10078 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices

8PTE 84–14 permits various parties which are

related to employee benefit plans to engage in

transactions involving plan assets, if among other

conditions, the assets are managed by QPAMs (i.e.,

banks, savings and loan associations, insurance

companies or investment advisers registered under

the Investment Advisers Act of 1940), which are

independent of the parties in interest and meet

certain financial standards. PTE 96–23 permits

various transactions involving employee benefit

plans whose assets are managed by INHAMs and

party in interest service providers.

represents that it would be impractical

to restrict the activities of all portfolio

companies in which the TA Fund

invests to assure that no such portfolio

company would ever become a service

provider to any TA Fund’s Plan

investors. According to TA, such

restriction would be contrary to the best

interest of the TA Funds and their

investors, particularly, their Plan

investors.

As another alternative, TA represents

that it could limit the offering of

interests in the TA Funds to those Plans

which could take advantage of

Prohibited Transaction Exemption (PTE)

84–14 (49 FR 9494 March 13, 1984), the

Class Exemption for Plan Asset

Transactions Determined by

Independent Qualified Professional

Asset Managers (QPAMs) or PTE 96–23

(61 FR 15975, April 10, 1996), the Class

Exemption for Plan Asset Transactions

Determined by In-House Asset Managers

(INHAMs).8 However, TA believes that

such an approach would be unduly

restrictive and not in the best interest of

the Plans since relatively few Plans

could take advantage of PTE 96–23.

Also Plans would be forced to hire a

QPAM and incur an additional expense

in order to invest in a TA Fund if the

Plan’s named fiduciary would otherwise

make that decision itself.

11. In summary, it is represented that

the proposed exemption has satisfied or

will satisfy the statutory conditions for

an exemption under section 408(a) of

the Act because: (a) At the

Determination Date, the TA Fund’s

party in interest status has or will, in all

cases, arise after the Plan has made its

binding commitment to invest in the TA

Fund, including its commitment to

make future capital contributions to the

TA Fund; (b) the decision by a Plan to

make capital contributions to the TA

Fund has been and will be made on

behalf of the Plan by a Plan fiduciary

which is independent of and unrelated

to TA and the portfolio company that is

acquired by the TA Fund; (c) TA will

not otherwise provide investment

advice to the Plan within the meaning

of 29 CFR 2510.3–21(c) of the Act with

respect to such Plan’s assets that are

invested in the TA Fund; (d) as of the

Determination Date, the capital

commitment of the Plan (together with

the capital commitment of any other

related Plans maintained by the same

employer or employee organization) has

not and will not exceed more than 15

percent of the total outstanding capital

commitments with respect to the TA

Fund; (d) at the Determination Date, the

percentage of the Plan’s assets

committed to be invested in the TA

Fund does not and will not exceed 5

percent of the Plan’s total assets and the

Plan’s aggregate commitment to all TA

Funds has not and will not exceed 25

percent of the Plan’s total assets; (e) a

Plan investing in a TA Fund has or will

have assets that are in excess of $50

million; and (f) TA has or will make

written disclosures to the Plan regarding

the TA Fund both at the time of the

initial commitment to invest in such

Fund as well as on an ongoing basis.

Notice to Interested Persons

Those persons who may be interested

in the pendency of the requested

exemption include fiduciaries of Plans

whose assets are currently invested in a

TA Fund. Accordingly, the Department

has determined that the only practical

form of providing notice to such Plan

fiduciaries is the distribution, by TA, of

a copy of the proposed exemption by

first class mail within 30 days of the

date of publication of the pendency

notice in the Federal Register. The

notice will include a copy of the notice

of proposed exemption, as published in

the Federal Register, as well as a

supplemental statement, as required,

pursuant to 29 CFR 2570.43(b)(2), which

shall inform interested persons of their

right to comment on the pending

exemption. Comments with respect to

the proposed exemption are due 60 days

after the date of publication of the

proposed exemption in the Federal

Register.

FOR FURTHER INFORMATION CONTACT: Ms.

Jan D. Broady of the Department,

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

a toll-free number.)

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and/or section 4975

(c)(2) of the Code does not believe a

fiduciary or other party in interest of

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 of the

plan;

(3) The proposed exemptions, if

granted, will be supplemental to, and

not in derogation of, any other

provisions of the Act and/or the Code,

including statutory or administrative

exemptions and transitional rules.

Furthermore, the fact that a transaction

is subject to an administrative or

statutory exemption is not dispositive of

whether the transaction is in fact a

prohibited transaction; and

(4) The proposed exemptions, if

granted, will be subject to the express

condition that the material facts and

representations contained in each

application are true and complete and

accurately describe all material terms of

the transaction which is the subject of

the exemption. In the case of continuing

exemption transactions, if any of the

material facts or representations

described in the application change

after the exemption is granted, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, application for a new

exemption may be made to the

Department.

Signed at Washington, DC, this 28th day of

February 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 97–5430 Filed 3–4–97; 8:45 am]

BILLING CODE 4510–29–M

[Prohibited Transaction Exemption 97–15;

Exemption Application No. D–10172, et al.]

Grant of Individual Exemptions; The

Chicago Corporation (TCC), et al.

AGENCY: Pension and Welfare Benefits

Administration, Labor.

ACTION: Grant of individual exemptions.

SUMMARY: This document contains

exemptions issued by the Department of

Labor (the Department) from certain of
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices 10079

the prohibited transaction restrictions of

the Employee Retirement Income

Security Act of 1974 (the Act) and/or

the Internal Revenue Code of 1986 (the

Code).

Notices were published in the Federal

Register of the pendency before the

Department of proposals to grant such

exemptions. The notices set forth a

summary of facts and representations

contained in each application for

exemption and referred interested

persons to the respective applications

for a complete statement of the facts and

representations. The applications have

been available for public inspection at

the Department in Washington, DC. The

notices also invited interested persons

to submit comments on the requested

exemptions to the Department. In

addition the notices stated that any

interested person might submit a

written request that a public hearing be

held (where appropriate). The

applicants have represented that they

have complied with the requirements of

the notification to interested persons.

