Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12305 

exemption, a fiduciary of a plan will be 

deemed to be unrelated to, and 

independent of the Asset Manager and 

the Affiliated Broker-Dealer, if such 

fiduciary represents in writing that 

neither such fiduciary, nor any 

individual responsible for the decision 

to authorize or terminate authorization 

for the transactions described above, in 

Section I of this exemption, is an officer, 

director, or highly compensated 

employee (within the meaning of Code 

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

Manager and the Affiliated BrokerDealer, and represents that such 

fiduciary shall advise the Asset Manager 

within a reasonable period of time after 

any change in such facts occur. 

(2) Notwithstanding anything to the 

contrary in this Section III(h), a 

fiduciary of a plan is not independent: 

(i) If such fiduciary directly or 

indirectly controls, is controlled by, or 

is under common control with the Asset 

Manager or the Affiliated Broker Dealer; 

(ii) If such fiduciary directly or 

indirectly receives any compensation or 

other consideration from the Asset 

Manager, or the Affiliated Broker-Dealer 

for his or her own personal account in 

connection with any transaction 

described in this exemption; 

(iii) If any officer, director, or highly 

compensated employee (within the 

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

of the Asset Manager responsible for the 

transactions described above, in Section 

I of this exemption, is an officer, 

director, or highly compensated 

employee (within the meaning of Code 

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

the plan or of the fiduciary responsible 

for the decision to authorize or 

terminate authorization for the 

transactions described above, in Section 

I. However, if such individual is a 

director of the sponsor of the plan or of 

the responsible fiduciary, and if he or 

she abstains from participation in: (A) 

The choice of the plan’s investment 

manager/adviser; and (B) the decision to 

authorize or terminate authorization for 

transactions described above, in Section 

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

apply. 

(3) The term, ‘‘officer,’’ means a 

president, any vice president in charge 

of a principal business unit, division, or 

function (such as sales, administration, 

or finance), or any other officer who 

performs a policy-making function for 

Columbia or any affiliate thereof. 

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

the same meaning as defined in section 

2(36) of the Investment Company Act of 

1940 (the 1940 Act), as amended (15 

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

this exemption, mortgage-backed or 

other asset-backed securities rated by 

one of the Rating Organizations, as 

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

treated as debt securities. 

(j) The term, ‘‘Eligible Rule 144A 

Offering,’’ shall have the same meaning 

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

CFR 270.10f–3(a)(4)) under the 1940 

Act). 

(k) The term, ‘‘qualified institutional 

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

the same meaning as defined in SEC 

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

under the 1933 Act. 

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

means Standard & Poor’s Rating 

Services, Moody’s Investors Service, 

Inc., Fitch Ratings, Inc., Dominion Bond 

Rating Service Limited, and Dominion 

Bond Rating Service, Inc., or any 

successors thereto. 

(m) The term, ‘‘In-House Plan(s),’’ 

means an employee benefit plan(s) that 

is subject to the Act and/or the Code, 

and that is sponsored by the Applicant 

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

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

its own employees. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on 

December 22, 2009 at 74 FR 68110. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Gary H. Lefkowitz of the Department, 

telephone (202) 693–8546. (This is not 

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

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

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 9th day of 

March 2010. 

Ivan Strasfel, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

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

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Application Nos. and Proposed 

Exemptions; D–11500, Carle 

Foundation Hospital & Affiliates 

Pension Plan; and Barclays California 

Corporation (Barcal); et al. 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemptions. 

SUMMARY: This document contains 

notices of pendency before the 

Department of Labor (the Department) of 

proposed exemptions from certain of the 

prohibited transaction restrictions of the 

Employee Retirement Income Security 

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

the Internal Revenue Code of 1986 (the 

Code). 

Written Comments and Hearing 

Requests 

All interested persons are invited to 

submit written comments or requests for 

a hearing on the pending exemptions, 

unless otherwise stated in the Notice of 

Proposed Exemption, within 45 days 

from the date of publication of this 

Federal Register Notice. Comments and 

requests for a hearing should state: (1) 

The name, address, and telephone 

number of the person making the 

comment or request, and (2) the nature 

of the person’s interest in the exemption 

and the manner in which the person 

would be adversely affected by the 

exemption. A request for a hearing must 

also state the issues to be addressed and 

include a general description of the 

evidence to be presented at the hearing. 

