17966 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Notices 

B. Other Information 

A. OMB Information Collection No. 

1225–0086. Expires November 30, 2012 

According to the Paperwork 

Reduction Act of 1995, no persons are 

required to respond to a collection of 

information unless such collection 

displays a valid OMB control number. 

Public reporting burden for this 

collection of information is estimated to 

average 20 hours per response, 

including time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding the burden 

estimated or any other aspect of this 

collection of information, including 

suggestions for reducing this burden, to 

the U.S. Department of Labor, to the 

attention of Darrin A. King, 

Departmental Clearance Officer, 200 

Constitution Avenue, NW., Room N– 

1310, Washington, DC 20210. 

Comments may also be e-mailed to 

DOL_PRA_PUBLIC@dol.gov. Please do 

not return the completed application to 

this address. Send it to the sponsoring 

agency as specified in this solicitation. 

This information is being collected for 

the purpose of awarding a grant. The 

information collected through this SGA 

will be used by the Department to 

ensure that grants are awarded to the 

applicant best suited to perform the 

functions of the grant. Submission of 

this information is required in order for 

the applicant to be considered for award 

of this grant. Unless otherwise 

specifically noted in this 

announcement, information submitted 

in the respondent’s application is not 

considered to be confidential, and will 

be available to the public. Applications 

filed in response to this SGA may be 

posted on the Department’s Web site. 

Please be advised that the Grant 

Officer for this competition is B. Jai 

Johnson. 

Signed at Washington, DC, this 2nd day of 

April 2010. 

Donna Kelly, 

Grant Officer, 

Employment and Training Administration. 

[FR Doc. 2010–7912 Filed 4–7–10; 8:45 am] 

BILLING CODE 4510–FT–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Application No. and Proposed 

Exemption involving D–11565, Citizens 

Bank Wealth Management, N.A. 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemption. 

SUMMARY: This document contains a 

notice of pendency before the 

Department of Labor (the Department) of 

a proposed exemption from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). 

Written Comments and Hearing 

Requests 

All interested persons are invited to 

submit written comments or requests for 

a hearing on the pending exemption, 

unless otherwise stated in the Notice of 

Proposed Exemption, within 45 days 

from the date of publication of this 

Federal Register Notice. Comments and 

requests for a hearing should state: (1) 

the name, address, and telephone 

number of the person making the 

comment or request, and (2) the nature 

of the person’s interest in the exemption 

and the manner in which the person 

would be adversely affected by the 

exemption. A request for a hearing must 

also state the issues to be addressed and 

include a general description of the 

evidence to be presented at the hearing. 

ADDRESSES: All written comments and 

requests for a hearing (at least three 

copies) should be sent to the Employee 

Benefits Security Administration 

(EBSA), Office of Exemption 

Determinations, Room N–5649, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Attention: Application No. ll, stated 

in each Notice of Proposed Exemption. 

Interested persons are also invited to 

submit comments and/or hearing 

requests to EBSA via e-mail or FAX. 

Any such comments or requests should 

be sent either by e-mail to: 

‘‘moffitt.betty@dol.gov’’, or by FAX to 

(202) 219–0204 by the end of the 

scheduled comment period. The 

application for exemption and the 

comments received will be available for 

public inspection in the Public 

Documents Room of the Employee 

Benefits Security Administration, U.S. 

Department of Labor, Room N–1513, 

200 Constitution Avenue, NW., 

Washington, DC 20210. 

Warning: If you submit written 

comments or hearing requests, do not 

include any personally-identifiable or 

confidential business information that 

you do not want to be publiclydisclosed. All comments and hearing 

requests are posted on the Internet 

exactly as they are received, and they 

can be retrieved by most Internet search 

engines. The Department will make no 

deletions, modifications or redactions to 

the comments or hearing requests 

received, as they are public records. 

Notice to Interested Persons 

Notice of the proposed exemption 

will be provided to all interested 

persons in the manner agreed upon by 

the applicant and the Department 

within 15 days of the date of publication 

in the Federal Register. Such notice 

shall include a copy of the notice of 

proposed exemption as published in the 

Federal Register and shall inform 

interested persons of their right to 

comment and to request a hearing 

(where appropriate). 

