Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices 10323

functions of the agency, including

whether the information will have

practical utility;

• Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used;

Enhance the quality, utility, and clarity

of the information to be collected; and

• Minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submissions

of responses.

III. Current Actions

This Notice requests comments on the

extension of the ICR included in PTE

91–55. The Department is not proposing

or implementing changes to the existing

ICR at this time.

Type of Review: Extension of a

currently approved collection of

information.

Agency: Pension and Welfare Benefits

Administration, Department of Labor.

Title: Prohibited Transaction

Exemption 91–55.

OMB Number: 1210–0079.

Affected Public: Business or other forprofit; Not-for-profit institutions;

Individuals.

Total Respondents: 3.

Frequency: On occasion.

Total Responses: 55,000.

Estimated Total Burden Hours: 2,400

hours.

Comments submitted in response to

this notice will be summarized and/or

included in the request for Office of

Management and Budget approval of the

information collection request; they will

also become a matter of public record.

Dated: February 6, 2001.

Gerald B. Lindrew,

Pension and Welfare Benefits Administration,

Deputy Director, Office of Policy and

Research.

[FR Doc. 01–3729 Filed 2–13–01; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Prohibited Transaction Exemption 2001–

07; Exemption Application No. D–10855, et

al.]

Grant of Individual Exemptions;

American Express Financial

Corporation (AEFC)

AGENCY: Pension and Welfare Benefits

Administration, Labor.

ACTION: Grant of individual exemptions.

SUMMARY: This document contains

exemptions issued by the Department of

Labor (the Department) from certain of

the prohibited transaction restrictions of

the Employee Retirement Income

Security Act of 1974 (the Act) and/or

the Internal Revenue Code of 1986 (the

Code).

Notices were published in the Federal

Register of the pendency before the

Department of proposals to grant such

exemptions. The notices set forth a

summary of facts and representations

contained in each application for

exemption and referred interested

persons to the respective applications

for a complete statement of the facts and

representations. The applications have

been available for public inspection at

the Department in Washington, DC. The

notices also invited interested persons

to submit comments on the requested

exemptions to the Department. In

addition the notices stated that any

interested person might submit a

written request that a public hearing be

held (where appropriate). The

applicants have represented that they

have complied with the requirements of

the notification to interested persons.

No public comments and no requests for

a hearing, unless otherwise stated, were

received by the Department.

The notices of proposed exemption

were issued and the exemptions are

being granted solely by the Department

because, effective December 31, 1978,

section 102 of Reorganization Plan No.

4 of 1978, 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 exemptions are

administratively feasible;

(b) They are in the interests of the

plans and their participants and

beneficiaries; and

(c) They are protective of the rights of

the participants and beneficiaries of the

plans.

American Express Financial

Corporation (AEFC) Located in

Minneapolis, MN; Exemption

[Prohibited Transaction Exemption 2001–07;

Exemption Application No. D–10855]

Section I. Exemption for the

Acquisition, Holding and Disposition of

American Express Company Stock

The restrictions of sections

406(a)(1)(D), 406(b)(1) and section

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

8477(c)(2)(A) and (B) of the Federal

Employees Retirement System Act, and

the sanctions resulting from the

application of section 4975 of the Code

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

(E) of the Code, shall not apply to the

acquisition, holding and disposition of

the common stock of American Express

Company or its current and future

affiliates (AE Stock) by Index and

Model-Driven Funds (collectively, the

Funds) that are managed by AEFC and

its affiliates [as defined in Section

III(g)(1)], provided that the following

conditions and the General Conditions

of Section II are met:

(a) The acquisition or disposition of

AE Stock is for the sole purpose of

maintaining strict quantitative

conformity with the relevant index

upon which the Index or Model-Driven

Fund is based, and does not involve any

agreement, arrangement or

understanding regarding the design or

operation of the Fund acquiring the AE

Stock which is intended to benefit

AEFC or any party in which AEFC may

have an interest.

(b) Whenever AE Stock is initially

added to an index on which an Index or

Model-Driven Fund is based, or initially

added to the portfolio of an Index or

Model-Driven Fund, all acquisitions of

AE Stock necessary to bring the Fund’s

holdings of such Stock either to its

capitalization-weighted or other

specified composition in the relevant

index, as determined by the

independent organization maintaining

such index, or to its correct weighting

as determined by the model which has

been used to transform the index, occur

in the following manner:

(1) Purchases are from, or through,

only one broker or dealer on a single

trading day;

(2) Based on the best available

information, purchases are not the

opening transaction for the trading day;

10324 Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices

(3) Purchases are not effected in the

last half hour before the scheduled close

of the trading day;

(4) Purchases are at a price that is not

higher than the lowest current

independent offer quotation,

determined on the basis of reasonable

inquiry from non-affiliated brokers;

(5) Aggregate daily purchases do not

exceed 15 percent of the average daily

trading volume for the security, as

determined by the greater of either (i)

the trading volume for the security

occurring on the applicable exchange

and automated trading system on the

date of the transaction, or (ii) an

aggregate average daily trading volume

for the security occurring on the

applicable exchange and automated

trading system for the previous five (5)

business days, both based on the best

information reasonably available at the

time of the transaction;

(6) All purchases and sales of AE

Stock occur either (i) on a recognized

U.S. securities exchange (as defined in

Section III(j) below), (ii) through an

automated trading system (as defined in

Section III(i) below) operated by a

broker-dealer independent of AEFC that

is registered under the Securities

Exchange Act of 1934 (the ’34 Act), and

thereby subject to regulation by the

Securities and Exchange Commission

(SEC), which provides a mechanism for

customer orders to be matched on an

anonymous basis without the

participation of a broker-dealer, or (iii)

through an automated trading system (as

defined in Section III(i) below) that is

operated by a recognized U.S. securities

exchange (as defined in Section III(j)

below), pursuant to the applicable

securities laws, and provides a

mechanism for customer orders to be

matched on an anonymous basis

without the participation of a brokerdealer; and

(7) If the necessary number of shares

of AE Stock cannot be acquired within

10 business days from the date of the

event which causes the particular Fund

to require AE Stock, AEFC appoints a

fiduciary which is independent of AEFC

to design acquisition procedures and

monitor compliance with such

procedures.

