55526 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

concerned with the management of the 

public lands. 

The Council also is balanced 

geographically, and BLM will try to find 

qualified representatives from areas 

throughout the California Desert 

District. The District covers portions of 

eight counties, and includes over 11 

million acres of public land in the 

California Desert Conservation Area and 

300,000 acres of scattered parcels in San 

Diego, western Riverside, western San 

Bernardino, Orange, and Los Angeles 

Counties (known as the South Coast). 

Any group or individual may 

nominate a qualified person, based 

upon their education, training, and 

knowledge of BLM, the California 

Desert, and the issues involving BLMadministered public lands throughout 

southern California. Qualified 

individuals also may nominate 

themselves. 

Nominations must include the name 

of the nominee; work and home 

addresses and telephone numbers; a 

biographical sketch that includes the 

nominee’s work and public service 

record; any applicable outside interests 

or other information that demonstrates 

the nominees qualifications for the 

position; and the specific category of 

interest in which the nominee is best 

qualified to offer advice and council. 

Nominees may contact the BLM 

California Desert District External 

Affairs staff at (951) 697–5217 or write 

to the address below and request a copy 

of the nomination form. 

All nominations must be 

accompanied by letters of reference 

from represented interests, 

organizations, or elected officials 

supporting the nomination. Individuals 

nominating themselves must provide at 

least one letter of recommendation. 

Advisory Council members are 

appointed by the Secretary of the 

Interior, generally in late January or 

early February. 

ADDRESSES: Nominations should be sent 

to the District Manager, Bureau of Land 

Management, California Desert District 

Office, 22835 Calle San Juan De Los 

Lagos, Moreno Valley, California 92553. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Razo, BLM California Desert 

District External Affairs (951) 697–5217. 

Steven J. Borchard, 

District Manager. 

[FR Doc. E8–22544 Filed 9–24–08; 8:45 am] 

BILLING CODE 4310–40–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Settlement 

Pursuant to Clean Air Act 

Notice is hereby given that on 

September 17, 2008, a proposed Consent 

Decree in United States v. City of 

Winslow, Civil Action No. CV–07– 

8024–PCT–SMM, was lodged with the 

United States District Court for the 

District of Arizona. 

In this action, the United States, on 

behalf of the United States 

Environmental Protection Agency 

(‘‘EPA’’), sued the City of Winslow, 

Arizona, City Administrator, John 

Roche, and former Facility owner 

William Christie (collectively, 

‘‘Defendants’’) for violations of the 

Clean Air Act, 42 U.S.C. 7401 et seq., 

and the National Emission Standard for 

Hazardous Air Pollutants for Asbestos, 

40 CFR Part 61, Subpart M. The 

proposed Consent Decree resolves 

claims against the Defendants for their 

failure to provide advanced notice to the 

EPA of the demolition of a ninebuilding apartment complex in Winslow 

(‘‘the Facility’’), and their failure to 

comply with applicable regulations 

during the demolition and subsequent 

removal of regulated asbestoscontaining materials from the Facility. 

The proposed Consent Decree 

requires payment of a $240,400 civil 

penalty, due jointly and severally from 

the three Defendants. No injunctive 

relief is required, as the Facility has 

been completely demolished and none 

of the Defendants are in the on-going 

business of demolition. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and either e-mailed to 

pubcomment-ees.enrd@usdoj.gov or 

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

Department of Justice, Washington, DC 

20044–7611, and should refer to United 

States v. City of Winslow, D.J. Ref. 90– 

5–2–1–09144. 

The Consent Decree may be examined 

at U.S. EPA Region IX at 75 Hawthorne 

Street, San Francisco, CA 94105. During 

the public comment period, the Consent 

Decree may also be examined on the 

following Department of Justice Web 

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

Consent_Decrees.html . A copy of the 

Consent Decree may also be obtained by 

mail from the Consent Decree Library, 

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

Justice, Washington, DC 20044–7611 or 

by faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $4.25 (25 cents per 

page reproduction cost) payable to the 

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

forward a check in that amount to the 

Consent Decree Library at the stated 

address. 

Henry Friedman, 

Assistant Chief, Environmental Enforcement 

Section, Environment and Natural Resources 

Division. 

[FR Doc. E8–22525 Filed 9–24–08; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Exemption Application Nos. D–11416, D– 

11435, D–11449, and D–11460] 

Prohibited Transaction Exemptions 

2008–09 thru 2008–12; Grant of 

Individual Exemptions Involving D– 

11416, Wholesale Electronic Supply; 

D–11435, Merrill Lynch & Co., Inc.; D– 

11449, Pileco, Inc.; and D–11460, 

Mellon Bank, NA 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of Individual Exemptions. 

SUMMARY: This document contains an 

exemption issued by the Department of 

Labor (the Department) from certain of 

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). 

A notice was published in the Federal 

Register of the pendency before the 

Department of a proposal to grant such 

exemption. The notice set forth a 

summary of facts and representations 

contained in the application for 

exemption and referred interested 

persons to the application for a 

complete statement of the facts and 

representations. The application has 

been available for public inspection at 

the Department in Washington, DC. The 

notice also invited interested persons to 

submit comments on the requested 

exemption to the Department. In 

addition the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The applicant 

has represented that it has complied 

with the requirements of the notification 

to interested persons. No requests for a 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55527 

hearing were received by the 

Department. Public comments were 

received by the Department as described 

in the granted exemption. 

The notice of proposed exemption 

was issued and the exemption is being 

granted solely by the Department 

because, effective December 31, 1978, 

section 102 of Reorganization Plan No. 

4 of 1978, 5 U.S.C. App. 1 (1996), 

transferred the authority of the Secretary 

of the Treasury to issue exemptions of 

the type proposed to the Secretary of 

Labor. 

Statutory Findings 

In accordance with section 408(a) of 

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

Code and the procedures set forth in 29 

CFR Part 2570, Subpart B (55 FR 32836, 

32847, August 10, 1990) and based upon 

the entire record, the Department makes 

the following findings: 

(a) The exemption is administratively 

feasible; 

(b) The exemption is in the interests 

of the plan and its participants and 

beneficiaries; and 

(c) The exemption is protective of the 

rights of the participants and 

beneficiaries of the plan. 

Wholesale Electronic Supply; 

Employees Profit Sharing Plan and 

Trust (the Plan); Located in Dallas, TX 

[Prohibited Transaction Exemption 

2008–09; Exemption Application No. D– 

11416] 

Exemption 

The restrictions in sections 

406(a)(1)(A), 406(a)(1)(D), 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) and (c)(1)(D) through (E) 

of the Code, shall not apply to the sale 

of a note (the Note) by the Plan to Levco 

Enterprises, Inc., a party in interest with 

respect to the Plan, provided that the 

following conditions are satisfied: 

(a) 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 party; 

(b) The Plan receives $45,750.00, the 

outstanding principal balance of the 

Note; 

(c) The sale is a one-time transaction 

for cash; and 

(d) The Plan pays no commissions, 

costs, nor other expenses in connection 

with the sale. 

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 (the Notice) 

published on March 13, 2008 at 73 FR 

13587. 

Notice to Interested Persons: The 

applicant was unable to notify 

interested persons within the time frame 

specified in the Notice. However, the 

applicant stated that interested persons 

were subsequently notified by May 30, 

2008, in the manner and time frame renegotiated with the Department. The 

statement accompanying the Notice 

informed interested persons that they 

had 30 days to comment to the 

Department. No written comments were 

received by the Department. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

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

a toll-free number.) 

Merrill Lynch & Co., Inc. (ML&Co.) and 

BlackRock, Inc. (BlackRock); 

(Collectively, the Applicants); Located 

in New York, New York 

[Prohibited Transaction Exemption 

2008–10; Exemption Application No. D– 

11435] 

Exemption 

1. Definitions 

(a) For purposes of this exemption, 

the term ‘‘Merrill Lynch/BlackRock 

Related Entity or Entities’’ includes all 

entities listed in Section 1(a)(1), (a)(2) 

and (a)(3): 

(1) Merrill Lynch & Co., Inc. (i.e., 

ML&Co.) and any person directly or 

indirectly, through one or more 

intermediaries, controlling, controlled 

by, or under common control with 

ML&Co., 

(2) BlackRock, Inc. (i.e., BlackRock) 

and any person directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with BlackRock, and 

(3) Any entity that meets the 

definition of a Merrill Lynch/BlackRock 

Related Entity during the term of the 

exemption. 

(b) The term ‘‘Merrill Lynch Related 

Entity’’ or ‘‘Merrill Lynch Related 

Entities’’ means ML&Co. and any person 

directly or indirectly, through one or 

more intermediaries, controlling, 

controlled by, or under common control 

with ML&Co. 

(c) The term ‘‘BlackRock Related 

Entity’’ or ‘‘BlackRock Related Entities’’ 

means BlackRock and any person 

directly or indirectly, through one or 

more intermediaries, controlling, 

controlled by, or under common control 

with BlackRock. 

(d) For purposes of sections (a–c), the 

term ‘‘control’’ means the power to 

exercise a controlling influence over the 

management or policies of a person 

other than an individual. 

2. General Conditions 

(a) The applicable Merrill Lynch/ 

BlackRock Related Entity or Entities 

maintain(s) or cause(s) to be maintained 

for a period of six (6) years from the date 

of any transaction described herein, 

such records as are necessary to enable 

the persons described in paragraph (b) 

below to determine whether the 

conditions of this exemption were met, 

except that— 

(1) If the records necessary to enable 

the persons described in paragraph 

(b)(1)(i)–(iv) below to determine 

whether the conditions of the 

exemption have been met are lost or 

destroyed, due to circumstances beyond 

the control of the Merrill Lynch/ 

BlackRock Related Entity or Entities, 

then no prohibited transaction will be 

considered to have occurred solely on 

the basis of the unavailability of those 

records; and 

(2) No party in interest with respect 

to a plan which engages in the covered 

transactions, other than any Merrill 

Lynch/BlackRock Related Entity or 

Entities, 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 have not been 

maintained or are not available for 

examination as required by paragraph 

(b) below. 

(b)(1) Except as provided below in 

paragraph (b)(2), and notwithstanding 

the provisions of subsections (a)(2) and 

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

referred to above in paragraph (a) above 

are unconditionally available for 

examination during normal business 

hours at their customary location to the 

following persons or an authorized 

representative thereof— 

(i) Any duly authorized employee or 

representative of the Department or the 

Internal Revenue Service, or the SEC; or 

(ii) Any fiduciary of any plan that 

engages in the covered transactions, or 

any duly authorized employee or 

representative of such fiduciary; or 

(iii) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a plan that engages in the 

transactions covered herein, or any 

authorized employee or representative 

of these entities; or 

(iv) Any participant or beneficiary of 

a plan that engages in the transactions 

covered herein, or duly authorized 

representative of such participant or 

beneficiary; 

(2) None of the persons described 

above in paragraph (b)(1)(ii)–(iv) shall 

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55528 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

be authorized to examine trade secrets 

of the Merrill Lynch/BlackRock Related 

Entity or Entities, or commercial or 

financial information, which is 

privileged or confidential; and 

(3) Should the Merrill Lynch/ 

BlackRock Related Entity or Entities 

refuse to disclose information on the 

basis that such information is exempt 

from disclosure, pursuant to paragraph 

(b)(2) above, the Merrill Lynch/ 

BlackRock Related Entity or Entities 

shall, by 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. 

3. Exemptions From Prohibitions 

Respecting Certain Classes of 

Transactions Involving Employee 

Benefit Plans and Certain Underwriters 

(Modeled After PTE 75–1, Part III) 

The restrictions of section 406 of the 

Act, and the taxes imposed by reason of 

section 4975(a) and (b) of the Code, by 

reason of section 4975(c)(1) of the Code, 

shall not apply to the purchase or other 

acquisition of certain securities by an 

employee benefit plan during the 

existence of an underwriting or selling 

syndicate with respect to such 

securities, from any person other than a 

Merrill Lynch/BlackRock Related Entity 

or Entities, when such Merrill Lynch/ 

BlackRock Related Entity or Entities is 

a fiduciary with respect to such plan, 

and a member of such syndicate, 

provided that the following conditions 

are met: 

(a) No Merrill Lynch/BlackRock 

Related Entity or Entities which is 

involved in any way in causing the plan 

to make the purchase is a manager of 

such underwriting or selling syndicate. 

For purposes of this exemption, the 

term ‘‘manager’’ means any member of 

an underwriting or selling syndicate 

who, either alone or together with other 

members of the syndicate, is authorized 

to act on behalf of the members of the 

syndicate in connection with the sale 

and distribution of the securities being 

offered or who receives compensation 

from the members of the syndicate for 

its services as a manager of the 

syndicate. 