SUPPLEMENTARY INFORMATION: The 

proposed exemption was requested in 

an application filed pursuant to section 

408(a) of the Act and/or section 

4975(c)(2) of the Code, and in 

accordance with procedures set forth in 

29 CFR part 2570, subpart B (55 FR 

32836, 32847, August 10, 1990). 

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 

requested to the Secretary of Labor. 

Therefore, this notice of proposed 

exemption is issued solely by the 

Department. 

The application contains 

representations with regard to the 

proposed exemption which is 

summarized below. Interested persons 

are referred to the application on file 

with the Department for a complete 

statement of the facts and 

representations. 

Citizens Bank Wealth Management, 

N.A., Located in Flint, Michigan 

[Application No. D–11565] 

Proposed Exemption 

The Department is considering 

granting an exemption under the 

authority of section 408(a) of the Act 

and section 4975(c)(2) of the Code, and 

in accordance with the procedures set 

forth in 29 CFR Part 2570 Subpart B (55 

FR 32836, 32847, August 10, 1990). 

Section I. Transaction 

If the proposed exemption is granted, 

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


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Notices 17967 

1For purposes of this proposed exemption, 

references to section 406 of the Act should be read 

to refer also to the corresponding provisions of 

section 4975 of the Code. 

2The Department expresses no opinion herein as 

to whether the acquisition and holding of the ARS 

Continued 

and (D) and section 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), (D), and (E) of the Code, 

shall not apply, effective December 16, 

2008, to the past sale of certain Auction 

Rate Securities (ARS) by the Four-Way 

Tool & Die, Inc. Profit Sharing Plan and 

Trust (the Plan) to Citizens Republic 

Bancorp (Citizens Republic), a party in 

interest with respect to the Plan, 

provided that the following conditions 

were satisfied: 1

(A) The subject ARS were acquired for 

the Plan by Citizens Bank Wealth 

Management, N.A. (the Trustee), acting 

in its capacity as trustee of the Plan, 

from an independent broker; 

(B) The last auction for each of the 

ARS was unsuccessful; 

(C) The sale of the ARS was directly 

between the Plan and Citizens Republic 

for solely cash consideration against 

prompt delivery of the ARS; 

(D) The sale price for each of the ARS 

was equal to the par value, plus any 

accrued but unpaid interest; 

(E) The Plan did not waive any rights 

or claims in connection with the sale; 

(F) The decision to sell the ARS to the 

Trustee was made by a Plan fiduciary 

independent of the Trustee; 

(G) The Plan did not pay any 

commissions or transaction costs in 

connection with the sale; 

(H) The sale was not part of an 

arrangement, agreement, or 

understanding designed to benefit a 

party in interest to the Plan; 

(I) Upon termination of the Plan, the 

Plan participants received 100 percent 

of their account balances, and as a result 

of the pre-termination sale of the ARS 

to Citizens Republic at face value, plus 

any accrued but unpaid interest, no 

participant was adversely affected by 

the absence of an auction market for the 

ARS or the resulting decline in their 

market value; 

(J) The Trustee and its affiliate, as 

applicable, maintain, or cause to be 

maintained, for a period of at least six 

(6) years from the date of the sale, such 

records as are necessary to enable the 

persons described in paragraph (K), 

below, to determine whether the 

conditions of this exemption, if granted, 

have been met, except that— 

(i) No party in interest with respect to 

the Plan that engaged in the sale, other 

than the Trustee and its affiliate, 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 are not available for 

examination, as required, below, by 

paragraph (K); and 

(ii) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of the Trustee or its 

affiliate, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period; and 

(K)(i) Except as provided in 

subparagraph (ii), below, and 

notwithstanding any provisions of 

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

of the Act, the records referred to in 

paragraph (J), above, are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(a) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission; 

(b) Any fiduciary of the Plan, or any 

duly authorized employee or 

representative of such fiduciary; or 

(c) The employer of participants of the 

Plan, and any employee organization 

whose members are covered by the Plan, 

or any authorized employee or 

representative of these entities; 

(ii) None of the persons described 

above in (b) or (c) of subparagraph (K) 

shall be authorized to examine trade 

secrets of the Trustee, or commercial or 

financial information which is 

privileged or confidential; and 

(iii) If the Trustee refuses to disclose 

information on the basis that such 

information is exempt from disclosure, 

the Trustee shall, by the close of the 

thirtieth (30th) day following the 

request, provide a written notice 

advising that person of the reasons for 

the refusal and that the Department may 

request such information. 

