[Federal Register Volume 80, Number 143 (Monday, July 27, 2015)]
[Notices]
[Pages 44702-44750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18144]



[[Page 44701]]

Vol. 80

Monday,

No. 143

July 27, 2015

Part IV





Department of Labor





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Employee Benefits Security Administration





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Proposed Exemptions from Certain Prohibited Transaction Restrictions; 
Notice

  Federal Register / Vol. 80 , No. 143 / Monday, July 27, 2015 / 
Notices  

[[Page 44702]]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Proposed Exemptions from Certain Prohibited Transaction 
Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of proposed exemptions.

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SUMMARY: This document contains notices of pendency before the 
Department of Labor (the Department) of proposed exemptions from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (ERISA or the Act) and/or the 
Internal Revenue Code of 1986 (the Code). This notice includes the 
following proposed exemptions: D-11788, D-11789, D-11790, D-11791, and 
D-11792, The Les Schwab Tire Center of Washington, Inc., the Les Schwab 
Tire Centers of Idaho, Inc., and the Les Schwab Tire Centers of 
Portland, Inc.; L-11795, New England Carpenters Training Fund; D-11818, 
Virginia Bankers Association Defined Contribution Plan for First 
Capital Bank; D-11823, Idaho Veneer Company/Ceda-Pine Veneer, Inc. 
Employees' Retirement Plan; D-11835, United States Steel and Carnegie 
Pension Fund; D-11836, Roberts Supply, Inc. Profit Sharing Plan and 
Trust; D-11763, D-11764 and D-11765, Red Wing Shoe Company Pension Plan 
for Hourly Employees, The Red Wing Shoe Company Retirement Plan and the 
S.B. Foot Tanning Company Employees' Pension Plan; and D-11781, Frank 
Russell Company and Affiliates.

DATES: All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemptions, unless otherwise 
stated in the Notice of Proposed Exemption, within 45 days from the 
date of publication of this Federal Register Notice.

ADDRESSES: Comments and requests for a hearing should state: (1) The 
name, address, and telephone number of the person making the comment or 
request, and (2) the nature of the person's interest in the exemption 
and the manner in which the person would be adversely affected by the 
exemption. A request for a hearing must also state the issues to be 
addressed and include a general description of the evidence to be 
presented at the hearing.
    All written comments and requests for a hearing (at least three 
copies) should be sent to the Employee Benefits Security Administration 
(EBSA), Office of Exemption Determinations, Room N-5700, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. 
Attention: Application No. ___, stated in each Notice of Proposed 
Exemption. Interested persons are also invited to submit comments and/
or hearing requests to EBSA via email or FAX. Any such comments or 
requests should be sent either by email to: [email protected], or 
by FAX to (202) 219-0204 by the end of the scheduled comment period. 
The applications for exemption and the comments received will be 
available for public inspection in the Public Documents Room of the 
Employee Benefits Security Administration, U.S. Department of Labor, 
Room N-1515, 200 Constitution Avenue NW., Washington, DC 20210.
    Warning: All comments will be made available to the public. Do not 
include any personally identifiable information (such as Social 
Security number, name, address, or other contact information) or 
confidential business information that you do not want publicly 
disclosed. All comments may be posted on the Internet and can be 
retrieved by most Internet search engines.

SUPPLEMENTARY INFORMATION:

Notice to Interested Persons

    Notice of the proposed exemptions will be provided to all 
interested persons in the manner agreed upon by the applicant and the 
Department within 15 days of the date of publication in the Federal 
Register. Such notice shall include a copy of the notice of proposed 
exemption as published in the Federal Register and shall inform 
interested persons of their right to comment and to request a hearing 
(where appropriate).
    The proposed exemptions were requested in applications filed 
pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the 
Code, and in accordance with procedures set forth in 29 CFR Part 2570, 
Subpart B (76 FR 66637, 66644, October 27, 2011).\1\ Effective December 
31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. 
App. 1 (1996), transferred the authority of the Secretary of the 
Treasury to issue exemptions of the type requested to the Secretary of 
Labor. Therefore, these notices of proposed exemption are issued solely 
by the Department.
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    \1\ The Department has considered exemption applications 
received prior to December 27, 2011 under the exemption procedures 
set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 
10, 1990).
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    The applications contain representations with regard to the 
proposed exemptions which are summarized below. Interested persons are 
referred to the applications on file with the Department for a complete 
statement of the facts and representations.

The Les Schwab Tire Centers of Washington, Inc. (Les Schwab 
Washington), the Les Schwab Tire Centers of Idaho, Inc. (Les Schwab 
Idaho), and the Les Schwab Tire Centers of Portland, Inc. (Les Schwab 
Portland), (Collectively, With Their Affiliates, Les Schwab or the 
Applicant), Located in Bothell, Washington; Lacey, Washington; Renton, 
Washington; Twin Falls, Idaho; and Sandy, Oregon

[Application Nos. D-11699, D-11700, D-11701, D-11702, and D-11703]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA), and section 
4975(c)(2) of the Code, and in accordance with the procedures set forth 
in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 
2011).\2\
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    \2\ For purposes of this proposed exemption, references to the 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
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Section I. Transactions
    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(D), 406(b)(1) and 406(b)(2) of the Act, and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of sections 4975(c)(1)(A), 4975(c)(1)(D) and 4975(c)(1)(E) of 
the Code, shall not apply to the sales (the Sales) by the Les Schwab 
Profit Sharing Retirement Plan (the Plan) of the following parcels of 
real property (each, a ``Parcel'' and together, ``the Parcels'') to the 
Applicant:
    (a) The Parcel located at 19401 Bothell Everett Highway in Bothell, 
Washington (the Bothell Parcel);
    (b) The Parcel located at 150 Marvin Road, SE Lacey, Washington 
(the Lacey Parcel);
    (c) The Parcel located at 354 Union Ave NE., Renton, Washington 
(the Renton Parcel);
    (d) The Parcel located at 21 Blue Lakes Boulevard North Twin Falls, 
Idaho (the Twin Falls Parcel); and
    (e) The Parcel located at 37895 Highway 26, Sandy, Oregon (the 
Sandy Parcel);

where the Applicant is a party in interest with respect to the Plan, 
provided that the conditions set forth in

[[Page 44703]]