(c) Subsequent to acquisitions

necessary to bring a Fund’s holdings of

AE Stock to its specified weighting in

the index or model pursuant to the

restrictions described in paragraph (b)

above, all aggregate daily purchases of

AE Stock by the Funds do not exceed

on any particular day the greater of:

(1) 15 percent of the average daily

trading volume for the AE Stock

occurring on the applicable exchange

and automated trading system (as

defined below) for the previous five (5)

business days, or

(2) 15 percent of the trading volume

for AE Stock occurring on the applicable

exchange and automated trading system

(as defined below) on the date of the

transaction, as determined by the best

available information for the trades that

occurred on such date.

(d) All transactions in AE Stock not

otherwise described in paragraph (b)

above are either: (i) Entered into on a

principal basis in a direct, arms-length

transaction with a broker-dealer, in the

ordinary course of its business, where

such broker-dealer is independent of

AEFC and is registered under the ’34

Act, and thereby subject to regulation by

the SEC, (ii) effected on an automated

trading system (as defined in Section

III(i) below) operated by a broker-dealer

independent of AEFC that is subject to

regulation by either the SEC or another

applicable regulatory authority, or an

automated trading system operated by a

recognized U.S. securities exchange (as

defined in Section III(j) below) which,

in either case, provides a mechanism for

customer orders to be matched on an

anonymous basis without the

participation of a broker-dealer, or (iii)

effected through a recognized U.S.

securities exchange (as defined in

Section III(j) below) so long as the

broker is acting on an agency basis.

(e) No transactions by a Fund involve

purchases from, or sales to, AEFC

(including officers, directors, or

employees thereof), or any party in

interest that is a fiduciary with

discretion to invest plan assets into the

Fund (unless the transaction by the

Fund with such party in interest would

otherwise be subject to an exemption).

(f) No more than five (5) percent of the

total amount of AE Stock, that is issued

and outstanding at any time, is held in

the aggregate by Index and ModelDriven Funds managed by AEFC.

(g) AE Stock constitutes no more than

five (5) percent of any independent

third party index on which the

investments of an Index or ModelDriven Fund are based.

(h) A plan fiduciary independent of

AEFC authorizes the investment of such

plan’s assets in an Index or ModelDriven Fund which purchases and/or

holds AE Stock, other than in the case

of an employee benefit plan sponsored

or maintained by AEFC for its own

employees (an AEFC Plan), pursuant to

the procedures described herein.

(i) A fiduciary independent of the

AEFC directs the voting of the AE Stock

held by an Index or Model-Driven Fund

on any matter in which shareholders of

AE Stock are required or permitted to

vote.

(j) No more than ten (10) percent of

the assets of any Fund that acquires and

holds AE Stock is comprised of any

AEFC Plan(s) for which AEFC exercises

investment discretion.

Section II. General Conditions

(a) AEFC maintains or causes to be

maintained for a period of six years

from the date of the transaction 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, except that (1) a prohibited

transaction will not be considered to

have occurred if, due to circumstances

beyond the control of AEFC, the records

are lost or destroyed prior to the end of

the six year period, and (2) no party in

interest other than AEFC 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 section 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 or the

Internal Revenue Service,

(B) Any fiduciary of a plan

participating in an Index or ModelDriven Fund who has authority to

acquire or dispose of the interests of the

plan, or any duly authorized employee

or representative of such fiduciary,

(C) Any contributing employer to any

plan participating in an Index or ModelDriven Fund or any duly authorized

employee or representative of such

employer, and

(D) Any participant or beneficiary of

any plan participating in an Index or

Model-Driven Fund, or a representative

of such participant or beneficiary.

(2) None of the persons described in

subparagraphs (B) through (D) of this

paragraph II(b) shall be authorized to

examine trade secrets of AEFC or

commercial or financial information

which is considered confidential.

Section III. Definitions

(a) The term ‘‘Index Fund’’ means any

investment fund, account or portfolio

sponsored, maintained, trusteed, or

managed by AEFC, in which one or

more investors invest, and —

(1) Which is designed to track the rate

of return, risk profile and other

Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices 10325

characteristics of an independently

maintained securities Index, as

described in Section III(c) below, 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 AEFC 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 contains ‘‘plan assets’’ subject

to the Act, pursuant to the Department’s

regulations (see 29 CFR 2510.3–101,

Definition of ‘‘plan assets’’—plan

investments); and,

(4) That involves no agreement,

arrangement, or understanding

regarding the design or operation of the

Fund which is intended to benefit AEFC

or any party in which AEFC may have

an interest.

(b) The term ‘‘Model-Driven Fund’’

means any investment fund, account or

portfolio sponsored, maintained,

trusteed, or managed by AEFC, 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 AEFC, to

transform an independently maintained

Index, as described in Section III(c)

below;

(2) Which contains ‘‘plan assets’’

subject to the Act, pursuant to the

Department’s regulations (see 29 CFR

2510.3–101, Definition of ‘‘plan

assets’’—plan investments); and

(3) That involves no agreement,

arrangement, or understanding

regarding the design or operation of the

Fund or the utilization of any specific

objective criteria which is intended to

benefit AEFC or any party in which

AEFC may have an interest.

(c) The term ‘‘Index’’ means 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,

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 stock exchange or

association of securities dealers; and,

(2) The index is created and

maintained by an organization

independent of AEFC; and,

(3) The index is a generally accepted

standardized index of securities which

is not specifically tailored for the use of

AEFC.