(b) The securities to be purchased or 

otherwise acquired are— 

(1) Part of an issue registered under 

the Securities Act of 1933 or, if exempt 

from such registration requirement, are 

(i) issued or guaranteed by the United 

States or by any person controlled or 

supervised by and acting as an 

instrumentality of the United States 

pursuant to authority granted by the 

Congress of the United States, (ii) issued 

by a bank, (iii) issued by a common or 

contract carrier, if such issuance is 

subject to the provisions of section 20a 

of the Interstate Commerce Act, as 

amended, (iv) exempt from such 

registration requirement pursuant to a 

Federal statute other than the Securities 

Act of 1933, or (v) are the subject of a 

distribution and are of a class which is 

required to be registered under section 

12 of the Securities Exchange Act of 

1934 (15 U.S.C. 781), and the issuer of 

which has been subject to the reporting 

requirements of section 13 of the Act (15 

U.S.C. 78m) for a period of at least 90 

days immediately preceding the sale of 

securities and has filed all reports 

required to be filed thereunder with the 

Securities and Exchange Commission 

during the preceding 12 months. 

(2) Purchased at not more than the 

public offering price prior to the end of 

the first full business day after the final 

term of the securities have been fixed 

and announced to the public, except 

that— 

(i) If such securities are offered for 

subscription upon exercise of rights, 

they are purchased on or before the 

fourth day preceding the day on which 

the rights offering terminates; or 

(ii) If such securities are debt 

securities, they may be purchased at a 

public offering price on a day 

subsequent to the end of such first full 

business day, provided that the interest 

rates on comparable debt securities 

offered to the public subsequent to such 

first full business day and prior to the 

purchase are less than the interest rate 

of the debt securities being purchased. 

(3) Offered pursuant to an 

underwriting agreement under which 

the members of the syndicate are 

committed to purchase all of the 

securities being offered, except if— 

(i) Such securities are purchased by 

others pursuant to a rights offering; or 

(ii) Such securities are offered 

pursuant to an over-allotment option. 

(c) The issuer of such securities has 

been in continuous operation for not 

less than three years, including the 

operations of any predecessors, unless— 

(1) Such securities are nonconvertible debt securities rated in one 

of the four highest rating categories by 

at least one of the following rating 

organizations: Standard & Poor’s Rating 

Services, Moody’s Investors Service, 

Inc., Fitch Ratings Inc., Dominion Bond 

Ratings Service Limited, and Dominion 

Bond Rating Service, Inc., or any 

successors thereto; 

(2) Such securities are issued or fully 

guaranteed by a person described in 

paragraph (b)(1)(i) of this exemption; or 

(3) Such securities are fully 

guaranteed by a person who has issued 

securities described in paragraph 

(b)(1)(ii), (iii), (iv) or (v), and this 

paragraph (c) of this exemption. 

(d) The amount of such securities to 

be purchased or otherwise acquired by 

the plan does not exceed 3% of the total 

amount of such securities being offered. 

(e) The consideration to be paid by 

the plan in purchasing or otherwise 

acquiring such securities does not 

exceed three percent of the fair market 

value of the total assets of the plan as 

of the last day of the most recent fiscal 

quarter of the plan prior to such 

transaction, provided that if such 

consideration exceeds $1 million, it 

does not exceed 1% of such fair market 

value of the total assets of the plan. 

If such securities are purchased by the 

plan from a party in interest or 

disqualified person with respect to the 

plan, such party in interest or 

disqualified person shall not be subject 

to the civil penalty, which 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 

conditions of this exemption are not 

met. However, if such securities are 

purchased from a party in interest or 

disqualified person with respect to the 

plan, the restrictions of section 406(a) of 

the Act shall apply to any fiduciary with 

respect to the plan and the taxes 

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

the Code, by reason of section 

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

shall apply to such party in interest or 

disqualified person, unless the 

conditions for exemption of PTE 75–1 

(40 FR 50845, October 31, 1975), Part II 

(relating to certain principal 

transactions) are met. 

4. Exemptions From Prohibitions 

Respecting Certain Classes of 

Transactions Involving Employee 

Benefit Plans and Market-Makers 

(Modeled After PTE 75–1, Part IV) 

The restrictions of section 406 of the 

Act, and the taxes imposed by section 

4975(a) and (b) of the Code, by reason 

of section 4975(c)(1) of the Code, shall 

not apply to any purchase or sale of any 

securities by an employee benefit plan 

from or to a Merrill Lynch/BlackRock 

Related Entity or Entities, which is a 

market-maker with respect to such 

securities, when a Merrill Lynch/ 

BlackRock Related Entity or Entities is 

also a fiduciary with respect to such 

plan, provided that the following 

conditions are met: 

(a) The issuer of such securities has 

been in continuous operation for not 

less than three years, including the 

operations of any predecessors, unless— 

(1) Such securities are nonconvertible debt securities rated in one 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55529 

of the four highest rating categories by 

at least one of the following rating 

organizations: Standard & Poor’s Rating 

Services, Moody’s Investors Service, 

Inc., Fitch Ratings Inc., Dominion Bond 

Ratings Service Limited, and Dominion 

Bond Rating Service, Inc., or any 

successors thereto; 

(2) Such securities are issued or 

guaranteed by the United States or by 

any person controlled or supervised by 

and acting as an instrumentality of the 

United States pursuant to authority 

granted by the Congress of the United 

States; or 

(3) Such securities are fully 

guaranteed by a person described in this 

paragraph (a). 

(b) As a result of purchasing such 

securities— 

(1) The fair market value of the 

aggregate amount of such securities 

owned, directly or indirectly, by the 

plan and with respect to which such 

Merrill Lynch/BlackRock Related Entity 

or Entities is a fiduciary, does not 

exceed 3% of the fair market value of 

the assets of the plan with respect to 

which such Merrill Lynch/BlackRock 

Related Entity or Entities is a fiduciary, 

as of the last day of the most recent 

fiscal quarter of the plan prior to such 

transaction, provided that if the fair 

market value of such securities exceeds 

$1 million, it does not exceed one 

percent of such fair market value of 

such assets of the plan, except that this 

paragraph shall not apply to securities 

described in paragraph (a)(2) of this 

exemption; and 

(2) The fair market value of the 

aggregate amount of all securities for 

which such Merrill Lynch/BlackRock 

Related Entity or Entities is a marketmaker, which are owned, directly or 

indirectly, by the plan and with respect 

to which such Merrill Lynch/BlackRock 

Related Entity or Entities is a fiduciary, 

does not exceed 10% of the fair market 

value of the assets of the plan with 

respect to which such Merrill Lynch/ 

BlackRock Related Entity or Entities is 

a fiduciary, as of the last day of the most 

recent fiscal quarter of the plan prior to 

such transaction, except that this 

paragraph shall not apply to securities 

described in paragraph (a)(2) of this 

exemption. 

(c) At least one person other than a 

Merrill Lynch/BlackRock Related Entity 

or Entities is a market-maker with 

respect to such securities. 

(d) The transaction is executed at a 

net price to the plan for the number of 

shares or other units to be purchased or 

sold in the transaction which is more 

favorable to the plan than that which 

such Merrill Lynch/BlackRock Related 

Entity or Entities acting as fiduciary and 

acting in good faith, reasonably believes 

to be available at the time of such 

transaction from all other marketmakers with respect to such securities. 

For purposes of this exemption, the 

term ‘‘market-maker’’ shall mean any 

specialist permitted to act as a dealer, 

and any dealer who, with respect to a 

security, holds himself out (by entering 

quotations in an inter-dealer 

communications system or otherwise) as 

being willing to buy and sell such 

security for his own account on a 

regular or continuous basis. 

5. Exemption Involving Mutual Fund InHouse Plans (Modeled After PTE 77–3) 

The restrictions of sections 406 and 

407(a) of the Act and the taxes imposed 

by section 4975(a) and (b) of the Code, 

by reason of section 4975(c)(1) of the 

Code, shall not apply to the acquisition 

or sale of shares of an open-end 

investment company registered under 

the Investment Company Act of 1940 by 

an employee benefit plan covering only 

employees of such investment company, 

employees of the investment adviser or 

principal underwriter for such 

investment company, which is a Merrill 

Lynch/BlackRock Related Entity, 

employees of any other Merrill Lynch/ 

BlackRock Related Entity, or employees 

of any affiliated person (as defined in 

section 2(a)(3) of the Investment 

Company Act of 1940) of such 

investment adviser or principal 

underwriter of such investment 

company, provided the following 

conditions are met (whether or not such 

investment company, investment 

adviser, principal underwriter or any 

affiliated person thereof is a fiduciary 

with respect to the plan): 

(a) The plan does not pay any 

investment management, investment 

advisory or similar fee to such 

investment adviser, principal 

underwriter, affiliated person or Merrill 

Lynch/BlackRock Related Entity or 

Entities. This condition does not 

preclude the payment of investment 

advisory fees by the investment 

company under the terms of its 

investment advisory agreement adopted 

in accordance with section 15 of the 

Investment Company Act of 1940. 

(b) The plan does not pay a 

redemption fee in connection with the 

sale by the plan to the investment 

company of such shares unless (1) such 

redemption fee is paid only to the 

investment company, and (2) the 

existence of such redemption fee is 

disclosed in the investment company 

prospectus in effect both at the time of 

the acquisition of such shares and at the 

time of such sale. 

(c) The plan does not pay a sales 

commission in connection with such 

acquisition or sale. 

(d) All other dealings between the 

plan and the investment company, the 

investment adviser, the principal 

underwriter for the investment 

company, or any other Merrill Lynch/ 

BlackRock Related Entity are on a basis 

no less favorable to the plan than such 

dealings are with other shareholders of 

the investment company. 

6. Exemption for Certain Transactions 

Between Investment Companies and 

Employee Benefit Plans (Modeled After 

PTE 77–4) 

The restrictions of section 406 of the 

Act and the taxes imposed by section 

4975(a) and (b) of the Code, by reason 

of section 4975(c)(1) of the Code, shall 

not apply to the purchase or sale by an 

employee benefit plan of shares of an 

open-end investment company 

registered under the Investment 

Company Act of 1940, where the 

investment adviser of the investment 

company is a Merrill Lynch/BlackRock 

Related Entity and a Merrill Lynch/ 

BlackRock Related Entity is also a 

fiduciary with respect to the plan, but 

not an employer of employees covered 

by the plan, provided that the following 

conditions are met: 

(a) The plan does not pay a sales 

commission in connection with such 

purchase or sale. 

(b) The plan does not pay a 

redemption fee in connection with the 

sale by the plan to the investment 

company of such shares unless (1) such 

redemption fee is paid only to the 

investment company, and (2) the 

existence of such redemption fee is 

disclosed in the investment company 

prospectus in effect both at the time of 

the purchase of such shares and at the 

time of such sale. 

(c) The plan does not pay an 

investment management, investment 

advisory or similar fee with respect to 

the plan assets invested in such shares 

for the entire period of such investment. 

This condition does not preclude the 

payment of investment advisory fees by 

the investment company under the 

terms of its investment advisory 

agreement adopted in accordance with 

section 15 of the Investment Company 

Act of 1940. This condition also does 

not preclude payment of an investment 

advisory fee by the plan based on total 

plan assets from which a credit has been 

subtracted representing the plan’s pro 

rata share of investment advisory fees 

paid by the investment company. If, 

during any fee period for which the plan 

has prepaid its investment management, 

investment advisory or similar fee, the 

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55530 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

plan purchases shares of the investment 

company, the requirement of this 

paragraph (c) shall be deemed met with 

respect to such prepaid fee if by a 

method reasonably designed to 

accomplish the same, the amount of the 

prepaid fee that constitutes the fee with 

respect to the plan assets invested in the 

investment company shares: (1) Is 

anticipated and subtracted from the 

prepaid fee at the time of payment of 

such fee, (2) is returned to the plan no 

later than during the immediately 

following fee period, or (3) is offset 

against the prepaid fee for the 

immediately following fee period or for 

the fee period immediately following 

thereafter. For purposes of this 

paragraph (c), a fee shall be deemed to 

be prepaid for any fee period if the 

amount of such fee is calculated as of a 

date not later than the first day of such 

period. 