No public comments and no requests for

a hearing, unless otherwise stated, were

received by the Department.

The notices of proposed exemption

were issued and the exemptions are

being granted solely by the Department

because, effective December 31, 1978,

section 102 of Reorganization Plan No.

4 of 1978 (43 FR 47713, October 17,

1978) transferred the authority of the

Secretary of the Treasury to issue

exemptions of the type proposed to the

Secretary of Labor.

Statutory Findings

• In accordance with section 408(a) of

the Act and/or section 4975(c)(2) of the

Code and the procedures set forth in 29

CFR part 2570, subpart B (55 FR 32836,

32847, August 10, 1990) and based upon

the entire record, the Department makes

the following findings:

(a) The exemptions are

administratively feasible;

(b) They are in the interests of the

plans and their participants and

beneficiaries; and

(c) They are protective of the rights of

the participants and beneficiaries of the

plans.

The Chicago Corporation (TCC),

Located in Chicago, IL

(Prohibited Transaction Exemption 97–15;

Application No. D–10172)

Exemption

Section I. Covered Transactions

The restrictions of section 406(a) of

the Act and the sanctions resulting from

the application of section 4975 of the

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

through (D) of the Code, shall not apply

to the proposed sale, for cash or other

consideration, by the Midwest Banc

Fund IV Group Trust (the BF IV Group

Trust) in which employee benefit plans

(the Plans) invest, of certain securities

(the Securities) that are held in the BF

IV Group Trust Portfolio, to a party in

interest with respect to a participating

Plan, where the part in interest proposes

to acquire or merge with a bank

company (the Bank Company) or a

financial services company (the

Financial Services Company) that

issued such securities.

In addition, the restrictions of 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)(E) of the Code, shall

not apply to the payment of a

performance fee (the Performance Fee)

by Plans investing in the BF IV Group

Trust to TCC.

This exemption is subject to the

following conditions as set forth below

in Section II.

Section II. General Conditions

(a) Prior to a Plan’s investment in the

BF IV Group Trust, a Plan fiduciary

which is independent of TCC and its

affiliates (the Independent Fiduciary)

approves such investment on behalf of

the Plan.

(b) Each Plan investing in the BF IV

Group Trust has total assets that are in

excess of $50 million.

(c) No Plan invests more than 10

percent of its assets in beneficial

interests (the Beneficial Interests) in the

BF IV Group Trust and such Beneficial

Interests held by the Plan may not

exceed 25 percent of the Group Trust.

(d) No Plan may invest more than 25

percent of its assets in investment

vehicles (i.e., collective investment

funds or separate accounts) managed or

sponsored by TCC and/or its affiliates.

(e) Prior to investing in the BF IV

Group Trust,

(1) Each Independent Fiduciary

receives a Private Placement

Memorandum and its supplement

containing description of all material

facts concerning the purpose, structure

and the operation of the BF IV Group

Trust.

(2) An Independent Fiduciary who

expresses further interest in the BF IV

Group Trust receives—

(A) A copy of the Group Trust

Agreement outlining the organizational

principles, investment objectives and

administration of the BF IV Group

Trust, the manner in which Beneficial

Interests may be redeemed, the duties of

the parties retained to administer the BF

IV Group Trust and the manner in

which BF IV Group Trust assets will be

valued;

(B) A copy of the Investment

Management Agreement describing the

duties and responsibilities of TCC, as

investment manager of the BF IV Group

Trust, the rate of compensation that it

will be paid and conditions under

which TCC may be terminated; and

(C) Copies of the proposed exemption

and grant notice covering the exemptive

relief provided herein.

(3) If accepted as an investor in the

Group Trust, the Independent Fiduciary

is—

(A) Furnished with the names and

addresses of all other participating

Plans;

(B) Required to acknowledge, in

writing, prior to purchasing a Beneficial

Interest in the BF IV Group Trust that

such Independent Fiduciary has

received copies of such documents; and

(C) Required to acknowledge, in

writing, to TCC that such fiduciary is

independent of TCC and its affiliates,

capable of making an independent

decision regarding the investment of

Plan assets, knowledgeable with respect

to the Plan in administrative matters

and funding matters related thereto, and

able to make an informed decision

concerning participation in the BF IV

Group Trust.

(f) Each Plan, including the trustee

(the Trustee) of the BF IV Group Trust,

receives the following written

disclosures from TCC with respect to its

ongoing participation in the BF IV

Group Trust:

(1) Within 120 days after the end of

each fiscal year of the BF IV Group

Trust as well as at the time of

termination, an annual financial report

containing a balance sheet for the BF IV

Group Trust as of the end of such fiscal

year and a statement of changes in the

financial position for the fiscal year, as

audited and reported upon by

independent, certified public

accountants. The annual report will also

disclose the fees paid or accrued to TCC.

(2) Within 60 days after the end of

each quarter (except in the last quarter)

of each fiscal year of the BF IV Group

Trust, an unaudited quarterly financial

report consisting of at least a balance

sheet for the BF IV Group Trust as of the

end of such quarter and a profit and loss

statement for such quarter. The

quarterly report will also specify the

fees that are actually paid to or accrued

to TCC.

(3) Such other information as may be

reasonably requested by the Plans or the

Trustee (e.g., certain trading activity and

portfolio status reports provided to the

Trustee as required by Prohibited

Transaction Exemption 86–128 (51 FR
10080 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices

41686, November 16, 1986) in order to

comply with the reporting requirements

of the Act and the Code.

(g) At least annually, TCC holds a

meeting of the participating Plans at

which time the Independent Fiduciaries

of investing Plans are given the

opportunity to decide on whether the

BF IV Group Trust, the Trustee or TCC

should be terminated as well as to

discuss any aspect of the BF IV Group

Trust and the agreements promulgated

thereunder with TCC.

