Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Notices 42839

1For purposes of this exemption, the term ‘‘full

investment responsibility’’ means that the fiduciary

responsible for making the investment decision has

and exercises discretionary management authority

over all of the assets of the group trust or other plan

assets entity.

protective of the rights of participants

and beneficiaries of the plan;

(3) The proposed exemptions, if

granted, will be supplemental to, and

not in derogation of, any other

provisions of the Act and/or the Code,

including statutory or administrative

exemptions and transitional rules.

Furthermore, the fact that a transaction

is subject to an administrative or

statutory exemption is not dispositive of

whether the transaction is in fact a

prohibited transaction; and

(4) The proposed exemptions, if

granted, will be subject to the express

condition that the material facts and

representations contained in each

application are true and complete and

accurately describe all material terms of

the transaction which is the subject of

the exemption. In the case of continuing

exemption transactions, if any of the

material facts or representations

described in the application change

after the exemption is granted, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, application for a new

exemption may be made to the

Department.

Signed at Washington, DC, this 5th day of

August, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

Department of Labor.

[FR Doc. 97–21004 Filed 8–7–97; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Prohibited Transaction Exemption 97–42,

et al.; Exemption Application No. D–10314,

et al.]

Grant of Individual Exemptions; TA

Associates, Inc. (TA Associates), et al.

AGENCY: Pension and Welfare Benefits

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 (the Act) and/or

the Internal Revenue Code of 1986 (the

Code).

Notices were published in the Federal

Register of the pendency before the

Department of proposals to grant such

exemptions. The notices set forth a

summary of facts and representations

contained in each application for

exemption and referred interested

persons to the respective applications

for a complete statement of the facts and

representations. The applications have

been available for public inspection at

the Department in Washington, D.C. The

notices also invited interested persons

to submit comments on the requested

exemptions to the Department. In

addition the notices stated that any

interested person might submit a

written request that a public hearing be

held (where appropriate). The

applicants have represented that they

have complied with the requirements of

the notification to interested persons.

No public comments and no requests for

a hearing, unless otherwise stated, were

received by the Department.

The notices of proposed exemption

were issued and the exemptions are

being granted solely by the Department

because, effective December 31, 1978,

section 102 of Reorganization Plan No.

4 of 1978 (43 FR 47713, October 17,

1978) 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 exemptions are

administratively feasible;

(b) They are in the interests of the

plans and their participants and

beneficiaries; and

(c) They are protective of the rights of

the participants and beneficiaries of the

plans.

TA Associates, Inc. (TA Associates) Located

in Boston, MA

[Prohibited Transaction Exemption 97–42;

Exemption Application No. D–10314]

Exemption

The restrictions of section 406(a) of

the Act and the sanctions resulting from

the application of section 4975 of the

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

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

effective December 29, 1993, to the

making, by an employee benefit plan

(the Plan), of capital contributions to

any venture capital fund (the TA Fund)

that is organized, sponsored and/or

managed by TA Associates and/or any

of its affiliates (collectively, TA)

pursuant to a contractual obligation by

a Plan having an interest in the TA

Fund.

This exemption is subject to the

following conditions:

(a) At the time the Plan undertakes

the obligation to make such capital

contributions (the Determination Date),

the TA Fund is not a party in interest

with respect to the Plan.

(b) The decision to make a capital

contribution to a TA Fund is made on

behalf of the Plan by a Plan fiduciary

which is independent of and unrelated

to TA and the portfolio company whose

interest is acquired by the TA Fund.

(c) TA does not otherwise provide

investment advice to the Plan within the

meaning of Regulation section 29 CFR

2510.3–21(c) with respect to such Plan’s

assets that are invested in the TA Fund.

(d) At the Determination Date, the

Plan has aggregate assets that are in

excess of $50 million; provided

however, that in the case of—

(1) Two or more Plans which are not

maintained by the same employer,

controlled group of corporations or

employee organization (the Unrelated

Plans), whose assets are invested in a

TA Fund through a group trust, an

insurance company pooled separate

account or any other form of entity the

assets of which are ‘‘plan assets’’ under

29 CFR 2510.3–101 (the Plan Asset

Regulation), the foregoing $50 million

requirement shall in any event be

satisfied if such trust, separate account

or other entity has aggregate assets

which are in excess of $50 million,

provided further that the fiduciary

responsible for making the investment

decision on behalf of such group trust,

insurance company pooled separate

account or other entity has—

(i) Full investment responsibility 1

with respect to the plan assets invested

therein; and

(ii) Total assets under its management

and control, exclusive of the assets

invested in the TA Fund, which are in

excess of $100 million, for TA Funds

established after the date this grant

notice is published in the Federal

Register.

