59426 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 

1For purposes of this exemption, references to 

section 406 of ERISA should be read to refer also 

to the corresponding provisions of section 4975 of 

the Code. 

pollutants, including dioxins and 

furans, hydrogen chloride, particulate 

matter, and hydrocarbons. The 

Plaintiffs’ complaint, filed concurrently 

with the Consent Decree, alleges that 

Defendants violated Section 112 of the 

Clean Air Act, 42 U.S.C. 7412; the 

National Emission Standards for 

Hazardous Air Pollutants (‘‘NESHAP’’) 

for Secondary Aluminum Production, 

codified at 40 CFR part 63, Subparts A 

and RRR; and related provisions of 

Kentucky law at three of its aluminum 

production facilities. Specifically, the 

complaint alleges that Defendant failed 

to demonstrate compliance with 

emission standards through valid 

performance testing, to design and 

install adequate capture and collection 

systems, to correctly establish and 

monitor operating parameters, and to 

comply with recordkeeping and 

reporting requirements. 

The Consent Decree would require 

Defendants to retest emission units 

using model test protocols, adopt new 

monitoring practices, correct 

deficiencies in recordkeeping and 

reporting documents, shut down certain 

emission units, and apply for new 

operating permits at its facilities. The 

Consent Decree would also provide for 

an $80,000 civil penalty, with $50,000 

paid to the United States and $30,000 

paid to the Commonwealth of Kentucky, 

based on a limited ability to pay as 

determined by the United States’ review 

of Defendant’s financial information. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and either e-mailed to 

pubcomment-ees.enrd@usdoj.gov or 

mailed to P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, and should refer to United 

States et al. v. J.L. French LLC, et al., D.J. 

Ref. No. 90–5–2–1–08881/1. 

The Consent Decree may be examined 

at the United States Environmental 

Protection Agency, Ariel Rios Building, 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460. During the 

public comment period, the Consent 

Decree may also be examined on the 

following Department of Justice Web 

site: http://www.usdoj.gov/enrd/ 

Consent_Decrees.html. A copy of the 

Consent Decree may also be obtained by 

mail from the Consent Decree Library, 

P.O. Box 7611, U.S. Department of 

Justice, Washington, DC 20044–7611 or 

by faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $16.00 for a copy of 

the complete Consent Decree (25 cents 

per page reproduction cost), payable to 

the U.S. Treasury or, if by e-mail or fax, 

forward a check in that amount to the 

Consent Decree Library at the stated 

address. 

Maureen Katz, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2011–24604 Filed 9–23–11; 8:45 am] 

BILLING CODE 4410–15–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–11513, 2011–18 

Northern Trust Corporation; D–11576, 

2011–19 Bank of America, NA et al.; 

and D–11659, 2011–20 Pacific Capital 

Bancorp Amended and Restated 

Incentive and Investment and Salary 

Savings Plan (the Plan). 

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. 

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. 

Northern Trust Corporation Located in 

Chicago, IL 

[Prohibited Transaction Exemption 

2011–18; Exemption Application No. D– 

11513] 

Exemption 

Section I. Transactions 

The restrictions of section 

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

406(b)(1) and (2) of ERISA 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 

October 31, 2008, to the sale (the Sale) 

by a Plan (as defined in Section III(e)) 

of an Auction Rate Security (ARS, as 

defined in Section III(c)) to Northern 

Trust Corporation or an affiliate thereof 

(Northern), if the conditions of Section 

II are met.1

Section II. Conditions 

(a) The Plan acquired the ARS in 

connection with brokerage or advisory 

services provided by Northern to the 

Plan; 

(b) The last auction for the ARS was 

unsuccessful; 

(c) The Sale is made pursuant to a 

written offer by Northern (the Offer) 

containing all of the material terms of 

the Sale, in which the Plan would have 


jlentini on DSK4TPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 59427 

2The Department notes that ERISA’s general 

standards of fiduciary conduct would apply to the 

transactions described herein. In this regard, section 

404 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 ARS to 

Northern for the par value of the ARS. 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 Northern of all the relevant 

information. 

the opportunity to sell the ARS but 

would be under no obligation to do so, 

and would include but is not limited to 

the following: 

(i) Northern will distribute each Offer 

to its eligible customers, marked, or 

otherwise prepared in a manner 

reasonably designed to prominently 

indicate to the recipient the subject 

matter, importance, and time-sensitivity 

of the information provided; 

(ii) Acceptance of an Offer would 

cause Northern to purchase the eligible 

ARS at the next applicable coupon 

interest payment date as described 

therein. Purchase dates may vary 

depending on when an Offer is accepted 

and when the next coupon interest 

payment date for such eligible ARS 

occurs; 

(iii) Acceptance of the Offer could be 

withdrawn at any time until three 

business days prior to the payment date; 

and 

(iv) The Offer will comply with ‘‘plain 

English’’ standards and will include: A 

reference to a Web site containing a 

description of the eligibility criteria 

used by Northern; a reference to where 

the Plan fiduciary can find a list of 

eligible ARS held in the account 

(including the amount and other 

identifying information); the 

background of the Offer; the methods 

and timing by which eligible customers 

may accept the Offer; the manner of 

determining the purchase dates for 

eligible ARS pursuant to the Offer; the 

timing of payment for eligible ARS 

purchased pursuant to the Offer; the 

methods and timing by which a 

customer may elect to withdraw its 

acceptance of the Offer; the expiration 

date of the Offer; a suggestion that 

eligible customers consult their tax 

advisors to determine the tax 

consequences, if any, of accepting the 

Offer and to ensure that accounting and 

financial reporting complies with 

applicable accounting guidance; and 

how to obtain additional information 

concerning the Offer; 

(d) The Sale is a one-time transaction 

for no consideration other than cash 

payment against prompt delivery of the 

ARS; 

(e) The sales price for the ARS is 

equal to the par value of the ARS, plus 

any accrued but unpaid interest or 

dividends as applicable, as of the date 

of the Sale; 

(f) The Plan does not waive any rights 

or claims in connection with the Sale; 

(g) The decision to accept the Offer or 

retain the ARS is made by an 

Independent Fiduciary (as defined in 

section III(d)).2 Notwithstanding the 

foregoing, in the case of an individual 

retirement account (IRA) which is 

beneficially owned by an employee, 

officer, director or partner of Northern, 

the decision to accept the Offer or retain 

the ARS may be made by such 

employee, officer, director, or partner; 

(h) Neither Northern nor an affiliate 

thereof exercises investment discretion 

or renders investment advice, within the 

meaning of 29 CFR 2510.3–21(c), in 

connection with the decision to sell or 

retain the ARS; 

(i) The Plan does not pay any 

commissions or any other transaction 

costs with respect to the Sale; 

(j) The Sale is not part of an 

arrangement, agreement, or 

understanding designed to benefit a 

party in interest or disqualified person 

to the Plan; 

