[Federal Register Volume 73, Number 131 (Tuesday, July 8, 2008)]
[Notices]
[Pages 39158-39180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15320]



[[Page 39157]]

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Part III





Department of Labor





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Employee Benefits Security Administration



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Proposed Exemptions Involving; D-11082 & D-11109--Deutsche Bank, AG; D-
11263--Banc One Investment Advisors Corporation and J.P. Morgan 
Investment Management Inc.; D-11449--Pileco, Inc. Employees Profit 
Sharing Plan; and D-11460--Mellon Bank N.A.; Notice

  Federal Register / Vol. 73, No. 131 / Tuesday July 8, 2008 / 
Notices  

[[Page 39158]]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Application Nos. D-11082 & D-11109; D-11263; D-11449; and D-11460]


Proposed Exemptions Involving; D-11082 & D-11109--Deutsche Bank, 
AG; D-11263--Banc One Investment Advisors Corporation and J.P. Morgan 
Investment Management Inc.; D-11449--Pileco, Inc. Employees Profit 
Sharing Plan; and D-11460--Mellon Bank N.A.

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of Proposed Exemption.

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SUMMARY: This document contains a notice of pendency before the 
Department of Labor (the Department) of proposed exemptions from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (ERISA or the Act) and/or the 
Internal Revenue Code of 1986 (the Code).

Written Comments and Hearing Requests

    All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemptions, unless otherwise 
stated in the Notice of Proposed Exemption, within 45 days from the 
date of publication of this Federal Register Notice. Comments and 
requests for a hearing should state: (1) The name, address, and 
telephone number of the person making the comment or request, and (2) 
the nature of the person's interest in the exemption and the manner in 
which the person would be adversely affected by the exemption. A 
request for a hearing must also state the issues to be addressed and 
include a general description of the evidence to be presented at the 
hearing.

ADDRESSES: All written comments and requests for a hearing (at least 
three copies) should be sent to the Employee Benefits Security 
Administration (EBSA), Office of Exemption Determinations, Room N-5700, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. Attention: Application No. ----, stated in each Notice of 
Proposed Exemption. Interested persons are also invited to submit 
comments and/or hearing requests to EBSA via e-mail or FAX. Any such 
comments or requests should be sent either by e-mail to: 
[email protected], or by FAX to (202) 219-0204 by the end of the 
scheduled comment period. The application for exemption and the 
comments received will be available for public inspection in the Public 
Documents Room of the Employee Benefits Security Administration, U.S. 
Department of Labor, Room N-1513, 200 Constitution Avenue, NW., 
Washington, DC 20210.

Notice to Interested Persons

    Notice of the proposed exemption will be provided to all interested 
persons in the manner agreed upon by the applicant and the Department 
within 15 days of the date of publication in the Federal Register. Such 
notice shall include a copy of the notice of proposed exemption as 
published in the Federal Register and shall inform interested persons 
of their right to comment and to request a hearing (where appropriate).

SUPPLEMENTARY INFORMATION: The proposed exemption was requested in 
applications filed pursuant to section 408(a) of the Act and/or section 
4975(c)(2) of the Code, and in accordance with procedures set forth in 
29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). 
Effective December 31, 1978, section 102 of Reorganization Plan No. 4 
of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the 
Secretary of the Treasury to issue exemptions of the type requested to 
the Secretary of Labor. Therefore, this notice of proposed exemption 
are issued solely by the Department.
    The application contains representations with regard to the 
proposed exemption which is summarized below. Interested persons are 
referred to the application on file with the Department for a complete 
statement of the facts and representations.

Deutsche Bank, AG (Deutsche Bank or the Applicant)

    Located in Germany, with Affiliates in New York, NY and Other 
Locations.

[Application Nos. D-11082 and D-11109]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA) and section 
4975(c)(2) of the Code, and in accordance with the procedures set forth 
in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).\1 
\
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    \1\ For purposes of this proposed exemption, references to 
specific provisions of Title I of the Act, unless otherwise 
specified, refer also to the corresponding provisions of the Code.
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Section I. Covered Transactions

    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A) through (D) and 406(b)(1) and (b)(2) of the Act, and the 
taxes imposed by section 4975(a) and (b) of Code, by reason of section 
4975(c)(1)(A) through (E) of the Code, shall not apply to the following 
foreign exchange transactions involving less developed currencies, that 
are executed by Deutsche Bank or a current or future affiliate 
(domestic or foreign) thereof that is a bank or broker-dealer, acting 
as a local subcustodian in connection with a determination by Deutsche 
Bank or its affiliates to invest the assets of a client plan, an in-
house plan whose assets are invested in a separately managed account 
with Deutsche Bank, or a pooled fund, in foreign securities, if the 
conditions set forth in Sections II, III and IV below are met with 
respect to:
    (1) A trade-related currency conversion, or
    (2) An income item conversion.

Section II. General Conditions

    (a) At the time the foreign exchange transaction is entered into, 
the terms of the transaction are not less favorable to the client plan, 
in-house plan or pooled fund than the terms generally available in a 
comparable arm's length foreign exchange transaction between unrelated 
parties.
    (b) The exchange rate used for a particular foreign exchange 
transaction does not deviate by more than 3 percent (above or below) 
the interbank bid and asked rates for such currency at the time of the 
transaction as displayed on an independent, nationally-recognized 
service that reports rates of exchange in the foreign currency market 
for such currency.
    (c) The covered transactions are limited to those less developed 
currencies in which a transaction is executed with Deutsche Bank or its 
affiliate acting as local subcustodian at the direction of the global 
custodian because the global custodian either does not make a market in 
such currency, or otherwise determines to execute with the local 
subcustodian because of market conditions, market restrictions, 
illiquidity of the currency or similar exigencies.
    (d) Where a market is served by more than one subcustodian, 
Deutsche Bank, as asset manager, has no decision making authority or 
role, or otherwise makes no recommendations with respect to the global 
custodian's selection of the subcustodian.
    (e) The foreign exchange transaction is executed by Deutsche Bank 
or its

[[Page 39159]]

affiliate thereof acting as subcustodian at the direction of the global 
custodian in the ordinary course of its business as global custodian.
    (f) The decision to select Deutsche Bank or its affiliate as the 
subcustodian is made by a global custodian which is unrelated to 
Deutsche Bank or any affiliate thereof.
    (g) The selection of Deutsche Bank or its affiliate as subcustodian 
and any foreign exchange transactions executed by Deutsche Bank or its 
affiliate at the direction of the global custodian are not part of any 
agreement, arrangement or understanding, written or otherwise, designed 
to benefit Deutsche Bank, its affiliate or any other party in interest.
    (h) Deutsche Bank or its affiliate appoints an independent 
fiduciary to represent the interests of (1) an in-house plan, or (2) 
plans investing in a large pooled fund.
    (i) The decision to invest in a market and to select Deutsche Bank 
or its affiliate as asset manager is part of an investment strategy 
that is adopted by an independent fiduciary of a client plan, the 
independent fiduciary of an in-house plan, the independent fiduciary of 
a large pooled fund, or the independent fiduciary of an unrelated 
pooled fund.
    (j) On an annual basis, the percentage of assets of in-house plans 
and pooled funds for which Deutsche Bank and/or its affiliates select 
the global custodian represent less than 20 percent of the total assets 
under custody by any such global custodian.
    (k) Foreign affiliates of Deutsche Bank who engage in the covered 
transactions--
    (1) Agree to submit to the jurisdiction of the United States;
    (2) Agree to appoint an agent for service of process in the United 
States, which may be an affiliate (the Process Agent);
    (3) Consent to service of process on the Process Agent;
    (4) Agree that they may be sued in the United
    States Courts in connection with the covered transactions described 
in this proposed exemption;
    (5) Agree that any judgment on behalf of a plan or pooled fund may 
be collected in the United States from Deutsche Bank; and
    (6) Agree to comply with, and be subject to, all relevant 
provisions of the Act.
    (l) With respect to the covered transactions--
    (1) Deutsche Bank or its affiliate designates an individual 
responsible for periodically (but no less frequently than on an annual 
basis) reviewing a sample of such foreign exchange transactions to 
determine whether the covered transactions have been executed in 
accordance with the terms of this exemption. Such sample must include a 
sufficient number of transactions to ensure that each affected currency 
is tested.
    (2) Deutsche Bank or its affiliate provides such individual with 
the records (which may be provided electronically) described in Section 
IV(a)(1)-(7), on an annual basis.
    (3) Such individual notifies Deutsche Bank or its affiliate, the 
independent fiduciary of a client plan, the independent fiduciary of an 
in-house plan, the independent fiduciary of a large pooled fund, the 
independent fiduciary of an unrelated pooled fund, or the receiving 
fiduciary of a small pooled fund, of its findings in a written report 
within 90 days after the period to which the periodic review relates. 
Such report describes the steps performed by such individual during the 
course of the review, the level of compliance by Deutsche Bank or its 
affiliate with the terms and conditions of the exemption, and any 
specific instances of non-compliance by Deutsche Bank or its affiliate 
with the terms and conditions of the exemption.

Section III. Notice Requirements

    (a) At the time Deutsche Bank or its affiliate is retained as asset 
manager, or prior to the initial investment of the plan's assets or 
pooled fund's assets in any foreign investments that may require the 
execution of a foreign exchange transaction by Deutsche Bank or its 
affiliate as subcustodian, Deutsche Bank or its affiliate provides the 
independent fiduciary of a client plan, the independent fiduciary of an 
in-house plan, the independent fiduciary of a large pooled fund, the 
independent fiduciary of an unrelated pooled fund, or the receiving 
fiduciary of a small pooled fund, a written notice (which may be 
effected electronically) that includes the following:
    (1) The reasons why Deutsche Bank or its affiliate may consider a 
particular market to be an appropriate investment for the plan or 
pooled fund.
    (2) The factors considered by Deutsche Bank or its affiliate in its 
selection of global custodian (if applicable) including: (i) the 
identity of the global custodian; and (ii) a summary of the global 
custodian's policies and procedures regarding the handling of foreign 
exchange transactions for plans or pooled funds with respect to which 
Deutsche Bank or its affiliate is a fiduciary and the factors that the 
global custodian considers in its selection of a subcustodian.
    (3) Notice that such foreign exchange transaction may be executed 
by Deutsche Bank or its affiliate as subcustodian, at the direction of 
a global custodian.
    (4) A list of the markets in which plans or pooled funds may invest 
where Deutsche Bank or its affiliate serves as a subcustodian.
    (5) A list of the markets where currency transactions are executed 
by a subcustodian, to the extent known.
    (6) Notice that Deutsche Bank or its affiliate maintains records 
(described in Section IV), and such records are reasonably available at 
their customary location for examination in the U.S., during normal 
business hours, by the responsible reviewing individual, the 
independent fiduciary of a client plan, the independent fiduciary of an 
in-house plan, the independent fiduciary of a large pooled fund, the 
independent fiduciary of an unrelated pooled fund, or the receiving 
fiduciary of a small pooled fund, any participant or beneficiary of 
such plan or pooled fund, or any duly authorized employee or 
representative of such participant or beneficiary.
    (7) Copies of the notice of proposed exemption and the grant of 
final exemption with respect to the subject transactions.
    (b) If the independent fiduciary fails to object in writing to 
Deutsche Bank or its affiliate within 30 days following receipt of the 
information described in section III(a) by such fiduciary, then such 
fiduciary's authorization of the arrangement contemplated under this 
exemption shall be presumed.
    (c) Deutsche Bank or its affiliate shall provide notification of 
any changes to the information required by Section III, including, but 
not limited to, the situation where Deutsche Bank or its affiliate 
replaces the global custodian with another independent entity or where 
there are changes in the markets in which currency transactions are 
executed by the subcustodian. If the independent fiduciary fails to 
object in writing to Deutsche Bank or its affiliate within 30 days 
following disclosure of such changes, such fiduciary's approval of 
these changes shall be presumed.

Section IV. Recordkeeping Requirements

    (a) Deutsche Bank or its affiliate maintains, or causes to be 
maintained, for a period of six years from the date of the covered 
transactions, the following records, as well as any records necessary 
to enable the persons described in paragraph (c) of this

[[Page 39160]]

Section IV, to determine whether the conditions of this exemption have 
been met:
    (1) The account name,
    (2) The foreign exchange transaction execution date,
    (3) The exchange rate,
    (4) The high and low on Reuters or similar independent service on 
the date of the transaction,
    (5) The identity of the foreign currency sold or purchased,
    (6) The amount of foreign currency sold or purchased,
    (7) The amount of U.S. dollars exchanged, where the exchange is 
between foreign currencies and U.S. dollars or the amount of foreign 
currency exchanged, where the exchange is between two foreign 
currencies, and
    (8) The annual report described in Section II(l).
    (b) The following are exceptions to paragraph (a) of this Section 
IV:
    (1) If the records necessary to enable the persons described in 
paragraph (c) to determine whether the conditions of the exemption have 
been met are lost or destroyed, due to circumstances beyond the control 
of Deutsche Bank, then no prohibited transaction will be considered to 
have occurred solely on the basis of the unavailability of those 
records; and
    (2) No party in interest, other than Deutsche Bank, 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 (c) below.
    (c)(1) Except as provided in paragraph (c)(2) of this Section IV 
and notwithstanding the provisions of subsections (a)(2) and (b) of 
section 504 of the Act, the records referred to above in paragraph (a) 
of this Section IV are unconditionally available for examination during 
normal business hours at their customary location to the following 
persons or an authorized representative thereof:
    (i) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service (the Service);
    (ii) The independent fiduciary of a client plan, the independent 
fiduciary of an in-house plan, the independent fiduciary of a large 
pooled fund, the independent fiduciary of an unrelated pooled fund, or 
the receiving fiduciary of a small pooled fund, or
    (iii) Any participant or beneficiary of such plans or pooled funds 
or any duly authorized employee or representative of such participant 
or beneficiary.
    (2) None of the persons described above in paragraphs (ii) and 
(iii) of this paragraph (c)(1) of this Section IV shall be authorized 
to examine trade secrets of Deutsche Bank, or any commercial or 
financial information, which is privileged or confidential.

Section V. Definitions

    For purposes of this proposed exemption,
    (a) The term ``Deutsche Bank'' means Deutsche Bank AG.
    (b) An ``affiliate'' of Deutsche Bank means any domestic or foreign 
bank or broker-dealer directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with Deutsche Bank;
    (c) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (d) The term ``bank'' means a bank as defined in section 202(a)(2) 
of the Investment Advisers Act of 1940 (the Investment Advisers Act), 
or an institution that has substantially similar powers to a bank 
defined in section 202(a) of the Investment Advisers Act, and is --
    (i) Supervised by the United States or a State;
    (ii) Supervised and examined by the German banking authorities, or 
monitored and controlled pursuant to the statutory and regulatory 
standards of German law; or
    (iii) Subject to regulation and oversight by governmental entities 
that are substantially similar to the regulatory oversight of banks 
present in the United States.
    (e) The term ``broker-dealer'' means a broker-dealer registered 
under the Securities Exchange Act of 1934, or is engaged in the 
business of effecting transactions in securities for the account of 
others, and is --
    (i) Registered and regulated under the relevant securities laws of 
the United States;
    (ii) Registered and regulated under the relevant securities laws of 
Germany; or
    (iii) Registered and regulated under the relevant securities laws 
of a country with securities laws that are substantially similar to the 
securities laws governing broker-dealers in the United States.
    (f) The term ``global custodian'' means a bank or broker-dealer 
that is unrelated to Deutsche Bank or its affiliate, which is selected 
by (1) The named fiduciary of a client plan; (2) the sponsor (other 
than Deutsche Bank or its affiliate) of an unrelated pooled fund; (3) 
Deutsche Bank or its affiliate in the case of an in-house plan; or (4) 
Deutsche Bank or its affiliate in the case of a pooled fund established 
by Deutsche Bank or an affiliate, for the purpose of holding and 
safeguarding all assets of the client plan, in-house plan, or pooled 
fund, physically or through a depository, through its branches or 
through its subcustodian network.
    (g) The term ``subcustodian'' means a bank or broker-dealer, 
selected by a global custodian, to hold and safekeep designated assets 
of the plan or pooled fund at securities depositories, foreign clearing 
agencies or other entities which act as securities depositories, and to 
execute foreign exchange transactions and income item conversions. A 
subcustodian has no contractual relationship with the global 
custodian's clients, but only with the global custodian.
    (h) The term ``responsible reviewing individual'' means a senior 
official appointed by Deutsche Bank who has at least 10 years 
experience with the fiduciary responsibility provisions of the Act, and 
appropriate compliance training. Such person is appointed by Deutsche 
Bank to review a sample of the covered transactions periodically, but 
no less frequently than on an annual basis, in order to ensure 
compliance with the terms of the exemption on behalf of a client plan 
an in-house plan, or a pooled fund.
    (i) The term ``in-house plan'' means a plan sponsored by Deutsche 
Bank or any person that directly or indirectly, through one or more 
intermediaries, controls or is controlled by, or is under common 
control with, Deutsche Bank.
    (j) The term ``client plan'' means an employee benefit plan, other 
than a plan sponsored by Deutsche Bank, as described in section 3(3) of 
the Act or section 4975(e)(1) of the Code with respect to which 
Deutsche Bank or its affiliate acts as a fiduciary having full 
investment discretion.
    (k) The term ``pooled fund'' means a collective investment fund or 
a pooled arrangement established for investment on behalf of two or 
more unrelated employee benefit plans by Deutsche Bank or an affiliate 
or by a fund sponsor other than Deutsche Bank or an affiliate for which 
Deutsche Bank or its affiliate acts as fiduciary with full investment 
discretion. The assets of a pooled fund may include the assets of (i) 
Client plans, (ii) in-house plans of Deutsche Bank or an affiliate, 
(iii) other pooled funds in which Deutsche Bank or an affiliate is not 
the fund sponsor, and (iv) other pooled funds in which Deutsche Bank or 
an affiliate is the fund sponsor.
    (l) The term ``large pooled fund'' refers to a pooled fund that is 
sponsored

