[Federal Register Volume 74, Number 168 (Tuesday, September 1, 2009)]
[Notices]
[Pages 45284-45304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20724]



[[Page 45283]]

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Part II





Department of Labor





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Employee Benefits Security Administration



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Grant of Individual Exemptions and Prohibited Transaction Exemptions 
Involving: PNC Financial Services Group, Inc. (PNC Financial), PTE 
2009-22; Verizon Investment Management Corporation, PTE 2009-23; United 
States Steel and Carnegie Pension Fund (the Applicant), PTE 2009-24; 
and Barclays Global Investors, N.A. and Its Affiliates and Successors 
(BGI) and Barclays Capital Inc. and Its Affiliates and Successors 
(BarCap) (Collectively the Applicants), PTE 2009-25; Notice

  Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / 
Notices  

[[Page 45284]]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Grant of Individual Exemptions and Prohibited Transaction 
Exemptions Involving: PNC Financial Services Group, Inc. (PNC 
Financial), PTE 2009-22; Verizon Investment Management Corporation, PTE 
2009-23; United States Steel and Carnegie Pension Fund (the Applicant), 
PTE 2009-24; and Barclays Global Investors, N.A. and Its Affiliates and 
Successors (BGI) and Barclays Capital Inc. and Its Affiliates and 
Successors (BarCap) (Collectively the Applicants), PTE 2009-25

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of Individual Exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
    A notice was published in the Federal Register of the pendency 
before the Department of a proposal to grant such exemption. The notice 
set forth a summary of facts and representations contained in the 
application for exemption and referred interested persons to the 
application for a complete statement of the facts and representations. 
The application has been available for public inspection at the 
Department in Washington, DC. The notice also invited interested 
persons to submit comments on the requested exemption to the 
Department. In addition the notice stated that any interested person 
might submit a written request that a public hearing be held (where 
appropriate). The applicant has represented that it has complied with 
the requirements of the notification to interested persons. No requests 
for a hearing were received by the Department. Public comments were 
received by the Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), transferred the authority of the Secretary of the Treasury to 
issue exemptions of the type proposed to the Secretary of Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:
    (a) The exemption is administratively feasible;
    (b) The exemption is in the interests of the plan and its 
participants and beneficiaries; and
    (c) The exemption is protective of the rights of the participants 
and beneficiaries of the plan.

PNC Financial Services Group, Inc. (PNC Financial), Located in 
Pittsburgh, Pennsylvania.

[Prohibited Transaction Exemption 2009-22 Application No. D-11397.]

Exemption

Section I--Exemption for Receipt of Fees

    In connection with the investment in an open-end investment company 
(a Fund or Funds), as defined, below, in Section IV(e), by certain 
employee benefit plans (Client Plan or Client Plans) for which PNC, as 
defined, below, in Section IV(a), serves as a fiduciary and is a party 
in interest with respect to such Client Plan(s), the restrictions of 
sections 406(a) and 406(b) of the Act and the sanctions resulting from 
the application of section 4975 of the Code, by reason of sections 
4975(c)(1)(A) through (F) \1\ of the Code, shall not apply, effective 
September 29, 2006, to:
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    \1\ For purposes of this exemption references to specific 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
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    (a) The receipt of fees by PNC from a Fund where BlackRock, as 
defined, below, in Section IV(b), acts as the investment adviser for 
such Fund, and the receipt of fees by BlackRock for the provision of 
investment advisory services, or similar services, to such Fund;
    (b) The receipt of fees by PNC from a Fund for providing certain 
service(s) (Secondary Service(s)), as defined, below, in Section IV(i), 
to such Fund; and
    (c) The receipt of fees by PNC from BlackRock in connection with 
administrative service(s) (Mutual Fund Administration Service(s)), as 
defined, below, in Section IV(l), provided to a Fund in which a Client 
Plan invests; provided that the conditions, as set forth in Section II 
and Section III, below, were satisfied, as of the effective date of 
this exemption and thereafter.

Section II--Specific Conditions

    (a) PNC, serving as a fiduciary for a Client Plan, satisfies any 
one (but not all) of the following:
    (1) A Client Plan invested in a Fund does not pay any plan-level 
investment management fee, investment advisory fee, or similar fee 
(Plan-Level Fee(s)) to PNC with respect to any of the assets of such 
Client Plan which are invested in shares of such Fund for the entire 
period of such investment (the Offset Fee Method). This condition does 
not preclude the payment of investment advisory fees or similar fees 
(Fund-Level Fee(s)) by a Fund to BlackRock under the terms of an 
investment advisory agreement adopted in accordance with section 15 of 
the Investment Company Act of 1940 (the Investment Company Act);
    (2) A Client Plan invested in a Fund pays an investment management 
fee or similar fee based on total assets of such Client Plan from which 
a credit has been subtracted representing such Client Plan's pro rata 
share of investment advisory fees or similar fees paid by such Fund to 
BlackRock (the Subtraction Fee Method). If, during any fee period for 
which a Client Plan has prepaid its investment management or similar 
fee, such Client Plan purchases shares of such Fund, the requirement of 
this Section II(a)(2) shall be deemed met with respect to such prepaid 
fee if, by a method reasonably designed to accomplish the same, the 
amount of the prepaid fee that constitutes the fee with respect to the 
assets of such Client Plan invested in shares of such Fund: (i) Is 
anticipated and subtracted from the prepaid fee at the time of payment 
of such fee, (ii) is returned to such Client Plan no later than during 
the immediately following fee period, or (iii) is offset against the 
prepaid fee for the immediately following fee period or for the fee 
period immediately following thereafter. For purposes of this Section 
II(a)(2), a fee shall be deemed to be prepaid for any fee period, if 
the amount of such fee is calculated as of a date not later than the 
first day of such period; or
    (3) A Client Plan invested in a Fund receives a ``a credit'' \2\ 
(the Credit Fee Method) of such Client Plan's proportionate share of 
all fees charged to such Fund by BlackRock for

[[Page 45285]]

investment advisory services or similar services for a particular 
month: (1) Effective for the period, September 29, 2006, through 
December 31, 2008, on the earlier of either: (a) The same day as PNC 
receives a fee from BlackRock for Mutual Fund Administration Services 
provided for that month to such Fund by PNC, or (b) the fifth business 
day before the end of the month following the month in which fees for 
investment advisory services, or similar services, accrued, or (2) 
effective for the period beginning, January 1, 2009, and continuing 
thereafter, on a date which is no later than one business day after 
BlackRock receives fees from the Fund for investment advisory services, 
or similar services, provided for that month to such Fund by BlackRock. 
The crediting of all such fees to such Client Plan by PNC is audited by 
an independent accounting firm (the Auditor) on at least an annual 
basis to verify the proper crediting of such fees to such Client Plan.
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    \2\ PNC Financial represents that it would be accurate to 
describe ``the credit'' as a ``credited dollar amount'' to cover 
situations in which the credited amount is used to acquire 
additional shares of a Fund, rather than being held by a Client Plan 
in the form of cash. It is represented that the standard practice is 
to reinvest the ``credited dollar amount'' in additional shares of 
the same Fund with respect to which the fees were credited.
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    (b) The price paid or received by a Client Plan for shares in a 
Fund is the net asset value per share, as defined, below, in Section 
IV(f), at the time of the transaction, and is the same price which 
would have been paid or received for such shares by any other investor 
in such Fund at that time;
    (c) PNC, including any officer or director of PNC, does not 
purchase shares of a Fund from any Client Plan or sell shares of a Fund 
to any Client Plan;
    (d) A Client Plan does not pay sales commissions in connection with 
any purchase or sale of shares of a Fund, and a Client Plan does not 
pay redemption fees in connection with any sale of shares to a Fund, 
unless
    (1) Such redemption fee is paid only to a Fund, and
    (2) The existence of such redemption fee is disclosed in the 
prospectus for such Fund in effect both at the time of any purchase of 
such shares and at the time of such sale;
    (e) The combined total of all fees received by PNC for services 
provided by PNC:
    (1) To Client Plans, and
    (2) To Funds in which Client Plans invest is not in excess of 
reasonable compensation within the meaning of section 408(b)(2) of the 
Act;
    (f) PNC does not receive any fees payable pursuant to Rule 12b-1 
under the Investment Company Act in connection with the subject 
transactions;
    (g) A Client Plan is not an employee benefit plan sponsored or 
maintained by PNC;
    (h) A second fiduciary (Second Fiduciary), as defined, below, in 
Section IV(h), who is acting on behalf of a Client Plan receives, in 
advance of any initial investment by a Client Plan in a Fund, full and 
detailed written disclosure of information concerning such Fund, 
including but not limited to:
    (1) A current prospectus for each Fund in which such Client Plan is 
considering investing;
    (2) A statement describing the fees, including the nature and 
extent of any differential between the rates of such fees for:
    (i) Any investment advisory or similar services to be paid by such 
Fund to BlackRock,
    (ii) Any Secondary Services to be paid by such Fund to PNC,
    (iii) Any Mutual Fund Administration Services to be paid by 
BlackRock to PNC, and
    (iv) All other fees to be charged to or paid by a Client Plan and 
by such Fund;
    (3) The reasons why PNC, acting as fiduciary for such Client Plan, 
may consider investment in such Fund to be appropriate for such Client 
Plan;
    (4) A statement describing whether there are any limitations 
applicable to PNC with respect to which assets of a Client Plan that 
may be invested in such Fund, and if so, the nature of such 
limitations; and
    (5) Upon the request of the Second Fiduciary, acting on behalf of a 
Client Plan, a copy of the proposed exemption and a copy of the final 
exemption, once such documents are published in the Federal Register.
    (i) On the basis of the information described, above, in Section 
II(h), a Second Fiduciary, acting on behalf of a Client Plan, 
authorizes in writing: (1) The investment of the assets of such Client 
Plan in shares of each particular Fund; and (2) the fees received by 
PNC and by BlackRock in connection with services provided by PNC and by 
BlackRock to such Fund. Such authorization by a Second Fiduciary must 
be consistent with the responsibilities, obligations, and duties 
imposed on fiduciaries by Part 4 of Title I of the Act.
    (j)(1) All authorizations, described, above, in Section II(i), made 
by a Second Fiduciary, regarding: (i) Investments by a Client Plan in a 
Fund, (ii) fees paid for investment advisory services or similar 
services provided by BlackRock to such Fund, (iii) fees paid for 
Secondary Services provided by PNC to such Fund, and (iv) fees paid by 
BlackRock to PNC for Mutual Fund Administration Services provided by 
PNC to such Fund, shall be terminable at will by the Second Fiduciary, 
acting on behalf of such Client Plan, without penalty to such Client 
Plan, upon receipt by PNC of a written notice of termination. A form 
(the Termination Form), as defined, below, in Section IV(j), expressly 
providing an election to terminate the authorizations, described, 
above, in Section II(i), with instructions on the use of such 
Termination Form must be provided to such Second Fiduciary at least 
annually. However, if a Termination Form has been provided to such 
Second Fiduciary, pursuant to Section II(k) and (l), below, then a 
Termination Form need not be provided again, pursuant to this Section 
II(j), unless at least six (6) months but no more than twelve (12) 
months have elapsed, since a Termination Form was provided, pursuant to 
Section II(k) and (l), below.
    (2) The instructions for the Termination Form must include the 
following statements:
    (i) The authorization, described, above, in Section II(i), is 
terminable at will by the Second Fiduciary, acting on behalf of a 
Client Plan, without penalty to such Client Plan, upon receipt by PNC 
of written notice from such Second Fiduciary.
    (ii) Failure by such Second Fiduciary to return the Termination 
Form on behalf of such Client Plan will be deemed to be an approval by 
the Second Fiduciary and will result in the continuation of the 
authorization, as described, above, in Section II(i), of PNC to engage 
in the transactions which are the subject of this exemption.
    (k) For a Client Plan invested in a Fund which uses one of the fee 
methods described, above, in Section II(a)(1), (a)(2), or (a)(3), in 
the event of a proposed change from one of the fee methods to another 
or in the event of a proposed increase in the rate of any fee paid by a 
Fund to BlackRock for any investment advisory service, or similar 
service that BlackRock provides to such Fund over an existing rate for 
such services or method of determining the fee for such services, which 
had been authorized, in accordance with Section II(i), above, by the 
Second Fiduciary for such Client Plan, at least thirty (30) days in 
advance of the implementation of such change from one of the fee 
methods to another or such increase in a fee, PNC will provide a 
written notice (which may take the form of a proxy statement, letter, 
or similar communication that is separate from the prospectus of such 
Fund and which explains the nature and amount of such change from one 
of the fee methods to another or increase in fee) to the Second 
Fiduciary of each Client Plan affected by such change from one of the 
fee

[[Page 45286]]

methods to another or increased fee. Such notice shall be accompanied 
by a Termination Form, with instructions on the use of such Termination 
Form, as described, above, in Section II(j).\3\
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    \3\ It is represented that PNC furnished only disclosure, not 
advanced notice, of a mid-2007 advisory fee change to the Second 
Fiduciaries of Client Plans invested in Funds using the Credit Fee 
Method. The change, which resulted in increased fees to BlackRock of 
0.5 basis points, (which it is represented was credited back to the 
Client Plans) occurred effective June 1, 2007, with the disclosure 
being provided in October 2007, after the effective date of such 
change. As the Second Fiduciaries of the Client Plans did not 
receive notification of such increase at least thirty (30) days in 
advance of the implementation of such increase, the Department, 
herein, is not providing relief for the receipt of such fee increase 
by BlackRock.
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    (l) In the event of:
    (i) A proposed addition of a Secondary Service for which an 
additional fee is charged; or
    (ii) A proposed addition of a Mutual Fund Administration Service 
provided by PNC to a Fund in which a Client Plan invests and for which 
an additional fee is charged; or
    (iii) A proposed increase in the rate of any fee paid by a Fund to 
PNC for any Secondary Service, or
    (iv) A proposed increase in the rate of any fee paid by BlackRock 
to PNC for Mutual Fund Administration Services provided to such Fund, 
or
    (v) A proposed increase in the rate of any fee paid for Secondary 
Services or for Mutual Fund Administration Services that results from 
the decrease in the number or kind of services performed by PNC for 
such fee over an existing rate for services which had been authorized, 
in accordance with Section II(i), by the Second Fiduciary for a Client 
Plan invested in such Fund, PNC, at least thirty (30) days in advance 
of the implementation of such fee increase or additional service for 
which an additional fee is charged, will provide a written notice 
(which may take the form of a proxy statement, letter, or similar 
communication that is separate from the prospectus of such Fund and 
which explains the nature and amount of the additional service for 
which an additional fee is charged or the nature and amount of the 
increase in fees) to the Second Fiduciary of each Client Plan invested 
in such Fund which is proposing to increase fees or add services for 
which an additional fee is charged. Such notice shall be accompanied by 
a Termination Form, with instructions on the use of such Termination 
Form, as described, above in Section II(j).
    (m) On an annual basis, PNC, serving as fiduciary to a Client Plan, 
provides the Second Fiduciary of such Client Plan invested in a Fund 
with:
    (1) A copy of the current prospectus for such Fund in which such 
Client Plan invests;
    (2) Upon the request of such Second Fiduciary, a copy of the 
Statement of Additional Information for such Fund which contains a 
description of all fees paid by such Fund to PNC and all fees paid by 
BlackRock to PNC for Mutual Fund Administration Services;
    (3) A copy of the annual financial disclosure report which includes 
information about Fund portfolios, within sixty (60) days of the 
preparation of such report;
    (4) Oral or written responses to inquiries of the Second Fiduciary 
of such Client Plan, as such inquiries arise; and
    (5) A copy of the audit findings prepared by the independent 
Auditor, as required by Section II(a)(3), is provided by PNC at least 
annually within sixty (60) days of the completion of the report of such 
audit findings, to the Second Fiduciary of those Client Plans using the 
Credit Fee Method, as described in Section II(a)(3).
    (n) All dealings between a Client Plan and a Fund are on a basis no 
less favorable to such Client Plan than dealings between such Fund and 
other shareholders invested in such Fund.