Section II of this proposed exemption are met.
Section II. Conditions
    (a) The price paid by Les Schwab to the Plan (the Purchase Price) 
for each Parcel no less than the fair market value of each Parcel 
(exclusive of the buildings or other improvements paid for by Les 
Schwab, to which Les Schwab retains title), as determined by qualified 
independent appraisers (the Appraisers), working for CBRE, Inc., in 
separate appraisal reports (the Appraisals) that are updated on the 
date of the Sale.
    (b) Each Sale is a one-time transaction for cash.
    (c) The Plan does not pay any costs, including brokerage 
commissions, fees, appraisal costs, or any other expenses associated 
with each Sale.
    (d) A qualified independent fiduciary (the Independent Fiduciary) 
represents the interests of the Plan with respect to each Sale, and in 
doing so:
    (1) Determines that it is prudent to go forward with each Sale;
    (2) Approves the terms and conditions of each Sale;
    (3) Reviews and approves the methodologies used by the Appraisers 
and ensures that such methodologies are properly applied in determining 
the fair market values of the Parcels on the date of the Sales;
    (4) Reviews and approves the determination of the Purchase Price; 
and
    (5) Monitors each Sale throughout its duration on behalf of the 
Plan for compliance with the terms of the transaction and with the 
conditions of this exemption, if granted, and takes any appropriate 
actions to safeguard the interests of the Plan and its participants and 
beneficiaries.
    (e) The Appraisers determine the fair market value of their 
assigned Parcel, on the date of the Sale, using commercially accepted 
methods of valuation for unrelated third-party transactions, taking 
into account the following considerations:
    (1) The fact that a lease between Les Schwab and the Plan is a 
ground lease and not a standard commercial lease;
    (2) The assemblage value of the Parcel, where applicable;
    (3) Any special or unique value the Parcel holds for Les Schwab; 
and
    (4) Any instructions from the Independent Fiduciary regarding the 
terms of the Sale, including the extent to which the Appraiser should 
consider the effect that Les Schwab's option to purchase a Parcel would 
have on the fair market value of the Parcel.
    (f) The terms and conditions of each Sale are at least as favorable 
to the Plan as those obtainable in an arm's length transaction with an 
unrelated party.

Summary of Facts and Representations \3\
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    \3\ The Summary of Facts and Representations is based solely on 
the representations of the Applicant and does not reflect the views 
of the Department, unless indicated otherwise.
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Background

    1. According to the Applicant, Les Schwab Tire Centers (together 
with its affiliates, Les Schwab) was founded by its namesake in 1952 in 
Prineville, Oregon, in order to sell tires, batteries and other 
automotive equipment, and provide vehicle maintenance services. There 
are now approximately 430 Les Schwab tire and automotive service 
centers located primarily in the Northwest and with over $1 billion 
dollars in annual sales. Their facilities are located in Alaska, 
Washington, Oregon, Montana, Nevada, Utah and California.
    2. Les Schwab, which has elected to be treated as a sub-chapter 
``S'' corporation under the Code, is made up of eleven distinct 
entities, each with an overlapping ownership structure and part of a 
single controlled group. The eleven entities include Les Schwab 
Washington, Les Schwab Idaho, Les Schwab Portland, and the Les Schwab 
Warehouse Center, Inc. (the Warehouse Center). Furthermore, the 
Applicant represents that all of the officers and directors of the 
participating employers are also officers and directors of the 
Warehouse Center.
    3. According to the Applicant, all entities within the Les Schwab 
controlled group are owned by Alan Schwab, Diana Tomseth, Julie Waibel, 
and Leslie Tuftin (or by trusts for the benefit of such individuals 
and/or their children). Mr. Schwab and Ms. Tomseth are siblings and Ms. 
Waibel and Ms. Tuftin are siblings. These four individuals are the 
grandchildren of Les Schwab and they are also currently employees of 
the Warehouse Center and board members of Les Schwab. The Applicant 
states that each of these four individuals is a Plan participant, as 
well as an owner-employee because they each own more than 5 percent of 
the stock of Les Schwab.\4\
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    \4\ The term ``owner-employee'' is defined under section 408(d) 
of the Act to include persons as defined in section 401(c)(3) of the 
Code, such as an employee who owns the entire interest in an 
unincorporated trade or business, or in the case of a partnership, a 
partner who owns more than 10 percent of either the capital interest 
or profits interest of such partnership. The term ``owner-employee'' 
also includes, in relevant part, (a) a shareholder-employee, which 
is an employee or officer of an S corporation who owns more than 5 
percent of the outstanding stock of such corporation; (b) a member 
of the family of such owner-employee; or (c) a corporation in which 
such shareholder-employee owns, directly or indirectly, 50% or more 
of the total combined voting power of all classes of voting stock of 
a corporation or 50% or more of the total value of all classes of 
stock of such corporation.
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    4. The Plan is a qualified multiple-employer, defined contribution 
profit-sharing plan located in Bend, Oregon. The Plan is sponsored by 
the Warehouse Center. Thirteen employers, including Les Schwab 
Washington, Les Schwab Idaho, and Les Schwab Portland participate in 
the Plan. As of December 31, 2013, the Plan had 6,976 participants and 
beneficiaries. Also, as of December 31, 2013, the Plan had total assets 
of $653,315,345.00. The Applicant states that the Plan is the sole 
retirement plan available for Les Schwab employees.
    5. The Administrative and Investment Committee of the Plan (the 
Committee) has the sole discretionary investment authority over the 
Plan and is a named fiduciary. The Committee has the exclusive right 
and discretionary authority to control, manage and operate the Plan. 
This includes the authority to direct the investment of the Plan's 
assets and to appoint and remove the Plan's Trustees and investment 
managers.
    The Committee consists of seven trustees (the Trustees), who 
include executives and officers of Les Schwab. The Trustees are 
appointed by the Chief Executive Officer of the Warehouse Center. All 
of the Trustees are employees of the Warehouse Center, and some are 
officers of the Warehouse Center and Les Schwab Washington, Les Schwab 
Idaho and Les Schwab Portland.

Parcel Purchases

    6. Over time, the Plan purchased twenty-six parcels of real 
property. As described below, following the purchases, the Plan entered 
into ground leases with various Les Schwab entities.\5\ These Parcels 
of real property were then improved by buildings paid for by the Les 
Schwab entities. Under the terms of the leases, the Les Schwab entities 
retained title to these buildings.
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    \5\ The Applicant represents that these leases are exempt under 
section 408(e) of the Act. Section 408(e) of the Act provides, in 
pertinent part, that the restrictions of sections 406 and 407 of the 
Act shall not apply to the acquisition, sale or lease by a plan of 
qualifying employer real property if--(a) such acquisition, sale, or 
lease is for adequate consideration; (b) no commission is charged 
with respect thereto; and (c) the plan is an eligible individual 
account plan.
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    The Applicant asserts that the Plan was initially motivated to 
purchase and lease the Parcels of real property to Les Schwab as a 
means to provide a secure return on Plan investments. In this

[[Page 44704]]

regard, the Plan had intimate knowledge of Les Schwab's business 
success and creditworthiness, and determined that leasing the Parcels 
of real property to Les Schwab was a prudent investment decision.
    The Applicant seeks an individual exemption for the Sales. The 
Sales involve five of the Parcels of real property on which Les Schwab 
has constructed buildings at its own expense (the Parcels). Given that 
Les Schwab has retained title to such buildings, pursuant to the terms 
of the relevant leases, the purchases do not involve the buildings 
themselves. Each Parcel is described below in further detail.