ADDRESSES: All written comments and 

requests for a hearing (at least three 

copies) should be sent to the Employee 

Benefits Security Administration 


emcdonald on DSK2BSOYB1PROD with NOTICES
12306 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

1The Department expresses no opinion herein as 

to whether the acquisition and holding of the LPI 

by the Plan meets the requirements of Part 4 in Title 

I of the Act. 

2According to the applicant, the Employer has 

made a $15,000,000 commitment to the Fund, with 

capital contributions to the Fund totaling 

$4,575,000, as of September 14, 2009. It is 

represented that the decision to purchase an 

interest in the Fund on behalf of the Plan was a 

decision made independently of the Employer’s 

decision to purchase its own interest in the Fund; 

thus, according to the applicant, there was no 

agreement, arrangement, or understanding that the 

Plan’s investment would be a means of enabling the 

Employer or any other Plan fiduciary to invest in 

the Fund or otherwise use the Plan’s assets in a 

manner designed to benefit such fiduciary. 

(EBSA), Office of Exemption 

Determinations, Room N–5700, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Attention: Application No. llll, 

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 

applications 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 exemptions 

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 exemptions were requested in 

applications 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, these notices of proposed 

exemption are issued solely by the 

Department. 

The applications contain 

representations with regard to the 

proposed exemptions which are 

summarized below. Interested persons 

are referred to the applications on file 

with the Department for a complete 

statement of the facts and 

representations. 

Carle Foundation Hospital & Affiliates 

Pension Plan; Located in Urbana, 

Illinois 

[Application No. D–11500] 

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). 

If the proposed exemption is granted, 

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

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 to the sale of a certain 

limited partnership interest (the LPI) by 

the Carle Foundation Hospital & 

Affiliates Pension Plan (the Plan) to 

Carle Foundation Hospital (the 

Employer), a party in interest with 

respect to the Plan, provided that the 

following conditions are satisfied: 

(a) The sale is a one-time transaction 

for cash; 

(b) The terms and conditions of the 

sale are at least as favorable to the Plan 

as those that the Plan could obtain in an 

arm’s length transaction with an 

unrelated third party; 

(c) The sales price is the greater of: (1) 

The fair market value of the LPI as of the 

date of the sale, as determined by a 

qualified, independent appraiser, or (2) 

the Plan’s total capital contributions as 

of the date of the sale, plus imputed 

earnings (calculated based upon the 

applicable one-month Treasury bill 

rates) from the date of the Plan’s 

acquisition of the LPI to the date of the 

sale; 

(d) The Plan pays no commissions, 

fees, or other expenses in connection 

with the sale; and 

(e) The Plan fiduciaries review and 

approve the methodology used by the 

qualified, independent appraiser, ensure 

that such methodology is properly 

applied in determining the fair market 

value of the LPI, and also determine 

whether it is prudent to go forward with 

the proposed transaction. 

Summary of Facts and Representations 

1. The Carle Foundation Hospital & 

Affiliates Pension Plan (the Plan) is a 

money purchase pension plan 

sponsored by Carle Foundation Hospital 

(the Employer), who is located in 

Urbana, Illinois. The Plan had 

approximately 2,361 participants and 

beneficiaries, as of November 13, 2009, 

and total net assets of approximately 

$54,499,485, as of the same date. First 

Busey Trust & Investment Co. is the 

Plan’s directed trustee. 

The Plan historically did not allow 

participant-directed investments. Since 

the Plan’s initial investment in the 

subject limited partnership interest 

(LPI), the Employer determined that it 

would be appropriate and in the best 

interests of the participants and 

beneficiaries to make the Plan a 

participant-directed plan under section 

404(c) of the Act. Thus, the Plan was 

restructured to permit participant 

direction, effective March 1, 2008. In 

order to finalize this conversion to a 

participant-directed plan, the Plan must 

liquidate the LPI. 

2. The LPI is an interest in the 

Pantheon USA Fund VII, L.P. (the 

Fund). The Fund is a limited 

partnership that invests in private 

equity funds (i.e., a ‘‘fund of funds’’). 

