(s), as 

defined in Section II(a)), investing in the 

Fund; 

(b) Any Fund’s collateral assignment 

and pledge to Mitsubishi Bank, as sole 

Lender or Agent, of the Fund’s security 

interest in an Investor Covered Plan’s 

equity interest in such Fund; 

(c) The Fund’s grant to Mitsubishi 

Bank, as sole Lender or Agent, of a 

security interest in a collateral account 

(Collateral Account) to which all Capital 

Contributions in the Fund will be 

deposited when paid (except in certain 

limited circumstances that do not 

involve Covered Plans); 

(d) The granting by the Fund and/or 

its general partner (General Partner) or 

manager (Manager) to Mitsubishi Bank, 

as sole Lender or Agent, of its right to 

make calls on Covered Plan Investors for 

Capital Contributions (the Capital Call), 

which shall be in cash, under the 

operative Fund Agreements (as defined 

in Section II(d)), enforce the Capital 

Calls, collect the Capital Contributions, 

and apply them to any amount due 

under the Credit Facility; and 

(e) The execution by a Covered Plan 

of an agreement (‘‘Investor Consent’’) 

consenting to the assignment by the 

Fund and General Partner (or Manager) 

to Mitsubishi Bank, as sole Lender or 

the Agent, of their right to make Capital 

Calls, which may contain, among other 

things: (i) an acknowledgment of the 

Covered Plan’s obligation to deliver the 

Covered Plan’s financial information 

statements to Mitsubishi Bank, as sole 

Lender or the Agent; (ii) an 

acknowledgment of the Covered Plan’s 

unpaid and owing capital commitment 

amount and the Covered Plan’s 

obligation to make Capital Contributions 

(up to its unfunded Capital 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 67821 

Commitment amount) to satisfy the 

indebtedness incurred by the Fund 

under the Credit Facility; (iii) an 

acknowledgment by the Covered Plan of 

the Fund’s assignment to Mitsubishi 

Bank, as sole Lender or the Agent, of the 

right to make Capital Calls upon the 

Covered Plan, enforce the Capital Calls, 

collect the Capital Contributions, and 

apply them to any amount due under 

the Credit Facility; (iv) a consent (as 

either part of the Fund Agreements or as 

a separate agreement) by the Covered 

Plan to make Capital Contributions to 

the Fund without setoff, reduction, 

counterclaim, or defense of any kind or 

nature, for the purpose of repayment of 

the Credit Facility; (v) a representation 

that the Covered Plan has no knowledge 

of claims, offsets or defenses that would 

adversely affect its obligation to fund 

Capital Contributions under the Fund 

Agreements, or events which, with the 

passage of time would constitute a 

default or would constitute a defense to, 

or right of offset against the Covered 

Plan’s obligation to fund its Capital 

Commitment to the Fund; and (vi) an 

agreement that the Covered Plan will 

fund Capital Contributions only into the 

Collateral Account; provided that with 

respect to all transactions described 

above, the conditions set forth below in 

Section III are met. 

Section II. Definitions 

(a) The terms ‘‘Covered Plan’’ or 

‘‘Covered Plans’’ means an investor in a 

Fund (as defined below) that is an 

employee benefit plan, as defined in 

ERISA Section 3(3) and that is covered 

by Title I, Part 4 of ERISA, and/or a plan 

defined in Code Section 4975, that 

satisfies the conditions set forth herein 

in Section II. 

(b) The terms ‘‘Covered Transaction’’ 

or ‘‘Covered Transactions’’ mean any 

combination of transactions described 

in Section I(a) through (d), in 

conjunction with the Investor Consent 

described in Section I(e). 

