Federal Register / Vol. 76, No. 219 / Monday, November 14, 2011 / Notices 70491 

An amended complaint was filed on 

October 14, 2011. The amended 

complaint alleges violations of section 

337 based upon the importation into the 

United States, the sale for importation, 

and the sale within the United States 

after importation of certain electronic 

devices with graphics data processing 

systems, components thereof, and 

associated software by reason of 

infringement of certain claims of U.S. 

Patent No. 5,945,997 (‘‘the ‘997 patent’’); 

U.S. Patent No. 5,581,279 (‘‘the ‘279 

patent’’); U.S. Patent No. 6,353,440 (‘‘the 

‘440 patent’’); and U.S. Patent No. 

5,977,960 (‘‘the ‘960 patent’’). The 

amended complaint further alleges that 

an industry in the United States exists 

as required by subsection (a)(2) of 

section 337. 

The complainants request that the 

Commission institute an investigation 

and, after the investigation, issue an 

exclusion order and a cease and desist 

order. 

ADDRESSES: The amended complaint, 

except for any confidential information 

contained therein, is available for 

inspection during official business 

hours (8:45 a.m. to 5:15 p.m.) in the 

Office of the Secretary, U.S. 

International Trade Commission, 500 E 

Street, SW., Room 112, Washington, DC 

20436, telephone (202) 205–2000. 

Hearing impaired individuals are 

advised that information on this matter 

can be obtained by contacting the 

Commission’s TDD terminal on (202) 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at (202) 205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its Internet server at http:// 

www.usitc.gov. The public record for 

this investigation may be viewed on the 

Commission’s electronic docket (EDIS) 

at http://edis.usitc.gov. 

FOR FURTHER INFORMATION CONTACT: The 

Office of Unfair Import Investigations, 

U.S. International Trade Commission, 

telephone (202) 205–2560. 

Authority: The authority for 

institution of this investigation is 

contained in section 337 of the Tariff 

Act of 1930, as amended, and in section 

210.10 of the Commission’s Rules of 

Practice and Procedure, 19 CFR 210.10 

(2011). 

Scope of Investigation: Having 

considered the amended complaint, the 

U.S. International Trade Commission, 

on November 7, 2011, Ordered that— 

(1) Pursuant to subsection (b) of 

section 337 of the Tariff Act of 1930, as 

amended, an investigation be instituted 

to determine whether there is a 

violation of subsection (a)(1)(B) of 

section 337 in the importation into the 

United States, the sale for importation, 

or the sale within the United States after 

importation of certain electronic devices 

with graphics data processing systems, 

components thereof, and associated 

software that infringe one or more of 

claims 1, 3–5, 9, and 16 of the ‘997 

patent; claims 1, 5, and 9 of the ‘279 

patent; 1–4 and 12–15 of the ‘440 

patent; and claims 1 and 7 of the ‘960 

patent, and whether an industry in the 

United States exists as required by 

subsection (a)(2) of section 337; 

(2) For the purpose of the 

investigation so instituted, the following 

are hereby named as parties upon which 

this notice of investigation shall be 

served: 

(a) The complainants are: 

S3 Graphics Co., Ltd., 2nd Floor, Zephyr 

House, Mary Street, P.O. Box 709, 

Grand Cayman, Grand Cayman 

Islands, British West Indies. 

S3 Graphics, Inc., 940 Mission Court, 

Fremont, CA 94539. 

(b) The respondent is the following 

entity alleged to be in violation of 

section 337, and is the party upon 

which the amended complaint is to be 

served: 

Apple Inc., a/k/a Apple Computer, Inc., 

1 Infinite Loop, Cupertino, CA 

95014. 

(c) The Office of Unfair Import 

Investigations, U.S. International Trade 

Commission, 500 E Street SW., Suite 

401, Washington, DC 20436; and 

(3) For the investigation so instituted, 

the Chief Administrative Law Judge, 

U.S. International Trade Commission, 

shall designate the presiding 

Administrative Law Judge. 

Responses to the amended complaint 

and the notice of investigation must be 

submitted by the named respondent in 

accordance with section 210.13 of the 

Commission’s Rules of Practice and 

Procedure, 19 CFR 210.13. Pursuant to 

19 CFR 201.16(d)–(e) and 210.13(a), 

such responses will be considered by 

the Commission if received not later 

than 20 days after the date of service by 

the Commission of the amended 

complaint and the notice of 

investigation. Extensions of time for 

submitting responses to the amended 

complaint and the notice of 

investigation will not be granted unless 

good cause therefor is shown. 