Section III--General Conditions

    (a) PNC maintains for a period of six (6) years the records 
necessary to enable the persons described, below, in Section III(b) 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 because of circumstances beyond the control of PNC, 
the records are lost or destroyed prior to the end of the six-year 
period, and
    (2) No party in interest other than PNC shall be subject to the 
civil penalty that may be assessed under section 502(i) of the Act or 
to the taxes imposed by section 4975(a) and (b) of the Code if the 
records are not maintained or are not available for examination as 
required by Section III(b), below.
    (b)(1) Except as provided in Section III(b)(2) and notwithstanding 
any provisions of section 504(a)(2) of the Act, the records referred to 
in Section III(a) are unconditionally available at their customary 
location for examination during normal business hours by--
    (i) Any duly authorized employee or representative of the 
Department of Labor (the Department) or the Internal Revenue Service,
    (ii) Any fiduciary of a Client Plan who has authority to acquire or 
dispose of shares of a Fund owned by such Client Plan, or any duly 
authorized employee or representative of such fiduciary, and
    (iii) Any participant or beneficiary of a Client Plan or duly 
authorized employee or representative of such participant or 
beneficiary.
    (2) None of the persons described in Section III(b)(1)(ii) and 
(iii) shall be authorized to examine trade secrets of PNC, or 
commercial or financial information which is privileged or 
confidential.

Section IV--Definitions

    For purposes of this exemption:
    (a) The term, ``PNC,'' means PNC Financial, and any affiliate 
thereof, as defined, below in Section IV(c).
    (b) The term, ``BlackRock,'' means BlackRock, Inc., and any 
affiliate thereof, as defined, below in Section IV(c).
    (c) An ``affiliate'' of a person includes:
    (1) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person;
    (2) Any officer, director, employee, relative, or partner in any 
such person; and
    (3) Any corporation or partnership of which such person is an 
officer, director, partner, or employee.
    (d) The term, ``control,'' means the power to exercise a 
controlling influence over the management or policies of a person other 
than an individual.
    (e) The term, ``Fund(s),'' shall mean any diversified open-end 
investment company or companies registered with the Securities and 
Exchange Commission under the Investment Company Act, as amended, for 
which BlackRock serves as an investment adviser (but not sub-adviser).
    (f) The term, ``net asset value,'' means the amount for purposes of 
pricing all purchases and sales of shares of a Fund calculated by 
dividing the value of all securities, determined by a method as set 
forth in the prospectus for such Fund and in the statement of 
additional information, and other assets belonging to the Fund or 
portfolio of the Fund, less the liabilities charged to each such 
portfolio or Fund, by the number of outstanding shares.
    (g) The term, ``relative,'' means a relative as that term is 
defined in section 3(15) of the Act (or a member of the family as that 
term is defined in section 4975(e)(6) of the Code), or a brother, a 
sister, or a spouse of a brother or a sister.
    (h) The term, ``Second Fiduciary,'' means a fiduciary of a Client 
Plan who is independent of and unrelated to PNC

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and BlackRock. For purposes of this exemption, the Second Fiduciary 
will not be deemed to be independent of and unrelated to PNC and 
BlackRock if:
    (1) Such fiduciary, directly or indirectly controls, through one or 
more intermediaries, is controlled by, or is under common control with 
PNC or with BlackRock;
    (2) Such fiduciary, or any officer, director, partner, employee, or 
relative of the fiduciary, is an officer, director, partner, or 
employee of PNC or of BlackRock (or is a relative of such persons); or
    (3) Such fiduciary, directly or indirectly, receives any 
compensation or other consideration for his or her personal account in 
connection with any transaction described in this exemption.
    If an officer, director, partner, or employee of PNC or of 
BlackRock (or relative of such persons) is a director of such Second 
Fiduciary, and if he or she abstains from participation in:
    (i) The choice of such Client Plan's investment adviser,
    (ii) The approval of any such purchase or sale between such Client 
Plan and a Fund, and
    (iii) The approval of any change in fees or fee method, as 
described, above, in Section II (k) or (l), charged to or paid by such 
Client Plan in connection with any of the transactions described in 
Section I above, then Section IV(h)(2), above, shall not apply.
    (i) The term, ``Secondary Service(s),'' means a service or services 
which is/are provided by PNC to a Fund, including but not limited to 
custodial, accounting, or administrative services. The fees for 
providing Secondary Services to a Fund are paid to PNC by such Fund.
    (j) The term, ``Termination Form,'' means the form supplied to a 
Second Fiduciary which expressly provides an election to such Second 
Fiduciary to terminate on behalf of a Client Plan the authorization 
described, above, in Section II(i).
    (k) The term, ``business day,'' means any day that
    (i) PNC Financial is open for conducting all or substantially all 
of its banking functions, and
    (ii) the New York Stock Exchange (or any successor exchange) is 
open for trading.
    (l) The term, ``Mutual Fund Administration Services,'' means a 
service or services which is/are provided by PNC to, or on behalf of, a 
Fund, including PNC's maintaining records of investments by Client 
Plans in such Fund, processing Fund transactions for Client Plans, 
transmitting account statements and shareholder communications, 
responding to inquiries from Client Plans regarding account balances 
and dividends, and providing information to such Fund on sales and 
assisting in monitoring possible market timing. The fees for providing 
Mutual Fund Administration Services to a Fund are paid to PNC by 
BlackRock, rather than by such Fund.

DATES: Effective Date: This exemption is effective as of September 29, 
2006.

Written Comments

    In the Notice of Proposed Exemption (the Notice), the Department of 
Labor (the Department) invited all interested persons to submit written 
comments and requests for a hearing on the proposed exemption within 
forty-five (45) days of the date of the publication of the Notice in 
the Federal Register on March 26, 2009. The deadline for providing 
notice to all interested persons was April 10, 2009. All comments and 
requests for a hearing from interested persons were due by May 11, 
2009. The Department received no requests for a hearing. However, three 
(3) commentators informed the Department that the mailing to them was 
not complete.
    In this regard, the first commentator did not receive a copy of the 
Notice. In response, the applicant indicated that the Notice had been 
inadvertently omitted from the initial mailing, dated April 3, 2009, to 
one group of interested persons, and that the mailing was resent to 
that group, including the Notice, before the deadline on April 10, 
2009, for providing notice to interest persons. The second commentator 
indicated that certain enclosures were not included. In response, the 
applicant indicated that this commentator was part of the group that 
had received the mailing without the Notice, and that he should have 
subsequently received the second mailing, before the deadline on April 
10, 2009, for providing notice to interest persons.
    The third commentator indicated that he had received only the 
Notice and no cover letters. The applicant was unable to explain how 
this error could have occurred, because this part of the mailing was 
assembled by a machine designed to confirm that the inserts in each 
envelope were of the correct thickness. Accordingly, the applicant 
confirmed through a sampling of other packages that were part of this 
group that there were no other apparent instances of this error. In any 
event, the applicant mailed a complete package to the third 
commentator.
    During the comment period, the Department received 24 telephone 
inquiries from commentators seeking an explanation of the contents of 
the Notice. In response, the staff of the Office of Exemption 
Determinations spoke to each commentator and provided an explanation 
``in plain English'' of the proposed exemption.
    In addition, eight (8) commentators wrote to the Department 
requesting a further explanation of the proposed exemption. In response 
to these commentators, the applicant states that the notice to 
interested persons provided by PNC contained all the information 
required by the Department's exemption procedures, and also included an 
additional cover page that was intended to help the recipients 
understand the contents of the Notice. The applicant maintains that no 
further written explanation on PNC's part was either required or 
permitted. Further, the applicant maintains that in any event, these 
comments do not raise any substantive issues on the proposed exemption 
itself.
    The Department concurs.
    During the comment period, the Department also received via e-mail, 
facsimile, and mail comments from three (3) commentators who raised 
substantive issues. Copies of these letters were posted on the Web site 
regulations.gov. At the close of the comment period, the Department 
forwarded a copy of these comments to the applicant for response. The 
comments and the applicant's response thereto are summarized in the 
numbered paragraphs below.
    1. One commentator, identified as an IRA trustee, in an e-mail, 
dated April 20, 2009, took the view that the requested exemption 
``appears to be an effort to modify the existing ERISA law to allow a 
corporate `sweetheart deal' of two interlocked corporations (PNC and 
BLACKROCK),'' and says that a change to the existing law ``would be a 
step backward.'' The commentator further characterizes the described 
arrangement as appearing ``to have an intended benefit for the two 
corporations at the likely eventual expense of perhaps thousands of 
individuals with IRAs.'' In addition, the commentator expresses concern 
that the costs of implementing the proposed exemption would be paid by 
either taxpayers or ``The IRA owner who gets clobbered with higher and 
higher fees to pay the costs.''
    In response to this comment, the applicant maintains that the 
proposed exemption is not a modification to existing law, but rather an 
exception to certain provisions under existing law pursuant to a 
procedure contemplated by the statute. The applicant represents that 
PNC's goal in requesting the relief

[[Page 45288]]

is not to favor BlackRock, but rather to preserve existing investments 
in plan and IRA accounts that may no longer be permitted after the 
changes in the ownership of BlackRock, and also to ensure that 
BlackRock Funds continue to be available as investments to accounts 
managed by PNC to the extent that investment in those funds is prudent 
and meets an account's investment needs. Investments in BlackRock Funds 
under the exemption are not expected to increase IRA fees, as the 
structure for complying with the exemption is already in place.
    Furthermore, the applicant points out that to the extent the 
commentator objects to her IRA investing in BlackRock Funds, she can 
exercise her right under the proposed exemption to withhold her 
authorization of such investments or, if BlackRock Fund investments 
have previously been authorized, to terminate that authorization.
    Therefore, the applicant concludes that the commentator's comment 
does not provide any reason why the exemption should not be granted.
    The Department concurs.
    2. One commentator, in an e-mail, dated April 28, 2009, argued that 
granting the exemption would be wrong because there is an inherent 
conflict of interest, giving the following reasons:
    (a) No amount of explanation, adjustment/manipulation of fees or 
documentation of facts can cancel out that conflict.
    (b) The very fact that PNC is requesting the exemption shows it is 
in their interest.
    (c) A massive mailing and disgorgement of data does not show this 
is good for investors. The commentator further argues that it must 
clearly be convenient and remunerative for PNC to utilize an ``in-house 
organization'' to control, invest and report on client money, but there 
is no claim or promise that BlackRock is or would be the best option. 
The commentator says that because of the bank being placed in conflict 
with its clients, a PNC manager, when faced with a choice, will opt for 
BlackRock. Therefore, the commentator concludes, the proposal should be 
withdrawn.
    In response, the applicant represents that the conditions of the 
exemption are designed to address the potential conflict, namely by 
requiring fee offsets or credits, disclosures and independent 
approvals. In the opinion of the applicant, the potential conflict in 
this case is attenuated in that PNC is a minority owner in BlackRock as 
a result of the transaction with Merrill Lynch, currently holding only 
a 33% interest (down slightly from the 34% interest described in the 
application). Any decisions by PNC portfolio managers to invest in the 
BlackRock Funds for plans are subject to fiduciary obligations imposed 
by section 404(a)(1) of the Act, including the duty to act solely in 
the interest of the plan and its participants and beneficiaries and to 
act in a prudent manner, and any investment decisions for IRA accounts 
are subject to similar obligations under State law. PNC's objective is 
to have BlackRock Funds available in the event it would be prudent to 
use them, and PNC portfolio managers commonly use other fund families 
as well.
    Further, the applicant points out that if the commentator is 
concerned about these conflicts, he has the right under the proposed 
exemption to either withhold his authorization of PNC investing his 
account in BlackRock Funds or, if he has previously given his 
authorization, he can exercise his right to terminate that 
authorization at any time without penalty.
    Therefore, the applicant maintains that this comment by the 
commentator has not provided any reason why the proposed exemption 
should not be granted.
    The Department concurs.
    3. One commentator indicated her opposition to any exemption that 
would authorize additional fees to be charged by PNC Bank. The 
commentator did not give any further reason.
    In response, the applicant notes that the proposed exemption 
contains a series of protections to deal with the potential for PNC 
receiving additional fees, including fee offsets and credits. 
Furthermore, if the commentator continues to be concerned about PNC 
Bank charging additional fees, she would have the right under the 
exemption to withhold or terminate authorization of the investment of 
her account in BlackRock Funds. Therefore, the applicant maintains that 
the commentator has not provided any reason why the proposed exemption 
should not be granted.
    The Department concurs.
    In addition to the comments described above, the Department 
received, on May 8, 2009, an e-mail from the applicant, requesting 
certain changes to the operating language of the exemption. The 
applicant's comment was also posted on the Web site regulation.gov. The 
applicant's comments are summarized in the numbered paragraphs, below.
1. Fee Disclosure and Differential Language--Section II(h)(2)
    Section II(h)(2)(iv), as set forth in the Notice on page 13243, 
column 2, line 67, requires disclosure of, ``All other fees to be 
charged to or paid by a Client Plan and by such Fund.'' The applicant 
believes that disclosure of all Fund fees are within the scope of the 
exemption, but is not clear that all Client Plan fees should be subject 
to disclosure. The applicant believes that the focus on the fees 
charged to or paid by the Client Plan should only be those fees that 
are related to the investment in a Fund by a Client Plan. Accordingly, 
the applicant requests that the language of Section II(h)(2)(iv) should 
be amended to read as follows: ``All other fees to be charged to or 
paid by a Client Plan in connection with its investment in such Fund 
and by such Fund.''
    In addition, the applicant has requested an amendment to Section 
II(h)(2), as set forth in the Notice on page 13243, column 2, lines 54-
57. Section II(h)(2) requires: ``A statement describing the fees, 
including the nature and extent of any differential between the rates 
of such fees'' for: (i) Any investment advisory or similar services to 
be paid by a Fund to BlackRock, (ii) any Secondary Services to be paid 
by a Fund to PNC, (iii) any Mutual Fund Administration Services to be 
paid by BlackRock to PNC, and (iv) all other fees to be charges to or 
paid by a Client Plan and by a Fund. The applicant believes that the 
disclosure of the nature and extent of any differential between the 
rates of such fees should be limited to the fees paid for investment 
advisory or similar services. In this regard, the applicant request 
that the phrase, ``including the nature and extent of any differential 
between the rates of such fees,'' be deleted from Section II(h)(2) and 
moved to the end of Section II(h)(2)(i) following the word, 
``BlackRock.'' Accordingly, the applicant has requested that Section 
II(h)(2)(i) be amended to read as follows: ``Any investment advisory or 
similar services to be paid by such Fund to BlackRock, including the 
nature and extent of any differential between the rates of such fees.''
    The limitations suggested by the applicant do not conform to the 
requirements as set forth in Prohibited Transaction Exemption 77-4 (PTE 
77-4).\4\ In this regard, PTE 77-4 deals with the receipt of fees by a 
fiduciary of a plan in connection with the purchase or sale by a plan 
of shares of a registered, open-end investment company when