(k) Northern maintains, or causes to 

be maintained, for a period of six (6) 

years from the date of the Sale such 

records as are necessary to enable the 

persons described below in paragraph 

(l)(i), to determine whether the 

conditions of this exemption have been 

met, except that— 

(i) No party in interest or disqualified 

person with respect to a Plan which 

engages in a Sale, other than Northern 

and its affiliates, as applicable, shall be 

subject to a civil penalty under section 

502(i) of ERISA 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)(i); and 

(ii) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Northern or its 

affiliates, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period; and 

(l)(i) Except as provided below in 

paragraph (l)(ii), and notwithstanding 

any provisions of subsections (a)(2) and 

(b) of section 504 of ERISA, 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; 

or 

(B) Any fiduciary of any Plan, 

including an 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 

Sale, or any authorized employee or 

representative of these entities; 

(ii) None of the persons described 

above in paragraph (l)(i)(B)–(C) shall be 

authorized to examine trade secrets of 

Northern, or commercial or financial 

information which is privileged or 

confidential; and 

(iii) Should Northern refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, Northern 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. 

III. Definitions 

For purposes of this exemption: 

(a) The term ‘‘affiliate’’ of another 

person 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, partner, 

employee, or relative (as defined in 

section 3(15) of ERISA) of such other 

person; and (3) any corporation or 

partnership of which such other person 

is an officer, director, partner, or 

employee; 

(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’’ 

or ‘‘ARS’’ means a debt obligation of a 

corporation, business entity, 

municipality or other governmental 

agency with a nominal long-term 

maturity for which the interest rate is 

reset through a Dutch Auction typically 

held every 7, 14, 28, 35, or 49 days, with 

interest paid at the end of each auction 

period. The term also means preferred 

stock issued by a corporation or other 

business entity for which the dividend 

is reset and paid through the same 

process; 

(d) The term ‘‘Independent Fiduciary’’ 

shall mean the fiduciary of the Plan 

making the decision to engage the Plan 

in the covered transactions, provided 


jlentini on DSK4TPTVN1PROD with NOTICES
59428 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 

3For purposes of this exemption, references to 

section 406 of ERISA should be read to refer as well 

to the corresponding provisions of section 4975 of 

the Code. 

that such fiduciary may not be Northern 

or an affiliate thereof; and 

(e) The term ‘‘Plan’’ means an 

individual retirement account (an IRA) 

or similar account described in section 

4975(e)(1)(B) through (F) of the Code; or 

an employee benefit plan as defined in 

section 3(3) of ERISA. 

DATES: Effective Date: This exemption is 

effective as of October 31, 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 

May 5, 2011 at 76 FR 25711. 

Written Comments 

No written comments were received 

by the Department with respect to the 

notice of proposed exemption. 

FOR FURTHER INFORMATION CONTACT: 

Ms. Karin Weng of the Department, 

telephone (202) 693–8557. (This is not 

a toll-free number.) 

Bank of America, NA et al., Located in 

Charlotte, North Carolina 

[Prohibited Transaction Exemption 

2011–19;Exemption Application No. D– 

11576] 

Exemption 

Section I. Covered Transactions 

The restrictions of sections 406(a) and 

406(b) 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: (a) From January 1, 

2009 to October 7, 2010: (1) To the 

operation of the RPT Stable Value 

Agreements, pursuant to the terms 

thereof, and to the receipt of a fee by 

BANA in connection therewith; and (2) 

to transactions under the RPT Stable 

Value Agreements (the RPT WrapRelated Transactions); (b) from April 23, 

2009 to October 7, 2010: (1) To the 

execution of the RPT Special Purpose 

Wrap Agreement; (2) to the operation of 

the RPT Special Purpose Wrap 

Agreement, pursuant to the terms 

thereof, and to the receipt of a fee by 

BANA in connection therewith; and (3) 

to transactions under the RPT Special 

Purpose Wrap Agreement (the Special 

Purpose Wrap-Related Transactions); 

and (c) from January 1, 2009 to April 8, 

2011: (1) To the operation of the 

Separately Managed Account Wrap 

Agreements, pursuant to the terms 

thereof, and to the receipt of a fee by 

BANA in connection therewith; and (2) 

to transactions under the Separately 

Managed Account Wrap Agreements 

(the Separately Managed Account WrapRelated Transactions), provided that the 

following conditions, as applicable, 

have been met.3

Section II. Conditions Applicable to 

Transactions Described in Section I(a). 

(a) Effective June 1, 2009, BlackRock 

Advisors may change the formula for 

calculating the Crediting Rate with 

respect to the Global Wrap Account or 

the Global Buy and Hold Account 

(either, a Global Account) only after 

obtaining prior approval from: 

(1) Each financial institution that has 

entered into a wrap agreement covering 

assets included in the applicable Global 

Account; and 

(2) The Independent Fiduciary, after 

BlackRock Advisors has provided the 

Independent Fiduciary with any 

information that the Independent 

Fiduciary has reasonably requested in 

determining whether to approve the 

proposed change in the Crediting Rate 

formula; 

(b) BANA may not reset a Crediting 

Rate attributable to a Global Account 

more frequently than on a monthly basis 

unless: 

(1) A crediting rate attributable to a 

non-BANA wrap agreement covering 

assets in the same Global Account is 

reset more frequently than on a monthly 

basis; and 

(2) BANA resets the Crediting Rate at 

the same time, and in the same manner, 

as such other non-BANA wrap 

agreement crediting rate; 

(c) Each financial institution entering 

into a wrap agreement covering assets 

included in a Global Account obtains 

information from BlackRock Advisors 

on a monthly basis regarding the 

investments included in such Global 

Account. This information must be 

sufficiently detailed to enable the 

financial institution to independently 

verify that the applicable Crediting Rate 

was calculated properly; 

(d) The fee received by BANA in 

connection with the BANA RPT Global 

Wrap Agreement or the BANA RPT Buy 

and Hold Wrap Agreement will be 

reasonable relative to market conditions 

and risks. Notwithstanding the above, in 

no event shall the fee received by BANA 

under the BANA RPT Global Wrap 

Agreement or the BANA RPT Buy and 

Hold Wrap Agreement exceed the 

maximum percentage fee paid to any 

other financial institution pursuant to a 

wrap agreement covering assets in the 

applicable Global Wrap Account or the 

Global Buy and Hold Account, as 

relevant; 

(e) The Trustee may trigger 

immunization with respect to the BANA 

RPT Global Wrap Agreement only if: 

(1) The Trustee triggers immunization 

with respect to another wrap agreement 

covering assets in the Global Wrap 

Account immediately prior to, or at the 

same time as, the Trustee triggers 

immunization with respect to the BANA 

RPT Global Wrap Agreement; or 

(2) A financial institution not 

affiliated with BANA triggers 

immunization with respect to assets in 

the Global Wrap Account immediately 

prior to, or at the same time as, the 

Trustee triggers immunization with 

respect to the BANA RPT Global Wrap 

Agreement; or 

(3) The Trustee determines that 

BANA is no longer financially 

responsible and the Independent 

Fiduciary determines that immunization 

is in the interests of Plans invested in 

RPT; 

(f) Assets held in RPT will be valued 

at their current fair market value on a 

daily basis utilizing the following 

BlackRock firm-wide approved 

valuation process: 

(1) Valuations will be performed 

without regard to whether the security 

is held in RPT or another account or 

commingled vehicle advised by 

BlackRock; 

(2) Valuations will be based on the 

price that may be obtained in a current 

arm’s-length sale to an unrelated third 

party; 

(3) BlackRock will first obtain prices 

for securities from independent thirdparty sources, including index 

providers, broker-dealers and 

independent pricing services. 