(2) Two or more Plans which are

maintained by the same employer,

controlled group of corporations or

employee organization (the Related

Plans), whose assets are invested in a

TA Fund through a master trust or any

other entity the assets of which are

‘‘plan assets’’ under the Plan Asset

Regulation, the $50 million requirement

shall in any event be satisfied if such

trust or other entity has aggregate assets

which are in excess of $50 million,

provided, further, that, in the case of a
42840 Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Notices

TA Fund established after the date this

grant notice is published in the Federal

Register, in addition to the $50 million

requirement, if the fiduciary responsible

for making the investment decision on

behalf of such master trust or other

entity is not the employer or an affiliate

of the employer, then such fiduciary has

total assets under its management and

control, exclusive of the assets invested

in the TA Fund, which are in excess of

$100 million.

(e) Subsequent to the Determination

Date, the TA Fund is a party in interest

with respect to the Plan solely by reason

of a relationship to a portfolio company

which is a service provider to a Plan, as

described in section 3(14) (H) or (I) of

the Act, including a fiduciary with

respect to such Plan.

(f) At the Determination Date, the

capital commitment of the Plan

(together with the capital commitments

of any other Plans maintained by the

same employer, controlled group of

corporations or employee organization)

with respect to the TA Fund, does not

exceed 15 percent of the total capital

commitments with respect to such TA

Fund.

(g) At the Determination Date, the

percentage of the Plan’s assets

committed to be invested in the TA

Fund does not exceed 5 percent of the

Plan’s total assets.

(h) At the Determination Date, a

Plan’s aggregate capital commitment to

all TA Funds does not exceed 25

percent of the Plan’s total assets.

(i) The Plan receives the following

initial and ongoing disclosures with

respect to the TA Fund:

(1) A copy of the private placement

memorandum applicable to the TA

Fund or another comparable document

containing substantially the same

information;

(2) A copy of the limited partnership

or other agreement establishing the TA

Fund;

(3) A copy of the subscription

agreement applicable to the TA Fund, if

any;

(4) Copies of the proposed exemption

and grant notice related to the

exemptive relief described herein; and

(5) Periodic, but no less frequently

than annually, reports relating to the

overall financial position and

operational results of the TA Fund

including copies of the TA Fund’s

annual financial statements.

(j) With respect to capital

contributions made to a TA Fund by a

Plan after the date of issuance of the

final exemption, TA maintains or causes

to be maintained for a period of six

years from the date of the transaction

the records necessary to enable the

persons described in paragraph (k) to

determine whether the conditions of

this exemption have been met, except

that—

(1) A prohibited transaction will not

be considered to have occurred, if due

to circumstances beyond the control of

TA, the records are lost or destroyed

prior to the end of the six year period;

and

(2) No party in interest, other than

TA, shall be subject to the civil penalty

that may be assessed under section

502(i) of the Act, or to the taxes imposed

by section 4975 (a) and (b) of the Code,

if the records are not maintained, or are

not available for examination as

required by paragraph (k).

(k)(1) Except as provided in paragraph

(k)(2) and notwithstanding any

provisions of subsection (a)(2) and (b) of

section 504 of the Act, the records

referred to in paragraph (j) are

unconditionally available at their

customary location for examination

during normal business hours by—

(A) Any duly authorized employee or

representative of the Department or the

Internal Revenue Service;

(B) Any fiduciary of a Plan which has

an interest in the TA Fund and has the

authority to acquire or dispose of the

interest of the Plan in the TA Fund, or

any duly authorized employee or

representative of such fiduciary; and

(C) Any participant or beneficiary of

any Plan which has an interest in the

TA Fund or duly authorized

representative of such participant or

beneficiary.

(2) None of the persons described in

paragraph (k)(1)(B) and (k)(1)(C) shall be

authorized to examine trade secrets of

TA or commercial or financial

information which is privileged or

confidential.

EFFECTIVE DATE: This exemption is

effective as of December 29, 1993.

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 (the Notice)

published on March 5, 1997 at 62 FR

10075.

Written Comments

The Department received one written

comment with respect to the Notice.