[[Page 45289]]

such fiduciary or an affiliate is also the investment adviser for such 
investment company. Section II(d) of PTE 77-4 requires that a second 
fiduciary with respect to such plan, who is independent of and 
unrelated to the fiduciary/investment adviser or any affiliate thereof, 
receive full and detailed written disclosure of the investment advisory 
and other fees charged to or paid by such plan and by such investment 
company, including the nature and extent of any differential between 
the rates of such fees. Accordingly, the Department does not concur 
with the applicant's request to alter the language of Section II(h)(2) 
and has not amended Section II(h)(2) in the final exemption. Nor does 
the Department concur with the applicant's request to alter the 
language of Section II(h)(2)(iv) and has not amended Section 
II(h)(2)(iv) in the final exemption.
---------------------------------------------------------------------------

    \4\ 42 FR 18732, April 8, 1977.
---------------------------------------------------------------------------

2. Reference to Part 4 of Title I of the Act--Section II(i)
    Section II(i), as set forth in the Notice, requires that on the 
basis of certain disclosure, a Second Fiduciary, acting on behalf of 
the Client Plan, authorizes in writing: (1) The investment of the 
assets of a Client Plan in shares of a particular Fund and (2) the 
receipt of fees by PNC and by BlackRock in connection with services 
provided by PNC and by BlackRock to such Fund. The last sentence in 
Section II(i), as set forth in the Notice on page 13243, column 3, 
lines 25-29, requires that ``Such authorization by a Second Fiduciary 
must be consistent with the responsibilities, obligations, and duties 
imposed on fiduciaries by Part 4 of Title I of the Act.'' The applicant 
maintains that ``whether the Second Fiduciary violates its fiduciary 
duties in providing the authorization is outside the control of PNC and 
should not affect whether PNC has coverage under the exemption.'' 
Further, the applicant notes that this language was not included in 
prior individual exemption providing analogous relief. Therefore, the 
applicants request that the sentence in Section II(i) referring to the 
Second Fiduciary's responsibilities under Part 4 of Title I of the Act 
should be deleted from the final exemption.
    The Department does not concur with the applicant's request and has 
not deleted the last sentence from Section II(i) in the final 
exemption. In this regard, PTE 77-4 contains language similar to that 
set forth Section II(i) of the Notice. In this regard, Section II(e) of 
PTE 77-4, states that ``On the basis of the prospectus and disclosure 
referred to in paragraph (d), the second fiduciary referred to in 
paragraph (d) approves such purchase and sales consistent with the 
responsibilities obligations, and duties imposed on fiduciaries by Part 
4 of Title I of the Act.''
3. Statement of Additional Information Disclosure--Section II(m)(2)
    Section II(m)(2), as set forth in the Notice on page 13244, column 
2, lines 49-52, requires on an annual basis that PNC, serving as 
fiduciary to a Client Plan, provide the Second Fiduciary of such Client 
Plan with certain disclosures. Such disclosures should include a copy 
of a Statement of Additional Information for a Fund, upon request by 
the Second Fiduciary. Further, such Statement of Additional Information 
should contain a description of all fees paid to PNC by a Fund and by 
BlackRock for services provided by PNC to such Fund. The applicant 
notes that while Statements of Additional Information for Funds do, in 
fact, describe the Mutual Fund Administration Services fees, such 
document does not specify the rate of such fees. The applicant argues 
that such disclosure should be sufficient because the rate of such fees 
would have been described in the initial disclosure to the Client Plan 
and cannot be changed without prior notice.
    The Department concurs with the applicant's comment.
4. Independent Audit Disclosure--Section II(m)(3)
    Section II(m)(3), as set forth in the Notice on page 13244, column 
2, lines 56-59, requires that PNC provide the Second Fiduciary of a 
Client Plan with ``a copy of the annual financial disclosure report 
which includes information about Fund portfolios, as well as the audit 
findings of the independent Auditor, within sixty (60) days of the 
preparation of such report.'' The audit findings referred to in Section 
II(m)(3) are those required under Section II(a)(3) of the exemption in 
connection with the audit of the Credit Fee Method. The applicant 
suggests that the requirement to disclose a copy of the audit finding 
be deleted from Section II(m)(3) and be made a separate requirement, in 
a new Section II(m)(5) in the final exemption. Accordingly, the 
applicant requests that the requirement in Section II(m)(5) apply only 
to those Client Plans using the Credit Fee Method, described in Section 
II(a)(3) of the final exemption.
    The Department concurs with the applicant's request and has amended 
Section II(m)(3) to delete the phrase, ``as well as the audit findings 
of the independent Auditor.'' Further, the Department has included in 
the final exemption a new Section II(m)(5) which reads, as follows:

    A copy of the audit findings prepared by the independent 
Auditor, as required by Section II(a)(3), is provided by PNC at 
least annually within sixty (60) days of the completion of the 
report of such audit findings, to the Second Fiduciary of those 
Client Plans using the Credit Fee Method, as described in Section 
II(a)(3).
5. Change in Fee Method--Section IV(h)(3)(iii)
    Section IV(h), as set forth in the Notice on page 13245, column 1, 
lines 33-68, and column 2, lines 1-4, defines the term, ``Second 
Fiduciary,'' as a fiduciary of a Client Plan who is independent of and 
unrelated to PNC and BlackRock. Section IV(h)(2) provides that a Second 
Fiduciary will not be deemed to be independent if such fiduciary, or 
any officer, director, partner, employee, or relative of the fiduciary 
is an officer, director, partner, or employee of PNC or of BlackRock 
(or is a relative of such person). However, Section IV(h)(3) provides 
an exception to the requirement, set forth in Section IV(2). In this 
regard, a director of a Second Fiduciary of a Client Plan who is also 
an officer, director, partner, or employee of PNC or of BlackRock (or a 
relative of such persons) is permitted to abstain from: (1) The 
selection of the Client Plan's investment adviser; (2) the approval of 
any purchase or sale between a Client Plan and a Fund; and (3) ``the 
approval of any change in fees, as described, above, in Section II (k) 
or (l), charged to or paid by such Client Plan in connection with any 
of the transactions described in Section I above.''
    The applicant requests that the language of Section IV(h)(3)(iii), 
as set forth in the Notice on page 13245, column 1, lines 67-68, be 
revised to insert the phrase, ``or fee method,'' after the phrase, 
``any change in fees,'' in order to be consistent with other provisions 
in the exemption where references to changes of fees also apply to 
changes in fee methods.
    The Department concurs with the applicant's suggestions, and 
accordingly, has amended the language of Section IV(h)(3)(iii) in the 
final exemption.
    After giving full consideration to the entire record, including the 
written comment from the applicant and from the commentators, the 
Department has decided to grant the exemption, as described and 
amended, above. In this regard, the comment letters from the applicant 
and from the commentators which were submitted to the

[[Page 45290]]

Department have been included as part of the public record of the 
exemption application. The complete application file, including all 
supplemental submissions received by the Department, is made available 
for public inspection in the Public Documents Room of the Employee 
Benefits Security Administration, Room N-1513, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the Notice of Proposed Exemption published on March 26, 2009, at 74 FR 
13242.

FOR FURTHER INFORMATION CONTACT: Angelena Le Blanc of the Department, 
telephone (202) 693-8540 (This is not a toll-free number).

Verizon Investment Management Corporation, Located in Basking Ridge, 
New Jersey.

[Prohibited Transaction Exemption 2009-23, Exemption Application No. D-
11447.]

Exemption

Section I--Transaction(s)

    The restrictions of section 406(a)(1)(A) through (D) of the Act and 
the taxes imposed by section 4975(a) and (b) of the Code, by reason of 
section 4975(c)(1)(A) through (D) of the Code,\5\ shall not apply, 
effective for the period January 1, through December 31, 2001, and for 
the period January 1, through December 31, 2003, to any transaction, as 
described in Part I of Prohibited Transaction Exemption 96-23 (PTE 96-
23),\6\ between a Verizon Plan or Verizon Plans, as defined, below, in 
section III(h) of this exemption, and a party in interest, as defined, 
below, in section III(c) of this exemption, with respect to such 
Verizon Plan; provided that: during the period January 1, through 
December 31, 2001, and during the period January 1, through December 
31, 2003, VIMCO satisfied the definition of an in-house asset manager 
(INHAM), as defined, below, in section III(a) of this exemption, and 
had discretionary authority or control with respect to the assets of 
such Verizon Plan involved in each such transaction; and the 
conditions, as set forth, below, in section I(a) through (b) and 
section II of this exemption were satisfied and, the conditions, as set 
forth, below, in section I(c) and section II of this exemption are 
satisfied;
---------------------------------------------------------------------------

    \5\ The Department, herein, is not providing any retroactive or 
prospective relief for a transaction between a plan (a Verizon Plan 
or Verizon Plans), as defined, below, in section III(h) of this 
exemption, and a party in interest with respect to such Verizon 
Plan, if such transaction was entered into or is entered into in 
years other than 2001 and 2003, nor is the Department, herein, 
providing any retroactive or prospective relief for any continuing 
transaction, or for any subsequent renewal or modification of a 
transaction that required or requires the consent of Verizon 
Investment Management Corporation (VIMCO), if entry into such 
continuing transaction, or entry into such renewal or modification 
occurred or occurs in years other than 2001 and 2003. In order to 
obtain relief for the entry into a transaction, or the entry into a 
continuing transaction or a subsequent renewal or modification of a 
transaction, as the case may be, VIMCO must have satisfied or must 
satisfy at the time of each such transaction, the terms and 
conditions as set forth in PTE 96-23 or, if applicable, the terms 
and conditions of PTE 96-23 as hereafter amended.
    \6\ 61 FR 15975, April 10, 1996.
---------------------------------------------------------------------------

    (a) All the requirements of PTE 96-23 were satisfied for the period 
January 1, through December 31, 2001, and the period January 1, through 
December 31, 2003, except with respect to the annual audit requirement, 
as set forth in section I(h) of PTE 96-23;
    (b) An exemption audit, as defined, in Part IV(f) of PTE 96-23, for 
the period January 1, through December 31, 2001, must have been 
completed by no later than December 31, 2003, and an exemption audit 
for the period January 1, through December 31, 2003, must have been 
completed by no later than December 31, 2005; and
    (c) If VIMCO, satisfies the definition of an INHAM, as defined, 
below, in section III(a) of this exemption, at any time during the 
period beginning on the date of the publication in the Federal Register 
of the final exemption for application D-11447 and ending on the 
effective date of a final amendment to PTE 96-23, then an independent 
auditor, who has appropriate technical training or experience and 
proficiency with the fiduciary responsibility provisions of the Act and 
who so represents in writing, must conduct an exemption audit, as 
defined, below, in section III(f) of this exemption, on an annual 
basis. Following completion of such exemption audit, the auditor shall 
issue a written report to the Verizon Plan or Verizon Plans that engage 
in transactions, described in Part I of PTE 96-23, presenting such 
auditor's specific findings regarding the level of compliance: (1) with 
the policies and procedures adopted by VIMCO in accordance with Part 
I(g) of PTE 96-23; and (2) with the objective requirements of PTE 96-
23. The written report shall also contain the auditor's overall opinion 
regarding whether VIMCO's program complied: (1) With the policies and 
procedures adopted by VIMCO; and (2) with the objective requirements of 
PTE 96-23. The exemption audit and the written report must be completed 
within six (6) months following the end of the year to which the audit 
relates.

Section II--General Conditions

    (a) VIMCO must maintain or cause to be maintained, for a period of 
six (6) years, such records as are necessary to enable the persons 
described, below, in section II(b) of this exemption, to determine 
whether the conditions of this exemption have been met, except that:
    (1) A prohibited transaction shall not be considered to have 
occurred solely because, due to circumstances beyond the control of 
VIMCO, such records are lost or destroyed prior to the end of the six-
year period, and
    (2) No party in interest with respect to a Verizon Plan which 
engages in a transaction, described in section I of this exemption, 
other than VIMCO, shall be subject to a civil penalty under section 
502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of 
the Code, if such records are not maintained, or are not available for 
examination, as required, below, by section II(b) of this exemption.
    (b)(1) Except as provided, below, in section II(b)(2) of this 
exemption, and notwithstanding any provisions of section 504(a)(2) of 
the Act, the records referred to, above, in section II(a) of this 
exemption, are unconditionally available at their customary location 
for examination during normal business hours by--
    (i) Any duly authorized employee or representative of the 
Department of Labor (the Department) or the Internal Revenue Service,
    (ii) Any fiduciary of a Verizon Plan that engages in a transaction, 
described in Part I of PTE 96-23, or any duly authorized employee or 
representative of such fiduciary, and
    (iii) Any participant or beneficiary of a Verizon Plan or duly 
authorized employee or representative of such participant or 
beneficiary.
    (2) None of the persons described, above, in section II(b)(1)(ii) 
and (iii) of this exemption, shall be authorized to examine trade 
secrets of VIMCO, or commercial or financial information which is 
privileged or confidential.

Section III--Definitions

    For the purposes of this exemption:
    (a) The term, ``in-house asset manager'' or ``INHAM,'' means VIMCO, 
provided that VIMCO is:
    (1) Either (A) a direct or indirect wholly-owned subsidiary of 
Verizon Communications, Inc. (Verizon), or a direct or indirect wholly-
owned subsidiary of a parent organization of Verizon, or (B) a 
membership non-profit

[[Page 45291]]