The Fund’s objective is to generate 

superior, risk-adjusted returns for its 

investors through a diversified portfolio 

of leveraged buyout, venture capital, 

and special situation funds. According 

to the applicant, the Plan made a 

$1,500,000 commitment to the Fund in 

December 2006.1 As of September 14, 

2009, the Plan’s capital contributions to 

the Fund totaled $457,500.2

Pantheon Ventures, Inc. (Pantheon) is 

the Fund’s investment adviser. It is 

represented that the fees charged by the 

Fund are based on a percentage of the 

capital commitment made by investors 

to the Fund; the Plan is currently paying 

a fee of 0.75%. The terms of the Fund 

provide that the Fund will continue for 

thirteen years from the date of its first 

investment, which was made in May 

2006, and may be extended for up to 

three additional years. Furthermore, the 

Plan may not sell or otherwise transfer 

its LPI to another investor without the 

written consent of Pantheon (acting as 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12307 

3Because the Fund was closed to new investors 

as of June 29, 2007, Pantheon would need to grant 

a special waiver of the required $10 million 

commitment to any unrelated purchaser who is not 

already invested in the Fund. Pantheon has 

expressed a strong preference that the purchaser of 

the Plan’s LPI be an investor already invested in the 

Fund. Summit has not identified any investors, 

other than the Employer, whose stated investment 

goals would be consistent with purchasing the 

Plan’s LPI without a discount. The Department 

notes that no relief is being provided in this 

proposed exemption beyond the Plan’s sale of the 

LPI to the Employer for any additional prohibited 

transactions, if any, that may have occurred as a 

result of co-investing in the same Fund by the Plan 

and the Employer. 

4FAS 157 provides guidance for measuring the 

fair value of assets and liabilities, including hardto-value alternative investments. 

manager of the Fund’s General Partner, 

PUSA VII GP, LLC). 

The Plan’s investment adviser, 

Summit Strategies Group (Summit), 

consulted with Pantheon, and 

communicated information regarding 

the limited secondary market for the LPI 

to the Employer. Therefore, the 

Employer proposes to purchase the LPI 

from the Plan.3 However, the Carle 

Pension Plan Administrative Committee 

(the Plan Committee) will make the 

ultimate determination whether or not 

to sell the Plan’s LPI to the Employer; 

the Plan Committee is a named 

fiduciary of the Plan, along with the 

Employer’s Board of Directors, which 

monitors the Plan Committee. 

3. The LPI was appraised for the Plan 

Committee by Andrew S. Ward, 

Managing Director, and Mark F. 

Fournier, Director, of Stout Risius Ross, 

Inc. (SRR), consistent with the standards 

of Financial Accounting Standard (FAS) 

157, Fair Value Measurements, which is 

effective for financial statements issued 

for fiscal years beginning after 

November 15, 2007.4 The applicant 

represents that SRR is a qualified, 

independent appraiser located in 

Chicago, Illinois. SRR is a financial 

advisory firm that specializes in 

investment banking, valuation and 

financial opinions, and dispute advisory 

and forensic services. SRR represents 

that it has considerable experience 

providing valuation opinions of private 

equity funds, hedge funds, and similar 

private companies. It is represented that 

SRR is not related to, and has no interest 

in, the Employer or an affiliate thereof 

and that less than 1% of SRR’s gross 

annual income is derived from the 

Employer or an affiliate thereof. 

SRR’s valuation report of September 

11, 2009 states that the principal 

sources of information used to estimate 

the fair market value of the LPI 

included, but were not limited to: 

• The Fund’s Limited Partnership 

Agreement, dated April 28, 2006; 

• The Fund’s financial statements for 

the year ended December 31, 2008, 

audited by PriceWaterhouseCoopers; 

• The Fund’s Investment Adviser’s 

Report for the quarter ending March 31, 

2009; 

• The Fund’s Private Placement 

Memorandum, dated March 2006; 

• Discussions with Pantheon 

representatives concerning the assets 

and liabilities held by the Partnership; 

and 

• Public information regarding 

market evidence of lack of control and 

lack of marketability discounts. 

Regarding SRR’s valuation 

methodology, the report states that 

several valuation approaches were 

considered, including a Market 

Approach, an Income Approach, and an 

Asset Approach. SRR relied primarily 

on a Market Approach, a valuation 

technique whereby the value of the 

subject company is calculated based on 

the prices of actual transactions for 

similar companies. These observations 

make it possible to determine the value 

of shares that have no active market. 

This can be accomplished via either the 

Guideline Public Company Method or 

the Merger and Acquisition Method. 