(c) The terms ‘‘Fund’’ or ‘‘Funds’’ 

means an investment or venture capital 

fund (organized as a corporation, 

limited partnership, limited liability 

company, or another business entity 

authorized by applicable law) in which 

one or more investors invest, including 

employee benefit plans or special 

purpose entities holding ‘‘plan assets’’ 

subject to ERISA, as described herein, 

by making capital contributions in cash 

to such Fund, pursuant to specific 

Capital Commitments as established by 

the Fund Agreement(s) and other 

operative documents executed by the 

parties, for purposes of making certain 

real estate investments (including real 

estate-related investments, such as 

venture capital investments) or non-real 

estate investments (including, without 

limitation, assets and/or interests 

relating to infrastructure, maritime, 

energy, etc.). 

Each Covered Plan investing in such 

special purpose entity must satisfy the 

conditions set forth herein in Section III. 

The term ‘‘Fund’’ includes an entity 

created by the Fund that may borrow, or 

receive, funds from the Credit Facility, 

provided that such entity is considered 

an affiliate of the Fund as a subsidiary 

or other controlled entity. 

(d) The terms ‘‘Fund Agreement’’ or 

‘‘Fund Agreements’’ mean the written 

agreements under which a Fund (as 

defined above) is formed (such as a 

limited partnership agreement, a limited 

liability company agreement, trust 

agreement, or articles of incorporation, 

together with ancillary related 

agreements, such as subscription 

agreements) that obligate each Investor 

to make cash contributions of capital 

with respect to Capital Commitments, 

upon receipt of a call for Capital 

Contributions. 

(e) The term ‘‘officer’’ means a 

president, any vice president in charge 

of a principal business unit, division or 

function (such as sales, administration 

or finance), or any other officer who 

performs a policy-making function for 

the entity. 

(f) The term ‘‘Mitsubishi Bank’’ means 

Mitsubishi UFJ Trust and Banking 

Corporation, which is a foreign banking 

corporation organized under the laws of 

Japan, and its indirectly wholly-owned 

subsidiary named MUFG Alternative 

Fund Services (Cayman) Limited, an 

ordinary resident company incorporated 

and existing under the laws of the 

Cayman Islands. This exemption is 

intended to cover Mitsubishi Bank, and 

all of its current and future branches. 

(g) For purposes of determining 

whether a fiduciary is not included 

among, is independent of, and 

unaffiliated with, a Fund, the term Fund 

shall be deemed, as appropriate, to 

include the governing entity of the 

Fund, or a member of the governing 

body of the Fund, as appropriate, e.g., 

a general partner of a partnership, a 

manager of a limited liability company, 

a member of a member-managed limited 

liability company, or a member of the 

board of directors of a corporation. For 

purposes of this exemption request, a 

fiduciary of a Covered Plan is not 

included among, is independent of, and 

unaffiliated with, a Lender (including 

Mitsubishi Bank) or a Fund, as 

applicable, if: 

(i) The fiduciary is not, directly or 

indirectly, through one or more 

intermediaries, controlling, controlled 

by, or under common control with such 

Lender or Fund; 

(ii) The fiduciary is not an officer, 

director, employee or relative of, or 

partner in, such Lender or Fund; and 

(iii) No officer, director, highlycompensated employee (within the 

meaning of Code Section 4975(e)(2)(H)), 

or partner of the Fund, or any officer, 

director or highly-compensated 

employee, or partner of the Lender who 

is involved in the transactions described 

in Section I of the exemption request, is 

also an officer, director, highlycompensated employee, or partner of 

the fiduciary. However, if such 

individual is a director of the Lender, 

and if they abstain from participation in, 

and is not otherwise involved with, the 

decision made by the Covered Plan to 

invest in the Fund, then this condition 

shall be deemed satisfied. 