Section II. Definitions 

For purposes of this exemption: 

(A) The term ‘‘affiliate’’ means any 

person, directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person (with respect to 

the Trustee, ‘‘affiliate’’ includes, but is 

not limited to, its parent corporation, 

Citizens Republic Bancorp; 

(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 

Securities’’ or ‘‘ARS’’ means securities 

that are debt instruments (generally 

with a long-term nominal maturity) with 

an interest rate that is reset at specific 

intervals through a Dutch Auction 

process; 

(D) A person is ‘‘independent’’ of the 

Trustee if the person is (1) not the 

Trustee or an affiliate, and (2) not a 

‘‘relative’’ (as defined in section 3(15) of 

the Act) of the party engaging in the 

transaction; and 

(E) The term ‘‘Plan’’ means the FourWay Tool & Die, Inc. Profit Sharing Plan 

and Trust, which is an employee benefit 

plan as defined in section 3(3) of the 

Act, and its related trust, which is an 

entity holding plan assets within the 

meaning of 29 CFR 2510.3–101, as 

modified by section 3(42) of the Act. 

Summary of Facts and Representations 

1. Four-Way Tool & Die, Inc. (the 

Employer), located in Troy, Michigan, is 

engaged in the production of tooling, 

primarily for the automotive industry. 

The Four-Way Tool & Die, Inc. Profit 

Sharing Plan and Trust (the Plan), a 

defined contribution plan qualified 

under section 401(a) of the Code, was 

adopted by the Employer, effective 

October 1, 1969; was most recently 

amended and restated, effective October 

1, 2007; and was terminated, effective 

January 31, 2009, and all assets were 

liquidated and distributed to the Plan 

participants. As of December 16, 2008, 

the Plan had 16 active participants (and 

no beneficiaries receiving benefits) and 

total assets of approximately $4,166,240. 

The Plan maintained individual 

accounts for each participant, but 

participants were not permitted to direct 

the investment of his or her account. 

2. The applicant Citizens Bank Wealth 

Management, N.A. (also referred to 

herein as the Trustee) was the trustee of 

the Plan, beginning in October 1, 2007, 

having full investment discretion under 

a trust agreement with the Employer to 

invest Plan assets within the guidelines 

set by a written investment policy. The 

Trustee is a national banking association 

headquartered in Flint, Michigan and a 

wholly owned subsidiary of Citizens 

Republic Bancorp (Citizens Republic), a 

bank holding company. Among other 

things, the Trustee acts as an 

institutional trustee for employee 

benefit plans and is a registered 

investment advisor subject to the 

Investment Advisers Act of 1940. 

3. It is represented that, on various 

dates from November 2, 2007 to 

December 24, 2007, the Trustee 

acquired certain Auction Rate Securities 

(ARS) as an investment for the Plan 

through UBS Financial Services, an 

independent international broker.2 The 


sroberts on DSKD5P82C1PROD with NOTICES
17968 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Notices 

by the Plan met the requirements of Part 4 in Title 

I of the Act. 3The applicant represents that all auctions for the 

ARS subsequent to the subject sale also failed. 4According to the applicant, the anticipated sale 

of the Employer ultimately was not consummated 

at the last minute, due to the rapid decline in 

capital available to the prospective buyer in late 

2008, but the Plan has been terminated. 5According to the applicant, Mr. Erickson is a 

member of the Citizens Bank Southeast Michigan 

Advisory Board, an entity that has no management 

responsibility or authority and cannot bind Citizens 

Republic nor any of its affiliates; thus, the board 

had no role in the subject sale of ARS by the Plan 

to Citizens Republic. The board’s primary function 

is in the area of public relations—ensuring 

community involvement in determining important 

goals and strategies for the bank to benefit the 

community, identifying area charitable 

organizations in need of support, and suggesting 

ways in which the bank can effectively support the 

local economy. The board is comprised of various 

community leaders and bank customers, such as 

Mr. Erickson. Each member of the board receives a 

stipend of $550 per meeting attended; there are six 

or fewer meetings per year. 

