12296 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

gambling establishment, aquarium, zoo, 

golf course or swimming pool. 

c. Compliance with the requirements 

to obtain a D-U-N-S® number and 

register with the Central Contractor 

Registry (CCR). ETA has issued 

additional guidance related to theses 

reports which can be found in the TEGL 

No. 29–08, dated June 10, 2009. 

d. Submission of required reports in 

accordance with Section 1512 of the 

Recovery Act. These reports will be due 

quarterly within 10 days of the end of 

the reporting period and are in addition 

to the ETA-required reports addressed 

in Section VI.C of this SGA. The ETA 

will issue additional guidance related to 

these reports and their submission 

requirements shortly. 

Implementing OMB guidance may be 

found at http://www.recovery.gov. 

C. Reporting 

Quarterly financial reports, quarterly 

progress reports, and MIS data will be 

submitted by the grantee electronically. 

The grantee is required to provide the 

reports and documents listed below: 

• Quarterly Financial Reports. A 

Quarterly Financial Status Report (ETA 

9130) is required until such time as all 

funds have been expended or the grant 

period has expired. Quarterly reports 

are due 45 days after the end of each 

calendar year quarter. Grantees must use 

DOL’s On-Line Electronic Reporting 

System. Information and instructions on 

using the system will be provided to 

grantees. 

• Quarterly Performance Reports. The 

grantee must submit a quarterly progress 

report within 45 days after the end of 

each calendar year quarter. In order to 

submit these quarterly reports, grantees 

will be expected to track participantlevel data on the individuals who are 

involved in training and other services 

provided through the grant and report 

on participant status in a variety of 

fields and outcome categories, as well as 

provide narrative information on the 

status of the grant. The last quarterly 

progress report that grantees submit will 

serve as the grant’s Final Performance 

Report. This report should provide both 

quarterly and cumulative information 

on the grant’s activities. It must 

summarize project activities, project 

outcomes, and other deliverables. DOL 

will provide grantees with formal 

guidance on the data and other 

information that is required to be 

collected and reported on either a 

regular basis or special request basis. 

Grantees must agree to meet DOL 

reporting requirements. 

• Record Retention. Applicants 

should be aware of Federal guidelines 

on record retention, which require 

grantees to maintain all records 

pertaining to grant activities for a period 

of not less than three years from the 

time of final grant close-out. 

VII. Agency Contacts 

For further information regarding this 

SGA, please contact Rahel Bizuayene, 

Grants Management Specialist, Division 

of Federal Assistance, at (202) 693–3256 

(this is not a toll-free number). 

Applicants should e-mail all technical 

questions to Bizuayene.Rahel@dol.gov 

and must specifically reference SGA/ 

DFA PY 09–06, and along with 

question(s), include a contact name, fax 

and phone number. This announcement 

is being made available on the ETA Web 

site at http://www.doleta.gov/grants and 

at http://www.grants.gov. 

VIII. Additional Resources of Interest to 

Applicants 

A. Other Web-Based Resources 

DOL maintains a number of Webbased resources that may be of 

assistance to applicants. America’s 

Service Locator (http:// 

www.servicelocator.org) provides a 

directory of our nation’s One-Stop 

Career Centers. 

IX. Other Information 

OMB Information Collection No. 1225– 

0086, Expires November 30, 2012 

According to the Paperwork 

Reduction Act of 1995, no persons are 

required to respond to a collection of 

information unless such collection 

displays a valid OMB control number. 

Public reporting burden for this 

collection of information is estimated to 

average 20 hours per response, 

including time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding the burden 

estimated or any other aspect of this 

collection of information, including 

suggestions for reducing this burden, to 

the U.S. Department of Labor, to the 

attention of Darrin A. King, 

Departmental Clearance Officer, 200 

Constitution Avenue NW, Room N1301, 

Washington, DC 20210. Comments may 

also be e-mailed to 

DOL_PRA_PUBLIC@dol.gov. Please do 

not return the completed application to 

this address. Send it to the sponsoring 

agency as specified in this solicitation. 

This information is being collected for 

the purpose of awarding a grant. The 

information collected through this SGA 

will be used by DOL to ensure that 

grants are awarded to the applicant best 

suited to perform the functions of the 

grant. Submission of this information is 

required in order for the applicant to be 

considered for award of this grant. 

Unless otherwise specifically noted in 

this announcement, information 

submitted in the application is not 

considered to be confidential. 

Please be advised that the Grant 

Officer for this competition is James 

Stockton. 

Signed at Washington, DC, this 9th day of 

March, 2010. 

Eric Luetkenhaus, 

Grant Officer, Employment and Training 

Administration. 

[FR Doc. 2010–5552 Filed 3–12–10; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Prohibited Transaction Exemptions 

and Grant of Individual Exemptions 

Involving: 2010–04, JPMorgan Chase 

Bank, N.A. (JPMCB or the Applicants), 

D–11491; 2010–05, Goldman Sachs & 

Its Affiliates (Goldman or the 

Applicants, D–11509; 2010–06, Louis 

B. Chaykin, M.D., P.A. Cross-Tested 

Profit Sharing Plan (the Plan), D– 

11532; and 2010–07, Columbia 

Management Advisors, LLC (Columbia, 

or the Applicant) and Its Current and 

Future Affiliates (Collectively, the 

Applicants), D–11556 

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 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12297 

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. 

JPMorgan Chase Bank, N.A. (JPMCB or 

the Applicant), Located in New York, 

New York 

[Prohibited Transaction Exemption 

2010–04; Application No. D–11491] 

Exemption 

Section I—Transactions 

The restrictions of sections 406(a), 

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A) through (E) of 

the Code, shall not apply, effective July 

1, 2004, to the continued and future 

provision by JPMCB or by its current or 

future affiliates of letters of credit to 

guarantee the commercial lease 

obligations of unrelated third-party 

tenants in connection with commercial 

properties owned by a Fund (as defined 

below in Section III) or commercial 

properties for which a Fund has a 

security interest, where JPMCB is the 

manager and trustee (Trustee) of such 

Funds that hold the assets of certain 

employee benefit plans (the Plans), 

provided that the conditions set forth 

below in Section II are satisfied. 

Section II—Conditions 

A. With respect to existing or future 

letters of credit, each of the Funds is 

represented by an independent 

fiduciary to perform the following 

functions: 

(1) Monitor monthly reports of rental 

payments of tenants utilizing such 

letters of credit issued by JPMCB, or any 

current or future affiliate of JPMCB, to 

guarantee their lease payments; 

(2) Confirm whether an event has 

occurred that calls for a letter of credit 

to be drawn upon; and 

(3) Represent each of the Funds, and 

the Plans to the extent they are invested 

in the Funds, as an independent 

fiduciary in any circumstances with 

respect to a letter of credit which would 

present a conflict of interest for the 

Trustee or otherwise violate section 

406(b), including but not limited to: the 

need to enforce a remedy against JPMCB 

or a current or future affiliate with 

respect to its obligations under a letter 

of credit. 

B. With respect to future letters of 

credit issued by JPMCB, or any current 

or future affiliate of JPMCB, the 

following additional conditions are met: 

(1) JPMCB, or any current or future 

affiliate of JPMCB, as the issuer of a 

letter of credit, has at least an ‘‘A’’ credit 

rating by at least one nationally 

recognized statistical rating service at 

the time of the issuance of the letter of 

credit; 

(2) The letter of credit has objective 

market drawing conditions and states 

precisely the documents against which 

payment is to be made; 

(3) JPMCB and its affiliates do not 

‘‘steer’’ the Funds’ tenants to JPMCB or 

its affiliates in order to obtain a letter of 

credit; 

(4) Letters of credit are issued only to 

third-party tenants which are unrelated 

to JPMCB; and 

(5) The terms of any future letters of 

credit are not more favorable to the 

tenants than the terms generally 

available in transactions with other 

similarly situated unrelated third-party 

commercial clients of JPMCB or of its 

current or future affiliates. 