[[Page 39161]]

and managed by Deutsche Bank or an affiliate. A large pooled fund may 
include the assets of (i) Client plans, (ii) in-house plans of Deutsche 
Bank or an affiliate, (iii) other pooled funds in which Deutsche Bank 
or an affiliate is not the fund sponsor, and (iv) other pooled funds in 
which Deutsche Bank or an affiliate is the fund sponsor. In a large 
pooled fund, the total invested assets of an in-house plan (or in-house 
plans), if aggregated (whether invested directly or indirectly through 
another pooled fund), represent more than 20% of the total invested 
assets of such fund. Also, in a large pooled fund, Deutsche Bank will 
appoint an independent fiduciary, as described in Section V(o) below, 
to represent the interests of all plans investing in such fund.
    (m) The term ``small pooled fund'' refers to a pooled fund that is 
sponsored and managed by Deutsche Bank or an affiliate. A small pooled 
fund may include the assets of (i) Client plans, (ii) in-house plans of 
Deutsche Bank or an affiliate, (iii) other pooled funds in which 
Deutsche Bank or an affiliate is not the fund sponsor, and (iv) other 
pooled funds in which Deutsche Bank or an affiliate is the fund 
sponsor. In a small pooled fund, the total invested assets of an in-
house plan (or in-house plans), if aggregated (whether invested 
directly or through another pooled fund), represent less than 20% of 
the total invested assets of such fund.
    (n) The term ``unrelated pooled fund'' refers to a pooled fund that 
is not sponsored by Deutsche Bank or an affiliate, but is managed by 
either of these entities.
    (o) The term ``independent fiduciary'' means --
    (1) In the case of a client plan or an unrelated pooled fund, a 
plan fiduciary or the named fiduciary of a pooled fund that is 
unrelated to, and independent of, Deutsche Bank and it affiliates. For 
purposes of this exemption, a plan fiduciary will be deemed to be 
unrelated to, and independent of, Deutsche Bank if such fiduciary 
represents that neither such fiduciary, nor any individual responsible 
for the decision to authorize or terminate authorization for the 
transactions described in Section I, is an officer, director, or highly 
compensated employee (within the meaning of section 4975(e)(2)(H) of 
the Code) of Deutsche Bank and represents that such fiduciary must 
advise Deutsche Bank or its affiliate if those facts change, or
    (2) In the case of an in-house plan or a large pooled fund, an 
individual or company is unrelated and independent of Deutsche Bank and 
its affiliates if such individual or company has at least 10 years 
experience in the financial services business and significant 
experience in foreign currency trading and pricing who certifies that 
the gross income received from Deutsche Bank and its affiliates for the 
current year does not exceed 5% of such fiduciary's gross income from 
all services for the prior fiscal year. The independent fiduciary 
represents that such fiduciary is aware of its ERISA duties and 
responsibilities in acting as a fiduciary with respect to an in-house 
plan and the covered transactions.
    (3) Notwithstanding anything to the contrary in this Section V(o), 
a plan fiduciary is not independent if--
    (i) Such fiduciary directly or indirectly controls, is controlled 
by, or is under common control with Deutsche Bank, other than described 
herein;
    (ii) Such fiduciary directly or indirectly receives any 
compensation or other consideration from Deutsche Bank for his own 
personal account in connection with any transaction described in this 
exemption in excess of the 5 percent gross income limitation set forth 
in Section V(o)(2) above;
    (iii) Any officer, director or highly compensated employee (within 
the meaning of section 4975(e)(2)(H) of the Code) of Deutsche Bank or 
an affiliate responsible for the transactions described in Section I is 
an officer, director or highly compensated employee (within the meaning 
of section 4975(e)(2)(H) of the Code) of the client plan sponsor, the 
sponsor of an unrelated pooled fund, or of the fiduciary responsible 
for the decision to authorize or terminate authorization for 
transactions described in Section I. However, if such individual is a 
director of the client plan sponsor, the sponsor of an unrelated pooled 
fund, or of the responsible fiduciary, and if he or she abstains from 
participation in (A) the choice of Deutsche Bank or an affiliate as the 
investment manager/adviser for the client plan or unrelated pooled fund 
and (B) the decision to authorize or terminate authorization for 
transactions described in Section I, then Section V(o)(3)(iii) shall 
not apply.
    (p) The term ``officer'' means a president, any vice president in 
charge of a principal business unit, division or function (such as 
sales, administration or finance), or any other officer who performs a 
policy-making function for the entity.
    (q) The term ``receiving fiduciary'' means a person or entity in a 
small pooled fund who is designated to receive the disclosures 
described in Sections III and IV above, for dissemination to the 
fiduciaries of plans or other pooled funds participating in such small 
pooled fund.
    (r) The term ``foreign exchange'' transaction means the exchange of 
the currency of one nation for the currency of another nation.
    (s) The term ``less developed currencies'' means those currencies 
in which the global custodian does not make a market at the time of the 
transaction and in which the global custodian determines to purchase 
from or sell to the plan's or pooled fund's local subcustodian on 
behalf of a plan or pooled fund because the currency is difficult to 
trade, undeveloped or the subject of local government restrictions, or 
because of the volatility or lack of liquidity in the market at the 
time of the transaction. The term ``less developed currencies'' does 
not include the following currencies: the Euro; the British pound; the 
Swiss franc, the Canadian dollar; or the Japanese yen.
    (t) The term ``trade-related currency conversion'' means the 
conversion of trade-related items (i.e., amounts necessary for 
purchases or proceeds from sales) into foreign currency or into U.S. 
dollars in order to permit purchase transactions to settle, and to 
permit proceeds of sales to be deployed in other investments or to be 
used to make distributions.
    (u) The term ``income item conversions'' means the conversion of 
income items (e.g., interest, dividends, tax reclaims or other 
distributions) denominated in a foreign currency into U.S. dollars or 
another foreign currency.
    Effective Date: If granted, this proposed exemption will be 
effective as of the date the proposed exemption is published in the 
Federal Register.

Summary of Facts and Representations

Deutsche Bank

    1. Deutsche Bank is a German banking corporation and commercial 
bank, which provides a wide range of services to various types of 
entities worldwide. Deutsche Bank is a financial institution that in 
2006 managed approximately $716 billion in assets either through 
collective trusts, separately managed accounts or mutual funds. 
Deutsche Bank's asset management clients include a number of employee 
benefit plans covered by the Act, either in:
    (a) Separately managed accounts, where the plan sponsor, and not 
the Applicant selects the global custodian, (b) pooled funds, where the 
fund sponsor, and not the Applicant selects the global custodian, and 
(c) pooled funds where the Applicant selects the global custodian, or 
(d) for its own plans, where the Applicant selects the global 
custodian.

[[Page 39162]]

Regulatory Authority

    2. The Applicant states that it is subject to a comprehensive 
system of regulatory oversight and a mandatory insurance program. With 
respect to the regulatory and supervisory requirements applicable to 
Deutsche Bank, the Applicant states that Deutsche Bank, its branches, 
and its subsidiary banks worldwide are subject to regulatory 
requirements and protections that are, qualitatively, at least equal to 
those imposed on U.S.-domiciled banks.\2\ Within the United States, the 
New York branch of Deutsche Bank and Deutsche Bank Trust Company 
Americas are regulated and supervised by the New York State Banking 
Department. In addition, certain activities of Deutsche Bank's New York 
branch and Deutsche Bank Trust Company Americas (the trustee of ERISA-
covered bank collective trusts) are regulated and supervised by the 
Federal Reserve Bank of New York. Deutsche Asset Management Inc. and 
Deutsche Investment Management Americas Inc. are investment advisers 
registered under the Investment Advisers Act of 1940 and supervised by 
the Securities and Exchange Commission. With respect to Deutsche Bank 
itself, globally, the bank is regulated and supervised by the 
Bundesanstalt f[uuml]r Finanzdienstleistungsaufsicht (the BAFin), in 
cooperation with the Bundesbank. The BAFin is a federal institution 
with ultimate responsibility to the German Ministry of Finance. The 
Bundesbank, in turn, is the central bank of the Federal Republic of 
Germany and a part of the European Central Banks.
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    \2\ In support of this, the Applicant notes that the U.S. 
Department of Treasury has accorded national treatment to German 
bank branches, and the German Ministry of Finance has granted relief 
to branches of U.S. banks in Germany, in particular with respect to 
``dotation'' or endowment capital requirements and capital adequacy 
standards.
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    3. The Applicant states that the BAFin requires that it have 
procedures for monitoring and controlling its worldwide activities 
through the implementation of various statutory and regulatory 
standards. Among those standards are requirements for adequate internal 
controls, oversight, administration, and financial resources. The BAFin 
reviews compliance with these operational and internal control 
standards through an annual audit performed by the year-end auditor and 
through special audits ordered by the BAFin. In addition to the 
regulatory and supervisory arrangements described above, the Applicant 
states that Deutsche Bank and its foreign branches are covered under a 
mandatory deposit insurance program.\3\ According to the Applicant, 
this insurance program is maintained by an institution separate from 
Deutsche Bank and is supervised by the BAFin. The program insures 
deposits denominated in the currency of a European Economic Area member 
state up to the lesser of 90 percent of the deposit amount or 20,000 
Euros.
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    \3\ The Applicant states that, in addition, Deutsche Bank and 
its foreign branches are covered by a voluntary deposit protection 
program called the Deposit Protection Fund that safeguards 
liabilities in excess of the thresholds guaranteed by the European 
Union Program discussed above.
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Request for Exemptive Relief

    4. The Applicant seeks an exemption to permit plans, either 
directly or through pooled arrangements, to engage in certain trade-
related and income-related foreign exchange transactions through 
subcustodians selected by unaffiliated global custodians in connection 
with a determination by Deutsche Bank and its affiliates to invest 
assets of a client plan, an in-house plan or a pooled fund in foreign 
securities. As described below, in some cases, the subcustodians 
selected by such global custodian will be Deutsche Bank and its current 
and future affiliates. The Applicant notes that the requested exemption 
would not apply to foreign exchange transactions for reasons other than 
trade-related currency conversions, or income item conversions. If 
granted, the exemption would be effective as of the date the notice of 
proposed exemption is published in the Federal Register.

Global Strategy

    5. As noted above, Deutsche Bank acts as an investment manager to 
numerous plans, many of which are managed in a global strategy. In such 
strategies, each time a transaction is entered into, or income on held 
securities is received, a foreign exchange transaction is required. For 
example, if the investment manager decides to invest plan assets in a 
Japanese security, a trade-related currency conversion is required to 
convert the plan's U.S. dollars into the amount of Japanese yen 
required to purchase the security and settle the transaction. 
Similarly, each time a Japanese fixed income instrument pays interest 
(generally, semiannually or quarterly), that payment, which is made in 
yen, will generally be converted back to U.S. dollars.
    6. The Applicant states that in well-developed markets, such as the 
one described above, there are many banks and broker-dealers with which 
the investment manager can effect transactions involving foreign 
currency. In addition, the Applicant states there is little difficulty, 
either from a price or a settlement perspective, in doing so, with 
respect to freely traded currencies, such as the British pound, the 
Euro, and the Japanese yen. The Applicant represents that in effecting 
foreign exchange transactions in well-developed markets for an account, 
the investment manager generally has two options: (a) to send the 
transaction to the account's global custodian, in which case the 
transactions are generally effected at the global custodian's own 
proprietary desk in the U.S. or at the global custodian's London 
branch; or (b) to find a counterparty to effect the transaction, other 
than the account's global custodian.
    7. The Applicant states that the choices differ somewhat with 
respect to emerging markets, which include much of Central and South 
America, Africa, and Asia.\4\ According to the Applicant, in markets 
where currency is hard to trade, undeveloped, or subject to local 
restrictions, the investment manager still chooses between routing the 
trade to its global custodian, or locating another counterparty, if it 
can find a counterparty with adequate credit and performance. In many 
instances, an investment manager cannot locate a counterparty of its 
own, and these instances generally occur in the same less developed 
currencies where the global custodian is unable or unwilling to make a 
market in that currency and instead will usually rely on a subcustodian 
in the applicable market, which may be the Applicant's affiliate. With 
respect to the option of locating another counterparty, the Applicant 
states that the investment manager would need to locate a local bank or 
broker-dealer in the applicable market, open a trading account after 
investigating the bank or broker-dealer's credit, and would then trade 
directly with that bank or broker-dealer, while relying on the global 
custodian to settle both the securities transaction and the foreign 
exchange transaction.
---------------------------------------------------------------------------

    \4\ The list of emerging market currencies may change from time 
to time, as conditions change in the world market. For example, 
during recent years, the Argentine peso has transitioned back and 
forth from being freely traded to restricted.
---------------------------------------------------------------------------

    8. According to the Applicant, in markets where the currency is 
illiquid, or the penalties for transaction failure are severe, an 
investment manager generally does not attempt to locate a counterparty 
in the local market. Rather, the Applicant believes that it is very 
often the practice of investment managers to send foreign exchange 
transactions to the global custodian for execution, to obtain more 
certainty that

[[Page 39163]]

the underlying securities transaction, with its foreign exchange 
component, will settle in a timely fashion.\5\ The Applicant states 
that not doing so raises the risk that the entire transaction will fail 
because the currency transaction becomes separated from the securities 
transaction in a market that is either very manual or where the 
settlement period is very short. The Applicant represents that where 
the penalty for failure is thousands of dollars or a suspension of 
one's license to trade, it is particularly important that an asset 
manager take all steps possible to avoid settlement failure.
---------------------------------------------------------------------------

    \5\ When trades are routed to the global custodian, it becomes 
responsible for ensuring that the subcustodian settles both the 
foreign exchange conversion, and the underlying transaction.
---------------------------------------------------------------------------

Global Custody/Subcustody Arrangements

    9. The Applicant states that each plan generally appoints a 
``global custodian'' other than Deutsche Bank or its affiliate to hold 
and safekeep plan assets. A global custodian is typically a bank or 
trust company, selected by an independent plan fiduciary for a client 
plan, a sponsor of an unrelated pooled, or Deutsche Bank as asset 
manager for an in-house plan or a pooled fund. The Applicant further 
explains that assets are held either by the global custodian itself, or 
through a nominee, physically, or through a depository, in the United 
States or outside of the United States, through its branches or through 
its subcustody network, which generally consists of foreign banks or 
branches of U.S. banks, including its own branches. Accordingly, the 
Applicant states that even though Deutsche Bank or its affiliates, as 
trustee, may choose the global custodian in the case of a collective 
investment fund or other pooled fund it sponsors (rather than an 
independent fiduciary of a client plan, in the case of a separately 
managed account), the reasons for preferring conversion through one's 
global custodian are precisely the same for both types of accounts.\6\
---------------------------------------------------------------------------

    \6\ Deutsche Bank represents that since 2003, it has not acted 
as global custodian for plans.
---------------------------------------------------------------------------