BlackRock will maintain a hierarchy 

that prioritizes pricing sources by asset 

class or type and will value securities 

based on the price generated by the 

highest priority source. The hierarchy 

may vary by asset class or type, but not 

for a particular security; 

(4) If no third-party sources are 

available to value a security or the price 

generated by the third-party falls 

outside specified statistical norms and 

after review BlackRock determines that 

such price is not reliable, BlackRock 

will value the security using an analytic 

methodology in accordance with its 

written valuation policy. If BlackRock 

values a security using such analytic 

methodology, the Independent 

Fiduciary will review that methodology 

and valuation and will obtain its own 

valuation if it deems appropriate; and 

(5) Values determined in accordance 

with (1) through (4) above will be 

provided to each financial institution 

that has entered into a wrap agreement 

covering assets in the Global Wrap 


jlentini on DSK4TPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 59429 

Account or the Global Buy and Hold 

Account, as the case may be; 

(g) Each financial institution that has 

entered into a wrap agreement covering 

assets in the Global Wrap Account and/ 

or the Global Buy and Hold Account, 

including BANA, may raise an objection 

regarding a particular security’s 

valuation, regardless of the source of 

such valuation. Once an objection is 

raised, wrap providers other than BANA 

may determine a new valuation for such 

security and BANA must accept this 

new valuation, provided that BANA is 

given reasonably satisfactory 

documentation supporting the new 

valuation; 

(h) Prior to a Plan sponsor’s decision 

to include RPT as an investment option 

for its Plan’s participants, the Trustee 

will provide the Plan sponsor with the 

following: 

(1) RPT’s Declaration of Trust (as 

amended and restated as of April 23, 

2009, and as may be further amended 

from time to time); 

(2) A purchase agreement to be 

entered into by the Plan fiduciary and 

the Trustee; 

(3) Upon request, a copy of the 

Annual Report for RPT and a fact sheet 

describing RPT’s investment objective 

and strategy and a performance analysis; 

and 

(4) A copy of the proposed exemption 

or a copy of the final exemption; 

(i) The Trustee will provide the 

following ongoing disclosures to Plan 

fiduciaries regarding a Plan’s 

investment in RPT: 

(1) The Annual Report for RPT; and 

(2) The Plan’s Investment Summary 

and Accounting; 

(j) Plan participants will be provided 

the following disclosures regarding their 

investment in RPT: 

(1) Prior to and following their initial 

investment, information describing the 

investment objectives and performance 

of RPT; and 

(2) A statement, delivered at least 

quarterly, that sets forth the value of the 

participant’s account contributions, 

withdrawals, distributions, loans and 

change in value since the prior 

statement; 

(k) The Independent Fiduciary must 

receive a copy of any RPT Stable Value 

Agreement amendment prior to the 

effective date of such amendment. The 

Independent Fiduciary must review and 

approve the amendment prior to its 

implementation, except that no such 

review and approval shall be required 

for an amendment that is purely 

ministerial in nature; 

(l) The dollar amount of Global Wrap 

Account assets covered by the BANA 

RPT Global Wrap Agreement shall not 

exceed 50% of the total assets held in 

such Account, and the terms associated 

with the BANA RPT Global Wrap 

Agreement at the time such Agreement 

was entered into, amended, modified or 

renewed shall be no less favorable to 

RPT than the terms associated with 

comparable agreements with unrelated 

parties; 

(m) The dollar amount of Global Buy 

and Hold Account assets covered by the 

BANA RPT Buy and Hold Wrap 

Agreement shall not exceed 60% of the 

total assets held in such Account, and 

the terms associated with the BANA 

RPT Buy and Hold Wrap Agreement at 

the time such Agreement was entered 

into, amended, modified or renewed 

shall be no less favorable to RPT than 

the terms associated with comparable 

agreements with unrelated parties; and 

(n) Any RPT Wrap-Related 

Transaction that involves: (1) The 

exercise by BANA, the Trustee, or 

BlackRock Advisors of their rights 

under the RPT Stable Value 

Agreements; or (2) the performance by 

BANA, the Trustee, or BlackRock 

Advisors of their obligations under the 

RPT Stable Value Agreements, shall be 

subject to prior review and approval by 

the Independent Fiduciary if such 

exercise or performance affects the 

Crediting Rate or would otherwise have 

an adverse impact on the book value of 

a participant’s or beneficiary’s 

investment in RPT. 

Section III. Conditions Applicable to 

Transactions Described in Section I(b) 

(a) Below Investment Grade Securities 

will be transferred automatically to a 

RPT account (the Type D1 Account) and 

covered by the RPT Special Purpose 

Wrap Agreement. The RPT Special 

Purpose Wrap Agreement shall cover up 

to in the aggregate $200 million of the 

following: 

(1) Book value of Downgraded 

Securities that have not been sold; and/ 

or 

(2) Aggregate unamortized realized 

losses with respect to sold Downgraded 

Securities; 

(b) The Minimum Ratio shall be 

maintained; 

(c) The total book value of the assets 

included in the Type D1 Account and 

covered by the RPT Special Purpose 

Wrap, including the Permitted 

Securities, will not exceed $700 million 

without the prior written consent of the 

Trustee, BlackRock Advisors, BANA 

and the Independent Fiduciary; 

(d) The crediting rate with respect to 

the Type D1 Account (the Type D1 

Account Crediting Rate) shall be 0.00% 

at times when there are unamortized 

losses (whether realized or unrealized) 

attributable to Downgraded Securities in 

the Type D1 Account, calculated in 

accordance with the provisions of the 

RPT Special Purpose Wrap Agreement. 

In the event there are no unamortized 

losses (i.e., neither realized nor 

unrealized) recorded to the Type D1 

Account which relate to Downgraded 

Securities, the Type D1 Account 

Crediting Rate shall be determined in 

accordance with a formula that has been 

reviewed by the Independent Fiduciary; 

(e) Effective June 1, 2009, BlackRock 

Advisors may change the formula for 

calculating the Type D1 Account 

Crediting Rate only after obtaining prior 

approval from BANA and the 

Independent Fiduciary. BlackRock 

Advisors shall provide the Independent 

Fiduciary with any information it may 

reasonably request in determining 

whether to approve a proposed change 

in the Type D1 Account Crediting Rate 

formula; 

(f) The Type D1 Account Crediting 

Rate will not be reset more frequently 

than on a monthly basis; 

(g) Permitted Securities will have a 

maximum duration of 3.5 years at the 

time of purchase; 

(h) The fee charged by BANA for the 

RPT Special Purpose Wrap will be 

reasonable relative to market conditions 

and risks, as determined annually by the 

Independent Fiduciary. 