6The Department notes that the general standards 

of fiduciary conduct set forth in the Act also apply 

to the subject transaction described herein. In this 

regard, section 404 duties respecting a plan solely 

in the interest of the plan’s participants and 

beneficiaries and in a prudent manner. 

Accordingly, the Plan fiduciary must act prudently 

with respect to, among other things: (1) the decision 

to sell an ARS, following disclosure by the Trustee 

of all of the relevant information; and (2) the 

negotiation of the terms of such sale, including the 

pricing. The Department further emphasizes that 

the prudence rule described in section 404 requires 

that fiduciaries conduct an objective and thorough 

decision making process that considers all of the 

relevant information prior to entering into financial 

transactions involving employee benefit plan assets 

to ensure that all risks associated with such 

transactions are understood. 

7The Department expresses no opinion herein as 

to whether the percentage of Plan assets invested 

in the subject ARS met the diversification 

requirement of Part 4 in Title I of the Act. 

8With respect to the ARS issued by the New 

Hampshire Higher Education Loan Corp, the 

applicant represents that the 0.000% coupon rate 

indicated in the chart was the result of earlier 

interest coupon overpayments by the issuer that 

had been made in error. In total, the Plan had 

already received a greater amount of interest than 

the issuer was responsible to pay under the terms 

of the security’s official statement. 

value of the ARS was allocated among 

all participants’ accounts (in the same 

manner as all other Plan investments) in 

accordance with the terms of the Plan. 

The Trustee describes the ARS and 

the arrangement by which they are 

purchased and sold as follows. The ARS 

are securities (in each case herein issued 

as debt) with an interest rate that is not 

fixed but is reset at periodic intervals 

pursuant to a process called a ‘‘Dutch 

Auction.’’ Investors submit orders to 

buy, hold, or sell a specific ARS to a 

broker-dealer selected by the entity that 

issued the ARS. The broker-dealers, in 

turn, submit all of these orders to an 

auction agent. The auction agent’s 

functions include collecting orders from 

all participating broker-dealers by the 

auction deadline, determining the 

amount of securities available for sale, 

and organizing the bids to determine the 

winning bid. If there are any buy orders 

placed into the auction at a specific rate, 

the auction agent accepts bids with the 

lowest rate above any applicable 

minimum rate and then successively 

higher rates up to the maximum 

applicable rate, until all sell orders and 

orders that are treated as sell orders are 

filled. Bids below any applicable 

minimum rate or above the applicable 

maximum rate are rejected. After 

determining the ‘‘clearing rate’’ for all of 

the securities at auction, the auction 

agent allocates the ARS available for 

sale to the participating broker-dealers 

based on the orders that they submitted. 

If there are multiple bids at the clearing 

rate, the auction agent will allocate 

securities among the bidders at such 

rate on a pro rata basis. In the event of 

a failed auction, existing ARS holders 

receive the maximum rate set in the 

official statements under which the ARS 

were issued (i.e., the ‘‘default rate’’) until 

such time as sufficient bids are received 

to set a new clearing rate at the next 

auction. 