C. JPMCB or its affiliates maintain, or 

cause to be maintained, for a period of 

six (6) years from the date of any 

transactions involving letters of credit 

described in Section I above such 

records as are necessary to enable the 

persons, described below in Section 

II(D), to determine whether the 

conditions of this exemption have been 

met, except that— 

(1) No party in interest with respect 

to a Plan whose assets are involved in 

letter of credit transactions described in 

Section I above, other than JPMCB or its 

affiliates, 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 

Section II(D); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

if, due to circumstances beyond the 

control of JPMCB or its affiliates, such 

records are lost or destroyed prior to the 

end of the six-year period. 

D. (1) Except as provided below in 

Section II(D)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to above in Section II(C) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(i) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, the Securities 

and Exchange Commission (SEC), and 

any U.S. banking regulatory agency; 

(ii) Any fiduciary of any Plan whose 

assets are involved in the letter of credit 

transactions described in Section I 

above, or any duly authorized employee 

or representative of such fiduciary; or 

(iii) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a Plan whose assets are 

involved in the letter of credit 

transactions described in Section I 

above, or any authorized employee or 

representative of these entities; or 

(iv) Any participant or beneficiary of 

a Plan whose assets are involved in the 

letter of credit transactions described in 

Section I above, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(2) None of the persons described 

above in Section II(D)(1)(ii)–(iv) shall be 

authorized to examine trade secrets of 

JPMCB or its affiliates, or commercial or 

financial information which is 

privileged or confidential; and 

(3) Should JPMCB or its affiliates 

refuse to disclose information on the 

basis that such information is exempt 

from disclosure, pursuant to Section 

II(D)(2) above, JPMCB or its affiliates 

shall, by the close of the thirtieth (30th) 

day following the request, provide a 

written notice advising that person of 

the reasons for the refusal and that the 

Department may request such 

information. 

Section III—Definitions 

A. The term ‘‘independent fiduciary’’ 

means Fiduciary Counselors Inc. 

(Fiduciary Counselors) or any successor 

Independent Fiduciary, provided that 

Fiduciary Counselors or its successor is: 

(1) Independent of, and unrelated to, 

JPMCB and its affiliates, and (2) 

appointed to act on behalf of each Fund 


emcdonald on DSK2BSOYB1PROD with NOTICES
12298 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

1For purposes of this exemption, references to 

section 406 of the Act should be read to refer as 

well to the corresponding provisions of section 

4975 of the Code. 

for the purposes described in Section 

II.A and II.B above. For purposes of this 

exemption, a fiduciary will not be 

deemed to be independent of, and 

unrelated to, JPMCB if: (i) Such 

fiduciary directly or indirectly, controls, 

is controlled by, or is under common 

control with JPMCB; (ii) such fiduciary 

directly or indirectly receives any 

compensation or other consideration in 

connection with any transaction 

described in this exemption, except that 

it may receive compensation for acting 

as an independent fiduciary from 

JPMCB in connection with the 

transactions described herein, if the 

amount or payment of such 

compensation is not contingent upon, or 

in any way affected by such fiduciary’s 

decision; and (iii) more than 5 percent 

of such fiduciary’s annual gross revenue 

in its prior tax year will be paid by 

JPMCB and its affiliates in the 

fiduciary’s current tax year with respect 

to any particular 12-month tax period. 

B. The term ‘‘affiliate’’ means: (1) Any 

person, directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such person; (2) any officer, 

director, or partner, employee, or 

relative (as defined in section 3(15) of 

the Act) of such person; and (3) any 

corporation or partnership of which 

such person is an officer, director, or 

partner or employee. 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. The term ‘‘Fund’’ or ‘‘Funds’’ means 

‘‘collective investment funds,’’ of JPMCB 

and its current or future affiliates, 

within the meaning of Prohibited 

Transaction Class Exemption 91–38 

(PTE 91–38) and ‘‘investment funds,’’ of 

JPMCB and its current or future 

affiliates, within the meaning of 

Prohibited Transaction Class Exemption 

(PTE 84–14) and encompasses the 

following Funds: (i) The Commingled 

Pension Trust Fund (Strategic Property) 

of JPMorgan Chase Bank, N.A. (the 

Strategic Property Fund); (ii) the 

Commingled Pension Trust Fund 

(Special Situation Property) of JPMorgan 

Chase Bank, N.A. (the Special Situation 

Property Fund); and (iii) the 

Commingled Pension Trust Fund 

(Mortgage Private Placement) of 

JPMorgan Chase Bank, N.A. (the 

Mortgage Fund). 

Written Comments 

1. The Notice of Proposed Exemption 

(the Notice), published in the Federal 

Register on November 16, 2009 

beginning at page 58987, invited all 

interested persons to submit written 

comments and requests for a hearing to 

the Department within forty-five (45) 

days of the date of its publication. On 

December 29, 2009, the Department 

received a written comment from the 

Applicant regarding the content of the 

Notice. This comment, which was the 

only one received by the Department in 

connection with the Notice, suggested 

several minor editorial adjustments to 

Sections II and III of the Notice. 

Specifically, the Applicant requested 

that the text of Section II.A.(3) of the 

Notice (located at the first column of 

page 58988 of the November 16, 2009 

issue of the Federal Register) be 

amended in the final grant of exemption 

by clarifying that each of the Funds, and 

the Plans to the extent that they are 

invested in the Funds, will be 

represented by an independent 

fiduciary in any circumstances with 

respect to an existing or future letter of 

credit provided by JPMCB or by its 

current or future affiliates which would 

present a conflict of interest for the 

Trustee or otherwise violate section 

406(b) of the Act. In addition, the 

Applicant also suggested amending the 

text of Section III.C. of the Notice 

(beginning at the third column of page 

58988 and continuing onto the first 

column of page 58989 of the same issue 

of the Federal Register) to more 

precisely describe the official names of 

the three Funds (the Strategic Property 

Fund, the Special Situation Property 

Fund, and the Mortgage Fund) that are 

parties to the exemption transaction. 

After due consideration, the Department 

has adopted each of these amendments 

suggested by the Applicant. 

2. In its written comment, the 

Applicant also requested that the 

Department amend the information 

contained in the first paragraph of 

Representation 3 of the Notice (located 

at the second column of page 58989 of 

the aforementioned issue of the Federal 

Register) to provide a more accurate 

description of the real estate assets 

generally held by each of the Funds as 

of December 31, 2008. Accordingly, the 

Department notes that the Applicant has 

revised the text of the first paragraph of 

Representation 3 of the Notice to read as 

follows: ‘‘As of December 31, 2008, the 

Strategic Property Fund had net assets 

of approximately $13.7 billion, which 

were invested in 152 developed real 

estate properties, primarily office 

buildings, industrial parks, residential 

properties, and retail properties. As of 

December 31, 2008, the Special 

Situation Property Fund had net assets 

of approximately $2.5 billion, which 

were invested in real estate properties, 

primarily office buildings, industrial 

parks, residential properties, hotels and 

retail properties. As of December 31, 

2008, the Mortgage Fund had net assets 

of approximately $5.4 billion, which 

were invested primarily in non-recourse 

secured mortgage loans collateralized by 

office, industrial, retail, multi-family, 

residential and senior citizen residential 

properties.’’ 