(d) A second fiduciary with respect to 

the plan, who is independent of and 

unrelated to the fiduciary/investment 

adviser or any other Merrill Lynch/ 

BlackRock Related Entity, receives a 

current prospectus issued by the 

investment company, and full and 

detailed written disclosure of the 

investment advisory and other fees 

charged to or paid by the plan and the 

investment company, including the 

nature and extent of any differential 

between the rates of such fees, the 

reasons why the fiduciary/investment 

adviser may consider such purchases to 

be appropriate for the plan, and whether 

there are any limitations on the 

fiduciary/investment adviser with 

respect to which plan assets may be 

invested in shares of the investment 

company and, if so, the nature of such 

limitations. For purposes of this 

paragraph (d), such second fiduciary 

will not be deemed to be independent 

of and unrelated to the fiduciary/ 

investment adviser or any Merrill 

Lynch/BlackRock Related Entity if: 

(1) Such second fiduciary directly or 

indirectly controls, is controlled by, or 

is under common control with the 

fiduciary/investment adviser or any 

Merrill Lynch/BlackRock Related Entity; 

(2) Such second fiduciary, or any 

officer, director, partner, employee or 

relative of such second fiduciary is an 

officer, director, partner, employee or 

relative of such fiduciary/investment 

adviser or any Merrill Lynch/BlackRock 

Related Entity; or 

(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. 

If an officer, director, partner, 

employee or relative of such fiduciary/ 

investment adviser or any Merrill 

Lynch/BlackRock Related Entity is a 

director of such second fiduciary, and if 

he or she abstains from participation in 

(i) the choice of the plan’s investment 

adviser, (ii) the approval of any such 

purchase or sale between the plan and 

the investment company and (iii) the 

approval of any change of fees charged 

to or paid by the plan, then paragraph 

(d)(2) of this exemption shall not apply. 

For purposes of paragraph (d)(1) 

above, the term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual, and 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. 

(e) On the basis of the prospectus and 

disclosure referred to in paragraph (d), 

the second fiduciary referred to in 

paragraph (d) approves such purchases 

and sales consistent with the 

responsibilities, obligations, and duties 

imposed on fiduciaries by Part 4 of Title 

I of the Act. Such approval may be 

limited solely to the investment 

advisory and other fees paid by the 

mutual fund in relation to the fees paid 

by the plan and need not relate to any 

other aspects of such investments. In 

addition, such approval must be either: 

(1) Set forth in the plan documents or 

in the investment management 

agreement between the plan and the 

fiduciary/investment adviser, (2) 

indicated in writing prior to each 

purchase or sale, or (3) indicated in 

writing prior to the commencement of a 

specified purchase or sale program in 

the shares of such investment company. 

(f) The second fiduciary referred to in 

paragraph (d) above, or any successor 

thereto, is notified of any change in any 

of the rates of fees referred to in 

paragraph (d) and approves in writing 

the continuation of such purchases or 

sales and the continued holding of any 

investment company shares acquired by 

the plan prior to such change and still 

held by the plan. Such approval may be 

limited solely to the investment 

advisory and other fees paid by the 

mutual fund in relation to the fees paid 

by the plan and need not relate to any 

other aspects of such investment. 

7. Exemption Involving Closed-End 

Investment Company In-House Plans 

(Modeled After PTE 79–13) 

The restrictions of sections 406 and 

407(a) of the Act, and the taxes imposed 

by section 4975 (a) and (b) of the Code, 

by reason of section 4975(c)(1) of the 

Code, shall not apply to the acquisition, 

ownership or sale of shares of a closedend investment company, which is 

registered under the Investment 

Company Act of 1940 and is not a small 

business investment company as 

defined in section 103 of the Small 

Business Investment Company Act of 

1958, by an employee benefit plan 

covering only employees of such 

investment company, employees of the 

investment adviser of such investment 

company, which is a Merrill Lynch/ 

BlackRock Related Entity, employees of 

any other Merrill Lynch/BlackRock 

Related Entity, or employees of any 

affiliated person (as defined in section 

2(a)(3) of the Investment Company Act 

of 1940) of such investment company or 

investment adviser, provided that the 

following conditions are met (whether 

or not such investment company, 

investment adviser or any affiliated 

person thereof is a fiduciary with 

respect to the plan): 

(a) The plan does not pay any 

investment management, investment 

advisory, or similar fee to such 

investment adviser, other Merrill 

Lynch/BlackRock Related Entity or 

affiliated person. This condition does 

not preclude the payment of investment 

advisory fees by the investment 

company under the terms of its 

investment advisory agreement adopted 

in accordance with section 15 of the 

Investment Company Act of 1940. 

(b) The plan does not pay a sales 

commission in connection with such 

acquisition or sale to any such 

investment company, or to any 

investment adviser, any Merrill Lynch/ 

BlackRock Related Entity or affiliated 

person; and 

(c) All other dealings between the 

plan and such investment company, the 

investment adviser, any Merrill Lynch/ 

BlackRock Related Entity or affiliated 

person are on a basis no less favorable 

to the plan than such dealings are with 

other shareholders of the investment 

company. 

8. Exemption for Securities 

Transactions Involving Employee 

Benefit Plans and Broker-Dealers 

(Modeled After PTE 86–128) 

Section I: Definition and Special Rules 

The following definitions and special 

rules apply to this exemption: 

(a) The term ‘‘Merrill Lynch/ 

BlackRock Related Entity or Entities’’ 

includes affiliates of such entity or 

entities. 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55531 

1On September 29, 2006, ML&Co. and BlackRock 

consummated a transaction (the Merger), in which 

ML&Co. contributed MLIM and various other assets 

and subsidiaries that comprised its investment 

management business to BlackRock in exchange for 

approximately 45% of the outstanding voting 

securities of BlackRock. 

(b) An ‘‘affiliate’’ of a Merrill Lynch/ 

BlackRock Related Entity or Entities 

includes the following: 

(1) Any officer, director, partner, 

employee, relative (as defined in section 

3(15) of the Act), brother, sister, or 

spouse of a brother or sister, of the 

Merrill Lynch/BlackRock Related Entity 

or Entities; and 

(2) Any corporation or partnership of 

which the Merrill Lynch/BlackRock 

Related Entity or Entities is an officer, 

director or partner. 

A person is not an affiliate of another 

person solely because such person has 

investment discretion over the other’s 

assets. 

(c) An ‘‘agency cross transaction’’ is a 

securities transaction in which the same 

Merrill Lynch/BlackRock Related Entity 

or Entities act(s) as agent for both any 

seller and any buyer for the purchase or 

sale of a security. 

(d) The term ‘‘covered transaction’’ 

means an action described in Section II 

(a), (b) or (c) of this exemption. 

(e) The term ‘‘effecting or executing a 

securities transaction’’ means the 

execution of a securities transaction as 

agent for another person and/or the 

performance of clearance, settlement, 

custodial or other functions ancillary 

thereto. 

(f) A plan fiduciary is independent of 

a Merrill Lynch/BlackRock Related 

Entity or Entities only if the fiduciary 

has no relationship to or interest in such 

Merrill Lynch/BlackRock Related Entity 

or Entities that might affect the exercise 

of such fiduciary’s best judgment as a 

fiduciary. 

(g) The term ‘‘profit’’ includes all 

charges relating to effecting or executing 

securities transactions, less reasonable 

and necessary expenses including 

reasonable indirect expenses (such as 

overhead costs) properly allocated to the 

performance of these transactions under 

generally accepted accounting 

principles. 

(h) The term ‘‘securities transaction’’ 

means the purchase or sale of securities. 

(i) The term ‘‘nondiscretionary 

trustee’’ of a plan means a trustee or 

custodian whose powers and duties 

with respect to any assets of the plan are 

limited to (1) the provision of 

nondiscretionary trust services to the 

plan, and (2) duties imposed on the 

trustee by any provision or provisions of 

the Act or the Code. The term 

‘‘nondiscretionary trust services’’ means 

custodial services and services ancillary 

to custodial services, none of which 

services are discretionary. For purposes 

of this exemption, a person does not fail 

to be a nondiscretionary trustee solely 

by reason of having been delegated, by 

the sponsor of a master or prototype 

plan, the power to amend such plan. 

Section II: Covered Transactions 

If each condition of Section III of this 

exemption is either satisfied or not 

applicable under Section IV of this 

exemption, the restrictions of section 

406(b) of the Act and the taxes imposed 

by section 4975(a) and (b) of the Code 

by reason of section 4975(c)(1)(E) and 

(F) of the Code shall not apply to— 

(a) A Merrill Lynch/BlackRock 

Related Entity or Entities that is a plan 

fiduciary using its authority to cause a 

plan to pay a fee to a Merrill Lynch/ 

BlackRock Related Entity or Entities as 

agent for the plan, for effecting or 

executing securities transactions, but 

only to the extent that such transactions 

are not excessive, under the 

circumstances, in either amount or 

frequency; 

(b) A Merrill Lynch/BlackRock 

Related Entity or Entities that is a plan 

fiduciary acting as the agent in an 

agency cross transaction for both the 

plan and one or more other parties to 

the transaction; or 

(c) The receipt by any Merrill Lynch/ 

BlackRock Related Entity or Entities that 

is a plan fiduciary of reasonable 

compensation for effecting or executing 

an agency cross transaction to which a 

plan is a party from one or more other 

parties to the transaction. 

Section III: Conditions 

Except to the extent otherwise 

provided in Section IV of this 

exemption, Section II of this exemption 

applies only if the following conditions 

are satisfied: 

(a) The Merrill Lynch/BlackRock 

Related Entity engaging in the covered 

transaction is not an administrator of 

the plan, or an employer any of whose 

employees are covered by the plan. 

(b)(1) The covered transaction is 

performed under a written authorization 

executed in advance by a fiduciary of 

each plan whose assets are involved in 

the transaction, which plan fiduciary is 

independent of the Merrill Lynch/ 

BlackRock Related Entity or Entities 

engaging in the covered transaction. 

(2) For purposes of this exemption, 

Section III(b) will be deemed satisfied 

for the period commencing September 

29, 2006, notwithstanding Merrill Lynch 

Investment Managers, LLC (MLIM)’s 

reliance on written authorizations 

obtained prior to the consummation of 

the Merger,1 provided that after the 

closing of the Merger, MLIM notified 

each such authorizing plan fiduciary of 

the fact that: (A) As a result of the 

Merger, MLIM had become a subsidiary 

of BlackRock; (B) the existing 

authorization by such authorizing plan 

fiduciary would continue to permit 

MLIM to engage in the covered 

transaction on behalf of the plan; (C) 

such authorization is terminable at will 

by the plan, without penalty to the plan, 

upon receipt by MLIM of written notice 

from an authorizing plan fiduciary of 

termination; (D) a form expressly 

providing an election to terminate the 

authorization with instructions on the 

use of such form was supplied to each 

such authorizing plan fiduciary; and (E) 

failure to return such termination form 

would result in the continued 

authorization of MLIM to engage in the 

covered transactions on behalf of the 

plan. Notwithstanding the foregoing, 

this exception does not apply to new 

authorizations to engage in covered 

transactions entered into after the 

consummation of the Merger. 

(c) The authorization referred to in 

paragraph (b) of this Section is 

terminable at will by the plan, without 

penalty to the plan, upon receipt by the 

authorized Merrill Lynch/BlackRock 

Related Entity or Entities of written 

notice of termination. A form expressly 

providing an election to terminate the 

authorization described in paragraph (b) 

of this Section with instructions on the 

use of the form must be supplied to the 

authorizing plan fiduciary no less than 

annually. The instructions for such form 

must include the following information: 

(1) The authorization is terminable at 

will by the plan, without penalty to the 

plan, upon receipt by the authorized 

Merrill Lynch/BlackRock Related Entity 

or Entities of written notice from the 

authorizing plan fiduciary or other plan 

official having authority to terminate the 

authorization; and 

(2) Failure to return the form will 

result in the continued authorization of 

the authorized Merrill Lynch/BlackRock 

Related Entity or Entities to engage in 

the covered transactions on behalf of the 

plan. 

(d) Within three months before an 

authorization is made, the authorizing 

plan fiduciary is furnished with any 

reasonably available information that 

the Merrill Lynch/BlackRock Related 

Entity or Entities seeking authorization 

reasonably believes to be necessary for 

the authorizing plan fiduciary to 

determine whether the authorization 

should be made, including (but not 

limited to) a copy of this exemption, the 

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55532 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

form for termination of authorization 

described in Section III(c) of this 

exemption, a description of the Merrill 

Lynch/BlackRock Related Entity or 

Entities’ brokerage placement practices, 

and any other reasonably available 

information regarding the matter that 

the authorizing plan fiduciary requests. 