(h) During each year of the BF IV

Group Trust’s existence, TCC

representatives are available to confer

by telephone or in person with

Independent Fiduciaries on matters

concerning such Group Trust.

(i) The terms of all transactions that

are entered into on behalf of the BF IV

Group Trust by TCC remain at least as

favorable to an investing Plan as those

obtainable in arm’s length transactions

with unrelated parties. In this regard,

the valuation of assets in the BF IV

Group Trust that is done in connection

with the payment of Performance Fees

is based upon independent market

quotations or (where the same are

unavailable) determinations made by an

independent appraiser.

(j) In the case of the sale by the BF IV

Group Trust of Securities to a party in

interest with respect to a participating

Plan, the party in interest is not TCC,

any employer of a participating Plan, or

any affiliated thereof, and the BF IV

Group Trust receives the same terms as

is offered to other shareholders of a

Bank Company or a Financial Services

Company.

(k) As to each Plan, the total fees paid

to TCC and its affiliates constitute no

more than ‘‘reasonable compensation’’

within the meaning of section 408(b)(2)

of the Act.

(l) TCC’s Performance Fee is based

upon a predetermined percentage of net

realized gains minus net unrealized

losses. In this regard.

(1) The Performance Fee is not to be

paid before December 31, 2001, which

represents the completion of the

projected acquisition phase of the BF IV

Group Trust, and not until all

participating Plans have received

distributions equal to 100 percent of

their capital contributions made to the

BF IV Group Trust.

(2) Prior to the termination of the BF

IV Group Trust, no more than 75

percent of the Performance Fee credited

to TCC is withdrawn from such Group

Trust.

(3) The Performance Fee account

established for TCC is credited with

realized gains and losses and charged

for net unrealized losses and fee

payments.

(4) No portion of the Performance Fee

is withdrawn if the Performance Fee

Account is in a deficit position.

(5) TCC repays all deficits in its

Performance Fee account and it

maintains a 25 percent cushion in such

account before receiving any further fee

payment.

(m) Either TCC or the Trustee, on

behalf of Plans participating in the BF

IV Group Trust, may terminate the

Investment Management Agreement at

any time pursuant to the provisions in

such agreement.

(n) TCC maintains, for a period of six

years, the records necessary to enable

the persons described in paragraph (o)

of this Section II to determine whether

the conditions of this exemption have

been met, except that—

(1) A prohibited transaction will not

be considered to have occurred if, due

to circumstances beyond the control of

TCC and/or its affiliates, the records are

lost or destroyed prior to the end of the

six year period; and

(2) No party in interest other than

TCC shall be subject to the civil penalty

that may be assessed under section

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

imposed by section 4975 (a) and (b) of

the Code, if the records are not

maintained, or are not available for

examination as required by paragraph

(o) below.

(o)(1) Except as provided in section

(o)(2) of this paragraph and

notwithstanding any provisions of

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

of the Act, the records referred to in

paragraph (n) of this Section II shall be

unconditionally available at their

customary location during normal

business hours by:

(A) Any duly authorized employee or

representative of the Department or the

Internal Revenue Service;

(B) Any Independent Fiduciary of a

participating Plan or any duly

authorized representative of such

Independent Fudiciary;

(C) Any contributing employer to any

participating Plan or any duly

authorized employee representative of

such employer; and

(D) Any participant or beneficiary of

any participating Plan, or any duly

authorized representative of such

participant or beneficiary.

(o)(2) None of the persons described

above in subparagraphs (B)–(D) of this

paragraph shall be authorized to

examine the trade secrets of TCC or

commercial or financial information

which is privileged or confidential.

Section III. Definitions

For purposes of this exemption,

(a) the term ‘‘TCC’’ means The

Chicago Corporation and any affiliate of

TCC as defined in paragraph (b) of

Section III.

(b) An ‘‘affiliate’’ of TCC includes—

(1) Any person directly or indirectly

through one or more intermediaries,

controlling, controlled by, or under

common control with TCC.

(2) Any officer, director or partner in

such person, and

(3) Any corporation or partnership of

which such person is an officer, director

or a 5 percent partner or owner.

(c) The term ‘‘control’’ means the

power to exercise a controlling

influence over the management or

policies of a person other than an

individual.

(d) An ‘‘Independent Fiduciary’’ is

Plan fiduciary who is independent of

TCC and its affiliates and is either a

Plan administrator, trustee, named

fiduciary, as the recordholder of

Beneficial Interests in the BF IV Group

Trust or an investment manager.

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 on January 14,

1997 at 62 FR 1913.

FOR FURTHER INFORMATION CONTACT: Ms.

Jan D. Broady of the Department,

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

a toll-free number.)

United States Trust Company of New

York and Certain of Its Affiliates,

Located in New York, New York

(Prohibited Transaction Exemption 97–17;

Application Nos. D–10234 and D–10235)

Section I—Exemption for In-Kind

Transfers of Assets

The restrictions of section 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, effective as of May 31,

1996, to the in-kind transfer to any

diversified open-end investment

company (the Fund or Funds) registered

under the Investment Company Act of

1940 (the ICA) to which the United

States Trust Company of New York or

any of its affiliates (collectively, US

Trust) serves as investment adviser and

may provide other services (i.e.

‘‘Secondary Services’’ as defined in

Section III(h) below, of the assets of

various employee benefit plans (the

Plan or Plans) that are either held in

certain collective investment funds (the

CIF or CIFs) maintained by US Trust or
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices 10081

otherwise held by US Trust as trustee,

investment manager, or in any other

capacity as fiduciary on behalf of the

Plans, in exchange for shares of such

Funds; provide that the following

conditions are met:

(a) A fiduciary (the Second Fiduciary)

who is acting on behalf of each affected

Plan and who is independent of and

unrelated to US Trust, as defined in

Section III(g) below, receives advance

written notice of the in-kind transfer of

assets of the Plans or the CIFs in

exchange for shares of the Fund and the

disclosures described in Section II(f)

below.