4. According to the applicant, the 

subject ARS acquired for the Plan were 

backed by student loans and were 

primarily selected based upon the credit 

rating of the issuer. Soon after the Plan’s 

acquisition of the ARS, however, the 

unanticipated crisis in the national 

credit markets resulted in over ten 

months of failed auctions.3

Consequently, the Plan was unable to 

dispose of its ARS, thereby jeopardizing 

liquidity to make benefit payments, 

mandatory payments and withdrawals, 

and expense payments when due. The 

Employer’s business was also impacted 

by the general economic downturn and 

the dramatic decline in automobile 

sales. In late 2008, the Trustee was 

notified of a proposed sale of the 

Employer and of its intention to 

terminate the Plan by year’s end and 

distribute all assets to participants as 

soon as administratively possible. With 

the Employer likely to be sold and 

uncertainty about a new owner, Plan 

participants were anxious to receive 

their vested account balances.4

To relieve the situation, it is 

represented that the Trustee offered to 

have its parent corporation, Citizens 

Republic Bancorp, purchase the ARS 

directly from the Plan at their par value, 

plus accrued but unpaid interest. Larry 

Erickson, the owner and president of the 

Employer and a fiduciary of the Plan, 

orally consented after reviewing all the 

material terms of the sale,5 including 

the identity and par value of each of the 

ARS, the interest amounts that were due 

with respect to each of the ARS, and the 

most recent rate information for each of 

the ARS (to the extent that reliable 

information was available).6 The 

percentage of Plan assets involved in the 

sale on December 16, 2008 was 

approximately 61.56%.7

The following chart provides 

information on each of the subject ARS 

sold to Citizens Republic. The last 

column of the chart shows the ‘‘default 

rate’’ of interest for each of the ARS paid 

by Citizens Republic for accrued but 

unpaid interest from the date of the last 

interest payment until the date of sale. 

It is represented that none of the ARS 

was in default in payment of interest as 

of the sale date on December 16, 2008.8

Issuer name Face value CUSIP Nature of issuer Rating Secondary 

insurance 

Rate at sale 

date (%) 

Iowa Student Loan Liquidity Corp $300,000 462590GK0 ...... Private Entity .... Aa3/AA ............. AMBAC Assurance.3.135 

Access to Loans for Learning 

Student Loan Corporation.

300,000 00432MAR0 ...... Private Entity .... Aaa/AAA ........... None ................. 3.135 

Pennsylvania Higher Education 

Assistance Agency.

300,000 709163GR4 ...... Private Entity .... Aaa/AAA ........... AMBAC Assurance.3.198 

Connecticut Student Loan Foundation.200,000 207784AG4 ...... Private Entity .... Aaa/AAA ........... None ................. 3.398 

State Board of Regents of the 

State of Utah.

200,000 917546EM1 ...... Private Entity .... Aaa/AAA ........... None ................. 2.431 

Illinois Student Loan Assistance 

Commission.

350,000 452281HT8 ....... Private Entity .... Aaa/AAA ........... None ................. 3.325 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Notices 17969 

9According to the applicant, due to the failure of 

the primary market, a secondary market arose; 

information obtained from secondary market 

activity, as well as third party valuations, indicates 

that these particular ARS issues have traded at 

discounts averaging between 72.0% and 84.5% of 

par. 

Issuer name Face value CUSIP Nature of issuer Rating Secondary 

insurance 

Rate at sale 

date (%) 

Pennsylvania Higher Education 

Assistance Agency.

300,000 709163DA4 ...... Private Entity .... Aaa/AAA ........... None ................. 3.547 

New Hampshire Higher Education 

Loan Corp.

300,000 644616AV6 ....... Private Entity .... Aaa/AAA ........... None ................. 0.000 

Illinois Student Loan Assistance 

Commission.

300,000 452281HS0 ...... Private Entity .... Aaa/AAA ........... None ................. 2.695 

Iowa Student Assistance Commission.300,000 462590GF1 ...... Private Entity .... Aaa/AAA ........... None ................. 2.695 

Total ...................................... 2,850,000 

5. The Trustee represents that the 

Plan was their only employee benefit 

plan client holding ARS. However, 

numerous other individual and 

corporate customers of the trust 

department held ARS in their accounts. 

When the business decision was made 

for Citizens Republic to purchase the 

illiquid ARS from the Trustee’s 

customer accounts, it was determined 

that all purchases should be made on 

the same basis and at the same time, so 

as not to differentiate among different 

investors. It is represented that, because 

the Trustee’s intention was to complete 

the purchases prior to the close of 2008, 

seeking a prospective exemption for the 

one employee benefit plan customer 

would have either delayed the 

repurchases for all customers or 

potentially disadvantaged the Plan by 

not simultaneously participating in the 

repurchase program. The Plan did not 

waive any rights or claims in connection 

with the sale of ARS to Citizens 

Republic. 

The applicant represents that the sale 

of the ARS by the Plan to Citizens 

Republic was in the best interests of 

Plan because the sale permitted the Plan 

to pay benefits and expenses of 

administration and to proceed with 

termination, effective January 31, 2009, 

and the prompt distribution of cash to 

all participants. Further, according to 

the applicant, the extreme illiquidity in 

the credit markets at the time, and over 

ten months of failed auctions, made it 

very apparent that all the ARS held by 

the Plan had a fair market value below 

par and could not be worth more than 

that amount in the near term, given the 

historically low interest rate 

environment.9 The sale was for solely 

cash consideration against prompt 

delivery of the ARS, and the Plan did 

not pay any commissions or transaction 

costs in connection with the sale. It is 

represented that, upon termination of 

the Plan, the Plan participants received 

100 percent of their account balances, 

and as a result of the pre-termination 

sale of the ARS to Citizens Republic at 

face value, plus any accrued but unpaid 

interest, no participant was adversely 

affected by the absence of an auction 

market for the ARS or the resulting 

decline in their market value. 