(e) The Merrill Lynch/BlackRock 

Related Entity or Entities engaging in a 

covered transaction furnishes the 

authorizing plan fiduciary with either: 

(1) A confirmation slip for each 

securities transaction underlying a 

covered transaction within ten business 

days of the securities transaction 

containing the information described in 

Rule 10b–10(a)(1–7) under the 

Securities Exchange Act of 1934, 17 CFR 

240.10b–10; or 

(2) At least once every three months 

and not later than 45 days following the 

period to which it relates, a report 

disclosing: 

(A) A compilation of the information 

that would be provided to the plan 

pursuant to subparagraph (e)(1) of this 

Section during the three-month period 

covered by the report; 

(B) The total of all securities 

transaction related charges incurred by 

the plan during such period in 

connection with such covered 

transactions; and 

(C) The amount of the securities 

transaction-related charges retained by 

such Merrill Lynch/BlackRock Related 

Entity or Entities and the amount of 

such charges paid to other persons for 

execution or other services. 

For purposes of this paragraph (e), the 

words ‘‘incurred by the plan’’ shall be 

construed to mean ‘‘incurred by the 

pooled fund’’ when such Merrill Lynch/ 

BlackRock Related Entity or Entities 

engages in covered transactions on 

behalf of a pooled fund in which the 

plan participates. 

(f) The authorizing plan fiduciary is 

furnished with a summary of the 

information required under paragraph 

(e)(1) of this Section at least once per 

year. The summary must be furnished 

within 45 days after the end of the 

period to which it relates, and must 

contain the following: 

(1) The total of all securities 

transaction-related charges incurred by 

the plan during the period in 

connection with covered securities 

transactions. 

(2) The amount of the securities 

transaction-related charges retained by 

the authorized Merrill Lynch/BlackRock 

Related Entity or Entities and the 

amount of these charges paid to other 

persons for execution or other services. 

(3) A description of the Merrill 

Lynch/BlackRock Related Entity or 

Entities’ brokerage placement practices, 

if such practices have materially 

changed during the period covered by 

the summary. 

(4)(i) A portfolio turnover ratio, 

calculated in a manner which is 

reasonably designed to provide the 

authorizing plan fiduciary with the 

information needed to assist in 

discharging its duty of prudence. The 

requirements of this paragraph (f)(4)(i) 

will be met if the ‘‘annualized portfolio 

turnover ratio’’, calculated in the 

manner described in paragraph (f)(4)(ii), 

is contained in the summary. 

(ii) The ‘‘annualized portfolio 

turnover ratio’’ shall be calculated as a 

percentage of the plan assets consisting 

of securities or cash over which the 

authorized Merrill Lynch/BlackRock 

Related Entity or Entities had 

discretionary investment authority, or 

with respect to which such Merrill 

Lynch/BlackRock Related Entity or 

Entities rendered, or had any 

responsibility to render, investment 

advice (the portfolio) at any time or 

times (management period(s)) during 

the period covered by the report. First, 

the ‘‘portfolio turnover ratio’’ (not 

annualized) is obtained by dividing (A) 

the lesser of the aggregate dollar 

amounts of purchases or sales of 

portfolio securities during the 

management period(s) by (B) the 

monthly average of the market value of 

the portfolio securities during all 

management period(s). Such monthly 

average is calculated by totaling the 

market values of the portfolio securities 

as of the beginning and ending of each 

management period and as of the end of 

each month that ends within such 

period(s), and dividing the sum by the 

number of valuation dates so used. For 

purposes of this calculation, all debt 

securities whose maturities at the time 

of acquisition were one year or less are 

excluded from both the numerator and 

the denominator. 

The ‘‘annualized portfolio turnover 

ratio’’ is then derived by multiplying the 

‘‘portfolio turnover ratio’’ by an 

annualizing factor. The annualizing 

factor is obtained by dividing (C) the 

number twelve by (D) the aggregate 

duration of the management period(s) 

expressed in months (and fractions 

thereof). 

(iii) The information described in this 

paragraph (f)(4) is not required to be 

furnished in any case where the 

authorized Merrill Lynch/BlackRock 

Related Entity or Entities acting as plan 

fiduciary has not exercised 

discretionary authority over trading in 

the plan’s account during the period 

covered by the report. 

For purposes of this paragraph (f), the 

words ‘‘incurred by the plan’’ shall be 

construed to mean ‘‘incurred by the 

pooled fund’’ when such Merrill Lynch/ 

BlackRock Related Entity or Entities 

engages in covered transactions on 

behalf of a pooled fund in which the 

plan participates. 

(g) If an agency cross transaction to 

which Section IV(b) of this exemption 

does not apply is involved, the 

following conditions must also be 

satisfied: 

(1) The information required under 

Section III(d) or IV(d)(1)(B) of this 

exemption includes a statement to the 

effect that with respect to agency cross 

transactions, the Merrill Lynch/ 

BlackRock Related Entity or Entities 

effecting or executing the transactions 

will have a potentially conflicting 

division of loyalties and responsibilities 

regarding the parties to the transactions; 

(2) The summary required under 

Section III(f) of this exemption includes 

a statement identifying the total number 

of agency cross transactions during the 

period covered by the summary and the 

total amount of all commissions or other 

remuneration received or to be received 

from all sources by the Merrill Lynch/ 

BlackRock Related Entity or Entities 

engaging in the transactions in 

connection with those transactions 

during the period; 

(3) The Merrill Lynch/BlackRock 

Related Entity or Entities effecting or 

executing the agency cross transaction 

has the discretionary authority to act on 

behalf of, and/or provide investment 

advice to, either (A) one or more sellers 

or (B) one or more buyers with respect 

to the transaction, but not both. 

(4) The agency cross transaction is a 

purchase or sale, for no consideration 

other than cash payment against prompt 

delivery of a security for which market 

quotations are readily available; and 

(5) The agency cross transaction is 

executed or effected at a price that is at 

or between the independent bid and 

independent ask prices for the security 

prevailing at the time of the transaction. 

(h) A Merrill Lynch/BlackRock 

Related Entity or Entities serving as 

trustee (other than a nondiscretionary 

trustee) may only engage in a covered 

transaction with a plan that has total net 

assets with a value of at least $50 

million and in the case of a pooled fund, 

the $50 million net asset requirement 

will be met if 50 percent or more of the 

units of beneficial interest in such 

pooled fund are held by plans each of 

which has total net assets with a value 

of at least $50 million. 

For purposes of the net asset tests 

described above, where a group of plans 

is maintained by a single employer or 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55533 

controlled group of employers, as 

defined in section 407(d)(7) of the Act, 

the $50 million net asset requirement 

may be met by aggregating the assets of 

such plans, if the assets are pooled for 

investment purposes in a single master 

trust. 

(i) The Merrill Lynch/BlackRock 

Related Entity or Entities serving as 

trustee (other than a nondiscretionary 

trustee) engaging in a covered 

transaction furnishes, at least annually, 

to the authorizing plan fiduciary of each 

plan the following: 

(1) The aggregate brokerage 

commissions, expressed in dollars, paid 

by the plan to brokerage firms affiliated 

with such trustee; 

(2) The aggregate brokerage 

commissions, expressed in dollars, paid 

by the plan to brokerage firms not 

affiliated with such trustee; 

(3) The average brokerage 

commissions, expressed as cents per 

share, paid by the plan to brokerage 

firms affiliated with such trustee; and 

(4) The average brokerage 

commissions, expressed as cents per 

share, paid by the plan to brokerage 

firms not affiliated with such trustee. 

For purposes of this paragraph (i), the 

words ‘‘paid by the plan’’ should be 

construed to mean ‘‘paid by the pooled 

fund’’ when the trustee engages in 

covered transactions on behalf of a 

pooled fund in which the plan 

participates. 

Section IV: Exceptions From Conditions 

(a) Certain plans not covering 

employees. Section III of this exemption 

does not apply to covered transactions 

to the extent they are engaged in on 

behalf of individual retirement accounts 

meeting the conditions of 29 CFR 

2510.3–2(d), or plans, other than 

training programs, that cover no 

employees within the meaning of 29 

CFR 2510.3–3. 

(b) Certain agency cross transactions. 

Section III of this exemption does not 

apply in the case of an agency cross 

transaction, provided that the Merrill 

Lynch/BlackRock Related Entity or 

Entities effecting or executing the 

transaction and any other Merrill 

Lynch/BlackRock Related Entity or 

Entities: 

(1) Does not render investment advice 

to any plan for a fee within the meaning 

of section 3(21)(A)(ii) of the Act with 

respect to the transaction; 

(2) Is not otherwise a fiduciary who 

has investment discretion with respect 

to any plan assets involved in the 

transaction, see 29 CFR 2510.3–21(d); 

and 

(3) Does not have the authority to 

engage, retain or discharge any person 

who is or is proposed to be a fiduciary 

regarding any such plan assets. 

(c) Recapture of profits. Section III(a) 

of this exemption does not apply in any 

case where the Merrill Lynch/BlackRock 

Related Entity or Entities engaging in a 

covered transaction returns or credits to 

the plan all profits earned by that 

Merrill Lynch/BlackRock Related Entity 

or Entities in connection with the 

securities transactions associated with 

the covered transaction. 

(d) Special rules for pooled funds. In 

the case of a Merrill Lynch/BlackRock 

Related Entity or Entities engaging in a 

covered transaction on behalf of an 

account or fund for the collective 

investment of the assets of more than 

one plan (pooled fund): 

(1) Section III (b), (c), and (d) of this 

exemption does not apply if— 

(A) The arrangement under which the 

covered transaction is performed is 

subject to the prior and continuing 

authorization, in the manner described 

in this paragraph (d)(1), of an 

authorizing plan fiduciary with respect 

to each plan whose assets are invested 

in the pooled fund who is independent 

of the Merrill Lynch/BlackRock Related 

Entity or Entities. The requirement that 

the authorizing plan fiduciary be 

independent of the Merrill Lynch/ 

BlackRock Related Entity or Entities 

shall not apply in the case of a plan 

covering only employees of the Merrill 

Lynch/BlackRock Related Entity or 

Entities, if the requirements of Section 

IV(d)(2)(A) and (B) of this exemption are 

met. 

(B) The authorizing plan fiduciary is 

furnished with any reasonably available 

information that the Merrill Lynch/ 

BlackRock Related Entity or Entities 

engaging or proposing to engage in the 

covered transactions reasonably believes 

to be necessary for the authorizing plan 

fiduciary to determine whether the 

authorization should be given or 

continued, not less than 30 days prior 

to implementation of the arrangement or 

material change thereto, including (but 

not limited to) a description of the 

Merrill Lynch/BlackRock Related Entity 

or Entities’ brokerage placement 

practices, and, where requested, any 

reasonably available information 

regarding the matter upon the 

reasonable request of the authorizing 

plan fiduciary at any time. 

(C) In the event an authorizing plan 

fiduciary submits a notice in writing to 

the Merrill Lynch/BlackRock Related 

Entity or Entities engaging in or 

proposing to engage in the covered 

transaction objecting to the 

implementation of, material change in, 

or continuation of, the arrangement, the 

plan on whose behalf the objection was 

tendered is given the opportunity to 

terminate its investment in the pooled 

fund, without penalty to the plan, 

within such time as may be necessary to 

effect the withdrawal in an orderly 

manner that is equitable to all 

withdrawing plans and to the 

nonwithdrawing plans. In the case of a 

plan that elects to withdraw under this 

subparagraph (d)(1)(C), the withdrawal 

shall be effected prior to the 

implementation of, or material change 

in, the arrangement; but an existing 

arrangement need not be discontinued 

by reason of a plan electing to 

withdraw. 

(D) In the case of plan whose assets 

are proposed to be invested in the 

pooled fund subsequent to the 

implementation of the arrangement and 

that has not authorized the arrangement 

in the manner described in 

subparagraphs (d)(1)(B) and (C) of this 

Section, the plan’s investment in the 

pooled fund is subject to the prior 

written authorization of an authorizing 

plan fiduciary who satisfies the 

requirements of subparagraph (d)(1)(A). 

(2) To the extent that Section III(a) of 

this exemption prohibits any Merrill 

Lynch/BlackRock Related Entity or 

Entities from being the employer of 

employees covered by a plan investing 

in a pool managed by the Merrill Lynch/ 

BlackRock Related Entity or Entities, 

Section III(a) of this exemption does not 

apply if— 

(A) The Merrill Lynch/BlackRock 

Related Entity or Entities is an 

‘‘investment manager’’ as defined in 

section 3(38) of the Act, and 

(B) Either (i) the Merrill Lynch/ 

BlackRock Related Entity or Entities 

returns or credits to the pooled fund all 

profits earned by the Merrill Lynch/ 

BlackRock Related Entity or Entities in 

connection with all covered transactions 

engaged in by the Merrill Lynch/ 

BlackRock Related Entity or Entities on 

behalf of the fund, or (ii) the pooled 

fund satisfies the requirements of 

paragraph IV(d)(3). 