SRR used the Guideline Public 

Company Method, a valuation 

technique whereby the value of a 

company is estimated by comparing it to 

similar public companies. SRR states 

that if the Fund were publicly traded, a 

Marketable, Non-controlling Interest 

Value of Equity in the Fund as a whole 

was estimated to be $440,000,000. They 

then calculated the Plan’s 0.07% 

interest in the Fund ($440,000,000 × 

0.0007 = $308,000) and subtracted a 

20% discount for lack of marketability 

($308,000 × 0.20 = $62,000) to arrive at 

a fair market value of $246,000 for the 

LPI ($308,000 ¥ $62,000 = $246,000), as 

of August 31, 2009. 

4. The Employer proposes to pay the 

Plan the greater of: (1) The fair market 

value of the LPI as of the date of the 

sale, as determined by SRR, or (2) the 

Plan’s total capital contributions, as of 

the date of the sale, plus imputed 

earnings (based upon the applicable 

one-month Treasury bill rates) from the 

date of the Plan’s acquisition of the LPI 

to the date of the sale. As of September 

14, 2009, the Plan’s capital 

contributions totaled $457,500 and 

imputed earnings were calculated to be 

$9,241. These amounts will be updated 

to reflect any additional capital 

contributions made to the Fund and 

earnings through the date of the actual 

sale. 

The applicant represents that the sale 

of the Plan’s LPI to the Employer is in 

the best interests of the Plan because it 

will enable the Plan to recoup its 

investment in the LPI, as well as realize 

a reasonable gain on investment. In 

addition, the continued holding of the 

LPI by the Plan following its conversion 

to a participant-directed Plan imposes a 

significant recordkeeping burden on the 

Plan. 

The sale of the LPI will be a one-time 

transaction for cash, and the Plan will 

incur no fees, commissions, or other 

expenses in connection with the sale. 

The Plan Committee will review and 

approve the methodology used by SRR 

and ensure that such methodology is 

properly applied in determining the fair 

market value of the LPI. The Plan 

Committee will also make the decision 

whether or not to proceed with the 

proposed sale of the LPI to the 

Employer; if the Plan Committee 

decides to proceed, it will have SRR 

update its valuation of the LPI as of the 

date of the sale. 

The Employer is bearing the costs of 

the exemption application, the appraisal 

of the LPI, and notification of interested 

persons. 

5. In summary, the applicant 

represents that the proposed transaction 

satisfies the statutory criteria for an 

exemption under section 408(a) of the 

Act for the following reasons: (a) The 

sale will be a one-time transaction for 

cash; (b) the terms and conditions of the 

sale will be at least as favorable to the 

Plan as those that the Plan could obtain 

in an arm’s length transaction with an 

unrelated third party; (c) the sales price 

will be the greater of: (1) The fair market 

value of the LPI as of the date of the 

sale, as determined by a qualified, 

independent appraiser, or (2) the Plan’s 

total capital contributions as of the date 

of the sale, plus imputed earnings 

(calculated based upon the applicable 

one-month Treasury bill rates) from the 

date of the Plan’s acquisition of the LPI 

to the date of the sale; (d) the Plan will 

pay no commissions, fees, or other 

expenses in connection with the sale; 

and (e) the Plan Committee will review 

and approve the methodology used by 

SRR, ensure that such methodology is 

properly applied in determining the fair 

market value of the LPI, and also 

determine whether it is prudent to go 

forward with the proposed transaction. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

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

a toll-free number.) 


emcdonald on DSK2BSOYB1PROD with NOTICES
12308 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

5For purposes of this proposed exemption, 

references to section 406 of ERISA should be read 

to refer as well to the corresponding provisions of 

section 4975 of the Code. 

6As of December 1, 2009, BGI became a whollyowned subsidiary of BlackRock, Inc. 

7 In June 2007, Whistlejacket Capital, LLC, White 

Pine Corp. Ltd., and White Pine Finance, LLC 

Barclays California Corporation 

(Barcal); Located in San Francisco, 

California 

Exemption Application Number D– 

11527 

Proposed Exemption 

The Department is considering 

granting an exemption under the 

authority of section 408(a) of the 

Employee Retirement Income Security 

Act of 1974 (ERISA or the Act) and 

section 4975(c)(2) of the Internal 

Revenue Code of 1986, as amended (the 

Code), and in accordance with the 

procedures set forth in 29 CFR Part 

2570, Subpart B (55 FR 32836, 32847, 

August 10, 1990).5

If the proposed exemption is granted, 

the restrictions of sections 406(a), 

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

8477(c)(2) of the Federal Employees’ 