The Trustee is bearing the costs of the 

exemption application. The Employer is 

bearing the costs of notifying interested 

persons. 

6. In summary, the subject transaction 

satisfied the statutory criteria for an 

exemption under section 408(a) of the 

Act for the following reasons: (a) The 

sale of the ARS was directly between 

the Plan and Citizens Republic for 

solely cash consideration against 

prompt delivery of the ARS; (b) the sale 

price for each of the ARS was equal to 

the par value, plus any accrued but 

unpaid interest; (c) the Plan did not 

waive any rights or claims in connection 

with the sale; (d) the decision to sell the 

ARS to the Trustee was made by the 

Employer, who is independent of the 

Trustee, after receiving disclosure of all 

the material terms of the sale; (e) the 

Plan did not pay any commissions or 

transaction costs in connection with the 

sale; and (f) upon termination of the 

Plan, the Plan participants received 100 

percent of their account balances, and as 

a result of the pre-termination sale of 

the ARS to Citizens Republic at face 

value, plus any accrued but unpaid 

interest, no participant was adversely 

affected by the absence of an auction 

market for the ARS or the resulting 

decline in their market value. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

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

a toll-free.) 

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 of the Act and/or the Code, 

including any prohibited transaction 

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) Before an exemption may be 

granted under section 408(a) of the Act 

and/or section 4975(c)(2) of the Code, 

the Department must find that the 

exemption is administratively feasible, 

in the interests of the plan and of its 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The proposed exemption, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transitional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(4) The proposed exemption, if 

granted, will be subject to the express 

condition that the material facts and 

representations contained in each 

application are true and complete, and 

that each application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 


sroberts on DSKD5P82C1PROD with NOTICES
17970 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Notices 

Signed at Washington, DC, this 2nd day of 

April, 2010. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2010–7892 Filed 4–7–10; 8:45 am] 

BILLING CODE 4510–29–P 

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 50–410; NRC–2010–0117] 

Nine Mile Point Nuclear Station, LLC; 

Nine Mile Point Nuclear Station, Unit 

No. 2; Draft Environmental 

Assessment and Finding of No 

Significant Impact Related to the 

Proposed License Amendment To 

Increase the Maximum Reactor Power 

Level, Correction 

AGENCY: U.S. Nuclear Regulatory 

Commission (NRC). 

ACTION: Draft Environmental 

Assessment and Finding of No 

Significant Impact; Correction. 

SUMMARY: This document corrects a 

draft Environmental Assessment (EA) 

appearing in the Federal Register on 

March 22, 2010 (75 FR 13600). This 

action is necessary to state the 

expiration date of the 30-day public 

comment period and to include 

instructions for submitting written 

comments to the NRC. The corrected 

draft EA is provided as follows: In 

accordance with 10 CFR 51.21, the NRC 

has prepared a draft EA as part of its 

evaluation of a request by Nine Mile 

Point Nuclear Station, LLC (the 

licensee) for a license amendment to 

increase the maximum thermal power at 

the Nine Mile Point Nuclear Station, 

Unit No. 2 (NMP2) from 3,467 

megawatts thermal (MWt) to 3,988 MWt. 

This represents a power increase of 

approximately 15 percent over the 

current licensed thermal power, and 

approximately 20 percent from the 

original licensed power level of 3,323 

MWt. The NRC staff did not identify any 

significant environmental impact 

associated with the proposed action 

based on its evaluation of the 

information provided in the licensee’s 

extended power uprate (EPU) 

application and other available 

information. The draft EA and Finding 

of No Significant Impact are being 

published in the Federal Register with 

a 30-day public comment period ending 

May 10, 2010. 