(3) A pooled fund satisfies the 

requirements of this paragraph for a 

fiscal year of the fund if— 

(A) On the first day of such fiscal 

year, and immediately following each 

acquisition of an interest in the pooled 

fund during the fiscal year by any plan 

covering employees of any Merrill 

Lynch/BlackRock Related Entity or 

Entities, the aggregate fair market value 

of the interests in such fund of all plans 

covering employees of any Merrill 

Lynch/BlackRock Related Entity or 

Entities does not exceed twenty percent 

of the fair market value of the total 

assets of the fund; and 

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55534 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

(B) The aggregate brokerage 

commissions received by any Merrill 

Lynch/BlackRock Related Entity or 

Entities, in connection with covered 

transactions engaged in by any Merrill 

Lynch/BlackRock Related Entity or 

Entities on behalf of all pooled funds in 

which a plan covering employees of any 

Merrill Lynch/BlackRock Related Entity 

or Entities participates, do not exceed 

five percent of the total brokerage 

commissions received by any Merrill 

Lynch/BlackRock Related Entity or 

Entities from all sources in such fiscal 

year. 

9. Exemption for Cross-Trades of 

Securities by Index and Model-Driven 

Funds (Modeled After PTE 2002–12) 

Section I. Exemption for Cross-Trading 

of Securities by Index and/or ModelDriven Funds 

The restrictions of sections 

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

and the sanctions resulting from the 

application of section 4975 of the Code, 

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

Code, shall not apply to the transactions 

described below if the applicable 

conditions set forth in Sections II and III 

of this exemption, below, are satisfied. 

(a) The purchase and sale of securities 

between an Index Fund or a ModelDriven Fund (either, a Fund; or 

collectively, the Funds), as defined in 

Section IV(a) and (b) of this exemption, 

below, and another Fund, at least one of 

which holds ‘‘plan assets’’ subject to the 

Act; or 

(b) The purchase and sale of securities 

between a Fund and a Large Account, as 

defined in Section IV(e) of this 

exemption, below, at least one of which 

holds ‘‘plan assets’’ subject to the Act, 

pursuant to a portfolio restructuring 

program, as defined in Section IV(f) of 

this exemption, below, of the Large 

Account; 

Notwithstanding the foregoing, this 

exemption shall apply to cross-trades 

between two or more Large Accounts 

pursuant to a portfolio restructuring 

program if such cross-trades occur as 

part of a single cross-trading program 

involving both Funds and Large 

Accounts for which securities are crosstraded solely as a result of the objective 

operation of the program. 

Section II. Specific Conditions 

(a) The cross-trade is executed at the 

closing price, as defined in Section 

IV(h) of this exemption below. 

(b) Any cross-trade of securities by a 

Fund occurs as a direct result of a 

‘‘triggering event,’’ as defined in Section 

IV(d) of this exemption, and is executed 

no later than the close of the third 

business day following such ‘‘triggering 

event.’’ 

(c) If the cross-trade involves a ModelDriven Fund, the cross-trade does not 

take place within three (3) business days 

following any change made by the 

Manager to the model underlying the 

Fund. 

(d) The Manager has allocated the 

opportunity for all Funds or Large 

Accounts to engage in the cross-trade on 

an objective basis which has been 

previously disclosed to the authorizing 

fiduciaries of plan investors, and which 

does not permit the exercise of 

discretion by the Manager (e.g., a pro 

rata allocation system). 

(e) No more than twenty (20) percent 

of the assets of the Fund or Large 

Account at the time of the cross-trade is 

comprised of assets of employee benefit 

plans maintained by the Manager for its 

own employees (Manager Plans) for 

which the Manager exercises investment 

discretion. 

(f)(1) Cross-trades of equity securities 

involve only securities that are widelyheld, actively-traded, and for which 

market quotations are readily available 

from independent sources that are 

engaged in the ordinary course of 

business of providing financial news 

and pricing information to institutional 

investors and/or the general public, and 

are widely recognized as accurate and 

reliable sources for such information. 

For purposes of this requirement, the 

terms ‘‘widely-held’’ and ‘‘activelytraded’’ shall be deemed to include any 

security listed in an Index, as defined in 

Section IV(c) of this exemption; and 

(2) Cross-trades of fixed-income 

securities involve only securities for 

which market quotations are readily 

available from independent sources that 

are engaged in the ordinary course of 

business of providing financial news 

and pricing information to institutional 

investors and/or the general public, and 

are widely recognized as accurate and 

reliable sources for such information. 

(g) The Manager receives no brokerage 

fees or commissions as a result of the 

cross-trade. 

(h) As of the date this exemption is 

granted, a plan’s participation in the 

cross-trading program of a Manager, as 

a result of investments made in any 

Index or Model-Driven Fund that holds 

plan assets is subject to a written 

authorization executed in advance of 

such investment by a fiduciary of the 

plan which is independent of the 

Manager engaging in the cross-trade 

transactions. For purposes of this 

exemption, the requirement that the 

authorizing plan fiduciary be 

independent of the Manager shall not 

apply in the case of a Manager Plan. 

(i) With respect to existing plan 

investors in any Index or Model-Driven 

Fund that holds plan assets as of the 

date this exemption is granted, the 

independent fiduciary is furnished with 

a written notice, not less than forty-five 

(45) days prior to the implementation of 

the cross-trading program, that describes 

the Fund’s participation in the crosstrading program of the Manager, 

provided that: 

(1) Such notice allows each plan an 

opportunity to object to the plan’s 

participation in the cross-trading 

program as a Fund investor by 

providing the plan with a special 

termination form; 

(2) The notice instructs the 

independent plan fiduciary that failure 

to return the termination form to the 

Manager, by a specified date (which 

shall be at least 30 days following the 

plan’s receipt of the form) shall be 

deemed to be an approval by the plan 

of its participation in the Manager’s 

cross-trading program as a Fund 

investor; and 

(3) If the independent plan fiduciary 

objects to the plan’s participation in the 

cross-trading program as a Fund 

investor by returning the termination 

form to the Manager by the specified 

date, the plan is given the opportunity 

to withdraw from each Index or ModelDriven Fund without penalty prior to 

the implementation of the cross-trading 

program, within such time as may be 

reasonably necessary to effectuate the 

withdrawal in an orderly manner. 

(j) Prior to obtaining the authorization 

described in Section II(h) of this 

exemption, and in the notice described 

in Section II(i) of this exemption, the 

following statement must be provided 

by the Manager to the independent plan 

fiduciary: 

Investment decisions for the Fund 

(including decisions regarding which 

securities to buy or sell, how much of 

a security to buy or sell, and when to 

execute a sale or purchase of securities 

for the Fund) will not be based in whole 

or in part by the Manager on the 

availability of cross-trade opportunities 

and will be made prior to the 

identification and determination of any 

cross-trade opportunities. In addition, 

all cross-trades by a Fund will be based 

solely upon a ‘‘triggering event’’ set 

forth in this exemption. Records 

documenting each cross-trade 

transaction will be retained by the 

Manager. 

(k) Prior to any authorization set forth 

in Section II(h) of this exemption, and 

at the time of any notice described in 

Section II(i) of this exemption, the 

independent plan fiduciary must be 

furnished with any reasonably available 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55535 

2However, proper disclosures must be made to, 

and written authorization must be made by, an 

appropriate plan fiduciary for the Manager Plan in 

order for the Manager Plan to participate in a 

specific portfolio restructuring program as part of a 

Large Account. 

information necessary for the fiduciary 

to determine whether the authorization 

should be given, including (but not 

limited to) a copy of this exemption, an 

explanation of how the authorization 

may be terminated, detailed disclosure 

of the procedures to be implemented 

under the Manager’s cross-trading 

practices (including the ‘‘triggering 

events’’ that will create the cross-trading 

opportunities, the independent pricing 

services that will be used by the 

Manager to price the cross-traded 

securities, and the methods that will be 

used for determining closing price), and 

any other reasonably available 

information regarding the matter that 

the authorizing plan fiduciary requests. 

The independent plan fiduciary must 

also be provided with a statement that 

the Manager will have a potentially 

conflicting division of loyalties and 

responsibilities to the parties to any 

cross-trade transaction and must explain 

how the Manager’s cross-trading 

practices and procedures will mitigate 

such conflicts. 

With respect to Funds that are added 

to the Manager’s cross-trading program 

or changes to, or additions of, triggering 

events regarding Funds, following the 

authorizations described in Section II(h) 

or Section II(i) of this exemption, the 

Manager shall provide a notice to each 

relevant independent plan fiduciary of 

each plan invested in the affected Funds 

prior to, or within ten (10) days 

following, such addition of Funds or 

change to, or addition of, triggering 

events, which contains a description of 

such Fund(s) or triggering event(s). Such 

notice will also include a statement that 

the plan has the right to terminate its 

participation in the cross-trading 

program and its investment in any Index 

Fund or Model-Driven Fund without 

penalty at any time, as soon as is 

necessary to effectuate the withdrawal 

in an orderly manner. 

(l) At least annually, the Manager 

notifies the independent fiduciary for 

each plan that has previously 

authorized participation in the 

Manager’s cross-trading program as a 

Fund investor, that the plan has the 

right to terminate its participation in the 

cross-trading program and its 

investment in any Index Fund or ModelDriven Fund that holds plan assets 

without penalty at any time, as soon as 

is necessary to effectuate the withdrawal 

in an orderly manner. This notice shall 

also provide each independent plan 

fiduciary with a special termination 

form and instruct the fiduciary that 

failure to return the form to the Manager 

by a specified date (which shall be at 

least thirty (30) days following the 

plan’s receipt of the form) shall be 

deemed an approval of the subject 

plan’s continued participation in the 

cross-trading program as a Fund 

investor. In lieu of providing a special 

termination form, the notice may permit 

the independent plan fiduciary to 

utilize another written instrument by 

the specified date to terminate the 

plan’s participation in the cross-trading 

program, provided that in such case the 

notice explicitly discloses that a 

termination form may be obtained from 

the Manager upon request. Such annual 

re-authorization must provide 

information to the relevant independent 

plan fiduciary regarding each Fund in 

which the plan is invested, as well as 

explicit notification that the plan 

fiduciary may request and obtain 

disclosures regarding any new Funds in 

which the plan is not invested that are 

added to the cross-trading program, or 

any new triggering events (as defined in 

Section IV(d) of this exemption) that 

may have been added to any existing 

Funds in which the plan is not invested, 

since the time of the initial 

authorization described in Section II(h) 

of this exemption, or the time of the 

notice described in Section II(i) of this 

exemption. 

(m) With respect to a cross-trade 

involving a Large Account: 

(1) The cross-trade is executed in 

connection with a portfolio 

restructuring program, as defined in 

Section IV(f) of this exemption, with 

respect to all or a portion of the Large 

Account’s investments which an 

independent fiduciary of the Large 

Account (other than in the case of any 

assets of a Manager Plan) has authorized 

the Manager to carry out or to act as a 

‘‘trading adviser,’’ as defined in Section 

IV(g) of this exemption, in carrying out 

a Large Account-initiated liquidation or 

restructuring of its portfolio; 

(2) Prior to the cross-trade, a fiduciary 

of the Large Account who is 

independent of the Manager (other than 

in the case of any assets of a Manager 

Plan) 2 has been fully informed of the 

Manager’s cross-trading program, has 

been provided with the information 

required in Section II(k) of this 

exemption, and has provided the 

Manager with advance written 

authorization to engage in cross-trading 

in connection with the restructuring, 

provided that— 

(A) Such authorization may be 

terminated at will by the Large Account 

upon receipt by the Manager of written 

notice of termination. 

(B) A form expressly providing an 

election to terminate the authorization, 

with instructions on the use of the form, 

is supplied to the authorizing Large 

Account fiduciary concurrent with the 

receipt of the written information 

describing the cross-trading program. 

The instructions for such form must 

specify that the authorization may be 

terminated at will by the Large Account, 

without penalty to the Large Account, 

upon receipt by the Manager of written 

notice from the authorizing Large 

Account fiduciary; 

(3) All cross-trades made in 

connection with the portfolio 

restructuring program must be 

completed by the Manager within sixty 

(60) days of the initial authorization (or 

initial receipt of assets associated with 

the restructuring, if later) to engage in 

such restructuring by the Large 

Account’s independent fiduciary, unless 

such fiduciary agrees in writing to 

extend this period for another thirty (30) 

days; and, 

(4) No later than thirty (30) days 

following the completion of the Large 

Account’s portfolio restructuring 

program, the Large Account’s 

independent fiduciary must be fully 

apprised in writing of all cross-trades 

executed in connection with the 

restructuring. Such writing shall 

include a notice that the Large 

Account’s independent fiduciary may 

obtain, upon request, the information 

described in Section III(a) of this 

exemption, subject to the limitations 

described in Section III(b) of this 

exemption. However, if the program 

takes longer than sixty (60) days to 

complete, interim reports containing the 

transaction results must be provided to 

the Large Account fiduciary no later 

than fifteen (15) days following the end 

of the initial sixty (60) day period and 

the succeeding thirty (30) day period. 