The comment, which was submitted by

the applicant, requested modifications

to the conditional language (the

Conditions) and the Summary of Facts

and Representations (the Summary) of

the Notice in the following areas:

1. Condition (d). Condition (d) of the

Notice establishes a $50 million

threshold for Plans that are or will be

covered by the exemption. Specifically,

there is a sentence in Condition (d)

which provides that the $50 million

threshold will apply to the aggregate

assets of a group trust or a master trust

which invests in a TA Fund. TA

requests that this concept also be

applied to investments in a TA Fund by

insurance company pooled separate

accounts, large collective investment

funds which are organized as

partnerships, or other tax pass-through

entities, provided the assets of these

entities are deemed to be plan assets

under the Plan Asset Regulation. Under

these circumstances, TA believes that as

long as the investing entity has assets in

excess of $50 million and as long as the

decision to invest in the TA Fund is

made by an independent fiduciary

unrelated to TA, then it is appropriate

to apply the $50 million threshold to the

aggregate assets held by the investing

entity.

Although the Department does not

object to this provision, it wishes to

emphasize its view that a fiduciary

exercising investment discretion over a

pooled investment vehicle that is

invested in a TA Fund should possess

some minimum level of investor

sophistication. Therefore, the

Department is proposing certain

additional requirements for pooled

arrangements involving the assets of

either Unrelated Plans or Related Plans.

These requirements are as follows:

A. Unrelated Plans

For two or more Plans which are not

maintained by the same employer,

controlled group of corporations or

employee organization, whose assets are

invested in a TA Fund through a group

trust, insurance company pooled

separate account or other plan asset

look-through entity, the $50 million

threshold will apply to the aggregate

assets of such entity so long as the

fiduciary responsible for making the

investment decision on behalf of the

group trust, insurance company pooled

separate account or other entity has full

investment responsibility with respect

to plan assets invested therein.

However, in the event the entity holding

the assets of Unrelated Plans is invested

in a TA Fund established after the date

this final exemption is granted, the

fiduciary must, in addition to meeting

the $50 million investment threshold,

have total assets under its management

and control, exclusive of the assets

invested in the TA Fund, which are in

excess of $100 million.

B. Related Plans

With respect to two or more Plans,

which are maintained by the same

employer, controlled group of
Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Notices 42841

corporations or employee organization,

whose assets are invested in a TA Fund

through a master trust or any other form

of plan asset look-through entity, the

Department notes that the $50 million

threshold may be satisfied by

aggregating the assets of the investing

Plans within the pooled vehicle. In this

regard, the Department notes that an

employer may retain an independent

investment manager to manage all or a

portion of Plan assets invested in a

master trust. Under these circumstances,

the Department believes that the

independent investment manager must

satisfy the outside business test for any

TA Fund that is established after the

date this grant notice is published in the

Federal Register. In addition, the

pooled vehicle would still have to meet

the $50 million investment threshold.

Accordingly, Condition (d) has been

amended to read as follows:

(d) At the Determination Date, the Plan has

aggregate assets that are in excess of $50

million; provided however, that in the case

of—

(1) Two or more Plans which are not

maintained by the same employer, controlled

group of corporations or employee

organization (the Unrelated Plans), whose

assets are invested in a TA Fund through a

group trust, an insurance company pooled

separate account or any other form of entity

the assets of which are ‘‘plan assets’’ under

29 CFR 2510.3–101 (the Plan Asset

Regulation), the foregoing $50 million

requirement shall in any event be satisfied if

such trust, separate account or other entity

has aggregate assets which are in excess of

$50 million, provided further that the

fiduciary responsible for making the

investment decision on behalf of such group

trust, insurance company pooled separate

account or other entity has—

(i) Full investment responsibility with

respect to the plan assets invested therein;

and

(ii) Total assets under its management and

control, exclusive of the assets invested in

the TA Fund, which are in excess of $100

million, for TA Funds established after the

date this grant notice is published in the

Federal Register.

(2) Two or more Plans which are

maintained by the same employer, controlled

group of corporations or employee

organization (the Related Plans), whose

assets are invested in a TA Fund through a

master trust or any other entity the assets of

which are ‘‘plan assets’’ under the Plan Asset

Regulation, the $50 million requirement shall

in any event be satisfied if such trust or other

entity has aggregate assets which are in

excess of $50 million, provided, further, that,

in the case of a TA Fund established after the

date this grant notice is published in the

Federal Register, in addition to the $50

million requirement, if the fiduciary

responsible for making the investment

decision on behalf of such master trust or

other entity is not the employer or an affiliate

of the employer, then such fiduciary has total

assets under its management and control,

exclusive of the assets invested in the TA

Fund, which are in excess of $100 million.