    10. The Applicant explains that a subcustodian is generally a bank 
or trust company, foreign or domestic, which is selected by a global 
custodian, to hold and safekeep designated assets of the plan, 
including in its own name, at securities depositories, or at foreign 
clearing agencies or other entities which act as securities 
depositories. The Applicant states that a subcustodian has no 
contractual relationship with the global custodian's clients (i.e., 
plans or other accounts), but only with the global custodian.
    11. According to the Applicant, one of the most important functions 
of a global custodian is to provide a foreign exchange facility for its 
customers, either through a central global trading desk, for readily 
tradable currencies, or through its subcustody network, for less 
developed currencies. The Applicant represents that, in all cases where 
it acts as investment manager for plan assets, a global custodian is 
solely in charge of selecting its subcustody network. The Applicant 
further represents that it is the responsibility of the global 
custodian to monitor its subcustodians on all performance and credit 
issues. Generally, the asset manager for an account (or the trustee for 
a collective investment fund) has no direct contact at all with the 
subcustodian.
    12. With respect to selection of subcustodians, the Applicant 
states that a global custodian may have more than one option to choose 
from, and may, in fact, use more than one subcustodian in a market, 
depending on its business needs, but a particular account is only 
subcustodied with one subcustodian (i.e., all the assets of the plan in 
that market are held with one subcustodian). The Applicant represents 
that generally, if the global custodian uses more than one subcustodian 
(i.e., puts some clients with one and some with another, because of 
size, diversification of risk, price competition or credit concerns), 
the choice of which clients are assigned to which subcustodian is made 
by the global custodian, not by the client. However, the Applicant 
notes that it is far more common for a global custodian to have one 
subcustodian. The Applicant states that an account is held at that 
subcustodian, and the investment manager knows its identity, because 
all transactions are settled by the subcustodian, and information 
regarding the subcustodian is required when giving counterparties 
settlement instructions.
    The Applicant explains that a subcustodian is not hired on a 
transaction by transaction basis, but remains the subcustodian for an 
account until the global custodian replaces the subcustodian for that 
entire account.
    The Applicant represents that a subcustodian's relationship with 
the global custodian is generally governed by a standard contract which 
the global custodian presents to all of its subcustodians. Client 
accounts are not parties to the contract.
    13. The Applicant represents that it has no control or input with 
respect to the subcustodians selected by a global custodian or the 
procedures the global custodian uses in making such selections. 
Therefore, the decision to select Deutsche Bank or its affiliate as 
subcustodian by the global custodian, and any foreign exchange 
transactions executed by Deutsche Bank or its affiliate at the 
direction of the global custodian, are not part of an understanding, 
arrangement, agreement, written or otherwise, designed to benefit 
Deutsche Bank, its affiliates or another party in interest.\7\ 
Furthermore, the decision to invest in a market and to select Deutsche 
Bank or its affiliates as asset manager is part of an investment 
strategy that is adopted by an independent fiduciary of a client plan, 
an independent fiduciary of an in-house plan, an independent fiduciary 
of a large pooled fund, or an independent fiduciary of an unrelated 
pooled fund.
---------------------------------------------------------------------------

    \7\ The Applicant notes that Deutsche Bank asset management 
division is separate from the Deutsche Bank's custody division, and 
this condition does not preclude the custody division from marketing 
its services to the global custodian.
---------------------------------------------------------------------------

    For example, the Applicant states that even in a market where more 
than one subcustodian is available, assume that the global custodian 
has a choice between using the Applicant's affiliate, Large 
International Bank X, and several local banks. The Applicant explains 
that if the global custodian preferred to select the Applicant's 
affiliate due to past experience with the other banks, transaction 
costs, each bank's credit rating, or other factors, the global 
custodian may select the Applicant's affiliate. The Applicant states 
that the global custodians use their own internal procedures and 
safeguards to select subcustodians for their clients, including any 
plans for which Deutsche Bank or its affiliate may serve as a trustee, 
investment manager, fiduciary or other party in interest. The Applicant 
represents that, in selecting a global custodian, the trustee would 
generally look at such factors as price (including the cost of 
transactions inside and outside of the network, reputation, the size of 
the global custodian's subcustody network, the number of markets in 
which the global custodian has subcustodians, the number of markets 
where interest is credited overnight, the global custodian's error rate 
and responsiveness, the number and performance of cash sweep vehicles 
offered by the global custodian, the global custodian's securities 
lending program, and the technology used by the global custodian and 
its subcustodians, among many other considerations.

[[Page 39164]]

Trade-Related Currency Conversions

    14. The Applicant seeks relief with respect to certain trade-
related foreign exchange transactions in markets with less developed 
currencies or in restricted markets. Specifically, Deutsche Bank is 
requesting that the proposed exemption apply to situations where 
Deutsche Bank (or its current or future affiliates) act as an 
investment manager to a plan or pooled fund, and the plan or pooled 
fund engages in certain trade-related currency conversions with the 
Applicant (or its affiliate), acting as a subcustodian with respect to 
the assets involved in the transaction. The Applicant notes that the 
requested relief would only apply to those currencies where the global 
custodian does not itself make a principal market in the currency and 
where the global custodian has selected a Deutsche Bank affiliate as 
subcustodian and sends client trades to that subcustodian.
    15. According to the Applicant, trade-related currency conversions 
may be necessary in several situations. For example, the Applicant 
states that where plan assets managed by the Applicant or its affiliate 
are subcustodied with its affiliate, exemptive relief is necessary for 
such transactions to take place, because Prohibited Transaction 
Exemption (PTE) 98-54 (63 FR 63503, November 13, 1998) does not provide 
relief for managed accounts, or for the Applicant's foreign affiliates. 
PTE 98-54 requires that, in a purchase or sale transaction between a 
bank and a plan, the bank (or any domestic affiliate thereof) must be 
``supervised by the United States or a State thereof.'' The Applicant 
further notes that, when operating outside the United States, Deutsche 
Bank is not supervised by a State or by the United States.
    The Applicant represents that trade-related currency conversions 
are necessary with respect to both well-developed and less developed 
currencies. However, in the absence of the requested relief, asset 
management in emerging markets is nearly impossible to undertake where 
the global custodian has selected a Deutsche Bank affiliate as 
subcustodian. As the Applicant describes above, in order for a plan to 
purchase a foreign security or other investment, it is often necessary 
to make a trade-related currency conversion in order to facilitate the 
purchase transaction. In addition, the Applicant states that such 
currency conversions may be necessary for purposes of investing sales 
proceeds in other investments, or for making distributions of such 
proceeds. According to the Applicant, in cases where the manager wants 
to avoid currency risk, or to convert funds to a different currency to 
experience higher returns (such as a conversion from foreign currency 
to U.S. dollars, in order to experience higher returns available on a 
U.S. investment), it is important that the investment manager be able 
to convert available funds quickly.
    16. The Applicant states that there are generally no additional 
fees added to transactions executed within a global custodian's 
subcustody network, while additional charges are often incurred for 
transactions done outside that network. The Applicant represents that 
those additional fees may make the currency conversion transaction 
disadvantageous to the plan for still another reason--price. In 
addition, the Applicant represents that, because the subcustodian 
generally receives significant transaction flow from the global 
custodian, which is also monitoring rates and performance, it is more 
likely that the rates provided by the subcustodian will be at least as 
good as might be available from a local bank or broker-dealer outside 
the global custodian's network. While the Applicant is not a global 
custodian and cannot describe each global custodian's practices, the 
Applicant believes that it is customary for all custody client trades 
to be forwarded to a subcustodian at the same time, and for the trades 
to be executed at the same rate as other trades received by the 
subcustodian at approximately the same time. The Applicant notes that 
confirmations of the transactions do not always reflect where the 
foreign exchange trade was executed. The investment manager generally 
does not know the rate before a foreign exchange trade is executed, and 
the manager may know the range in which it will fall and will approve 
that range. The Applicant states that the investment manager is advised 
of the rate late in the day for western hemisphere trades, and the next 
morning for the eastern hemisphere. The Applicant further represents 
that these rates can be verified using Reuters or a similar service.
    17. According to the Applicant, in effecting foreign exchange 
transactions, the investment manager would generally rely on PTE 84-14 
(49 FR 9494, March 13, 1984), or PTE 91-38 (67 FR 9483, March 1, 2002). 
However, the Applicant states that neither exemption is available where 
the trade is routed to a subcustodian who is an affiliate of the 
Applicant. Thus, the Applicant seeks relief for foreign exchange 
transactions where its affiliate is selected by a global custodian. The 
Applicant states that not only does the investment manager have no 
control over the global custodian's selection of subcustodians, but it 
also cannot control which currencies a global custodian chooses to deal 
in, which impacts whether the global custodian has to send the foreign 
exchange transactions to its subcustodian in a particular market. The 
Applicant further states that the investment manager is not necessarily 
advised when a currency is added to the global custodian's dealing 
desk, or deleted from it.

Income-Related Transactions

    18. The Applicant also seeks relief, with respect to certain 
income-related foreign exchange transactions. The covered transactions 
for which the Applicant requests relief also involve the Applicant or 
its affiliate, as investment manager for a plan or pooled fund, causing 
such plan or pooled fund to engage in foreign exchange transactions 
with the Applicant's affiliates, who may be acting as subcustodian for 
the assets involved in the transaction. Specifically, the Applicant is 
requesting an exemption that would apply to income item conversions in 
all currencies, which would not be covered by PTE 98-54, for the same 
reasons that the exemption does not apply to trade-related foreign 
exchange transactions. The Applicant explains that as with trade-
related transactions, an income-related transaction is not itself an 
investment, but is an integral component of a plan's or pooled fund's 
foreign investment activities.
    19. The Applicant states that the purpose of income-related 
transactions is to convert income items, such as interest, dividends, 
tax reclaims, and other distributions, either from foreign currency 
into U.S. dollars, or into another foreign currency. For example, the 
Applicant states that the manager may wish to convert dividend income 
to U.S. dollars to permit reinvestment, to enhance the plan's 
liquidity, or because the earnings on U.S. dollar cash equivalents are 
higher than the potential earnings on foreign cash equivalents. As with 
trade-related foreign exchange transactions, conversion may also be 
desirable to avoid currency risk with respect to income items.
    20. According to the Applicant, global banks typically repatriate 
income through a process called ``auto-repatriation,'' which minimizes 
the time that income receipts are held in foreign currency. The 
Applicant states that an account owner (such as a plan sponsor) would 
choose to use this process at the

[[Page 39165]]

inception of its relationship with a global custodian, or its 
investment manager would select auto-repatriation instead, at the time 
that it commences its investment management responsibilities for the 
account. The Applicant notes that disclosure regarding the auto-
repatriation process is generally found in the service level agreements 
provided to customers by a global custodian.
    Deutsche Bank further describes the typical auto-repatriation 
process as follows:

    A global custodian using the auto-repatriation process contracts 
with a third-party vendor that electronically alerts the global 
custodian to expected income payments in all global fixed income and 
equity securities. Generally, that notice is received in advance of 
the expected income payment date. The global custodian's 
recordkeeping system, which is linked to the information feed, 
creates an ``income map,'' or list of all the accounts (whether plan 
accounts or not) that hold the security with respect to which an 
income payment is expected, and the amount of the expected payment 
in the foreign currency for each account. A ``pending transaction'' 
for the income receipt is created, and the income map aggregates all 
accounts expecting that income payment and the total income expected 
for the entire custody client base of the global custodian. The 
aggregate amount of expected foreign income is sent either to the 
global custodian's own foreign exchange desk (in the case of 
developed currencies) or to the subcustodian (in the case of 
emerging markets or less-developed currencies). In addition, 
unexpected income items, such as tax reclaims, are also aggregated 
by currency, bundled with income trades involving non-plan clients 
of Deutsche Bank, and promptly executed and each aggregated account 
receives the same foreign exchange prices as all other accounts.

    21. Deutsche Bank believes that many cash management programs 
automatically sweep idle U.S. dollar balances to their designated sweep 
vehicle at the end of each day. Therefore, the Applicant represents 
that automatic repatriation allows the account to experience no delay 
or gap in earning income on the U.S. dollar equivalent of their income 
payments. The Applicant opines that this is particularly beneficial in 
countries where either no interest is credited on foreign balances or 
where the interest credited on the foreign currency balance is 
relatively low compared to the rate of interest credited on U.S. dollar 
balances.
    The Applicant further represents that auto-repatriation also 
minimizes the delays inherent in executing income transactions on a 
piecemeal basis, so that plans are able to realize investment returns 
on income more quickly. The Applicant states that generally, foreign 
income trades do not settle until 2 days after the trade date. Thus, if 
auto-repatriation is not used, the investment manager must wait for 
foreign income to be received into a plan account, where the manager 
will actually see the income appear on the next day. According to the 
Applicant, before acting, the investment manager must first determine 
whether the amount of the foreign income payment is large enough to 
trade. If so, the trade will be executed, but not settled until 2 days 
after the trade date. Therefore, the Applicant states that the account 
would receive lower interest (or no interest) on foreign income for up 
to 3 days after the foreign income payment is made. A longer delay may 
result where the income payment is not large enough to trade (e.g., 
because, due to the amount of income involved, the transaction costs 
would exceed the amount of the income receipt).
    In contrast, the Applicant represents that when auto-repatriation 
is used, the expected amount of income is sent to the global custodian 
or subcustodian before settlement and is aggregated with other income 
payments. As a result, the Applicant explains that income-related 
trades are completed quickly and the account (including plan accounts) 
begins to earn interest on funds as soon as possible.
    22. As with trade-related foreign exchange transactions, the 
Applicant states that participation in auto-repatriation may cause plan 
assets which are managed by Deutsche Bank or its affiliate to be routed 
to an affiliate of Deutsche Bank which acts as a subcustodian for the 
plan. Thus, the Applicant represents that if a plan holds an investment 
in an emerging market, and the investment produces an income item in 
that market's currency, auto-repatriation of the income item to U.S. 
dollars may result in the conversion trade being directed to an 
affiliate of Deutsche Bank, through the global custodian's auto-
repatriation system.
    23. The Applicant explains that the direction of trades to an 
affiliate through auto-repatriation is not something that Deutsche Bank 
can control, nor would Deutsche Bank necessarily know about it in 
advance of the trade. Therefore, the Applicant states that the only way 
to prevent these transactions is for the plan not to repatriate income 
items using this process. The Applicant represents that, as a result, 
income items would have to be converted separately, most likely at a 
significant added cost to plans.
    24. According to the Applicant, the inability to be part of the 
automatic income processing system may also have an unintended effect 
on the global cash management system. The Applicant represents that 
most plans rely on their global custodian's deposits or its 
subcustodian deposits for overnight interest in a particular currency. 
To the extent that the economics and the inefficiencies of doing small 
income trades are reasons to leave foreign currency amounts 
unconverted, the Applicant notes that the transactions which are the 
subject of the exemption would result in more managed money being held 
in deposits of the global custodian or the subcustodian.

Summary of Exemption Request

    25. The Applicant states that the proposed exemption would apply 
solely in the context of a global custodian which selects the 
Applicant's local branch as a subcustodian, in a market where the 
global custodian does not make a market in the local currency and, 
thus, the currency can be deemed to be ``less developed'' based on the 
trading perspective of the global custodian.
    The Applicant represents that the proposed exemption would apply 
only when: (a) A client plan's independent fiduciary or the independent 
trustee of a pooled fund (other than Deutsche Bank or its affiliate) 
has chosen a global custodian which, in turn, selects a Deutsche Bank 
affiliate to act as a subcustodian, or (b) Deutsche Bank or its 
affiliate, as trustee of a pooled fund or for its in-house plans, 
chooses a global custodian which selects a Deutsche Bank affiliate to 
act as a subcustodian. In either case, Deutsche Bank believes that 
exemptive relief under section 406(b) of the Act may be necessary for 
both trade-related and income-related foreign exchange transactions 
effected with its affiliate, if that affiliate is the subcustodian for 
a plan or a pooled fund in an emerging market, and the Applicant is 
aware that transactions for foreign exchange in connection with 
securities or other investment transactions that are sent to the global 
custodian will be effected through the subcustodian.
    With respect to a client plan, the Applicant states that Deutsche 
Bank or its affiliate has no control over the selection of a global 
custodian by the independent fiduciary. Furthermore, the Applicant 
states that Deutsche Bank or its affiliate has no control over: The 
subcustodian chosen by such global custodian; the global custodian's 
arrangements with subcustodians; or the global custodian's processes 
and procedures. Where Deutsche Bank or its affiliate acts as a trustee 
of a pooled fund or where it acts as a fiduciary for