Notwithstanding the above, in no event 

shall such fee exceed 15 basis points per 

annum of the total book value of assets 

included in the Type D1 Account; 

(i) Assets covered by the RPT Special 

Purpose Wrap Agreement will be valued 

in accordance with the methodology 

specified in section II(f) above, 

provided, however, that if the 

Independent Fiduciary obtains a 

valuation, such valuation will be 

binding on BANA; 

(j) The Trustee has the right to 

immunize the portfolio of securities 

included in the Type D1 Account only 

if BANA elects to terminate the RPT 

Special Purpose Wrap Agreement, or if 

BANA defaults under the RPT Special 

Purpose Wrap Agreement. If an 

immunization election becomes 

effective (the RPT Special Purpose 

Immunization Date), the RPT Special 

Purpose Wrap Agreement would 

terminate on the later of: (1) The date 

that is the number of years after the RPT 

Special Purpose Immunization Date 

which does not extend beyond the 

modified duration (as defined in the 

RPT Special Purpose Wrap Agreement) 

of the underlying assets on the RPT 

Special Purpose Immunization Date; or 

(2) the first date on which the market 

value of the underlying assets equals or 


jlentini on DSK4TPTVN1PROD with NOTICES
59430 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 

exceeds the book value under the wrap 

agreement; 

(k) No Below Investment Grade 

Securities will be added to the RPT 

Special Purpose Wrap Agreement after 

April 23, 2011, unless otherwise agreed 

by BANA, the Trustee, and the 

Independent Fiduciary. No party to the 

RPT Special Purpose Wrap Agreement 

is obligated to amend or extend the RPT 

Special Purpose Wrap Agreement; 

(l) The tasks performed by the 

Independent Fiduciary will include: 

(1) Determining whether the RPT 

Special Purpose Wrap Agreement and 

the portfolio arrangement for the Type 

D1 Account (including the wrap fee 

payable to BANA, the Minimum Ratio, 

the prefunding of the RPT Special 

Purpose Wrap Agreement and the 

formula for resetting the Type D1 

Account Crediting Rate) are prudent and 

in the best interest of participants and 

beneficiaries of Plans investing in RPT; 

(2) Reviewing valuations generated by 

BlackRock (in connection with the RPT 

Special Purpose Wrap Agreement) in 

any situation where BlackRock is unable 

to obtain a reliable valuation from 

independent third party sources. If, after 

such review, the Independent Fiduciary 

deems appropriate, the Independent 

Fiduciary will obtain an independent 

valuation which will be binding on the 

parties; 

(3) Reviewing and monitoring 

whether the Type D1 Account Crediting 

Rate is calculated correctly; 

(4) Monitoring the addition and 

removal of Below Investment Grade 

Securities and any changes in Permitted 

Securities in the Type D1 Account, and 

opining, in a written report, whether 

such addition, removal or change is 

appropriate; 

(5) If BANA objects to the calculation 

by the Trustee or its designee of the 

Type D1 Account Crediting Rate or the 

information used to calculate the Type 

D1 Account Crediting Rate, the 

Independent Fiduciary will make a 

conclusive and binding determination 

regarding such calculation or 

information; 

(6) Determining whether to approve 

any proposed change to the Type D1 

Account Crediting Rate formula, 

including any proposed adjustment to 

the duration component of the Type D1 

Account Crediting Rate formula; 

(7) No later than April 30, 2011, 

working with BANA, BlackRock, and 

the Trustee to review and determine 

whether additional Below Investment 

Grade Securities may be transferred to 

the Type D1 Account and be covered by 

the RPT Special Purpose Wrap 

Agreement; 

(8) Making an initial and, thereafter, 

annual determination regarding whether 

the fee described in paragraph (h) of this 

section is reasonable relative to the 

specific attributes of the RPT Special 

Purpose Wrap Agreement; 

(9) Making an annual determination 

regarding whether the continued 

maintenance of the RPT Special Purpose 

Wrap Agreement is appropriate and in 

the interest of Plans; 

(10) Making a monthly determination 

regarding whether the appropriate Type 

D1 Crediting Rate formula is being used; 

and 

(11) Reviewing and approving any 

amendment to a RPT Special Purpose 

Wrap Agreement consistent with 

paragraph (n) of this section; 

(m) Any Special Purpose WrapRelated Transaction that involves: (1) 

The exercise by BANA, the Trustee, or 

BlackRock Advisors of their rights 

under the RPT Special Purpose Wrap 

Agreement; or (2) the performance by 

BANA, the Trustee, or BlackRock 

Advisors of their obligations under the 

RPT Special Purpose Wrap Agreement, 

shall be subject to prior review and 

approval by the Independent Fiduciary 

if such exercise or performance affects 

the Type D1 Crediting Rate or otherwise 

would have an adverse impact on the 

book value of a participant’s or 

beneficiary’s investment in RPT; and 

(n) The Independent Fiduciary must 

receive a copy of any RPT Special 

Purpose Wrap Agreement amendment 

prior to the effective date of such 

amendment. The Independent Fiduciary 

must review and approve the 

amendment prior to its implementation, 

except that no such review and approval 

shall be required for an amendment that 

is purely ministerial in nature. 

Section IV. Conditions Applicable to 

Transactions Described in Section I(c) 

(a) Effective June 1, 2009, BlackRock 

Advisors may change the formula for 

calculating the Crediting Rate with 

respect to each Separately Managed 

Account Wrap Agreement only after 

obtaining prior approval from BANA 

and the Independent Fiduciary. 