(d) The term ‘‘opening date’’ means

the date on which investments in or

withdrawals from an Index or ModelDriven Fund may be made.

(e) The term ‘‘Buy-up’’ means an

acquisition of AE Stock by an Index or

Model-Driven Fund in connection with

the initial addition of such Stock to an

independently maintained index upon

which the Fund is based or the initial

investment of a Fund in such Stock.

(f) The term ‘‘AEFC’’ refers to

American Express Financial

Corporation and its affiliates, as defined

below in paragraph (g).

(g) An ‘‘affiliate’’ of AEFC includes:

(1) Any person, directly or indirectly,

through one or more intermediaries,

controlling, controlled by or under

common control with the person;

(2) Any officer, director, employee or

relative of such person, or partner of any

such person; and

(3) Any corporation or partnership of

which such person is an officer,

director, partner or employee.

(h) The term ‘‘control’’ means the

power to exercise a controlling

influence over the management or

policies of a person other than an

individual.

(i) The term ‘‘automated trading

system’’ means an electronic trading

system that functions in a manner

intended to simulate a securities

exchange by electronically matching

orders on an agency basis from multiple

buyers and sellers, such as an

‘‘alternative trading system’’ within the

meaning of the SEC’s Reg. ATS [17 CFR

part 242.300], as such definition may be

amended from time to time, or an

‘‘automated quotation system’’ as

described in section 3(a)(51)(A)(ii) of the

’34 Act [15 USC 8c(a)(51)(A)(ii)].

(j) The term ‘‘recognized U.S.

securities exchange’’ means a U.S.

securities exchange that is registered as

a ‘‘national securities exchange’’ under

Section 6 of the ’34 Act (15 USC 78f),

as such definition may be amended

from time to time, which performs with

respect to securities the functions

commonly performed by a stock

exchange within the meaning of

definitions under the applicable

securities laws (e.g., 17 CFR part

240.3b–16).

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 September 19, 2000 at 65

FR 56715.

Written Comments

The Department received one written

comment with respect to the Notice and

no requests for a public hearing. The

comment, which was submitted by the

applicant, AEFC, requests certain

modifications to the conditional

language and the Summary of Facts and

Representations (the Summary) of the

Notice. AEFC has requested these

changes for purposes of clarification or

to correct several typographical errors.

Following is a discussion of AEFC’s

comment and the Department’s

responses to the areas of concern raised

by AEFC.

1. Investment by the AEFC plans in

the funds. On page 56716 of the Notice,

Section I(j) provides that ‘‘[n]o more

than ten (10) percent of the assets of any

Fund that acquires and holds AE Stock

is comprised of any AEFC Plan(s) for

which AEFC exercises investment

discretion.’’ AEFC assumes that this

condition relates to the aggregate

interest of all Plans that are sponsored

by AEFC and its affiliates. AEFC also

assumes that this condition does not

restrict Fund investments by any AEFC

Plan that is a participant-directed,

defined contribution plan, even though

AEFC or its affiliates may have used

their authority to make such Fund

available as a permissible investment

under such Plan.

In consideration of AEFC’s comment,

the Department hereby confirms that the

10 percent investment limitation refers

to the aggregate interest that all AEFC

Plans may have in a Fund. The

Department also wishes to confirm that

this limitation does not restrict Fund

investments by any AEFC Plan, which

is a defined contribution, participantdirected plan, even though AEFC or its

affiliates may have used their authority

to make such Fund available to an AEFC

Plan participant as a Plan investment

option.

In addition to the above, AEFC has

requested the Department to clarify that

the 10 percent investment limitation

would be met if a collective investment

fund (in which an AEFC Plan has more

than a 10 percent interest) invests in an

Index or Model-Driven Fund that holds

AE Stock. On a ‘‘look-through’’ basis,

AEFC represents that the AEFC Plan

would not hold more than a 10 percent

interest in the second Fund.

In response to this comment, the

Department wishes to emphasize that

this principle would apply as long as

the AEFC Plan’s interest in the second

Fund does not exceed, on a ‘‘lookthrough’’ basis, 10 percent of the second

Fund. For purposes of illustration, the

10326 Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices

1For purposes of this exemption, references to

specific provisions of Title I of the Act, unless

otherwise specified, refer to the corresponding

provisions of the Code.

2 ING, ING Bank London or any successor in

interest bank which is subject to the laws of the

United Kingdom and the Netherlands, ING London,

ING Japan, and any broker-dealer that, now or in

the future, is an affiliate of ING which is subject to

regulation under the laws of the United States or

the United Kingdom or Japan are referred to herein

collectively as ING Borrowers or individually as

ING Borrower.

3 ING Institutional, its corporate successors, or

any foreign or domestic affiliate of ING are referred

to herein collectively as ING Trust.

Department is providing the following

example.

Assume that Plan A, an AEFC Plan, has

invested $30 million in Collective Investment

Fund #1 and that Collective Investment Fund

#1 has total assets of $100 million. On the

basis of the foregoing, Plan A has a 30

percent undivided ownership interest in

Collective Investment Fund #1.

Assume that Collective Investment Fund

#1 invests all of its assets in Index Fund #2

which has $500 million in total assets and

invests in AE Stock.

Plan A’s ownership interest in Index Fund

#2 would be determined as follows: $30

million/$100 million + $500 million = 5

percent.

Thus, on a ‘‘look-through’’ basis, Plan A

would not hold more than a 10 percent

interest in Index Fund #2.

2. Fund transactions. On page 56716

of the Notice, in Section I(e), and on

page 56720 of the Summary, in

Representation 14(f), it states that ‘‘[n]o

transactions by a Fund involve

purchases from or sales to, AEFC

(including officers, directors, or

employees thereof), or any party in

interest that is a fiduciary with

discretion to invest plan assets into the

Fund (unless the transaction by the

Fund with such party in interest would

be otherwise subject to an exemption).’’

