Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 36773 

site at http://www.doleta.gov/sga/ 

sga.cfm, at http://www.grants.gov, and 

in the Federal Register. 

VIII. Additional Resources and Other 

Information 

A. High Schools and Ungraded Schools 

That Serve Primarily Students Ages 14 

and Above That Have Been Designated 

as Persistently Dangerous for the 2008– 

2009 School Year and That Are Not 

Currently Receiving a Grant From DOL 

for These Purposes 

Maryland 

› Reginald F. Lewis High School, 

Baltimore, 788 students. 

New Jersey 

› Plainfield High School, Plainfield, 

1,803 students. 

New York 

› PS 12, Lewis and Clark School, 

New York City, 246 students ages 14 

and above. 

› PS/IS 25 South Richmond High 

School, New York City, 306 students 

ages 14 and above. 

› Marta Valle Secondary School, 

New York City, 409 students. 

› Schenectady High School, 

Schenectady, 2,902 students. 

Oregon 

› McKay High School, Salem, 1,791 

students. 

Pennsylvania 

› Edison-Fariera High School, 

Philadelphia, 2,400 students. 

› Frankford High School, 

Philadelphia, 2,057 students. 

› Martin Luther King High School, 

Philadelphia, 1,424 students. 

› Olney West High School, 

Philadelphia, 964 students. 

› Samuel Fels High School, 

Philadelphia, 1,498 students. 

› South Philadelphia High School, 

Philadelphia, 1,175 students. 

› Strawberry Mansion High School, 

Philadelphia, 500 students. 

› William Penn High School, 

Philadelphia, 689 students. 

Puerto Rico 

› Superior Dra. Trina Padilla de 

Sanz, Arecibo, 432 students. 

› Superior Medardo Carazo, Trujillo 

Alto, 255 students. 

› Superior Judith Vivas, Utuado, 313 

students. 

› Superior Lorenzo Coballes Gandia, 

Hatillo, 529 students. 

B. Resources for the Applicant 

DOL maintains a number of Webbased resources that may be of 

assistance to applicants. Questions and 

responses submitted to the Grant Officer 

regarding the SGA will be posted on the 

ETA Web site at http://www.doleta.gov. 

Questions will be received for one 

month after publication. 

C. Other Information 

OMB Information Collection No.: 

1225–0086. 

Expires: September 30, 2009. 

According to the Paperwork 

Reduction Act of 1995, no persons are 

required to respond to a collection of 

information unless such collection 

displays a valid OMB control number. 

Public reporting burden for this 

collection of information is estimated to 

average 20 hours per response, 

including time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding the burden 

estimated or any other aspect of this 

collection of information, including 

suggestions for reducing this burden, to 

the OMB Desk Officer for ETA, Office of 

Management and Budget, Room 10235, 

Washington, DC 20503. Please do not 

return your completed application to 

the OMB. Send it to the sponsoring 

agency as specified in this solicitation. 

This information is being collected for 

the purpose of awarding a grant. The 

information collected through this 

‘‘Solicitation for Grant Applications’’ 

will be used by DOL to ensure that 

grants are awarded to the applicant best 

suited to perform the functions of the 

grant. Submission of this information is 

required in order for the applicant to be 

considered for award of this grant. 

Unless otherwise specifically noted in 

this announcement, information 

submitted in the respondent’s 

application is not considered to be 

confidential. 

Signed at Washington, DC, this 20th day of 

July 2009. 

B. Jai Johnson, 

Grant Officer, Employment and Training 

Administration. 

[FR Doc. E9–17560 Filed 7–23–09; 8:45 am] 

BILLING CODE 4510–FT–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Prohibited Transaction Exemptions 

and Grant of Individual Exemptions 

involving: 2009–18, Robert W. Baird & 

Co. Incorporated, D–11488; 2009–19, 

MarkWest Energy Partners, L.P., 

D–11498; Morgan Stanley & Co. 

Incorporated, D–11501, 2009–20; and 

The Bank of New York Mellon 

Corporation (BNMC) and Its Affiliates 

(Collectively, BNY Mellon), D–11523, 

2009–21 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of individual exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). 

A notice was published in the Federal 

Register of the pendency before the 

Department of a proposal to grant such 

exemption. The notice set forth a 

summary of facts and representations 

contained in the application for 

exemption and referred interested 

persons to the application for a 

complete statement of the facts and 

representations. The application has 

been available for public inspection at 

the Department in Washington, DC. The 

notice also invited interested persons to 

submit comments on the requested 

exemption to the Department. In 

addition the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The applicant 

has represented that it has complied 

with the requirements of the notification 

to interested persons. No requests for a 

hearing were received by the 

Department. Public comments were 

received by the Department as described 

in the granted exemption. 

The notice of proposed exemption 

was issued and the exemption is being 

granted solely by the Department 

because, effective December 31, 1978, 

section 102 of Reorganization Plan No. 

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

transferred the authority of the Secretary 

of the Treasury to issue exemptions of 

the type proposed to the Secretary of 

Labor. 