[[Page 39166]]

an in-house plan, the Applicant notes that Deutsche Bank or its 
affiliate selects the global custodian, but has no control over that 
global custodian's subcustody network or arrangements with the 
subcustodians.
    26. The Applicant states that the proposed exemption is beneficial 
to plans because under current law, the only option which the Applicant 
is able to exercise is not to invest plan assets in certain emerging 
markets that have less developed currencies. As a result, the Applicant 
states that the investment opportunities and flexibility available to 
plans or pooled funds clients are severely limited. The Applicant 
represents that it needs to be able to trade in emerging markets for 
plan, or pooled funds, regardless of whom the subcustodian is, so long 
as it is chosen by someone other than the Applicant or its affiliates.
    The Applicant states that the proposed exemption is also beneficial 
to plans or pooled funds because even in markets where another 
subcustodian is available, plans may be faced with higher transaction 
costs. Therefore, using the Applicant's subcustodian may not be an 
option, even if it offers the same rates as other subcustodians. The 
Applicant opines that it is not practical or commercially reasonable to 
require a client plan's global custodian to refrain from using the 
Applicant's affiliates as subcustodians. In addition, the Applicant 
again emphasizes that it does not have the ability to control a global 
custodian from including the Applicant's affiliates in its subcustody 
networks.
    27. The Applicant represents that under the proposed exemption, at 
the time a foreign exchange transaction is entered into, the terms of 
the transaction must be no less favorable to the plan or pooled fund 
than the terms generally available in a comparable arm's length foreign 
exchange transaction between unrelated parties. In addition, the 
exchange rate used for a particular foreign exchange transaction must 
not deviate by more than 3 percent (above or below) the interbank bid 
and asked rates for such currency at the time of the transaction as 
displayed on an independent, nationally-recognized service that reports 
rates of exchange in the foreign currency market for such currency. 
Further, the Applicant states that the transactions must be executed 
with the Applicant or its affiliate through the global custodian, in 
the course of the global custodian's normal transaction processing as 
global custodian. The Applicant states that these conditions are 
intended to ensure that the benefits of and costs to the plan are the 
same as the benefits and costs experienced by other accounts.
    28. The Applicant represents that the proposed exemption would not 
apply to foreign exchange transactions in which the global custodian is 
the Applicant or its affiliate. As noted above, the Applicant states 
that it divested itself of its global custody business in 2003. In all 
cases, the proposed exemption would require that the choice of the 
Applicant or its affiliate as a subcustodian be made by the unrelated 
global custodian, and not by the Applicant or its affiliate.
    29. The proposed exemption also includes a condition that requires 
that the assets of plans and pooled funds for which Deutsche Bank and/
or its affiliates select the global custodian be less than 20 percent 
of the total assets under the global custodian's custody.
    As for other substantive safeguards, the foreign affiliates of 
Deutsche Bank agree to submit to the jurisdiction of the United States; 
agree to appoint a Process Agent in the United States, which may be an 
affiliate; consent to service of process on the Process Agent; agree 
that it may be sued in the United States Courts in connection with the 
covered transactions described in this proposed exemption; agree that 
any judgment on behalf of a plan or pooled fund may be collected in the 
United States from Deutsche Bank by the independent fiduciary to the 
extent applicable; and agree to comply with, and be subject to, all 
relevant provisions of the Act.
    In addition, Deutsche Bank or its affiliate will designate a senior 
official who has at least ten years experience with the fiduciary 
responsibility provisions of the Act and appropriate compliance 
training as the ``responsible reviewing individual.'' Such individual 
will review the covered transactions periodically (but not less 
frequently than on an annual basis) to ensure compliance with the terms 
of the exemption on behalf of a client plan, an in-house plan, or a 
large pooled fund. Following such review, the responsible reviewing 
individual will issue a written report to Deutsche Bank, the 
independent fiduciary of the client plan, the independent fiduciary of 
the in-house plan, the independent fiduciary of the large pooled fund, 
the independent fiduciary of the unrelated pooled fund, or the 
receiving fiduciary of the small pooled fund, within 90 days after the 
period to which the periodic review relates. The report will describe 
the steps performed by the responsible reviewing individual during the 
course of the review, the level of compliance by Deutsche Bank or its 
affiliate with the terms and conditions of the exemption, and any 
specific instances of non-compliance by Deutsche Bank or its affiliate 
with the terms and conditions of the exemption.
    If the findings of the responsible reviewing individual disclose 
that Deutsche Bank or its affiliate has failed to comply with the terms 
and conditions of this exemption with respect to multiple transactions 
executed on an on-going basis, or there has been a material factual 
change to the representations contained in the Summary of Facts and 
Representations of the proposed exemption, the exemption will no longer 
be available as of the date of such noncompliance. In the event the 
exemption is no longer effective, Deutsche Bank may apply for a new 
exemption seeking retroactive relief from the date it comes back into 
compliance, provided that Deutsche Bank: (a) Notifies the Department of 
the period during which it was in noncompliance and the underlying 
facts of such noncompliance, (b) files a Form 5330 with the Service and 
pays all applicable excise taxes, (c) makes the affected plan or pooled 
fund whole if the plan or pooled fund has suffered a loss as a result 
of such noncompliance, and (d) develops and adopts appropriate policies 
and procedures to ensure all future transactions are executed in 
compliance with the terms and conditions of the exemption. In the 
alternative, if the findings of the responsible reviewing individual 
disclose that Deutsche Bank has failed to comply with the terms and 
conditions of this exemption with respect to an isolated transaction, 
the exemption will continue to provide exemptive relief for covered 
transactions apart from the non-recurring transaction as long as 
Deutsche Bank: (a) files a Form 5330 with the Service and pays any 
applicable excise taxes, and (b) makes the affected plan or pooled fund 
whole if the plan or pooled fund has suffered a loss as a result of 
such noncompliance.\8\
---------------------------------------------------------------------------

    \8\ The sole failure of a global custodian to comply with a 
condition of the exemption despite Deutsche Bank's best efforts to 
ensure the global custodian's compliance, shall not result in the 
loss of the exemption with respect to Deutsche Bank provided all 
other conditions have been met.
---------------------------------------------------------------------------

    With respect to the covered transactions, Deutsche Bank will hire 
an independent fiduciary to represent the interests of an in-house plan 
or a large pooled fund. This independent fiduciary will be an 
individual or company that: (a) Is unrelated and independent of 
Deutsche Bank, with at least 10 years experience in the financial 
services business and

[[Page 39167]]

significant experience in foreign currency trading and pricing; (b) 
certifies that the gross income such fiduciary receives from Deutsche 
Bank and its affiliates for the current year does not exceed 5% of such 
fiduciary's gross income from all services for the prior fiscal year; 
and (c) represents that it understands its ERISA duties and 
responsibilities in acting as a fiduciary with respect to the plan(s) 
(or pooled funds) and the covered transactions. The independent 
fiduciary will review the transactions executed under the exemption, 
ask Deutsche Bank questions that it may have regarding such 
transactions, and take appropriate action on behalf of the plans or 
pooled funds if it has concerns about the trades.
    Further, Deutsche Bank or its affiliate will maintain or cause to 
be maintained for a period of six years from the date of the covered 
transactions written records of the transaction to enable persons such 
as: the responsible reviewing individual, independent fiduciaries of 
client plans, independent fiduciaries in-house plans, independent 
fiduciaries of large pooled funds, independent fiduciaries of unrelated 
pooled funds, receiving fiduciaries of small pooled funds, 
participants, or representatives of the Department or the Service to 
determine whether the conditions of the exemption have been met. Such 
written records include: (a) The account name; (b) the foreign exchange 
transaction execution date; (c) the exchange rate; (d) the high and low 
on Reuters or similar service on the date of the transaction; (e) the 
identity of the foreign currency sold or purchased; (f) the amount of 
foreign currency sold or purchased; (g) the amount of U.S. dollars 
exchanged, where the exchange is between foreign currencies and U.S. 
dollars or the amount of foreign currency exchanged, where the exchange 
is between two foreign currencies; and (h) the annual report issued by 
the responsible reviewing individual.
    30. Additionally, the proposed exemption includes a requirement 
that prior to the investment of a plan's or pooled fund's assets in a 
foreign investment, that may result in the execution of a foreign 
exchange transaction with Deutsche Bank or its affiliate as 
subcustodian, Deutsche Bank will provide written notice to the 
independent fiduciary of a client plan, the independent fiduciary of an 
in-house plan, the independent fiduciary of a large pooled fund, the 
independent fiduciary of an unrelated pooled fund, or the receiving 
fiduciary of a small pooled fund that includes the following 
information: (a) The reasons why Deutsche Bank or its affiliate may 
consider the investment appropriate for the plan; (b) the identity of 
the global custodian and the factors considered in such global 
custodian's selection; (c) notice that such foreign exchange 
transaction may be executed by Deutsche Bank or its affiliate at the 
direction of a global custodian, and full disclosure of all fees that 
Deutsche Bank or its affiliate may receive as a result of the foreign 
exchange transaction; (d) in those cases where Deutsche Bank or its 
affiliate selects the global custodian, a summary of the global 
custodian's policies and procedures regarding the handling of foreign 
exchange transactions for plans or pooled funds with respect to which 
Deutsche Bank or its affiliate is a fiduciary and the factors that the 
global custodian considers in its selection of a subcustodian; (e) a 
list of the markets in which Deutsche Bank or its affiliate serves as a 
subcustodian, and whether a particular market is served by more than 
one subcustodian; (f) a list of the markets where currency transactions 
are executed by a subcustodian, to the extent known; (g) notice that 
Deutsche Bank or its affiliate maintains the required records, and such 
records are reasonably available at their customary location for 
examination in the U.S., during normal business hours, by the 
responsible reviewing individual, the independent fiduciary of a client 
plan, the independent fiduciary of an in-house plan whose assets are 
invested in a separately managed account with Deutsche Bank, the 
independent fiduciary of a large pooled fund, the independent fiduciary 
of an unrelated pooled fund, the receiving fiduciary of a small pooled 
fund, any participant or beneficiary of such plan or pooled fund, or 
any duly authorized employee or representative of such participant or 
beneficiary; (h) the independent fiduciary shall have 30 days to object 
in writing to Deutsche Bank or its affiliate, following disclosure by 
Deutsche Bank or its affiliate of the arrangement contemplated under 
the exemption. If such fiduciary fails to object in writing within this 
period, then such fiduciary's authorization of the arrangement shall be 
presumed; (i) notification of any changes to the information described 
above, including, but not limited to, the situation where Deutsche Bank 
or its affiliate replaces the global custodian with another independent 
entity; and (j) copies of the notice of proposed exemption and grant of 
final exemption with respect to the subject transactions. Such report 
may be provided electronically.
    In addition, upon the request of the independent fiduciary, and 
within 90 days of such request, Deutsche Bank or its affiliate will 
provide compliance reports (which may be transmitted electronically) 
that demonstrate that the terms of the exemption have been met. Such 
written reports will include the information described above.
    31. In summary, the Applicant represents that the transactions will 
satisfy the statutory criteria for an exemption under section 408(a) of 
the Act since, among other things:
    (a) At the time the foreign exchange transaction is entered into, 
the terms of the transaction will not be less favorable to the plan or 
pooled fund than the terms generally available in comparable arm's 
length foreign exchange transactions between unrelated parties.
    (b) The exchange rate used for a particular foreign exchange 
transaction will not deviate by more than 3 percent (above or below) 
the interbank bid and asked rates for such currency at the time of the 
transaction as displayed on an independent, nationally-recognized 
service that reports rates of exchange in the foreign currency market 
for such currency.
    (c) The covered transactions will be limited to those currencies in 
which a transaction is executed with a Deutsche Bank affiliate acting 
as local subcustodian at the direction of the global custodian because 
the global custodian either does not make a market in such currency, or 
otherwise determines to execute with the local subcustodian because of 
market conditions, market restrictions, illiquidity of the currency or 
similar exigencies.
    (d) Where a market is served by more than one subcustodian, 
Deutsche Bank or its affiliate will have no decision making authority 
or role with respect to the global custodian's selection of the 
subcustodian.
    (e) The global custodian will not be Deutsche Bank or any affiliate 
thereof.
    (f) The foreign exchange transaction will be executed by Deutsche 
Bank or its affiliate thereof acting as subcustodian at the direction 
of the global custodian in its normal course of business as global 
custodian.
    (g) The decision to select Deutsche Bank or its affiliate as the 
subcustodian will be made by an unrelated global custodian.
    (h) The selection of Deutsche Bank or its affiliate as subcustodian 
and any foreign exchange transactions executed by Deutsche Bank or its 
affiliate at the direction of a global custodian will not be part of an 
understanding, arrangement or agreement, written or

[[Page 39168]]

otherwise, designed to benefit Deutsche Bank, its affiliate or another 
party in interest.
    (i) The decision to invest in a market and to select Deutsche Bank 
or its affiliate as asset manager will be part of an investment 
strategy that is adopted by an independent fiduciary of a client plan, 
the independent fiduciary of an in-house plan, the independent 
fiduciary of a large pooled fund, or the independent fiduciary of an 
unrelated pooled fund.
    (j) On an annual basis, the percentage of assets of plans and 
pooled funds for which Deutsche Bank or its affiliates select the 
global custodian will be less than 20 percent of the total assets under 
the global custodian's custody.
    (k) Foreign affiliates of Deutsche Bank who engage in the covered 
transaction will agree to submit to the jurisdiction of the United 
States Courts and consent to service of process on the Process Agent 
for purposes of any lawsuits that may be brought in connection with the 
foreign exchange transactions, and comply with, and be subject to, all 
relevant provisions of the Act.
    (l) Deutsche Bank or its affiliate will designate an individual 
responsible for reviewing periodically a representative sample of 
consummated foreign exchange transactions, no less frequently than on 
an annual basis, to determine whether the covered transactions have 
been executed in accordance with the terms of this exemption.
    (m) Prior to the investment of the plan's assets in a foreign 
investment that may require the execution of a foreign exchange 
transaction, Deutsche Bank or its affiliate will provide to the 
independent fiduciary of a client plan, the independent fiduciary of an 
in-house plan, the independent fiduciary of a large pooled fund, or the 
independent fiduciary of an unrelated pooled fund, a written notice 
(which may be effected electronically) that will include all relevant 
information pertaining to Deutsche Bank's investment strategy with 
respect to foreign exchange transactions.
    (n) On the basis of such information, the independent fiduciary 
will adopt Deutsche Bank's investment strategy with respect to foreign 
exchange transactions.
    (o) Upon the request of the independent fiduciary, and within 90 
days of such request, Deutsche Bank or an affiliate will provide 
written compliance reports (which may be transmitted electronically) 
that demonstrate that the terms of the exemption have been met.
    (p) Deutsche Bank or its affiliate will maintain, or will cause to 
be maintained, for a period of six years from the date of the covered 
transactions, certain records to enable such persons as: The 
responsible reviewing individual, the independent fiduciary of a client 
plan, or any duly authorized representative of the Department or the 
Service, to determine whether the conditions of this exemption have 
been met.

Notice to Interested Persons

    The Applicant represents that because those potentially interested 
client plans cannot all be identified at the time this proposed 
exemption is published in the Federal Register, the only practical 
means of notifying the independent fiduciaries of such plans of the 
proposed exemption is by publication of the notice of pendency in the 
Federal Register. However, with respect to the fiduciaries of in-house 
plans (including independent fiduciaries of large pooled funds, 
independent fiduciaries of unrelated pooled funds, or receiving 
fiduciaries of small pooled funds), the Applicant will provide copies 
of the proposed exemption to such interested persons either by first 
class mail, hand delivery or electronic mail within 15 days of the 
publication of the proposed exemption in the Federal Register. 
Therefore, written comments and/or requests for a public hearing must 
be received by the Department not later than 45 days from the date of 
publication of this notice of proposed exemption in the Federal 
Register.
    If granted, this exemption will be available to Deutsche Bank for 
as long as the terms and conditions of the exemption are satisfied with 
respect to the assets of client plans, in-house plans or pooled funds 
that are engaged in the covered foreign exchange transactions.

For Further Information Contact: Allison Padams-Lavigne, U.S. 
Department of Labor, telephone (202) 693-8564. (This is not a toll-free 
number.)

Banc One Investment Advisors Corporation (BOIA) and J.P. Morgan 
Investment Management Inc. (JPMIM) and their Affiliates (Collectively, 
JPMorgan)

    Located in New York, New York.

[Application No. D-11263]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code, in accordance with the procedures set forth in 29 CFR Part 2570, 
Subpart B (55 FR 32836, 32847, August 10, 1990).

Section I--Retroactive Exemption for the Acquisition, Holding, and 
Disposition of JPMorgan Chase & Co. Stock

    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(D), 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)(D) and (E) of the Code, shall not apply, as of 
January 14, 2004, until the date this proposed exemption is granted, to 
the acquisition, holding, and disposition of the common stock of 
JPMorgan Chase & Co. (the JPM Stock) by Index and Model-Driven Funds 
managed by JPMorgan, provided that the following conditions and the 
general conditions in Section III are satisfied:
    (a) The acquisition or disposition of the JPM 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.
    (b) The acquisition or disposition of the JPM Stock does not 
involve any agreement, arrangement, or understanding regarding the 
design or operation of the Fund acquiring the JPM Stock which is 
intended to benefit JPMorgan or any party in which JPMorgan may have an 
interest.
    (c) All aggregate daily purchases of JPM Stock by the Funds do not 
exceed, on any particular day, the greater of:
    (1) Fifteen (15) percent of the aggregate average daily trading 
volume for the JPM Stock occurring on the applicable exchange and 
automated trading system (as described in paragraph (d) below) for the 
previous five business days, or
    (2) Fifteen (15) percent of the trading volume for the JPM Stock 
occurring on the applicable exchange and automated trading system on 
the date of the transaction, both as determined by the best available 
information for the trades occurring on that date or dates.
    (d) All purchases and sales of JPM Stock are either (i) Entered 
into on a principal basis in a direct, arm's length transaction with a 
broker-dealer, in the ordinary course of its business, where such 
broker-dealer is independent of JP Morgan and is either registered 
under the Securities Exchange Act of 1934 (the 1934 Act), and thereby 
subject to regulation by the Securities and Exchange Commission (SEC), 
(ii) effected on an automated trading system (as defined in Section 
IV(i) below) operated by a broker-dealer independent of JPMorgan that 
is subject to regulation

[[Page 39169]]

by the SEC, or an automated trading system operated by a recognized 
U.S. securities exchange (as defined in Section IV(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 on a recognized securities exchange (as defined in 
Section IV(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, 
JPMorgan (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); however, 
this condition would not apply to purchases or sales on an exchange or 
through an automated trading system (described in paragraph (d) of this 
Section) on a blind basis where the identity of the counterparty is not 
known.
    (f) No more than five (5) percent of the total amount of JPM Stock 
that is issued and outstanding at any time is held in the aggregate by 
Index and Model-Driven Funds managed by JPMorgan.
    (g) JPM Stock constitutes no more than three (3) percent of any 
independent third party index on which the investments of an Index or 
Model-Driven Fund are based.
    (h) A plan fiduciary which is independent of JPMorgan authorizes 
the investment of such plan's assets in an Index or Model-Driven Fund 
which purchases and/or holds JPM Stock, pursuant to the procedures 
described herein (see Paragraph 12 of the Summary of Facts and 
Representations, below, regarding portfolio management services 
provided for particular plans).
    (i) A fiduciary independent of JPMorgan directs the voting of the 
JPM Stock held by an Index or Model-Driven Fund on any matter in which 
shareholders of JPM Stock are required or permitted to vote.