AEFC has requested that the Department

clarify that the foregoing language is

meant to cover only transactions that are

subject to this exemption.

Accordingly, the Department concurs

with AEFC’s interpretation of the

subject language.

3. Affiliate definition. On page 56717

of the Notice, Section III(g) of the

Definitions provides, in part, that the

term ‘‘affiliate’’ means, with respect to

AEFC, ‘‘an entity which directly or

indirectly, through one or more

intermediaries, is controlled by AEFC.’’

AEFC believes that this definition is

confusing and duplicative because it

implies that only those entities

controlled by AEFC are affiliates rather

than those which AEFC directly or

indirectly controls, is controlled by or is

under common control with. Therefore,

AEFC suggests that Section III(g) be

deleted and that Section III(h), which

also defines the term ‘‘affiliate,’’ be

redesignated as Section III(g).

In response, the Department concurs

with AEFC’s clarification and has

modified Section III(g) of the Notice,

accordingly. In addition, the

Department has redesignated paragraphs

(i) through (k) of Section III as

paragraphs (h) through (j) in the final

exemption.

4. Miscellaneous revisions. On page

56717 of the Notice, Representation 1 of

the Summary provides a description of

AEFC ‘‘together with its subsidiaries.’’

AEFC has requested that the Department

modify this phrase to read ‘‘together

with its affiliates.’’

In addition, on page 56718 of the

Notice, Representation 2 of the

Summary states, in part, that ‘‘AEFC

acts as investment manager of

institutional accounts, including

employee benefit plans, with assets

totaling approximately $38.3 million.’’

However, AEFC points out that the

‘‘$38.3 million’’ figure should be revised

to read ‘‘$38.3 billion.’’

In response to the foregoing

comments, the Department has noted

these revisions to the Summary.

For further information regarding

AEFC’s comment letter or other matters

discussed herein, interested persons are

encouraged to obtain copies of the

exemption application file (Exemption

Application No. D–10855) 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 Pension and

Welfare Benefits Administration, Room

N–1513, U.S. Department of Labor, 200

Constitution Avenue, NW., Washington,

DC 20210.

Accordingly, after giving full

consideration to the entire record,

including the written comment

provided by AEFC, the Department has

made the aforementioned changes to the

Notice and has decided to grant the

exemption subject to the modifications

and clarifications described above.

FOR FURTHER INFORMATION CONTACT: Ms.

Jan D. Broady of the Department,

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

a toll-free number.)

ING Barings LLC, ING Institutional

Trust Company and Affiliates, Located

in New York, New York, Exemption

[Prohibited Transaction Exemption 2001–08

Exemption Application No.: D–10908].

Section I—Transactions

Effective as of December 6, 2000, the

date of the publication of the proposed

exemption in the Federal Register, 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,1

shall not apply to:

(a) the lending of securities to:

(1) ING Barings LLC (ING);

(2) the London branch (ING Bank

London) of ING Bank N.V. or any

successor in interest bank which is

subject to the laws of the United

Kingdom and the Netherlands;

(3) ING Barings Limited (ING

London);

(4) ING Baring Securities (Japan)

Limited (ING Japan); and

(5) any broker-dealer that, now or in

the future, is an affiliate of ING which

is subject to regulation under the laws

of the United States or the United

Kingdom or Japan;2 by employee benefit

plans, including commingled

investment funds holding assets of such

plans (the Client Plan(s)), for which in

connection with securities lending

activities, an affiliate of the ING

Borrowers, the ING Institutional Trust

Company (ING Institutional), its

corporate successors, or any foreign or

domestic affiliate of ING,3 acts as a

securities lending agent (or sub-agent) or

as a directed trustee or custodian for

such Client Plans under either of two

securities lending arrangements referred

to herein as Plan A and Plan B; and

(b) the receipt of compensation by

ING Trust in connection with securities

lending transactions, provided that for

all transactions described above the

conditions, as set forth in Section II,

below, are satisfied.

Section II—Conditions

(a) For each Client Plan, neither the

ING Borrowers nor ING Trust has or

exercises discretionary authority or

control with respect to the investment of

the assets of such Client Plan involved

in the transaction (other than with

respect to the investment of cash

collateral after the securities have been

loaned and collateral received), or

renders investment advice (within the

meaning of 29 CFR 2510.3–21(c)) with

respect to those assets, including any

decisions concerning such Client Plan’s

acquisition or disposition of securities

available for securities lending

transactions;

(b) With regard to:

(1) Plan A, under which ING Trust

lends securities of a Client Plan to an

ING Borrower in either an agency or

sub-agency capacity, such arrangement

is approved in advance by a fiduciary of

the Client Plan (the Client Plan

Fiduciary) that is independent of ING

Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices 10327

4The Department, herein, is not providing

exemptive relief for securities lending transactions

engaged in by primary lending agents, other than

ING Trust, beyond that provided pursuant to

Prohibited Transaction Class Exemption 81–6

(PTCE 81–6) (46 FR 7527, January 23, 1981, as

amended at 52 FR 18754, May 19, 1987), and

Prohibited Transaction Class Exemption 82–63

(PTCE 82–63) (47 FR 14804, April 6, 1982).

Trust and the ING Borrower and is

negotiated by ING Trust, which acts as

a liaison between the lender and the

borrower to facilitate the securities

lending transaction.4

(2) Plan B, under which an ING

Borrower directly negotiates an

agreement with the Client Plan

Fiduciary, including a Client Plan for

which ING Trust provides services with

respect to the portfolio of securities to

be loaned, pursuant to an exclusive

borrowing arrangement (an Exclusive

Borrowing Arrangement), such Client

Plan Fiduciary is independent of both

the ING Borrower and ING Trust, and

ING Trust does not participate in any

such negotiations.