The Bothell Parcel

    8. The Plan purchased the Bothell Parcel, which consists of 
approximately 40,947 square feet, in three separate transactions from 
unrelated parties. The first transaction involved the purchase by the 
Plan in November 1986 of approximately 29,382 square feet of land 
located at 19401 Bothell Everett Highway in Bothell, Washington for 
$159,791.00. The second purchase involved the Plan's acquisition on 
August 5, 1988 of an adjacent piece of land, located at 19411 Bothell 
Way SE., Bothell, Washington, and consisting of approximately 9,420 
square feet of land for approximately $63,362.00. The third purchase 
involved the Plan's acquisition on September 10, 1988 of another piece 
of adjacent land, consisting of approximately 2,145 square feet and 
purchased for approximately $50,000.00.
    9. The Plan and Les Schwab Washington entered into a ground lease 
of the Bothell Parcel (the Bothell Lease) on January 1, 1987, with the 
Plan as landlord and with Les Schwab Washington as tenant. The initial 
lease term commenced on January 1, 1987, and continued through December 
31, 1996. The Bothell Lease also contained a provision for lease 
renewals of four terms, each of five years' duration. The initial base 
rent was $1,065.00 per month. Beginning on January 1, 1989 the monthly 
rent was increased to $1,487.00 to reflect the Plan's acquisition of 
the additional land. Beginning on September 10, 1998, the base rent was 
increased to $2,454.00, to reflect the Plan's inclusion of the third 
parcel of land and the increase in the ten-year the Consumer Price 
Index (the CPI).
    The rent has been increased on the first day of each successive 
renewal period in proportion to the percentage increase in the CPI 
during the ``applicable period'' preceding the effective date of each 
such increase. Beginning with the renewal term commencing January 1, 
2012, the monthly rent has been increased to $3,498.00.
    The Bothell Lease permits Les Schwab Washington to construct 
improvements on the Bothell Parcel with the Plan's approval. Pursuant 
to the terms of the Bothell Lease, Les Schwab Washington constructed a 
tire center, an internal warehouse, and a large vehicle service 
facility, as well as other improvements (the Bothell Improvements).
    As provided under the terms of the Bothell Lease, Les Schwab 
Washington retains sole responsibility with respect to the payment of 
property taxes and utilities on the Bothell Parcel, as well as sole 
responsibility for repairing, maintaining, renovating, and insuring the 
Bothell Improvements. As also provided under the terms of the Bothell 
Lease, Les Schwab Washington may not assign its interest, absent the 
Plan's written consent, and must indemnify the Plan against losses.
    Finally, the Bothell Lease includes a purchase option under which 
Les Schwab Washington has the right to purchase the Bothell Parcel as 
of the following dates: (a) The date on which Les Schwab Washington 
permanently discontinues operations on the Bothell Parcel; (b) the date 
the Bothell Lease terminates; (c) the end date of the initial Bothell 
Lease term; or (d) the end date of any renewal term for which Les 
Schwab Washington elects to renew. Pursuant to the terms of the Bothell 
Lease, the applicable option price is based on the greater of $273,153, 
or the fair market value of the Bothell Parcel (exclusive of the 
building and other improvements made by Les Schwab Washington) as 
determined by an appraisal. Les Schwab Washington now seeks to exercise 
its option to purchase the Bothell Parcel.

The Lacey Parcel

    10. The Plan purchased the Lacey Parcel on February 1, 1991 from 
Puget Sound National Bank,\6\ an unrelated party, for a total purchase 
price of $499,069.00. The Lacey Parcel is comprised of 2.07 acres or 
approximately 90,169 square feet of land area. Aside from the initial 
purchase price, the Plan has not incurred any further expenses with 
respect to the Lacey Parcel.
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    \6\ Puget Sound National Bank merged into KeyBank in 1992.
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    11. The Plan and Les Schwab Washington entered into a ground lease 
of the Lacey Parcel (the Lacey Lease) on March 1, 1991, with the Plan 
as landlord and with Les Schwab Washington as tenant. The initial term 
for the Lacey Lease ran for a period of twenty years and nine months 
(March 1, 1991 through December 31, 2011). The Lacey Lease also 
includes four renewal terms, with each term set at five years' 
duration. The base rent for the Lacey Parcel was initially set at 
$3,746.00 per month and has been subject to adjustment every five years 
since January 1, 1997. As of each adjustment date, the monthly rent 
amount has been increased in proportion to corresponding increases to 
the CPI during the five lease years preceding the effective date of the 
increase, not to exceed 20%. Since January 1, 2012, Les Schwab 
Washington has been paying the Plan $9,150.00 per month, which includes 
the CPI increase.
    The Lacey Lease allows Les Schwab Washington to construct 
improvements on the Lacey Parcel. Accordingly, Les Schwab Washington 
constructed a 13,013 square foot retail tire center, a vehicle service 
area, a 4,800 square foot warehouse, and made certain other 
improvements (the Lacey Improvements). Pursuant to the terms of the 
Lacey Lease, permissible uses of the Lacey Parcel include the 
construction and operation of a facility for the retail sale of 
merchandise, and the provision of automotive services. Additional uses 
of the Lacey Parcel require the Plan's consent.
    As provided under the terms of the Lacey Lease, Les Schwab 
Washington retains sole responsibility with respect to the payment of 
property taxes and utilities on the Lacey Parcel, as well as sole 
responsibility for repairing, maintaining, renovating, and insuring the 
Lacey Improvements. As also provided under the terms of the Lacey 
Lease, Les Schwab Washington may not assign its interest, absent the 
Plan's written consent, and must indemnify the Plan against losses.
    The Lacey Lease includes a purchase option under which Les Schwab 
Washington has the right to purchase the Lacey Parcel as of the 
following dates: (a) The date on which Les Schwab Washington 
permanently discontinues operations on the Lacey Parcel; (b) The date 
such lease terminates; (c) the end date of the initial Lacey Lease 
term; or (d) the end date of any renewal term for which Les Schwab 
Washington elects to renew. Pursuant to the terms of the Lacey Lease, 
the applicable option price is based on: (a) The greater of 
$499,514.35, plus the Plan's total cost of improvements made on the 
Lacey Parcel, or (b) the fair market value of Lacey Parcel (exclusive

[[Page 44705]]

of the improvements made by Les Schwab Washington made by Les Schwab 
Washington), as determined by an appraisal. Les Schwab Washington now 
seeks to exercise its option to purchase the Lacey Parcel from the 
Plan.