Section II--Prospective Exemption for the Acquisition, Holding, and 
Disposition of JPMorgan Chase & Co. Stock

    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(D), 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)(D) and (E) of the Code, shall not apply, as of the 
date this proposed exemption is granted, to the acquisition, holding, 
and disposition of JPM Stock by Index and Model-Driven Funds managed by 
JPMorgan, provided that the following conditions and the general 
conditions in Section III are satisfied:
    (a) The acquisition or disposition of JPM 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.
    (b) The acquisition or disposition of JPM Stock does not involve 
any agreement, arrangement or understanding regarding the design or 
operation of the Fund acquiring the JPM Stock which is intended to 
benefit JPMorgan or any party in which JPMorgan may have an interest.
    (c) All purchases of JPM Stock pursuant to a Buy-up (as defined in 
Section IV(d)) occur in the following manner:
    (1) Purchases on a single trading day are from, or through, only 
one broker or dealer;
    (2) Based on the best available information, purchases are not the 
opening transaction for the trading day;
    (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 brokers that are not affiliates of JPMorgan (as 
defined in section IV(g));
    (5) Aggregate daily purchases of JPM Stock by the Funds do not 
exceed, on any particular day, the greater of: (i) Fifteen (15) percent 
of the aggregate average daily trading volume for the security 
occurring on the applicable exchange and automated trading system for 
the previous five business days, or (ii) fifteen (15) percent of the 
trading volume for the security occurring on the applicable exchange 
and automated trading system on the date of the transaction, as 
determined by the best available information for the trades occurring 
on that date;
    (6) All purchases and sales of JPM Stock occur either (i) on a 
recognized securities exchange (as defined in Section IV(j) below), 
(ii) through an automated trading system (as defined in Section IV(i) 
below) operated by a broker-dealer independent of JPMorgan that is 
registered under the 1934 Act, and thereby subject to regulation by the 
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 IV(i) below) 
that is operated by a recognized securities exchange (as defined in 
Section IV(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 broker-dealer; and
    (7) If the necessary number of shares of JPM Stock cannot be 
acquired within 10 business days from the date of the event that causes 
the particular Fund to require JPM Stock, JPMorgan appoints a fiduciary 
that is independent of JPMorgan to design acquisition procedures and 
monitor JPMorgan's compliance with such procedures, in accordance with 
Representation 7 in the Summary of Facts and Representations.
    (d) For transactions subsequent to a Buy-up, all aggregate daily 
purchases of JPM Stock by the Funds do not exceed, on any particular 
day, the greater of:
    (1) Fifteen (15) percent of the aggregate average daily trading 
volume for the JPM Stock occurring on the applicable exchange and 
automated trading system for the previous five (5) business days, or
    (2) Fifteen (15) percent of the trading volume for JPM Stock 
occurring on the applicable exchange and automated trading system on 
the date of the transaction, as determined by the best available 
information for the trades that occurred on such date.
    (e) All transactions in JPM Stock not otherwise described in 
paragraph (c) 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 JPMorgan and is registered under the 1934 Act, and 
thereby subject to regulation by the SEC, (ii) effected on an automated 
trading system (as defined in Section IV(i) below) operated by a 
broker-dealer independent of JPMorgan that is subject to regulation by 
the SEC, or an automated trading system operated by a recognized 
securities exchange (as defined in Section IV(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 securities exchange (as defined in 
Section IV(j) below), so long as the broker is acting on an agency 
basis.
    (f) No transactions by a Fund involve purchases from, or sales to, 
JPMorgan (including officers, directors, or employees thereof), or any 
party in interest that is a fiduciary with discretion to invest plan 
assets in the Fund (unless the transaction by the Fund with such party 
in interest would

[[Page 39170]]

otherwise be subject to an exemption); however, this condition would 
not apply to purchases or sales on an exchange or through an automated 
trading system (described in paragraphs (c) and (e) of this Section) on 
a blind basis where the identity of the counterparty is not known.
    (g) No more than five (5) percent of the total amount of JPM Stock 
that is issued and outstanding at any time is held in the aggregate by 
Index and Model-Driven Funds managed by JPMorgan.
    (h) JPM Stock constitutes no more than five (5) percent of any 
independent third party index on which the investments of an Index or 
Model-Driven Fund are based.
    (i) A plan fiduciary independent of JPMorgan authorizes the 
investment of such plan's assets in an Index or Model-Driven Fund which 
purchases and/or holds JPM Stock, pursuant to the procedures described 
herein (see Paragraph 12 of the Summary of Facts and Representations 
below regarding portfolio management services provided for particular 
plans).
    (j) A fiduciary independent of JPMorgan directs the voting of the 
JPM Stock held by an Index or Model-Driven Fund on any matter in which 
shareholders of JPM Stock are required or permitted to vote.

Section III--General Conditions

    (a) JPMorgan 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, solely due to circumstances beyond the control of 
JPMorgan, the records are lost or destroyed prior to the end of the 
six-year period, and (2) no party in interest other than JPMorgan 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, the Internal Revenue Service or the Securities and Exchange 
Commission,
    (B) Any fiduciary of a plan participating in an Index or Model-
Driven 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 Model-Driven 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 (b) shall be authorized to examine trade secrets of 
JPMorgan or commercial or financial information that is considered 
confidential.

Section IV--Definitions

    (a) The term ``Index Fund'' means any investment fund, account, or 
portfolio sponsored, maintained, trusteed, or managed by JPMorgan, in 
which one or more investors invest, and--
    (1) That is designed to track the rate of return, risk profile, and 
other characteristics of an independently maintained securities Index, 
as described in Section IV(c) below, by either (i) replicating the same 
combination of securities that comprise such Index, or (ii) sampling 
the securities that comprise such Index based on objective criteria and 
data;
    (2) For which JPMorgan 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; and,
    (4) That involves no agreement, arrangement, or understanding 
regarding the design or operation of the Fund which is intended to 
benefit JPMorgan or any party in which JPMorgan may have an interest.
    (b) The term ``Model-Driven Fund'' means any investment fund, 
account, or portfolio sponsored, maintained, trusteed, or managed by 
JPMorgan, in which one or more investors invest, and--
    (1) That 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 JPMorgan, to transform an independently 
maintained Index, as described in Section IV(c) below;
    (2) That contains ``plan assets'' subject to the Act; 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 that is intended to benefit JPMorgan or any 
party in which JPMorgan 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 and/or foreign 
countries, but only if --
    (1) The organization creating and maintaining the index is--
    (A) Engaged in the business of providing financial information, 
evaluation, advice or securities brokerage services to institutional 
clients,
    (B) A publisher of financial news or information, or
    (C) A public stock exchange or association of securities dealers; 
and,
    (2) The index is created and maintained by an organization 
independent of JPMorgan; and,
    (3) The index is a generally accepted standardized index of 
securities that is not specifically tailored for the use of JPMorgan.
    (d) The term ``Buy-up'' means an initial acquisition of JPM Stock 
by an Index or Model-Driven Fund which is 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.
    (e) The term ``JPMorgan'' refers to Bank One Investment Advisors 
Corporation (BOIA) and J.P. Morgan Investment Management Inc. (JPMIM), 
and their respective Affiliates, as defined in paragraph (f) below.
    (f) The term ``Affiliate'' means, with respect to BOIA or JPMIM, an 
entity which, directly or indirectly, through one or more 
intermediaries, is controlling, controlled by, or under common control 
with BOIA or JPMIM;
    (g) An ``affiliate'' of a person includes:
    (1) Any person, directly or indirectly, through one or more 
intermediaries, controlling, controlled by or under common control with 
the person;
    (2) Any officer, director, employee 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

[[Page 39171]]

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 
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 1934 Act [15 U.S.C. 78c(a)(51)(A)(ii)].
    (j) The term ``recognized securities exchange'' means a U.S. 
securities exchange that is registered as a ``national securities 
exchange'' under Section 6 of the 1934 Act (15 U.S.C. 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 240.3b-16).
    (k) The term ``Fund'' means an Index Fund (as described in Section 
IV(a)) or a Model-Driven Fund (as described in IV(b)).

Summary of Facts and Representations

    1. On January 14, 2004, Bank One Corporation (Bank One), a publicly 
traded bank holding company, and J.P. Morgan Chase & Co. (JPMC), a 
publicly traded bank holding company, entered into an agreement to 
effect a merger of the assets and business operations of the two 
financial institutions (the Merger). The Merger became effective on 
July 1, 2004, on which date each share of Bank One common stock was 
exchanged for 1.32 shares of the common stock of JPMC. The combined 
company is known as JPMorgan Chase & Co. (also referred to herein as 
JPMC) and continues its corporate existence under Delaware law. The 
common stock of JPMC trades on the New York Stock exchange under the 
trading symbol ``JPM.''
    With assets of approximately $1.1 trillion and operations in more 
than 50 countries, JPMC is a leader in investment banking, financial 
services for consumers and businesses, financial transaction 
processing, asset and wealth management, and private equity. The 
headquarters for JPMC is located in New York.
    JPMC is internally organized for management reporting purposes into 
six major lines of business: (i) Asset & Wealth Management; (ii) Card 
Services; (iii) Commercial Banking; (iv) Investment Banking; (v) Retail 
Financial Services; and (vi) Treasury & Securities Services. Only the 
first line of business is relevant to the Applicants' exemption 
request.
    Banc One Investment Advisors Corporation (BOIA) is an investment 
adviser registered under the Investment Advisers Act of 1940 (the 
Advisers Act). BOIA acts as an investment manager to employee benefit 
plans subject to the fiduciary responsibility provisions of ERISA, as 
well as governmental plans and other trusts or funds that are exempt 
from taxation under section 501(a) of the Code.
    J.P. Morgan Investment Management, Inc. (JPMIM) is an investment 
adviser registered under the Advisers Act that manages assets for a 
wide range of institutional and private clients around the globe. As of 
December 31, 2005, JPMIM managed approximately $1.19 trillion in assets 
for defined benefit and defined contribution plans, endowments and 
foundations, and other institutional clients, mutual funds, and high 
net worth individuals.
    Effective as of the date of the Merger, BOIA and JPMIM are both 
wholly owned subsidiaries of JPMC. BOIA, JPMIM and their Affiliates 
that are now or may, in the future, be engaged in providing asset 
management services to ERISA-covered plans are collectively referred to 
as ``JPMorgan.''
    2. Prior to January 14, 2004, BOIA maintained and managed Index and 
Model-Driven Funds which held assets of ERISA-covered employee benefit 
plans. The Applicants represent that, as a result of the Merger, an 
individual exemption for the acquisition, holding, and disposition of 
common stock of JPMC (i.e., JPM Stock) is necessary to enable certain 
Index and Model-Driven Funds managed by JPMorgan (formerly managed by 
BOIA) to acquire, hold, and dispose of JPM Stock. In this regard, there 
have been Funds that, since January 14, 2004, have acquired, held, and/
or disposed of JPM Stock. The Applicants request a retroactive 
exemption, effective as of January 14, 2004 to the date that this 
proposed exemption is granted, to permit such transactions by these 
Funds. The Applicants are not requesting any retroactive relief for any 
pre-Merger acquisition, holding or disposition of the common stock of 
Bank One.
    3. The Applicants represent that they provide investment advisory 
and management services to ERISA-covered plans through separately 
managed accounts and through collective investment vehicles. The 
Applicants' investment management services include indexed, 
quantitative, and structured investment strategies. In addition to 
ERISA-covered plans, the Applicants' clients include retirement plans 
with non-U.S. participants, governmental entities, governmental plans, 
church plans, endowments and foundations, mutual funds, and other 
institutional investors.
    4. In its capacity as fiduciary of an employee benefit plan, each 
of the Applicants is appointed by an independent plan fiduciary. The 
Applicants represent that their discretionary authority over whether 
the plan invests in particular Funds is restricted by guidelines 
adopted by an independent plan fiduciary, unless the plan subscribes to 
the Applicants' portfolio management in Funds (PMF) services (as 
discussed below).
    5. The Applicants request that Index and Model-Driven Funds be 
permitted to invest in JPM Stock if such Stock is included among the 
securities listed in the index utilized by the Fund. The Applicants 
represent that indices that include JPM Stock include the S&P 500 Index 
and the Russell 1000 Value Index, among others. These indices are 
compiled by financial information agencies, such as Standard & Poor's 
and Frank Russell. These agencies are engaged in the provision of 
financial information or securities brokerage services to institutional 
investors and/or are publishers of financial information. In each 
instance, the indices are compiled by organizations that are 
independent of JPMorgan and are generally accepted standardized indices 
of securities that are not tailored for the use of JPMorgan. While many 
of these indices are not currently utilized by JPMorgan for its Index 
and Model-Driven Funds, there is a possibility that Funds holding 
assets of ERISA-covered plans will be established in the future that 
are based on these indices.
    The Applicants represent that there were at least seven (7) 
different Index Funds maintained by Bank One that included JPM Stock in 
their portfolios, as of January 14, 2004. These Funds were all 
separately managed accounts that invest in either an S&P 500 or Russell 
1000 Value Index strategy.
    6. The Applicants state that the proposed exemption is desirable to 
allow Funds holding ``plan assets'' to purchase and hold JPM Stock in 
order to replicate the capitalization-weighted or other specified 
composition of JPM Stock in an independently maintained third party 
index \9\ used by an Index

[[Page 39172]]