Retirement System Act of 1986, as 

amended (FERSA), and the sanctions 

resulting from the application of section 

4975 of the Code, by reason of section 

4975(c)(1)(A) through (E) of the Code, 

shall not apply, effective September 4, 

2008, to the cash sales (the Sales) by the 

Barclays Global Investors ‘‘Money 

Market Fund’’ and ‘‘Cash Equivalent 

Fund II,’’ which are short-term collective 

investment funds (STIFs) managed or 

maintained by Barclays Global 

Investors, N.A. (BGI), of certain shortterm debt instruments (the Notes) to 

Barcal, provided that the following 

conditions are met: 

(a) The Sales were one-time 

transactions for cash payment made on 

a delivery versus payment (i.e., same 

day) basis in the amount described in 

paragraph (b); 

(b) The STIFs received an amount 

equal to the greater of: 

(1) The amortized cost (including 

accrued and unpaid interest) of the 

Notes, determined as of the dates of the 

Sales, or 

(2) The fair market value (including 

accrued and unpaid interest) of the 

Notes, determined by an independent 

third party source; 

(c) The STIFs did not bear any 

commissions, transaction costs or other 

expenses in connection with the Sales; 

(d) The terms and conditions of the 

Sales were at least as favorable to the 

STIFs as those available in an arm’slength transaction with an unrelated 

party. 

(e) BGI, as fiduciary of the STIFs, 

determined that the Sales were in the 

best interest of the STIFs and any 

employee benefit plans (the Plans) 

invested in the STIFs as of the dates of 

the Sales. 

(f) BGI took all appropriate actions 

necessary to safeguard the interests of 

the STIFs and any Plans invested in the 

STIFs in connection with the Sales. 

(g) If the exercise of any of Barcal’s 

rights, claims, or causes of action in 

connection with its ownership of the 

Notes results in Barcal recovering from 

the issuer of the Notes, or from any third 

party, an aggregate amount that is more 

than the sum of: 

(1) The purchase price paid for such 

Notes by Barcal; and 

(2) The interest due on the notes from 

and after the date Barcal purchased the 

Notes from the STIFs, 

Barcal will refund such excess 

amount promptly to the STIFs (after 

deducting all reasonable expenses 

incurred in connection with the 

recovery). 

(h) BGI maintains, or causes to be 

maintained, for a period of six (6) years 

from the date of any covered transaction 

such records as are necessary to enable 

the persons described below in 

paragraph (i)(1), to determine whether 

the conditions of this exemption have 

been met, except that— 

(1) No party in interest with respect 

to a Plan which engages in the covered 

transactions, other than BGI and its 

affiliates, shall be subject to a civil 

penalty under section 502(i) of the Act 

or the taxes imposed by section 4975(a) 

and (b) of the Code, if such records are 

not maintained, or not available for 

examination, as required, below, by 

paragraph (i)(1); 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because due to circumstances 

beyond the control of BGI, such records 

are lost or destroyed prior to the end of 

the six-year period. 

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

paragraph (i)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in paragraph (h) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of any Plan that 

engages in the covered transactions, or 

any duly authorized employee or 

representative of such fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a Plan that engages in the 

covered transactions, or any authorized 

employee or representative of these 

entities; or 

(D) Any participant or beneficiary of 

a Plan that engages in a covered 

transaction, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(2) None of the persons described, 

above, in paragraph (i)(1)(B)–(D) shall be 

authorized to examine trade secrets of 

BGI, or commercial or financial 

information which is privileged or 

confidential; and 

(3) Should BGI refuse to disclose 

information on the basis that such 

information is exempt from disclosure, 

BGI shall, by the close of the thirtieth 

(30th) day following the request, 

provide a written notice advising that 

person of the reasons for the refusal and 

that the Department may request such 

information. 

Effective Date: This proposed 

exemption, if granted, will be effective 

September 4, 2008. 