The Department further notes that it 

did not receive any requests for a 

hearing from the Applicant or from any 

other person during the aforementioned 

45-day comment period. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the text of the Notice 

at 74 FR 58987. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Judge of the Department at (202) 

693–8550. (This is not a toll-free 

number). 

Goldman, Sachs & Co. and Its Affiliates 

(Goldman or the Applicant); Located in 

New York, New York 

[Prohibited Transaction Exemption 

2010–05; Exemption Application No. 

D–11509] 

Exemption 

Section I. Sales of Auction Rate 

Securities From Plans To Goldman: 

Unrelated to a Settlement Agreement 

The restrictions of section 

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

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), (D), and (E) of 

the Code, shall not apply, effective 

February 1, 2008, to the sale by a Plan 

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

Auction Rate Security (as defined in 

Section V(c)) to Goldman, where such 

sale (an Unrelated Sale) is unrelated to, 

and not made in connection with, a 

Settlement Agreement (as defined in 

Section V(f)), provided that the 

conditions set forth in Section II have 

been met.1

Section II. Conditions Applicable to 

Transactions Described in Section I 

(a) The Plan acquired the Auction 

Rate Security in connection with 

brokerage or advisory services provided 

by Goldman to the Plan; 

(b) The last auction for the Auction 

Rate Security was unsuccessful; 

(c) Except in the case of a Plan 

sponsored by Goldman for its own 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12299 

2The Department notes that the Act’s general 

standards of fiduciary conduct also apply to the 

transactions described herein. In this regard, section 

404 of the Act requires, among other things, that a 

fiduciary discharge his duties respecting a plan 

solely in the interest of the plan’s participants and 

beneficiaries and in a prudent manner. 

Accordingly, a plan fiduciary must act prudently 

with respect to, among other things, the decision to 

sell the Auction Rate Security to Goldman for the 

par value of the Auction Rate Security, plus unpaid 

interest and dividends. The Department further 

emphasizes that it expects Plan fiduciaries, prior to 

entering into any of the transactions, to fully 

understand the risks associated with this type of 

transaction following disclosure by Goldman of all 

relevant information. 

employees (a Goldman Plan), the 

Unrelated Sale is made pursuant to a 

written offer by Goldman (the Offer) 

containing all of the material terms of 

the Unrelated Sale. Either the Offer or 

other materials available to the Plan 

provide: (1) The identity and par value 

of the Auction Rate Security; (2) the 

interest or dividend amounts that are 

due and unpaid with respect to the 

Auction Rate Security; and (3) the most 

recent rate information for the Auction 

Rate Security (if reliable information is 

available). Notwithstanding the 

foregoing, in the case of a pooled fund 

maintained or advised by Goldman, this 

condition shall be deemed met to the 

extent each Plan invested in the pooled 

fund (other than a Goldman Plan) 

receives written notice regarding the 

Unrelated Sale, where such notice 

contains the material terms of the 

Unrelated Sale; 

(d) The Unrelated Sale is for no 

consideration other than cash payment 

against prompt delivery of the Auction 

Rate Security; 

(e) The sales price for the Auction 

Rate Security is equal to the par value 

of the Auction Rate Security, plus any 

accrued but unpaid interest or 

dividends; 

(f) The Plan does not waive any rights 

or claims in connection with the 

Unrelated Sale; 

(g) The decision to accept the Offer or 

retain the Auction Rate Security is made 

by a Plan fiduciary or Plan participant 

or IRA owner who is independent (as 

defined in Section V(d)) of Goldman. 

Notwithstanding the foregoing: (1) in 

the case of an IRA (as defined in Section 

V(e)) which is beneficially owned by an 

employee, officer, director or partner of 

Goldman, the decision to accept the 

Offer or retain the Auction Rate Security 

may be made by such employee, officer, 

director or partner; or (2) in the case of 

a Goldman Plan or a pooled fund 

maintained or advised by Goldman, the 

decision to accept the Offer may be 

made by Goldman after Goldman has 

determined that such purchase is in the 

best interest of the Goldman Plan or 

pooled fund; 2

(h) Except in the case of a Goldman 

Plan or a pooled fund maintained or 

advised by Goldman, neither Goldman 

nor any affiliate exercises investment 

discretion or renders investment advice 

within the meaning of 29 CFR 2510.3– 

21(c) with respect to the decision to 

accept the Offer or retain the Auction 

Rate Security; 

(i) The Plan does not pay any 

commissions or transaction costs with 

respect to the Unrelated Sale; 

(j) The Unrelated Sale is not part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest to the Plan; 

(k) Goldman and its affiliates, as 

applicable, maintain, or cause to be 

maintained, for a period of six (6) years 

from the date of the Unrelated Sale, 

such records as are necessary to enable 

the persons described below in 

paragraph (l)(1), to determine whether 

the conditions of this exemption, if 

granted, have been met, except that: 

(1) No party in interest with respect 

to a Plan which engages in an Unrelated 

Sale, other than Goldman and its 

affiliates, as applicable, shall be subject 

to a civil penalty under section 502(i) of 

the Act or the taxes imposed by section 

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

records are not maintained, or not 

available for examination, as required, 

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

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Goldman or its 

affiliates, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period; 

(l)(1) Except as provided below in 

paragraph (l)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to above in paragraph (k) are 

unconditionally available at their 

customary location for examination 

during normal business hours by: 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission; 

(B) Any fiduciary of any Plan, 

including any IRA owner, that engages 

in a Sale, or any duly authorized 

employee or representative of such 

fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a Plan that engages in the 

Unrelated Sale, or any authorized 

employee or representative of these 

entities; 

(2) None of the persons described 

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

be authorized to examine trade secrets 

of Goldman, or commercial or financial 

information which is privileged or 

confidential; and 

(3) Should Goldman refuse to disclose 

information on the basis that such 

information is exempt from disclosure, 

Goldman shall, by the close of the 

thirtieth (30th) day following the 

request, provide a written notice 

advising that person of the reasons for 

the refusal and that the Department may 

request such information. 

Section III. Sales of Auction Rate 

Securities From Plans to Goldman: 

Related to a Settlement Agreement 

The restrictions of section 

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

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), (D), and (E) of 

the Code, shall not apply, effective 

February 1, 2008, to the sale by a Plan 

of an Auction Rate Security to Goldman, 

where such sale (a Settlement Sale) is 

related to, and made in connection with, 

a Settlement Agreement, provided that 

the conditions set forth in Section IV 

have been met. 

Section IV. Conditions Applicable to 

Transactions Described in Section III 

(a) The terms and delivery of the Offer 

are consistent with the requirements set 

forth in the Settlement Agreement and 

acceptance of the offer does not 

constitute a waiver of any claim of the 

tendering Plan; 

(b) The Offer or other documents 

available to the Plan specifically 

describe, among other things: 

(1) The securities available for 

purchase under the Offer; 

(2) The background of the Offer; 

(3) The methods and timing by which 

Plans may accept the Offer; 

(4) The purchase dates, or the manner 

of determining the purchase dates, for 

Auction Rate Securities tendered 

pursuant to the Offer, if the Offer had 

any limitation on such dates; 

(5) The timing for acceptance by 

Goldman of tendered Auction Rate 

Securities, if there were any limitations 

on such timing; 

(6) The timing of payment for Auction 

Rate Securities accepted by Goldman for 

payment, if payment was materially 

delayed beyond the acceptance of the 

Offer; 

(7) The expiration date of the Offer; 

and 

(8) How to obtain additional 

information concerning the Offer; 


emcdonald on DSK2BSOYB1PROD with NOTICES
12300 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

3For purposes of this exemption an In-House 

Plan may engage in AUTs only through investment 

in a Pooled Fund. 4SEC Rule 10f–3(a)(4), 17 CFR 270.10f–3(a)(4), 

states that the term ‘‘Eligible Rule 144A Offering’’ 

means an offering of securities that meets the 

following conditions: 

(i) The securities are offered or sold in 

transactions exempt from registration under section 

4(2) of the Securities Act of 1933 [15 U.S.C. 77d(d)], 

rule 144A thereunder [§ 230.144A of this chapter], 

or rules 501–508 thereunder [§§ 230.501–230.508 of 

this chapter]; 

(c) The terms of the Settlement Sale 

are consistent with the requirements set 

forth in the Settlement Agreement; and 

(d) All of the conditions in Section II 

have been met. 