corporation a majority of whose members are officers or directors of 
Verizon or a parent organization; and
    (2) An investment adviser registered under the Investment Advisers 
Act of 1940 that, as of the last day of its most recent fiscal year, 
has under its management and control total assets attributable to 
Verizon Plans maintained by affiliates of VIMCO, as defined, below, in 
section III(b) of this exemption, in excess of $50 million; and 
provided that if VIMCO had no prior fiscal year as a separate legal 
entity as a result of its constituting a division or group within 
Verizon's organizational structure, then this requirement is deemed to 
have been met as of the date during VIMCO's initial fiscal year as a 
separate legal entity that responsibility for the management of such 
assets in excess of $50 million was transferred to it from Verizon.
    In addition, Verizon Plans maintained by affiliates of VIMCO and/or 
by VIMCO, have aggregate assets of at least $250 million, calculated as 
of the last day of each such Verizon Plan's reporting year.
    (b) For purposes of sections III(a) and III(h) of this exemption, 
an ``affiliate'' of VIMCO means a member of either:
    (1) a controlled group of corporations, as defined in section 
414(b) of the Code, of which VIMCO is a member, or
    (2) A group of trades or businesses under common control, as 
defined in section 414(c) of the Code, of which VIMCO is a member; 
provided that ``50 percent'' shall be substituted for ``80 percent'' 
wherever ``80 percent'' appears in section 414(b) or 414(c) of the Code 
or the rules thereunder.
    (c) The term, ``party in interest,'' means a person described in 
section 3(14) of the Act and includes a ``disqualified person,'' as 
defined in section 4975(e)(2) of the Code.
    (d) The term, ``control,'' means the power to exercise a 
controlling influence over the management or policies of a person other 
than an individual.
    (e) For purposes of this exemption, the time as of which any 
transaction occurred is the date upon which the transaction was entered 
into. In addition, the time as of which any renewal or modification of 
any transaction occurred is the date upon which the renewal or the 
modification of the transaction was entered into. For any transaction 
that required the consent of VIMCO that was entered into, renewed, or 
modified, as the case may be, during the period from January 1, through 
December 31, 2001, or during the period from January 1, through 
December 31, 2003, the requirements of this exemption must have been 
satisfied at the time such transaction was entered into, or was 
renewed, or was modified, as the case may be. In addition, in the case 
of a transaction that is continuing, the transaction is deemed to occur 
until it is terminated.
    Nothing in this paragraph shall be construed as exempting a 
transaction entered into by a Verizon Plan which becomes a transaction 
described in section 406 of the Act or section 4975 of the Code, while 
the transaction is continuing, unless the conditions of PTE 96-23 were 
met at the time the transaction was entered into, or at the time the 
transaction would have become prohibited but for PTE 96-23. In 
determining compliance with the conditions of PTE 96-23 at the time 
that the transaction was entered into for purposes of the preceding 
sentence, Part I(e) of PTE 96-23, will be deemed satisfied if the 
transaction was entered into between a Verizon Plan and a person who 
was not then a party in interest.
    (f) Exemption Audit. An ``exemption audit'' of a Verizon Plan must 
consist of the following:
    (1) A review by an independent auditor of the written policies and 
procedures adopted by VIMCO, pursuant to Part I(g) of PTE 96-23, for 
consistency with each of the objective requirements of PTE 96-23, as 
described below, in section III(g) of this exemption.
    (2) A test of a sample of VIMCO's transactions during the audit 
period that is sufficient in size and nature to afford the auditor a 
reasonable basis: (A) to make specific findings regarding whether VIMCO 
is in compliance with (i) the written policies and procedures adopted 
by VIMCO, pursuant to Part I(g) of PTE 96-23 and (ii) the objective 
requirements of PTE 96-23, as described below, in section III(g) of 
this exemption and (B) to render an overall opinion regarding the level 
of compliance of VIMCO's program with section III(f)(2)(A)(i) and (ii) 
of this exemption.
    (3) A determination as to whether VIMCO satisfied the definition of 
an INHAM, as defined, above, in section III(a), of this exemption; and
    (4) Issuance of a written report describing the steps performed by 
the auditor during the course of its review and the auditor's findings.
    (g) For purposes of section III(f), above, of this exemption, the 
written policies and procedures must describe the following objective 
requirements of the exemption and the steps adopted by VIMCO to assure 
compliance with each of these requirements:
    (1) The definition of an INHAM in section III(a) of this exemption.
    (2) The requirements of Part I and Part I(a) of PTE 96-23 regarding 
the discretionary authority or control of VIMCO with respect to the 
assets of a Verizon Plan involved in the transaction, in negotiating 
the terms of the transaction, and with regard to the decision on behalf 
of such Verizon Plan to enter into the transaction.
    (3) That any procedure for approval or veto of the transaction 
meets the requirements of Part I(a) of PTE 96-23.
    (4) For a transaction described in Part I of PTE 96-23:
    (A) That the transaction is not entered into with any person who is 
excluded from relief under Part I(e)(1), Part I(e)(2) of PTE 96-23, to 
the extent such person has discretionary authority or control over the 
plan assets involved in the transaction, or Part I(f) of PTE 96-23, and
    (B) That the transaction is not described in any of the class 
exemptions listed in Part I(b) of PTE 96-23.
    (h) The term, ``Verizon Plan(s),'' means a plan or plans maintained 
by VIMCO or an affiliate of VIMCO.
    Effective Date: This exemption is effective for the period from 
January 1, through December 31, 2001, and for the period from January 
1, through December 31, 2003.

Written Comments

    In the Notice of Proposed Exemption (the Notice), the Department 
invited all interested persons to submit written comments and requests 
for a hearing on the proposed exemption within forty-five (45) days of 
the date of the publication of the Notice in the Federal Register on 
February 25, 2009. All comments and requests for a hearing were due by 
April 13, 2009.
    During the comment period, the Department received no requests for 
a hearing. However, the Department received, on April 9, 2009, a 
facsimile from the applicant, informing the Department of a correction 
to the language of the exemption, as proposed in the Notice. In this 
regard, the references to ``Verizon Investment Management Company,'' as 
set forth in the heading of the Notice on page 8571, in the heading of 
the Proposed Exemption on page 8572, and in the language in footnote 
no. 2 on page 8572, should be revised to read ``Verizon Investment 
Management Corporation.''
    The Department acknowledges the correction, as requested by the 
applicant, and in the final exemption has amended the references to 
Verizon Investment Management Corporation.

[[Page 45292]]

    In addition to the correction described above, the applicant 
requested: (1) An amendment to the exemption audit conditions of 
section I(c); (2) a change of the effective date of section I(c); and 
(3) a change in the definition of an INHAM, in section III(a), as set 
forth in the Notice. The applicant's comments are sumarized in the 
paragraphs, below.

Timing of Exemption Audit

    Section I(c) of the Notice, as set forth on page 8572, column 3, in 
lines 56-59, requires that the exemption audit and the written audit 
report must be completed within six (6) months following the end of the 
year to which such audit relates.
    In its comment, VIMCO states that it understands the 
appropriateness of imposing a timing condition on future audits. 
However, VIMCO maintains that six (6) months after the end of the plan 
year is a relatively short period considering the volume of corporate 
and employee benefit activities that VIMCO engages in at that time of 
year. Accordingly, VIMCO requests that this deadline should be one (1) 
year following the end of the year to which such audit relates, rather 
than six (6) months. In this regard, VIMCO maintains that a one-year 
deadline would be consistent with the requirement that an exemption 
audit be performed annually and would avoid the unintended loss of the 
exemption due to inadvertent delays in the exemption audit process.
    The Department does not concur with the applicant's request and has 
not amended the six (6) month audit requirement, set forth in section 
I(c) of this exemption. In this regard, it is the Department's view 
that the six (6) month audit requirement is reasonable. The Department 
believes that extending the audit requirement beyond the six (6) month 
requirement would result in audit reports which would not be timely.

Exemption Audit Conditions

    Section I(c), as set forth on page 8572, column 3, in lines 50-55, 
also requires that that the written report of the exemption audit must 
contain:

    The auditor's overall opinion regarding whether VIMCO's program 
complied: (1) With the policies and procedures adopted by VIMCO; and 
(2) with the objective requirements of PTE 96-23.

    The applicant believes that the requirement imposed in section I(c) 
of the Notice goes beyond the frameowrk envisioned by PTE 96-23. In 
this regard, VIMCO notes that in the preamble to PTE 96-23, the auditor 
was not required to reach any opinion regarding compliance. The auditor 
was simply to make the findings based on its review. In the opinion of 
the applicant, the requirement set forth in section I(c) of the Notice, 
would cause additional review and expense. In addition, the applicant 
points out that this requirement may trigger issues for accounting 
firms and law firms under their respective professional standards. The 
applicant suggests that, if the Department intends to impose this 
requirement generally on INHAMs in the course of amending PTE 96-23, 
then the Department should do so in that proceeding, at which time this 
requirement can be subject to a broader range of comments that would 
better define the issues.
    The Department does not concur with the applicant's request and has 
not amended this requirement, as set forth in section I(c) of this 
exemption. It is the Department's view that it is not unreasonable to 
require an auditor to issue a written report which presents such 
auditor's specific findings regarding the level of compliance with the 
policies and procedures adopted by VIMCO, and with the objective 
requirements of PTE 96-23. Further, the Department believes that it is 
reasonable to require the auditor's written report to contain such 
auditor's overall opinion regarding whether VIMCO's program complied 
with the policies and procedures adopted by VIMCO, and with the 
objective requirements of PTE 96-23, based on a representative sample 
of the transactions.

Effective Date for Condition I(c) of the Exemption

    The effective date for section I(c), as set forth in the Notice at 
page 8572, column 3, in lines 25-30, is stated as follows:

    (c) For the period beginning on the date of the publication in 
the Federal Register of the final exemption for application D-11447 
and ending on the effective date of the final amendment to PTE 96-
23, * * *.
    The applicant points out that the final exemption will not 
necessarily be published at the beginning or end of a calendar year or 
at the beginning or end of an audit period. Accordingly, the applicant 
is concerned that if an exemption audit covers an annual period which 
straddles the effective date, as set forth in section I(c) of the 
exemption, the exemption audit could be subject to two different sets 
of standards. To avoid this problem, the applicant requests that the 
effective date for section I(c) of the exemption should be changed to 
the beginning of the first fiscal year of VIMCO after publication of 
the final exemption in the Federal Register.
    The Department does not concur with the applicant's request and has 
not amended the effective date, as set forth in section I(c) of this 
exemption. In this regard, the Department notes that satisfaction of 
the exemption audit requirement, as set forth in this exemption, will 
also satisfy the exemption audit requirements, as set forth in PTE 96-
23 if the audit period straddles both this final exemption and PTE 96-
23. Accordingly, any exemption audit covering an annual period that 
straddles the effective date, as set forth in section I(c) of this 
exempiton, will not be subject to two different sets of standards.

Definition of an INHAM

    Section III(a) of the exemption, as set forth in the Notice on page 
8573, column 1, in lines 50-68, and continuing on page 8573, column 2, 
in lines 1-21, defines the term, ``in-house asset manager'' or 
``INHAM.'' The definition of an ``in-house asset manager'' or 
``INHAM,'' as set forth in the Notice, requires that an INHAM must 
satisfy certain criteria on January 1, 2001, and at all times 
thereafter. Specifically, section III(a) of the exemption reads as 
follows:

    (a) The term ``in-house asset manager'' or ``INHAM,'' means 
VIMCO, provided that VIMCO on January 1, 2001, was and continued 
thereafter to be:
    (1) Either (A) a direct or indirect wholly-owned subsidiary of 
Verizon, or a direct or indirect wholly-owned subsidiary of a parent 
organization of Verizon, or (B) a membership non-profit corporation 
a majority of whose members are officers or directors of such an 
employer or parent organization; and
    (2) An investment adviser registered under the Investment 
Advisers Act of 1940 that, as of the last day of its most recent 
fiscal year, had and continued thereafter to have under its 
management and control total assets attributable to Verizon Plans 
maintained by affiliates of VIMCO, as defined, below, in section 
III(b) of this exemption, in excess of $50 million; and provided 
that if VIMCO had no prior fiscal year as a separate legal entity as 
a result of its constituting a division or group within Verizon's 
organizational structure, then this requirement is deemed to have 
been met as of the date during VIMCO's initial fiscal year as a 
separate legal entity that responsibility for the management of such 
assets in excess of $50 million was transferred to it from Verizon.
    In addition, Verizon Plans maintained by affiliates of VIMCO 
and/or by VIMCO, had, as of January 1, 2001, and continued 
thereafter to have, aggregate assets of at least $250 million, 
calculated as of the last day of each such Verizon Plan's reporting 
year.

    The applicant is concerned that the definition of an INHAM, as set 
forth in the proposed exemption, would require

[[Page 45293]]

that VIMCO continue to meet certain criteria at all times after January 
1, 2001. According to the applicant, ``this raises the question of 
whether VIMCO would lose all relief under the exemption in the event 
that it ceases at some point in the future to meet those criteria.'' 
Accordingly, the applicant requests that ``to avoid this problem, the 
exemption should provide that in the event VIMCO ceases to meet the 
terms of the definition, it ceases to be an INHAM only prospectively, 
and therefore does not lose relief for prior transactions.''
    The Department concurs with the applicant's request. In this 
regard, the Department notes that the retroactive exemptive relief 
effective for the period from January 1, through December 31, 2001, and 
from January 1, through December 31, 2003, will continue to apply, even 
if in the future, VIMCO ceases to satisfy the definition of an INHAM, 
as set forth in section III(a) of this exemption. However, if VIMCO, 
satisfies the definition of an INHAM, as defined, above, in section 
III(a) of this exemption, at any time during the period, beginning on 
the date of the publication in the Federal Register of the final 
exemption for application D-11447 and ending on the effective date of a 
final amendment to PTE 96-23, then retroactive exemptive relief 
effective for the period from January 1, through December 31, 2001, and 
from January 1, through December 31, 2003, will not continue to apply, 
unless the conditions, as set forth, in section I(a) through (b) and 
section II of this exemption, were satisfied during the period January 
1, through December 31, 2001, and during the period January 1, through 
December 31, 2003, and the conditions, as set in section I(c) and 
section II of this exemption, are satisfied, during the period, 
beginning on the date of the publication in the Federal Register of the 
final exemption for application D-11447 and ending on the effective 
date of a final amendment to PTE 96-23. Accordingly, the Department has 
amended this exemption, as follows:
    (1) In section III(a) to delete the phrase, ``on January 1, 2001, 
was and continued thereafter to be,'' as set forth in the Notice on 
page 8573, column 1, in lines 52-53, and to insert the word, ``is,'' 
after the phrase, ``provided that VIMCO,''
    (2) In section III(a)(2) to delete the phrase, ``had and continued 
thereafter to have,'' as set forth in the Notice on page 8573, column 
1, in lines 64-66, and to add the word, ``has,'' after the word, 
``year,''
    (3) In the last paragraph of section III(a)(2), as set forth in the 
Notice on page 8573, column 2, in lines 17-18, to delete the phrase, 
``had, as of January 1, 2001, and continued thereafter to have,'' and 
to add the word, ``have,'' after the word, ``VIMCO,''
    (4) In section I, as set forth in the Notice on page 8572, column 
2, in line 45, to add the phrase, ``during the period January 1, 
through December 31, 2001, and during the period January 1, through 
December 31, 2003,'' after the phrase, ``provided that:,''
    (5) In section I, as set forth in the Notice on page 8572, column 
3, in lines 6-8, to delete the phrase, ``in sections I(a) through (c) 
and section II of this proposed exemption were satisfied,'' and to add 
the phrase, ``in section I(a) through (b) and section II of this 
exemption were satisfied and, the conditions, as set forth, below, in 
section I(c) and section II of this exemption are satisfied,'' and
    (6) To amend the first sentence in section I(c), as set forth in 
the Notice on page 8572, column 3, in lines 25-38 to read as follows:

    If VIMCO, satisfies the definition of INHAM, as defined, below, 
in section III(a) of this exemption, at any time during the period 
beginning on the date of the publication in the Federal Register of 
the final exemption for application D-11447 and ending on the 
effective date of a final amendment to PTE 96-23, then an 
independent auditor, who has appropriate technical training or 
experience and proficiency with the fiduciary responsibility 
provisions of the Act and who so represents in writing, must conduct 
an exemption audit, as defined, below, in section III(f) of this 
exemption, on an annual basis.

    Further, the Department wishes to make the following clarifying 
amendments to this exemption:
    (1) To amend the second sentence in section I(c), as set forth in 
the Notice on page 8572, column 3, in lines 42-43, to delete the 
phrase, ``in section I of this proposed exemption,'' and to substitute 
instead the phrase, ``in Part I of PTE 96-23,''
    (2) To amend section II(b)(1)(ii), as set forth in the Notice on 
page 8573, column 1, in line 33, to delete the phrase, ``in section I 
of this exemption,'' and add the phrase, ``in Part I of PTE 96-23,''
    (3) To amend section III(a)(1), as set forth in the Notice on page 
8573, column 1, in line 55, to delete the word, ``Verizon,'' and 
substitute instead, the phrase, ``Verizon Communications, Inc. 
(Verizon),'' and
    (4) To amend section III(a)(1), as set forth in the Notice on page 
8573, column 1, in lines 60-61, to delete the phrase, ``such an 
employer,'' and substutite instead, the word, ``Verizon.''