Fund or to achieve the desired transformation of an index used to 
create a portfolio for a Model-Driven Fund.\10\ In addition, the 
Applicants represent that there will be instances, once this proposed 
exemption is granted, when JPM Stock will be added to an index on which 
a Fund is based or will be added to the portfolio of a Fund which seeks 
to track an index that includes such Stock.\11\ In such instances, 
acquisitions of JPM Stock will be necessary to bring the Fund's 
holdings of such Stock either to its capitalization-weighted or other 
specified composition in the index, as determined by the independent 
organization maintaining such index, or to the correct weighting for 
such Stock as determined by the computer model that has been used to 
transform the index. If the Index or Model-Driven Fund holds ``plan 
assets,'' the Applicants represent that all acquisitions of JPM Stock 
by such Fund will comply with the ``Buy-up'' conditions contained in 
Section II(c) of this proposed exemption.\12\
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    \9\ According to the Applicants, various methods other than 
capitalization-weighting that may be used to determine the 
composition of JPM Stock in an index are as follows: (i) An index 
may weigh each of the securities that comprise the index equally, 
regardless of the relative capitalization of the issuer; (ii) an 
index might use share weighting, where the weighting of each stock 
is determined based on the total number of shares of each issuer 
available on the market; and (iii) in price weighting, the weighting 
of each stock is based on the price of the stocks in the index, a 
stock with a higher price will have a greater weight in the index 
than a stock with a lower price. The Dow Jones Industrial Average is 
an example of a price weighted index.
    \10\ The Applicants are not requesting any relief from sections 
406 or 407(a) of the Act in connection with the acquisition and 
holding of JPM Stock by any employee benefit plans established and 
maintained by JPMorgan for its own employees that invest in the 
Applicants' Index Funds. In this regard, the Applicants represent 
that such transactions may be covered by the statutory exemption 
under section 408(e) of the Act, if the conditions of that exemption 
are met. However, the Department expresses no opinion in this 
proposed exemption as to whether the conditions of section 408(e) of 
the act have been or will be met.
    \11\ The Applicants represent that the inclusion or exclusion of 
JPM Stock from an index and the weighting or changes to the 
weighting of JPM Stock in an index are based on data, criteria, and 
methodology determined by the organization that creates and 
maintains the index, which cannot be varied by JPMorgan. Changes in 
the weighting of JPM Stock in a Fund would occur when there is a 
change in factors underlying the applicable weighting methodology. 
Changes in index weightings are, for the most part, triggered by 
corporate actions (buying back shares, issuing more shares or 
acquiring another company for stock).
    \12\ The Applicants anticipate that, generally, acquisitions of 
JPM Stock by an Index or Model-Driven Fund in a ``Buy-up'' will 
occur within 10 business days from the date of the event that causes 
the particular Fund to require the addition of JPM Stock. The 
Applicants do not anticipate that the amounts of JPM Stock acquired 
by any Fund in a ``Buy-up'' will be significant. In this regard, the 
Department notes that the conditions required herein are designed to 
minimize the market impact of purchases made by the Funds in any 
``Buy-up'' of JPM Stock.
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    7. In the case of a Buy-up, if the necessary number of shares of 
JPM Stock cannot be acquired within 10 days from the date of the event 
that causes the particular Fund to require JPM Stock, JPMorgan will 
appoint a fiduciary that is independent of JPMorgan to design 
acquisition procedures and monitor JPMorgan's compliance with such 
procedures.\13\ The independent fiduciary and its principals will be 
completely independent from the Applicants. The independent fiduciary 
will also be experienced in developing and operating investment 
strategies for individual and collective investment vehicles that track 
third party indices. Furthermore, the independent fiduciary will not 
act as the broker for any purchases or sales of JPM Stock and will not 
receive any commissions as a result of this initial acquisition 
program.
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    \13\ In this regard, all Funds holding JPM Stock, as of January 
14, 2004, that have continued to acquire, hold, and dispose of JPM 
Stock in order to track indices including JPM Stock will not need to 
have daily transactions involving such Stock directed by an 
independent fiduciary. The Applicants state that the amount of JPM 
Stock involved in such transactions has been and continues to be 
determined by the independent organization that created and 
maintains the relevant index, and all other conditions required 
under this proposed exemption have been met.
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    The independent fiduciary will have as its primary goal the 
development of trading procedures that minimize the market impact of 
purchases made pursuant to the initial acquisition program by the 
Funds. The Applicants would expect that, under the trading procedures 
established by the independent fiduciary, the trading activities will 
be conducted in a low-profile, mechanical, non-discretionary manner and 
would involve a number of small purchases over the course of each day, 
randomly timed. The Applicants further expect that such a program will 
allow the Applicants to acquire the necessary shares of JPM Stock for 
the Funds with minimum impact on the market and in a manner that will 
be in the best interests of any employee benefit plans that participate 
in such Funds.
    The independent fiduciary will also be required to monitor the 
Applicants' compliance with the trading program and procedures 
developed for the initial acquisition of JPM Stock. During the course 
of any initial acquisition program, the independent fiduciary will be 
required to review the activities weekly to determine compliance with 
the trading procedures and notify the Applicants should any non-
compliance be detected. Should the trading procedures need 
modifications due to unforeseen events or consequences, the independent 
fiduciary will be required to consult with the Applicants and must 
approve in advance any alteration of the trading procedures.
    8. Subsequent to initial acquisitions pursuant to a Buy-up, all 
aggregate daily purchases of JPM Stock by the Funds will not exceed, on 
any particular day, the greater of:
    (i) Fifteen (15) percent of the average daily trading volume for 
the JPM Stock occurring on the applicable exchange and automated 
trading system (as described herein) \14\ for the previous five (5) 
business days, or
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    \14\ The Department notes that the Act's fiduciary 
responsibility provisions would apply to the manager's selection of 
a trading venue, including an automated trading system, to effect 
purchases and sales of JPM Stock on behalf of its managed Index and 
Model-Driven Funds.
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    (ii) Fifteen (15) percent of the trading volume for JPM Stock 
occurring on the applicable exchange and automated trading system (as 
described herein) on the date of the transaction, as determined by the 
best available information for the trades that occurred on such date.
    9. JPMorgan represents that, as of January 14, 2004, until the date 
this proposed exemption is granted, all purchases and sales of JPM 
Stock by the Funds have occurred and will continue to occur in one of 
the following ways: (i) Through a direct, arms-length transaction 
entered into on a principal basis with a broker-dealer \15\ that is 
independent of JPMorgan and is registered under the 1934 Act, and 
thereby subject to regulation by the SEC; (ii) through an automated 
trading system (as defined in Section IV(i) above) operated by a 
broker-dealer independent of JPMorgan that is registered under the 1934 
Act, and thereby subject to regulation by the SEC, or an automated 
trading system operated by a recognized securities

[[Page 39173]]

exchange (as defined in Section IV(j) above), 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) through a 
recognized securities exchange as defined in Section IV(j) above so 
long as the broker is acting on an agency basis.
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    \15\ The Department notes that no relief is provided herein for 
purchases and sales of securities between a Fund and a broker-
dealer, acting as a principal, which may be considered prohibited 
transactions as a result of such broker-dealer being a party in 
interest, under section 3(14) of the Act, with respect to any plans 
that are investors in the Fund. However, such transactions may be 
covered by one or more of the Department's existing class 
exemptions. For example, PTE 84-14 (49 FR 9497, March 13, 1984, as 
amended 70 FR 49305 (Aug. 23 2005)) permits, under certain 
conditions, parties in interest to engage in various transactions 
with plans whose assets are invested in an investment fund managed 
by a ``qualified professional asset manager'' (QPAM) who is 
independent of the parties in interest (with certain limited 
exceptions) and meets specified financial standards. The Department 
expresses no opinion as to whether any of its class exemptions would 
provide relief in this circumstance.
---------------------------------------------------------------------------

    In addition, JPMorgan states that as of the date this proposed 
exemption is granted, all future transactions by the Funds involving 
JPM Stock which do not occur in connection with a Buy-up of such Stock 
by a Fund, as described above, will be either: (i) Entered into on a 
principal basis with a broker-dealer that is registered under the 1934 
Act, and thereby subject to regulation by the SEC; (ii) effected on an 
automated trading system (as defined in Section IV(i) above) operated 
by a broker-dealer independent of JPMorgan subject to regulation by the 
SEC, or on an automated trading system operated by a recognized 
securities exchange (as defined in Section IV(j) above) 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 securities exchange (as defined in 
Section IV(j) above), so long as the broker is acting on an agency 
basis.\16\
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    \16\ PTE 86-128 (51 FR 41686, November 18, 1986) provides a 
class exemption, under certain conditions, permitting persons who 
serve as fiduciaries for employee benefit plans to effect or execute 
securities transactions on behalf of such plans. The Department 
expresses no opinion as to whether the conditions of this exemption 
would be satisfied.
---------------------------------------------------------------------------

    10. With respect to all acquisitions and dispositions of JPM Stock 
by the Funds since January 14, 2004, the Applicants state that no such 
transactions have involved purchases from or sales to JPMorgan 
(including officers, directors, or employees thereof), or any party in 
interest that is a fiduciary with discretion to invest plan assets in 
the Fund (except for purchases or sales on an exchange or through an 
automated trading system on a blind basis where the identity of the 
counterparty is not known). The Applicants represent that all future 
acquisitions and dispositions of JPM Stock by any Index or Model-Driven 
Funds maintained by JPMorgan also will not involve any purchases from 
or sales to JPMorgan (including officers, directors, or employees 
thereof), or any party in interest that is a fiduciary with discretion 
to invest plan assets in the Fund (unless the transaction by the Fund 
with such party in interest would otherwise be subject to an 
exemption), other than certain blind trades.\17\
---------------------------------------------------------------------------

    \17\ As set forth in Section II(e), the condition would not 
apply to purchases or sales on an exchange or through an automated 
trading system on a blind basis where the identity of the 
counterparty is not known.
---------------------------------------------------------------------------

    11. The Applicants state that no more than five (5) percent of the 
total amount of JPM Stock that is issued and outstanding at the time, 
will be held in the aggregate by Index and Model-Driven Funds managed 
by JPMorgan.
    For purposes of the acquisition and holding of JPM Stock by Funds 
from January 14, 2004 until the date this proposed exemption is 
granted, such Stock will constitute no more than three (3) percent of 
any independent third party index on which the investments of an Index 
or Model-Driven Fund are based. For example, as of March 31, 2008, JPM 
Stock represents 1.27% of the S&P 500 Index and 2.31% of the Russell 
1000 Value Index. Although some indices may include JPM Stock in 
percentages that exceed three (3) percent of the index, JPMorgan does 
not currently utilize such indices for its Index and Model-Driven Funds 
with ``plan assets'' subject to the Act.
    For purposes of future acquisitions and holdings of JPM Stock by 
such Funds, if this proposed exemption is granted, JPM Stock will 
constitute no more than five (5) percent of any independent third party 
index on which the investments of an Index or Model-Driven Fund are 
based.
    With respect to an index's specified composition of particular 
stocks in its portfolio, the Applicants state that future Funds may 
track an index where the appropriate weighting for stocks listed in the 
index is not capitalization-weighted. Thus, the Applicants state that 
Funds maintained by JPMorgan and affiliates of JPMC may track indices 
where the selection of a particular stock by the index, and the amount 
of stock to be included in the index, is not established based on the 
market capitalization of the corporation issuing such stock. Therefore, 
since an independent organization may choose to create an index where 
there are other index weightings for stocks comprising the index, the 
Applicants request that the proposed exemption allow for JPM Stock to 
be acquired by a Fund in the amounts that are specified by the 
particular index, subject to the other restrictions imposed by this 
proposed exemption. The Applicants represent that, in all instances, 
acquisitions or dispositions of JPM Stock by a Fund will be for the 
sole purpose of maintaining strict quantitative conformity with the 
relevant index upon which the Fund is based or, in the case of a Model-
Driven Fund, a modified version of such an index as created by a 
computer model based on prescribed objective criteria and third party 
data.\18\
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    \18\ The Applicants represent that JPMorgan does not currently 
manage any Model-Driven Funds, but, consistent with prior similar 
exemption (e.g., see PTE 2000-30 (65 FR 37165, June 13, 2000) 
granted to Barclays Bank PLC), JPMorgan would like to retain the 
flexibility to do so in the future in reliance on this exemption, if 
granted. A Model-Driven Fund would be composed of securities the 
identity of which and the amount of which are selected by a computer 
model that is based upon prescribed objective criteria using 
independent third party data, not within the control of JPMorgan, to 
transform an independently maintained index. In managing a Model 
Driven Fund that includes JPM Stock, JPMorgan would maintain the 
weightings of JPM Stock in strict quantitative conformity with the 
weightings determined by the computer model.
---------------------------------------------------------------------------

    12. The Applicants state that plan fiduciaries independent of 
JPMorgan have authorized and will continue to authorize the investment 
of any plan's assets in an Index or Model-Driven Fund that purchases 
and/or holds JPM Stock.
    With respect to transactions involving JPM Stock, the Applicants 
state that they may provide portfolio management services (i.e., PMF 
services) to a particular plan (a PMF Plan). In this regard, the 
Applicants may exercise some discretion in allocating and reallocating 
the plan's assets among various funds, including Index or Model-Driven 
Funds that may hold JPM Stock. These allocations are based on a plan's 
investment objectives, risk profile, and market conditions. However, 
the Applicants make the following representations with respect to the 
purchase, directly or indirectly, of JPM Stock by such plans:
    (a) The Applicants represent that any prohibited transactions that 
might occur as a result of the discretionary allocation and 
reallocation of plan assets among collective investment funds will be 
exempt from the prohibitions of section 406 of the Act by reason of 
section 408(b)(8).\19\
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    \19\ The Department expresses no opinion in this proposed 
exemption as to whether the Applicants' discretionary allocation and 
reallocation services for any collective investment funds maintained 
by the Applicants satisfy the requirements of section 408(b)(8) of 
the Act and is not proposing any exemptive relief beyond that 
offered by section 408(b)(8) for such transactions.
---------------------------------------------------------------------------

    (b) Before JPM Stock is purchased by a Fund, the appropriate 
independent fiduciary for each PMF Plan that is currently invested, or 
could be invested, in such Fund will be furnished an explanation and a 
simple form to return to JPMorgan for the purpose of indicating either 
approval or disapproval of investments in the Fund

[[Page 39174]]

including JPM Stock, together with a postage-paid return envelope. If 
the form is not returned to the Applicants, the Applicants may obtain a 
verbal response by telephone. If a verbal response is obtained by 
telephone, the Applicants will confirm the fiduciary's decision in 
writing within five (5) business days. In the event that no response is 
obtained from a plan fiduciary, the assets of the plan will not be 
invested in any Fund that invests in JPM Stock and any plan assets 
currently invested in such Fund at that time will be withdrawn.
    (c) Each new management agreement with such a plan will contain 
language specifically approving or disapproving the investment in any 
Fund which holds or might hold JPM Stock. The fiduciary for each such 
plan will be informed that the existing management agreement could be 
modified in the same way. However, if the fiduciary does not 
specifically approve language in the agreement allowing the investment 
of plan assets in Funds which hold or might hold JPM Stock, then no 
such investment will be made by the Applicants.
    (d) Each such plan will be informed on a quarterly basis of any 
investment in, or withdrawal from, any Fund holding JPM Stock. On an 
annual basis, the plan will be notified of its right to terminate the 
Applicants' discretionary authority to invest in or withdraw from such 
Funds. If the plan terminates the Applicants' authority to invest in or 
withdraw from the Funds, then the Applicants will effect the plan's 
withdrawal from the Funds as soon as reasonably practicable after being 
notified of such termination.
    13. The Applicants will appoint an independent fiduciary that will 
direct the voting of JPM Stock held by the Funds. Currently, the 
independent fiduciary that directs the voting of JPM Stock held by the 
Funds is Institutional Shareholder Services, Inc.\20\
---------------------------------------------------------------------------

    \20\ See 29 CFR 2509.94-2--Interpretive bulletin relating to 
written statements of investment policy, including proxy voting 
policy or guidelines. The Department further notes that the Act's 
general standards of fiduciary conduct also would apply to the 
selection of a service provider specializing in proxy voting.
---------------------------------------------------------------------------

    JPMorgan states that in all instances the independent fiduciary 
chosen to vote JPM Stock for the Funds will be a consulting firm 
specializing in corporate governance issues and proxy voting on behalf 
of institutional investors with large equity portfolios. The fiduciary 
will develop and follow standard guidelines and procedures for the 
voting of proxies by institutional fiduciaries. The Applicants will 
provide the independent fiduciary with all necessary information 
regarding the Funds that hold JPM Stock, the amount of JPM Stock held 
by the Funds on the record date for shareholder meetings of the 
Applicants, and all proxy and consent materials with respect to JPM 
Stock. The independent fiduciary will maintain records with respect to 
its activities as an independent fiduciary on behalf of the Funds, 
including the number of shares of JPM Stock voted, the manner in which 
they were voted, and the rationale for the vote. The independent 
fiduciary will supply the Applicants with such information after each 
shareholder meeting. The independent fiduciary will be required to 
acknowledge that it will be acting as a fiduciary with respect to the 
plans that invest in the Funds that own JPM Stock, when voting such 
Stock.
    14. In summary, with respect to all past acquisitions, holdings, 
and dispositions of JPM Stock by the Funds since January 14, 2004, the 
Applicants represent that such transactions meet the criteria of 
section 408(a) of the Act for the following reasons:
    (a) Each Index or Model-Driven Fund involved is based on an Index, 
as defined in Section IV(c) above;
    (b) The acquisition, holding, and disposition of the JPM Stock by 
the Index or Model-Driven Fund is for the sole purpose of maintaining 
strict quantitative conformity with the relevant index upon which the 
Fund is based, and does not involve any agreement, arrangement, or 
understanding regarding the design or operation of the Fund acquiring 
the JPM Stock that is intended to benefit JPMorgan or any party in 
which JPMorgan may have an interest;
    (c) All aggregate daily purchases of JPM Stock by the Funds do not 
exceed, on any particular day, the greater of: fifteen (15) percent of 
the aggregate average daily trading volume for such Stock occurring on 
the applicable exchange and automated trading system for the previous 
five (5) business days, or fifteen (15) percent of the trading volume 
for the Stock occurring on the applicable exchange and automated 
trading system on the date of the transaction, both as determined by 
the best available information for the trades occurring on that date or 
dates;
    (d) All purchases and sales of JPM Stock occur either (i) 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 JPMorgan and is registered under the 1934 Act, 
and thereby subject to regulation by the SEC, (ii) effected on an 
automated trading system operated by a broker-dealer independent of 
JPMorgan that is subject to regulation by the SEC, or an automated 
trading system operated by a recognized securities exchange, 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 securities exchange, so long as the 
broker is acting on an agency basis.
    (e) No transactions by a Fund involve purchases from or sales to 
JPMorgan (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); however, 
this condition would not apply to purchases or sales on an exchange or 
through an automated trading system on a blind basis where the identity 
of the counterparty is not known;
    (f) No more than five (5) percent of the total amount of JPM Stock 
issued and outstanding at any time is held in the aggregate by Index 
and Model-Driven Funds managed by JPMorgan;
    (g) JPM Stock constitutes no more than three (3) percent of any 
independent third party index on which the investments of an Index or 
Model-Driven Fund are based;
    (h) A plan fiduciary independent of JPMorgan authorizes the 
investment of such plan's assets in an Index or Model-Driven Fund which 
purchases and/or holds JPM Stock; and
    (i) A fiduciary independent of JPMorgan directs the voting of the 
JPM Stock held by an Index or Model-Driven Fund on any matter in which 
shareholders of JPM Stock are required or permitted to vote.
    With respect to all prospective acquisitions, holdings, and 
dispositions of JPM Stock by the Funds after this proposed exemption is 
granted, the Applicants represent that such transactions will meet the 
criteria of section 408(a) of the Act for the following reasons:
    (a) Each Index or Model-Driven Fund involved will be based on an 
Index, as defined in Section IV(c) above;
    (b) The acquisition or disposition of JPM Stock will be for the 
sole purpose of maintaining strict quantitative conformity with the 
relevant Index upon which the Index or Model-Driven Fund is based, and 
will not involve any agreement, arrangement, or understanding regarding 
the design or operation of the Fund acquiring the JPM