Section V. Definitions 

For purposes of this exemption: 

(a) The term ‘‘affiliate’’ means any 

person directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 

(b) The term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual; 

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

means a security: (1) that is either a debt 

instrument (generally with a long-term 

nominal maturity) or preferred stock; 

and (2) with an interest rate or dividend 

that is reset at specific intervals through 

a Dutch auction process; 

(d) A person is ‘‘independent’’ of 

Goldman if the person is: (1) Not 

Goldman or an affiliate; and (2) not a 

relative (as defined in section 3(15) of 

the Act) of the party engaging in the 

transaction; 

(e) The term ‘‘Plan’’ means an 

individual retirement account or similar 

account described in section 

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

IRA); an employee benefit plan as 

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

entity holding plan assets within the 

meaning of 29 CFR 2510.3–101, as 

modified by section 3(42) of the Act; 

and 

(f) The term ‘‘Settlement Agreement’’ 

means a legal settlement involving 

Goldman and a U.S. state or federal 

authority that provides for the purchase 

of an ARS by Goldman from a Plan. 

DATES: Effective Date: This exemption is 

effective as of February 1, 2008. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on 

December 22, 2009 at 74 FR 68102. 

FOR FURTHER INFORMATION CONTACT: 

Brian Shiker of the Department, 

telephone (202) 693–8552. (This is not 

a toll-free number.) 

Louis B. Chaykin, M.D., P.A., CrossTested Profit Sharing Plan (the Plan), 

Located in Lakewood Ranch, Florida 

[Prohibited Transaction Exemption No. 

2010–06; Application Number D–11532] 

Exemption 

The restrictions of sections 406(a), 

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), through (E) of 

the Code, shall not apply to the 

proposed sale (the Sale) at fair market 

value by the Plan of certain coins (the 

Collectibles), to Louis B. Chaykin, M.D. 

(the Applicant), a party in interest with 

respect to the Plan, provided that the 

following conditions are satisfied: 

(a) The Sale is a one-time transaction 

for cash; 

(b) The Plan pays no commissions, 

fees or other expenses in connection 

with the Sale; 

(c) The terms and conditions of the 

Sale are at least as favorable as those 

obtainable in an arm’s length 

transaction with an unrelated third 

party; 

(d) The fair market value of the 

Collectibles was determined by a 

qualified, independent appraiser; 

(e) The Plan receives no less than the 

fair market value of the Collectibles at 

the time of the Sale; and 

(f) All of the participants of the Plan, 

with the exception of the Applicant, 

have been paid their benefits in full. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the text of the Notice 

of Proposed Exemption that appears at 

74 FR 68105 (December 22, 2009). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Judge of the Department, 

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

a toll-free number). 

Columbia Management Advisors, LLC 

(Columbia, or the Applicant) and Its 

Current and Future Affiliates 

(collectively, the Applicants); Located 

in Boston, Massachusetts 

[Prohibited Transaction Exemption 

2010–07; Exemption Application No. D– 

11556] 

Exemption 

Section I—Transactions 

The restrictions of section 406 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 (F) of the Code, shall not apply 

to the purchase of certain securities (the 

Securities), as defined, below in Section 

III(i), by an Asset Manager, as defined, 

below, in Section III(d), from any person 

other than such Asset Manager, during 

the existence of an underwriting or 

selling syndicate with respect to such 

Securities, where a broker-dealer 

affiliated with Columbia (the Affiliated 

Broker-Dealer), as defined, below, in 

Section III(b), is a manager or member 

of such syndicate and the Asset 

Manager purchases such Securities, as a 

fiduciary: 

(a) On behalf of an employee benefit 

plan or employee benefit plans (Client 

Plan(s)), as defined, below, in Section 

III(f); or 

(b) On behalf of Client Plans, and/or 

In-House Plans, as defined, below, in 

Section III(m), which are invested in a 

pooled fund or in pooled funds (Pooled 

Fund(s)), as defined, below, in Section 

III(g); provided that the conditions as set 

forth, below, in Section II, are satisfied 

(An affiliated underwriter transaction 

(AUT)).3

Section II—Conditions 

The exemption is conditioned upon 

adherence to the material facts and 

representations described herein and 

upon satisfaction of the following 

requirements: 

(a)(1) The Securities to be purchased 

are either— 

(i) Part of an issue registered under 

the Securities Act of 1933 (the 1933 Act) 

(15 U.S.C. 77a et seq.). If the Securities 

to be purchased are part of an issue that 

is exempt from such registration 

requirement, such Securities: 

(A) Are issued or guaranteed by the 

United States or by any person 

controlled or supervised by and acting 

as an instrumentality of the United 

States pursuant to authority granted by 

the Congress of the United States, 

(B) Are issued by a bank, 

(C) Are exempt from such registration 

requirement pursuant to a federal 

statute other than the 1933 Act, or 

(D) Are the subject of a distribution 

and are of a class which is required to 

be registered under section 12 of the 

Securities Exchange Act of 1934 (the 

1934 Act) (15 U.S.C. 781), and are 

issued by an issuer that has been subject 

to the reporting requirements of section 

13 of the 1934 Act (15 U.S.C. 78m) for 

a period of at least ninety (90) days 

immediately preceding the sale of such 

Securities and that has filed all reports 

required to be filed thereunder with the 

Securities and Exchange Commission 

(SEC) during the preceding twelve (12) 

months; or 

(ii) Part of an issue that is an Eligible 

Rule 144A Offering, as defined in SEC 

Rule 10f–3 (17 CFR 270.10f–3(a)(4)).4


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12301 

(ii) The securities are sold to persons that the 

seller and any person acting on behalf of the seller 

reasonably believe to include qualified institutional 

buyers, as defined in § 230.144A(a)(1) of this 

chapter; and 

(iii) The seller and any person acting on behalf 

of the seller reasonably believe that the securities 

are eligible for resale to other qualified institutional 

buyers pursuant to § 230.144A of this chapter. 

Where the Eligible Rule 144A Offering 

of the Securities is of equity securities, 

the offering syndicate shall obtain a 

legal opinion regarding the adequacy of 

the disclosure in the offering 

memorandum; 

(2) The Securities to be purchased are 

purchased prior to the end of the first 

day on which any sales are made, 

pursuant to that offering, at a price that 

is not more than the price paid by each 

other purchaser of the Securities in that 

offering or in any concurrent offering of 

the Securities, except that— 

(i) If such Securities are offered for 

subscription upon exercise of rights, 

they may be purchased on or before the 

fourth day preceding the day on which 

the rights offering terminates; or 

(ii) If such Securities are debt 

securities, they may be purchased at a 

price that is not more than the price 

paid by each other purchaser of the 

Securities in that offering or in any 

concurrent offering of the Securities and 

may be purchased on a day subsequent 

to the end of the first day on which any 

sales are made, pursuant to that offering, 

provided that the interest rates, as of the 

date of such purchase, on comparable 

debt securities offered to the public 

subsequent to the end of the first day on 

which any sales are made and prior to 

the purchase date are less than the 

interest rate of the debt Securities being 

purchased; and 

(3) The Securities to be purchased are 

offered pursuant to an underwriting or 

selling agreement under which the 

members of the syndicate are committed 

to purchase all of the Securities being 

offered, except if— 

(i) Such Securities are purchased by 

others pursuant to a rights offering; or 

(ii) Such Securities are offered 

pursuant to an over-allotment option. 