Statutory Findings 

In accordance with section 408(a) of 

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

Code and the procedures set forth in 29 


srobinson on DSKHWCL6B1PROD with NOTICES
36774 Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 

1For purposes of this exemption, references to 

section 406 of ERISA should be read to refer as well 

to the corresponding provisions of section 4975 of 

the Code. 

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. 

Robert W. Baird & Co. Incorporated; 

Located in Milwaukee, Wisconsin 

[Prohibited Transaction Exemption 

2009–18; Exemption Application 

Number D–11488] 

Exemption 

Section I. Loans Involving Auction Rate 

Securities 

The restrictions of section 

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

406(b)(1) and (2) of ERISA, and the taxes 

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

the Code, by reason of section 

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

shall not apply, effective February 1, 

2008, to the lending of Auction Rate 

Securities (as defined in section III(b)) 

by a Plan (as defined in section III(e)) to 

Robert W. Baird & Co. Incorporated or 

any of its affiliates (Baird), provided that 

the conditions set forth in section II 

have been met.1

Section II. Conditions 

(a) The last auction for the loaned 

Auction Rate Security was unsuccessful; 

(b) The Plan does not waive any rights 

or claims in connection with the 

Auction Rate Security as a condition of 

engaging in the loan (the Loan); 

(c) The transaction is not part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest; 

(d) Baird is and remains a brokerdealer registered under the Securities 

Exchange Act of 1934 (the Exchange 

Act) or is exempt from registration 

under section 15(a)(1) of the Exchange 

Act as a dealer in exempted government 

securities (as defined in section 3(a)(12) 

of the Exchange Act); 

(e) The decision to enter into a Loan 

is made by a Plan fiduciary who is 

Independent (as defined in section 

III(d)) of Baird. Notwithstanding the 

foregoing, an employee of Baird who is 

the Beneficial Owner (as defined in 

section III(c)) of a Title II Only Plan (as 

defined in section III(f)) may direct the 

Title II Only Plan to engage in a Loan 

if all of the other applicable conditions 

of this exemption have been met; 

(f) Prior to any Loan, Baird shall have 

furnished the Plan fiduciary described 

in paragraph (e) with: 

(1) The most recently available 

audited statement of Baird’s financial 

condition, as audited by a United States 

certified public accounting firm; 

(2) The most recently available 

unaudited statement of Baird’s financial 

condition (if the unaudited statement is 

more recent than the audited statement 

described above); and 

(3) A representation that, at the time 

the Loan is negotiated, there has been 

no material adverse change in its 

financial condition since the date of the 

most recent financial statement 

furnished to the Plan. Such 

representations may be made by Baird’s 

agreement that each Loan shall 

constitute a representation by Baird that 

there has been no such material adverse 

change. Notwithstanding the foregoing, 

an employee of Baird who is the 

Beneficial Owner of a Title II Only Plan 

may receive the information described 

in this paragraph (f) if all of the other 

applicable conditions of this exemption 

have been met; 

(g) The Loan is made pursuant to a 

written loan agreement (the Lending 

Agreement), the terms of which are at 

least as favorable to the Plan as an 

arm’s-length transaction with an 

unrelated party would be. The Lending 

Agreement must contain all of the 

material terms of the Loan and cover 

only the lending of Auction Rate 

Securities by the Plan to Baird. Such 

Lending Agreement may be in the form 

of a master agreement covering a series 

of Loans; 

(h) With respect to any Loan, Baird 

credits the lending Plan’s account with 

Baird (the Account) with an amount of 

cash equal to 100 percent of the total par 

value of the loaned Auction Rate 

Securities. Baird must credit the 

Account by the close of business on the 

day on which Baird receives the 

Auction Rate Securities from the Plan; 

(i) The Plan has the opportunity to 

derive compensation through the 

investment of the cash collateral 

described in paragraph (h); 

(j) The Plan pays Baird a rebate fee 

negotiated in advance of the Loan that 

does not exceed the interest and/or 

dividends the Plan receives in 

connection with its ownership of the 

loaned Auction Rate Securities; 

(k) The Plan may terminate the Loan 

at any time and for any reason; 

(l) Baird may terminate the Loan if: 

(1) The Plan closes its Account or 

reduces the balance thereof to less than 

100 percent of the total par value of the 

Auction Rate Securities that are the 

subject of the Loan; 

(2) The Plan is an individual 

retirement account described in section 

4975(e)(1)(B)–(F) of the Code (an IRA) 

and the Beneficial Owner of the IRA 

dies or divides the IRA pursuant to a 

divorce, annulment or marital 

settlement; 

(3) The Auction Rate Security 

associated with the Loan is redeemed by 

its issuer or may be sold at auction for 

its par value, or; 

(4) Baird identifies a secondary 

market for the Auction Rate Security 

which Baird has a reasonable basis to 

believe will permit the lending Plan to 

receive no less than 90% of the 

Security’s par value if the Auction Rate 

Security is promptly offered for sale on 

such market; 