The Renton Parcel

    12. The Plan purchased the Renton Parcel in two separate 
transactions. On May 6, 1986, the Plan entered into a contract to 
purchase a 34,478 square foot piece of land located in Renton, 
Washington, from an unrelated party. Subsequently, the Plan purchased 
an additional 20,266 square feet of adjoining land in a sale that 
closed in October 1988, from an unrelated party. The two combined 
parcels make up the Renton Parcel, and cover 1.26 acres, or 
approximately 54,744 square feet of land area. The combined purchase 
price for the two parcels, including closing costs, was $317,796.00.
    13. The Plan and Les Schwab Washington entered into a lease 
agreement for the Renton Parcel (the Renton Lease) on October 1, 1986, 
with the Plan, as landlord, and Les Schwab Washington, as tenant. The 
initial lease term commenced on October 1, 1986, and ran through 
December 31, 1996. The Renton Lease includes four renewal terms, each 
of five years' duration. The Renton Lease provides for an initial base 
rent amount of $1,297.00 per month and for rent escalations in the 
event that the Plan incurs any costs in connection with the provision 
of any additional improvements to the Renton Parcel.
    With respect to the Renton Lease, rent escalations occurred on 
November 1, 1988, and subsequent rent escalations have occurred on the 
first day of each renewal period, where the rent has been increased in 
proportion to the percentage increase of the CPI during the 
``applicable period'' preceding the effective date of the increase. 
Based on these calculations, Les Schwab Washington has been paying the 
Plan $4,334 per month since January 1, 2012.
    The Renton Lease allows Les Schwab Washington to construct 
improvements on the Renton Parcel. Les Schwab Washington constructed a 
13,300 square foot retail tire center, a vehicle service area, a large 
warehouse, and other improvements (the Renton Improvements). Pursuant 
to the terms of the Renton Lease, permissible uses of the Renton Parcel 
also include the operation of a facility for the retail sale of 
merchandise and the provision of automotive services. Additional uses 
of the Renton Parcel require the Plan's consent.
    As provided under the terms of the Renton Lease, Les Schwab 
Washington retains sole responsibility with respect to the payment of 
property taxes and utilities on the Renton Parcel, as well as sole 
responsibility for repairing, maintaining, renovating, and insuring the 
Renton Improvements. As also provided under the terms of the Renton 
Lease, Les Schwab Washington may not assign its interest, absent the 
Plan's written consent, and must indemnify the Plan against losses.
    The Renton Lease includes a purchase option under which Les Schwab 
Washington has the right to purchase the Renton Parcel as of the 
following dates: (a) The date on which Les Schwab Washington 
permanently discontinues operations on the Renton Parcel; (b) the date 
the Renton Lease terminates; (c) the end date of the initial Renton 
Lease term; or (d) the end date of any renewal term for which Les 
Schwab Washington elects to renew. Pursuant to the terms of the Renton 
Lease, the applicable option price is based on the greater of 
$194,537.09, or the fair market value of the Renton Parcel (exclusive 
of the building and other improvements on the Renton Parcel made by Les 
Schwab Washington), as determined by an appraisal. Les Schwab 
Washington now seeks to exercise its option to purchase the Renton 
Parcel from the Plan.

The Twin Falls Parcel

    14. The Plan purchased the Twin Falls Parcel from unrelated parties 
in September 1986, at a final purchase price of $248,250.00. The Twin 
Falls Parcel is comprised of 1.72 acres or approximately 74,923 square 
feet of land that is rectangular in shape.
    15. The Plan and Les Schwab Idaho entered into a lease agreement 
(the Twin Falls Lease) on October 1, 1986, with the Plan, as landlord, 
and Les Schwab Idaho, as tenant. The initial lease term commenced on 
October 1, 1986, and continued through December 31, 1996. The Twin 
Falls Lease contains a provision for lease renewals of four terms, each 
of five years' duration. The initial base rent was set at $1,655.00 per 
month, and provided for rent escalations in the event the Plan incurred 
any costs in connection with providing any additional improvements to 
the Parcel (the Twin Falls Improvements). A scheduled rent escalation 
occurred on January 1, 1992. Subsequent rent escalations have occurred 
on the first day of each renewal period. In this regard, rent was 
increased in proportion to the percentage increase in the CPI. 
Beginning with the renewal term commencing January 1, 2012, Les Schwab 
Idaho has been paying the Plan $3,382.00 per month.
    In accordance with the Twin Falls Lease, Les Schwab Idaho 
constructed a 13,000 square foot retail tire center and a 9,216 square 
foot warehouse on the Twin Falls Parcel. Les Schwab also made 
additional improvements, which included utilities, parking, 
landscaping, and a fenced tire storage area.
    Pursuant to the Twin Falls Lease, Les Schwab Idaho retains sole 
responsibility with respect to the payment of property taxes and 
utilities on the Twin Falls Parcel, as well as sole responsibility for 
repairing, maintaining, renovating, and insuring the Twin Falls 
Improvements. As also provided under the terms of the Twin Falls Lease, 
Les Schwab Idaho may not assign its interest, absent the Plan's written 
consent.
    The Twin Falls Lease includes a purchase option under which Les 
Schwab Idaho has the right to purchase the Twin Falls Parcel as of the 
following dates: (a) The date on which Les Schwab Idaho permanently 
discontinues operations on the Twin Falls Parcel; (b) the date the Twin 
Falls Lease terminates; (c) the end date of the initial Twin Falls 
Lease term; or (d) the end date of any renewal term for which Les 
Schwab Idaho elects to renew. Pursuant to the terms of the Twin Falls 
Lease, the applicable option price is based on the greater of 
$248,250.82, or the fair market value of the Twin Falls Parcel 
(exclusive of the building and other improvements made by Les Schwab 
Idaho), as determined by an appraisal. Les Schwab Idaho now seeks to 
exercise its option to purchase the Twin Falls Parcel from the Plan.