Request for an Extension of Time

    In addition to the applicant's comment on the language of the final 
exemption, the applicant seeks a ninety (90) day extension of time to 
complete the audit for 2008, as set forth under section I(c) of this 
exemption. In this regard, section I(c) of this exemption requires the 
following, ``The exemption audit and the written report must be 
completed within six (6) months following the end of the year to which 
the audit relates.'' The applicant is concerned that VIMCO will not be 
able to meet a June 30, 2009, deadline for the 2008 audit, as required 
pursuant to section I(c) of this exemption. In this regard, it is 
represented that the attorneys who have performed all of VIMCO's 
audits, pursuant to PTE 96-23, beginning with the 2003 audit have moved 
to a new law firm early in 2009. Notwithstanding that VIMCO sent in the 
audit materials for 2008, and notwithstanding negotiations over a 
period of several months, VIMCO and the new law firm have thus far been 
unable to agree upon terms of an engagement letter. This result was not 
anticipated by VIMCO or the attorneys. It is represented that VIMCO is 
confident that it will be able to complete the audit within the 
requested extension period, including hiring new auditors who are 
qualified to conduct the audit should that be necessary.
    The Department concurs with the applicant's request and will permit 
VIMCO a 90 day extension of time from the date of the publication in 
the Federal Register of the grant of this exemption to complete the 
exemption audit and the written report for 2008.
    After giving full consideration to the entire record, including the 
written comment from the applicant and the applicant's request for an 
extension of time to complete the exemption audit and written report 
for 2008, the Department has decided to grant the exemption, as 
described and amended, above. In this regard, the comment letter and 
the request for an extension of time to complete the exemption audit 
and written report for 2008 which the applicant submitted to the 
Department have been included as part of the public record of the 
exemption application. The complete application file, including all 
supplemental submissions received by the Department, is made available 
for public inspection in the Public Documents Room of the Employee 
Benefits Security Administration, Room N-1513, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

[[Page 45294]]

    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption refer to 
the Notice published on February 25, 2009, at 74 FR 8572.
    For Further Information Contact: Angelena C. Le Blanc of the 
Department, telephone (202) 693-8540 (This is not a toll-free number).

United States Steel and Carnegie Pension Fund (the Applicant), Located 
in New York, NY.
[Prohibited Transaction Exemption 2009-24; Exemption Application No. D-
11465.]

Exemption

I. Retroactive Relief

    The restrictions of section 406(a)(1)(A) through (D) and the 
sanctions resulting from the application of section 4975 of the Code by 
reason of section 4975(c)(1)(A) through (D), shall not apply, for the 
period beginning February 15, 2003 through December 31, 2007, to a 
transaction between a party in interest with respect to the Former U.S. 
Steel Related Plans, as defined in Section IV(e), below, and an 
investment fund in which such plans have an interest (the Investment 
Fund), as defined in Section IV(l), below, provided that United States 
Steel and Carnegie Pension Fund or its successor (collectively, UCF) 
has discretionary authority or control with respect to the plan assets 
involved in the transaction, and the following conditions are 
satisfied:
    (a) UCF is an investment adviser registered under the Investment 
Advisers Act of 1940 that has, as of the last day of its most recent 
fiscal year, total client assets, including in-house assets (In-house 
Plan Assets), as defined in Section IV(h), below, under its management 
and control in excess of $100,000,000 and equity, as defined in Section 
IV(k), below, in excess of $750,000;
    (b) At the time of the transaction, as defined in Section IV(n), 
below, the party in interest or its affiliate, as defined in Section 
IV(a), below, does not have, and during the immediately preceding one 
(1) year has not exercised, the authority to--
    (1) Appoint or terminate UCF as a manager of any of the Former U.S. 
Steel Related Plans' assets, or
    (2) Negotiate the terms of the management agreement with UCF 
(including renewals or modifications thereof) on behalf of the Former 
U.S. Steel Related Plans;
    (c) The transaction is not described in--
    (1) Prohibited Transaction Exemption 81-6 (PTE 81-6),\7\ relating 
to securities lending arrangements (as amended, superseded or 
replaced);
---------------------------------------------------------------------------

    \7\ 46 FR 7527, January 23, 1981. PTE 81-6 was amended and 
replaced by PTE 2006-16 (71 FR 63786, October 31, 2006). The 
effective date of PTE 2006-16 was January 2, 2007, and PTE 81-6 was 
revoked as of that date.
---------------------------------------------------------------------------

    (2) Prohibited Transaction Exemption 83-1 (PTE 83-1),\8\ relating 
to acquisitions by plans of interests in mortgage pools (as amended or 
superseded), or
---------------------------------------------------------------------------

    \8\ 48 FR 895, January 7, 1983.
---------------------------------------------------------------------------

    (3) Prohibited Transaction Exemption 88-59 (PTE 88-59),\9\ relating 
to certain mortgage financing arrangements (as amended or superseded);
---------------------------------------------------------------------------

    \9\ 53 FR 24811, June 30, 1988.
---------------------------------------------------------------------------

    (d) The terms of the transaction are negotiated on behalf of the 
Investment Fund by, or under the authority and general direction of 
UCF, and either UCF, or (so long as UCF retains full fiduciary 
responsibility with respect to the transaction) a property manager 
acting in accordance with written guidelines established and 
administered by UCF, makes the decision on behalf of the Investment 
Fund to enter into the transaction;
    (e) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification thereof that requires the 
consent of UCF, the terms of the transaction are at least as favorable 
to the Investment Fund as the terms generally available in arm's-length 
transactions between unrelated parties;
    (f) Neither UCF nor any affiliate thereof, as defined in Section 
IV(b), below, nor any owner, direct or indirect, of a 5 percent (5%) or 
more interest in UCF is a person who, within the ten (10) years 
immediately preceding the transaction has been either convicted or 
released from imprisonment, whichever is later, as a result of:
    (1) Any felony involving abuse or misuse of such person's employee 
benefit plan position or employment, or position or employment with a 
labor organization;
    (2) Any felony arising out of the conduct of the business of a 
broker, dealer, investment adviser, bank, insurance company, or 
fiduciary;
    (3) Income tax evasion;
    (4) Any felony involving the larceny, theft, robbery, extortion, 
forgery, counterfeiting, fraudulent concealment, embezzlement, 
fraudulent conversion, or misappropriation of funds or securities; 
conspiracy or attempt to commit any such crimes or a crime in which any 
of the foregoing crimes is an element; or
    (5) Any other crimes described in section 411 of the Act.
    For purposes of this Section I(f), a person shall be deemed to have 
been ``convicted'' from the date of the judgment of the trial court, 
regardless of whether the judgment remains under appeal;
    (g) The transaction is not part of an agreement, arrangement, or 
understanding designed to benefit a party in interest;
    (h) The party in interest dealing with the Investment Fund:
    (1) Is a party in interest with respect to the Former U.S. Steel 
Related Plans (including a fiduciary) solely by reason of providing 
services to the Former U.S. Steel Related Plans, or solely by reason of 
a relationship to a service provider described in section 
3(14)(F),(G),(H), or (I) of the Act;
    (2) Does not have discretionary authority or control with respect 
to the investment of plan assets involved in the transaction and does 
not render investment advice (within the meaning of 29 CFR 2510.3-
21(c)) with respect to those assets; and
    (3) Is neither UCF nor a person related to UCF, as defined in 
Section IV(j), below;
    (i) UCF adopts written policies and procedures that are designed to 
assure compliance with the conditions of this exemption;
    (j) An independent auditor, who has appropriate technical training 
or experience and proficiency with the fiduciary responsibility 
provisions of the Act and who so represents in writing, conducts an 
exemption audit, as defined in Section IV(f), below, on an annual 
basis. Following completion of the exemption audit, the auditor shall 
issue a written report to the Former U.S. Steel Related Plans 
presenting its specific findings regarding the level of compliance: (1) 
With the policies and procedures adopted by UCF in accordance with 
Section I(i), above, of this exemption; and (2) with the objective 
requirements of this exemption.
    (k)(1) UCF or an affiliate maintains or causes to be maintained 
within the United States, for a period of six (6) years from the date 
of each transaction, the records necessary to enable the persons 
described in Section I(k)(2) to determine whether the conditions of 
this exemption have been met, except that (A) a separate prohibited 
transaction will not be considered to have occurred if, due to 
circumstances beyond the control of UCF and/or its affiliates, the 
records are lost or destroyed prior to the end of the six (6) year 
period, and (B) no party in interest

[[Page 45295]]

or disqualified person other than UCF shall be subject to the civil 
penalty that may be assessed under section 502(i) of the Act, or to the 
taxes imposed by section 4975(a) and (b) of the Code, if the records 
have not been maintained or are not maintained, or have not been 
available or are not available for examination as required by Section 
I(k)(2), below, of this exemption.
    (2) Except as provided in Section I(k)(3), below, and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in Section I(k)(1), above, of 
this exemption are unconditionally available for examination at their 
customary location during normal business hours by:
    (A) Any duly authorized employee or representative of the 
Department or of the Internal Revenue Service;
    (B) Any fiduciary of any of the Former U.S. Steel Related Plans 
investing in the Investment Fund or any duly authorized representative 
of such fiduciary;
    (C) Any contributing employer to any of the Former U.S. Steel 
Related Plans investing in the Investment Fund or any duly authorized 
employee representative of such employer;
    (D) Any participant or beneficiary of any of the Former U.S. Steel 
Related Plans investing in the Investment Fund, or any duly authorized 
representative of such participant or beneficiary; and
    (E) Any employee organization whose members are covered by such 
Former U.S. Steel Related Plans;
    (3) None of the persons described in Section I(k)(2)(B) through 
(E), above, of this exemption shall be authorized to examine trade 
secrets of UCF or its affiliates or commercial or financial information 
which is privileged or confidential; and
    (l) With respect to the transactions described in Section II and 
Section III of this exemption, the conditions contained in those 
Sections are satisfied through the date which is five (5) years from 
the date of the publication of this final exemption in the Federal 
Register.

II. Interim Relief

    The restrictions of section 406(a)(1)(A) through (D) and the 
sanctions resulting from the application of section 4975 of the Code by 
reason of section 4975(c)(1)(A) through (D), shall not apply, for the 
period beginning on January 1, 2008 and ending on the day preceding the 
first day of the first fiscal year of UCF beginning after the date of 
the publication of this final exemption in the Federal Register, to a 
transaction between a party in interest with respect to the Former U.S. 
Steel Related Plans, as defined in Section IV(e), below, and the 
Investment Fund, as defined in Section IV(l), below, provided that UCF 
has discretionary authority or control with respect to the plan assets 
involved in the transaction, and the following conditions are 
satisfied:
    (a) Each of the conditions contained in paragraphs (a) through (k) 
of Section I are met; and
    (b) With respect to the exemption audit and written report by the 
independent auditor described in Section I(j), the independent auditor 
must complete each such exemption audit and must issue such written 
report to the administrators, or other appropriate fiduciary of the 
Former U.S. Steel Related Plans within six (6) months following the end 
of the year to which each such exemption audit and report relates.

III. Prospective Relief

    If the exemption is granted, the restrictions of section 
406(a)(1)(A) through (D) and the sanctions resulting from the 
application of section 4975 of the Code by reason of section 
4975(c)(1)(A) through (D), shall not apply, for the period beginning 
with the first day of the first fiscal year of UCF after the date of 
the publication of this final exemption in the Federal Register, and 
expiring five years from that date, to a transaction between a party in 
interest with respect to the Former U.S. Steel Related Plans, as 
defined in Section IV(e), below, and the Investment Fund, as defined in 
Section IV(l), below, provided that UCF has discretionary authority or 
control with respect to the plan assets involved in the transaction, 
and the following conditions are satisfied:
    (a) UCF is an investment adviser registered under the Investment 
Advisers Act of 1940 that has, as of the last day of its most recent 
fiscal year, total client assets, including In-house Plan Assets, under 
its management and control in excess of $100,000,000 and equity, as 
defined in Section IV(k), below, in excess of $1,000,000 (as measured 
yearly on UCF's most recent balance sheet prepared in accordance with 
generally accepted accounting principles);
    (b) Each of the conditions contained in paragraphs (c) through (i), 
and (k) of Section I are met;
    (c) An independent auditor, who has appropriate technical training, 
or experience and proficiency with the fiduciary responsibility 
provisions of the Act, and who so represents in writing, conducts an 
exemption audit, as defined, below, in Section IV(g) of this exemption, 
on an annual basis. In conjunction with the completion of each such 
exemption audit, the independent auditor must issue a written report to 
the Former U.S. Steel Related Plans that engaged in such transactions, 
presenting its specific findings with respect to the audited sample 
regarding the level of compliance with the policies and procedures 
adopted by UCF, pursuant to Section I(i) of this exemption, and with 
the objective requirements of the exemption. The written report also 
shall contain the auditor's overall opinion regarding whether UCF's 
program as a whole complied with the policies and procedures adopted by 
UCF and with the objective requirements of this exemption. The 
independent auditor must complete each such exemption audit and must 
issue such written report to the administrators, or other appropriate 
fiduciary of the Former U.S. Steel Related Plans within six (6) months 
following the end of the year to which each such exemption audit and 
report relates; and
    (d) At the time of the transaction, as defined in Section IV(n), 
below, the party in interest or its affiliate, as defined in Section 
IV(p), below, does not have the authority to--
    (1) Appoint or terminate UCF as a manager of any of the plan assets 
of the Former U.S. Steel Related Plans involved in the transaction, or
    (2) Negotiate the terms of the management agreement with UCF 
(including renewals or modifications thereof) on behalf of the Former 
U.S. Steel Related Plans with respect to the plan assets involved in 
the transaction.

IV. Definitions

    (a) For purposes of Section I(b) of this exemption, an 
``affiliate'' of a person means--
    (1) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person,
    (2) Any corporation, partnership, trust, or unincorporated 
enterprise of which such person is an officer, director, 5 percent (5%) 
or more partner, or employee (but only if the employer of such employee 
is the plan sponsor), and
    (3) Any director of the person or any employee of the person who is 
a highly compensated employee, as defined in section 4975(e)(2)(H) of 
the Code, or who has direct or indirect authority, responsibility, or 
control regarding the custody, management, or disposition of plan 
assets.
    A named fiduciary (within the meaning of section 402(a)(2) of the 
Act) of a plan, and an employer any of whose employees are covered by 
the plan will also be considered affiliates with respect

[[Page 45296]]

to each other for purposes of Section I(b), above, if such employer or 
an affiliate of such employer has the authority, alone or shared with 
others, to appoint or terminate the named fiduciary or otherwise 
negotiate the terms of the named fiduciary's employment agreement.
    (b) For purposes of Section I(f), above, of this exemption, an 
``affiliate'' of a person means--
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person,
    (2) Any director of, relative of, or partner in, any such person,
    (3) Any corporation, partnership, trust, or unincorporated 
enterprise of which such person is an officer, director, or a 5 percent 
(5%) or more partner or owner, and
    (4) Any employee or officer of the person who--
    (A) Is a highly compensated employee (as defined in section 
4975(e)(2)(H) of the Code) or officer (earning 10 percent (10%) or more 
of the yearly wages of such person) or
    (B) Has direct or indirect authority, responsibility or control 
regarding the custody, management, or disposition of plan assets.
    (c) For purposes of Section IV(e) and (h), below, of this 
exemption, an ``affiliate'' of UCF includes a member of either:
    (1) A controlled group of corporations, as defined in section 
414(b) of the Code, of which United States Steel Corporation or its 
successor (collectively, U.S. Steel) is a member, or
    (2) A group of trades or businesses under common control, as 
defined in section 414(c) of the Code, of which U.S. Steel is a member; 
provided that ``50 percent'' shall be substituted for ``80 percent'' 
wherever ``80 percent'' appears in section 414(b) or 414(c) of the 
rules thereunder.
    (d) The term, ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (e) ``Former U.S. Steel Related Plans'' mean:
    (1) Retirement Plan of Marathon Oil Company, Marathon Petroleum LLC 
Retirement Plan and the Speedway SuperAmerica LLC Retirement Plan (the 
Marathon Plans);
    (2) Pension Plan of RMI Titanium Company (RMI), Pension Plan of 
Eligible Employees of RMI Titanium Company, Pension Plan for Eligible 
Salaried Employees of RMI Titanium Company, and Tradco Pension Plan 
(the RTI Plans);
    (3) Any plan the assets of which include or have included assets 
that were managed by UCF as an in-house asset manager (INHAM) pursuant 
to Prohibited Transaction Class Exemption 96-23 (PTE 96-23) \10\ but as 
to which PTE 96-23 is no longer available because such assets are not 
held under a plan maintained by an affiliate of UCF (as defined in 
Section IV(c) of this exemption); and
---------------------------------------------------------------------------