(b) The issuer of the Securities to be 

purchased pursuant to this exemption 

must have been in continuous operation 

for not less than three years, including 

the operation of any predecessors, 

unless the Securities to be purchased 

are— 

(1) Non-convertible debt securities 

rated in one of the four highest rating 

categories by Standard & Poor’s Rating 

Services, Moody’s Investors Service, 

Inc., FitchRatings, Inc., Dominion Bond 

Rating Service Limited, Dominion Bond 

Rating Service, Inc., or any successors 

thereto (collectively, the Rating 

Organizations), provided that none of 

the Rating Organizations rates such 

Securities in a category lower than the 

fourth highest rating category; or 

(2) Debt securities issued or fully 

guaranteed by the United States or by 

any person controlled or supervised by 

and acting as an instrumentality of the 

United States pursuant to authority 

granted by the Congress of the United 

States; or 

(3) Debt securities which are fully 

guaranteed by a person (the Guarantor) 

that has been in continuous operation 

for not less than three years, including 

the operation of any predecessors, 

provided that such Guarantor has issued 

other securities registered under the 

1933 Act; or if such Guarantor has 

issued other securities which are 

exempt from such registration 

requirement, such Guarantor has been 

in continuous operation for not less 

than three years, including the 

operation of any predecessors, and such 

Guarantor is: 

(a) A bank; or 

(b) An issuer of securities which are 

exempt from such registration 

requirement, pursuant to a Federal 

statute other than the 1933 Act; or 

(c) An issuer of securities that are the 

subject of a distribution and are of a 

class which is required to be registered 

under section 12 of the 1934 Act (15 

U.S.C. 781), and are issued by an issuer 

that has been subject to the reporting 

requirements of section 13 of the 1934 

Act (15 U.S.C. 78m) for a period of at 

least ninety (90) days immediately 

preceding the sale of such securities and 

that has filed all reports required to be 

filed thereunder with the SEC during 

the preceding twelve (12) months. 

(c) The aggregate amount of Securities 

of an issue purchased, pursuant to this 

exemption, by the Asset Manager with: 

(i) The assets of all Client Plans; and (ii) 

The assets, calculated on a pro-rata 

basis, of all Client Plans and In-House 

Plans investing in Pooled Funds 

managed by the Asset Manager; and (iii) 

The assets of plans to which the Asset 

Manager renders investment advice 

within the meaning of 29 CFR 2510.3– 

21(c) does not exceed: 

(1) Ten percent (10%) of the total 

amount of the Securities being offered 

in an issue, if such Securities are equity 

securities; 

(2) Thirty-five percent (35%) of the 

total amount of the Securities being 

offered in an issue, if such Securities are 

debt securities rated in one of the four 

highest rating categories by at least one 

of the Rating Organizations, provided 

that none of the Rating Organizations 

rates such Securities in a category lower 

than the fourth highest rating category; 

or 

(3) Twenty-five percent (25%) of the 

total amount of the Securities being 

offered in an issue, if such Securities are 

debt securities rated in the fifth or sixth 

highest rating categories by at least one 

of the Rating Organizations; provided 

that none of the Rating Organizations 

rates such Securities in a category lower 

than the sixth highest rating category; 

and 

(4) The assets of any single Client 

Plan (and the assets of any Client Plans 

and any In-House Plans investing in 

Pooled Funds) may not be used to 

purchase any Securities being offered, if 

such Securities are debt securities rated 

lower than the sixth highest rating 

category by any of the Rating 

Organizations; 

(5) Notwithstanding the percentage of 

Securities of an issue permitted to be 

acquired, as set forth in Section II(c)(1), 

(2), and (3), above, of this exemption, 

the amount of Securities in any issue 

(whether equity or debt securities) 

purchased, pursuant to this exemption, 

by the Asset Manager on behalf of any 

single Client Plan, either individually or 

through investment, calculated on a prorata basis, in a Pooled Fund may not 

exceed three percent (3%) of the total 

amount of such Securities being offered 

in such issue, and; 

(6) If purchased in an Eligible Rule 

144A Offering, the total amount of the 

Securities being offered for purposes of 

determining the percentages, described, 

above, in Section II(c)(1)–(3) and (5), is 

the total of: 

(i) The principal amount of the 

offering of such class of Securities sold 

by underwriters or members of the 

selling syndicate to ‘‘qualified 

institutional buyers’’ (QIBs), as defined 

in SEC Rule 144A (17 CFR 

230.144A(a)(1)); plus 

(ii) The principal amount of the 

offering of such class of Securities in 

any concurrent public offering. 

(d) The aggregate amount to be paid 

by any single Client Plan in purchasing 

any Securities which are the subject of 

this exemption, including any amounts 

paid by any Client Plan or In-House 

Plan in purchasing such Securities 

through a Pooled Fund, calculated on a 

pro-rata basis, does not exceed three 

percent (3%) of the fair market value of 

the net assets of such Client Plan or InHouse Plan, as of the last day of the 

most recent fiscal quarter of such Client 

Plan or In-House Plan prior to such 

transaction. 

(e) The covered transactions are not 

part of an agreement, arrangement, or 

understanding designed to benefit the 

Asset Manager or its affiliate. 


emcdonald on DSK2BSOYB1PROD with NOTICES
12302 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

(f) The Affiliated Broker-Dealer does 

not receive, either directly, indirectly, or 

through designation, any selling 

concession, or other compensation or 

consideration that is based upon the 

amount of Securities purchased by any 

single Client Plan, or that is based on 

the amount of Securities purchased by 

Client Plans or In-House Plans through 

Pooled Funds, pursuant to this 

exemption. In this regard, the Affiliated 

Broker-Dealer may not receive, either 

directly or indirectly, any compensation 

or consideration that is attributable to 

the fixed designations generated by 

purchases of the Securities by the Asset 

Manager on behalf of any single Client 

Plan or any Client Plan or In-House Plan 

in Pooled Funds. 

(g)(1) The amount the Affiliated 

Broker-Dealer receives in management, 

underwriting, or other compensation or 

consideration is not increased through 

an agreement, arrangement, or 

understanding for the purpose of 

compensating the Affiliated BrokerDealer for foregoing any selling 

concessions for those Securities sold 

pursuant to this exemption. Except as 

described above, nothing in this Section 

II(g)(1) shall be construed as precluding 

the Affiliated Broker-Dealer from 

receiving management fees for serving 

as manager of the underwriting or 

selling syndicate, underwriting fees for 

assuming the responsibilities of an 

underwriter in the underwriting or 

selling syndicate, or other compensation 

or consideration that is not based upon 

the amount of Securities purchased by 

the Asset Manager on behalf of any 

single Client Plan, or on behalf of any 

Client Plan or In-House Plan 

participating in Pooled Funds, pursuant 

to this exemption; and 

(2) The Affiliated Broker-Dealer shall 

provide to the Asset Manager a written 

certification, dated and signed by an 

officer of the Affiliated Broker-Dealer, 

stating the amount that the Affiliated 

Broker-Dealer received in compensation 

or consideration during the past quarter, 

in connection with any offerings 

covered by this exemption, was not 

adjusted in a manner inconsistent with 

Section II(e), (f), or (g) of this exemption. 