[[Page 39175]]

Stock that is intended to benefit JPMorgan or any party in which 
JPMorgan may have an interest;
    (c) Whenever JPM Stock is initially added to an index on which a 
Fund is based, or initially added to the portfolio of a Fund (i.e., a 
Buy-up), all acquisitions of JPM 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 computer model that has been used to 
transform the index, will be restricted by conditions that are designed 
to prevent possible market price manipulations;
    (d) Subsequent to acquisitions necessary to bring a Fund's holdings 
of JPM Stock to its specified weighting in the index or model, pursuant 
to the restrictions noted in paragraph (c) above, all aggregate daily 
purchases of JPM Stock by the Funds will not exceed, on any particular 
day, the greater of: fifteen (15) percent of the aggregate average 
daily trading volume for such Stock occurring on the applicable 
exchange and automated trading system for the previous five (5) 
business days, or fifteen (15) percent of the trading volume for the 
Stock occurring on the applicable exchange and automated trading system 
on the date of the transaction, both as determined by the best 
available information for the trades that occurred on such date or 
dates;
    (e) All transactions in JPM Stock, other than acquisitions of such 
Stock in a Buy-up described in paragraph (c) above, will be either: (i) 
Entered into on a principal basis with a broker-dealer, in the ordinary 
course of its business, where such broker-dealer is independent of 
JPMorgan and is registered under the 1934 Act, and thereby subject to 
regulation by the SEC, (ii) effected on an automated trading system 
operated by a broker-dealer independent of JPMorgan subject to 
regulation by the SEC, or by a recognized securities exchange 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 securities exchange (as defined 
herein), so long as the broker is acting on an agency basis;
    (f) No transactions by a Fund will involve purchases from or sales 
to JPMorgan (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); however, 
this condition would not apply to purchases or sales on an exchange or 
through an automated trading system on a blind basis where the identity 
of the counterparty is not known;
    (g) No more than five (5) percent of the total amount of JPM Stock 
that is issued and outstanding at any time, will be held in the 
aggregate by Index and Model-Driven Funds managed by JPMorgan;
    (h) JPM Stock will constitute no more than five (5) percent of any 
independent third party index on which the investments of an Index or 
Model-Driven Fund are based;
    (i) A plan fiduciary independent of JPMorgan will authorize the 
investment of such plan's assets in an Index or Model-Driven Fund that 
purchases and/or holds JPM Stock pursuant to the procedures described 
herein, including those which relate to portfolio management services 
provided to certain plans (see Item 12 of the Summary of Facts and 
Representations above); and
    (k) A fiduciary independent of JPMorgan will direct the voting of 
the JPM Stock held by an Index or Model-Driven Fund on any matter in 
which shareholders of JPM Stock are required or permitted to vote.

Notice to Interested Persons

    Notice of the proposed exemption shall be mailed by first class 
mail to interested persons, including the appropriate independent 
fiduciaries for employee benefit plans currently invested in the Index 
and/or Model-Driven Funds that acquire and hold JPM Stock. The notice 
shall contain a copy of the proposed exemption as published in the 
Federal Register and an explanation of the rights of interested parties 
to comment, or request a hearing, regarding the proposed exemption. All 
notices should be sent to interested persons within 15 days of the 
publication of this proposed exemption in the Federal Register. Any 
written comments and/or requests for a hearing must be received by the 
Department from interested persons within 45 days of the publication of 
this proposed exemption in the Federal Register.
    In addition, if this exemption is granted, JPMorgan shall provide a 
copy of the proposed exemption and a copy of the final exemption upon 
request to all ERISA-covered plans that invest in any Index or Model-
Driven Fund that will include JPM Stock in its portfolio after the date 
the final exemption is published in the Federal Register.

FOR FURTHER INFORMATION CONTACT:  Ms. Karen Lloyd of the Department, 
telephone (202) 693-8554. (This is not a toll-free number.)

Pileco, Inc. Employees Profit Sharing Plan (the Plan) Located in 
Houston, Texas

[Application No. D-11449]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption 
is granted, the restrictions of sections 406(a), 406(b)(1) and(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the 
Code, shall not apply to the proposed sale of certain unimproved real 
property (the Property) by the Plan to Pileco, Inc. (Pileco or the 
Applicant), the sponsor of the Plan, and a party in interest with 
respect to the Plan, provided that the following conditions are 
satisfied:
    (a) The sale is a one-time transaction for cash;
    (b) At the time of the sale, the Plan receives the greater of 
either: (1) $280,000; or (2) the fair market value of the Property as 
established by a qualified, independent appraiser in an updated 
appraisal of such Property;
    (c) The Plan pays no fees, commissions or other expenses associated 
with the sale;
    (d) The terms and conditions of the sale are at least as favorable 
to the Plan as those obtainable in an arm's length transaction with an 
unrelated third party; and
    (e) The Plan trustee (1) Determines, among other things, whether it 
is in the best interest of the Plan to proceed with the sale of the 
Property; (2) reviews and approves the methodology used in the 
appraisal that is being relied upon; and (3) ensures that such 
methodology is applied by the qualified independent appraiser in 
determining the fair market value of the Property on the date of the 
sale.

Summary of Facts and Representations

    1. The Plan is a defined contribution profit sharing plan without a 
401(k) feature. The Plan was effective as of October 1, 1974, and was 
most recently restated effective May 8, 2004. As of September 30, 2006, 
the Plan had a total of 27 participants, and approximately $2.99 
million in total assets. The Plan's current trustee is Mr. Otto 
Kammerer,

[[Page 39176]]

who is also the Chairman of the Board of Directors of Pileco, as well 
as the Plan participant with the largest account balance. As of 
September 30, 2006, Mr. Kammerer's Plan account comprised approximately 
28% (or $837,200) of the Plan's total assets.
    2. Pileco, which maintains its principal place of business in 
Houston, Texas, is primarily involved in the engineering, fabrication, 
sale, rental, and servicing of diesel pile hammers. Pileco is a wholly-
owned subsidiary of Bauer Mashinen, GmbH (Bauer), a corporation 
organized under the laws of the Federal Republic of Germany. Bauer is a 
multinational firm, headquartered in Schrobenhausen, Germany, that 
specializes in engineering, construction, and heavy equipment 
manufacturing.
    3. On March 26, 1980, the Plan purchased the Property from Richard 
and Christine Levinge, unrelated third parties, for $77,912.15. The 
consideration was paid in cash. The Property is a vacant and unimproved 
69,670 square foot parcel of land (consisting of 1.5994 acres) located 
east of Madie Drive, and north of Berry Road in Houston, Texas (Harris 
County). The Property is adjacent to other unimproved property that is 
owned by Pileco. Mr. Kammerer, as the Plan trustee, made the original 
decision to purchase the Property as a long-term growth investment for 
the Plan.\21\ Since the time of acquisition, the Property has not been 
an income-producing asset. Mr. Kammerer represents that all holding 
costs that have been incurred with respect to the Property since its 
acquisition in 1980, including, but not limited to: Property taxes, 
liability insurance premiums, and expenses associated with securing the 
premises, have been paid in full by Pileco.
---------------------------------------------------------------------------

    \21\ The Plan once owned another parcel of property that was 
adjacent to the subject Property. This property was sold to Pileco 
for $152,678, pursuant to the Department's expedited exemption 
procedure (See E-00521; FAN 2006-12E, June 8, 2006).
---------------------------------------------------------------------------

    4. The Property was originally appraised on September 22, 2006, by 
Stephen M. LaGrasta, MAI, who is an independent, state-certified real 
estate appraiser in the State of Texas. Mr. LaGrasta is a principal in 
the real estate appraisal firm of Yates-LaGrasta, Inc. of Houston, 
Texas. In an appraisal report dated October 2, 2006, Mr. LaGrasta 
valued the Property using the Sales Comparison Approach. Mr. LaGrasta 
compared the Property to five other properties sold within close 
proximity to the Property between January 2005 and September 2006. He 
adjusted the sale price of the comparable properties based upon sales 
date, location, size and shape. Mr. LaGrasta determined that the fair 
market value of the Property was $140,000 as of September 22, 2006.
    In his original appraisal, Mr. LaGrasta did not attribute any 
special benefit to the value of the Property from Pileco's ownership of 
the adjacent property due to a number of factors, including: (a) A 
large amount of undeveloped land that is available in the area for 
purchase; (b) the comparatively larger size of Pileco's neighboring 
land in comparison to the size of the Property; (c) the less desirable 
location of the Property in relation to Pileco's neighboring land; and 
(d) the Property's lack of significant street frontage or other 
qualities that make it attractive for purposes of commercial 
development. Therefore, Mr. LaGrasta did not include any premium for 
assemblage value.\22\
---------------------------------------------------------------------------

    \22\ ``Assemblage'' value reflects the willingness of a 
purchaser to pay above market value for a parcel of property in 
order to preserve such purchaser's interest in their present 
holdings of other parcels which are adjacent to such property.
---------------------------------------------------------------------------

    5. An updated appraisal of the Property was prepared by Mr. 
LaGrasta on January 21, 2008, and it reflects the current market 
conditions. The Property was again valued using the Sales Comparison 
Approach. Mr. LaGrasta compared the Property to three other similar 
properties sold within close proximity to the Property since March 
2007. He adjusted the sales price of the comparable properties based 
upon the sales date, location, size and shape. Mr. LaGrasta determined 
that the fair market value of the Property was $270,000 as of January 
21, 2008. Based on its current appraised value, the Property currently 
represents approximately 9% of the Plan's assets.
    In the updated appraisal report, Mr. LaGrasta again stated that the 
subject Property does not enhance the value of the property currently 
owned by Pileco. He determined that the payment by Pileco of an 
adjacency premium for the Property is not supported because: (a) The 
Pileco tract has extensive frontage in its current configuration; (b) 
there is other land available in the mixed use area and scarcity would 
not be an issue; (c) the Pileco property is not hampered by size, 
visibility and street frontage; and (d) the Pileco-owned property can 
be easily developed without the addition of the subject Property. 
Further, Mr. LaGrasta pointed out that the addition of the Property 
would tend to lower the per square foot value of the combined tract due 
to doubling in size. Also, Mr. LaGrasta noted that the combined tract 
would still be irregularly-shaped, which could hamper development and 
make the site less functional.
    6. The Applicant requests an individual exemption from the 
Department in order to purchase the Property from the Plan. The 
Applicant represents that the Property is being sold as part of a 
change in control in which 100% of the capital stock of Pileco was 
acquired on October 7, 2005 by Bauer, which was then unaffiliated with 
the pre-October 7, 2005 shareholders of Pileco. The Board of Directors 
of Pileco has approved the complete freeze and termination of the Plan 
coincident with the closing of such an acquisition. In connection with 
the termination of the Plan, an application will be filed with the 
Internal Revenue Service for a favorable determination regarding the 
Plan's status as a qualified plan. Once such determination is received, 
the Plan will be liquidated and all account balances under the Plan 
will be distributed. Thus, the proposed transaction is motivated, in 
part, by a need to increase the Plan's liquidity in anticipation of the 
distribution of participants' account balances.
    7. It is also represented that the Plan has made efforts to sell 
the Property to unrelated third parties. To this end, the Plan listed 
the Property on the open market for a number of years at a listing 
price of $4.00 per square foot ($278,680). However, this listing price 
was not based on a professional appraisal of the Property. During the 
listing period, the Plan did not receive any offers from third-party 
purchasers to purchase the Property.
    8. The Plan will pay no real estate commissions or other expenses 
associated with the sale. Pileco will pay the Plan in cash, the greater 
of either: (a) $280,000; \23\ or (b) the fair market value of the 
Property, as established by a qualified, independent appraiser on the 
date of the transaction, as reflected in an updated appraisal of such 
Property.\24\ Further, the parties will enter into a real estate 
contract to evidence the proposed sale transaction.
---------------------------------------------------------------------------

    \23\ Pileco proposes to pay the appraised fair market value of 
the Property of $270,000, plus $10,000 which would be paid in full, 
in cash, at a closing to be held within thirty (30) days of the 
publication in the Federal Register of the notice granting the final 
exemption.
    \24\ The Applicant represents that, to the best of its 
knowledge, to the extent the amount paid by Pileco for the Property 
exceeds its fair market value, such excess amount (if treated as an 
employer contribution) will not cause the annual additions to the 
Plan to exceed the limitations prescribed by section 415 of the 
Code.
---------------------------------------------------------------------------

    9. As the Plan trustee, Mr. Kammerer, will determine, among other 
things, whether it is in the best interest of the Plan to go forward 
with the sale of the Property. In addition, Mr. Kammerer will review 
and approve the

[[Page 39177]]

methodology used in the appraisal that is being relied upon, and he 
will ensure that such methodology is applied by a qualified independent 
appraiser in determining the fair market value of the Property on the 
date of the sale.
    10. In summary, it is represented that the proposed transaction 
will satisfy the statutory criteria for an exemption under section 
408(a) of the Act because:
    (a) The proposed sale will be a one-time transaction for cash;
    (b) The Plan will receive the greater of either:
    (i) $280,000; or (ii) the fair market value for the Property, as 
established on the date of the sale by an independent, qualified 
appraiser in an updated appraisal of such Property;
    (c) The Plan will pay no fees, commissions or other expenses 
associated with the sale;
    (d) The terms and conditions of the sale will be at least as 
favorable to the Plan as those obtainable in an arm's length 
transaction with an unrelated third party; and
    (e) The Plan trustee: (i) Will determine, among other things, 
whether it is in the best interest of the Plan to proceed with the sale 
of the Property; (ii) will review and approve the methodology used in 
the appraisal that is being relied upon; and (iii) will ensure that 
such methodology is applied by the qualified independent appraiser in 
determining the fair market value of the Property on the date of the 
sale.

Tax Consequences of the Proposed Transaction

    The Department of the Treasury has determined that if a transaction 
between a qualified employee benefit plan and its sponsoring employer 
(or affiliate thereof) results in the plan either paying less than or 
receiving more than fair market value, such excess may be considered to 
be a contribution by the sponsoring employer to the plan and, 
therefore, must be examined under applicable provisions of the Internal 
Revenue Code, including sections 401(a)(4), 404 and 415.

FOR FURTHER INFORMATION CONTACT: Blessed Chuksorji-Keefe of the 
Department at (202) 693-8567. (This is not a toll-free number).

Mellon Bank N.A. (Mellon)

    Located in Pittsburgh, Pennsylvania.