2. Condition (k)(1)(B). The applicant

notes that the word ‘‘who’’ in Condition

(k)(1)(B) should be changed to the word

‘‘which.’’ The Department concurs and

has made the requested change.

3. Condition (k)(1)(C). The applicant

requests that Condition (k)(1)(C) be

amended to clarify that a participant or

a beneficiary of a Plan having an interest

‘‘in a TA Fund’’ (or the authorized

representatives of these individuals)

may review records that TA maintains

with respect to the exemption.

Therefore, the Department has agreed to

modify this condition to read as follows:

Any participant or beneficiary of any Plan

which has an interest in the TA Fund or duly

authorized representative of such participant

or beneficiary.

4. Representation 3. Representation 3

of the Summary states that TA’s most

recent venture capital fund is Advent

VII. Although Advent VII was the most

recent TA Fund at the time the

exemption application was filed, TA

states that it subsequently closed a new

TA Fund, TA/Advent VIII, L.P. (Advent

VIII), which as of December 31, 1996,

had aggregate capital commitments of

approximately $800 million from 96

individual and institutional investors.

Of the institutional investors, 17

investors are Plans that are covered by

the Act. As of December 31, 1996, these

Plans had made a total capital

commitment to Advent VIII of

approximately $188 million. In

addition, TA wishes to clarify that it

currently has organized, sponsored and/

or managed 22 venture capital funds

involving total capital commitments of

approximately $2.25 billion. The

Department has noted these

clarifications.

5. Representation 7. To correct an

inadvertent error on its part, TA wishes

to clarify that the fourth line of

Representation 7 of the Summary

should refer to ‘‘a greater than 10

percent interest in a portfolio’’ rather

than a ‘‘100 percent interest.’’ The

Department notes this revision.

6. Representation 8. TA wishes to

clarify that in the sixth line of

Representation 8 of the Summary, the

word ‘‘on’’ should be changed to the

word ‘‘after.’’ Again, the Department

notes this revision.

Thus, after giving full consideration to

the entire record, including the written

comment, the Department has made the

aforementioned changes to the Notice

and has decided to grant the exemption

subject to the clarifications described

above. The comment letter has been

included as part of the public record of

the exemption application. The

complete application file, as well as all

supplemental submissions received by

the Department, is made available for

public inspection in the Public

Documents Room of the Pension and

Welfare Benefits Administration, Room

N–5638, U.S. Department of Labor, 200

Constitution Avenue, N.W.,

Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Ms.

Jan D. Broady of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

First Savings Bank, F.S.B. Profit Sharing and

Employee Stock Ownership Plan (the Plan)

Located in Clovis, New Mexico

[Prohibited Transaction Exemption 97–43

Exemption Application No. D–10409]

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, effective

December 26, 1996 to (1) the acquisition

by the Plan of certain stock rights (the

Rights) pursuant to a stock rights

offering (the Offering) by Access

Anytime Bancorp, Inc. (the Parent),

which is the parent corporation of First

Savings Bank, F.S.B., the sponsor of the

Plan; (2) the holding of the Rights by the

Plan during the subscription period of

the Offering; and (3) the exercise of

certain of the Rights by the Plan;

provided that the following conditions

are met:

(A) The Plan’s acquisition and

holding of the Rights occurred in

connection with the Offering made

available to all shareholders of common

stock of the Parent;

(B) All holders of the common stock

of the Parent were treated in the same

manner with respect to the Offering,

including the Plan;

(C) All decisions regarding the

holding and potential exercise of the

Rights by the Plan were made in

accordance with Plan provisions for

individually-directed investment of

participant accounts by the individual

Plan participants whose accounts in the

Plan received Rights in the Offering; and

(D) With respect to any participants’

accounts in the Plan for which no valid

instructions were timely filed regarding

the Rights during the Offering, such

Rights expired unexercised in the same

manner as unexercised Rights issued to

all other holders of the common stock

of the Parent, since the Rights were not

transferable and could not be sold.
42842 Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Notices

EFFECTIVE DATE: This exemption is

effective as of December 26, 1996.