(b) On the basis of the information

described in Section II(f) below, the

Second Fiduciary authorizes in writing

the in-kind transfer of CIF or Plan assets

in exchange for shares of the Funds, the

investment of such assets in

corresponding portfolios of the Funds,

and the fees received by US Trust in

connection with its services to the

Fund. Such authorization by the Second

Fiduciary is to be consistent with the

responsibilities, obligations, and duties

imposed on fiduciaries by Part 4 of Title

I of the Act.

(c) No sales commissions are paid by

the Plans in connection with the in-kind

transfers of CIF or Plan assets in

exchange for shares of the Funds.

(d) All or a pro rata portion of the

assets of the Plans held in the CIFs or

all or a pro rata portion of the assets of

the Plans held by US Trust in any

capacities as fiduciary on behalf of such

Plans are transferred in-kind to the

Funds in exchange for shares of such

Funds. Notwithstanding the foregoing,

solely for purposes of this paragraph (d),

assets of the 401(k) Plan and ESOP of

United States Trust Company of New

York and Affiliated Companies (the UST

DC Plan) held by US Trust as trustee

and allocated to the U.S. Government

Short/Intermediate Term Investment

Fund shall be treated as assets held in

a CIF.

(e) The Plans or the CIFs receive

shares of the Funds that have a total net

asset value equal in value to the assets

of the Plans or the CIFs exchanged for

such shares on the date of transfer.

(f) With respect to any in-kind transfer

of CIF assets to a Fund, each Plan

receives shares of a Fund which have a

total net asset value that is equal to the

value of the Plan’s pro rata share of the

assets of the corresponding CIF on the

date of the transfer, based on the current

market value of the CIF’s assets, as

determined in a single valuation

performed in the same manner as of the

close of the same business day with

respect to all such Plans participating in

the transaction on such day, using

independent sources in accordance with

the procedures set forth in Rule 17a–

7(b) under the ICA (Rule 17a–7) for the

valuation of such assets. Such

procedures must require that all

securities for which a current market

price cannot be obtained by reference to

the last sale price for transactions

reported on a recognized securities

exchange or NASDAQ be valued based

on an average of the highest current

independent bid and lowest current

independent offer, as of the close of

business on the last business day prior

to the in-kind transfers, determined on

the basis of reasonable inquiry from at

least three sources that are brokerdealers or pricing services independent

of US Trust.

(g)(1) Not later than thirty (30) days

after completion of each in-kind transfer

of CIF or Plan assets in exchange for

shares of the Funds (except for certain

transactions described in paragraph

(g)(2) below), US Trust sends by regular

mail to the Second Fiduciary, a written

confirmation containing:

(i) the identity of each of the assets

that are valued for purposes of the

transaction in accordance with Rule

17a–7(b)(4) under the ICA;

(ii) the price of each of the assets

involved in the transaction; and

(iii) the identity of each pricing

service or market maker consulted in

determining the value of such assets;

(2) For the in-kind transfer of CIF

assets to the Funds which occurred on

June 28 and July 31, 1996, the written

confirmations described above in

paragraph (g)(1) were made by US Trust

to all Second Fiduciaries of the

appropriate Plans by October 15, 1996.

(h) For all in-kind transfer of CIF

assets, US Trust sends by regular mail

to the Second Fiduciary, no later than

ninety (90) days after completion of the

asset transfer made in exchange for

shares of the Funds, a written

confirmation containing:

(1) the number of CIF units held by

each affected Plan immediately before

the in-kind transfer, the related per unit

value, and the aggregate dollar value of

the units transferred; and

(2) the number of shares in the Funds

that are held by each affected Plan

following the in-kind transfer, the

related per share net asset value, and the

aggregate dollar value of the shares

received.

(i) The conditions set forth in

paragraphs (d), (e), (f), (o), (p), and (q)

of Section II below are satisfied.

Section II—Exemption for Receipt of

Fees From Funds

The restrictions of section 406(a) and

section 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, effective as of

June 30, 1996, to the receipt of fees by

US Trust from the Funds for acting as

the investment adviser for the Funds as

well as for acting as the custodian,

transfer agent, sub-administrator or for

providing other ‘‘Secondary Services’’

(as defined in Section III(h) below) to

the Funds in connection with the

investment in the Funds by Plans for

which US Trust acts as a fiduciary

(Client Plans), other than Plans

established and maintained by US Trust

for the benefit of its employees and their

beneficiaries (Bank Plans), provided that

the following conditions are met:

(a) No sales commissions are paid by

the Client Plans in connection with

purchases or sales of shares of the

Funds and no redemption fees are paid

in connection with the sale of such

shares by the Plans to the Funds.

(b) The price paid or received by the

Client Plans for shares in the Funds is

the net asset value per share, as defined

in Section III(e), at the time of the

transaction and is the same price which

would have been paid or received for

the shares by any other investor at that

time.

(c) Neither US Trust nor any affiliate

(including officers, directors and other

persons, as defined in Section III(b)

below) purchases from or sells to the

Client Plans any shares of the Funds.

(d) For each Client Plan, the

combined total of all fees received by

US Trust for the provision of services to

the Client Plan, and in connection with

the provision of services to any of the

Funds in which the Plan may invest, are

not in excess of ‘‘reasonable

compensation’’ within the meaning of

section 408(b)(2) of the Act.

(e) US Trust or an affiliate does not

receive any fees payable, pursuant to

Rule 12b–1 under the ICA (the 12b–1

Fees) in connection with the

transactions.