(m) Following any Loan termination 

as set forth in (k) or (l), Baird shall 

deliver Auction Rate Securities to the 

Plan which are identical (or the 

equivalent thereof (in the event of a 

reorganization, recapitalization or 

merger of the issuer of the Auction Rate 

Securities)) to the Auction Rate 

Securities borrowed by Baird within the 

lesser of: 

(1) The customary delivery period for 

such securities; 

(2) Five business days; or 

(3) The time negotiated for such 

delivery by the Plan and Baird; 

(n) Following any Loan termination as 

set forth in (k) or (l), if Baird fails to 

return all the borrowed Auction Rate 

Securities (or the equivalent thereof (in 

the event of a reorganization, 

recapitalization or merger of the issuer 

of the Auction Rate Securities)) within 

the timeframe set forth in paragraph (m), 

the Plan may keep the full amount of 

cash collateral provided by Baird in 

connection with the Loan; 

(o) Following any Loan termination as 

set forth in (k) or (l), if the Plan fails to 

return the full amount of cash collateral: 

(1) Baird may liquidate the borrowed 

Auction Rate Securities, in which case 

the Plan’s obligation to return the cash 

collateral shall terminate. If the amount 

received by Baird from the liquidation 

(after deducting brokerage commissions 

and other transaction costs) exceeds the 

amount of cash collateral provided by 

Baird in connection with the Loan, then 

Baird shall pay such excess to the Plan. 

If the amount received by Baird from the 

liquidation (after deducting brokerage 

commissions and other transaction 

costs) is less than the amount of cash 

collateral provided by Baird in 

connection with the Loan, then the Plan 

shall pay such deficiency to Baird; or 


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Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 36775 

2For purposes of this exemption, references to 

specific provisions of Title I of the Act, unless 

otherwise specified, refer also to the corresponding 

provisions of the Code. 

(2) If Baird is unable to liquidate the 

ARS, Baird will retain the ARS and 

reserve its right to sue the Plan; 

(p) (1) Where the Plan, as lender, does 

not return the full amount of cash 

collateral in connection with a Loan 

termination, Baird, as borrower, can 

seek interest at the prime rate on the 

amount of cash collateral owed by the 

Plan; 

(2) Where Baird, as borrower, does not 

return the excess described in (o)(1), if 

any, the Plan, as lender, can seek 

interest at the prime rate on the amount 

of excess owed by Baird; and 

(q) If Baird fails to comply with any 

provision of a loan agreement which 

requires compliance with this 

exemption the Plan fiduciary who 

caused the Plan to engage in such 

transaction shall not be deemed to have 

caused the Plan to engage in a 

transaction prohibited by section 

406(a)(1)(A) through (D) of ERISA solely 

by reason of Baird’s failure to comply 

with the conditions of the exemption. 

Section II. Definitions 

(a) The term ‘‘affiliate’’ means any 

person directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 

(b) The term ‘‘Auction Rate Security’’ 

or ‘‘ARS’’ means a security: 

(1) That is either a debt instrument 

(generally with a long-term nominal 

maturity) or preferred stock; and 

(2) with an interest rate or dividend 

that is reset at specific intervals through 

a Dutch auction process; 

(c) The term ‘‘Beneficial Owner’’ 

means: the individual for whose benefit 

a Title II Only Plan is established and 

includes a relative or family trust with 

respect to such individual; 

(d) The term ‘‘Independent’’ means a 

person who is: (1) Not Baird or an 

affiliate; and (2) not a relative (as 

defined in ERISA section 3(15)) of the 

party engaging in the transaction; 

(e) The term ‘‘Plan’’ means: any plan 

described in section 3(3) of the Act and/ 

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

and 

(f) The term ‘‘Title II Only Plan’’ 

means: any plan described in section 

4975(e)(1) of the Code which is not an 

employee benefit plan covered by Title 

I of ERISA. 

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 in the 

Federal Register on January 21, 2009 at 

74 FR 3650. 

FOR FURTHER INFORMATION CONTACT: 

Chris Motta of the Department, 

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

a toll-free number.) 

MarkWest Energy Partners, L.P.; 

Located in Denver, CO 

[Prohibited Transaction Exemption 

2009–19, Application No. D–11498] 

Exemption 

I. Retroactive Transactions 

The restrictions of sections 

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

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) and 

4975(c)(1)(E) of the Code,2 shall not 

apply, effective February 21, 2008: 

(a) To the acquisition by the 

individually, directed accounts (the 

Account(s)) of participants in the 

MarkWest Hydrocarbon, Inc. 401(k) 

Savings and Profit-Sharing Plan (the 

Plan), of publicly traded partnership 

units (the Units) issued by MarkWest 

Energy Partners, LP (Partners), the 

parent of MarkWest Hydrocarbon Inc. 