BlackRock Advisors shall provide the 

Independent Fiduciary with any 

information it may reasonably request in 

determining whether to approve a 

proposed change in the Crediting Rate 

formula; 

(b) Effective June 1, 2009, the 

Crediting Rate will be reset no more 

frequently than on a monthly basis; 

(c) BANA will not receive a fee under 

the BANA Wal-Mart Separately 

Managed Wrap Agreement in excess of 

the maximum percentage fee received 

by any other Tier 3 Wrap Provider in the 

Wal-Mart Separately Managed Account; 

and BANA will not receive a fee under 

the BANA Hertz Separately Managed 

Wrap Agreement in excess of the 

maximum percentage fee received by 

any other financial institution that has 

entered into a wrap agreement covering 

assets in the Hertz Separately Managed 

Account; 

(d) Assets covered under each 

Separately Managed Account Wrap 

Agreement will be valued in accordance 

with the same methodology specified in 

section II(f) above; provided, however, 

that if BANA objects to the valuation of 

any asset, the Independent Fiduciary 

will make a binding determination of 

the value of the asset; 

(e) The tasks performed by the 

Independent Fiduciary will include: 

(1) Conducting a monthly review of 

the Crediting Rate, including, 

confirming: (A) The book value of the 

portfolio of assets wrapped by each 

Separately Managed Account Wrap 

Agreement; (B) the valuation of 

securities; (C) the duration of securities; 

(D) the market yield of securities; and 

(E) that the Crediting Rate formula was 

calculated properly; 

(2) Reviewing and approving any 

proposed amendment to a Separately 

Managed Wrap Agreement consistent 

with paragraph (i) below; 

(3) Reviewing any exercise of contract 

provisions by any of BANA, BlackRock 

Advisors or, in the case of the BANA 

Wal-Mart Separately Managed Wrap 

Agreement, the Trustee, and analyze its 

potential impact on investors; 

(4) Evaluating any changes to the fees 

paid to BANA under each Separately 

Managed Account Wrap Agreement to 

determine reasonableness relative to 

market conditions and risks; and 

(5) Providing quarterly reports to 

BlackRock Advisors and to the named 

fiduciaries of the Wal-Mart Plan and the 

Hertz Plan. These reports must certify 

that the Independent Fiduciary has 

reviewed the factors described above 

and state whether BlackRock Advisors 

has complied with all requirements of 

the contract. The Independent Fiduciary 

will inform the named fiduciaries of a 

Plan if it believes that BANA or 

BlackRock Advisors has taken any 

actions that are not in the best interests 

of the participants and beneficiaries in 

the Wal-Mart Plan or the Hertz Plan, as 

relevant; 

(f) The Separately Managed Account 

Wrap Agreements shall authorize the 

Independent Fiduciary to: 

(1) Review and approve any proposed 

changes in the formula for calculating 

the Crediting Rate, prior to 

implementation of any such change; 


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(2) If BlackRock Advisors generates its 

own valuation, review the valuation, 

and if the Independent Fiduciary deems 

appropriate, obtain an independent 

valuation, which shall be binding on the 

parties, subject to BANA’s right to raise 

an objection to any valuation; 

(3) If BANA objects to the valuation 

of any asset, make a binding 

determination of the value of the asset; 

(g) The named fiduciaries (or their 

authorized representatives) for the WalMart Plan have the right to terminate 

BlackRock Advisors, as investment 

manager for the Wal-Mart Separately 

Managed Account, on 90 days’ written 

notice. The named fiduciaries (or their 

authorized representatives) for the Hertz 

Plan have the right to terminate 

BlackRock Advisors as investment 

manager for the Hertz Separately 

Managed Account, on 30 days’ written 

notice; 

(h) Any Separately Managed Account 

Wrap-Related Transaction that involves: 

(1) The exercise by BANA, the Trustee, 

or BlackRock Advisors of their rights 

under a Separately Managed Account 

Wrap Agreement; or (2) the performance 

by BANA, the Trustee, or BlackRock 

Advisors of their obligations under a 

Separately Managed Wrap Agreement: 

Shall be subject to prior review and 

approval by the Independent Fiduciary 

if such exercise or performance affects 

the Crediting Rate or otherwise would 

have an adverse impact on the book 

value of a participant’s or beneficiary’s 

investment in RPT; 

(i) The Independent Fiduciary must 

receive a copy of any amendment 

contemplated for a Separately Managed 

Wrap Agreement. The Independent 

Fiduciary must review and approve the 

amendment prior to its implementation, 

except that no such review and approval 

shall be required for an amendment that 

is purely ministerial in nature; and 

(j) BlackRock may not terminate a 

Separately Managed Account Wrap 

Agreement without the prior approval of 

the Independent Fiduciary. 

Section V. General Conditions 

(a) BlackRock Advisors shall maintain 

in the United States the records 

necessary to enable the persons 

described in (b) below to determine 

whether the conditions of this 

exemption were met, except that: 

(1) If the records necessary to enable 

the persons described in (b) below to 

determine whether the conditions of the 

exemption have been met are lost or 

destroyed, due to circumstances beyond 

the control of BlackRock Advisors, then 

no prohibited transaction will be 

considered to have occurred solely on 

the basis of the unavailability of those 

records; and 

(2) No party in interest other than 

BlackRock Advisors shall be subject to 

the civil penalty that may be assessed 

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

taxes imposed by sections 4975(a) and 

(b) of the Code if the records have not 

been maintained or are not available for 

examination as required by paragraph 

(b) below; 

(b) Except as provided in paragraph 

(c) of this section V and 

notwithstanding the provisions of 

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

of the Act, the records referred to in 

section V(a) are unconditionally 

available for examination during normal 

business hours at their customary 

location to the following persons or an 

authorized representative thereof: 

(1) Any duly authorized employee or 

representative of the Department or the 

Internal Revenue Service; 

(2) Any fiduciary of a Plan 

participating in RPT or the Hertz Plan 

or the Wal-Mart Plan; 

(3) Any participant or beneficiary of a 

Plan participating in RPT or the Hertz 

Plan or the Wal-Mart Plan; or 

(4) The Independent Fiduciary. 

(c) None of the persons described 

above in paragraphs (2), (3), and (4) of 

paragraph (b) of this section V shall be 

authorized to examine trade secrets of 

BlackRock, BANA, the Trustee or any of 

their Affiliates, or any commercial or 

financial information which is 

privileged or confidential. Should 

BlackRock Advisors refuse to disclose 

information on the basis that such 

information is exempt from disclosure, 

BlackRock Advisors shall, by the close 

of the thirtieth (30th) day following the 

request, provide written notice advising 

that person of the reason for the refusal 

and that the Department may request 

such information; and 

(d) Promptly following publication of 

this final exemption in the Federal 

Register, the Trustee or BlackRock 

Advisors will provide a copy of the final 

exemption to the Plan sponsor of each 

Plan invested in RPT, and to the Plan 

sponsor of the Hertz Plan, and to the 

Plan sponsor of the Wal-Mart Plan. 