Summary of Facts and Representations 

1. BGI is a national banking 

association headquartered in San 

Francisco, California. BGI serves as 

fiduciary investment manager for 

employee benefit plans invested in 

separately managed accounts and 

pooled funds. BGI also manages certain 

assets for the Federal Thrift Savings 

Plan established pursuant to the 

provisions of FERSA. As of June 2008, 

BGI and its worldwide investment 

advisory affiliates had over $1.9 trillion 

in assets under management. BGI is a 

wholly owned subsidiary of Barcal, and 

an indirect majority-owned subsidiary 

of Barclays Bank PLC, a British bank.6

2. The pooled funds managed or 

maintained by BGI include short-term 

collective investment funds (STIFs). The 

STIFs generally invest in short-term 

investments of high quality and low 

risk, with the goal of protecting capital 

while securing a return better than a 

relevant benchmark, such as threemonth LIBOR. STIF investments 

include cash, as well as bank notes, 

corporate notes, government bills and 

other relatively safe short-term debt 

instruments. Employee benefit plans, 

including the Federal Thrift Savings 

Plan (collectively, the Plans), may invest 

in the STIFs. 

3. STIFs managed or maintained by 

BGI purchased notes issued by a 

structured investment vehicle (SIV) 

called Whistlejacket Capital Ltd. 

(Whistlejacket).7 SIVs are off-balanceVerDate Nov<24>2008 15:34 Mar 12, 2010 Jkt 220001 PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1

emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 12309 

merged into Whistlejacket. The applicant requests 

that the exemption proposed herein apply to the 

purchase by Barcal of securities issued by 

Whistlejacket or any of the merged entities or their 

predecessors. 

sheet vehicles that issue short and 

medium-term debt to finance their 

purchase of longer-term assets, 

including collateralized debt 

obligations. Many SIVs, including 

Whistlejacket, have lost significant 

value in the current credit crisis because 

the value of their underlying assets has 

dropped and investors who have bought 

their short-term debt have left the 

market. Whistlejacket is not managed or 

sponsored by or affiliated with Barcal or 

BGI or any of their affiliates 

(collectively, the Applicant). 

4. In February 2008, the market value 

of Whistlejacket’s assets less its senior 

liabilities fell to less than half the 

amount of its capital, which triggered 

the appointment of a receiver on 

February 11, 2008. On February 12, 

2008, two nationally-recognized 

statistical rating organizations 

downgraded short-term senior debt 

instruments issued by Whistlejacket (the 

Notes). On February 21, 2008, 

Whistlejacket began defaulting on the 

Notes. The Notes have dropped 

significantly in value. 

5. In September 2008, Barcal 

purchased the Notes from the STIFs to 

eliminate the negative impact of the 

Notes on the STIFs’ net asset value. As 

consideration for the Notes, Barcal paid 

the greater of: (a) The amortized cost 

(including accrued and unpaid interest) 

of the Notes, as of the dates of the Sales, 

or (b) the fair market value (including 

accrued and unpaid interest) of the 

Notes, as of the dates of the Sales, 

determined by an independent third 

party source. The Sales were on a 

‘‘delivery versus payment’’ (i.e., same 

day) basis in immediately available 

United States dollars. The STIFs 

incurred no commission or transaction 

costs in connection with the Sales. BGI 

represents that it determined that the 

Sales were in the best interest of the 

STIFs and any employee benefit plans 

(the Plans) invested in the STIFs, and 

that it took all appropriate actions 

necessary to safeguard the interests of 

the STIFs and the Plans. BGI represents 

that it will maintain all the records 

necessary to explain the transactions 

described herein for at least six years, 

and will make those records available to 

the Department and to the named 

fiduciary of each affected Plan. 

6. The Applicant represents that there 

were three Notes purchased by Barcal 

from two different STIFs. On September 

19, 2008, Barcal purchased $15,000,000 

of White Pine Finance LLC debt, CUSIP 

96432XKD4 from the Money Market 

Fund, with an acquisition price of 

99.99961824. The maturity date on the 

Note was September 26, 2008. There 

were no bids in the market for these 

securities, and the Applicant’s internal 

committee which prices those assets 

which cannot otherwise be priced 

estimated a fair market value for the 

Note of 93.0539. The Receiver for the 

Issuer of the Note, which is unrelated to 

Barcal, valued the Note at 95.1225. 

The second STIF that was involved 

was Cash Equivalent Fund II (CEFII). On 

September 4, 2008, Barcal purchased 

$40,000,000 of Whistlejacket Capital, 

LLC debt, CUSIP 96335WFT5, from 

CEFII, with an acquisition price of 

99.9997822. The maturity date on the 

Note was September 8, 2008. There 

were no bids in the market for these 

securities, and the Applicant’s internal 

committee which prices those assets 

which cannot otherwise be priced 

estimated a fair market value for the 

Note of 93.5312. The Receiver for the 

Issuer of the Note, which is unrelated to 

Barcal, valued the Note at 96.2597. 