Section III. General Conditions 

(a) The Manager maintains or causes 

to be maintained for a period of six (6) 

years from the date of each cross-trade 

the records necessary to enable the 

persons described in paragraph (b) of 

this Section to determine whether the 

conditions of this exemption have been 

met, including records which identify: 

(1) On a Fund by Fund basis, the 

specific triggering events which result 

in the creation of the model prescribed 

output or trade list of specific securities 

to be cross-traded; 

(2) On a Fund by Fund basis, the 

model prescribed output or trade list 

which describes: (A) Which securities to 

buy or sell; and (B) how much of each 

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55536 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

security to buy or sell; in detail 

sufficient to allow an independent plan 

fiduciary to verify that each of the above 

decisions for the Fund was made in 

response to specific triggering events; 

and 

(3) On a Fund by Fund basis, the 

actual trades executed by the Fund on 

a particular day and which of those 

trades resulted from triggering events. 

Such records must be readily 

available to assure accessibility and 

maintained so that an independent 

fiduciary, or other persons identified 

below in paragraph (b) of this Section, 

may obtain them within a reasonable 

period of time. However, a prohibited 

transaction will not be considered to 

have occurred if, due to circumstances 

beyond the control of the Manager, the 

records are lost or destroyed prior to the 

end of the six-year period, and no party 

in interest other than the Manager 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 

paragraph (b) below. 

(b)(1) Except as provided in paragraph 

(b)(2) and notwithstanding any 

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

of the Act, the records referred to in 

paragraph (a) of this Section are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department of 

Labor or the Internal Revenue Service, 

(B) Any fiduciary of a plan 

participating in a cross-trading program 

who has the authority to acquire or 

dispose of the assets of the plan, or any 

duly authorized employee or 

representative of such fiduciary, 

(C) Any contributing employer with 

respect to any plan participating in a 

cross-trading program or any duly 

authorized employee or representative 

of such employer, and 

(D) Any participant or beneficiary of 

any Manager Plan participating in a 

cross-trading program, or any duly 

authorized employee or representative 

of such participant or beneficiary. 

(2) If, in the course of seeking to 

inspect records maintained by a 

Manager pursuant to this Section, any 

person described in paragraph (b)(1)(B) 

through (D) seeks to examine trade 

secrets, or commercial or financial 

information of the Manager that is 

privileged or confidential, and the 

Manager is otherwise permitted by law 

to withhold such information from such 

person, the Manager may refuse to 

disclose such information provided that, 

by the close of the thirtieth (30th) day 

following the request, the Manager gives 

a written notice to such person advising 

the person of the reasons for the refusal 

and that the Department of Labor may 

request such information. 

(3) The information required to be 

disclosed to persons described in 

paragraph (b)(1)(B) through (D) shall be 

limited to information that pertains to 

cross-trades involving a Fund or Large 

Account in which they have an interest. 

Section IV. Definitions 

The following definitions apply for 

purposes of this exemption: 

(a) ‘‘Index Fund’’—Any investment 

fund, account or portfolio sponsored, 

maintained, trusteed, or managed by a 

Manager or an Affiliate, in which one or 

more investors invest, and— 

(1) Which is designed to track the rate 

of return, risk profile and other 

characteristics of an Index, as defined in 

Section IV(c) of this exemption, by 

either (i) replicating the same 

combination of securities which 

compose such Index or (ii) sampling the 

securities which compose such Index 

based on objective criteria and data; 

(2) For which the Manager does not 

use its discretion, or data within its 

control, to affect the identity or amount 

of securities to be purchased or sold; 

(3) That either contains ‘‘plan assets’’ 

subject to the Act, is an investment 

company registered under the 

Investment Company Act of 1940, or 

contains assets of one or more 

institutional investors, which may 

include, but not be limited to, such 

entities as an insurance company 

separate account or general account, a 

governmental plan, a university 

endowment fund, a charitable 

foundation fund, a trust or other fund 

which is exempt from taxation under 

section 501(a) of the Code; and, 

(4) That involves no agreement, 

arrangement, or understanding 

regarding the design or operation of the 

Index Fund which is intended to benefit 

a Manager or an Affiliate, or any party 

in which a Manager or an Affiliate may 

have an interest. 

(b) ‘‘Model-Driven Fund’’—Any 

investment fund, account or portfolio 

sponsored, maintained, trusteed, or 

managed by the Manager or an Affiliate 

in which one or more investors invest, 

and— 

(1) Which is composed of securities 

the identity of which and the amount of 

which are selected by a computer model 

that is based on prescribed objective 

criteria using independent third party 

data, not within the control of the 

Manager, to transform an Index, as 

defined in Section IV(c) of this 

exemption; 

(2) Which either contains ‘‘plan 

assets’’ subject to the Act, is an 

investment company registered under 

the Investment Company Act of 1940, or 

contains assets of one or more 

institutional investors, which may 

include, but not be limited to, such 

entities as an insurance company 

separate account or general account, a 

governmental plan, a university 

endowment fund, a charitable 

foundation fund, a trust or other fund 

which is exempt from taxation under 

section 501(a) of the Code; and 

(3) That involves no agreement, 

arrangement, or understanding 

regarding the design or operation of the 

Model-Driven Fund or the utilization of 

any specific objective criteria which is 

intended to benefit a Manager or an 

Affiliate, or any party in which a 

Manager or an Affiliate may have an 

interest. 

(c) ‘‘Index’’—A securities index that 

represents the investment performance 

of a specific segment of the public 

market for equity or debt securities in 

the United States and/or foreign 

countries, but only if— 

(1) The organization creating and 

maintaining the index is— 

(A) Engaged in the business of 

providing financial information, 

evaluation, advice or securities 

brokerage services to institutional 

clients, 

(B) A publisher of financial news or 

information, or 

(C) A public securities exchange or 

association of securities dealers; and 

(2) The index is created and 

maintained by an organization 

independent of the Manager, as defined 

in Section IV(i) of this exemption; and 

(3) The index is a generally accepted 

standardized index of securities which 

is not specifically tailored for the use of 

the Manager. 

(d) ‘‘Triggering Event’’: 

(1) A change in the composition or 

weighting of the Index underlying a 

Fund by the independent organization 

creating and maintaining the Index; 

(2) A material amount of net change 

in the overall level of assets in a Fund, 

as a result of investments in and 

withdrawals from the Fund, provided 

that: 

(A) Such material amount has either 

been identified in advance as a specified 

amount of net change relating to such 

Fund and disclosed in writing as a 

‘‘triggering event’’ to an independent 

fiduciary of each plan having assets 

held in the Fund prior to, or within ten 

(10) days following, its inclusion as a 

‘‘triggering event’’ for such Fund or the 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55537 

Manager has otherwise disclosed in the 

description of its cross-trading practices 

pursuant to Section II(k) of this 

exemption the parameters for 

determining a material amount of net 

change, including any amount of 

discretion retained by the Manager that 

may affect such net change, in sufficient 

detail to allow the independent 

fiduciary to determine whether the 

authorization to engage in cross-trading 

should be given; and 

(B) Investments or withdrawals as a 

result of the Manager’s discretion to 

invest or withdraw assets of a Manager 

Plan, other than a Manager Plan which 

is a defined contribution plan under 

which participants direct the 

investment of their accounts among 

various investment options, including 

such Fund, will not be taken into 

account in determining the specified 

amount of net change; 

(3) An accumulation in the Fund of a 

material amount of either: 

(A) Cash which is attributable to 

interest or dividends on, and/or tender 

offers for, portfolio securities; or 

(B) Stock attributable to dividends on 

portfolio securities; provided that such 

material amount has either been 

identified in advance as a specified 

amount relating to such Fund and 

disclosed in writing as a ‘‘triggering 

event’’ to an independent fiduciary of 

each plan having assets held in the 

Fund prior to, or within ten (10) days 

after, its inclusion as a ‘‘triggering 

event’’ for such Fund, or the Manager 

has otherwise disclosed in the 

description of its cross-trading practices 

pursuant to Section II(k) of this 

exemption the parameters for 

determining a material amount of 

accumulated cash or securities, 

including any amount of discretion 

retained by the Manager that may affect 

such accumulated amount, in sufficient 

detail to allow the independent 

fiduciary to determine whether the 

authorization to engage in cross-trading 

should be given; 

(4) A change in the composition of the 

portfolio of a Model-Driven Fund 

mandated solely by operation of the 

formulae contained in the computer 

model underlying the Model-Driven 

Fund where the basic factors for making 

such changes (and any fixed frequency 

for operating the computer model) have 

been disclosed in writing to an 

independent fiduciary of each plan 

having assets held in the Model-Driven 

Fund, prior to, or within ten (10) days 

after, its inclusion as a ‘‘triggering 

event’’ for such Model-Driven Fund; or 

(5) A change in the composition or 

weighting of a portfolio for an Index 

Fund or a Model-Driven Fund which 

results from an independent fiduciary’s 

direction to exclude certain securities or 

types of securities from the Fund, 

notwithstanding that such securities are 

part of the index used by the Fund. 

(e) ‘‘Large Account’’—Any investment 

fund, account or portfolio that is not an 

Index Fund or a Model-Driven Fund 

sponsored, maintained, trusteed (other 

than a Fund for which the Manager is 

a nondiscretionary trustee) or managed 

by the Manager, which holds assets of 

either: 

(1) An employee benefit plan within 

the meaning of section 3(3) of the Act 

that has $50 million or more in total 

assets (for purposes of this requirement, 

the assets of one or more employee 

benefit plans maintained by the same 

employer, or controlled group of 

employers, may be aggregated provided 

that such assets are pooled for 

investment purposes in a single master 

trust); 

(2) An institutional investor that has 

total assets in excess of $50 million, 

such as an insurance company separate 

account or general account, a 

governmental plan, a university 

endowment fund, a charitable 

foundation fund, a trust or other fund 

which is exempt from taxation under 

section 501(a) of the Code; or 

(3) An investment company registered 

under the Investment Company Act of 

1940 (e.g., a mutual fund) other than an 

investment company advised or 

sponsored by the Manager; provided 

that the Manager has been authorized to 

restructure all or a portion of the 

portfolio for such Large Account or to 

act as a ‘‘trading adviser’’ (as defined in 

Section IV(g) of this exemption) in 

connection with a portfolio 

restructuring program (as defined in 

Section IV(f) of this exemption) for the 

Large Account. 

(f) ‘‘Portfolio restructuring 

program’’—Buying and selling the 

securities on behalf of a Large Account 

in order to produce a portfolio of 

securities which will be an Index Fund 

or a Model-Driven Fund managed by the 

Manager or by another investment 

manager, or in order to produce a 

portfolio of securities the composition 

of which is designated by a party 

independent of the Manager, without 

regard to the requirements of Section 

IV(a)(3) or (b)(2) of this exemption, or to 

carry out a liquidation of a specified 

portfolio of securities for the Large 

Account. 

(g) ‘‘Trading adviser’’—A Merrill 

Lynch/BlackRock Related Entity or 

Entities whose role is limited with 

respect to a Large Account to the 

disposition of a securities portfolio in 

connection with a portfolio 

restructuring program that is a Large 

Account-initiated liquidation or 

restructuring within a stated period of 

time in order to minimize transaction 

costs. The Merrill Lynch/BlackRock 

Related Entity or Entities does not have 

discretionary authority or control with 

respect to any underlying asset 

allocation, restructuring or liquidation 

decisions for the account in connection 

with such transactions and does not 

render investment advice [within the 

meaning of 29 CFR 2510.3–21(c)] with 

respect to such transactions. 

(h) ‘‘Closing price’’—The price for a 

security on the date of the transaction, 

as determined by objective procedures 

disclosed to investors in advance and 

consistently applied with respect to 

securities traded in the same market, 

which procedures shall indicate the 

independent pricing source (and 

alternates, if the designated pricing 

source is unavailable) used to establish 

the closing price and the time frame 

after the close of the market in which 

the closing price will be determined. 