Section VI. Definitions 

(a) The term Act means: The 

Employee Retirement Income Security 

Act of 1974, as amended; 

(b) The term Affiliate means: Any 

person, directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by or under common control 

with such person; 

(c) The term BANA means: Bank of 

America, N.A. and its Affiliates; 

(d) The term BANA Hertz Separately 

Managed Wrap Agreement means: The 

agreement dated as of July 27, 2007 (and 

amended effective as of December 31, 

2008) among BANA, BlackRock 

Advisors (as investment manager for a 

portion of the assets of the Hertz Plan), 

and the Bank of New York Mellon (the 

successor by operation of law to Mellon 

Bank N.A., and the trustee of the trust 

created pursuant to the Hertz Plan), as 

such agreement may be amended from 

time to time, pursuant to which BANA 

provides a book value benefit 

responsive facility with respect to a 

portion of the assets held in the Hertz 

Separately Managed Account; 

(e) The term BANA RPT Buy and 

Hold Wrap Agreement means: The 

agreement dated as of October 16, 1996, 

between Barclays Bank PLC and the 

Trustee (as assigned to BANA as of 

April 1, 1998, and amended effective as 

of December 31, 2008), as such 

agreement may be amended from time 

to time, pursuant to which BANA 

provides a book value benefit 

responsive facility with respect to an 

undivided portion of the assets held in 

the Global Buy and Hold Account; 

(f) The term BANA RPT Global Wrap 

Agreement means: The agreement dated 

as of May 1, 2004 (and amended 

effective as of December 31, 2008) 

between BANA and the Trustee, as such 

agreement may be amended from time 

to time, pursuant to which BANA 

provides a book value benefit 

responsive facility with respect to an 

undivided portion of the assets held in 

the Global Wrap Account; 

(g) The term BANA Wal-Mart 

Separately Managed Wrap Agreement 

means: The agreement dated as of 

August 19, 2003 (and amended effective 

as of December 31, 2008) between 

BANA and the Trustee, as such 

agreement may be amended from time 

to time, pursuant to which BANA 

provides a book value benefit 

responsive facility with respect to a 

portion of the assets held in the WalMart Separately Managed Account; 

(h) The term Below Investment Grade 

Security means: Securities that cease to 

be covered by a benefit responsive 

contract in RPT (other than by the RPT 

Special Purpose Wrap Agreement) 

solely as a result of a downgrade in the 

credit rating of the security to below 

Baa3, BBB- or BBB- by Moody’s 

Investors Services, Inc., Standard & 

Poor’s Rating Group, or Fitch Ratings, 

respectively; provided, however, that a 

Below Investment Grade Security shall 

not include any security that is an 

Impaired Security; 

(i) The term BlackRock means: 

BlackRock, Inc.; 


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(j) The term BlackRock Advisors 

means: BlackRock Investment 

Management, LLC and its Affiliates; 

(k) The term Code means: The 

Internal Revenue Code of 1986, as 

amended; 

(l) The term Crediting Rate means: 

The crediting rate described in sections 

II and IV that is used for purposes of 

determining the accrued interest to be 

added to the book value of an 

individual’s account within RPT or the 

Separately Managed Accounts; 

(m) The term Downgraded Security 

means: A Below Investment Grade 

Security that is held in the Type D1 

Account and covered by the RPT 

Special Purpose Wrap Agreement; 

(n) The term Global Buy and Hold 

Account means: The book account or 

sub-account maintained within RPT for 

purposes of identifying certain assets 

relating to the BANA RPT Buy and Hold 

Wrap Agreement; 

(o) The term Global Wrap Account 

means: The book account or subaccount maintained within RPT for 

purposes of identifying certain assets 

relating to the BANA RPT Global Wrap 

Agreement; 

(p) The term Hertz Plan means: The 

Hertz Corporation Income Savings Plan; 

(q) The term Hertz Separately 

Managed Account means: The 

separately managed stable value account 

advised by BlackRock Advisors on 

behalf of the Hertz Plan; 

(r) The term Impaired Security means: 

(i) A security with respect to which the 

issuer or guarantor has failed to make 

one or more payments of principal or 

interest (after giving effect to any 

applicable grace period under the terms 

of such security or prescribed by any 

change in law, regulation, ruling or 

other governmental action); (ii) a 

security with respect to which the 

principal or interest has become due 

and payable before it otherwise would 

have been due or payable other than: (x) 

By reason of a call or other prepayment 

of such security made in accordance 

with its terms that does not constitute 

a default under such security, or (y) 

solely on account of any change in law, 

regulation, ruling or other governmental 

action; (iii) a security where the rate of 

interest thereon has been reset other 

than: (x) Pursuant to the original terms 

of such security, or (y) solely on account 

of any change in law, regulation, ruling 

or other governmental action; or (iv) a 

security with respect to which the issuer 

becomes insolvent or institutes or has 

instituted against it a proceeding 

seeking a judgment of insolvency or 

bankruptcy or any other relief under any 

bankruptcy or insolvency law or other 

similar law affecting creditor’s rights; 

(s) The term Independent Fiduciary 

means an entity that is: (i) Experienced 

and knowledgeable in ERISA and the 

transactions and arrangements 

described herein; (ii) independent of 

and unrelated to BANA, Merrill, 

BlackRock, and their Affiliates; and (iii) 

appointed to act on behalf of Plans 

investing in RPT or the Separately 

Managed Accounts with respect to the 

matters described herein. The 

Independent Fiduciary will not be 

deemed to be independent of and 

unrelated to BANA, Merrill, BlackRock, 

and their Affiliates if: (i) Such fiduciary 

directly or indirectly controls, is 

controlled by or is under common 

control with BANA, Merrill, or 

BlackRock; (ii) such fiduciary directly or 

indirectly receives any compensation or 

other consideration in connection with 

any transaction described in this 

exemption other than for acting as an 

Independent Fiduciary in connection 

with the transactions described herein, 

provided that the amount or payment of 

such compensation is not contingent 

upon, or in any way affected by, the 

Independent Fiduciary’s ultimate 

decision; and (iii) the annual gross 

revenue received by the Independent 

Fiduciary, during any year of its 

engagement, from BANA, Merrill, 

BlackRock, and any of their Affiliates, 

exceeds five percent (5%) of the 

Independent Fiduciary’s annual gross 

revenue from all sources (for federal 

income tax purposes) for its prior tax 

year; 

(t) The term Minimum Ratio means: A 

ratio of 2.5 to 1.0 of market value of 

Permitted Securities to the total 

unamortized unrealized and realized 

losses with respect to Downgraded 

Securities; 

(u) The term Permitted Securities 

means any security that: (i) Is a U.S. 