The Sandy Parcel

    16. The Plan purchased the Sandy Parcel in August 1986 from 
unrelated parties for $144,671.73. The Sandy Parcel is comprised of 
1.08 acres, or approximately 47,045 square feet of land area. Added to 
the contract price were certain obligations for offsite improvements, 
as well as shared expenses for an entrance easement with a neighboring 
property owner.
    17. The Plan and Les Schwab Portland entered into a lease agreement 
(the Sandy Lease) on September 1, 1986, with the Plan, as landlord, and 
Les Schwab Portland, as tenant. The initial lease term ran until 
December 31, 1996. The Sandy Lease also contained a provision for lease 
renewals of four terms, each of five years' duration. The initial base 
rent under the Sandy Lease was set at $964.00 per month and provided 
for rent escalations in the event the Plan incurred any costs in

[[Page 44706]]

connection with the provision of additional improvements to the Parcel. 
Scheduled rent escalations occurred on January 1, 1997 and on the first 
day of each renewal period. On the date of each such renewal, the rent 
amount was increased in proportion to the percentage increase of the 
CPI for the ``applicable period'' preceding the effective date of such 
increase. Since January 1, 2012, Les Schwab Portland has been paying 
the Plan $1,980.00 per month.
    Pursuant to the Sandy Lease, Les Schwab Portland constructed an 
8,352 square foot retail tire center on the Sandy Parcel, as well as 
other improvements including utilities, parking and landscaping (the 
Sandy Improvements).
    As provided under the terms of the Sandy Lease, Les Schwab Portland 
retains sole responsibility with respect to the payment of property 
taxes and utilities on the Sandy Parcel, as well as sole responsibility 
for repairing, maintaining, renovating, and insuring the Sandy 
Improvements. As also provided under the terms of the Sandy Lease, Les 
Schwab Portland may not assign its interest, absent the Plan's written 
consent.
    The Sandy Lease includes a purchase option under which Les Schwab 
Portland has the right to purchase the Sandy Parcel as of the following 
dates: (a) The date Les Schwab Portland permanently discontinues 
operation on the premises; (b) the date the Sandy Lease terminates; (c) 
at the end of the initial Sandy Lease term; or (d) on the date of each 
renewal term for which Les Schwab Portland elects to renew. Under the 
terms of the Sandy Lease, the option price will be the greater of 
$144,671.73 or the fair market value of the Sandy Parcel (exclusive of 
the building and other improvements made by Les Schwab Portland) as 
determined by an appraisal. Les Schwab Portland now seeks to exercise 
the option to purchase the Sandy Parcel.

Request for Exemptive Relief

    18. The Applicant requests an administrative exemption for the 
proposed Sales of the Parcels by the Plan to Les Schwab Washington, Les 
Schwab Idaho, and Les Schwab Portland. Accordingly, the Applicant 
requests exemptive relief from section 406(a)(1)(A) and (D) and section 
406(b)(1) and (b)(2) of the Act for such transactions.
    19. Section 406(a)(1)(A) of the Act provides, in pertinent part, 
that a fiduciary with respect to a plan may not cause the plan to 
engage in a transaction if such fiduciary knows or should know that 
such a transaction constitutes a direct or indirect sale or exchange of 
any property between the plan and a party in interest. Section 
406(a)(1)(D) of the Act provides, in pertinent part, that a fiduciary 
with respect to a plan may not cause the plan to engage in a 
transaction if such fiduciary knows or should know that such a 
transaction constitutes a direct or indirect transfer to, or use by or 
for the benefit of a party in interest, any assets of the Plan.
    Section 3(14)(C) of the Act defines the term ``party in interest'' 
to include an employer, any of whose employees are covered by such 
Plan. The Applicant is a participating employer in the Plan, and as 
such, the Applicant's employees are covered by the Plan. The Applicant 
is thus a party in interest with respect to the Plan under section 
3(14)(C) and the Sales would violate section 406(a)(1)(A) and (D) of 
the Act.
    Section 406(b)(1) of the Act prohibits a fiduciary from dealing 
with the assets of a plan in his own interest or for his own account. 
Section 406(b)(2) of the Act prohibits a fiduciary, with respect to a 
plan, from acting in a transaction involving the plan on behalf of a 
party whose interests are adverse to those of the plan or of its 
participants and beneficiaries. As described above, the Trustees and 
the Committee are fiduciaries of the Plan. Additionally, the Trustees 
are also comprised of certain executive officers of Les Schwab, 
including officers of the Warehouse Center, Les Schwab Washington, Les 
Schwab Idaho, and Les Schwab Portland, and are appointed by the Chief 
Executive Officer of the Warehouse Center, the Plan sponsor.
    According to the Applicant, the proposed Sales of the Parcels by 
the Plan to Les Schwab would involve a violation of section 406(b)(1) 
of the Act because Les Schwab, as a Plan fiduciary, would be dealing 
with the assets of the Plan for its own interest or own account. 
Additionally, the Applicant states that Les Schwab, as a Plan 
fiduciary, in effecting the Sales, could be viewed as simultaneously 
acting on behalf of itself and of the Plan in violation of section 
406(b)(2) of the Act.\7\
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    \7\ As noted above, section 408(e) of the Act states, in 
pertinent part, that section 406 of the Act does not apply to the 
acquisition, sale or lease of qualifying employer real property by a 
plan to a party in interest, provided that certain conditions are 
satisfied. However, section 408(d)(3) of the Act provides, in 
pertinent part, that the statutory exemption set forth in section 
408(e) does not apply to any transaction in which a plan sells any 
property to a corporation in which owner-employee with respect to 
such plan owns, directly or indirectly 50 percent or more of the 
total combined voting power of all classes of stock entitled to vote 
on 50 percent or more of the total value of shares of all classes of 
stock of the corporation. Since Mr. Schwab, Ms. Weibel, Ms. Tomseth, 
and Ms. Tuftin are owner-employees with respect to the Plan, and 
such individuals own, indirectly, 50% or more of Les Schwab Idaho, 
Les Schwab Washington, and Les Schwab Portland, the statutory 
exemption under section 408(e) of the Act is not available.
---------------------------------------------------------------------------

Terms of the Sales

    20. Each Sale will be a one-time transaction for cash. At the time 
of the Sales, the Plan will receive no less than the fair market value 
of each Parcel, as determined by the Appraisers, whose current 
Appraisals will be updated on the date of the Sales. In this regard, to 
the extent the terms of any Lease allow a Sale price that is greater 
than a Parcel's fair market value, then the price received by the Plan 
for such Parcel will equal such greater Sale price. In addition, the 
Plan will not pay any costs, including brokerage commissions, fees, 
appraisal costs, or any other expenses associated with the Sales. 
Further, the terms and conditions of each Sale will be at least as 
favorable to the Plan as those obtainable in an arm's length 
transaction with an unrelated party. Finally, an Independent Fiduciary 
will represent the interests of the Plan with respect to each Sale. 
Among other things, the Independent Fiduciary will monitor each sale 
throughout its duration, review and approve the Appraiser's methodology 
and ultimate valuation determination, and determine, on behalf of the 
Plan, whether it is prudent to proceed with the transaction.