    \10\ 61 FR 15975, April 10, 1996.
---------------------------------------------------------------------------

    (4) Any plan (an Add-On Plan) that is sponsored or becomes 
sponsored by an entity that was, but has ceased to be, an affiliate of 
UCF (as defined in Section IV(c), above, of this exemption); provided 
that:
    (A) The assets of the Add-On Plan are invested in a commingled fund 
(the Commingled Fund), as defined in Section IV(o) of this exemption, 
with the assets of a plan or plans (the Commingled Plans), described in 
Section IV(e)(1)-(3), above; and
    (B) The assets of the Add-On Plan in the Commingled Fund do not 
comprise more than 25 percent (25%) of the value of the aggregate 
assets of such fund, as measured on the day immediately following the 
initial commingling of their assets (the 25% Test).
    For purposes of the 25% Test, as set forth in Section IV(e)(4):
    (i) In the event that less than all of the assets of an Add-On Plan 
are invested in a Commingled Fund on the date of the initial transfer 
of such Add-On Plan's assets to such fund, and if such Add-On Plan 
subsequently transfers to such Commingled Fund some or all of the 
assets that remain in such plan, then for purposes of compliance with 
the 25% Test, the sum of the value of the initial and each additional 
transfer of assets of such Add-On Plan shall not exceed 25 percent 
(25%) of the value of the aggregate assets in such Commingled Fund, as 
measured on the day immediately following the addition of each 
subsequent transfer of such Add-On Plan's assets to such Commingled 
Fund;
    (ii) Where the assets of more than one Add-On Plan are invested in 
a Commingled Fund with the assets of plans described in Section 
IV(e)(1)-(3), above, of the exemption, the 25% Test will be satisfied, 
if the aggregate amount of the assets of such Add-On Plans invested in 
such Commingled Fund do not represent more than 25 percent (25%) of the 
value of all of the assets of such Commingled Fund, as measured on the 
day immediately following each addition of Add-On Plan assets to such 
Commingled Fund;
    (iii) If the 25% Test is satisfied at the time of the initial and 
any subsequent transfer of an Add-On Plan's assets to a Commingled 
Fund, as provided in Section IV(e), above, this requirement shall 
continue to be satisfied notwithstanding that the assets of such Add-On 
Plan in the Commingled Fund exceed 25 percent (25%) of the value of the 
aggregate assets of such fund solely as a result of:
    (AA) A distribution to a participant in a Former U.S. Steel Related 
Plan;
    (BB) Periodic employer or employee contributions made in accordance 
with the terms of the governing plan documents;
    (CC) The exercise of discretion by a Former U.S. Steel Related Plan 
participant to re-allocate an existing account balance in a Commingled 
Fund managed by UCF or to withdraw assets from a Commingled Fund; or
    (DD) An increase in the value of the assets of the Add-On Plan held 
in such Commingled Fund due to investment earnings or appreciation;
    (iv) If, as a result of a decision by an employer or a sponsor of a 
plan described in Section IV(e)(1)-(3) of the exemption to withdraw 
some or all of the assets of such plan from a Commingled Fund, the 25% 
Test is no longer satisfied with respect to any Add-On Plan in such 
Commingled Fund, then the exemption will immediately cease to apply to 
all of the Add-On Plans invested in such Commingled Fund; and
    (v) Where the assets of a Commingled Fund include assets of plans 
other than Former U.S. Steel Related Plans, as defined in Section 
IV(e), above, of this exemption, the 25% Test will be determined 
without regard to the assets of such other plans in such Commingled 
Fund.
    (f) For purposes of Sections I and II of this exemption, 
``Exemption Audit'' of any of the Former U.S. Steel Related Plans must 
consist of the following:
    (1) A review by an independent auditor of the written policies and 
procedures adopted by UCF, pursuant to Section I(i) of this exemption, 
for consistency with each of the objective requirements of this 
exemption, as described, below, in Section IV(f)(5) of this exemption; 
and
    (2)(i) A test by an independent auditor of a representative sample 
of the Plan's transactions in order to make findings regarding whether 
UCF is in compliance with:
    (I) The written policies and procedures adopted by UCF pursuant to 
Section I(i) of this exemption, and
    (II) The objective requirements described in Section I of this 
exemption;

[[Page 45297]]

    (3) A determination as to whether UCF has satisfied the 
requirements of Section I(a), above, of this exemption;
    (4) The issuance by an independent auditor of a written report 
describing the steps performed by such independent auditor during the 
course of its review and such independent auditor's findings.
    (5) For purposes of Section IV(f) of this exemption, the written 
policies and procedures must describe the following objective 
requirements of the exemption and the steps adopted by UCF to assure 
compliance with each of these requirements:
    (A) The requirements of Section I(a), above, of this exemption 
regarding registration under the Investment Advisers Act of 1940, total 
assets under management, and equity;
    (B) The requirements of Section I of this exemption, regarding the 
discretionary authority or control of UCF with respect to the assets of 
the Former U.S. Steel Related Plans involved in the transaction, in 
negotiating the terms of the transaction, and with regard to the 
decision on behalf of the Former U.S. Steel Related Plans to enter into 
the transaction;
    (C) The transaction is not entered into with any person who is 
excluded from relief under Section I(h)(1), above, of this exemption, 
or Section I(h)(2) to the extent that such person has discretionary 
authority or control over the plan assets involved in the transaction, 
or Section I(h)(3); and
    (D) The transaction is not described in any of the class exemptions 
listed in Section I(c), above, of this exemption.
    (g) For purposes of Section III of this exemption, ``Exemption 
Audit'' of any of the Former U.S. Steel Related Plans must consist of 
the following:
    (1) A review by an independent auditor of the written policies and 
procedures adopted by UCF pursuant to section I(i) for consistency with 
each of the objective requirements of this exemption (as described in 
section IV(g)(5)(A)-(D)).
    (2) A test of a sample of UCF's transactions during the audit 
period that is sufficient in size and nature to afford the auditor a 
reasonable basis: (A) To make specific findings regarding whether UCF 
is in compliance with (i) the written policies and procedures adopted 
by UCF pursuant to section I(i) of the exemption and (ii) the objective 
requirements of the exemption; and (B) to render an overall opinion 
regarding the level of compliance of UCF's program with this section 
IV(g)(2)(A)(i)and (ii) of the exemption;
    (3) A determination as to whether UCF has satisfied the 
requirements of Section III(a), above, of this exemption;
    (4) Issuance of a written report describing the steps performed by 
the auditor during the course of its review and the auditor's findings; 
and
    (5) For purposes of this section IV(g), the written policies and 
procedures must describe the following objective requirements of the 
exemption and the steps adopted by UCF to assure compliance with each 
of these requirements:
    (A) The requirements of Section III(a), above, of this exemption 
regarding registration under the Investment Advisers Act of 1940, total 
assets under management, and equity;
    (B) The requirements of Section I(d) of this exemption, regarding 
the discretionary authority or control of UCF with respect to the 
assets of the Former U.S. Steel Related Plans involved in the 
transaction, in negotiating the terms of the transaction, and with 
regard to the decision on behalf of the Former U.S. Steel Related Plans 
to enter into the transaction;
    (C) The transaction is not entered into with any person who is 
excluded from relief under Section I(h)(1), above, of this exemption, 
or Section I(h)(2) to the extent that such person has discretionary 
authority or control over the plan assets involved in the transaction, 
or Section I(h)(3); and
    (D) The transaction is not described in any of the class exemptions 
listed in Section I(c), above, of this exemption.
    (h) ``In-house Plan Assets'' means the assets of any plan 
maintained by an affiliate of UCF, as defined in Section IV(c), above, 
of this exemption and with respect to which UCF has discretionary 
authority or control.
    (i) The term, ``party in interest,'' means a person described in 
section 3(14) of the Act and includes a ``disqualified person,'' as 
defined in section 4975(e)(2) of the Code.
    (j) UCF is ``related'' to a party in interest for purposes of 
Section I(h)(3) of this exemption, if the party in interest (or a 
person controlling, or controlled by, the party in interest) owns a 5 
percent (5%) or more interest in U.S. Steel, or if UCF (or a person 
controlling, or controlled by UCF) owns a 5 percent (5%) or more 
interest in the party in interest. For purposes of this definition:
    (1) The term, ``interest,'' means with respect to ownership of an 
entity--
    (A) The combined voting power of all classes of stock entitled to 
vote or the total value of the shares of all classes of stock of the 
entity if the entity is a corporation,
    (B) The capital interest or the profits interest of the entity if 
the entity is a partnership; or
    (C) The beneficial interest of the entity if the entity is a trust 
or unincorporated enterprise; and
    (2) A person is considered to own an interest held in any capacity 
if the person has or shares the authority--
    (A) To exercise any voting rights or to direct some other person to 
exercise the voting rights relating to such interest, or
    (B) To dispose or to direct the disposition of such interest.
    (k) For purposes of Section I(a) of this exemption, the term, 
``equity'' means the equity shown on the most recent balance sheet 
prepared within the two (2) years immediately preceding a transaction 
undertaken pursuant to this exemption, in accordance with generally 
accepted accounting principles.
    (l) ``Investment Fund'' includes single customer and pooled 
separate accounts maintained by an insurance company, individual trust 
and common collective or group trusts maintained by a bank, and any 
other account or fund to the extent that the disposition of its assets 
(whether or not in the custody of UCF) is subject to the discretionary 
authority of UCF.
    (m) The term, ``relative,'' means a relative as that term is 
defined in section 3(15) of the Act, or a brother, sister, or a spouse 
of a brother or sister.
    (n) The ``time'' as of which any transaction occurs is the date 
upon which the transaction is entered into. In addition, in the case of 
a transaction that is continuing, the transaction shall be deemed to 
occur until it is terminated. If any transaction is entered into on or 
after the date when this exemption is published in the Federal Register 
or a renewal that requires the consent of UCF occurs on or after such 
publication date and the requirements of this exemption are satisfied 
at the time the transaction is entered into or renewed, respectively, 
the requirements will continue to be satisfied thereafter with respect 
to the transaction. Nothing in this subsection shall be construed as 
exempting a transaction entered into by an Investment Fund which 
becomes a transaction described in section 406(a) of the Act or section 
4975(c)(1)(A) through (D) of the Code while the transaction is 
continuing, unless the conditions of this exemption were met either at 
the time the transaction was entered into or at the time the 
transaction would have become prohibited but for this exemption. In 
determining compliance with the conditions of the exemption at the time 
that the transaction was entered into for

[[Page 45298]]

purposes of the preceding sentence, Section I(h) of this exemption will 
be deemed satisfied if the transaction was entered into between a plan 
and a person who was not then a party in interest.
    (o) ``Commingled Fund'' means a trust fund managed by UCF 
containing assets of some or all of the plans described in Section 
IV(e)(1)-(3) of this exemption, plans other than Former U.S. Steel 
Related Plans, and if applicable, any Add-On Plan, as to which the 25% 
Test provided in Section IV(e)(4) of this exemption have been 
satisfied; provided that:
    (1) Where UCF manages a single sub-fund or investment portfolio 
within such trust, the sub-fund or portfolio will be treated as a 
single Commingled Fund; and
    (2) Where UCF manages more than one sub-fund or investment 
portfolio within such trust, the aggregate value of the assets of such 
sub-funds or portfolios managed by UCF within such trust will be 
treated as though such aggregate assets were invested in a single 
Commingled Fund.
    (p) For purposes of Section III(d) of this exemption, an 
``affiliate'' of a person means--
    (1) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person,
    (2) Any corporation, partnership, trust, or unincorporated 
enterprise of which such person is an officer, director, ten percent 
(10%) or more partner, or employee (but only if the employer of such 
employee is the plan sponsor), and
    (3) Any director of the person or any employee of the person who is 
a highly compensated employee, as defined in section 4975(e)(2)(H) of 
the Code, or who has direct or indirect authority, responsibility, or 
control regarding the custody, management, or disposition of plan 
assets.
    A named fiduciary (within the meaning of section 402(a)(2) of the 
Act) of a plan, and an employer any of whose employees are covered by 
the plan will also be considered affiliates with respect to each other 
for purposes of Section III(d), above, if such employer or an affiliate 
of such employer has the authority, alone or shared with others, to 
appoint or terminate the named fiduciary or otherwise negotiate the 
terms of the named fiduciary's employment agreement. Reliance. The 
exemption is applicable to a particular transaction only if the 
transaction satisfies the conditions specified herein.

Temporary Nature of Exemption

    The Department has determined that the relief provided by this 
exemption is temporary in nature. The exemption, is effective February 
15, 2003, and will expire on the day which is five (5) years from the 
date of the publication of this final exemption in the Federal 
Register. Accordingly, the relief provided by this exemption will not 
be available upon the expiration of such five-year period for any new 
or additional transactions, as described herein, after such date, but 
would continue to apply beyond the expiration of such five-year period 
for continuing transactions entered into before the expiration of the 
five-year period. Should the Applicant wish to extend, beyond the 
expiration of such five-year period, the relief provided by this 
exemption to new or additional transactions, the Applicant may submit 
another application for exemption.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption (the Notice) published on December 24, 
2008 at 73 FR 79186.