(Hydrocarbon), which is the sponsor of 

the Plan, as a result of the conversion of 

the common stock of Hydrocarbon (the 

Stock) held by the Plan into Units, 

pursuant to a plan of Redemption and 

Merger (the Merger); and 

(b) To the holding of such Units by 

the Accounts in the Plan; provided that 

the conditions, as set forth, below, in 

this section I(b)(1) through (13), and the 

general conditions, as set forth, below, 

in section III of this exemption, were 

satisfied at the time the transaction, 

described, above, in sections I(a) of this 

exemption, was entered into and the 

transaction, described, above, in section 

I(b) of this exemption occurred: 

(1) The past acquisition and holding 

of the Units by the Accounts in the Plan 

occurred in connection with the 

conversion of the Stock, pursuant to the 

terms of the Merger, which was the 

result of an independent act of 

Hydrocarbon, as a corporate entity; 

(2) All shareholders of the Stock, 

including the participants in the 

Accounts in the Plan, were treated in a 

like manner with respect to all aspects 

of the redemption and conversion of the 

Stock, pursuant to the terms of the 

Merger; 

(3) The past acquisition and holding 

of the Units by the Accounts in the Plan 

occurred in accordance with provisions 

in the Plan for individual participant 

direction of the investment of the assets 

of such Accounts; 

(4) The past acquisition and holding 

of the Units were each one-time 

transactions, and the dispositions of the 

Units by the Accounts in the Plan 

occurred in a series of transactions for 

cash on the New York Stock Exchange 

(NYSE); 

(5) The participants in the Accounts 

in the Plan were provided with all 

shareholder rights and with the 

opportunity to direct the trustee of the 

Plan to vote ‘‘for,’’ ‘‘against,’’ or 

‘‘abstain’’ with regard to the redemption 

and conversion of the Stock held in the 

Accounts in the Plan, pursuant to the 

terms of the Merger. 

(6) The decision as to which 

compensation package to accept, in 

connection with the redemption and 

conversion of the Stock held in 

Accounts in the Plan, was made in 

accordance with the directions of the 

individual participants in whose 

Accounts such Stock was held, or, in 

the case of Accounts in the Plan for 

which no participant direction was 

given, the decision as to which 

compensation package to accept, in 

connection with the redemption and 

conversion of the Stock held in such 

Accounts in the Plan, was made in 

accordance with the directions of an 

independent, qualified fiduciary (the 

I/F), acting on behalf of such Accounts; 

(7) The Units acquired, as a result of 

the conversion of the Stock held in the 

Accounts in the Plan, pursuant to the 

terms of the Merger, were held in such 

Accounts for no more than a period of 

sixty (60) days after such Units were 

acquired by such Accounts; 

(8) The Accounts in the Plan disposed 

of all of the Units that such Accounts 

acquired as a result of the conversion of 

the Stock; and such dispositions 

occurred on the NYSE in a series of 

blind transactions for cash resulting in 

a weighted average price per Unit of no 

less than $32.394, 

(9) The cash proceeds from such 

dispositions of the Units by the 

Accounts in the Plan were distributed 

thereafter to each of the Accounts based 

on the number of Units held in each 

such Account; 

(10) The decision to dispose of the 

Units, acquired by the Accounts in the 

Plan as a result of the conversion of the 

Stock was made by the I/F, acting on 

behalf of each such Account; 

(11) The Accounts in the Plan did not 

pay any fees, commissions, transaction 

costs, or other expenses in connection 

with the redemption of the Stock by 

Hydrocarbon, the conversion of the 

Stock into Units, the acquisition and 

holding of such Units by such Accounts 

in the Plan, or the disposition of the 

Units on the NYSE; 


srobinson on DSKHWCL6B1PROD with NOTICES
36776 Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 

(12) At the time each of the 

transactions, described, above, in 

sections I(a)and I(b) of this exemption 

occurred, the individual participants 

whose Accounts in the Plan engaged in 

each such transaction, or the I/F, acting 

on behalf of Accounts in the Plan for 

which no participant direction was 

given, determined that each such 

transaction was in the interest of the 

participants and beneficiaries of such 

Accounts; and 

(13) The I/F took all appropriate 

actions necessary to safeguard the 

interests of the Accounts in the Plan, in 

connection with the transactions, 

described, above, in sections I(a) and 

I(b) of this exemption. 

II. Prospective Transactions 

The restrictions of sections 

406(a)(1)(E) and 406(a)(2) of the Act 

shall not apply, effective, as of the date 

a final exemption is published in the 

Federal Register to: 

(a) The purchase of Units in the future 

by the Accounts in the Plan, and 

(b) the holding of such Units by the 

Accounts in the Plan, provided that the 

conditions, as set forth below, in this 

section II(b)(1) through (8), and the 

general conditions, as set forth, below, 

in section III of this exemption, are 

satisfied at the time the transaction, 

described, above, in section II(a) of this 

exemption is entered into, and at the 

time the transaction, described, above, 

in section II(b) of this exemption occurs: 

(1) The decision by the Accounts in 

the Plan as to whether to engage in the 

purchase, the holding, or the sale of the 

Units shall be made by the individual 

participants of the Accounts in the Plan 

which engage in such transactions; 