(f) The Second Fiduciary who is

acting on behalf of a Client Plan receives

in advance of the investment by a Plan

in any of the Funds a full and detailed

written disclosure of information

concerning such Fund including, but

not limited to:

(1) a current prospectus for each

portfolio of each of the Funds in which

such Client Plan is considering

investing;

(2) a statement describing the fees for

investment management, investment

advisory, or other similar services, any

fees for Secondary Services, as defined

in Section III(h) below, and all other

fees to be charged to or paid by the
10082 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices

Client Plan and by such Funds to US

Trust, including the nature and extent of

any differential between the rates of

such fees;

(3) the reasons why US Trust may

consider such investment to be

appropriate for the Client Plan;

(4) a statement describing whether

there are any limitations applicable to

US Trust with respect to which assets of

a Client Plan may be invested in the

Funds, and, if so, the nature of such

limitations; and

(5) upon request of the Second

Fiduciary, a copy of the proposed

exemption and/or a copy of the final

exemption (once such documents are

published in the Federal Register).

(g) On the basis of the information

described in Section II(f) above, the

Second Fiduciary authorizes in writing

the investment of assets of the Client

Plan in shares of the Fund and the fees

to be paid to US Trust in connection

with its services to the Funds. The

authorization may be the Second

Fiduciary must be consistent with the

duties, responsibilities and obligations

imposed on fiduciaries by Part 4 of Title

I of the Act.

(h) The authorization described above

in Section II(g) is terminable at will by

the Second Fiduciary of a Client Plan,

without penalty to such Plan, upon

receipt by US Trust of written notice of

termination. Such termination will be

effected by US Trust selling the shares

of the Fund held by the affected Client

Plan within one business day following

receipt by US Trust of the termination

form (the Termination Form), as defined

in Section III(i) below, or any other

written notice of termination; provided

that if, due to circumstances beyond the

control of US Trust, the sale cannot be

executed within one business day, US

Trust shall have one additional business

day to complete such sale.

(i) Each Client Plan receives a credit,

either through cash or, if applicable, the

purchase of additional shares of the

Funds, pursuant to an annual election,

which may be revoked at any time,

made by the Client Plan, of such Plan’s

proportionate share of all investment

advisory fees charged to the Funds by

US Trust, including any investment

advisory fees paid by US Trust to third

party sub-advisers, within not more

than one business day after the receipt

of such fees by US Trust. The crediting

of all such fees to the Client Plans by US

Trust is audited by an independent

accounting firm on at least an annual

basis to verify the proper crediting of

the fees to each Client Plan.

(j) In the event of an increase in the

rate of any fees paid by the Funds to US

Trust regarding any investment

management services, investment

advisory services, or fees for similar

services that US Trust provides to the

Funds over an existing rate for such

services that had been authorized by a

Second Fiduciary, in accordance with

Section II(g), US Trust will, at least

thirty (30) days in advance of the

implementation of such increase,

provide a written notice (separate from

the Fund prospectus) to the Second

Fiduciary of each of the Client Plans

invested in a Fund which is increasing

such fees.

(k) In the event of an addition of a

Secondary Service, as defined in

Section III(h) below, provided by US

Trust to the Fund for which a fee is

charged or an increase in the rate of any

fee paid by the Funds to US Trust for

any Secondary Service that results

either from an increase in the rate of

such fee or from the decrease in the

number or kind of services performed

by US Trust for such fee over an existing

rate for such Secondary Service which

had been authorized by the Second

Fiduciary of a Client Plan, in

accordance with Section II(g), US Trust

will at least thirty (30) days in advance

of the implementation of such

additional service for which a fee is

charged or fee increase, provide a

written notice (separate from the Fund

prospectus) to the Second Fiduciary of

each of the Client Plans invested in a

Fund which is adding a service or

increasing fees. Such notice shall be

accompanied by the Termination Form,

as defined in Section III(i) below.

(l) The Second Fiduciary is supplied

with a Termination Form at the times

specified in paragraphs (k), (l), and (m)

of this Section II, which expressly

provides an election to terminate the

authorization, described above in

Section II(g), with instructions regarding

the use of such Termination Form

including statements that:

(1) The authorization is terminable at

will by any of the Client Plans, without

penalty to such Plans. Such termination

will be effected by US Trust selling the

shares of the Fund held by the Client

Plans requesting termination within one

business day following receipt by US

Trust, either by mail, hand delivery,

facsimile, or other available means at

the option of the Second Fiduciary, of

the Termination Form or any other

written notice of termination; provided

that if, due to circumstances beyond the

control of US Trust, the sale of shares

of such Client Plans cannot be executed

within one business day, U.S. shall have

one additional business day to complete

such sale; and

(2) Failure by the Second Fiduciary to

return the Termination Form on behalf

of a Client Plan will be deemed to be an

approval of the additional Secondary

Service for which a fee is charged or

increase in the rate of any fees, if such

Termination Form is supplied pursuant

to paragraphs (k) and (l) of this section

II, and will result in the continuation of

the authorization, as described in

Section II(g), of US Trust to engage in

the transactions on behalf of such Client

Plan.

(m) The Second Fiduciary is supplied

with a Termination Form, annually

during the first quarter of each calendar

year, beginning with the first quarter of

the calendar year that begins after the

date this exemption is published in the

Federal Register and continuing for

each calendar year thereafter; provided

that the Termination Form need not be

supplied to the Second Fiduciary,

pursuant to this paragraph (m), sooner

than six months after a Termination

Form is supplied pursuant to Section II

(k) and (l), except to the extent required

by such paragraphs to disclose an

additional Secondary Service for which

a fee is charged or an increase in fees.

(n)(1) With respect to each of the

Funds in which a Client Plan invests,

US Trust will provide the Second

Fiduciary of such Plan:

(A) at least annually with a copy of an

updated prospectus of such Fund;

(B) upon the request of such Second

Fiduciary, with a report or statement

(which may take the form of the most

recent financial report, the current

statement of additional information, or

some other written statement) which

contains a description of all fees paid by

the Fund to US Trust; and

(2) With respect to each of the Funds

in which a Client Plan invests, in the

event such Fund places brokerage

transactions with US Trust, US Trust

will provide the Second Fiduciary of

such Plan at least annually with a

statement specifying:

(A) the total, expressed in dollars,

brokerage commissions of each Fund’s

investment portfolio that are paid to US

Trust by such Fund;

(B) the total, expressed in dollars, of

brokerage commissions of each Fund’s

investment portfolio that are paid by

such Fund to brokerage firms unrelated

to US Trust;

(C) the average brokerage

commissions per share, expressed as

cents per share, paid to US Trust by

each portfolio of a Fund; and

(D) the average brokerage

commissions per share, expressed as

cents per share, paid by each portfolio

of a Fund to brokerage firms unrelated

to US Trust.