Failure of the respondent to file a 

timely response to each allegation in the 

amended complaint and in this notice 

may be deemed to constitute a waiver of 

the right to appear and contest the 

allegations of the amended complaint 

and this notice, and to authorize the 

administrative law judge and the 

Commission, without further notice to 

the respondent, to find the facts to be as 

alleged in the amended complaint and 

this notice and to enter an initial 

determination and a final determination 

containing such findings, and may 

result in the issuance of an exclusion 

order or a cease and desist order or both 

directed against the respondent. 

Issued: November 7, 2011. 

By order of the Commission. 

James R. Holbein, 

Secretary to the Commission. 

[FR Doc. 2011–29264 Filed 11–10–11; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Exemptions From Certain Prohibited 

Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of Individual Exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). This notice includes 

the following: D–11601, 2011–21, BB&T 

Asset Management, Inc.; and D–11608, 

2011–22, Russell Trust Company. 

SUPPLEMENTARY INFORMATION: A notice 

was published in the Federal Register of 

the pendency before the Department of 

a proposal to grant such exemption. The 

notice set forth a summary of facts and 

representations contained in the 

application for exemption and referred 

interested persons to the application for 

a complete statement of the facts and 

representations. The application has 

been available for public inspection at 

the Department in Washington, DC. The 

notice also invited interested persons to 

submit comments on the requested 

exemption to the Department. In 

addition the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The applicant 

has represented that it has complied 

with the requirements of the notification 

to interested persons. No requests for a 

hearing were received by the 

Department. Public comments were 

received by the Department as described 

in the granted exemption. 

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70492 Federal Register / Vol. 76, No. 219 / Monday, November 14, 2011 / Notices 

1 71 FR 20262 (April 19, 2006). 2 71 FR 20135 (April 19, 2006). 

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. 

BB&T Asset Management, Inc. (BB&T 

AM), Located in Winston-Salem, North 

Carolina, [Prohibited Transaction 

Exemption 2011–21; Exemption 

Application No. D–11601]. 

Exemption 

Section I: Covered Transactions 

The sanctions resulting from the 

application of Code section 4975, by 

reason of Code section 4975(c)(1)(A) and 

(C)–(F), shall not apply, effective April 

30, 2002 until December 27, 2005, to (1) 

directed trades by BB&T AM and its 

successors in interest (together, the 

Applicant) as an investment manager 

and investment adviser to certain plans, 

subject to Code section 4975, but not 

subject to Title I of ERISA (the IRAs), 

which resulted in the IRAs purchasing 

or selling securities from Scott & 

Stringfellow, LLC (S&S), an affiliated 

broker-dealer of BB&T AM (collectively, 

the Transactions); and (2) compensation 

paid by the IRAs to S&S in connection 

with the Transactions (the Transaction 

Compensation). 

This exemption is subject to the 

conditions set forth below in Sections II 

and III. 

Section II: Specific Conditions 

(a) The Transactions and the 

Transaction Compensation were 

corrected (1) pursuant to the 

requirements set forth in the 

Department’s Voluntary Fiduciary 

Correction Program (the VFC Program) 1

and (2) in a manner consistent with 

those transactions described in the 

Applicant’s VFC Program application, 

dated January 22, 2010 (the VFC 

Program Application), that were 

substantially similar to the Transactions 

but that involved plans described in 

Code section 4975(e)(1) and subject to 

Title I of ERISA (the Qualified Plan 

Transactions). 

(b) The Applicant received a ‘‘noaction letter’’ from the Department in 

connection with the Qualified Plan 

Transactions described in the VFC 

Program Application. 

(c) The fair market value of the 

securities involved in the Transactions 

was determined in accordance with 

Section 5 of the VFC Program. 

(d) The terms of the Transactions and 

the Transaction Compensation were at 

least as favorable to the IRAs as the 

terms generally available in arm’s length 

transactions between unrelated parties. 

(e) The Transactions and Transaction 

Compensation were not part of an 

agreement, arrangement or 

understanding designed to benefit a 

disqualified person, as defined in Code 

section 4975(e)(2). 