The Appraisers

    21. Appraisals of the subject Parcels were completed by CBRE, Inc. 
(CBRE). Specifically, with respect to the Bothell and Lacey Parcels, 
the Appraisals were conducted by Mitchell J. Olsen and Whitney Haucke. 
For the Twin Falls and Renton Parcels, the Appraisals were conducted by 
Shawn Wayt and Whitney Haucke. Finally, with respect to the Sandy 
Parcel, the Appraisal was conducted by Mike Hall and Whitney Haucke. 
(Mr. Olsen, Mr. Hall, Ms. Haucke and Ms. Wayt are referred to herein as 
the ``Appraisers.'')
    Mr. Olsen and Ms. Haucke are Certified General Real Estate 
Appraisers in the State of Washington. Mr. Olsen is an Associate Member 
of the Appraisal Institute, and has experience in appraising 
residential properties, vacant land, and commercial properties. Ms. 
Haucke is also a Designated Member of the Appraisal Institute in 
Seattle, Washington. Her experience includes valuing special use 
projects, mixed-use developments, as well as commercial and residential 
properties.

[[Page 44707]]

    Mr. Wayt is a licensed Real Estate Appraiser in the State of 
Washington. Since 2012, Mr. Wayt has been appraising investment 
properties and commercial properties.
    Mr. Hall is a designated member of the Appraisal Institute and is a 
certified Real Estate Appraiser in the State of Washington. Since 2001, 
Mr. Hall has been appraising retail, industrial, office, multi-family 
and local properties.
    Pursuant to its Appraisal Engagement Letter, CBRE was retained to 
perform the following tasks, on behalf of the Plan: (a) Provide a fair 
market valuation of the Parcels using commercially acceptable methods 
of valuation for unrelated third party transactions, (b) explain 
whether or not, in the Appraisers' opinion, the Plan has received 
adequate consideration from the leases, and (c) opine on whether the 
proper CPI was used for the rent increases for each Parcel. CBRE 
represents that the total fees it earned from Les Schwab represent less 
than 2.0% of CBRE's revenues for 2014.

The Appraisals

    22. In valuing the Parcels, the Appraisers applied the Sales 
Comparison Approach to valuation. As represented by the Appraisers, the 
Sales Comparison Approach is typically used for retail sites that are 
feasible for either immediate or near-term development.\8\ The 
Appraisers omitted the use of other valuation methodologies, stating 
that such methodologies are primarily used when comparable land sales 
data is non-existent.
---------------------------------------------------------------------------

    \8\ According to the Appraisers, the Twin Falls, Sandy and 
Renton Parcels are suitable for near-term development and the 
Bothell Property is suitable for immediate development.
---------------------------------------------------------------------------

    23. Bothell. According to the Bothell Appraisal, the Appraisers 
physically inspected the Bothell Parcel on July 26, 2013. They also 
inspected the Snohomish County Assessor's records and a previous 
appraisal dated September 30, 2011, which was prepared by Brown, 
Chudleigh, Schuler, Myers and Associates (BCSMA). In addition, the 
Appraisers reviewed applicable tax data, zoning requirements, flood 
zone status, demographics and comparable data.
    The Bothell Appraisal provides that the Appraisers evaluated five 
prior sales of similar Parcels based on zoning and intended uses. Using 
the Sales Comparison Approach methodology, the Appraisers calculated 
the value of the Bothell Parcel at $26.86 per square foot, which 
multiplied by the actual square footage of the Bothell Parcel equaled a 
fair market value of $1,100,000.00 as of July 31, 2013. In an addendum 
to the Bothell Appraisal, dated September 22, 2014, the Appraisers 
projected the fair market value of the Bothell Parcel at $1,150,000.00 
as of September 30, 2014. The Appraisers attributed the $50,000.00 
increase in value to improved market conditions.
    24. Lacey. The Lacey Appraisal indicates that the Appraisers 
physically inspected the Lacey Parcel on June 26, 2013. They also 
inspected the Thurston County Assessor's Records, reviewed a lease 
provided by the Plan, and analyzed a previous appraisal dated September 
30, 2011, prepared by another appraisal firm. In addition, the 
Appraisers reviewed the applicable tax data, zoning requirements, flood 
zone status, demographics and other comparable data.
    The Lacey Appraisal provides that the Appraisers valued the Lacey 
Parcel using the Sales Comparison Approach. In this regard, the 
Appraisers evaluated six similar sale-listings in the area and 
determined that land sales ranged from $13.15 per square foot to $15.99 
per square foot, with an average of $14.94 per square foot.
    The Appraisers placed an emphasis on two of the six Parcels due to 
the closing date and location. For purposes of the Lacey Appraisal, the 
Plan instructed the Appraisers to examine the Lacey Parcel without 
considering the improvements to such Parcel.
    The Appraisers determined that the Lacey Parcel value would equate 
to $14.97 per square foot or a fair market value of $1,350,000 as of 
July 31, 2013. In an addendum to the Lacey Appraisal dated September 
22, 2014, the Appraisers projected the fair market value of the Lacey 
Parcel at $1,350,000.00, as of September 30, 2014.
    25. Renton. In connection with the Renton Appraisal, the Appraisers 
conducted interviews with regional and local market participants, 
reviewed available published data and other various resources. 
Additional research included a review of the applicable tax data, 
zoning requirements, flood zone status, demographics and comparable 
data.
    In valuing the Renton Parcel, the Appraisers applied the Sales 
Comparison Approach to valuation. The Appraisers evaluated five similar 
sale-listings in the area and determined that land sales ranged from 
$10.80 per square foot to $25.01 per square foot, with an average of 
$18.61 per square foot. The Appraisers placed an emphasis on one of the 
six Parcels due to its identical characteristics in comparison with the 
Renton Parcel.
    Based on their review and analysis of the Renton Parcel, the 
Appraisers placed the fair market value of the Parcel at $1,000,000 as 
of July 31, 2013. In an addendum to the Renton Appraisal dated 
September 22, 2014, the Appraisers projected the fair market value of 
the Renton Parcel at $1,000,000.00 as of September 30, 2014.
    26. Twin Falls. According to the Twin Falls Appraisal, the 
Appraisers physically inspected the Twin Falls Parcel, conducted 
interviews with regional and local market participants, and reviewed 
available published data and other various resources. Additional 
research included a review of the applicable tax data, zoning 
requirements, flood zone status, demographics and comparable data.
    In valuing the Twin Falls Parcel, the Appraisers applied the Sales 
Comparison Approach to valuation. The Appraisers evaluated five similar 
sale-listings in the area and determined that land sales ranged from 
$12.25 per square foot to $20.00 per square foot, with an average of 
$15.45 per square foot. The Appraisers placed an emphasis on one of the 
five Parcels, due to its close proximity to the Twin Falls Parcel.
    Based on their review and analysis, the Appraisers placed the fair 
market value of the Twin Falls Parcel at $1,100,000 as of July 31, 
2013. In an addendum to the Twin Falls Appraisal dated September 19, 
2014, the Appraisers projected the fair market value of the Twin Falls 
Parcel at $1,300,000 as of September 30, 2014.
    27. Sandy. As described in the Sandy Appraisal, the Appraisers also 
conducted interviews with regional and local market participants, 
reviewed available published data and other various resources. 
Additional research included a review of the applicable tax data, 
zoning requirements, flood zone status, demographics and comparable 
data.
    For the purposes of the Sandy Appraisal, the Appraisers used the 
Sales Comparison Approach. The Appraisers evaluated five similar sale-
listings in the area and determined that land sales ranged from $12.50 
per square foot to $17.89 per square foot, with an average of $14.45 
per square foot. The Appraisers placed an emphasis on two of the six 
Parcels due to the location of both sites.
    Based on their review and analysis of the Sandy Property, the 
Appraisers placed the fair market value of the Parcel at $680,000 as of 
July 31, 2013. In an addendum to the Sandy Appraisal dated September 
19, 2014, the Appraiser (Ms. Haucke) projected the