(2) Hydrocarbon, rather than the 

Accounts in the Plan, shall bear any 

fees, commissions, expenses, or 

transaction costs, with respect to the 

purchase, holding, or sale of the Units; 

(3) Each purchase and each sale of 

any of the Units shall occur only in 

blind transactions for cash on the NYSE 

at the fair market value of such Units on 

the date of each such purchase and each 

such sale; 

(4) Each purchase and each sale of 

any of the Units shall occur on the same 

day (or if such day is not a trading day, 

the next day) as the direction to 

purchase or to sell the Units is received 

by the administrator of the Plan from 

the applicable participant of an Account 

which is engaging in such purchase or 

such sale; 

(5) the terms of each purchase and 

each sale are at least as favorable to the 

Account as terms generally available in 

comparable arm’s-length transactions 

between unrelated parties; 

(6) prior to the purchase by an 

Account in the Plan of any Units, 

Partners provides the participant who is 

directing the investment of such 

Account in the Units with the most 

recent prospectus describing the Units, 

and the most recent quarterly statement, 

and annual report, concerning Partners, 

and thereafter, provides such 

participant with updated prospectuses 

on the Units, and updated quarterly 

statements, and annual reports of 

Partners, as published; 

(7) Prior to a participant of an 

Account in the Plan engaging in the 

purchase of any Units, Partners must 

provide the following disclosures to 

such participant. The disclosure must 

contain the following information 

regarding the transactions and a 

supplemental disclosure must be made 

to the participant directing the covered 

investments if material changes occur. 

This disclosure must include: 

(A) Information relating to the 

exercise of voting, tender, and similar 

rights with respect to the Units; 

(B) The exchange or market system 

where the Units are traded; and 

(C) A statement that a copy of the 

proposed and final exemption shall be 

provided to participants upon request. 

(8) Each participant in an Account in 

the Plan shall have discretionary 

authority to direct the investment of 

such Account: 

(A) To sell the Units purchased by 

such Account no less frequently than 

monthly, and 

(B) To vote, tender, and exercise 

similar rights with respect to the Units 

held in such Account. 

III. General Conditions 

(a) Partners or its affiliates maintain, 

or cause to be maintained, for a period 

of six (6) years from the date of each of 

the covered transactions such records as 

are necessary to enable the persons 

described, below, in section III(b)(1), to 

determine whether the conditions of 

this exemption have been met, except 

that— 

(1) No party in interest with respect 

to the Plan which engages in the 

covered transactions, other than 

Partners and its affiliates, shall be 

subject to a civil penalty under section 

502(i) of the Act or the taxes imposed 

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

if such records are not maintained, or 

are not available for examination, as 

required, below, by section III(b)(1); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Partners and its 

affiliates, such records are lost or 

destroyed prior to the end of the sixyear period. 

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

section III(b)(2), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in section III(a) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of the 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 the Plan that engages in the 

covered transactions, or any authorized 

employee or representative of these 

entities; or 

(D) Any participant or beneficiary of 

the Plan that engages in the covered 

transactions, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(2) None of the persons described, 

above, in section III(b)(1)(B)–(D) shall be 

authorized to examine trade secrets of 

Partners and its affiliates, or commercial 

or financial information which is 

privileged or confidential; and 

(3) Should Partners or its affiliates 

refuse to disclose information on the 

basis that such information is exempt 

from disclosure, Partners or its affiliates 

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. 

After giving full consideration to the 

entire record, the Department has 

decided to grant the exemption, as 

described above. The complete 

application file is 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 published 

on May 6, 2009, at 74 FR 20974. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angelena C. Le Blanc of the Department, 

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

a toll-free number.) 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 36777 

3For purposes of this exemption, references to 

section 406 of ERISA should be read to refer as well 

to the corresponding provisions of section 4975 of 

the Code. 

4The Department notes that the Act’s general 

standards of fiduciary conduct also apply to the 

transactions described herein. In this regard, section 

404 requires, among other things, that a fiduciary 

discharge his duties respecting a plan solely in the 

interest of the plan’s participants and beneficiaries 

and in a prudent manner. Accordingly, a plan 

fiduciary must act prudently with respect to, among 

other things, the decision to sell the Auction Rate 

Security to Morgan Stanley for the par value of the 

Auction Rate Security. The Department further 

emphasizes that it expects Plan fiduciaries, prior to 

entering into any of the transactions, to fully 

understand the risks associated with this type of 

transaction following disclosure by Morgan Stanley 

of all relevant information. 

Morgan Stanley & Co. Incorporated; 

Located in New York, New York 

[Prohibited Transaction Exemption 

2009–20 Exemption Application 

Number D–11501] 

Exemption 

Section I. Sales of Auction Rate 

Securities From Plans to Morgan 

Stanley: Unrelated to a Settlement 

Agreement 

The restrictions of section 

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

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), (D), and (E) of 

the Code, shall not apply, effective 

February 1, 2008, to the sale by a Plan 

(as defined in section V(e)) of an 

Auction Rate Security (as defined in 

section V(c)) to Morgan Stanley & Co. 