(c) Before a Client Plan participates in

a securities lending program with

respect to Plan A and before any loan

of securities to an ING Borrower

pursuant to Plan A is affected, a Client

Plan Fiduciary that is independent of

ING Trust and the ING Borrower must

have:

(1) Authorized and approved a

securities lending authorization

agreement with ING Trust (the Agency

Agreement), where ING Trust is acting

as the direct securities lending agent;

(2) Authorized and approved the

primary securities lending authorization

agreement (the Primary Lending

Agreement) with the primary lending

agent, where ING Trust is lending

securities under a sub-agency

arrangement with a primary lending

agent; and

(3) Approved the general terms of the

securities loan agreement (the Basic

Loan Agreement) between such Client

Plan and the ING Borrower, the specific

terms of which are negotiated and

entered into by ING Trust.

(d) The terms of each loan of

securities by a Client Plan to an ING

Borrower are at least as favorable to

such Plan as those of a comparable

arm’s-length transaction between

unrelated parties;

(e) A Client Plan may terminate a

securities lending agency (or subagency) agreement under Plan A or an

Exclusive Borrowing Arrangement

under Plan B at any time without

penalty on five (5) business days notice,

whereupon the ING Borrower shall

deliver securities identical to the

borrowed securities (or the equivalent

thereof in the event of reorganization,

recapitalization, or merger of the issuer

of the borrowed securities) to the Client

Plan within:

(1) The customary delivery period for

such securities;

(2) Five (5) business days; or

(3) The time negotiated for such

delivery by the Client Plan and the ING

Borrower, whichever is less.

(f) ING Institutional (or another

custodian designated to act on behalf of

the Client Plan) as agent for the Client

Plan receives from the ING Borrower

(either by physical delivery or by book

entry in a securities depository located

in the United States, wire transfer or

similar means) by the close of business

on or before the day the loaned

securities are delivered to such ING

Borrower, collateral consisting of U.S.

currency, securities issued or

guaranteed by the U.S. Government or

its agencies or instrumentalities,

irrevocable letters of credit issued by a

United States Bank, other than ING

Trust or the ING Borrowers, or any

combination thereof, or other collateral

permitted under PTCE 81–6 (as it may

be amended or superseded);

(g) The market value (or in the case

of a letter of credit, a stated amount) of

the collateral on the close of business on

the day preceding the day of the loan is

initially at least 102 percent (102%) of

the market value of the loaned

securities. The applicable Basic Loan

Agreement gives the Client Plan a

continuing security interest in and an

lien on the collateral. The level of

collateral is monitored daily either by

ING Trust under Plan A or ING Trust or

other designee of the Client Plan under

Plan B. If the market value of the

collateral, on the close of trading on a

business day, is less than 100 percent

(100%) of the market value of the

loaned securities at the close of business

on that day, the ING Borrower is

required to deliver by the close of

business on the next day, sufficient

additional collateral such that the

market value of the collateral will again

equal 102 percent (102%).

(h) With regard to:

(1) Plan A, prior to a Client Plan

entering into a Basic Loan Agreement,

the ING Borrower will furnish its most

recent available audited and unaudited

statements to ING Trust, which, in turn,

will provide such statements to the

Client Plan before such Client Plan

approves of the terms of the Basic Loan

Agreement. The Basic Loan Agreement

contains a requirement that the

applicable ING Borrower must give

prompt notice at the time of a loan of

any material adverse changes in its

financial condition since the date of the

most recently furnished financial

statements. If any such changes have

taken place, ING Trust will not make

any further loans to the ING Borrower,

unless an independent Client Plan

Fiduciary is provided notice of any

material change and approves the loan

in view of the changed financial

condition;

(2) Plan B, prior to a Client Plan

entering into an Exclusive Borrowing

Arrangement, the ING Borrower will

furnish its most recent available audited

and unaudited statements to the Client

Plan before the Client Plan elects to

enter into such agreement. The

Exclusive Borrowing Arrangement

contains a requirement that the ING

Borrower must give prompt notice at the

time of the loan of any material adverse

changes in its financial condition since

the date of the most recently furnished

financial statements;

(i) In return for lending securities, the

Client Plan either:

(1) receives a reasonable fee which is

related to the value of the borrowed

securities and the duration of the loan;

or

(2) has the opportunity to derive

compensation through the investment of

cash collateral. (Under such

circumstances, the Client Plan may pay

a loan rebate or similar fee to the ING

Borrower, if such fee is not greater than

the fee the Client Plan would pay in a

comparable arm’s length transaction

with an unrelated party.)

(j) All the procedures regarding the

securities lending activities will at a

minimum conform to the applicable

provisions of PTCE 81–6 and PTCE 82–

63 as well as the applicable banking

laws of the United Kingdom and the

Netherlands and securities laws of the

United States or the United Kingdom or

Japan;

(k) ING Institutional agrees to

indemnify and hold harmless the Client

Plans in the United States (including the

sponsor and fiduciaries of such Client

Plans) for any transactions covered by

this exemption with ING Borrowers so

that the Client Plans do not have to

litigate in the case of ING Borrowers in

foreign jurisdictions or sue ING

Borrowers to realize on the

indemnification. Such indemnification

by ING Institutional is against any and

all reasonably foreseeable damages,

losses, liabilities, costs, and expenses

(including attorney’s fees) which the

Client Plans may incur or suffer, arising

from any impermissible use by ING

Borrowers of the loaned securities or

from an event of default arising from

ING Borrowers’ failing to deliver loaned

securities in accordance with the

applicable Basic Loan Agreement or

10328 Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices

otherwise failing to comply with the

terms of such agreement, except to the

extent that such losses or damages are

caused by the Client Plans’ own

negligence.