[[Page 44708]]

fair market value of the Sandy Parcel to be $680,000 as of September 
30, 2014.

The Independent Fiduciary

    28. On May 1, 2013, Les Schwab retained American Realty Advisors as 
the Independent Fiduciary to the Plan with respect to the proposed 
Sales. The Independent Fiduciary, located in Glendale, California, is 
an investment management firm managing institutional commercial real 
estate portfolios, with more than 280 investors and over $5.3 billion 
assets under management, as of March 31, 2013. The Independent 
Fiduciary maintains an exclusive focus on commercial real estate 
investment management. Furthermore, the Independent Fiduciary 
represents that it has over twenty-four years of real estate experience 
including, but not limited to, the following: (a) Acquiring real estate 
for investment; (b) representing secured lenders in real property 
transactions; (c) providing real estate asset management services; (d) 
disposing of real estate assets; (e) restructuring and working out of 
real estate loan assets; and (f) providing independent fiduciary 
services with respect to real estate assets.
    29. The Independent Fiduciary represents that, beyond its 
engagement as Independent Fiduciary with respect to the Sales, it does 
not have any relationship with the parties involved in the proposed 
transactions. The Independent Fiduciary also represents that derived 
less than 2% of its 2014 gross revenues from Les Schwab.
    30. The duties and the responsibilities of the Independent 
Fiduciary are being undertaken by Daniel Robinson and Alex Miller. Mr. 
Robinson is the Managing Director of American Realty Advisors, and has 
thirty years of experience as a licensed real estate broker, and has 
served as a Qualified Professional Asset Manager (QPAM) for ERISA-
covered plans. Mr. Miller is an investment analyst at American Realty 
Advisors and has been a commercial real estate analyst for nine years.
    31. As part of its duties and responsibilities, the Independent 
Fiduciary completed the following tasks: (a) Toured each of the Parcels 
and inspected comparable land sales, as outlined in each of the 
Appraisals; (b) engaged the Appraisers and instructed them with respect 
to the objectives of each Appraisal, the specific nuances of the leases 
between Les Schwab and the Plan (the Leases), and the valuation 
process, taking into account the questions posed by the Department 
during its review of the Application; (c) reviewed the Appraisals; (d) 
reviewed the annual audited financial statements for the Plan from 1988 
to the present to assess the treatment of the Leases by the auditor and 
obtained additional documentation from the Warehouse Center in support 
of the rental payments made under the Leases; (e) reviewed and 
summarized the terms and conditions of the Leases and relevant 
amendments; (f) researched additional questions posed by the 
Department; and (g) reviewed the composition of the existing real 
estate portfolio of the Plan and the Plan's Statement of Investment 
Policy dated September 1, 2011.
    The Independent Fiduciary also examined whether all twenty-six 
parcels of land owned by the Plan, including the Parcels, and leased by 
Les Schwab and its other affiliates, received their rental income on a 
timely basis from 1988 to 2012. Further, the Independent Fiduciary 
reviewed copies of the Plan's audited financial statements, prepared by 
PriceWaterhouseCoopers from 1998 to 2005 and by Jones & Roth from 2006 
to 2012.
    32. The Independent Fiduciary represents that it will represent the 
interests of the Plan in the proposed Sales. In so doing, the 
Independent Fiduciary will: (a) Determine whether it is prudent to go 
forward with each Sale; (b) negotiate, review, and approve the terms 
and conditions of each Sale; (c) monitor and manage the Sales on behalf 
of the Plan throughout their duration, taking any appropriate actions 
it deems necessary to safeguard the interests of the Plan.

Independent Fiduciary Reports

    33. In the Independent Fiduciary Reports, the Independent Fiduciary 
states that the appraised value of each Parcel, as presented by the 
Appraisers, is an accurate reflection of the current market conditions 
and forms the basis for establishing a fair market price for the Sale 
of each respective Parcel to the Plan. The Independent Fiduciary 
Reports also notes that the Plan's real estate holdings are 
approximately 15.5% of the total assets of the Plan, and are within the 
15-25% parameters of the Plan's Statement of Investment Policy (SIP) 
dated September 1, 2011. According to the Independent Fiduciary, the 
proposed Sale of each of the Parcels would reduce the real estate 
holdings of the Plan to approximately 14.6% of the total assets of the 
Plan and would modestly increase the liquidity of the Plan. Further, 
according to the Independent Fiduciary, the Sale of the Parcels would 
result in a real estate allocation that is nominally under the SIP 
range and would allow the Plan to continue its diversification strategy 
away from directly owned real estate.
    The Independent Fiduciary concludes that it is an advantageous time 
for the Plan to sell the Parcels. Specifically, the Independent 
Fiduciary notes that the Parcels have produced a cash return of 6.70% 
under the Leases, which is deemed ``good'' to such fiduciary. However, 
because of the age of the improvements to the Parcels, the limited 
future value of the underlying improvements, and the mature nature of 
the Parcels' locations, the Independent Fiduciary represents that it is 
prudent for the Plan to sell the Parcels and to reinvest the proceeds 
in real estate with better future appreciation prospects.
    Finally, the Independent Fiduciary states that it would not be 
appropriate for the Plan to receive a reversionary interest in the 
improvements that were constructed on the Parcels, given the fact that 
the Leases, when they were negotiated, were reflective of market 
conditions at the time, including the purchase option provisions, and 
given the fact that the Plan contributed nothing toward the 
construction of the improvements on the Parcels.