(f) The Applicant did not take 

advantage of the relief provided by the 

VFC Program and Prohibited 

Transaction Exemption 2002–51 2 (PTE 

2002–51) for three (3) years prior to the 

date of the Applicant’s submission of 

the VFC Program Application. 

Section III: General Conditions 

(a) The Applicant maintains, or 

causes to be maintained, for a period of 

six (6) years from the date of any 

Transaction such records as are 

necessary to enable the persons 

described in Section III(b)(1), to 

determine whether the conditions of 

this exemption have been met, except 

that: 

(1) A separate prohibited transaction 

shall not be considered to have occurred 

if, due to circumstances beyond the 

control of Applicant, the records are lost 

or destroyed prior to the end of the sixyear period; and 

(2) No disqualified person with 

respect to an IRA, other than Applicant, 

shall be subject to excise taxes imposed 

by Code section 4975, if such records 

are not maintained, or are not available 

for examination, as required by Section 

III(b)(1). 

(b) (1) Except as provided in Section 

III(b)(2), the records referred to in 

Section III(a) are unconditionally 

available at their customary location for 

examination during normal business 

hours by: 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the 

Securities and Exchange Commission; 

(B) Any fiduciary of any IRA that 

engaged in a Transaction, or any duly 

authorized employee or representative 

of such fiduciary; or 

(C) Any owner or beneficiary of an 

IRA that engaged in a Transaction or a 

representative of such owner or 

beneficiary. 

(2) None of the persons described in 

Sections III(b)(1)(B) and (C) shall be 

authorized to examine trade secrets of 

Applicant, or commercial or financial 

information which is privileged or 

confidential. 

(3) Should Applicant refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, Applicant shall, by the close 

of the thirtieth (30th) day following the 

request, provide a written notice 

advising that person of the reasons for 

the refusal and that the Department may 

request such information. 

Effective Date: This exemption is 

effective from April 30, 2002 until 

December 27, 2005. 

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 

August 11, 2011 at 76 FR 49791. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Brian Shiker of the Department, 

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

a toll-free number.) 

Russell Trust Company (RTC or the 

Applicant), 

Located in Seattle, Washington. 

[Prohibited Transaction Exemption 

2011–22; 

Exemption Application No. D–11608] 

Exemption 

Section I—Covered Transactions 

(a) The restrictions of sections 

406(a)(1)(A), (a)(1)(B), (a)(1)(D), 

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

the sanctions resulting from the 

application of section 4975 of the Code, 

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

(c)(1)(B), (c)(1)(D), and (c)(1)(E) of the 

Code, shall not apply, between 

September 14, 2009 and September 14, 

2010, inclusive, to an arrangement 

involving the following transactions: 

(1) The extension of credit, through a 

revised capital support agreement, to 

certain employee benefit plans (the 

Plans) invested, directly or indirectly, in 

the Russell Securities Lending ShortTerm Investment Fund (the SecLending 

Fund) by the Frank Russell Company 

(FRC), the parent company of RTC and 

a party in interest with respect to the 

Plans, in connection with the 

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Federal Register / Vol. 76, No. 219 / Monday, November 14, 2011 / Notices 70493 

SecLending Fund’s holding of certain 

notes (the Notes) issued by Lehman 

Brothers Holdings Inc. or its affiliates 

(the Revised SecLending Fund CSA); 

(2) The extension of credit, through a 

revised capital support agreement, to 

certain Plans invested, directly or 

indirectly, in the RTC Russell Liquidity 

Fund (the Liquidity Fund) by FRC in 

connection with the Liquidity Fund’s 

holding of the Notes (the Revised 

Liquidity Fund CSA); 

(3) The provision of a revised 

guarantee to FRC by its parent company, 

the Northwest Mutual Life Insurance 

Company (NML), a party in interest 

with respect to the Plans, in order to 

ensure FRC’s foregoing capital support 

obligation to the SecLending Fund (the 

Revised SecLending Fund Guarantee); 

(4) The provision of a revised 

guarantee to FRC by NML in order to 

ensure FRC’s foregoing capital support 

obligation to the Liquidity Fund (the 

Revised Liquidity Fund Guarantee); 

(5) The accrual and periodic payment 

of certain supplemental yield 

contributions by FRC to the SecLending 

Fund (the SecLending Fund 

Supplemental Yield Contributions); and 

(6) The accrual and periodic payment 

of certain supplemental yield 

contributions by FRC to the Liquidity 

Fund (the Liquidity Fund Supplemental 

Yield Contributions); 