(1) If any event of default occurs, ING

Institutional promptly and at its own

expense (subject to rights of subrogation

in the collateral and against such

borrower), will purchase or cause to be

purchased, for the account of the Client

Plans, securities identical to the

borrowed securities (or their equivalent

as discussed above). If the collateral is

insufficient to accomplish such

purchase, ING Institutional will

indemnify the Client Plan for any

shortfall in the collateral plus interest

on such amount and any transaction

costs incurred (including attorney’s fees

of the Client Plan for legal actions

arising out of the default on loans or

failure to properly indemnify under this

provision). Alternatively, if such

replacement securities cannot be

obtained on the open market, ING

Institutional will pay the Client Plan the

difference in U.S. dollars between the

market value of the loaned securities

and the market value of the related

collateral on the date of the borrower’s

breach of its obligation to return the

loaned securities.

(2) If, however, the event of default is

caused by the ING Borrower’s failure to

return securities within a designated

time, the Client Plan has the right to

purchase securities identical to the

borrowed securities and apply the

collateral to payment of the purchase

price and any other expenses of the Plan

associated with the sale and/or

purchase.

(l) The Client Plan receives the

equivalent of all distributions made to

holders of the borrowed securities

during the term of the loan, including,

but not limited to, cash dividends, and

interest payments on the loaned

securities, shares of stock as a result of

stock splits and rights to purchase

additional securities, or other

distributions.

(m) Prior to any Client Plan’s approval

of the lending of its securities to any

ING Borrower, a copy of the notice of

proposed exemption and a copy of the

final exemption will be provided to

such Client Plan.

(n) Each Client Plan receives monthly

reports with respect to the securities

lending transactions, including but not

limited to the information described in

representation number 19, as published

in the Summary of Facts and

Representations in the Notice of

Proposed Exemption (the Notice), so

that an independent Client Plan

Fiduciary may monitor such

transactions with the ING Borrowers.

(o) Only Client Plans with total assets

having an aggregate market value of at

least $50 million are permitted to lend

securities to the ING Borrowers;

provided, however, that—

(1) In the case of two or more Client

Plans which are maintained by the same

employer, controlled group of

corporations or employee organization

(the Related Client Plans), whose assets

are commingled for investment

purposes in a single master trust or any

other entity the assets of which are

‘‘plan assets’’ under 29 CFR 2510.3–101

(the Plan Asset Regulation), which

entity is engaged in securities lending

arrangements with the ING Borrowers,

the foregoing $50 million requirement

shall be deemed satisfied if such trust or

other entity has aggregate assets which

are in excess of $50 million; provided

that if the fiduciary responsible for

making the investment decision on

behalf of such master trust or other

entity is not the employer or an affiliate

of the employer, such fiduciary has total

assets under its management and

control, exclusive of the $50 million

threshold amount attributable to plan

investment in the commingled entity,

which are in excess of $100 million.

(2) In the case of two or more Client

Plans which are not maintained by the

same employer, controlled group of

corporations, or employee organization

(the Unrelated Client Plans), whose

assets are commingled for investment

purposes in a group trust or any other

form of entity the assets of which are

‘‘plan assets’’ under the Plan Asset

Regulation, which entity is engaged in

securities lending arrangements with

the ING Borrowers, the foregoing $50

million requirement is satisfied if such

trust or other entity has aggregate assets

which are in excess of $50 million

(excluding the assets of any plan with

respect to which the fiduciary

responsible for making the investment

decision on behalf of such group trust

or other entity or any member of the

controlled group of corporations

including such fiduciary is the

employer maintaining such plan or an

employee organization whose members

are covered by such plan). However, the

fiduciary responsible for making the

investment decision on behalf of such

group trust or other entity—

(A) Has full investment responsibility

with respect to Client Plan assets

invested therein; and

(B) Has total assets under its

management and control, exclusive of

the $50 million threshold amount

attributable to plan investment in the

commingled entity, which are in excess

of $100 million. (In addition, none of

the entities described above must be

formed for the sole purpose of making

loans of securities.)

(p) With respect to any calendar

quarter, at least 50 percent (50%) or

more of the outstanding dollar value of

securities loans negotiated on behalf of

Client Plans will be to unrelated

borrowers, unless the Client Plan has

entered into an Exclusive Borrowing

Arrangement with the ING Borrowers.

(q) In addition to the above, all loans

involving Foreign Borrowers, as defined

in Section III (c), below, must satisfy the

following supplemental requirements:

(1) Such Foreign Borrower is a bank

which is regulated by both the Dutch

Central Bank (De Nederlandsche Bank

or DNB) and the Financial Services

Authority (FSA) of the United Kingdom

or must be a registered broker-dealer

subject to regulation by either the

Securities and Futures Authority of the

United Kingdom (the SFA) or the

Ministry of Finance (the MOF) and the

Tokyo Stock Exchange.

(2) Such Foreign Borrower must be in

compliance with all applicable

provisions of Rule 15a–6 (17 CFR

240.15a–6) under the Securities and

Exchange Act of 1934 (the 1934 Act)

which provides for foreign brokerdealers a limited exemption from

United States registration requirements;

(3) All collateral is maintained in

United States dollars or United States

dollar-denominated securities or letters

of credit;

(4) All collateral is held in the United

States and the situs of the securities

lending agreements (either the Basic

Loan Agreement under Plan A or the

Exclusive Borrowing Arrangement

under Plan B) is maintained in the

United States under an arrangement that

complies with the indicia of ownership

requirements under section 404(b) of the

Act and the regulations promulgated

under 29 CFR 2550.404(b)–1; and

(5) Prior to entering a transaction

involving a Foreign Borrower, the

applicable Foreign Borrower must—

(A) Agree to submit to the jurisdiction

of the United States;

(B) Agree to appoint an agent for

service of process in the United States,

which may be an affiliate (the Process

Agent);

(C) Consent to service of process on

the Process Agent; and

(D) Agree that enforcement by a Client

Plan of the indemnity provided by ING

Institutional will occur in the United

States courts;

(r) ING maintains or causes to be

maintained within the United States for

a period of six (6) years from the date

of each securities lending transaction, in

Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices 10329

a manner that is convenient and

accessible for audit and examination,

such records as are necessary to enable

the persons described in Section II (s)(1)

below to determine whether the

conditions of this exemption, if granted,

have been met; except that—

(1) a prohibited transaction will not

be considered to have occurred if, due

to circumstances beyond the control of

ING or the other ING Borrowers, the

records are lost or destroyed prior to the

end of the six year period; and

(2) no party in interest with respect to

an employee benefit plan, other than

ING or the other ING Borrowers, 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) or (b) of the Code, if such

records are not maintained, or are not

available for examination as required by

Section II(s)(1), below.