(h) The covered transactions are 

performed under a written authorization 

executed in advance by an independent 

fiduciary of each single Client Plan (the 

Independent Fiduciary), as defined, 

below, in Section III(h). 

(i) Prior to the execution by an 

Independent Fiduciary of a single Client 

Plan of the written authorization 

described, above, in Section II(h), the 

following information and materials 

(which may be provided electronically) 

must be provided by the Asset Manager 

to such Independent Fiduciary: 

(1) A copy of the Notice of Proposed 

Exemption (the Notice) and a copy of 

the final exemption (the Grant) as 

published in the Federal Register, 

provided that the Notice and the Grant 

are supplied simultaneously; and 

(2) Any other reasonably available 

information regarding the covered 

transactions that such Independent 

Fiduciary requests the Asset Manager to 

provide. 

(j) Subsequent to the initial 

authorization by an Independent 

Fiduciary of a single Client Plan 

permitting the Asset Manager to engage 

in the covered transactions on behalf of 

such single Client Plan, the Asset 

Manager will continue to be subject to 

the requirement to provide within a 

reasonable period of time any 

reasonably available information 

regarding the covered transactions that 

the Independent Fiduciary requests the 

Asset Manager to provide. 

(k)(1) In the case of an existing 

employee benefit plan investor (or 

existing In-House Plan investor, as the 

case may be) in a Pooled Fund, such 

Pooled Fund may not engage in any 

covered transactions pursuant to this 

exemption, unless the Asset Manager 

provides the written information, as 

described, below, and within the time 

period described, below, in this Section 

II(k)(2), to the Independent Fiduciary of 

each such plan participating in such 

Pooled Fund (and to the fiduciary of 

each such In-House Plan participating 

in such Pooled Fund). 

(2) The following information and 

materials (which may be provided 

electronically) shall be provided by the 

Asset Manager not less than 45 days 

prior to such Asset Manager engaging in 

the covered transactions on behalf of a 

Pooled Fund, pursuant to this 

exemption, and provided further that 

the information described below, in this 

Section II(k)(2)(i) and (iii) is supplied 

simultaneously: 

(i) A notice of the intent of such 

Pooled Fund to purchase Securities 

pursuant to this exemption, a copy of 

the Notice, and a copy of the Grant, as 

published in the Federal Register; 

(ii) Any other reasonably available 

information regarding the covered 

transactions that the Independent 

Fiduciary of a plan (or fiduciary of an 

In-House Plan) participating in a Pooled 

Fund requests the Asset Manager to 

provide; and 

(iii) A termination form expressly 

providing an election for the 

Independent Fiduciary of a plan (or 

fiduciary of an In-House Plan) 

participating in a Pooled Fund to 

terminate such plan’s (or In-House 

Plan’s) investment in such Pooled Fund 

without penalty to such plan (or InHouse Plan). Such form shall include 

instructions specifying how to use the 

form. Specifically, the instructions will 

explain that such plan (or such InHouse Plan) has an opportunity to 

withdraw its assets from a Pooled Fund 

for a period of no more than 30 days 

after such plan’s (or such In-House 

Plan’s) receipt of the initial notice of 

intent, described, above, in Section 

II(k)(2)(i), and that the failure of the 

Independent Fiduciary of such plan (or 

fiduciary of such In-House Plan) to 

return the termination form to the Asset 

Manager in the case of a plan (or InHouse Plan) participating in a Pooled 

Fund by the specified date shall be 

deemed to be an approval by such plan 

(or such In-House Plan) of its 

participation in the covered transactions 

as an investor in such Pooled Fund. 

Further, the instructions will identify 

the Asset Manager and the Affiliated 

Broker-Dealer and will provide the 

address of the Asset Manager. The 

instructions will state that this 

exemption may be unavailable, unless 

the fiduciary of each plan participating 

in the covered transactions as an 

investor in a Pooled Fund is, in fact, 

independent of the Asset Manager and 

the Affiliated Broker-Dealer. The 

instructions will also state that the 

fiduciary of each such plan must advise 

the Asset Manager, in writing, if it is not 

an ‘‘Independent Fiduciary,’’ as that 

term is defined, below, in Section III(h). 

For purposes of this Section II(k), the 

requirement that the fiduciary 

responsible for the decision to authorize 

the transactions described, above, in 

Section I of this exemption for each plan 

be independent of the Asset Manager 

shall not apply in the case of an InHouse Plan. 

(l)(1) In the case of each plan (and in 

the case of each In-House Plan) whose 

assets are proposed to be invested in a 

Pooled Fund after such Pooled Fund has 

satisfied the conditions set forth in this 

exemption to engage in the covered 

transactions, the investment by such 

plan (or by such In-House Plan) in the 

Pooled Fund is subject to the prior 

written authorization of an Independent 

Fiduciary representing such plan (or the 

prior written authorization by the 

fiduciary of such In-House Plan, as the 

case may be), following the receipt by 

such Independent Fiduciary of such 

plan (or by the fiduciary of such InHouse Plan, as the case may be) of the 

written information described, above, in 

Section II(k)(2)(i) and (ii), provided that 

the Notice and the Grant, described 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12303 

above in Section II(k)(2)(i), are provided 

simultaneously. 

(2) For purposes of this Section II(l), 

the requirement that the fiduciary 

responsible for the decision to authorize 

the transactions described, above, in 

Section I of this exemption for each plan 

proposing to invest in a Pooled Fund be 

independent of the Asset Manager and 

its affiliates shall not apply in the case 

of an In-House Plan. 

(m) Subsequent to the initial 

authorization by an Independent 

Fiduciary of a plan (or by a fiduciary of 

an In-House Plan) to invest in a Pooled 

Fund that engages in the covered 

transactions, the Asset Manager will 

continue to be subject to the 

requirement to provide within a 

reasonable period of time any 

reasonably available information 

regarding the covered transactions that 

the Independent Fiduciary of such plan 

(or the fiduciary of such In-House Plan, 

as the case may be) requests the Asset 

Manager to provide. 

(n) At least once every three months, 

and not later than 45 days following the 

period to which such information 

relates, the Asset Manager shall furnish: 

(1) In the case of each single Client 

Plan that engages in the covered 

transactions, the information described, 

below, in this Section II(n)(3)–(7), to the 

Independent Fiduciary of each such 

single Client Plan. 

(2) In the case of each Pooled Fund in 

which a Client Plan (or in which an InHouse Plan) invests, the information 

described, below, in this Section 

II(n)(3)–(6) and (8), to the Independent 

Fiduciary of each such Client Plan (and 

to the fiduciary of each such In-House 

Plan) invested in such Pooled Fund. 