(o) All dealings between the Client

Plans and any of the Funds are on a
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices 10083

basis no less favorable to such Plans that

dealings between the Funds and other

shareholders holding the same class of

shares as the Plans.

(p) US Trust maintains for a period of

six (6) years the records necessary to

enable the persons, as described in

Section II(q) below, to determine

whether the conditions of the

exemption have been met, except that:

(1) a prohibited transaction will not

be considered to have occurred if, due

to circumstances beyond the control of

US Trust, the records are lost or

destroyed prior to the end of the six (6)

year period, and

(2) no party in interest, other than US

Trust, shall be subject to the civil

penalty that may be assessed under

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

imposed by section 4975 (a) and (b) of

the Code, if the records are not

maintained, or are not available for

examination as required by Section II(q)

below.

(q)(1) Except as provided in Section

II(q)(2) and notwithstanding any

provisions of Section 504 (a)(2) and (b)

of the Act, the records referred to in

Section II(p) above are unconditionally

available at their customary location for

examination during normal business

hours by—

(i) Any duly authorized employee or

representative of the Department or the

Internal Revenue Service;

(ii) Any fiduciary of each of the Plans

who has authority to acquire or dispose

of shares of any of the Funds owned by

such a Plan, or any duly authorized

employee or representative of such

fiduciary; and

(iii) Any participant or beneficiary of

the Plans or duly authorized employee

or representative of such participant or

beneficiary;

(2) None of the persons described in

paragraph (q)(1)(ii) and (q)(1)(iii) of

Section II shall be authorized to

examine trade secrets of US Trust, or

commercial or financial information

which is privileged or confidential.

Section III—Definitions

For purposes of this exemption,

(a) The term ‘‘US Trust’’ means the

United States Trust Company of New

York and an affiliate, as defined in

Section III(b)(1).

(b) An ‘‘affiliate’’ of a person includes:

(1) Any person directly or indirectly

through one or more intermediaries,

controlling, controlled by, or under

common control with the person;

(2) any officer, director, employee,

relative, or partner in any such person;

and

(3) Any corporation or partnership of

which such person is an officer,

director, partner, or employee.

(c) The term ‘‘control’’ means the

power to exercise a controlling

influence over the management or

policies of a person other than an

individual.

(d) The term ‘‘Fund or Funds’’ means

any diversified open-end investment

company or companies registered under

the ICA for which US Trust serves as

investment adviser, and may also

provide custodial or other services as

approved by such Funds.

(e) The term, ‘‘net asset value’’ means

the amount for purposes of pricing all

purchases and sales calculated by

dividing the value of all securities,

determined by a method as set forth in

a Fund’s prospectus and statement of

additional information, and other assets

belonging to each of the portfolios in

such Fund, less the liabilities charged to

each portfolio, by the number of

outstanding shares.

(f) The term, ‘‘relative,’’ means a

‘‘relative’’ as that term is defined in

section 3(15) of the Act (or a ‘‘member

of the family’’ as that term is defined in

section 4975(e)(6) of the Code), or a

brother, a sister, or a spouse of a brother

or a sister.

(g) The term, ‘‘Second Fiduciary,’’

means a fiduciary of a plan who is

independent of and unrelated to US

Trust. For purposes of this exemption,

the Second Fiduciary will not be

deemed to be independent of and

unrelated to US Trust if:

(1) Such Second Fiduciary directly or

indirectly controls, is controlled by, or

is under common control with US Trust;

(2) Such Second Fiduciary, or any

officer, director, partner, employee, or

relative of such Second Fiduciary is an

officer, director, partners, or employee

of US Trust (or is a relative of such

persons);

(3) Such Second Fiduciary directly or

indirectly receives any compensation or

other consideration for his or her own

personal account in connection with

any transaction described in this

exemption; provided, however, that

with respect to the Bank Plans, the

Second Fiduciary may receive

compensation from US Trust in

connection with the transactions

contemplated herein, but the amount or

payment of such compensation may not

be contingent upon or be in any way

affected by the Second Fiduciary’s

ultimate decision regarding whether the

Bank Plans participate in the

transactions.

With the exception of the Bank Plans,

if an officer, director, partner, or

employee of US Trust (or a relative of

such persons), is a director of such

Second Fiduciary, and if he or she

abstains from participation in (i) the

choice of the Plan’s investment

manager/advisor, (ii) the approval of

any purchase or sale by the Plan of

shares of the Funds, and (iii) the

approval of any change of fees charged

to or paid by the Plan, in connection

with any of the transactions described

in sections I and II above, then Section

III(g)(2) above shall not apply.

(h) The term, ‘‘Secondary Service,’’

means a service, other than an

investment management, investment

advisory, or similar service, which is

provided by US Trust to the Funds,

including but not limited to custodial,

accounting, administrative, or any other

service. However, for purposes of

transactions which occurred prior to the

date this exemption is granted, the term

‘‘Secondary Service’’ does not include

any brokerage services provided by US

Trust to the Funds.

(i) The term ‘‘Termination Form,’’

means the form supplied to the Second

Fiduciary, at the times specified in

paragraph (k), (l), and (m) of Section II

above, which expressly provides an

election to the Second Fiduciary to

terminate on behalf of the Plans the

authorization, described in Section II(g).

Such Termination Form may be used at

will by the Second Fiduciary to

terminate such authorization without

penalty to the Plans and to notify US

Trust in writing to effect such

termination by selling the shares of the

Fund held by the Plans requesting

termination within one business day

following receipt by US Trust, either by

mail, hand delivery, facsimile, or other

available means at the option of the

Second Fiduciary, of written notice of

such request for termination; provided

that if, due to circumstances beyond the

control of US Trust, the sale cannot be

executed within one business day, US

Trust shall have one additional business

day to complete such sale.