Incorporated (Morgan Stanley), where 

such sale (an Unrelated Sale) is 

unrelated to, and not made in 

connection with, a Settlement 

Agreement (as defined in section V(f)), 

provided that the conditions set forth in 

section II have been met.3

Section II. Conditions Applicable to 

Transactions Described in Section I 

(a) The Plan acquired the Auction 

Rate Security in connection with 

brokerage or advisory services provided 

by Morgan Stanley to the Plan; 

(b) The last auction for the Auction 

Rate Security was unsuccessful; 

(c) Except in the case of a Plan 

sponsored by Morgan Stanley for its 

own employees (a Morgan Stanley 

Plan), the Unrelated Sale is made 

pursuant to a written offer by Morgan 

Stanley (the Offer) containing all of the 

material terms of the Unrelated Sale, 

including, but not limited to: (1) The 

identity and par value of the Auction 

Rate Security; (2) the interest or 

dividend amounts that are due with 

respect to the Auction Rate Security; 

and (3) the most recent rate information 

for the Auction Rate Security (if reliable 

information is available). 

Notwithstanding the foregoing, in the 

case of a pooled fund maintained or 

advised by Morgan Stanley, this 

condition shall be deemed met to the 

extent each Plan invested in the pooled 

fund (other than a Morgan Stanley Plan) 

receives advance written notice 

regarding the Unrelated Sale, where 

such notice contains all of the material 

terms of the Unrelated Sale, including, 

but not limited to, the material terms 

described in the preceding sentence; 

(d) The Unrelated Sale is for no 

consideration other than cash payment 

against prompt delivery of the Auction 

Rate Security; 

(e) The sales price for the Auction 

Rate Security is equal to the par value 

of the Auction Rate Security, plus any 

accrued but unpaid interest or 

dividends; 

(f) The Plan does not waive any rights 

or claims in connection with the 

Unrelated Sale; 

(g) The decision to accept the Offer or 

retain the Auction Rate Security is made 

by a Plan fiduciary or Plan participant 

or IRA owner who is Independent (as 

defined in section V(d)) of Morgan 

Stanley. Notwithstanding the foregoing: 

(1) In the case of an individual 

retirement account (an IRA, as described 

in section V(e) below) which is 

beneficially owned by an employee, 

officer, director or partner of Morgan 

Stanley, the decision to accept the Offer 

or retain the Auction Rate Security may 

be made by such employee, officer, 

director or partner; or (2) in the case of 

a Morgan Stanley Plan or a pooled fund 

maintained or advised by Morgan 

Stanley, the decision to accept the Offer 

may be made by Morgan Stanley after 

Morgan Stanley has determined that 

such purchase is in the best interest of 

the Morgan Stanley Plan or pooled 

fund; 4

(h) Except in the case of a Morgan 

Stanley Plan or a pooled fund 

maintained or advised by Morgan 

Stanley, neither Morgan Stanley nor any 

affiliate exercises investment discretion 

or renders investment advice [within 

the meaning of 29 CFR 2510.3–21(c)] 

with respect to the decision to accept 

the Offer or retain the Auction Rate 

Security; 

(i) The Plan does not pay any 

commissions or transaction costs with 

respect to the Unrelated Sale; 

(j) The Unrelated Sale is not part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest to the Plan; 

(k) Morgan Stanley and its affiliates, 

as applicable, maintain, or cause to be 

maintained, for a period of six (6) years 

from the date of the Unrelated Sale, 

such records as are necessary to enable 

the persons described below in 

paragraph (l)(i), to determine whether 

the conditions of this exemption have 

been met, except that— 

(i) No party in interest with respect to 

a Plan which engages in an Unrelated 

Sale, other than Morgan Stanley 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 (l)(i); and 

(ii) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Morgan Stanley or 

its affiliates, as applicable, such records 

are lost or destroyed prior to the end of 

the six-year period; 

(l)(i) Except as provided below in 

paragraph (l)(ii), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to above in paragraph (k) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of any Plan, 

including any IRA owner, that engages 

in an Unrelated Sale, or any duly 

authorized employee or representatives 

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 

Unrelated Sale, or any authorized 

employee or representative of these 

entities; 

(ii) None of the persons described 

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

authorized to examine trade secrets of 

Morgan Stanley, or commercial or 

financial information which is 

privileged or confidential; and 

(iii) Should Morgan Stanley refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, Morgan Stanley 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. 


srobinson on DSKHWCL6B1PROD with NOTICES
36778 Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 

Section III. Sales of Auction Rate 

Securities From Plans to Morgan 

Stanley: Related to a Settlement 

Agreement 

The restrictions of section 

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

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), (D), and (E) of 

the Code, shall not apply, effective 

August 1, 2008, to the sale by a Plan of 

an Auction Rate Security to Morgan 

Stanley, where such sale (a Settlement 

Sale) is related to, and made in 

connection with, a Settlement 

Agreement, provided that the conditions 

set forth in section IV have been met. 