(3) A quarterly report (the Quarterly 

Report) (which may be provided 

electronically) which discloses all the 

Securities purchased pursuant to this 

exemption during the period to which 

such report relates on behalf of the 

Client Plan, In-House Plan, or Pooled 

Fund to which such report relates, and 

which discloses the terms of each of the 

transactions described in such report, 

including: 

(i) The type of Securities (including 

the rating of any Securities which are 

debt securities) involved in each 

transaction; 

(ii) The price at which the Securities 

were purchased in each transaction; 

(iii) The first day on which any sale 

was made during the offering of the 

Securities; 

(iv) The size of the issue of the 

Securities involved in each transaction; 

(v) The number of Securities 

purchased by the Asset Manager for the 

Client Plan, In-House Plan, or Pooled 

Fund to which the transaction relates; 

(vi) The identity of the underwriter 

from whom the Securities were 

purchased for each transaction; 

(vii) The underwriting spread in each 

transaction (i.e., the difference, between 

the price at which the underwriter 

purchases the Securities from the issuer 

and the price at which the Securities are 

sold to the public); 

(viii) The price at which any of the 

Securities purchased during the period 

to which such report relates were sold; 

and 

(ix) The market value at the end of the 

period to which such report relates of 

the Securities purchased during such 

period and not sold; 

(4) The Quarterly Report contains: 

(i) A representation that the Asset 

Manager has received a written 

certification signed by an officer of the 

Affiliated Broker-Dealer, as described, 

above, in Section II(g)(2), affirming that, 

as to each AUT covered by this 

exemption during the past quarter, the 

Affiliated Broker-Dealer acted in 

compliance with Section II(e), (f), and 

(g) of this exemption, and 

(ii) A representation that copies of 

such certifications will be provided 

upon request; 

(5) A disclosure in the Quarterly 

Report that states that any other 

reasonably available information 

regarding a covered transaction that an 

Independent Fiduciary (or fiduciary of 

an In-House Plan) requests will be 

provided, including, but not limited to: 

(i) The date on which the Securities 

were purchased on behalf of the Client 

Plan (or the In-House Plan) to which the 

disclosure relates (including Securities 

purchased by Pooled Funds in which 

such Client Plan (or such In-House Plan) 

invests); 

(ii) The percentage of the offering 

purchased on behalf of all Client Plans 

(and the pro-rata percentage purchased 

on behalf of Client Plans and In-House 

Plans investing in Pooled Funds); and 

(iii) The identity of all members of the 

underwriting syndicate; 

(6) The Quarterly Report discloses any 

instance during the past quarter where 

the Asset Manager was precluded for 

any period of time from selling 

Securities purchased under this 

exemption in that quarter because of its 

status as an affiliate of an Affiliated 

Broker-Dealer and the reason for this 

restriction; 

(7) Explicit notification, prominently 

displayed in each Quarterly Report sent 

to the Independent Fiduciary of each 

single Client Plan that engages in the 

covered transactions that the 

authorization to engage in such covered 

transactions may be terminated, without 

penalty to such single Client Plan, 

within five (5) days after the date that 

the Independent Fiduciary of such 

single Client Plan informs the person 

identified in such notification that the 

authorization to engage in the covered 

transactions is terminated; and 

(8) Explicit notification, prominently 

displayed in each Quarterly Report sent 

to the Independent Fiduciary of each 

Client Plan (and to the fiduciary of each 

In-House Plan) that engages in the 

covered transactions through a Pooled 

Fund that the investment in such 

Pooled Fund may be terminated, 

without penalty to such Client Plan (or 

such In-House Plan), within such time 

as may be necessary to effect the 

withdrawal in an orderly manner that is 

equitable to all withdrawing plans and 

to the non-withdrawing plans, after the 

date that that the Independent Fiduciary 

of such Client Plan (or the fiduciary of 

such In-House Plan, as the case may be) 

informs the person identified in such 

notification that the investment in such 

Pooled Fund is terminated. 

(o) For purposes of engaging in 

covered transactions, each Client Plan 

(and each In-House Plan) shall have 

total net assets with a value of at least 

$50 million (the $50 Million Net Asset 

Requirement). For purposes of engaging 

in covered transactions involving an 

Eligible Rule 144A Offering, each Client 

Plan (and each In-House Plan) shall 

have total net assets of at least $100 

million in securities of issuers that are 

not affiliated with such Client Plan (or 

such In-House Plan, as the case may be) 

(the $100 Million Net Asset 

Requirement). 

For purposes of a Pooled Fund 

engaging in covered transactions, each 

Client Plan (and each In-House Plan) in 

such Pooled Fund shall have total net 

assets with a value of at least $50 

million. Notwithstanding the foregoing, 

if each such Client Plan (and each such 

In-House Plan) in such Pooled Fund 

does not have total net assets with a 

value of at least $50 million, the $50 

Million Net Asset Requirement will be 

met if 50 percent (50%) or more of the 

units of beneficial interest in such 

Pooled Fund are held by Client Plans (or 

by In-House Plans) each of which has 

total net assets with a value of at least 

$50 million. For purposes of a Pooled 

Fund engaging in covered transactions 

involving an Eligible Rule 144A 

Offering, each Client Plan (and each InHouse Plan) in such Pooled Fund shall 

have total net assets of at least $100 

million in securities of issuers that are 

not affiliated with such Client Plan (or 

such In-House Plan, as the case may be). 

Notwithstanding the foregoing, if each 


emcdonald on DSK2BSOYB1PROD with NOTICES
12304 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

such Client Plan (and each such InHouse Plan) in such Pooled Fund does 

not have total net assets of at least $100 

million in securities of issuers that are 

not affiliated with such Client Plan (or 

In-House Plan, as the case may be), the 

$100 Million Net Asset Requirement 

will be met if 50 percent (50%) or more 

of the units of beneficial interest in such 

Pooled Fund are held by Client Plans (or 

by In-House Plans) each of which have 

total net assets of at least $100 million 

in securities of issuers that are not 

affiliated with such Client Plan (or such 

In-House Plan, as the case may be), and 

the Pooled Fund itself qualifies as a 

QIB, as determined pursuant to SEC 

Rule 144A (17 CFR 

230.144A(a)(1)(i)(F)). 

For purposes of the net asset 

requirements described above, in this 

Section II(o), where a group of Client 

Plans is maintained by a single 

employer or controlled group of 

employers, as defined in section 

407(d)(7) of the Act, the $50 Million Net 

Asset Requirement (or in the case of an 

Eligible Rule 144A Offering, the $100 

Million Net Asset Requirement) may be 

met by aggregating the assets of such 

Client Plans, if the assets of such Client 

Plans are pooled for investment 

purposes in a single master trust. 

(p) The Asset Manager qualifies as a 

‘‘qualified professional asset manager’’ 

(QPAM), as that term is defined under 

Part V(a) of PTE 84–14. Further, the 

Asset Manager, which qualifies as a 

QPAM, must also have total client assets 

under its management and control in 

excess of $5 billion, as of the last day 

of its most recent fiscal year and 

shareholders’ or partners’ equity in 

excess of $1 million. 

(q) No more than 20 percent of the 

assets of a Pooled Fund at the time of 

a covered transaction are comprised of 

assets of In-House Plans for which the 

Asset Manager or the Affiliated BrokerDealer exercises investment discretion. 

(r) The Asset Manager and the 

Affiliated Broker-Dealer, as applicable, 

maintain, or cause to be maintained, for 

a period of six (6) years from the date 

of any covered transaction such records 

as are necessary to enable the persons, 

described, below, in Section II(s), 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 covered 

transactions, other than the Asset 

Manager and the Affiliated BrokerDealer, 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 Section II(s); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of the Asset 

Manager, or the Affiliated BrokerDealer, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period. 

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

Section II(s)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to above, in Section II(r), are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(i) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the SEC; or 

(ii) Any fiduciary of any plan that 

engages in the covered transactions, or 

any duly authorized employee or 

representative of such fiduciary; or 

(iii) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a plan that engages in the 

covered transactions, or any authorized 

employee or representative of these 

entities; or 

(iv) Any participant or beneficiary of 

a plan that engages in the covered 

transactions, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(2) None of the persons described 

above, in Section II(s)(1)(ii)–(iv), shall 

be authorized to examine trade secrets 

of the Asset Manager, or the Affiliated 

Broker-Dealer, or commercial or 

financial information which is 

privileged or confidential; and 

(3) Should the Asset Manager or the 

Affiliated Broker-Dealer refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, pursuant to Section II(s)(2) 

above, the Asset Manager shall, by the 

close of the thirtieth (30th) day 

following the request, provide a written 

notice advising that person of the 

reasons for the refusal and that the 

Department may request such 

information. 