(j) The term ‘‘UST DB Plan’’ means

the Employees’ Retirement Plan of

United States Trust Company of New

York and Affiliated Companies.

(k) The term ‘‘UST DC Plan’’ means

the 401(k) Plan and ESOP of United

States Trust Company of New York and

Affiliated Companies.

(l) The term ‘‘Bank Plan’’ means the

UST DB Plan and the UST DC Plan.

(m) The term ‘‘Client Plan’’ means any

‘‘employee benefit plan’’ within the

meaning of section 3(3) of the Act and/
10084 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices

1For purposes of this exemption, references to

Title I of the Act, unless otherwise specified, refer

also to the corresponding provisions of the Code.

or any ‘‘plan’’ within the meaning of

Code section 4975 (e)(1).1

EFFECTIVE DATE: This exemption is

effective as of May 31, 1996, for

transactions described in Section I, and

June 30, 1996, for transactions described

in Section II.

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 17, 1996, at 61 FR 66320.

WRITTEN COMMENTS AND MODIFICATIONS:

US Trust submitted the following

comments and requests for

modifications regarding the notice of

proposed exemption (the Proposal).

First, US Trust notes that paragraph

17 of the Summary of Facts and

Representations in the Proposal (the

Summary) states that to the extent that

US Trust does not currently execute

brokerage services for any Fund, but

proposes to do so in the future, US Trust

intends to provide at least 30 days

advance written notice of such

additional service. US Trust represents

that pursuant to a proposal adopted by

the Funds’ boards of directors prior to

the December 17th publication of the

Proposal in the Federal Register, the

Funds’ retained an affiliate of US Trust

to provide such brokerage services. US

Trust states that these brokerage services

commenced on January 3, 1997.

US Trust represents that written

notice of this additional service was

provided to each Client Plan that was

affected by the in-kind conversion

transactions prior to the commencement

of such service by US Trust. However,

due to holiday schedules, the notices

were sent late and were not sent at least

3 days in advance of the commencement

of the brokerage services, as was

intended by US Trust. In addition to the

late notices, for all Client Plans, US

Trust proposes to include another copy

of the notice in each Client Plan’s next

account statement.

US Trust notes that section II(n)(2) of

the Proposal requires certain annual

disclosures regarding brokerage services

(which US Trust intends to provide). In

addition, the definition of ‘‘Secondary

Service’’ in section III(h) expressly

exempts brokerage services from the

requirements of section II(k), including

the 30-day advance notice requirement

for the addition of a Secondary Service.

Accordingly, US Trust proposes no

change in the language of the Proposal

and merely notes for the record this

change in the facts from those set out in

paragraph 17 of the Summary.

In this regard, the Department

acknowledges that advance notices to

the Client Plans regarding the brokerage

services were not sent at least 30 days

prior to the commencement of such

services by US Trust, as previously

represented. The Department also

acknowledges that an advance notice

requirement of brokerage services was

not specifically set forth in the Proposal.

However, the Department believes that

prior notice of an additional ‘‘Secondary

Service’’ to a Fund for which a fee will

be charged should include notice of any

brokerage services to be provided by US

Trust to the Fund. Therefore, the

Department has modified the definition

of ‘‘Secondary Service’’ contained in

section III(h) of the Proposal by deleting

the reference which exempted brokerage

services from the notice requirements of

section II(k) and adding the following

language:

‘‘* * * However, for purposes of

transactions which occurred prior to the

date this exemption is granted, the term

‘Secondary Service’ does not include

any brokerage services provided by US

Trust to the Funds.’’ [emphasis added]

Second, US Trust states that the

Proposal does not contain a definition of

the term ‘‘Plan’’ or ‘‘Client Plan’’. US

Trust notes that in paragraph 2 of the

Summary, the Plans to which the

exemption would apply presently

consist of Code section 401(a) qualified

plans that are ‘‘pension plans’’ under

section 3(2) of the Act. Paragraph 2

states that US Trust requests that the

exemption apply to any ‘‘employee

benefit plan’’ within the meaning of

section 3(3) of the Act and/or any

‘‘plan’’ within the meaning of Code

section 4975(e)(1). Thus, US Trust

suggests that the operative language of

the exemption be modified to specify

that all such plans will be covered.

In this regard, the Department has

added, as section III(m) above, a

definition of the term ‘‘Client Plan’’

(with a footnote regarding references to

Title I of the Act and the corresponding

provisions of the Code) in order to

respond to the clarification request

made by US Trust.

Third, US Trust also requests that the

Department clarify that the requirement

of section II(f)(5)—that US Trust provide

each Client Plan’s Second Fiduciary

(upon request) with a copy of the

proposed and/or final exemption in

advance of the Plan’s investment—does

not apply with respect to any Plan that

was already invested in the Funds prior

to the date of the Proposal. US Trust

states that it has provided the Proposal

to Client Plans as part of the notice to

interested persons described in the

Proposal (see 61 FR at 66331). In

addition, US Trust states that it will

continue to provide to any Client Plan’s

Second Fiduciary copies of the

Proposal, upon request, and will

provide copies of the final exemption

after it is published in the Federal

Register.

In this regard, the Department

acknowledges the comments made by

US Trust and, in an attempt to clarify

this matter, has amended section II(f)(5)

by adding the parenthetical phrase

‘‘* * * (once such documents are

published in the Federal Register).’’

Fourth, US Trust notes that sections

II(1) and III(i) state that a Second

Fiduciary will be supplied with a

Termination Form ‘‘* * * at times

specified in paragraphs (k), (l), and (m)

of section II’’. However, US Trust

wishes to clarify that paragraph (1) of

section II does not specify any time for

providing such Form distinct from the

times noted in paragraph (k) and (m) of

section II. The Department

acknowledges the accuracy of this

comment, but does not believe that any

change to the language of these sections

is necessary.