(s)(1) Except as provided in

subparagraph (2) of this Section II(s) and

notwithstanding any provisions of

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

of the Act, the records referred to in

Section II(r), above, are unconditionally

available at their customary location for

examination during normal business

hours by—

(A) Any duly authorized employee or

representative of the Department, the

Internal Revenue Service, or the

Securities and Exchange Commission

(SEC);

(B) Any fiduciary of a participating

Client Plan or any duly authorized

representative of such fiduciary;

(C) Any contributing employer to any

participating Client Plan, or any duly

authorized employee or representative

of such employer; and

(D) Any participant or beneficiary of

any participating Client Plan, or any

duly authorized representative of such

participant or beneficiary.

(2) None of the persons described in

subparagraphs (B)–(D) of Section II(s)(1)

shall be authorized to examine trade

secrets of ING or the other ING

Borrowers, or commercial or financial

information which is privileged or

confidential.

Section III—Definitions

For purposes of this exemption,

(a) The term ‘‘affiliate’’ of another

person shall include:

(1) Any person, directly or indirectly,

through one or more intermediaries,

controlling, controlled by, or under

common control with such other

person;

(2) Any officer, director, employee, or

relative (as defined in section 3(15) of

the Act) of such other person or any

partner in such person; and

(3) Any corporation or partnership of

which such other person is an officer,

director, employee or in which such

person is a partner.

(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, ‘‘Foreign Borrower or

Foreign Borrowers’’ means: (1) ING

Bank London or any successor in

interest bank subject to the laws of the

United Kingdom and the Netherlands;

(2) ING London; (3) ING Japan; and (4)

any broker-dealer that, now or in the

future, is an affiliate of ING which is

subject to regulation under the laws of

the United States or the United

Kingdom or Japan.

Written Comments

In the Notice, the Department of Labor

(the Department) invited all interested

persons to submit written comments

and requests for a hearing on the

proposed exemption within thirty (30)

days of the date of the publication of the

Notice in the Federal Register on

December 6, 2000. All comments and

requests for a hearing were due by

January 5, 2001.

During the comment period, the

Department received no requests for a

hearing. However, the Department did

receive comment letters from the

applicant. In this regard, in a letter

dated January 3, 2001, the applicants

requested certain modifications and

clarifications to the language of the

exemption, as proposed, and requested

certain amendments to the language of

the Summary of Facts and

Representations (SFR) in the Notice.

Subsequently, in a letter dated January

19, 2001, the applicants revised various

portions of the previous comment letter.

A discussion of each of the applicant’s

comments and the Department’s

responses, thereto, are set forth in the

numbered paragraphs below.

1. The applicants have requested that

any reference to IITC in the final

exemption be changed to ‘‘ING Trust.’’

In this regard, the applicants believe

that the use of the term, ‘‘IITC,’’ will be

confusing to potential clients when the

exemption documents are provided to

such clients prior to entering into a

securities lending arrangement.

Although the Department concurs

with the applicants’ request and has

changed all references to ‘‘IITC’’ in the

final exemption to ‘‘ING Trust,’’ the

Department notes that, throughout the

proposed exemption, the Department

distinguished between the ING

Institutional Trust Company (ING

Institutional), acting in its individual

capacity, and IITC, a collective term,

which refers to ING Institutional, its

corporate successors, or any foreign or

domestic affiliate of ING Barings LLC.

Accordingly, in compliance with the

applicants’ request the words, ‘‘ING

Trust,’’ in the final exemption will

collectively refer to ING Institutional, its

corporate successors, or any foreign or

domestic affiliate of ING Barings LLC.

2. In its revised comment letter, dated

January 19, 2001, the applicants

requested an amendment of paragraph

(f) of Section II, as published in the

Notice (65 FR 76294), by replacing the

phrase, ‘‘Client Plan,’’ with the words,

‘‘ING Institutional.’’

The Department concurs and has

modified Section II(f) of the final

exemption. Words that have been

stricken appear in the closed brackets,

and additions have been underlined in

the text below, as follows:

(f) [Client Plans] ING Institutional (or

another custodian designated to act on behalf

of the Client Plan) as agent for the Client

Plan receives from the ING Borrower (either

by physical delivery or by book entry in a

securities depository located in the United

States, wire transfer or similar means) by the

close of business on or before the day the

loaned securities are delivered to such ING

Borrower, collateral consisting of U.S.

currency, securities issued or guaranteed by

the U.S. Government or its agencies or

instrumentalities, irrevocable letters of credit

issued by a United States Bank, other than

ING Trust or the ING Borrowers, or any

combination thereof, or other collateral

permitted under PTCE 81–6 (as it may be

amended or superseded);

Further, the Department notes that for

the sake of consistency, the text of

paragraph 17, as published in the Notice

(65 FR 76299), should have been

modified by striking the words, ‘‘IITC,’’

and substituting the phrase, ‘‘ING

Institional acting as agent.’’