[Application No. D-11460]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code, in accordance with the procedures set forth in 29 CFR part 2570, 
subpart B (55 FR 32836, 32847, August 10, 1990).
    If the proposed exemption is granted, the restrictions of sections 
406(a), 406(b)(1) and 406(b)(2) of the Act and the sanctions resulting 
from the application of section 4975 of the Code, by reason of section 
4975(c)(1)(A) through (E) of the Code, shall not apply as of January 
18, 2008, to the cash sale of certain medium term notes (the Notes) for 
$28,584,601.46 by the EB Daily Liquidity Money Market Fund (the Fund) 
to The Bank of New York Mellon Corporation (BNYMC), a party in interest 
with respect to employee benefit plans invested in the Fund, provided 
that the following conditions are met.
    (a) The sale was a one-time transaction for cash payment made on a 
delivery versus payment basis in the amount described in paragraph (b);
    (b) The Fund received an amount as of the settlement date of the 
sale which was equal to the greatest of:
    (i) The amortized cost of the Notes as of the date of the sale, if 
the Fund has been valued at amortized cost at any time within the 
preceding year;
    (ii) The price at which the Fund purchased the Notes, if the Fund 
is valued at fair market value and the Fund has not been valued at 
amortized cost at any time within the preceding year; or
    (iii) The fair market value of the Notes as of the date of the 
sale, as determined by an independent third party source or independent 
appraisal (in each case, including accrued but unpaid interest);
    (c) The Fund did not bear any commissions or transaction costs with 
respect to the sale;
    (d) Mellon, as trustee of the Fund, determined that the sale of the 
Notes was appropriate for and in the best interests of the Fund, and 
the employee benefit plans invested, directly or indirectly, in the 
Fund, at the time of the transaction;
    (e) Mellon took all appropriate actions necessary to safeguard the 
interests of the Fund, and the employee benefit plans invested in the 
Fund, in connection with the transactions;
    (f) If the exercise of any of BNYMC's rights, claims or causes of 
action in connection with its ownership of the Notes results in BNYMC 
recovering from the issuer of the Notes, or any third party, an 
aggregate amount that is more than the sum of:
    (i) The purchase price paid for the Notes by BNYMC (i.e., $28.5 
million); and
    (ii) The interest due on the Notes from and after the date BNYMC 
purchased the Notes from the Fund, at the rate specified in the Notes, 
BNYMC will refund such excess amounts promptly to the Fund (after 
deducting all reasonable expenses incurred in connection with the 
recovery).
    (g) Mellon and its affiliates, as applicable, maintain, or cause to 
be maintained, for a period of six (6) years from the date of any 
covered transaction such records as are necessary to enable the persons 
described below in paragraph (h)(i), to determine whether the 
conditions of this exemption have been met, except that--
    (i) No party in interest with respect to a plan which engages in 
the covered transactions, other than Mellon and its affiliates, as 
applicable, shall be subject to a civil penalty under section 502(i) of 
the Act or the taxes imposed by section 4975(a) and (b) of the Code, if 
such records are not maintained, or not available for examination, as 
required, below, by paragraph (h)(i); and
    (ii) A separate prohibited transaction shall not be considered to 
have occurred solely because due to circumstances beyond the control of 
Mellon or its affiliate, as applicable, such records are lost or 
destroyed prior to the end of the six-year period.
    (h)(i) Except as provided, below, in paragraph (h)(ii), and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to, above, in paragraph (g) are 
unconditionally available at their customary location for examination 
during normal business hours by--
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the SEC; or
    (B) Any fiduciary of any plan that engages in the covered 
transactions, or any duly authorized employee or representative of such 
fiduciary; or
    (C) Any employer of participants and beneficiaries and any employee 
organization whose members are covered by a plan that engages in the 
covered transactions, or any authorized employee or representative of 
these entities; or
    (D) Any participant or beneficiary of a plan that engages in the 
covered transactions, or duly authorized employee or representative of 
such participant or beneficiary;
    (ii) None of the persons described, above, in paragraph (h)(i)(B)--
    (D) Shall be authorized to examine trade secrets of Mellon, or 
commercial or financial information which is privileged or 
confidential; and
    (iii) Should Mellon refuse to disclose information on the basis 
that such information is exempt from disclosure, Mellon shall, by the 
close of the thirtieth (30th) day following the

[[Page 39178]]

request, provide a written notice advising that person of the reasons 
for the refusal and that the Department may request such information.

Summary of Facts and Representations

    1. Mellon Bank, N.A. (Mellon) is a subsidiary of The Bank of New 
York Mellon Corporation (BNYMC), a Delaware financial services company 
that provides a wide range of banking and fiduciary services to a broad 
array of clients, including employee benefit plans subject to the Act. 
The Fund is a collective investment fund established and maintained by 
Mellon, as trustee, for the collective investment and reinvestment of 
assets contributed thereto by Mellon and its affiliates on behalf of 
their employee benefit plan clients. The Fund is a group trust that is 
exempt from federal income tax pursuant to Rev. Rul. 81-100. As of 
January 7, 2008, the value of the Fund's portfolio (including the 
Notes) was approximately $1.39 billion. As of such date, there were 25 
direct investors in the Fund, including 21 other collective investment 
funds maintained by Mellon, three employee benefit plans subject to the 
Act (including the Mellon 401(k) Retirement Savings Plan) and one 
government plan.
    2. The Fund is a short-term investment fund (``STIF'') that is 
utilized as (i) a short-term investment vehicle for the uninvested cash 
held by other Mellon collective investment funds and individual 
employee benefit plan clients of Mellon and its affiliates, and (ii) as 
an investment option for 401(k) plan clients. As of January 7, 2008, 
the Fund's dollar-weighted average duration/days to reset was 30.7 
days. The Fund's stated investment objective provides that the Fund is 
to achieve a high level of current income consistent with stability of 
principal and liquidity. The assets of the Fund are invested in a 
diversified portfolio of investment grade money market instruments 
including, without limitation, commercial paper (including paper issued 
under Section 3(a)(3), Section 4(2) and Rule 144A of the Securities Act 
of 1933), the Mellon EB Temporary Investment Fund, notes, repurchase 
agreements and other evidences of indebtedness which are payable on 
demand or which have a maturity date not exceeding 13 months from date 
of purchase, except for floating rate securities, which may have a 
final maturity of up to two years from date of purchase. The Fund 
maintains a dollar-weighted average portfolio maturity of 90 days or 
less. Consistent with the foregoing, the Fund utilizes so-called 
amortized cost accounting (similar to a money market mutual fund) with 
the result that units of the Fund are generally valued at a constant 
amount equal to $1.00. The Fund's net income (including any accretion 
of discounts or amortization of premiums) is accrued daily and 
additional units are issued to reflect such net income.
    3. The Fund purchased the Notes on January 27, 2007, for $28.5 
million. The Notes were two year bonds with a par value of $28.5 
million, issued by Stanfield Victoria Finance Ltd. (the Issuer) on 
March 24, 2006, with a maturity date of March 27, 2008. Interest on the 
Notes was taxable and payable quarterly at a variable rate which was 
reset each quarter based upon the three-month London Interbank Offered 
Rate (LIBOR). The principal amount and unpaid interest on the Notes 
were payable at maturity.
    4. The Issuer is a so-called structured investment vehicle (SIV) 
that raised capital primarily by issuing various types and classes of 
notes, including the Notes. The capital raised was then utilized by the 
Issuer to purchase various financial assets, including other asset-
backed securities and mortgage-backed securities. The assets acquired 
by the Issuer were pledged to secure payment of certain of the notes 
issued by the Issuer, including the Notes, pursuant to a security 
agreement with an independent bank serving as collateral agent. This 
security agreement provided that, as a general rule, upon the 
occurrence of an ``Enforcement Event,'' as defined in the agreement, 
the collateral agent was required to sell all of the Issuer's assets 
and distribute the proceeds thereof.
    5. The decision to invest Fund assets in the Notes was made by 
Mellon as trustee of the Fund. Prior to the investment, Mellon 
conducted an investigation of the potential investment, examining and 
considering the economic and other terms of the Notes. Mellon 
represents that the Fund's investment in the Notes was consistent with 
the Fund's investment policies and objectives. At the time the Fund 
acquired the Notes, the Notes were rated ``AAA'' by Standard & Poor's 
Corporation (``S&P'') and ``Aaa'' by Moody's Investor Services, Inc. 
(``Moody's''). Based on its consideration of the relevant facts and 
circumstances, Mellon states that it was prudent and appropriate for 
the Fund to acquire the Notes.\25\
---------------------------------------------------------------------------

    \25\ The Department is expressing no opinion in this proposed 
exemption regarding whether the acquisition and holding of the Notes 
by the Fund violated any of the fiduciary responsibility provisions 
of Part 4 of Title I of the Act.
---------------------------------------------------------------------------

    6. On November 7, 2007, S&P placed a ``negative watch'' on the 
Notes. On December 21, 2007, Moody's downgraded the rating of the Notes 
to ``Baa3.'' On January 7, 2008, S&P downgraded the rating of the Notes 
to ``B-.'' Responding to these events, Mellon, on behalf of the Fund, 
executed an amendment to the security agreement governing the Notes on 
January 7, 2008. Pursuant to this amendment, by providing notice 
(Election Notice) on or before January 17, 2008, Mellon could elect to 
have the pro-rata share of the collateral assets allocable the Notes 
held by the Fund excluded from any asset sale by the collateral agent 
that would otherwise occur immediately upon the occurrence of an 
Enforcement Event. On January 8, 2008, as a result of the foregoing 
ratings down-grades, an Enforcement Event occurred. On January 10, 
2008, the Issuer did not repay certain notes maturing on that date. On 
January 14, 2008, Mellon submitted an Election Notice to the collateral 
agent instructing the collateral agent to exclude the Fund's pro rata 
share of the Issuer's assets from the asset sale triggered by the 
occurrence of the Enforcement Event on January 8, 2008. On January 15, 
2008, Moody's further downgraded its rating of the Notes to ``B2.'' On 
January 17, 2008, S&P further downgraded its rating of the Notes to 
``D.''
    7. Mellon's election was based on Mellon's determination that the 
market for the collateral assets securing the Notes was severely 
distressed and that the inherent value of such assets was substantially 
greater than the price that could have been obtained if such assets 
were sold currently by the collateral agent. Accordingly, Mellon 
determined that it was in the best interest of the Fund to exclude such 
assets from a current sale.
    8. While the units of the Fund are generally valued at $1.00, 
Mellon, as Trustee of the Fund, obtains market prices for all of the 
Fund's assets to confirm that the fair market value of such assets is 
substantially consistent with the constant $1.00 value being utilized 
in the operation of the Fund. Mellon utilizes an unrelated entity, 
Interactive Data Corporation (IDC), as a pricing service for this 
purpose. On January 11, 2008, IDC reported the price of the Notes as 
being 99.0501 percent of their par value. Mellon questioned the IDC 
price in light of the facts discussed in paragraph 6 above and the fact 
that Credit Suisse First Boston had indicated that the Notes were 
trading at distressed levels. IDC announced on January 11, 2008 that, 
effective January 15, 2008, it would no longer price the Notes in view

[[Page 39179]]

of the occurrence of an Enforcement Event and ``the lack of current bid 
and other verifiable market and/or credit information pertaining'' to 
the Notes. As a result of the events described in paragraph 6, an 
independent analysis of the Notes prepared by Gifford Fong Associates 
(GFA) was obtained on January 11, 2008. The analysis estimated the 
value of the Notes, as of January 10, 2008, at 91 percent of their par 
value. GFA's determination of the value of the Notes was based upon its 
analysis and evaluation of the underlying assets of the Issuer relating 
to the Notes.
    9. In view of the foregoing, Mellon determined that it would be 
appropriate and in the best interest of the Fund for the Notes to be 
sold by the Fund for their par value plus accrued interest. Mellon also 
determined that the purchase of the Notes by BNYMC would be permissible 
under applicable banking law. Therefore, in order to protect the Fund 
and the participating investors having an interest in the Fund from 
potential investment losses, Mellon determined that a sale of the Notes 
by the Fund to BNYMC at a price equal to the par value of the Notes 
plus accrued interest would be in the best interest of the Fund and all 
of its participating investors. On January 17, 2008, notice of this 
determination was provided to a representative of each of the 25 
investors having a direct interest in the Fund.
    10. On January 18, 2008, BNYMC purchased the Notes from the Fund 
for a lump sum cash payment of $28,584,601.46. This sum represented the 
par value of the Notes (i.e. $28.5 million) plus the accrued interest 
owing on the Notes (i.e. $84,601.46) as of January 17, 2008. Mellon 
represents that this amount equals the amortized cost of the Notes plus 
accrued but unpaid interest.
    11. As noted in paragraph 8, prior to the consummation of the 
transaction, valuations of the Notes were obtained on January 11, 2008 
(seven days prior to the sale) from an independent pricing service, 
GFA, in addition to the most recent price available from IDC. GFA's 
valuation of the Notes reflected its estimation of the value of the 
Notes as of January 10, 2008. Mellon states that GFA is a highly-
regarded independent valuation firm with respect to the pricing of 
securities such as the Notes. As noted in paragraph 8 above, the 
valuation of the Notes obtained from GFA was 91 percent of their par 
value. Moreover, Mellon had obtained information from an independent 
broker-dealer that the market for the Notes was in extreme distress 
with prices for any actual trades being substantially below the GFA 
value. On the basis of this information, Mellon determined that the 
purchase price paid by BNYMC to the Fund exceeded the aggregate fair 
market value of the Notes as of the date of the transaction.
    12. Mellon, as trustee of the Fund, believed that the sale of the 
Notes to BNYMC was in the best interests of the Fund, and the employee 
benefit plans invested in the Fund, at the time of the transaction. 
Mellon states that any sale of the Notes on the open market would have 
produced significant losses for the Fund and for the participating 
investors in the Fund. Mellon represents that the sale of the Notes by 
the Fund to BNYMC benefited the participating investors in the Fund by 
placing such investors in the same economic position they would have 
occupied absent the deterioration in the value of the Notes due to 
their rating downgrades, the occurrence of an Enforcement Event and the 
general disruption in the relevant markets. The participating investors 
in the Fund benefited further because the purchase price paid by BNYMC 
for the Notes substantially exceeded the aggregate fair market value of 
the Notes, as determined by GFA.
    In addition, Mellon states that the transaction was a one-time sale 
for cash in connection with which the Fund did not bear any brokerage 
commissions, fees, or other expenses. Mellon represents that it took 
all appropriate actions necessary to safeguard the interests of the 
Fund and its participating investors in connection with the sale of the 
Notes.
    13. Mellon states that the sale of the Notes by the Fund to BNYMC 
resulted in an assignment of all of the Fund's rights, claims, and 
causes of action against the Issuer or any third party arising in 
connection with or out of the issuance of the Notes or the purchase of 
the Notes by the Fund. Mellon states further that if the exercise of 
any of the foregoing rights, claims or causes of action results in 
BNYMC recovering from the Issuer or any third party an aggregate amount 
that is more than the sum of (a) the purchase price paid for the Notes 
by BNYMC (i.e. $28.5 million); and (b) the interest due on the Notes 
from and after the date BNYMC purchased the Notes from the Fund, at the 
rate specified in the Notes, BNYMC will refund such excess amounts 
promptly to the Fund (after deducting all reasonable expenses incurred 
in connection with the recovery).
    14. In summary, the applicant represents that the transaction 
satisfied the statutory criteria of section 408(a) of the Act and 
section 4975 of the Code because: (a) The sale of the Notes by the Fund 
was a one-time transaction for cash payment made on a delivery versus 
payment basis; (b) the Fund received an amount equal to the amortized 
cost of the Notes, plus accrued but unpaid interest, at the time of 
sale, which was greater than the aggregate fair market value of the 
Notes as determined by an independent pricing service and an 
independent valuation firm at the time of sale; (c) the Fund did not 
pay any commissions or other expenses with respect to the sale; (d) 
Mellon, as trustee of the Fund, determined that the sale of the Notes 
to BNYMC was in the best interests of the Fund, and the employee 
benefit plans invested, directly or indirectly, in the Fund, at the 
time of the transaction; (e) Mellon took all appropriate actions 
necessary to safeguard the interests of the Fund in connection with the 
transactions; and (f) BNYMC will promptly refund to the Fund any 
amounts recovered from the Issuer or any third party in connection with 
its exercise of any rights, claims or causes of action as a result of 
its ownership of the Notes, if such amounts are in excess of the sum 
of: (i) the purchase price paid for the Notes by BNYMC (i.e. $28.5 
million) and (ii) the interest due on the Notes from and after the date 
BNYMC purchased the Notes from the Fund, at the rate specified in the 
Notes.

Notice to Interested Persons

    Written notice will be provided to a representative of each of the 
25 investors having a direct interest in the Fund. The notice shall 
contain a copy of the proposed exemption as published in the Federal 
Register and an explanation of the rights of interested parties to 
comment, or request a hearing, regarding the proposed exemption. Such 
notice will be provided by personal or express delivery within 15 days 
of the issuance of a proposed exemption. Any written comments and/or 
requests for a hearing must be received by the Department from 
interested persons within 45 days of the publication of this proposed 
exemption in the Federal Register.

For Further Information Contact: Ms. Karen Lloyd of the Department, 
telephone (202) 693-8554. (This is not a toll-free number.)

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or

[[Page 39180]]

disqualified person from certain other provisions of the Act and/or the 
Code, including any prohibited transaction provisions to which the 
exemption does not apply and the general fiduciary responsibility 
provisions of section 404 of the Act, which, among other things, 
require a fiduciary to discharge his duties respecting the plan solely 
in the interest of the participants and beneficiaries of the plan and 
in a prudent fashion in accordance with section 404(a)(1)(b) of the 
Act; nor does it affect the requirement of section 401(a) of the Code 
that the plan must operate for the exclusive benefit of the employees 
of the employer maintaining the plan and their beneficiaries;
    (2) Before an exemption may be granted under section 408(a) of the 
Act and/or section 4975(c)(2) of the Code, the Department must find 
that the exemption is administratively feasible, in the interests of 
the plan and of its participants and beneficiaries, and protective of 
the rights of participants and beneficiaries of the plan;
    (3) The proposed exemption, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and/or the 
Code, including statutory or administrative exemptions and transitional 
rules. Furthermore, the fact that a transaction is subject to an 
administrative or statutory exemption is not dispositive of whether the 
transaction is in fact a prohibited transaction; and
    (4) The proposed exemption, if granted, will be subject to the 
express condition that the material facts and representations contained 
in each application are true and complete, and that each application 
accurately describes all material terms of the transaction which is the 
subject of the exemption.

    Signed at Washington, DC, this 1st day of July, 2008.
Ivan Strasfeld
Director of Exemption Determinations,
 [FR Doc. E8-15320 Filed 7-7-08; 8:45 am]
BILLING CODE 4510-29-P