Section IV. Conditions Applicable to 

Transactions Described in Section III 

(a) The terms and delivery of the Offer 

are consistent with the requirements set 

forth in the Settlement Agreement; 

(b) The Offer specifically describes, 

among other things: 

(1) How a Plan may determine: The 

Auction Rate Securities held by the Plan 

with Morgan Stanley; the number of 

shares and par value of the Auction Rate 

Securities; the interest or dividend 

amounts that are due with respect to the 

Auction Rate Securities; purchase dates 

for the Auction Rate Securities; and (if 

reliable information is available) the 

most recent rate information for the 

Auction Rate Securities; 

(2) The background of the Offer; 

(3) That neither the tender of Auction 

Rate Securities nor the purchase of any 

Auction Rate Securities pursuant to the 

Offer will constitute a waiver of any 

claim of the tendering Plan; 

(4) The methods and timing by which 

Plans may accept the Offer; 

(5) The purchase dates, or the manner 

of determining the purchase dates, for 

Auction Rate Securities tendered 

pursuant to the Offer; 

(6) The timing for acceptance by 

Morgan Stanley of tendered Auction 

Rate Securities; 

(7) The timing of payment for Auction 

Rate Securities accepted by Morgan 

Stanley for payment; 

(8) The methods and timing by which 

a Plan may elect to withdraw tendered 

Auction Rate Securities from the Offer; 

(9) The expiration date of the Offer; 

(10) The fact that Morgan Stanley may 

make purchases of Auction Rate 

Securities outside of the Offer and may 

otherwise buy, sell, hold or seek to 

restructure, redeem or otherwise 

dispose of the Auction Rate Securities; 

(11) A description of the risk factors 

relating to the Offer as Morgan Stanley 

deems appropriate; 

(12) How to obtain additional 

information concerning the Offer; and 

(13) The manner in which 

information concerning material 

amendments or changes to the Offer will 

be communicated to the Plan. 

(c) The terms of the Settlement Sale 

are consistent with the requirements set 

forth in the Settlement Agreement; and 

(d) All of the conditions in section II 

have been met. 

V. Definitions 

For purposes of this exemption: 

(a) The term ‘‘affiliate’’ means: Any 

person directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 

(b) The term ‘‘control’’ means: The 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual; 

(c) The term ‘‘Auction Rate Security’’ 

means a security: 

(1) That is either a debt instrument 

(generally with a long-term nominal 

maturity) or preferred stock; and 

(2) With an interest rate or dividend 

that is reset at specific intervals through 

a Dutch Auction process; 

(d) A person is ‘‘Independent’’ of 

Morgan Stanley if the person is: (1) Not 

Morgan Stanley or an affiliate; and (2) 

not a relative (as defined in ERISA 

section 3(15)) of the party engaging in 

the transaction; 

(e) The term ‘‘Plan’’ means: An 

individual retirement account or similar 

account described in section 

4975(e)(1)(B) through (F) of the Code (an 

IRA); an employee benefit plan as 

defined in section 3(3) of ERISA; or an 

entity holding plan assets within the 

meaning of 29 CFR 2510.3–101, as 

modified by ERISA section 3(42); and 

(f) The term ‘‘Settlement Agreement’’ 

means: A legal settlement involving 

Morgan Stanley and a U.S. state or 

federal authority that provides for the 

purchase of an ARS by Morgan Stanley 

from a Plan. 

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 in the 

Federal Register on February 25, 2009 

at 74 FR 8580. 

FOR FURTHER INFORMATION CONTACT: 

Chris Motta of the Department, 

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

a toll-free number.) 

The Bank of New York Mellon 

Corporation (BNYMC) and Its Affiliates 

(collectively, BNY Mellon); Located in 

New York, New York 

Prohibited Transaction Exemption 

2009–21; Exemption Application 

Number D–11523 

Exemption 

Section I. Transactions 

The restrictions of section 406(a) of 

the Act and the sanctions resulting from 

the application of section 4975 of the 

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

through (D) of the Code, shall not apply, 

effective October 3, 2008, to the cash 

sale (the Sale) by a Plan (as defined in 

section II(d)) of certain Auction Rate 

Securities (as defined in section II(b)) to 

BNY Mellon, provided that the 

following conditions are met: 

(a) The Sale was a one-time 

transaction for cash payment made on 

or before December 31, 2008 on a 

delivery versus payment basis in the 

amount described in paragraph (b); 

(b) The Plan received an amount 

equal to the par value of the Auction 

Rate Securities (the Securities) plus 

accrued but unpaid income (interest or 

dividends, as applicable) as of the date 

of the Sale; 

(c) The last auction for the Securities 

was unsuccessful; 

(d) The Sale was made in connection 

with a written offer by BNY Mellon 

containing all of the material terms of 

the Sale; 

(e) The Plan did not bear any 

commissions or transaction costs with 

respect to the Sale; 