(b) The restrictions of sections 

406(a)(1)(A), (a)(1)(B), 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), (c)(1)(B), and (c)(1)(E) of 

the Code shall not apply to the 

September 10, 2010 cash sale (the Sale) 

of all of the Notes held by both the 

SecLending Fund and the Liquidity 

Fund (taken together, the Funds) to 

FRC, which transaction was settled on 

September 14, 2010 upon receipt by the 

Funds of the cash proceeds of the Sale; 

provided that all of the conditions set 

forth below in Section II are satisfied. 

Section II—Conditions 

(a) With respect to the arrangement 

involving (i) the Revised SecLending 

Fund CSA and the Revised Liquidity 

Fund CSA transactions (together, the 

Revised CSAs), (ii) the Revised 

SecLending Fund Guarantee and the 

Revised Liquidity Fund Guarantee 

transactions (together, the Revised 

Guarantees), and (iii) the SecLending 

Fund Supplemental Yield Contributions 

and the Liquidity Fund Supplemental 

Yield Contribution transactions 

(together, the Supplemental Yield 

Contributions): 

(1) The decision to enter into each of 

these transactions was made on behalf 

of the Funds (and the employee benefit 

plans invested, directly or indirectly, in 

the Funds) by an independent fiduciary 

(the Independent Fiduciary), who 

reviewed their terms and conditions of 

each of the foregoing transactions and 

determined that they were protective of, 

and in the interest of, the Funds and the 

Plans investing therein; 

(2) The foregoing transactions were 

entered into pursuant to written 

agreements that contained all of the 

relevant terms and conditions relating to 

such transactions; and 

(3) The Funds did not pay any fees, 

commissions or other expenses in 

connection with the foregoing 

transactions; 

(b) With respect to the Sale of the 

Notes by each Fund to FRC: 

(1) The Sale was a one-time 

transaction for cash; 

(2) In connection with the Sale, the 

applicable Fund received an amount 

which was equal to the greater of: (i) 

The market value of the Notes being 

sold on the date of the Sale; or (ii) the 

sum of the amortized cost of such Notes, 

plus any accrued but unpaid interest on 

such Notes through the earlier of the 

maturity date of the applicable Note or 

September 14, 2009, in each case 

calculated at the contract rate; 

(3) The Funds did not pay any fees, 

commissions or other expenses in 

connection with the Sale; 

(4) The decision to sell all of the 

Notes held by the Funds to FRC was 

made by an Independent Fiduciary, who 

determined that the Sale of the Notes 

was appropriate for, and in the best 

interests of, each of the Funds and the 

Plans invested, directly or indirectly, in 

the Funds, at the time of the Sale 

transaction; 

(5) The Independent Fiduciary has 

taken all appropriate actions necessary 

to safeguard the interests of the Funds, 

and of the employee benefit plans 

invested, directly or indirectly, in the 

Funds, in connection with the 

transaction; 

(6) If the exercise of any of FRC’s 

rights, claims, or causes of action in 

connection with its ownership of the 

Notes results in recovering from the 

issuer of the Notes, or any third party, 

an aggregate amount that is in excess of 

the sum of: (i) The Sale price paid for 

the Notes by FRC; and (ii) interest on 

such Sale price paid for the Notes from 

and after September 10, 2010, 

determined at the face interest rate for 

the applicable Note, then FRC will 

refund such excess amount promptly to 

the Funds (after deducting all 

reasonable expenses incurred in 

connection with the recovery); 

(c) RTC and its affiliates, 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 person described below in 

paragraph (d)(1), to determine whether 

the conditions of this exemption have 

been met, except that: 

(1) No party in interest with respect 

to a plan which engages in the covered 

transaction, other than FRC, RTC and 

their 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 (d)(1); 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because due to circumstances 

beyond the control of FRC, RTC or their 

affiliates, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period. 