Finally, US Trust states that the

correct figures in the example contained

in paragraph 8 of the Summary (at the

bottom of the second column on page

66326 of the Federal Register) used to

illustrate the interests of the Bank Plans

and Client Plans in a particular CIF at

the time of the conversion, should be 45

percent and 55 percent, respectively. In

this regard, the example in the

Summery had incorrectly stated these

percentages as 45 percent and 65

percent. The Department acknowledges

this correction to the record.

Accordingly, the Department has

determined to grant the exemption as

modified.

FOR FURTHER INFORMATION CONTACT: Mr.

E.F. Williams of the Department,

telephone (202) 219–8194. (This is not

a toll-free number.)

Consolidated Lumber Corp. Pension

Plan (the Plan), Located in Clifton, New

Jersey

(Prohibited Transaction Exemption 97–17;

Exemption Application No. D–10344)

Exemption

The restrictions of sections 406(a) and

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

sanctions resulting from the application

of section 4975 of the Code, by reason

of section 4975(c)(1) (A) through (E) of

the Code, shall not apply to the sale for

cash (the Sale) by the Plan to

Consolidated Lumber Corp., the sponsor

of the Plan, of certain wholelife
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Notices 10085

insurance policies (the Policies) issued

by Confederation Life Insurance

Company of Canada provided the

following conditions are satisfied: (a)

All terms and conditions of the Sale are

at least as favorable to the Plan as those

which the Plan could obtain in arm’slength transactions with unrelated

parties; (b) the Plan receives cash

consideration from each Sale that is no

less than the greater of (1) the fair

market value of the Policies as of the

date of the Sale, or (2) each of the

Policies’ net cash surrender value as of

the date of the Sale; and (C) the Plan

does not incur any expenses or suffer

any losses with respect to the

transactions.

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 30, 1996, at 61 FR 68798.

FOR FURTHER INFORMATION CONTACT: Mr.

C.E. Beaver of the Department,

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

a toll-free number.)

The Chase Manhattan Bank, N.A.

(Chase), Located in New York, New

York

(Prohibited Transaction Exemption 97–18;

Exemption Application No. D–10348)

Exemption

The restrictions of section 406(a) of

the Act and the sanctions resulting from

the application of section 4975 of the

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

through (D) of the Code, shall not apply

to (1) the granting to Chase, as the

representative of lenders (the Lenders)

participating in a credit facility, of

security interests in limited partnership

interests in LF Strategic Real Estate

Investors, L.P. (the Partnership) owned

by certain employee benefit plans (the

Plans) with respect to which some of the

Lenders are parties in interest; and (2)

the agreements by the Plans to honor

capital calls made by Chase in lieu of

the Partnership’s general partner;

provided that (a) the grants and

agreements are on terms no less

favorable to the Plans than those which

the Plans could obtain in arm’s-length

transactions with unrelated parties; and

(b) the decisions on behalf of each Plan

to invest in the Partnership and to

execute such grants and agreements in

favor of Chase are made by a fiduciary

which is not included among, and is

independent of, the Lenders and Chase.

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 30, 1996 at 61 FR 68799.

FOR FURTHER INFORMATION CONTACT: Gary

H. Lefkowitz of the Department,

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

a toll-free number.)

APA, Inc. 401(k) Profit Sharing Plan

(the Plan), Located in Pleasant Hill,

California

(Prohibited Transaction Exemption 97–19;

Exemption Application No. D–10375)

Exemption

The restrictions of sections 406(a),

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

sanctions resulting from the application

of section 4975 of the Code, by reason

of section 4975(c)(1) (A) through (E) of

the Code, shall not apply to: (1) The

loan (the Loan) of $30,000 to Mr. Gary

Petsuch (Mr. Petsuch), a party in

interest with respect to the Plan, from

Mr. Petsuch’s segregated account (the

Account) in the plan, and (2) the

personal guarantee of the Loan by Mr.

Petsuch, provided the following

conditions are satisfied: (a) The terms of

the Loan are at least as favorable to the

Plan as those obtainable in an arm’slength transaction with an unrelated

party; (b) the loan does not exceed 25%

of the assets of the Account; (c) the Loan

is secured by a pledge of Mr. Petsuch’s

interest in an investment account which

has been currently valued by an

independent party as having a fair

market value approximately 280% of

the principal amount of the Loan; (d)

the account collateralizing the Loan will

be maintained at a collateral-to-Loan

ratio of not less than 200% throughout

the duration of the Loan; (e) Mr. Petsuch

has also personally guaranteed the Loan;

and (f) Mr. Petsuch is the only Plan

participant to be affected by the Loan.

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

January 14, 1997 at 62 FR 1924.

FOR FURTHER INFORMATION CONTACT: Gary

H. Lefkowitz of the Department,

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

a toll-free number.)

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and/or section

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

a fiduciary or other party in interest or

disqualified person from certain other

provisions to which the exemptions

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) These exemptions are

supplemental to and not in derogation

of, any other provisions of the Act and/

or the Code, including statutory or

administrative exemptions and

transactional rules. Furthermore, the

fact that a transaction is subject to an

administrative or statutory exemption is

not dispositive of whether the

transaction is in fact a prohibited

transaction; and

(3) The availability of these

exemptions is subject to the express

condition that the material facts and

representations contained in each

application are true and complete and

accurately describe all material terms of

the transaction which is the subject of

the exemption. In the case of continuing

exemption transactions, if any of the

material facts or representations

described in the application change

after the exemption is granted, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, application for a new

exemption may be made to the

Department.

Signed at Washington, DC, this 28th day of

February, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 97–5431 Filed 3–4–97; 8:45 am]

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AGENCY: National Archives and Records

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ACTION: Notice.

SUMMARY: NARA is giving public notice

that the agency has submitted to OMB

for approval the information collection

described in this notice. The public is

invited to comment on the proposed

information collections pursuant to the

Paperwork Reduction Act of 1995.