(f) A Plan fiduciary independent of 

BNY Mellon (in the case of a Plan that 

is an IRA, the individual for whom the 

IRA is maintained) determined that the 

Sale of the Securities was appropriate 

for, and in the best interests of, the Plan 

at the time of the transaction, and the 

Plan’s decision to enter into the 

transaction was affirmatively made by 

such independent fiduciary on behalf of 

the Plan; 

(g) BNY Mellon took all appropriate 

actions necessary to safeguard the 

interests of each Plan in connection 

with the Sale; 

(h) The Plan does not waive any rights 

or claims in connection with the Sale; 

(i) The Sale is not part of an 

arrangement, agreement or 

understanding designed to benefit a 

party in interest to the Plan; 

(j) If the exercise of any of BNY 

Mellon’s rights, claims or causes of 

action in connection with its ownership 

of the Securities results in BNY Mellon 

recovering from the issuer of the 

Securities, or any third party, an 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 36779 

aggregate amount that is more than the 

sum of: 

(1) The purchase price paid to the 

Plan for the Securities by BNY Mellon; 

and 

(2) the income (interest or dividends, 

as applicable) due on the Securities 

from and after the date BNY Mellon 

purchased the Securities from the Plan, 

at the rate specified in the respective 

offering documents for the Securities or 

determined pursuant to a successful 

auction with respect to the Securities, 

BNY Mellon will refund such excess 

amount promptly to the Plan (after 

deducting all reasonable expenses 

incurred in connection with the 

recovery); 

(k) Neither BNYMC nor any affiliate 

exercises investment discretion or 

renders investment advice (within the 

meaning of 29 CFR 2510.3–21(c)) with 

respect to the decision to accept the 

written offer or retain the Security; 

(l) BNY Mellon maintains, or causes 

to be maintained, for a period of six (6) 

years from the date of any covered 

transaction such records as are 

necessary to enable the person 

described below in paragraph (m)(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 BNY Mellon, 

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 (m)(i); 

(ii) A separate prohibited transaction 

shall not be considered to have occurred 

solely because due to circumstances 

beyond the control of BNY Mellon, such 

records are lost or destroyed prior to the 

end of the six-year period. 

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

paragraph (m)(ii), and notwithstanding 

any provisions of subsections (a)(2) and 

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

referred to, above, in paragraph (l) are 

unconditionally available at their 

customary location for examination 

during normal business hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the 

Securities and Exchange Commission; 

or 

(B) Any fiduciary of any Plan that 

engages in the covered transactions, or 

any duly authorized employee or 

representative of such fiduciary; or 

(C) Any employer of participants and 

beneficiaries and any employee 

organization whose members are 

covered by a Plan that engages in the 

covered transactions, or any authorized 

employee or representative of these 

entities; or 

(D) Any participant or beneficiary of 

a Plan that engages in a covered 

transaction, or duly authorized 

employee or representative of such 

participant or beneficiary; 

(ii) None of the persons described, 

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

be authorized to examine trade secrets 

of BNY Mellon, or commercial or 

financial information which is 

privileged or confidential; and 

(iii) Should BNY Mellon refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, BNY 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. 

Section II. Definitions 

(a) The term ‘‘affiliate’’ means any 

person directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 

(b) The term ‘‘Auction Rate Security’’ 

or ‘‘Security’’ means a security: 

(1) That is either a debt instrument 

(generally with a long-term nominal 

maturity) or preferred stock; and 

(2) with an interest rate or dividend 

that is reset at specific intervals through 

a ‘‘Dutch auction’’ process; 

(c) The term ‘‘Independent’’ means a 

person who is not BNYMC or an affiliate 

(as defined in Section II(a)); and 

(d) The term ‘‘Plan’’ means any plan 

described in section 3(3) of the Act and/ 

or section 4975(e)(1) of the Code. 

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 

6, 2009 at 74 FR 20987. 

DATES: Effective Date: This exemption is 

effective from October 3, 2008 through 

December 31, 2008. 

FOR FURTHER INFORMATION CONTACT: Gary 

H. Lefkowitz of the Department, 

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

a toll-free number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

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

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

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

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 16th day of 

July, 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–17468 Filed 7–23–09; 8:45 am] 

BILLING CODE 4510–29–P 

NATIONAL SCIENCE FOUNDATION 

Agency Information Collection 

Activities: Comment Request 

AGENCY: National Science Foundation. 

ACTION: Submission for OMB Review; 

Comment Request. 

SUMMARY: The National Science 

Foundation (NSF) has submitted the 

following information collection 

requirement to OMB for review and 

clearance under the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. This is the second notice for public 

comment; the first was published in the 

Federal Register at 74 FR 24043, and 

one comment was received. NSF is 

forwarding the proposed renewal 

submission to the Office of Management 

and Budget (OMB) for clearance 

simultaneously with the publication of 

this second notice. The full submission 

may be found at: http:// 

www.reginfo.gov/public/do/PRAMain. 


srobinson on DSKHWCL6B1PROD with NOTICES