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

paragraph (d)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in paragraph (c) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of any plan that 

engages in the covered transaction, or 

any duly authorized employee or 

representative of such fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a plan that engages in the 

covered transaction, or any authorized 

employee or representative of these 

entities; or 

(D) Any participant or beneficiary of 

a plan that engages in the covered 

transaction, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(2) None of the persons described, 

above, in paragraph (d)(1)(B)–(D) shall 

be authorized to examine trade secrets 

of FRC, RTC or their affiliates, or 

commercial or financial information 

which is privileged or confidential; and 

(3) Should RTC refuse to disclose 

information on the basis that such 

information is exempt from disclosure, 

RTC 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 

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70494 Federal Register / Vol. 76, No. 219 / Monday, November 14, 2011 / Notices 

3References made in the Applicant’s comment 

letter to section 406 of the Act shall be deemed to 

include references to the corresponding provisions 

of section 4975 of the Code. 

4Among the numerous individual exemptions 

cited by the Applicant’s comment in support of its 

request for relief from all of the restrictions of 

section 406(a) of the Act were: (1) PTE 2011–07 

(exempting a one-time cash sale of certain auctionrate securities by a plan to a party in interest from 

all of the restrictions of section 406(a) of the Act; 

(2) PTE 2009–27 (exempting a one-time cash sale 

of certain Lehman-issued securities by a fund to a 

party in interest of certain plans invested therein 

from the restrictions of section 406(a)(1)(A) through 

(D) of the Act); and (3) PTE 2008–12 (exempting a 

one-time cash sale of certain notes by a fund to a 

party in interest of certain plans invested therein 

from all of the restrictions of section 406(a) of the 

Act). 

that the Department may request such 

information. 

Written Comments 

1. The Notice of Proposed Exemption 

(the Notice), published in the June 13, 

2011 issue of the Federal Register 

beginning at page 34261, 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. In 

response, the Department received a 

written comment from the Applicant on 

July 21, 2011 (which was supplemented 

by an additional clarifying letter from 

the Applicant on July 26, 2011) 

regarding the content of the Notice. This 

comment, which was the only one 

received by the Department in 

connection with the Notice, suggested 

certain clarifications and editorial 

adjustments to the operative language 

contained in Section I (‘‘Covered 

Transactions’’) and Section II 

(‘‘Conditions’’) of the Notice, which are 

described in detail below; those 

modifications suggested by the 

Applicant which the Department has 

determined to adopt are reflected in the 

text of this final grant (the Grant) of 

exemption. The Applicant’s comment 

also requested certain adjustments to 

the text of the ‘‘Summary of Facts and 

Representations’’ section of the Notice, 

which are described and incorporated 

below. The Department 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. 

2. In its written comment, the 

Applicant expressed its view that the 

applicable period for exemptive relief 

described in Section I(a) of the Notice 

(the text of which begins at the first 

column of page 34261 of the June 13, 

2011 issue of the Federal Register) 

should be modified in the Grant to 

encompass the period from September 

10, 2009 through September 14, 2010. In 

requesting this adjustment, the 

Applicant noted that while FRC’s and 

NML’s primary obligations under the 

Revised SecLending Fund CSA, the 

Revised Liquidity Fund CSA, the 

Revised SecLending Fund Guarantee, 

and the Revised Liquidity Fund 

Guarantee may have technically 

terminated upon the closing of the Sale 

on September 10, 2010, the 

Supplemental Yield Contributions 

continued to accrue (and the proceeds 

of the Sale were not received by the 

Funds) until September 14, 2010. 

Therefore, the Applicant stated, all of 

the transactions covered by the 

exemption were not completed until 

September 14, 2010. 

In support of this view, the 

Applicant’s comment noted that 

Sections I(a)(5) and (6) of the Notice, 

which proposes exemptive relief for the 

‘‘accrual and periodic payment’’ of the 

Supplemental Yield Contributions, 

would not in fact exempt the final 

payment of such contributions on 

September 14, 2010, nor the accrual of 

such contributions from September 10 

through September 14, 2010. Moreover, 

the Applicant states, because the 

Supplemental Yield Contributions were 

made a part of the Revised CSAs, it 

could be concluded that the transactions 

described in Sections I(a)(1) through 

I(a)(4) of the Notice also were not 

completed until September 14, 2010. 

After due consideration, the Department 

concurs with the Applicant’s suggested 

modification, and has determined to 

amend the text of lines 9 and 10 of 

Section I(a) in the Grant by deleting 

‘‘September 10, 2010’’ and inserting in 

lieu thereof ‘‘September 14, 2010’’. 