Written Comments

    The Department received one comment with respect to the Notice, 
which was filed by the Applicant. The Applicant addressed several 
points in the Notice in its comment letter. The Applicant's commentary, 
a discussion of the Department's views in response thereto and the 
modifications to the proposed exemption are discussed below.
    The Applicant's first comment focused on condition III(c) of the 
Notice regarding the written report to be issued by an independent 
auditor. As a condition for prospective relief, such report must 
contain the auditor's overall opinion regarding whether UCF's program, 
as a whole, complied with the policies and procedures adopted by UCF 
and with the objective requirements of the exemption. The Applicant 
asked the Department to clarify or further explain this condition. In 
addition, the Applicant requested further guidance on the selection and 
testing of the representative sample of transactions.
    With regard to these comments, the Department wishes to note that 
because the auditor necessarily has to use its experience and judgment 
in designing and conducting a particular audit, the auditor must take 
into account the totality of the facts and circumstances in determining 
the appropriate size and types of transactions to audit. Based upon the 
specific sample of transactions tested during the audit period, we 
expect the auditor to render an overall opinion regarding the level of 
compliance of UCF's program with the objective requirements of the 
exemption. The Department notes, however, that in certain instances, an 
auditor may need to construct and test more than one sample of 
transactions. For example, an auditor may initially believe that the 
most appropriate way to make the required findings is to construct a 
sample that represents a subset of the total universe of relevant 
transactions engaged in by UCF under the exemption. In testing the 
sample, however, the auditor should look for, and may find, patterns of 
compliance failures that indicate that certain types of transactions 
are more prone to compliance failures than others. If such patterns 
appear, the auditor may need to test additional transactions to more 
accurately assess the extent and causes of non-compliant transactions. 
Ultimately, an auditor must construct and test a sampling of 
transactions that is sufficient in size (i.e., number of transactions) 
and nature (i.e., type of transactions) to afford the auditor a 
reasonable basis to make its required determinations under the 
exemption. Since the sole purpose of the audit is to assure compliance 
with the exemption, the sample should be sufficient in size and nature 
for the auditor to render an overall opinion regarding whether UCF's 
program complied with the objective requirements of the exemption and 
of its own policies and procedures. If the sample of transactions 
selected for testing by the independent auditor is properly designed so 
that it contains the appropriate weighting of representative 
transactions and if no instances of non-compliance are discovered, the 
auditor could then proceed to issue an overall opinion, without 
performing any further audit work, that, based upon its sampling of 
transactions, UCF's program as a whole complied with the policies and 
procedures adopted by UCF and with the objective requirements of the 
exemption. If, on the other hand, the auditor determined that a single 
transaction from the representative sample did not conform to the 
conditions for exemptive relief, the auditor must then determine 
whether the overall opinion could be issued without expanding the scope 
of the audit and conducting further testing. If the auditor were to 
decide that further auditing would not be necessary based upon valid 
documented reasoning (e.g., the auditor's report explains why the 
auditor was able to determine why non-

[[Page 45299]]

compliance with respect to the single transaction was an isolated 
violation), the auditor could then issue the required overall opinion. 
It is noted that in such a case, the exemptive relief would not be 
available for a single transaction that did not satisfy the conditions 
of the exemption, but that exemptive relief would continue to be 
available for the remaining transactions provided that they met the 
conditions of the exemption.
    The Applicant also raised some related questions that concerned 
item number 14 in the Summary of Facts and Representations of the 
Notice, which enumerated several items to be included in the auditor's 
written report required for prospective relief. The Applicant asked the 
Department to explain the difference between the content of 
subparagraph (ii) of item 14 of the facts and representations and 
subparagraph (v), because both items relate to the sample selected for 
review by the auditor. The Department responds that subparagraph (ii) 
focuses on the general process and methodology used to select the 
representative sample, whereas subparagraph (v) requires an explanation 
regarding the appropriateness of the specific sample size selected for 
review and taking into account instances of non-compliance.
    In addition, the Applicant commented with respect to subparagraph 
(vi) of item number 14 in the Summary of Facts and Representations of 
the Notice. The Applicant commented that the subparagraph as written 
would require the auditor to determine the adequacy of the Plan's 
written policies and procedures, described in Section I(i), and their 
administration by UCF. The Applicant requested that this provision be 
made consistent with PTE 96-23, which requires that the auditor review 
the written policies and procedures of the INHAM not for ``adequacy,'' 
but rather for ``consistency'' with the objective requirements of the 
exemption. The Department agrees with this comment and notes that the 
requirement that an auditor determine the adequacy of UCF's written 
policies and procedures, described in Section I(i), is deleted. 
However, the Department notes that where there is a pattern of failure 
to comply rather than an isolated instance of non-compliance, the 
Department expects that the auditor would review UCF's policies and 
procedures to determine whether the weakness of the written policies 
and procedures contributed to this general pattern of non-compliance.
    The Applicant next commented with respect to the requirement for 
prospective relief that the written audit reports be issued within six 
months following the end of the year to which the audit relates. The 
comment referred to other tasks which UCF must perform following the 
end of a year, and requested that the period be lengthened to one year 
following the end of the year to which the audit relates, rather than 
six months. The Department is not persuaded by this comment, and also 
believes that an additional six month delay is inconsistent with the 
underlying purposes of the annual audit requirement. Accordingly, the 
Department has not made the requested modification.
    The Applicant also commented with respect to the effective dates of 
Section II of the exemption, which provides ``Interim Relief,'' and 
Section III, which provides ``Prospective Relief.'' The Applicant 
pointed out that as written in the Notice, there was a gap between the 
end of the effective period for interim relief and the beginning of the 
effective period for prospective relief. In addition, the Applicant 
noted that the effective dates will not necessarily come out at the 
beginning or end of a year or of an audit period. This would raise 
questions under two of the conditions of the prospective relief. First, 
the $1 million equity requirement of Section III(a) must be met as of 
the date of UCF's most recent balance sheet. Second, if an exemption 
audit covers an annual period that straddles the effective dates, the 
audit could be subject to two differing sets of standards. The 
Applicant recommended that to avoid these problems, the effective date 
for prospective relief should begin at the start of the first fiscal 
year of UCF after the date of publication of this final exemption in 
the Federal Register, and the end date of the interim relief should be 
concomitantly extended. The Department agrees with this comment and has 
modified the final exemption accordingly.
    The Applicant also pointed out a cross-reference in the Notice that 
should be changed. In Section IV(g)(1), the parenthetical should 
reference subparagraphs IV(g)(5)(A)-(D) instead of subparagraphs 
IV(f)(5)(A)-(D). The Department agrees and had made the change in the 
exemption.
    The Applicant also commented that in section II(a), the reference 
should be to subparagraphs (a) through (k) of Section I instead of 
subparagraphs (a) through (l), since subparagraph (l) refers to Section 
II. The Department agrees with this comment and has modified Section 
II(a) accordingly. Although it is the Department's intention that the 
retroactive relief in this case be conditioned upon the Applicant's 
good faith satisfaction of prospective conditions for future 
transactions, the Department believes that it is appropriate to make 
the retroactive relief contingent upon meeting the conditions for 
prospective relief for a finite period. Accordingly, in order for the 
Applicant to qualify for retroactive relief, it must comply with 
Sections II and III, as appropriate, through the date which is five (5) 
years from the date of the publication of the final exemption in the 
Federal Register. The Department has modified Section I(l) accordingly 
to reflect this requirement.
    The Applicant also requested that the Department clarify that in 
the second-to-last sentence in item 3(b) of the Summary of Facts and 
Representations in the Notice, ``majority ownership on the UCF Board'' 
should read ``majority membership on the UCF Board.'' The Department 
notes this correction.
    The Applicant also commented that item 11 of the Summary of Facts 
and Representations in the Notice could be read to imply that UCF 
represented it did not comply with the exemption audit requirement of 
FAN 2003-03E (the FAN). UCF, in its comment, maintained its position 
that it did indeed comply with the exemption audit requirement of the 
FAN, but it acknowledges the Department's view that it did not comply 
and has requested retroactive relief to February 15, 2003 for that 
reason.
    Finally, the Applicant requested three changes to the Notice with 
respect to the prospective relief provided in Section III so that the 
conditions and definitions would be made consistent with the 2005 
amendment to PTE 84-14.\11\ First, the Applicant requested that the 
Department delete the ``one-year look-back rule'' that makes the 
exemption unavailable to a party in interest if it had exercised the 
power of appointment over UCF within the one-year period preceding the 
transaction, and clarifying that the power of appointment refers only 
to the power to appoint UCF as manager of the assets used in the 
transaction. The Department concurs with this suggestion and has added 
Section III(d) for prospective transactions while deleting the 
requirement that such prospective transactions satisfy the condition 
contained in Section I(b). Second, the Applicant requested that Section 
IV(a) exclude from the definition of an ``affiliate'' those 
partnerships in which the person has less than a 10% interest (rather 
than 5%). The Department concurs with this suggestion and made the 
requested change to the Notice by

[[Page 45300]]

adding Section IV(p). Third, the Applicant requested that Section IV(j) 
be revised for prospective transactions with respect to the definition 
of ``related'' by changing the percentage of ownership in certain 
entities. The Department has determined not to make this requested 
modification to the final exemption. In this regard, the Department 
notes that the modification requested would conflict with other 
limitations contained in section I(h) in a number of instances.\12\
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    \11\ 70 FR 49305, August 23, 2005.
    \12\ The Department notes that it is currently considering an 
amendment to PTE 96-23. The Department has under consideration an 
amendment to the ``related to'' definition in section IV(d) of PTE 
96-23. To the extent the Department adopts such changes, the 
Department would consider making similar changes to this exemption 
at such time.
---------------------------------------------------------------------------

    For Further Information, Contact: Gary H. Lefkowitz of the 
Department, telephone (202) 693-8546 (this is not a toll-free number).

Barclays Global Investors, N.A. and its affiliates and successors (BGI) 
and Barclays Capital Inc. and its affiliates and successors (BarCap) 
(collectively Applicants); Located in San Francisco, CA, and New York, 
NY.

[Prohibited Transaction Exemption 09-25; Application No. D-11508.]

Exemption

Section I--Temporary Exemption for Securities Lending Transactions 
Involving Index and Model-Driven Funds That Are Based on BarCap-Lehman 
Indices

    For the period from September 22, 2008, through the earlier of (i) 
the effective date of an individual exemption granting permanent relief 
for the following transactions or (ii) one year from September 1, 2009 
(the Relief Period), the restrictions of section 406(a)(1)(A) through 
(D) and 406(b)(1) and (2) of the Act, section 8477(c)(2)(A) and (B) of 
FERSA, 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 lending of securities carried out on 
behalf of Client Plans in reliance on Prohibited Transaction Exemption 
(PTE) 2002-46,\13\ where the applicable Index or Model-Driven Fund 
managed by BGI meets the definition of an ``Index Fund'' or a ``Model-
Driven Fund'' as set forth in Section III of PTE 2002-46 but for the 
fact that the underlying index is a BarCap-Lehman Index, provided that 
all of the other conditions of PTE 2002-46 and the conditions set forth 
in Section IV of this exemption are met.
---------------------------------------------------------------------------

    \13\ 67 FR 59569, September 23, 2002.
---------------------------------------------------------------------------

Section II--Temporary Exemption for Transactions Involving Exchange-
Traded Funds That Are Index and Model-Driven Funds Based on BarCap-
Lehman Indices

    Effective for the Relief Period, the restrictions of section 406(a) 
and (b) of the Act, section 8477(c)(2) of FERSA, and the taxes imposed 
by section 4975(a) and (b) of the Code, by reason of section 
4975(c)(1)(A) through (F) of the Code, shall not apply to transactions 
carried out on behalf of Client Plans in reliance upon Prohibited 
Transaction Exemption (PTE) 2008-01,\14\ where the applicable Index or 
Model-Driven Fund would meet the definition of an ``Index Fund'' or a 
``Model-Driven Fund'' as set forth in Section V of PTE 2008-01 but for 
the fact that the underlying index is a BarCap-Lehman Index, provided 
that all of the other conditions of PTE 2008-01 and the conditions set 
forth in Section IV of this exemption are met.
---------------------------------------------------------------------------

    \14\ 73 FR 3274, January 17, 2008.
---------------------------------------------------------------------------

Section III--Temporary Exemption for Principal Transactions With the 
BarCap-Lehman Broker-Dealer

    Effective for the Relief Period, the restrictions of section 406(a) 
and 406(b)(1) and (2) of the Act, section 8477(c)(2)(A) and (B) of 
FERSA, and the taxes imposed by section 4975(a) and (b) of the Code by 
reason of section 4975(c)(1)(A) through (E) of the Code, shall not 
apply to the purchase or sale of fixed income securities between BGI on 
behalf of Client Plans and the BarCap-Lehman Broker-Dealer (Covered 
Principal Transactions) provided that the conditions set forth in 
Section V are met.

Section IV--Conditions Applicable to Sections I and II

    (a) Each BarCap-Lehman Index is a published Index widely used in 
the market by independent institutional investors other than pursuant 
to an investment management or advisory relationship with BGI and is 
prepared or applied in the same manner for non-affiliated customers as 
for BGI.
    (b) Prior to the use of a BarCap-Lehman Index in connection with 
the exemption and on an annual basis thereafter (but in no event prior 
to the date that is 90 days following May 6, 2009), BGI will provide 
BarCap with a list of BarCap Lehman Indices proposed to be used by BGI 
in connection with the exemption. BarCap will certify to BGI whether, 
in its reasonable judgment, each such index is widely used in the 
market. In making this determination, BarCap shall take into 
consideration factors such as (i) publication by Bloomberg, or a 
similar institution involved in the dissemination of financial 
information, (ii) hits on relevant Web sites including LehmanLive (or 
any successor Web site maintained by BarCap or its affiliate(s)) and 
Bloomberg.com (or similar Web site), and (iii) delivery of index 
information to clients by means other than through Web site access.
    (c) Any fees charged for the use of the BarCap-Lehman Index are 
paid by BGI and not Client Plans.
    (d) Information barriers are in place throughout the Relief Period 
between BGI and BarCap such that BGI is not provided access to 
information regarding the rules, decisions and data underlying the 
BarCap-Lehman Indices before such information is provided to users of 
such Indices who are independent of BarCap and such rules, decisions 
and data are determined objectively without regard to BGI's use of such 
BarCap-Lehman Indices.
    (e) At the end of the Relief Period, a Qualified Independent 
Reviewer, as defined in Section VII(n), shall issue a written report 
(the Compliance Report), following its review of relevant BarCap-Lehman 
Indices and the underlying rules, certifying to each of the following:
    (i) Each BarCap-Lehman Index was operated in accordance with 
objective rules, in the ordinary course of business as would be 
conducted between unaffiliated parties;
    (ii) No manipulation of any BarCap-Lehman Index for the purpose of 
benefiting BGI, BarCap, or their affiliates occurred;
    (iii) In the event that any rule change occurred in connection with 
the rules underlying any BarCap-Lehman Index, such rule change was not 
made for the purpose of benefiting BGI, BarCap, or their affiliates;
    (iv) Based on a review of the factors cited in condition (b) above, 
each BarCap-Lehman Index was widely used in the market during the 
Relief Period;
    (v) Based on the result of the Qualified Independent Reviewer's 
factual inquiries to the Applicants, condition (d) above was met; and
    (vi) Based on the Qualified Independent Reviewer's review of paid 
bills or invoices, condition (c) above was met with respect to the fee 
or fees paid in connection with each transaction.
    The Compliance Report shall be issued no later than 90 days 
following the end of the Relief Period describing the steps performed 
during the course of the Qualified Independent Reviewer's review, the 
level of compliance with conditions (e)(i) through (vi), and any 
specific instances of non-compliance.

[[Page 45301]]

The Compliance Report shall be included in the records maintained by 
BGI pursuant to Section VI of this exemption, and BGI shall notify the 
independent fiduciary(ies) of each Client Plan, as part of its regular 
disclosure with respect to the applicable Fund(s), that the Compliance 
Report is available for their review.
    (f) The Index or Model-Driven Funds described in Sections I and II 
meet the definition of Index Fund or Model-Driven Fund in Sections 
VII(k) or (l) of this exemption.