(i) ‘‘Manager’’—A Merrill Lynch/ 

BlackRock Related Entity which is: 

(1) A bank or trust company, or any 

Affiliate thereof, which is supervised by 

a state or federal agency; or 

(2) An investment adviser or any 

Affiliate thereof which is registered 

under the Investment Advisers Act of 

1940. 

(j) ‘‘Affiliate’’—An affiliate of a 

Manager is: 

(1) Any person, directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by or under 

common control with the Manager: 

(2) Any officer, director, employee or 

relative of such Manager, or partner of 

any such Manager; 

(3) Any corporation or partnership of 

which such Manager is an officer, 

director, partner or employee; or 

(4) Any Merrill Lynch/BlackRock 

Related Entity. 

(k) ‘‘Control’’—The power to exercise 

a controlling influence over the 

management or policies of a person 

other than an individual. 

(l) ‘‘Relative’’—A relative is a person 

that 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 sister. 

(m) ‘‘Nondiscretionary trustee’’—A 

plan trustee whose powers and duties 

with respect to any assets of the plan are 

limited to (1) the provision of 

nondiscretionary trust services to the 

plan, and (2) duties imposed on the 

trustee by any provision or provisions of 

the Act or the Code. The term 

‘‘nondiscretionary trust services’’ means 

mstockstill on PROD1PC66 with NOTICES

55538 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

3Parts III and IV of PTE 75–1 (40 FR 50845, 

October 31, 1975); PTE 77–3 (42 FR 18734, April 

8, 1977); PTE 77–4 (42 FR 18732, April 8, 1977); 

PTE 79–13 (44 FR 25533, May 1, 1979); PTE 86– 

128 (51 FR 41686, November 18, 1986; as amended 

by 67 FR 64137, October 17, 2002); and PTE 2002– 

12 (67 FR 9483, March 1, 2002). 

4According to the Applicants, the investment 

adviser for a ‘‘BlackRock’’ mutual fund will be a 

BlackRock Related Entity. A Merrill Lynch Related 

Entity may not be an affiliated person (as defined 

in section 2(a)(3) of the Investment Company Act 

of 1940) of a BlackRock Related Entity that is acting 

as an investment adviser to a BlackRock mutual 

fund. Since ML&Co. owns more than 5% of the 

outstanding voting securities of BlackRock, ML&Co. 

would be considered an ‘‘affiliated person’’ of 

BlackRock within the meaning of Section 2(a)(3) of 

the Investment Company Act of 1940. The 

Applicants further state that the BlackRock Related 

Entities are ‘‘affiliated persons’’ of BlackRock 

within the meaning of Section 2(a)(3) of the 

Investment Company Act, because BlackRock owns 

more than 5% of the outstanding voting securities 

of each of the BlackRock Related Entities. However, 

the Applicants point out that Section 2(a)(3) of the 

Investment Company Act distinguishes between 

affiliates with a parent-subsidiary relationship and 

affiliates that would only be affiliates because of a 

common parent (i.e., sibling companies). In the 

latter case, two affiliates of a parent entity are not 

necessarily affiliates of each other. 

custodial services and services ancillary 

to custodial services, none of which 

services are discretionary. For purposes 

of this exemption, a person who is 

otherwise a nondiscretionary trustee 

will not fail to be a nondiscretionary 

trustee solely by reason of having been 

delegated, by the sponsor of a master or 

prototype plan, the power to amend 

such plan. 

DATES: Effective Date: This exemption is 

effective September 29, 2006 and will 

expire at such time as ML&Co.’s equity 

interest in BlackRock falls below ten 

percent (10%). 

Background 

On September 29, 2006, ML&Co. and 

BlackRock consummated a transaction 

(i.e., the Merger), in which ML&Co. 

contributed Merrill Lynch Investment 

Managers, LLC (MLIM) and various 

other assets and subsidiaries that 

comprised its investment management 

business to BlackRock in exchange for 

approximately 45% of the outstanding 

voting securities of BlackRock. Prior to 

the Merger, ML&Co. and its affiliates 

engaged in various types of transactions, 

involving employee benefit plans, in 

reliance on, and in accordance with the 

conditions of various class exemptions 

(the Applicable Exemptions) 3 issued by 

the Department. Also, prior to the 

Merger, affiliates of ML&Co. engaged in 

the same transactions as described in 

the Applicable Exemptions, involving 

plans, with affiliates of BlackRock for 

which no exemption was required 

because ML&Co. had, at most, a de 

minimis ownership interest in 

BlackRock. 

As a result of the Merger, certain 

transactions involving companies 

affiliated with ML&Co. and companies 

affiliated with BlackRock may now be 

prohibited transactions as defined in 

section 406 of the Act. However, the 

ownership interest existing between 

ML&Co. and its affiliates and BlackRock 

and its affiliates may nevertheless not 

result in the various entities being 

considered ‘‘affiliates’’ of each other as 

defined in the Applicable Exemptions. 

As the Applicable Exemptions extend 

relief only to affiliated entities, as 

defined thereunder, ML&Co. and its 

affiliates, and BlackRock and its 

affiliates may not be able to take 

advantage of the relief provided by the 

Applicable Exemptions. 

Accordingly, the Department is 

granting an individual exemption which 

will enable the Applicants to engage in 

the transactions described in the 

Applicable Exemptions, provided the 

conditions contained herein are met. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the Notice of 

Proposed Exemption published on May 

9, 2008 at 73 FR 26418. 

Written Comments and Hearing 

Requests 

The Department received one 

comment letter with respect to the 

Notice of Proposed Exemption (the 

Notice), which was filed by the 

Applicants. The Applicants addressed 

several points regarding the Notice in 

their comment letter. The Applicants’ 

commentary, a discussion of the 

Department’s views in response thereto 

and the modifications to the proposed 

exemption are discussed below. 

The Applicants note that the Notice 

provided for temporary relief that would 

expire five years from the date the final 

exemption is published in the Federal 

Register. The Applicants contend that 

they are seeking no relief beyond that 

provided by the Applicable Exemptions, 

and that they are not asking that any 

conditions to relief under the 

Applicable Exemptions be liberalized. 

The Applicants point out that the 

Applicable Exemptions need not be 

renewed every five years, and the 

transactions described in the Notice are 

no more likely to raise self-dealing 

concerns than those covered by the 

Applicable Exemptions. The Applicants 

have recommended, as a more 

appropriate alternative to the five-year 

period, that the exemption expire once 

ML&Co.’s equity ownership in 

BlackRock falls below ten percent 

(10%). The Applicants believe that once 

that point is reached, transactions 

between the BlackRock Related Entities 

and the Merrill Lynch Related Entities 

would not constitute prohibited acts of 

self-dealing under the Act, and there 

would no longer be a need for 

individual exemptive relief. While the 

Department is not expressing an opinion 

as to whether ML&Co.’s ownership of 

less than 10% of BlackRock would 

ensure that transactions that are entered 

into between the BlackRock Related 

Entities and the Merrill Lynch Related 

Entities would not involve acts of selfdealing in violation of the Act, the 

Department has determined to adopt the 

Applicants’ comment and, accordingly, 

has amended the Notice such that the 

exemption will expire once ML&Co.’s 

equity ownership in BlackRock falls 

below ten percent (10%). 

The Applicants also commented with 

respect to the Notice regarding 

Applicable Exemptions PTE 77–3 

(Exemption Involving Mutual Fund InHouse Plans) and PTE 79–13 

(Exemption Involving Closed-End 

Investment Company In-House Plans). 

The Applicants state that, as drafted, the 

portion of the proposed exemption 

modeled on PTE 77–3 covers employees 

of an ‘‘affiliated person’’ (as defined in 

section 2(a)(3) of the Investment 

Company Act of 1940) of an investment 

adviser or principal underwriter; 

provided that the investment adviser or 

principal underwriter or their affiliates 

are a Merrill Lynch/BlackRock Related 

Entity or Entities. The Applicants point 

out that the portion of the Notice 

modeled on PTE 79–13 is similarly 

drafted.4 The Applicants represent that 

under section 2(a)(3) of the Investment 

Company Act of 1940, it is not clear that 

the BlackRock Related Entities are 

affiliates of ML&Co. or the Merrill 

Lynch Related Entities. The Applicants 

conclude that, as drafted, a Plan 

sponsored by a Merrill Lynch Related 

Entity may not be able to use the portion 

of the proposed exemption modeled on 

PTE 77–3 and PTE 79–13 to purchase 

‘‘BlackRock’’ mutual funds. 

The Department agrees with the 

comment and has modified portions of 

the operative language of the exemption 

as it pertains to the Applicable 

Exemptions PTE 77–3 and PTE 79–13. 

The Applicants also commented with 

respect to the Notice regarding 

Applicable Exemption PTE 77–4 

(Exemption for Certain Transactions 

Between Investment Companies and 

Employee Benefit Plans). The 

Applicants state that the first paragraph 

of the portion of the proposed 

exemption modeled on PTE 77–4 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55539 

provides ‘‘* * * where the investment 

adviser of the investment company is a 

Merrill Lynch/BlackRock Related Entity 

or Entities who is also a fiduciary with 

respect to the plan [emphasis 

added]* * *’’ The Applicants comment 

that the language in italics suggests that 

the investment adviser to the mutual 

fund and the fiduciary must be the same 

entity. If that were the case, the 

Applicants point out that a Merrill 

Lynch Related Entity that is a fiduciary 

may not be able to cause a Plan to invest 

in a mutual fund that is advised by a 

BlackRock Related Entity (or vice versa). 

The Applicants state that PTE 77–4 is 

not so restricted. The investment 

adviser can be a fiduciary or an 

‘‘affiliate’’ of a fiduciary. Thus, the 

Applicants request that the portion of 

the exemption modeled on PTE 77–4 be 

revised to make clear that if the 

investment adviser to the mutual fund 

is a BlackRock Related Entity, the 

fiduciary can be either a BlackRock 

Related Entity or a Merrill Lynch 

Related Entity (and vice versa). The 

Department has considered the 

comment and has modified the 

operative language of the exemption as 

it pertains to the Applicable Exemption 

PTE 77–4. 

Further, the Applicants commented 

with respect to the Notice regarding 

Applicable Exemption PTE 86–128 

(Exemption for Securities Transactions 

Involving Employee Benefit Plans and 

Broker-Dealers). The Applicants state 

that Section IV(b) of the portion of the 

Notice modeled on PTE 86–128 

provides, ‘‘Section III of this exemption 

does not apply in the case of an agency 

cross transaction, provided that the 

Merrill Lynch/BlackRock Related Entity 

or Entities effecting or executing the 

transaction’’ [emphasis added] meets 

specific conditions. The Applicants 

comment that the language in italics 

suggests that only the Merrill Lynch/ 

BlackRock Related Entity that effects or 

executes the transaction must meet the 

specific conditions set forth in Section 

IV(b) of this portion of the exemption. 

If that were the case, the Applicants 

indicate that a Merrill Lynch Related 

Entity could effect or execute a 

transaction without complying with the 

requirements of Section III of the 

portion of the Notice modeled on PTE 

86–128, where a BlackRock Related 

Entity acted as a fiduciary with 

investment discretion with respect to 

plan assets involved in a transaction. 

The Applicants then state that in PTE 

86–128, Section IV(b) provides: 

‘‘Section III of this exemption does not 

apply in the case of an agency cross 

transaction, provided that the person 

effecting or executing the transaction’’ 

meets specific conditions. The 

Applicants point out that the definition 

of ‘‘person’’ in PTE 86–128 includes the 

person and affiliates of the person, and 

therefore, Section IV of PTE 86–128 

requires that the person effecting or 

executing the transaction and its 

affiliates meet the conditions set forth in 

Sections IV(b)(1)–(3) of PTE 86–128. To 

prevent the Notice from providing relief 

broader than that contained in PTE 86– 

128, the Applicants recommend that the 

portion of the Notice modeled on PTE 

86–128 should be revised to make clear 

that the Merrill Lynch/BlackRock 

Related Entity or Entities effecting or 

executing the transaction and any other 

Merrill Lynch/BlackRock Related Entity 

must meet the conditions set forth in 

Section IV(b)(1)–(3). 

The Department has considered the 

comment and has modified the 

operative language of the exemption as 

it pertains to the Applicable Exemption 

PTE 86–128. 