On September 19, 2008, Barcal 

purchased $135,000,000 of White Pine 

Finance LLC debt, CUSIP 96432XKD4, 

from CEFII, with an acquisition price of 

99.99961824. The maturity date on the 

Note was September 26, 2008. There 

were no bids in the market for these 

securities, and the Applicant’s internal 

committee which prices those assets 

which cannot otherwise be priced 

estimated a fair market value for the 

Note of 93.0539. The Receiver for the 

Issuer of the Note, which is unrelated to 

Barcal, valued the Note at 95.1225. 

With respect to all three purchases, 

the Applicant represents that the price 

paid by Barcal was the amortized cost 

of the Note plus accrued interest. The 

Applicant represents that all three Sales 

took place within a week of the maturity 

date of the Notes because, within the 

judgment of BGI, the timing of the Sales 

maximized the value for the STIFs and 

did not result in the STIFs holding a 

defaulted Note. 

7. The Applicant represents that if the 

exercise of any of Barcal’s rights, claims, 

or causes of action in connection with 

its ownership of the Notes results in 

Barcal recovering from the issuer of the 

Notes, or from any third party, an 

aggregate amount that is more than the 

sum of: 

(1) The purchase price paid for such 

Notes by Barcal; and 

(2) The interest due on the Notes from 

and after the date Barcal purchased the 

Notes from the STIFs, 

Barcal will refund such excess amount 

promptly to the STIFs (after deducting 

all reasonable expenses incurred in 

connection with the recovery). 

8. In summary, the Applicant 

represents that the transactions satisfied 

the statutory criteria of section 408(a) of 

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

and section 8477(c)(3) of FERSA 

because: (a) Each Sale was a one-time 

transaction for cash; (b) with respect to 

all three Sales, the price paid by Barcal 

was the amortized cost of the Note plus 

accrued interest, which was greater than 

the fair market value of the Note as 

determined by the Receiver for the 

issuer of the Note; (c) no STIF paid any 

commissions or other transaction 

expenses with respect to the Sales; (d) 

BGI took all appropriate actions 

necessary to safeguard the interests of 

the STIFs and any Plans invested in the 

STIFs in connection with the Sales; (e) 

the terms and conditions of the Sales 

were at least as favorable to the STIFs 

as those available in an arm’s-length 

transaction with an unrelated party; (f) 

BGI determined that the Sales were in 

the best interest of the STIFs and any 

Plans invested in the STIFs as of the 

dates of the Sales; (g) BGI will maintain 

all the records necessary to explain the 

transactions described herein for at least 

six years, and will make those records 

available to the Department and to the 

named fiduciary of each affected Plan; 

and (h) Barcal will promptly refund to 

the STIFs any amount recovered from 

the issuer of the Notes or any third party 

in connection with the exercise of any 

rights, claims or causes of action 

resulting from its ownership of the 

Notes, if such amounts are in excess of: 

(1) The purchase price paid for such 

Notes by Barcal; and 

(2) The interest due on the Notes from 

and after the date Barcal purchased the 

Notes from the STIFs. 

Notice to Interested Persons 

The Applicant represents that because 

one of the STIFs was a sweep vehicle in 

which investing Plans changed over 

time, hundreds of Plans would need to 

be notified, at great additional expense 

to the Applicant, despite the fact that all 

the details of the Sales were disclosed 

in the STIFs’ financial statements which 

were made available to all Plan clients 

at the end of the year of the transactions. 

Therefore, the only practical means of 

notifying participants and beneficiaries 

of such Plans of this proposed 

exemption is by the publication of this 

notice in the Federal Register. 

Comments and requests for a hearing 

must be received by the Department not 

later than 30 days from the date of 

publication of this notice of proposed 

exemption in the Federal Register. 


emcdonald on DSK2BSOYB1PROD with NOTICES
12310 Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Notices 

FOR FURTHER INFORMATION CONTACT: Gary 

H. Lefkowitz of the Department, 

telephone (202) 693–8546. (This is not 

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions 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 exemptions, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transitional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(4) The proposed exemptions, if 

granted, will be subject to the express 

condition that the material facts and 

representations contained in each 

application are true and complete, and 

that each application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 9th day of 

March 2010. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2010–5536 Filed 3–12–10; 8:45 am] 

BILLING CODE 4510–29–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice (10–026)] 

NASA Advisory Council; Science 

Committee; Planetary Science 

Subcommittee; Meeting 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Notice of meeting. 