WRITTEN COMMENTS: The Department no

requests for a hearing and one written

comment with respect to the proposed

exemption. The comment was

submitted by the applicant, the First

Savings Bank, in correction of

information submitted by the applicant

which appeared in the Summary of

Facts and Representations (the

Summary) in the Notice of Proposed

Exemption. The fourth paragraph of the

Summary includes the Employer’s

representation that 5,000 Rights were

exercised by Invested Participants, and

that the remaining 4,798 Rights expired

on the Expiration Date. The applicant

notes that this representation was in

error, reflecting a misunderstanding

about the information that was

requested. The applicant represents that

the actual number of Rights exercised by

Invested Participants was 367.

After consideration of the entire

record, as corrected by the applicant,

the Department has determined to grant

the exemption.

For a more complete statement of the

summary of facts and representations

supporting the Department’s decision to

grant this exemption refer to the Notice

of Proposed Exemption published on

June 4, 1997 at 62 FR 30620.

FOR FURTHER INFORMATION CONTACT:

Ronald Willett of the Department,

telephone (202) 219–8881. (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 exemptions do

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) These exemptions are

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 these

exemptions is subject to the express

condition that the material facts and

representations contained in each

application are true and complete and

accurately describe all material terms of

the transaction which is the subject of

the exemption. In the case of continuing

exemption transactions, if any of the

material facts or representations

described in the application change

after the exemption is granted, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, application for a new

exemption may be made to the

Department.

Signed at Washington, D.C., this 5th day of

August, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

Department of Labor.

[FR Doc. 97–21005 Filed 8–7–97; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

Working Group Studying Soft Dollar

Arrangements and Commission

Recapture: Advisory Council on

Employee Welfare and Pension

Benefits Plans; Notice of Meeting

Pursuant to the authority contained in

Section 512 of the Employee Retirement

Income Security Act of 1974 (ERISA), 29

U.S.C. 1142, a public meeting will be

held September 17 of the Advisory

Council on Employee Welfare and

Pension Benefit Plans Working Group

formed to study Soft Dollar

Arrangements and Commission

Recapture.

The session will take place in Room

N–5437 A&B, U.S. Department of Labor

Building, Second and Constitution

Avenue, NW, Washington, D.C. 20210.

The purpose of the open meeting, which

will run from 9:30 a.m. to

approximately noon, is to conclude the

taking of testimony from members of the

financial community discussing their

views on soft dollar and directed

brokerage practices.

Members of the public are encouraged

to file a written statement pertaining to

any topic concerning ERISA by

submitting 20 copies on or before

September 7, 1997, to Sharon Morrissey,

Executive Secretary, ERISA Advisory

Council, U.S. Department of Labor,

Room N–5677, 200 Constitution

Avenue, NW, Washington, D.C. 20210.

Individuals or representatives of

organizations wishing to address the

Working Group on Soft Dollar

Arrangements and Commission

Recapture should forward their request

to the Executive Secretary or telephone

(202) 219–8753. Oral presentations will

be limited to 10 minutes, but an

extended statement may be submitted

for the record. Individuals with

disabilities, who need special

accommodations, should contact Sharon

Morrissey by September 7, at the

address indicated in this notice.

Organizations or individuals may also

submit statements for the record

without testifying. Twenty (20) copies of

such statements should be sent to the

Executive Secretary of the Advisory

Council at the above address. Papers

will be accepted and included in the

record of the meeting if received on or

before September 7.

Signed at Washington, D.C. this 4th day of

August 1997.

Olena Berg,

Assistant Secretary, Pension and Welfare

Benefits Administration.

[FR Doc. 97–21014 Filed 8–7–97; 8:45 am]

BILLING CODE 4510–29–M

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

99th Full Council Meeting; Advisory

Council on Employee Welfare and

Pension Benefits Plans; Notice of

Meeting

Pursuant to the authority contained in

Section 512 of the Employee Retirement

Income Security Act of 1974 (ERISA), 29

U.S.C. 1142, a public meeting will be

held September 17, 1997 of the

Advisory Council on Employee Welfare

and Pension Benefit Plans.

The session will take place in Room

N–5437 A&B, U.S. Department of Labor

Building, Second and Constitution

Avenue, NW, Washington, D.C. 20210.

The purpose of the open meeting, which

will run from 1:00 p.m. to

approximately 2:30 p.m., is for the

Council’s three Working Group chairs to

update the full Advisory Council on

their committees’ progress in studying

their specific topics for the year. The

progress reports will be made by chairs

of the Working Groups on Employer

Assets in Employer-Sponsored Plans, on

Defined Contribution vs. Defined