Additionally, the Applicants 

commented with respect to the Notice 

regarding Applicable Exemption PTE 

2002–12 (Exemption for Cross-Trades of 

Securities by Index and Model-Driven 

Funds). The Applicants note that the 

term ‘‘Manager’’ under the portion of 

the Notice modeled on PTE 2002–12 is 

defined as (i) Banks or trust companies 

that are supervised by a state or federal 

agency, (ii) registered investment 

advisers and (iii) their respective 

‘‘Affiliates’’. Under this definition, the 

Applicants explain that where a 

BlackRock Related Entity is acting as an 

investment adviser, the definition of 

Manager may not include the Merrill 

Lynch Entities (and vice versa). If the 

definition of ‘‘Manager’’ does not 

include both the Merrill Lynch Related 

Entities and the BlackRock Related 

Entities, the Applicants indicate that the 

use of ‘‘Manager’’ and ‘‘Manager Plans’’ 

throughout the portion of the Proposed 

Exemption modeled on PTE 2002–12 

will lead to unintended consequences, 

in particular with respect to Sections 

II(e), (g), (h) and (m). For example, if a 

Merrill Lynch Related Entity is not 

considered an ‘‘Affiliate’’ of an 

investment adviser that is a BlackRock 

Related Entity, the portion of the Notice 

modeled on PTE 2002–12 could be 

construed to permit the Merrill Lynch 

Related Entity to receive a commission 

in connection with a cross-trade. 

Similarly, the Applicants explain that 

where a BlackRock Related Entity is a 

‘‘Manager’’, plans sponsored by a 

Merrill Lynch Related Entity may be 

unable to take advantage of or be 

restricted by the special rules governing 

Manager Plans. 

To address this issue, the Applicants 

propose that the definition of ‘‘Affiliate’’ 

be revised to specifically include the 

Merrill Lynch/BlackRock Related 

Entities. 

The Department has considered the 

comment and has modified the 

operative language of the exemption as 

it pertains to the Applicable Exemption 

PTE 2002–12. 

Finally, the Applicants sought to 

correct certain facts that appeared in the 

Notice. For example, the Summary of 

Facts and Representations included in 

the Notice states that ‘‘ML&Co. now 

owns a 50.3% economic interest in 

BlackRock.’’ The Applicants wish to 

clarify that ML&Co.’s ownership interest 

in BlackRock fluctuates and that the 

Stockholders Agreement imposes a 

49.8% cap on ML&Co.’s ownership of 

BlackRock equity and requires ML&Co. 

to dispose of BlackRock equity if it 

exceeds the specified ownership cap. 

The Applicants also sought a number of 

technical corrections to the Notice 

which the Department has taken under 

consideration or otherwise made. 

Accordingly, after giving full 

consideration to the entire record, 

including the Applicants’ written 

comments, the Department has decided 

to grant the exemption, as modified 

herein. 

For further information regarding the 

Applicants’ comments and other matters 

discussed herein, interested persons are 

encouraged to obtain copies of the 

exemption application file (Exemption 

Application No. D–11435) the 

Department is maintaining in this case. 

The complete application file, as well as 

all supplemental submissions received 

by the Department, are made available 

for public inspection in the Public 

Documents Room of the Employee 

Benefits Security Administration, Room 

N–1513, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on May 

9, 2008 at 73 FR 26418. 

For Further Information Contact: Mrs. 

Blessed Chuksorji-Keefe, Office of 

Exemption Determinations, Employee 

Benefits Security Administration, U.S. 

Department of Labor, telephone (202) 

693–8540. (This is not a toll-free 

number.) 

mstockstill on PROD1PC66 with NOTICES

55540 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

Pileco, Inc. Employees Profit Sharing 

Plan (the Plan); Located in Houston, 

Texas 

[Prohibited Transaction Exemption 

2008–11; Exemption Application No. 

D–11449] 

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 the 

proposed sale of certain unimproved 

real property (the Property) by the Plan 

to Pileco, Inc., the sponsor of the Plan, 

and 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) At the time of the sale, the Plan 

receives the greater of either: (1) 

$280,000; or (2) the fair market value of 

the Property as established by a 

qualified, independent appraiser in an 

updated appraisal of such Property; 

(c) The Plan pays no fees, 

commissions or other expenses 

associated with the sale; 

(d) The terms and conditions of the 

sale are at least as favorable to the Plan 

as those obtainable in an arm’s length 

transaction with an unrelated third 

party; and 

(e) The Plan trustee (1) Determines, 

among other things, whether it is in the 

best interest of the Plan to proceed with 

the sale of the Property; (2) reviews and 

approves the methodology used in the 

appraisal that is being relied upon; and 

(3) ensures that such methodology is 

applied by the qualified independent 

appraiser in determining the fair market 

value of the Property on the date of the 

sale. 

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 July 

8, 2008 at 73 FR 39175. 

For Further Information Contact: 

Blessed Chuksorji-Keefe of the 

Department at (202) 693–8567. (This is 

not a toll-free number). 

Mellon Bank N.A. (Mellon); Located in 

Pittsburgh, Pennsylvania 

[Prohibited Transaction Exemption 

2008–12; Exemption Application No. D– 

11460] 

Exemption 

The restrictions of sections 406(a), 

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

the sanctions resulting from the 

application of section 4975 of the Code, 

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

through (E) of the Code, shall not apply 

as of January 18, 2008, to the cash sale 

of certain medium term notes (the 

Notes) for $28,584,601.46 by the EB 

Daily Liquidity Money Market Fund 

(the Fund) to The Bank of New York 

Mellon Corporation (BNYMC), a party 

in interest with respect to employee 

benefit plans invested in the Fund, 

provided that the following conditions 

are met. 

(a) The sale was a one-time 

transaction for cash payment made on a 

delivery versus payment basis in the 

amount described in paragraph (b); 

(b) The Fund received an amount as 

of the settlement date of the sale which 

was equal to the greatest of: 

(i) The amortized cost of the Notes as 

of the date of the sale, if the Fund has 

been valued at amortized cost at any 

time within the preceding year; 

(ii) The price at which the Fund 

purchased the Notes, if the Fund is 

valued at fair market value and the 

Fund has not been valued at amortized 

cost at any time within the preceding 

year; or 

(iii) The fair market value of the Notes 

as of the date of the sale, as determined 

by an independent third party source or 

independent appraisal (in each case, 

including accrued but unpaid interest); 

(c) The Fund did not bear any 

commissions or transaction costs with 

respect to the sale; 

(d) Mellon, as trustee of the Fund, 

determined that the sale of the Notes 

was appropriate for and in the best 

interests of the Fund, and the employee 

benefit plans invested, directly or 

indirectly, in the Fund, at the time of 

the transaction; 

(e) Mellon took all appropriate actions 

necessary to safeguard the interests of 

the Fund, and the employee benefit 

plans invested in the Fund, in 

connection with the transactions; 

(f) If the exercise of any of BNYMC’s 

rights, claims or causes of action in 

connection with its ownership of the 

Notes results in BNYMC recovering 

from the issuer of the Notes, or any third 

party, an aggregate amount that is more 

than the sum of: 

(i) The purchase price paid for the 

Notes by BNYMC (i.e., $28.5 million); 

and 

(ii) The interest due on the Notes from 

and after the date BNYMC purchased 

the Notes from the Fund, at the rate 

specified in the Notes, BNYMC will 

refund such excess amounts promptly to 

the Fund (after deducting all reasonable 

expenses incurred in connection with 

the recovery). 

(g) Mellon and its affiliates, as 

applicable, maintain, or cause to be 

maintained, for a period of six (6) years 

from the date of any covered transaction 

such records as are necessary to enable 

the persons described below in 

paragraph (h)(i), to determine whether 

the conditions of this exemption have 

been met, except that— 

(i) No party in interest with respect to 

a plan which engages in the covered 

transactions, other than Mellon and its 

affiliates, as applicable, shall be subject 

to a civil penalty under section 502(i) of 

the Act or the taxes imposed by section 

4975(a) and (b) of the Code, if such 

records are not maintained, or not 

available for examination, as required, 

below, by paragraph (h)(i); and 

(ii) A separate prohibited transaction 

shall not be considered to have occurred 

solely because due to circumstances 

beyond the control of Mellon or its 

affiliate, as applicable, such records are 

lost or destroyed prior to the end of the 

six-year period. 

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

paragraph (h)(ii), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in paragraph (g) 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 SEC; 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 the covered 

transactions, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(ii) None of the persons described, 

above, in paragraph (h)(i)(B)–(D) shall 

be authorized to examine trade secrets 

of Mellon, or commercial or financial 

information which is privileged or 

confidential; and 

(iii) Should Mellon refuse to disclose 

information on the basis that such 

information is exempt from disclosure, 

Mellon 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. 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55541 

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 (the Notice) 

published on July 8, 2008 at 73 FR 

39177. 

The Department received no 

substantive written comments with 

respect to the Notice. The Department 

received a clarification from the 

Applicant regarding the number of 

direct investors in the Fund as of 

January 17, 2008, as was stated in the 

Summary of Facts and Representations 

and the Notice to Interested Persons 

sections of the Notice. The Applicant 

stated that due to an inadvertent error, 

its submission stated that there were 25 

direct investors in the fund as of that 

date, when in fact there were actually 

24. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karen Lloyd of the Department, 

telephone (202) 693–8554. (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 

describe all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 19th day of 

September 2008. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E8–22486 Filed 9–24–08; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Office of the Assistant Secretary for 

Veterans’ Employment and Training 

The Advisory Committee on Veterans’ 

Employment, Training and Employer 

Outreach (ACVETEO); Notice of Open 

Meeting 

The Advisory Committee on Veterans’ 

Employment, Training and Employer 

Outreach (ACVETEO) was established 

pursuant to Title II of the Veterans’ 

Housing Opportunity and Benefits 

Improvement Act of 2006 (Pub. L. 109– 

233) and Section 9 of the Federal 

Advisory Committee Act (FACA) (Pub. 

L. 92–462, Title 5 U.S.C. app. II). The 

authority of the ACVETEO is codified in 

Title 38 U.S. Code, Section 4110. 

The ACVETEO is responsible for 

assessing employment and training 

needs of veterans; determining the 

extent to which the programs and 

activities of the U.S. Department of 

Labor meet these needs; and assisting to 

conduct outreach to employers seeking 

to hire veterans. The ACVETEO will 

conduct a business meeting on 

Wednesday, October 22, from 7:30 a.m. 

to 2 p.m., at the offices of The Home 

Depot, USA, at 2455 Paces Ferry Road, 

C–21 Large Conference Room, Atlanta, 

Georgia. The ACVETEO will discuss 

programs to assist veterans seeking 

employment and to raise employer 

awareness as to the advantages of hiring 

veterans, with special emphasis on 

employer outreach and wounded and 

injured veterans. 

Individuals needing special 

accommodations should notify Bill 

Offutt at (202) 693–4717 by October 13, 

2008. 

Signed in Washington, DC, this 19th day of 

September, 2008. 

Charles S. Ciccolella, 

Assistant Secretary, Veterans’ Employment 

and Training Service. 

[FR Doc. E8–22514 Filed 9–24–08; 8:45 am] 

BILLING CODE 4510–79–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Records Schedules; Availability and 

Request for Comments 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice of availability of 

proposed records schedules; request for 

comments. 

SUMMARY: The National Archives and 

Records Administration (NARA) 

publishes notice at least once monthly 

of certain Federal agency requests for 

records disposition authority (records 

schedules). Once approved by NARA, 

records schedules provide mandatory 

instructions on what happens to records 

when no longer needed for current 

Government business. They authorize 

the preservation of records of 

continuing value in the National 

Archives of the United States and the 

destruction, after a specified period, of 

records lacking administrative, legal, 

research, or other value. Notice is 

published for records schedules in 

which agencies propose to destroy 

records not previously authorized for 

disposal or reduce the retention period 

of records already authorized for 

disposal. NARA invites public 

comments on such records schedules, as 

required by 44 U.S.C. 3303a(a). 

DATES: Requests for copies must be 

received in writing on or before October 

27, 2008. Once the appraisal of the 

records is completed, NARA will send 

a copy of the schedule. NARA staff 

usually prepare appraisal 

memorandums that contain additional 

information concerning the records 

covered by a proposed schedule. These, 

too, may be requested and will be 

provided once the appraisal is 

completed. Requesters will be given 30 

days to submit comments. 

ADDRESSES: You may request a copy of 

any records schedule identified in this 

notice by contacting the Life Cycle 

Management Division (NWML) using 

one of the following means: 

Mail: NARA (NWML), 8601 Adelphi 

Road, College Park, MD 20740–6001. 

E-mail: request.schedule@nara.gov. 

Fax: 301–837–3698. 

Requesters must cite the control 

number, which appears in parentheses 

after the name of the agency which 

submitted the schedule, and must 

provide a mailing address. Those who 

desire appraisal reports should so 

indicate in their request. 

FOR FURTHER INFORMATION CONTACT: 

Laurence Brewer, Director, Life Cycle 

Management Division (NWML), 

mstockstill on PROD1PC66 with NOTICES