In this connection, the Applicant’s 

comment also suggested an adjustment 

to the language of Section I(b) of the 

Notice (which begins at the second 

column of page 34261 of the same issue 

of the Federal Register) to reflect that 

the Sale, which was executed on 

September 10, 2010, ultimately settled 

on September 14, 2010 with receipt of 

the full Sale proceeds by the Funds on 

that date. The Department also concurs 

with this suggested modification, and 

amends the text of Section I(b) in the 

Grant by inserting a comma after ‘‘FRC’’ 

at line 11, and inserting of the words 

‘‘which transaction was settled on 

September 14, 2010 upon receipt by the 

Funds of the cash proceeds of the Sale’’ 

prior to the concluding semicolon. 

3. In its comment letter, the Applicant 

noted that Section I(b) of the Notice 

proposes to exempt the Sale transaction 

from ‘‘[t]he restrictions of section 

406(a)(1)(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) and 

(E) of the Code.’’ With respect to this 

provision, the Applicant requested that 

the scope of exemptive relief for the 

Sale transaction be expanded to 

encompass relief from the restrictions of 

section 406(a), generally. The Applicant 

commented that the Sale could be 

viewed as a ‘‘transfer to * * * a party 

in interest, of any assets of the plan,’’ 

within the meaning of section 

406(a)(1)(D) of the Act.3 The Applicant 

further commented that it is possible 

that aspects of the Sale could be deemed 

to constitute the ‘‘lending of money or 

other extension of credit between the 

plan and a party in interest,’’ within the 

meaning of section 406(a)(1)(B) of the 

Act, especially if the Sale is viewed in 

conjunction with the other transactions 

described in Section I(a) of the Notice. 

Additionally, the Applicant noted in its 

comment that, in granting a number of 

recent individual exemptions covering 

substantially similar sale transactions 

and containing substantially similar 

conditions, the Department has 

provided relief in many of these 

exemptions from all of the provisions of 

section 406(a) of the Act.4 Accordingly, 

in light of these recent exemptions, the 

Applicant stated that it saw no reason 

that the Sale should not be covered by 

the same scope of relief. 

In response, the Department has 

determined, on its own motion, to 

extend the scope of relief covered by 

Section I(b) of the exemption to include 

sections 406(a)(1)(B) of the Act, as well 

as of sections 4975(c)(1)(B) of the Code. 

The Department is of the view that 

expanding the scope of exemptive relief 

offered in Section I(b) of the Grant to 

include the foregoing provisions of the 

Act and the Code is appropriate, insofar 

as Section II(b)(6) of both the Notice and 

the Grant generally requires FRC, as a 

condition of relief, to refund any excess 

proceeds (plus interest) arising as a 

consequence of any recovery from the 

issuer of the Notes (or any third party) 

in connection with the exercise of any 

of FRC’s rights, claims, or causes of 

action associated with its pre-Sale 

ownership of the Notes. Such a recovery 

could result in, or be construed as, an 

extension of credit between FRC and the 

Funds. Accordingly, the Department 

amends the opening words of Section 

I(b) in the final Grant of exemption to 

read as follows: 

‘‘(b) The restrictions of section 

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

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

resulting from the application of section 4975 

of the Code, by reason of section 

4975(c)(1)(A), (c)(1)(B), and (c)(1)(E) of the 

Code shall not apply * * *’’ 

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Federal Register / Vol. 76, No. 219 / Monday, November 14, 2011 / Notices 70495 

5Among the numerous individual exemptions 

cited by the Applicant’s comment in support of its 

suggested revision to Section II(b)(6) of the Notice 

governing the refund of excess proceeds received 

from the Sale of the Notes were PTE 2011–07 (see 

Section I(i)); PTE 2009–27 (see Condition (g)); and 

PTE 2008–12 (see Condition (f)). 

6The face interest rates for the various Notes that 

were the subject of the Sale transaction covered by 

this exemption are displayed in a chart contained 

in the Notice, which is located at the conclusion of 

Representation 15 near the top of page 34266 of the 

June 13, 2011 issue of the Federal Register. 

4. In its written comment, the 

Applicant also noted that Section 

II(b)(6) of the Notice provides that FRC 

must refund to the Funds any amounts 

that FRC may recover from the issuer of 

the Notes or any third party that is in 

excess of the sum of the Sale price paid 

by FRC for the Notes plus any interest 

on such Sale price paid from September 

10, 2010 to September 14, 2010, 

inclusive, made by FRC to the Funds. 