SUMMARY: The National Aeronautics and 

Space Administration (NASA) 

announces a meeting of the Planetary 

Science Subcommittee of the NASA 

Advisory Council (NAC). This 

Subcommittee reports to the Science 

Committee of the NAC. The meeting 

will be held for the purpose of soliciting 

from the scientific community and other 

persons scientific and technical 

information relevant to program 

planning. 

DATES: Thursday, April 8, 2010, 8 a.m. 

to 5 p.m., and Friday, April 9, 2010, 

8 a.m. to 3 p.m. EDT. 

ADDRESSES: NASA Headquarters, 300 E 

Street, SW., Room 9H40, Washington, 

DC 20546. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Marian Norris, Science Mission 

Directorate, NASA Headquarters, 

Washington, DC 20546, (202) 358–4452, 

fax (202) 358–4118, or 

mnorris@nasa.gov. 

SUPPLEMENTARY INFORMATION: The 

meeting will be open to the public up 

to the capacity of the room. The agenda 

for the meeting includes the following 

topics: 

—Planetary Science Division Update 

—Mars Exploration Program Update 

—Reports From Program Analysis 

Groups 

—Assessment of the Planetary Science 

Division Research and Analysis/ 

Supporting Research and Technology 

Activities 

—Update on NRC Decadal Survey in 

Planetary Science 

—Science Mission Directorate Science 

Plan 

It is imperative that the meeting be 

held on these dates to accommodate the 

scheduling priorities of the key 

participants. Attendees will be 

requested to sign a register and to 

comply with NASA security 

requirements, including the 

presentation of a valid picture ID, before 

receiving an access badge. Foreign 

nationals attending this meeting will be 

required to provide a copy of their 

passport, visa, or green card in addition 

to providing the following information 

no less than 10 working days prior to 

the meeting: Full name; gender; date/ 

place of birth; citizenship; visa/green 

card information (number, type, 

expiration date); passport information 

(number, country, expiration date); 

employer/affiliation information (name 

of institution, address, country, 

telephone); title/position of attendee. To 

expedite admittance, attendees with 

U.S. citizenship can provide identifying 

information 3 working days in advance 

by contacting Marian Norris via e-mail 

at mnorris@nasa.gov or by telephone at 

(202) 358–4452. 

Dated: March 8, 2010. 

P. Diane Rausch, 

Advisory Committee Management Officer, 

National Aeronautics and Space 

Administration. 

[FR Doc. 2010–5502 Filed 3–12–10; 8:45 am] 

BILLING CODE P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

Sunshine Act; Notice of Agency 

Meeting 

TIME AND DATE: 10 a.m., Thursday, 

March 18, 2010. 

PLACE: Board Room, 7th Floor, Room 

7047, 1775 Duke Street, Alexandria, VA 

22314–3428. 

STATUS: Open. 

MATTERS TO BE CONSIDERED: 

1. Proposed Rule—Parts 701, 723 and 

742 of NCUA’s Rules and Regulations, 

Regulatory Flexibility Program. 

2. Proposed Rule—Parts 701, 708a 

and 708b of NCUA’s Rules and 

Regulations, Fiduciary Duties at Federal 

Credit Unions; Mergers and Conversions 

of Insured Credit Unions. 

3. NCUA Strategic Plan 2010–2015 for 

60-day Public Comment. 

4. Insurance Fund Report. 

RECESS: 11 a.m. 

TIME AND DATE: 11:15 a.m., Thursday, 

March 18, 2010. 

PLACE: Board Room, 7th Floor, Room 

7047, 1775 Duke Street, Alexandria, VA 

22314–3428. 

STATUS: Closed. 

MATTERS TO BE CONSIDERED: 

1. Creditor Claim Appeal. Closed 

pursuant to Exemption (6). 

2. Consideration of Supervisory 

Activities (2). Closed pursuant to 

Exemptions (8), (9)(A)(ii) and 9(B). 

3. Personnel. Closed pursuant to 

Exemption (6). 


emcdonald on DSK2BSOYB1PROD with NOTICES