Section III. Conditions 

(a) The decision to invest in the Fund 

on behalf of each Covered Plan and to 

execute an Investor Consent in favor of 

Mitsubishi Bank, as sole Lender or 

Agent, is made by fiduciaries of the 

Covered Plan that are not included 

among and are independent of and 

unaffiliated with, the Lenders 

(including Mitsubishi Bank) and the 

Fund; 

(b) The transaction is on terms that 

are no less favorable to the Covered 

Plans than those which the Covered 

Plans could obtain in arm’s-length 

transactions with unrelated parties; 

(c) At the time of the execution of an 

Investor Consent, the Covered Plan has 

assets of not less than $100 million. In 

the case of multiple plans maintained 

by the same employer, or by members 

of a controlled group of corporations 

(within the meaning of Code Section 

4l4(b)), or members of a group of trades 

or businesses under common control 

(within the meaning of Code Section 

414(c)) (hereafter, referred to as 

‘‘members of a controlled group’’), 

whose assets are invested on a 

commingled basis (e.g., through a 

master trust), this $100 million 

threshold applies to the aggregate assets 

of the commingled entity; 

(d) Not more than 5% of the assets of 

any Covered Plan, measured at the time 

of the execution of an Investor Consent, 

is invested in the Fund. In the case of 

multiple plans maintained by the same 

employer, or by members of a controlled 

group, whose assets are invested on a 

commingled basis (e.g., through a 

master trust), the 5% limit applies to the 

aggregate assets of the commingled 

entity; 

(e) Neither Mitsubishi Bank, nor any 

Lender, has discretionary authority or 


lotter on DSK11XQN23PROD with NOTICES1
67822 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 

7See the Department’s Plan Assets Regulation. 29 

CFR part 2510.3–101 (51 FR 41280, Nov. 13, 1986), 

as amended at 51 FR 47226, (Dec. 31, 1986). 

control with respect to a Covered Plan’s 

investment in the Fund nor renders 

investment advice (within the meaning 

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

such investment; 

(f) Upon request, the Covered Plan 

fiduciaries must receive from Mitsubishi 

Bank, a copy of this notice of proposed 

exemption and a copy of the final 

exemption, as published in the Federal 

Register; 

(g) Mitsubishi Bank receives from the 

Covered Plan fiduciaries a written 

representation, or a written 

authorization, that permits Mitsubishi 

Bank to rely on a written representation 

made to the Fund, that the conditions 

set forth above in Section III(a), (c), and 

(d) are satisfied for such transaction 

with respect to the Covered Plan for 

which they are fiduciaries; 

(h) No Covered Transaction is part of 

an arrangement, agreement or 

understanding, designed to benefit a 

party in interest or disqualified person 

with respect to a Covered Plan; 

(i) In the event that a Fund’s 

underlying assets constitute plan assets 

for purposes of the Department’s Plan 

Assets Regulation, Mitsubishi Bank or 

any Lender will not enter into a Credit 

Facility with such Fund unless the 

Fund is managed by a QPAM, and the 

extension of credit under the Credit 

Facility to the Fund and the Fund’s 

pledge of collateral would be covered by 

the QPAM Exemption or another 

applicable exemption; 7

(j) The relief in this exemption does 

not extend to any transaction that is 

within the scope of ERISA Section 

408(b)(2); and 

(k) All of the material facts and 

representations set forth in the 

Summary of Facts and Representations 

are true and accurate. If there is any 

material change in a transaction covered 

by the exemption, or in a material fact 

or representation described by the 

Applicant in the application, the 

exemption will cease to apply as of the 

date of the change. 

Effective Date: This exemption will be 

in effect on the date that this grant 

notice is published in the Federal 

Register. 

George Christopher Cosby, 

Director Office of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2023–21731 Filed 9–29–23; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Workforce Information Advisory 

Council 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice of a virtual WIAC 

meeting November 6, 2023. 

SUMMARY: Notice is hereby given that 

the Workforce Information Advisory 

Council (WIAC or Advisory Council) 

will meet virtually November 6, 2023. 

Information for public attendance at the 

virtual meetings will be posted at 

www.dol.gov/agencies/eta/wioa/wiac/ 

meetings several days prior to each 

meeting date. The meetings will be open 

to the public. 

DATES: The meeting will take place 

November 6, 2023. The meeting will 

begin at 2 p.m. EST and conclude at 

approximately 4 p.m. EST. Public 

statements and requests for special 

accommodations or to address the 

Advisory Council must be received by 

October 23, 2023. 