Section V--Conditions Applicable to Section III

    (a) BGI exercises discretionary authority or control or renders 
investment advice with respect to the Client Plan assets involved in 
the Covered Principal Transaction solely in connection with an Index 
Fund or Model-Driven Fund in which Client Plans invest.\15\
---------------------------------------------------------------------------

    \15\ This does not preclude, in the case of a BGI Plan that is a 
defined contribution plan under which participants direct the 
investment of their accounts among various investment options, the 
discretionary authority to select and offer investment options under 
the plan.
---------------------------------------------------------------------------

    (b) Each Covered Principal Transaction occurs as a direct result of 
a Triggering Event, as defined in Section VII(o), and is executed no 
later than the close of the third business day following such 
Triggering Event.
    (c) Each Covered Principal Transaction is a purchase or sale, for 
no consideration other than cash payment against prompt delivery of a 
security.
    (d) Each Covered Principal Transaction is on terms that BGI 
reasonably determines to be as favorable or more favorable to the 
Client Plan than the terms of an arm's length transaction with an 
unaffiliated counterparty would have been.
    (e) Each Covered Principal Transaction is executed either:
    (i) Through an automated routing system reasonably designed to 
ensure execution at the best available net price to the Client Plan for 
the number of securities to be purchased or sold in the Covered 
Principal Transaction; or
    (ii) At a net price to the Client Plan for the number of securities 
to be purchased or sold in the Covered Principal Transaction which is 
as favorable or more favorable to the Client Plan as the prices at 
which at least two independent Approved Counterparties, who are ready 
and willing to trade the relevant security, offer to purchase or sell 
such security.
    (f) The Covered Principal Transaction does not involve any security 
issued by Barclays PLC.
    (g) At the end of the Relief Period, a Qualified Independent 
Reviewer shall issue a Compliance Report certifying to each of the 
following:
    (i) Based on a review of execution policies and procedures during 
the Relief Period and a sample of Covered Principal Transactions, that 
the policies and execution procedures used in connection with Covered 
Principal Transactions were reasonably designed to obtain best 
execution for the securities to be purchased or sold in the Covered 
Principal Transaction; and
    (ii) Each sampled Covered Principal Transaction occurred in 
accordance with conditions (a), (b), (c) and (e) above.
    The Compliance Report shall be issued no later than 90 days 
following the end of the Relief Period describing the steps performed 
during the course of the Qualified Independent Reviewer's review, the 
level of compliance with conditions (g)(i) and (ii), and any specific 
instances of non-compliance. The Compliance Report shall be included in 
the records maintained by BGI pursuant to Section VI of this exemption, 
and BGI shall notify the independent fiduciary(ies) of each Client 
Plan, as part of its regular disclosure with respect to the applicable 
Fund(s), that the Compliance Report is available for their review.
    (h) In the case of any Covered Principal Transaction in connection 
with an Index Fund or a Model-Driven Fund with respect to which the 
underlying Index is a BarCap-Lehman Index, each of conditions (a) 
through (f) set forth in Section IV above is met.

Section VI--Recordkeeping Conditions Applicable to Sections I, II and 
III

    (a) BGI maintains, or causes to be maintained, for a period of six 
(6) years following the end of the Relief Period the records necessary 
to enable the persons described in paragraph (b) Below to determine 
whether the conditions of the exemption have been met, including the 
Compliance Reports described in Sections IV(e) and V(g), and records 
which identify with respect to the Covered Principal Transactions:
    (i) On a Fund by Fund basis, the specific Triggering Events which 
result in the creation of the index or model prescribed output 
describing the characteristics of the securities to be traded; \16\
---------------------------------------------------------------------------

    \16\ Characteristics of the securities used in rebalancing a 
fixed income index would include changes in (a) amount of 
securities, (b) duration, (c) yield curve, and (d) convexity.
---------------------------------------------------------------------------

    (ii) On a Fund by Fund basis, the index or model prescribed output 
which described the characteristics of the securities to be traded in 
detail sufficient to allow an independent plan fiduciary or the 
Qualified Independent Reviewer to verify that each of the above 
decisions for the Fund was made in response to specific Triggering 
Events; and
    (iii) On a Fund by Fund basis, the actual trades executed by the 
Fund on a particular day, the identity of the counterparty, the prices 
offered by the Approved Counterparties, if relevant, and which of those 
trades resulted from Triggering Events.
    Such records must be readily available to assure accessibility and 
maintained so that an independent fiduciary, the Qualified Independent 
Reviewer, or other persons identified below in paragraph (b) of this 
Section, may obtain them within a reasonable period of time. However, a 
prohibited transaction will not be considered to have occurred if, due 
to circumstances beyond the control of BGI, the records are lost or 
destroyed prior to the end of the six-year period; and no party in 
interest other than BGI and its affiliates 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 Section (2) of this paragraph and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in paragraph (a) are 
unconditionally available at their customary location 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 participating Client Plan or any duly 
authorized representative of such fiduciary;
    (C) Any contributing employer to any participating Client Plan or 
any duly authorized employee representative of such employer;
    (D) Any participant or beneficiary of any participating Client 
Plan, or any duly authorized representative of such Client Plan 
participant or beneficiary; and
    (E) The Qualified Independent Reviewer.
    (2) None of the persons described above in subparagraphs (B)-(E) of 
paragraph (b)(1) are authorized to examine the trade secrets of BGI or 
its affiliates or commercial or financial information that is 
privileged or confidential.

[[Page 45302]]

    (3) Should BGI refuse to disclose information on the basis that 
such information is exempt from disclosure, BGI shall, by the close of 
the thirtieth (30th) day following the request, provide written notice 
advising that person of the reason for the refusal and that the 
Department may request such information.

Section VII--Definitions

    (a) Approved Counterparty: A dealer that (x) is either (i) 
registered in accordance with section 15(b) of the Exchange Act or (ii) 
exempt from the requirement to register as a dealer under the Exchange 
Act because it is a bank that buys and sells government securities (as 
such terms are defined in the Exchange Act) and (y) meets the credit 
and execution standards of BGI as described in paragraph 20 of the 
summary of facts and representations of the notice of proposed 
exemption (74 FR 20981, May 6, 2009).
    (b) Barclays: Barclays PLC and its direct and indirect 
subsidiaries.
    (c) BarCap: Barclays Capital Inc. and its successors.
    (d) BarCap-Lehman Broker-Dealer: BarCap's U.S. broker-dealer 
business, including the broker-dealer business acquired by BarCap from 
Lehman on September 22, 2008.
    (e) BarCap-Lehman Index: A generally accepted standardized 
securities Index created by Lehman prior to the closing of the Asset 
Purchase Agreement on September 22, 2008, and maintained by its 
successor, BarCap.
    (f) BGI: Barclays Global Investors, N.A., its investment advisory 
affiliates and their respective successors.
    (g) BGI Plan: A Plan maintained by BGI or an affiliate for the 
benefit of its own employees.
    (h) Client Plan: An employee benefit plan subject to the Act, FERSA 
and/or the Code, whose assets are managed by or which is advised by 
BGI, or a BGI-managed fund or separate account in which assets of such 
plans are invested.
    (i) Exchange Act: The Securities Exchange Act of 1934, as amended.
    (j) Index: A securities index that represents the investment 
performance of a specific segment of the public market for equity or 
debt securities in the United States and/or foreign countries, but only 
if--
    (1) The organization creating and maintaining the index is--
    (A) Engaged in the business of providing financial information, 
evaluation, advice or securities brokerage services to institutional 
clients;
    (B) A publisher of financial news or information; or
    (C) A public stock exchange or association of securities dealers; 
and
    (2) The index is either (i) created and maintained by an 
organization independent of Barclays or (ii) a BarCap-Lehman Index; and
    (3) The index is a generally accepted standardized index of 
securities which is not specifically tailored for the use of BGI.
    (k) Index Fund: Any investment fund, account or portfolio 
sponsored, maintained, trusteed or managed by BGI in which one or more 
investors invest, and--
    (1) Which is designed to track the rate of return, risk profile and 
other characteristics of an Index by either (i) replicating the same 
combination of securities which compose such Index or (ii) sampling the 
securities which compose such Index based on objective criteria and 
data;
    (2) For which either (i) BGI or its affiliate does not use its 
discretion, or data within its control, to affect the identity or 
amount of securities to be purchased or sold or (ii) the underlying 
Index is a BarCap-Lehman Index;
    (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 BGI its affiliate or any party in which BGI or its affiliate 
may have an interest.\17\
---------------------------------------------------------------------------

    \17\ This requirement does not preclude BGI's payment of fees to 
BarCap for use of the Indices.
---------------------------------------------------------------------------

    (l) Model-Driven Fund: Any investment fund, account or portfolio 
sponsored, maintained, trusteed or managed by BGI in which one or more 
investors invest and--
    (1) Which is composed of securities the identity of which and the 
amount of which are selected by a computer model that is based on 
prescribed objective criteria to transform an Index using either (i) 
independent third-party data not within the control of BGI or an 
affiliate or (ii) data provided by the BarCap-Lehman Broker-Dealer that 
is commercially available on a widespread basis to unaffiliated end 
users such as mutual funds and collective investment funds on the same 
terms and conditions;
    (2) Which 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 which is intended to benefit BGI or its 
affiliate or any party in which BGI or its affiliate may have an 
interest.\18\
---------------------------------------------------------------------------

    \18\ This requirement does not preclude BGI's payment of fees to 
BarCap for use of the Indices or data.
---------------------------------------------------------------------------

    (m) Lehman: Lehman Brothers Holdings Inc. and, as the context 
requires, its subsidiaries and affiliates prior to September 15, 2008.
    (n) Qualified Independent Reviewer: A third party appointed by BGI 
that is independent of Barclays and its affiliates and has extensive 
experience in reviewing and/or auditing transactions and procedures 
involving assets of plans subject to the Act, FERSA and/or the Code for 
the purpose of confirming that the applicable transactions or 
procedures serve the best interests of such plans.
    (o) Triggering Event: Any of the following events in connection 
with an Index Fund or a Model-Driven Fund (together, ``Funds''):
    (1) A change in the composition or weighting of the Index 
underlying a Fund by either (i) the independent organization creating 
and maintaining the Index or (ii) in the case of a BarCap-Lehman Index, 
by the BarCap-Lehman Broker-Dealer. In the case of a change described 
in clause (ii) of the preceding sentence, the change is uniformly 
applied to all customers using the Index, including non-affiliated 
customers, and is not adopted for the purpose of benefiting BGI.
    (2) A material amount of net change in the overall level of assets 
in a Fund, as a result of investments in and withdrawals from the Fund, 
provided that:
    (A) Such material amount has either been identified in advance as a 
specified amount of net change relating to such Fund and disclosed in 
writing as a ``triggering event'' to an independent fiduciary of each 
Client Plan having assets held in the Fund prior to, or within ten (10) 
days following, its inclusion as a ``triggering event'' for such Fund 
or BGI has otherwise disclosed to the independent fiduciary the 
parameters for determining a material amount of net change, including 
any amount of discretion retained by the BGI that may affect such net 
change; and
    (B) Investments or withdrawals as a result of BGI's discretion to 
invest or withdraw assets of a BGI Plan, other than a BGI Plan which is 
a defined contribution plan under which participants direct the 
investment of their accounts among various investment options, 
including the applicable Fund, will not be taken into account in 
determining the specified amount of net change;
    (3) An accumulation in the Fund of a material amount of either:
    (A) Cash which is attributable to interest or dividends on, and/or 
tender offers for, portfolio securities; or

[[Page 45303]]

    (B) Stock attributable to dividends on portfolio securities; 
provided that such material amount has been identified in advance as a 
specified amount relating to such Fund and disclosed in writing as a 
``triggering event'' to an independent fiduciary of each Client Plan 
having assets held in the Fund prior to, or within ten (10) days 
following, its inclusion as a ``triggering event'' for such Fund, or 
BGI has otherwise disclosed to the independent fiduciary the parameters 
for determining a material amount of accumulated cash or securities, 
including any amount of discretion retained by the BGI that may affect 
such net change.
    (4) A change in the composition of the portfolio of a Model-Driven 
Fund mandated solely by operation of the formulae contained in the 
computer model underlying the Fund where the basic factors for making 
such changes (and any fixed frequency for operating the computer model) 
have been disclosed in writing to an independent fiduciary of each 
Client Plan having assets held in the Fund prior to, or within ten (10) 
days following, its inclusion as a ``triggering event'' for such Fund; 
or
    (5) A change in the composition or weighting of a portfolio for an 
Index or Model-Driven Fund which results from an independent 
fiduciary's direction to exclude certain securities or types of 
securities from the Fund, notwithstanding that such securities are part 
of the Index used by the Fund.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on May 6, 2009 at 74 FR 
20981 (the Notice).
    Effective Date: The exemption is effective September 22, 2008.

Written Comments

    The Department received one comment with respect to the Notice, 
which was filed by the Applicants. The Applicants' comment concerns 
Section V(d) of the Notice, which provided that:

    [E]ach Covered Principal Transaction is on terms that BGI 
reasonably determines to be more favorable to the Client Plan than 
the terms of an arm's length transaction with an unaffiliated 
counterparty would have been.

    The Applicants note that the Notice provided another standard for 
Covered Principal Transactions, relating to price. That condition, 
Section V(e), provides that:

    [E]ach Covered Principal Transaction is executed either:

    (i) Through an automated routing system reasonably designed to 
ensure execution at the best available net price to the Client Plan 
for the number of securities to be purchased or sold in the Covered 
Principal Transaction; or
    (ii) at a net price to the Client Plan for the number of 
securities to be purchased or sold in the Covered Principal 
Transaction which is as favorable or more favorable to the Client 
Plan as the prices at which at least two independent Approved 
Counterparties, who are ready and willing to trade the relevant 
security, offer to purchase or sell such security.

    In this regard, BGI represents that it is not currently executing 
transactions through an automated routing system. With respect to 
Covered Principal Transactions involving prices quoted by at least two 
independent Approved Counterparties (subsection (ii) above), BGI 
represents as follows: BGI's fixed income policies and procedures 
include consideration of various factors (of which one--price--is 
quantifiable) that may go into the selection of a counterparty for 
execution. In the context of Covered Principal Transactions, each 
counterparty with whom BGI would trade through a trading platform (for 
example, Tradeweb) is already a BGI approved counterparty that has been 
subject to internal approvals, including approval by BGI's credit 
group. For the execution of all Covered Principal Transactions made 
using the platform, the predominant (though not exclusive) factor used 
when comparing the terms offered by one of those Approved 
Counterparties is price.
    Accordingly, because in BGI's view price is the only quantifiable 
factor and all the Approved Counterparties have been subject to prior 
internal approval, BGI is concerned that it may be difficult to prove 
that a Covered Principal Transaction is on terms ``more favorable to 
the Client Plan than the terms of an arm's length transaction with an 
unaffiliated counterparty'' under circumstances in which the price is 
``as favorable or more favorable'' than the prices offered by two 
independent Approved Counterparties. BGI's concern also relates to the 
language governing transactions executed through an automated routing 
system (subsection (i) above), in the event that future trades are 
executed in that manner. The requirement that the trade be executed at 
``best available net price'' would leave room for the possibility that 
two or more trading opportunities would exist at the same price, each 
of which could represent the ``best available net price.'' In such a 
case, BGI believes it may be difficult to demonstrate compliance with 
the requirement in Section V(d) that the terms of the transaction be 
``more favorable to the Client Plan than the terms of an arm's length 
transaction with an unaffiliated counterparty.''
    To address its concerns, BGI requests that the required standard 
for the overall terms of the Covered Principal Transaction (i.e., 
Section V(d)) be conformed to the same required standard for the 
specific term of price of the Covered Principal Transaction. Therefore, 
BGI requests that Section V(d) be revised as follows:

    Each Covered Principal Transaction is on terms that BGI 
reasonably determines to be as favorable or more favorable to the 
Client Plan than the terms of an arm's length transaction with an 
unaffiliated counterparty would have been.

    Upon consideration of BGI's comment, the Department has determined 
to make the change requested by BGI.
    For Further Information Contact: Karen E. Lloyd of the Department, 
202-693-8554. (This is not a toll-free number.)

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions to which the exemption does not 
apply and the general fiduciary responsibility provisions of section 
404 of the Act, which among other things require a fiduciary to 
discharge his duties respecting the plan solely in the interest of the 
participants and beneficiaries of the plan and in a prudent fashion in 
accordance with section 404(a)(1)(B) of the Act; nor does it affect the 
requirement of section 401(a) of the Code that the plan must operate 
for the exclusive benefit of the employees of the employer maintaining 
the plan and their beneficiaries;
    (2) This exemption is supplemental to and not in derogation of, any 
other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.


[[Page 45304]]


    Signed at Washington, DC, this 24th day of August, 2009.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security, 
Administration, U.S. Department of Labor.
[FR Doc. E9-20724 Filed 8-31-09; 8:45 am]
BILLING CODE 4510-29-P