Treasury debenture, a security issued by 

the Government National Mortgage 

Association or a security guaranteed by 

the Federal Deposit Insurance 

Corporation; and (ii) has a modified 

duration on the date of purchase by RPT 

of 3.5 years or less; 

(v) The term Plan means: An 

employee benefit plan within the 

meaning of and subject to Title I of the 

Act or an individual retirement account 

within the meaning of section 4975 of 

the Code; 

(w) The term RPT means: The Merrill 

Lynch Retirement Preservation Trust 

maintained by the Trustee; 

(x) The term RPT Special Purpose 

Wrap Agreement means: The agreement 

dated as of April 23, 2009, as amended, 

between BANA and the Trustee, 

pursuant to which BANA provides a 

book value benefit responsive facility 

with respect to an undivided portion of 

the assets held in the Type D1 Account; 

(y) The term RPT Stable Value 

Agreements means: The BANA RPT 

Global Wrap Agreement and the BANA 

RPT Buy and Hold Wrap Agreement; 

(z) The term Separately Managed 

Accounts means: The Hertz Separately 

Managed Account and the Wal-Mart 

Separately Managed Account; 

(aa) The term Separately Managed 

Account Wrap Agreements means: The 

BANA Wal-Mart Separately Managed 

Wrap Agreement and the BANA Hertz 

Separately Managed Wrap Agreement; 

(bb) The term Type D1 Account 

means: The book account maintained 

within RPT for purposes of identifying 

Downgraded Securities, including 

unamortized losses with respect to 

Downgraded Securities that have been 

sold, and Permitted Securities covered 

by the RPT Special Purpose Wrap 

Agreement; 

(cc) The term Tier 3 Wrap Provider 

means: A financial institution that has 

entered into a wrap agreement with 

respect to assets held in the Wal-Mart 

Separately Managed Account that will 

not be accessed for purposes of making 

benefit payments until after two tiers of 

buffer assets are accessed; 

(dd) The term Trustee means: Bank of 

America, N.A.; 

(ee) The term Wal-Mart Plan means: 

The Wal-Mart Profit Sharing and 401(k) 

Plan and the Wal-Mart Puerto Rico 

Profit Sharing and 401(k) Plan; 

(ff) The term Wal-Mart Separately 

Managed Account means: The 

separately managed stable value account 

advised by BlackRock Advisors on 

behalf of the Wal-Mart Plan; 

(gg) The term Merrill means: Merrill 

Lynch & Co., Inc. and its Affiliates; 

(hh) The term RPT Wrap-Related 

Transaction means: (1) The 

determination, calculation of and 

adjustments to the Crediting Rate, and 

any changes to the Crediting Rate 

formula; (2) valuations of securities 

covered by the RPT Stable Value 

Agreements; (3) payment of wrap fees 

and any changes to wrap fees; (4) the 

purchase and sale of any security 

covered by the RPT Stable Value 

Agreements; (5) BANA’s or the Trustee’s 

exercise of its right to immunize or 

terminate the RPT Stable Value 

Agreements; (6) amendments to the RPT 

Stable Value Agreements; and (7) any 

other exercise by BANA, the Trustee, or 

BlackRock Advisors of their rights, or 

any performance by BANA, the Trustee, 

or BlackRock Advisors of their 

obligations, under the RPT Stable Value 

Agreements; 

(ii) The term Special Purpose WrapRelated Transaction means: (1) The 


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4 In the letter, the Applicants represented that, in 

connection with the change, Plan sponsors and 

participants and beneficiaries were to receive the 

book value of their investment and be permitted to 

transfer the proceeds to alternative investments. 

5See, for example, paragraph (l)(7) of section III. 

6See paragraph (d) of section V. 

7The Applicants represent that BANA is no 

longer receiving any fees with respect to the RPT 

Stable Value Agreements or the RPT Special 

Purpose Wrap Agreement. 

transfer of Below Investment Grade 

Securities to the Type D1 Account; (2) 

the sale or transfer of Downgraded 

Securities out of the Type D1 Account; 

(3) the purchase and sale of certain 

other securities permitted to be held in 

the Type D1 Account; (4) transactions 

relating to maintenance of a minimum 

ratio of Permitted Securities and 

Downgraded Securities; (5) the 

determination, calculation of and 

adjustments to the Type D1 Account 

Crediting Rate and any changes to the 

Type D1 Account Crediting Rate 

formula; (6) valuations of securities 

covered by the RPT Special Purpose 

Wrap Agreement; (7) payment of and 

any changes to wrap fees; (8) BANA’s or 

the Trustee’s exercise of its right to 

immunize or terminate the RPT Special 

Purpose Wrap Agreement; (9) the 

entering into and amendment of the 

RPT Special Purpose Wrap Agreement; 

and (10) any exercise by BANA, the 

Trustee, or BlackRock Advisors of their 

rights, or any performance by BANA, 

the Trustee, or BlackRock Advisors of 

their obligations, under the RPT Special 

Purpose Wrap Agreement; 

(jj) The term Separately Managed 

Account Wrap-Related Transaction 

means: (1) The determination, 

calculation of and adjustments to the 

Crediting Rate, and any changes to the 

Crediting Rate formula; (2) valuations of 

securities covered by the Separately 

Managed Account Wrap Agreements; (3) 

payment of wrap fees and any changes 

to wrap fees; (4) the purchase and sale 

of any security covered by the 

Separately Managed Account Wrap 

Agreements; (5) BANA’s or the Trustee’s 

exercise of its right to terminate the 

Separately Managed Account Wrap 

Agreements; (6) amendments to the 

Separately Managed Wrap Agreements; 

and (7) any other exercise by BANA, the 

Trustee, or BlackRock Advisors of their 

rights, or any performance by BANA, 

the Trustee, or BlackRock of their 

obligations, under the Separately 

Managed Account Wrap Agreements. 

Written Comment 

The Department received one written 

comment letter, dated November 19, 

2010, from Bank of America, N.A. 

(BANA), Merrill Lynch & Co., Inc. 

(Merrill Lynch) and BlackRock, Inc. 

(BlackRock) (collectively, the 

Applicants). In the letter, the Applicants 

made certain representations and/or 

requests regarding the preamble to the 

proposed exemption, and sections I(a) 

and (b), II(d), and III(h) of the proposed 

exemption. On August 18, 2011 and 

September 19, 2011, the Department 

received further correspondence from 

the Applicants, whereby the Applicants 

provided an additional representation 

and made an additional request 

regarding section I(c) of the proposed 

exemption. 

With respect to the preamble to the 

proposed exemption, the Applicants 

state that a clause was omitted from 

paragraph 47 of the Summary of Facts 

and Representations. In this regard, the 

Applicants represent that the first 

sentence of that paragraph should read 

as follows: ‘‘BANA will not receive a fee 

under either the BANA Wal-Mart 

Separately Managed Wrap Agreement or 

the BANA Hertz Separately Managed 

Wrap Agreement in excess of the 

maximum percentage fee received by 

any other Tier 3 Wrap Provider in the 

Wal-Mart Separately Managed Account, 

or in excess of the maximum percentage 

fee received by any other entity that has 

entered into a wrap agreement covering 

assets in the Hertz Separately Managed 

Account, as the case may be.’’ The 

Department concurs with this comment. 

With respect to section I(a) and (b) of 

the proposed exemption, the Applicants 

state that the RPT Stable Value 

Agreements and the RPT Special 

Purpose Wrap Agreement were 

terminated on October 6, 2010 and the 

relief set forth in section I(a) and (b) of 

the proposed exemption is not needed 

beyond October 7, 2010.4 The 

Applicants request that the relief 

contained in section I(a) and (b) of the 

final exemption expire on October 7, 

2010. 

Upon consideration of this request, 

the Department has determined that it 

would be appropriate to modify the 

proposed exemption as requested by the 

Applicants and, accordingly, the relief 

set forth in section I(a) and (b) of the 

final exemption expires on October 7, 

2010. 