The Applicant pointed out, however, 

that the corresponding conditions for 

relief found in a number of recent 

individual exemptions covering 

substantially similar sale transactions 

required the refund of any amounts 

recovered in excess of the applicable 

purchase price plus interest through the 

date of recovery.5 The Applicant also 

noted that, in these corresponding 

conditions, the applicable interest rate 

credited to the purchase price correlated 

to an interest rate that was tied to the 

purchased securities. Therefore, the 

Applicant opined that the content of 

Section II(b)(6) of the Grant should not 

differ in substance from the 

corresponding conditions for exemptive 

relief found in recent, similar 

exemptions. For the foregoing reasons, 

the Applicant requested in its comment 

that Section II(b)(6) be amended in the 

Grant to require the refund to the Funds 

of any amounts that FRC may receive in 

excess of (i) the Sale proceeds paid for 

the Notes by FRC, plus (ii) interest on 

such Sale price paid for the Notes from 

and after September 10, 2010, 

determined at the face interest rate for 

the applicable Note.6 Accordingly, after 

due consideration, the Department 

concurs with the Applicant’s comment, 

and has determined to amend the text 

of Section II(b)(6) in the Grant to read 

as follows: 

‘‘(6) If the exercise of any of FRC’s rights, 

claims, or causes of action in connection 

with its ownership of the Notes results in 

recovering from the issuer of the Notes, or 

any third party, an aggregate amount that is 

in excess of the sum of (i) The Sale price paid 

for the Notes by FRC; and (ii) interest on such 

Sale price paid for the Notes from and after 

September 10, 2010, determined at the face 

interest rate for the applicable Note, then 

FRC will refund such excess amount 

promptly to the Funds (after deducting all 

reasonable expenses incurred in connection 

with the recovery);’’ 

5. In its comment, the Applicant also 

requested that the Department amend 

and correct certain language contained 

in the first sentence of the second 

paragraph of Representation 12 of the 

‘‘Summary of Facts and 

Representations’’ section of the Notice 

(which is located in the first column of 

page 34265 of the aforementioned issue 

of the Federal Register) and in the third 

sentence of Representation 15 of the 

Notice (located in the third column of 

page 34265) concerning the formula to 

be used to compute the price of the 

Notes in the event of their sale to RTC. 

Specifically, the Applicant noted in its 

comment that the Revised CSAs did not 

contain a new provision stipulating the 

formula for determining such a sale 

price; rather, the Independent Fiduciary 

negotiated this formulaic price for the 

Notes within a separate term sheet prior 

to the consummation of the Sale. 

Accordingly, the Department has 

corrected the text of the Notice by 

deleting the words ‘‘to include a new 

provision in each of the Revised CSAs 

stipulating’’ that appears after the word 

‘‘Funds’’ in the first sentence of the 

second paragraph of Representation 12; 

similarly, the text of the Notice is 

further corrected by deleting the words 

‘‘Revised CSAs with each of the Funds’’ 

that appears in the parenthetical clause 

of the third sentence of Representation 

15 and substituting in lieu thereof the 

words ‘‘term sheet negotiated by the 

Independent Fiduciary’’. 

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 

that begins at 76 FR 34261 (June 13, 

2011). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Judge of the Department at (202) 

693–8550 (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 7th day of 

November 2011. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2011–29234 Filed 11–10–11; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Proposed Exemptions From Certain 

Prohibited Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemptions. 

SUMMARY: This document contains 

notices of pendency before the 

Department of Labor (the Department) of 

proposed exemptions from certain of the 

prohibited transaction restrictions of the 

Employee Retirement Income Security 

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

the Internal Revenue Code of 1986 (the 

Code). This notice includes the 

following proposed exemptions: 

D–11637 HSBC–North America (U.S.) 

Tax Reduction Investment Plan; D– 

11679 Sammons Enterprises, Inc. 

Employee Stock Ownership ESOP; and 

D–11683 First Federal Bancshares of 

Arkansas, Inc. Employees’ Savings and 

Profit Sharing Plan. 

DATES: All interested persons are invited 

to submit written comments or requests 

for a hearing on the pending 

exemptions, unless otherwise stated in 

the Notice of Proposed Exemption, 

within 45 days from the date of 

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