Accordingly, words that should have

been stricken in the first sentence of

paragraph 17 in the Notice appear in the

closed brackets, and additions are

underlined in the text below, as follows:

[IITC] ING Institutional acting as agent on

behalf of a Client Plan will receive collateral

from ING Borrowers by physical delivery,

book entry in a U.S. securities depository,

wire transfer, or similar means by the close

of business on or before the day the loaned

securities are delivered to such ING

Borrowers.

3. The applicants have suggested

certain deletions and additions to the

language in the SFR, as published in the

Notice, and have requested that the

Department substitute the text which is

quoted below for the language that

appeared in the Notice. The Department

concurs and has made the requested

deletions and additions in the language

10330 Federal Register / Vol. 66, No. 31 / Wednesday, February 14, 2001 / Notices

in the SFR, as published in the Notice.

The applicants’ deletions to the

language that appeared in the SFR are

noted below by the words stricken in

the closed brackets, and the applicants’

additions have been underlined in the

text below.

(A) The text of subparagraph (d) of

paragraph 36, as published in the SFR

in the Notice (65 FR 76303), should

have read as follows:

Neither the ING Borrowers nor IITC will

exercise any discretionary authority or

control with respect to the investment of the

assets of Client Plans involved in the

securities lending transactions (other than

with respect to the investment of cash

collateral after the securities have been

loaned and the collateral received), or render

investment advice with respect to those

assets, including any decisions concerning a

Client Plan’s acquisition or disposition of

securities available for lending.

(B) The applicants seek to strike the

entire text of subparagraph (h) of

paragraph 36, as published in the SFR

in the Notice(65 FR 76303), as set forth,

below:

[The market value of the collateral which

secures any loan of securities will at all times

equal at least 102 percent (102%) of the

market value of the loaned securities;]

and substitute in its entirety the

following language:

The level of collateral is monitored daily

either by ING Trust under Plan A or ING

Trust or other designee of the Client Plan

under Plan B. The market value of the

collateral will initially equal 102 percent

(102%) of the loaned securities. If the market

value of the collateral falls below 100 percent

(100%), the ING Borrower will deliver

additional collateral on the following day

such that the market value of the collateral

will again equal 102 percent (102%).

After giving full consideration to the

entire record, including the written

comments from the applicants, the

Department has decided to grant the

exemption, as described, amended, and

concurred in above. In this regard, the

comment letters submitted by the

applicants to the Department have been

included as part of the public record of

the exemption application. The

complete application file, including all

supplemental submissions received by

the Department, is made available for

public inspection in the Public

Documents Room of the Pension

Welfare Benefits 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 December 6, 2000, at 65 FR 76293.

FOR FURTHER INFORMATION CONTACT:

Angelena C. Le Blanc of the Department,

telephone (202) 219–8883 (This is not a

toll-free number.)

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and/or section

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

a fiduciary or other party in interest or

disqualified person from certain other

provisions to which the exemptions

does not apply and the general fiduciary

responsibility provisions of section 404

of the Act, which among other things

require a fiduciary to discharge his

duties respecting the plan solely in the

interest of the participants and

beneficiaries of the plan and in a

prudent fashion in accordance with

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

it affect the requirement of section

401(a) of the Code that the plan must

operate for the exclusive benefit of the

employees of the employer maintaining

the plan and their beneficiaries;

(2) These exemptions are

supplemental to and not in derogation

of, any other provisions of the Act and/

or the Code, including statutory or

administrative exemptions and

transactional rules. Furthermore, the

fact that a transaction is subject to an

administrative or statutory exemption is

not dispositive of whether the

transaction is in fact a prohibited

transaction; and

(3) The availability of these

exemptions is subject to the express

condition that the material facts and

representations contained in each

application accurately describes all

material terms of the transaction which

is the subject of the exemption.

Signed at Washington, DC, this 8th day of

February, 2001.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 01–3689 Filed 2–13–01; 8:45 am]

BILLING CODE 4510–29–P

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

Sunshine Act Meeting

February 8, 2001.

TIME AND DATE: 2 p.m., Thursday,

February 15, 2001.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will consider and act upon

the following:

1. Central Sand & Gravel Co., Docket

No. CENT 98–230–RM (Issues include

whether the judge erred in concluding

that the operator violated 30 CFR

56.12045 by failing to maintain

clearances between a stockpile and

overhead powerlines).

Any person attending an open

meeting who requires special

accessibility features and/or auxiliary

aids, such as sign language interpreters,

must inform the Commission in advance

of those needs. Subject 20 29 CFR

2706.150(a)(3) and 2706.160(d).

CONTACT PERSON FOR MORE INFO: Jean

Ellen, (202) 653–5629/(202) 708–9300

for TDD Relay/1–800–877–8339 for toll

free.

Jean H. Ellen,

Chief Docket Clerk,

[FR Doc. 01–3842 Filed 2–12–01; 2:10 pm]

BILLING CODE 6735–01–M

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION

Federal Financial Assistance

Management Improvement Act of 1999;

Request for Comment; Interim/Draft

Plan of Action To Implement Public

Law 106–107, the Federal Financial

Assistance Management Improvement

Act of 1999

AGENCY: National Archives and Records

Administration (NARA).

ACTION: Notice; request for public

comments.

SUMMARY: This notice notifies interested

parties that the National Archives and

Records Administration (NARA) is

participating in the joint effort with

other Federal grant-making agencies to

satisfy the provisions of Public Law

106–107, the Federal Financial

Assistance Management Improvement

Act of 1999 (henceforth ‘‘the Act’’). The

Act requires each agency to develop and

implement a plan that streamlines and

simplifies the application,

administrative, and reporting

procedures for Federal financial

assistance programs. The Act also

requires the agencies to consult with

representatives of non-Federal entities

during the development and

implementation of their plans. NARA’s

National Historical Publications and

Records Commission (NHPRC) makes

grants to state and local archives,

colleges and universities, libraries,

historical societies, other nonprofit

organizations, and individuals in the