ADDRESSES: Information for public 

attendance at the virtual meetings will 

be posted at www.dol.gov/agencies/eta/ 

wioa/wiac/meetings several days prior 

to each meeting date. If problems arise 

accessing the meetings, please contact 

Donald Haughton, Unit Chief in the 

Division of National Programs, Tools, 

and Technical Assistance, Employment 

and Training Administration, U.S. 

Department of Labor, at 202–693–2784. 

FOR FURTHER INFORMATION CONTACT: 

Steven Rietzke, Chief, Division of 

National Programs, Tools, and 

Technical Assistance, Employment and 

Training Administration, U.S. 

Department of Labor, Room C–4510, 200 

Constitution Ave. NW, Washington, DC 

20210; Telephone: 202–693–3912; 

Email: WIAC@dol.gov. Mr. Rietzke is the 

WIAC Designated Federal Officer. 

SUPPLEMENTARY INFORMATION: 

Background: This meeting is being 

held pursuant to sec. 308 of the 

Workforce Innovation and Opportunity 

Act of 2014 (WIOA) (Pub. L. 113–128), 

which amends sec. 15 of the WagnerPeyser Act of 1933 (29 U.S.C. 491–2). 

The WIAC is an important component 

of WIOA. The WIAC is a federal 

advisory committee of workforce and 

labor market information experts 

representing a broad range of national, 

State, and local data and information 

users and producers. The WIAC was 

established in accordance with 

provisions of the Federal Advisory 

Committee Act (FACA), as amended (5 

U.S.C. app.) and will act in accordance 

with the applicable provisions of FACA 

and its implementing regulation at 41 

CFR 102–3. The purpose of the WIAC is 

to provide recommendations to the 

Secretary of Labor (Secretary), working 

jointly through the Assistant Secretary 

for Employment and Training and the 

Commissioner of Labor Statistics, to 

address: (1) the evaluation and 

improvement of the nationwide 

workforce and labor market information 

(WLMI) system and statewide systems 

that comprise the nationwide system; 

and (2) how the Department and the 

States will cooperate in the management 

of those systems. These systems include 

programs to produce employmentrelated statistics and State and local 

workforce and labor market information. 

The Department of Labor anticipates 

the WIAC will accomplish its objectives 

by: (1) studying workforce and labor 

market information issues; (2) seeking 

and sharing information on innovative 

approaches, new technologies, and data 

to inform employment, skills training, 

and workforce and economic 

development decision making and 

policy; and (3) advising the Secretary on 

how the workforce and labor market 

information system can best support 

workforce development, planning, and 

program development. Additional 

information is available at www.dol.gov/ 

agencies/eta/wioa/wiac/meetings. 

Purpose: The WIAC is continually 

identifying and reviewing issues and 

aspects of the WLMI system and 

statewide systems that comprise the 

nationwide system and how the 

Department and the States will 

cooperate in the management of those 

systems. As part of this process, the 

Advisory Council meets to gather 

information and to engage in 

deliberative and planning activities to 

facilitate the development and provision 

of its recommendations to the Secretary 

in a timely manner. 

Agenda: The agenda topics for the 

November 6, 2023, meeting are: (1) 

introduce all members of the WIAC for 

this three-year membership cycle; (2) 

review DOL and FACA ethics and codes 

of conduct as they pertain to WIAC 

members, and, time permitting; (3) 

discuss previous WIAC 

recommendations and determine focus 

areas for this WIAC to explore. 

Additionally, future meeting dates will 

be discussed and tentative dates set. A 

detailed agenda will be available at 

www.dol.gov/agencies/eta/wioa/wiac/ 

meetings shortly before the meetings 

commence. 

The Advisory Council will open the 

floor for public comment at 

approximately 3:30 p.m. EST for 


lotter on DSK11XQN23PROD with NOTICES1