Environmental Assessment 

Plant Site and Environs 

The Nine Mile Point Nuclear Station 

(NMPNS) site is in the town of Scriba, 

in the northwest corner of Oswego 

County, New York, on the south shore 

of Lake Ontario. The site is comprised 

of approximately 900 acres that includes 

two nuclear reactors and ancillary 

facilities. NMP2 uses a boiling-water 

reactor and a nuclear steam supply 

system designed by General Electric. 

Identification of the Proposed Action 

By application dated May 27, 2009, 

the licensee requested an amendment 

for an EPU for NMP2 to increase the 

licensed thermal power level from 3,467 

MWt to 3,988 MWt, which represents an 

increase of approximately 15% above 

the current licensed thermal power and 

approximately 20% over the original 

licensed thermal power level. This 

change in core thermal level requires 

the NRC to amend the facility’s 

operating license. The operational goal 

of the proposed EPU is a corresponding 

increase in electrical output from 1,211 

MWe to 1,369 MWe. The proposed 

action is considered an EPU by NRC 

because it exceeds the typical 7% power 

increase that can be accommodated with 

only minor plant changes. EPUs 

typically involve extensive 

modifications to the nuclear steam 

supply system. 

The licensee plans to make the 

physical changes to plant components 

needed to implement the proposed EPU 

over the course of two refueling outages 

currently scheduled for 2010 and 2012. 

The actual power uprate, if approved by 

the NRC, would occur in a single 

increase following the 2012 refueling 

outage. 

The Need for the Proposed Action 

The proposed action provides 

NMPNS with the flexibility to increase 

the potential electrical output of NMP2 

and to supply low cost, reliable, and 

efficient electrical generation to New 

York State and the region. The 

additional 158 MWe would be enough 

to power approximately 174,000 homes. 

The proposed EPU at NMP2 would 

contribute to meeting the goals and 

recommendations of the New York State 

Energy Plan for maintaining the reserve 

margin and reducing greenhouse gas 

emissions with low cost, efficient, and 

reliable electrical generation. The 

proposed action provides the licensee 

with the flexibility to increase the 

potential electrical output of NMP2 to 

New York State and the region from its 

existing power station without building 

a new electric power generation station 

or importing energy from outside the 

region. 

Environmental Impacts of the Proposed 

Action 

As part of the licensing process for 

NMP2, the NRC published a Final 

Environmental Statement (FES) in May 

1985. The NRC staff noted that the 

impact of any activity authorized by the 

license would be encompassed by the 

overall action evaluated in the FES for 

the operation of NMP2. In addition, the 

NRC evaluated the environmental 

impacts of operating NMP2 for an 

additional 20 years beyond its current 

operating license, and determined that 

the environmental impacts of license 

renewal were small. The NRC staff’s 

evaluation is contained in NUREG– 

1437, ‘‘Generic Environmental Impact 

Statement for License Renewal of 

Nuclear Plant, Supplement 24, 

Regarding Nine Mile Point Nuclear 

Station, Units 1 and 2’’ (SEIS–24) issued 

in May 2006 (Agencywide Documents 

Access and Management System 

(ADAMS) Accession No. 

ML061290310). The NRC staff used 

information from the licensee’s license 

amendment request, the FES, and the 

SEIS–24 to perform its EA for the 

proposed EPU. 

The NMP2 EPU is expected to be 

implemented without making extensive 

changes to buildings or plant systems 

that directly or indirectly interface with 

the environment. All necessary 

modifications would be performed in 

existing buildings at NMP2. With the 

exception of the high-pressure turbine 

rotor replacement, the required 

modifications are generally small in 

scope. Other modifications include 

providing additional cooling for some 

plant systems, modifications to 

feedwater pumps, modifications to 

accommodate greater steam and 

condensate flow rates, and 

instrumentation upgrades that include 

minor items such as replacing parts, 

changing setpoints and modifying 

software. 

The sections below describe the nonradiological and radiological impacts in 

the environment that may result from 

the proposed EPU. 

Non-Radiological Impacts 

Land Use and Aesthetic Impacts 

Potential land use and aesthetic 

impacts from the proposed EPU include 

impacts from plant modifications at 

NMP2. While some plant components 

would be modified, most plant changes 

related to the proposed EPU would 

occur within existing structures, 

buildings, and fenced equipment yards 


sroberts on DSKD5P82C1PROD with NOTICES