With respect to section I(c) of the 

proposed exemption, the Applicants 

represent that Merrill Lynch’s 

investment in BlackRock has 

diminished to the point where the relief 

described in section I(c) is not needed 

beyond April 8, 2011. The Applicants 

therefore request that the relief 

contained in section I(c) of the final 

exemption expire on April 8, 2011. 

Upon consideration of this request, 

the Department has determined that it 

would be appropriate to modify the 

proposed exemption as requested by the 

Applicants and, accordingly, the relief 

set forth in section I(c) of the final 

exemption expires on April 8, 2011. 

With respect to the above-described 

modifications to section I, the 

Department notes that the exemption 

was proposed with the expectation that 

the relief provided by the exemption, if 

granted, would be on-going in nature. 

The proposed exemption therefore 

contains certain conditions applicable 

to section I(a) and (b) that expressly 

require the Applicants and/or the 

Independent Fiduciary to perform a 

specific action subsequent to October 7, 

2010.5 Similarly, the proposed 

exemption contains a condition 

applicable to section I(c) that expressly 

requires the Applicants to perform a 

specific action subsequent to April 8, 

2011.6 While these conditions have not 

been modified for purposes of this final 

exemption, such conditions do not 

remain in effect after: October 7, 2010 

for conditions relating to the relief set 

forth in section I(a) or (b); or April 8, 

2011 for conditions relating to the relief 

set forth in section I(c). 

With respect to section II(d) of the 

proposed exemption, the Applicants 

request the removal of that condition’s 

requirement that the Independent 

Fiduciary review the fees received by 

BANA in connection with the RPT 

Stable Value Agreements and the RPT 

Special Purposes Wrap Agreement. In 

this regard, the Applicants represent 

that such review is unnecessary due to: 

The limited time period for which 

exemptive relief is required (i.e., from 

January 1, 2009 to October 7, 2010); and 

the other fee restrictions contained in 

the proposed exemption.7 Upon 

consideration of this request, the 

Department has determined that it is 

appropriate to modify the proposed 

exemption in the manner requested by 

the Applicants and, accordingly, has 

revised section II(d) of the final 

exemption. 

With respect to section III(h) of the 

proposed exemption, the Applicants 

request the removal of the second 

sentence of this condition. The subject 

sentence provides, in part, that ‘‘in no 

event shall the fee received by BANA 

under the BANA RPT Global Wrap 

Agreement or the BANA RPT Buy and 

Hold Wrap Agreement exceed the 

maximum percentage fee paid to any 

other financial institution pursuant to a 

wrap agreement covering assets in the 

applicable Global Wrap Account or the 

Global Buy and Hold Account, as 

relevant, as determined annually by the 

Independent Fiduciary.’’ Upon 


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8For purposes of this exemption, references to 

specific provisions of Title I of the Act, unless 

otherwise specified, refer also to the corresponding 

provisions of the Code. 

consideration of this request, the 

Department has determined that it is 

appropriate to modify the proposed 

exemption in the manner requested by 

the Applicants and, accordingly, has 

revised section III(h) of the final 

exemption. 

After full consideration and review of 

the entire record, including the written 

comment, the Department has 

determined to grant the exemption, as 

modified herein. The comment 

submitted by the Applicants to the 

Department has been included as part of 

the public record of the exemption 

application. The complete application 

file, including all supplemental 

submissions received by the 

Department, is available for public 

inspection in the Public Disclosure 

Room of the Employee Benefits Security 

Administration, Room N–1513, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

For a complete statement of the facts 

and representations supporting the 

Department’s decision to grant this 

exemption, refer to the Notice published 

on October 6, 2010 (75 FR 61932). 

FOR FURTHER INFORMATION CONTACT: 

Christopher Motta of the Department, 

telephone (202) 693–8544. (This is not 

a toll-free number.) 

Pacific Capital Bancorp Amended and 

Restated Incentive and Investment and 

Salary Savings Plan (the Plan) Located 

in Santa Barbara, California 

[Prohibited Transaction Exemption No. 

2011–20; Exemption Application No. 

D–11659] 

Exemption 

Section I: Transactions 

Effective October 27, 2010, the 

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

406(a)(1)(E), 406(a)(2), 406(b)(1), 

406(b)(2), and 407(a)(1)(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) and 

4975(c)(1)(E) of the Code,8 shall not 

apply: 

(1) To the acquisition of certain rights 

(the Rights) by the Plan in connection 

with an offering (the Offering) of shares 

of the common stock (the Stock) in 

Pacific Capital Bancorp (Bancorp) by 

Bancorp, a party in interest with respect 

to the Plan, and 

(2) To the holding of the Rights 

received by the Plan during the 

subscription period of the Offering; 

provided that the conditions as set forth 

in section II of this exemption were 

satisfied for the duration of the 

acquisition and holding. 

Section II: Conditions 

The relief provided in this exemption 

is conditioned upon adherence to the 

material facts and representations 

described, herein, and as set forth in the 

application file and upon compliance 

with the conditions, as set forth in this 

exemption. 

(1) The receipt of the Rights by the 

Plan occurred in connection with the 

Offering and was made available by 

Bancorp on the same terms to all 

shareholders of the Stock of Bancorp; 

(2) The acquisition of the Rights by 

the Plan resulted from an independent 

act of Bancorp, as a corporate entity, 

and all holders of the Rights, including 

the Plan, were treated in the same 

manner with respect to the acquisition 

of such Rights; 

(3) Each shareholder of the Stock, 

including the Plan, received the same 

proportionate number of Rights based 

on the number of shares of Stock of 

Bancorp held by such shareholder; 

(4) The Board of Directors of Bancorp 

decided that the Offering should be 

made available to all shareholders of the 

Stock, including the Plan, as record 

owner of the Stock held in the Plan on 

behalf of the accounts of the individual 

participants (the Invested Participants) 

all or a portion of whose accounts in the 

Plan are invested in the Stock, in 

accordance with provisions under such 

Plan for individually-directed 

investment of such accounts; 

(5) The decision to exercise the Rights 

or to refrain from exercising the Rights 

was made by each of the Invested 

Participants in accordance with the 

provision under the Plan for 

individually-directed accounts; and 

(6) No brokerage fees, commissions, 

subscription fees, or any other charges 

were paid by the Plan with respect to 

the Offering, and no brokerage fees, 

commissions, or other monies were paid 

by the Plan to any broker in connection 

with the exercise of the Rights. 

DATES: Effective Date: This exemption is 

effective, October 27, 2010, the date the 

Plan acquired the Rights. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption refer to the Notice of 

Proposed Exemption published on June 

13, 2011, at 76 FR 34266. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angelena C. Le Blanc of the Department, 

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

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

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

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 21st day of 

September 2011. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2011–24657 Filed 9–23–11; 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 


jlentini on DSK4TPTVN1PROD with NOTICES