Section III—Definitions 

(a) The term, ‘‘the Applicant,’’ means 

Columbia Management Advisors, LLC. 

(b) The term, ‘‘Affiliated BrokerDealer,’’ means any broker-dealer 

affiliate, as ‘‘affiliate’’ is defined, below, 

in Section III(c), of the Applicant, as 

‘‘Applicant’’ is defined, above, in 

Section III(a), that meets the 

requirements of this exemption. Such 

Affiliated Broker-Dealer may participate 

in an underwriting or selling syndicate 

as a manager or member. The term, 

‘‘manager,’’ with respect to a syndicate, 

means any member of an underwriting 

or selling syndicate who, either alone or 

together with other members of the 

syndicate, is authorized to act on behalf 

of the members of the syndicate in 

connection with the sale and 

distribution of the Securities, as defined 

below, in Section III(i), being offered or 

who receives compensation from the 

members of the syndicate for its services 

as a manager of the syndicate. 

(c) The term ‘‘affiliate’’ of a person 

includes: 

(1) Any person directly or indirectly 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with such person; 

(2) Any officer, director, partner, 

employee, or relative, as defined in 

section 3(15) of the Act, of such person; 

and 

(3) Any corporation or partnership of 

which such person is an officer, 

director, partner, or employee. 

For purposes of this exemption, the 

definition of ‘‘affiliate’’ shall include any 

entity that satisfies such definition in 

the future. 

(d) The term ‘‘Asset Manager’’ means 

Columbia or an affiliate of Columbia as 

defined above in Section III(c), which 

entity acts as the fiduciary with respect 

to Client Plan(s), as defined in Section 

III(f), below, or Pooled Fund(s), as 

defined in Section III(g), below. 

(e) The term, ‘‘control,’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual. 

(f) The term, ‘‘Client Plan(s),’’ means 

an employee benefit plan(s) that is 

subject to the Act and/or the Code, and 

for which plan(s) an Asset Manager 

exercises discretionary authority or 

discretionary control respecting 

management or disposition of some or 

all of the assets of such plan(s), but 

excludes In-House Plans, as defined, 

below, in Section III(m). 

(g) The term, ‘‘Pooled Fund(s),’’ means 

a common or collective trust fund(s) or 

a pooled investment fund(s): 

(1) In which employee benefit plan(s) 

subject to the Act and/or Code invest, 

(2) Which is maintained by an Asset 

Manager, and 

(3) For which such Asset Manager 

exercises discretionary authority or 

discretionary control respecting the 

management or disposition of the assets 

of such fund(s). 

(h)(1) The term, ‘‘Independent 

Fiduciary,’’ means a fiduciary of a plan 

who is unrelated to, and independent of 

the Asset Manager and the Affiliated 

Broker-Dealer. For purposes of this 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12305 

exemption, a fiduciary of a plan will be 

deemed to be unrelated to, and 

independent of the Asset Manager and 

the Affiliated Broker-Dealer, if such 

fiduciary represents in writing that 

neither such fiduciary, nor any 

individual responsible for the decision 

to authorize or terminate authorization 

for the transactions described above, in 

Section I of this exemption, is an officer, 

director, or highly compensated 

employee (within the meaning of Code 

section 4975(e)(2)(H)) of the Asset 

Manager and the Affiliated BrokerDealer, and represents that such 

fiduciary shall advise the Asset Manager 

within a reasonable period of time after 

any change in such facts occur. 

(2) Notwithstanding anything to the 

contrary in this Section III(h), a 

fiduciary of a plan is not independent: 

(i) If such fiduciary directly or 

indirectly controls, is controlled by, or 

is under common control with the Asset 

Manager or the Affiliated Broker Dealer; 

(ii) If such fiduciary directly or 

indirectly receives any compensation or 

other consideration from the Asset 

Manager, or the Affiliated Broker-Dealer 

for his or her own personal account in 

connection with any transaction 

described in this exemption; 

(iii) If any officer, director, or highly 

compensated employee (within the 

meaning of Code section 4975(e)(2)(H)) 

of the Asset Manager responsible for the 

transactions described above, in Section 

I of this exemption, is an officer, 

director, or highly compensated 

employee (within the meaning of Code 

section 4975(e)(2)(H)) of the sponsor of 

the plan or of the fiduciary responsible 

for the decision to authorize or 

terminate authorization for the 

transactions described above, in Section 

I. However, if such individual is a 

director of the sponsor of the plan or of 

the responsible fiduciary, and if he or 

she abstains from participation in: (A) 

The choice of the plan’s investment 

manager/adviser; and (B) the decision to 

authorize or terminate authorization for 

transactions described above, in Section 

I, then this Section III(h)(2)(iii) shall not 

apply. 

(3) 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 

Columbia or any affiliate thereof. 

(i) The term, ‘‘Securities,’’ shall have 

the same meaning as defined in section 

2(36) of the Investment Company Act of 

1940 (the 1940 Act), as amended (15 

U.S.C. 80a–2(36)(2001)). For purposes of 

this exemption, mortgage-backed or 

other asset-backed securities rated by 

one of the Rating Organizations, as 

defined, below, in Section III(l), will be 

treated as debt securities. 

(j) The term, ‘‘Eligible Rule 144A 

Offering,’’ shall have the same meaning 

as defined in SEC Rule 10f–3(a)(4) (17 

CFR 270.10f–3(a)(4)) under the 1940 

Act). 

(k) The term, ‘‘qualified institutional 

buyer,’’ or the term, ‘‘QIB,’’ shall have 

the same meaning as defined in SEC 

Rule 144A (17 CFR 230.144A(a)(1)) 

under the 1933 Act. 

(l) The term, ‘‘Rating Organizations,’’ 

means Standard & Poor’s Rating 

Services, Moody’s Investors Service, 

Inc., Fitch Ratings, Inc., Dominion Bond 

Rating Service Limited, and Dominion 

Bond Rating Service, Inc., or any 

successors thereto. 

(m) The term, ‘‘In-House Plan(s),’’ 

means an employee benefit plan(s) that 

is subject to the Act and/or the Code, 

and that is sponsored by the Applicant 

as defined, above, in Section III(a), or its 

affiliate, as defined in Section III(c), for 

its own employees. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on 

December 22, 2009 at 74 FR 68110. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Gary H. Lefkowitz of the Department, 

telephone (202) 693–8546. (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 9th day of 

March 2010. 

Ivan Strasfel, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2010–5535 Filed 3–12–10; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Application Nos. and Proposed 

Exemptions; D–11500, Carle 

Foundation Hospital & Affiliates 

Pension Plan; and Barclays California 

Corporation (Barcal); et al. 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemptions. 

SUMMARY: This document contains 

notices of pendency before the 

Department of Labor (the Department) of 

proposed exemptions from certain of the 

prohibited transaction restrictions of the 

Employee Retirement Income Security 

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

the Internal Revenue Code of 1986 (the 

Code). 

Written Comments and Hearing 

Requests 

All interested persons are invited to 

submit written comments or requests for 

a hearing on the pending exemptions, 

unless otherwise stated in the Notice of 

Proposed Exemption, within 45 days 

from the date of publication of this 

Federal Register Notice. Comments and 

requests for a hearing should state: (1) 

The name, address, and telephone 

number of the person making the 

comment or request, and (2) the nature 

of the person’s interest in the exemption 

and the manner in which the person 

would be adversely affected by the 

exemption. A request for a hearing must 

also state the issues to be addressed and 

include a general description of the 

evidence to be presented at the hearing. 

ADDRESSES: All written comments and 

requests for a hearing (at least three 

copies) should be sent to the Employee 

Benefits Security Administration 


emcdonald on DSK2BSOYB1PROD with NOTICES