Statutory Findings

    34. The Applicant represents that the proposed transactions are 
administratively feasible because they involve one-time Sales of the 
Parcels for cash. As such, the transactions will not require ongoing 
oversight by the Department. The Applicant also states that the sale of 
qualifying employer real property, such as the Parcels, by a plan to an 
employer participating in the plan is a common and customary 
transaction.
    35. The Applicant represents that the proposed exemption is in the 
interest of the Plan and its participants and beneficiaries, because: 
(a) The Sales would reduce the effect of fluctuations in the rental and 
market values of the qualifying employer real property held as Plan 
assets; (b) under the express terms of the Sales, the Plan would avoid 
having to pay real estate brokerage commissions, fees or other expenses 
in connection with the Sales, which could equal 10% or more of the 
Purchase Price; (c) the Plan would receive the full fair market value 
of the Parcels in a lump-sum cash payment; and (d) the Sales would 
enable the Plan to diversify its assets.
    The Applicant represents that after the Plan's divestiture of the 
Parcels, the Plan will continue to hold twenty-one other parcels of 
property that satisfy the definition of ``qualifying employer real 
property,'' as set forth in section

[[Page 44709]]

407(d)(4) of the Act.\9\ The Applicant represents that these remaining 
parcels of property are geographically dispersed, suitable for more 
than one use, and are being leased to Les Schwab at a fair market 
rental value. Therefore, according to the Applicant, once the Sales are 
consummated, the remaining parcels owned by the Plan and leased to Les 
Schwab will continue to comply with the exemptive relief provided in 
section 408(e) of the Act.
---------------------------------------------------------------------------

    \9\ The Department is not expressing a view on whether the 
remaining parcels of property that would be owned by the Plan after 
the Sales would constitute qualifying employer real property under 
section 407(d)(4) of the Act, or whether the leases of such parcels 
of property by the Plan to Les Schwab would satisfy the provisions 
of section 408(e) of the Act.
---------------------------------------------------------------------------

    36. The Applicant represents that the proposed exemption is 
protective of the participants and beneficiaries because the 
Independent Fiduciary will represent the interests of the Plan's 
participants and beneficiaries with respect to: The decision to sell 
the Parcels to the Applicant; the terms and execution of the Sales; and 
the selection of a qualified independent appraiser.
    Additionally, the Applicant states that the Independent Fiduciary 
will determine whether the transactions are prudent and in the best 
interest of the participants and beneficiaries, including whether or 
not the terms and conditions of the Sales are equivalent to an arm's 
length transaction with an unrelated third party.
    Furthermore, the Applicant states that the Appraisers will appraise 
the fair market value of the Parcels as of the transaction date and 
ensure that the Plan receives adequate consideration. The Applicant 
also states that the amount received by the Plan will at least equal 
the fair market value of each Parcel on the date of the Sale (exclusive 
of the buildings or other improvements that are paid for by Les Schwab, 
to which Les Schwab retains title). An appropriate appraisal 
methodology will be used by the Appraisers and the Appraisals report 
will be updated on the date of each Sale.
    Lastly, the Applicant represents that the aggregate value of the 
Parcels being sold represents a small, non-material portion of the 
Plan's total investments and the investments of the Plan will remain 
adequately diversified after the transactions are consummated.

Summary

    37. In summary, the Applicant represents that the proposed 
transactions will satisfy the statutory criteria for an exemption under 
section 408(a) of the Act for the reasons described above, including 
the following:
    (a) The purchase price to be paid by Les Schwab for each Parcel 
will be no less than the fair market value of each Parcel, exclusive of 
buildings or other improvements paid for by Les Schwab, to which Les 
Schwab retains title), as determined the Appraisers, in updated 
Appraisals on the date of the Sale;
    (b) The Plan will not pay any costs, fees, or commissions 
associated with each Sale;
    (c) The Appraisers will determine the fair market value of their 
assigned Parcel, on the date of the proposed Sale, using commercially 
accepted methods of valuation for unrelated third-party transactions; 
and
    (d) The Independent Fiduciary will represent the interests of the 
Plan with respect to each Sale.

Notice to Interested Parties

    The persons who may be interested in the publication in the Federal 
Register of the Notice of Proposed Exemption (the Notice) include all 
individuals who are participants and beneficiaries in the Plan. It is 
represented that all such interested persons will be notified of the 
publication of the Notice by first class mail to each such interested 
person's last known address within fifteen (15) days of publication of 
the Notice in the Federal Register. Such mailing will contain a copy of 
the Notice, as it appears in the Federal Register on the date of 
publication, plus a copy of the Supplemental Statement, as required, 
pursuant to 29 CFR 2570.43(a)(2), which will advise all interested 
persons of their right to comment on and/or to request a hearing. All 
written comments or hearing requests must be received by the Department 
from interested persons within forty-five (45) days of the publication 
of this proposed exemption in the Federal Register. All comments will 
be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments may be posted on the Internet and can be retrieved by most 
Internet search engines.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Erin Brown or Mr. Joseph 
Brennan of the Department at (202) 693-8352 or (202) 693-8456, 
respectively. (These are not toll-free numbers.)

New England Carpenters Training Fund (the Plan or the Applicant) 
Located in Millbury, Massachusetts

[Application No. L-11795]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and in accordance with the 
procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 
66644, October 27, 2011). If the proposed exemption is granted, the 
restrictions of section 406(a)(1)(A) and (D) of the Act shall not apply 
to the purchase (the Purchase), by the Plan, of a parcel of improved 
real property (the Property) from the Connecticut Carpenters Local 24 
(Local 24), a party in interest with respect to the Plan; provided that 
the following conditions are satisfied:
    (1) The Purchase price paid by the Plan for the Property is the 
lesser of $1,280,000 or the fair market value of such Property, as 
determined by an independent, qualified appraiser (the Appraiser), as 
of the date of the Purchase;
    (2) The Purchase is a one-time transaction for cash;
    (3) The terms and conditions of the Purchase are no less favorable 
to the Plan than those obtainable by the Plan under similar 
circumstances when negotiated at arm's-length with unrelated third 
parties;
    (4) Prior to entering into the Purchase, an independent, qualified 
fiduciary (the I/F) determines that the Purchase is in the interest of, 
and protective of the Plan and of its participants and beneficiaries;
    (5) The I/F: (a) Has negotiated, reviewed, and approved the terms 
of the Purchase prior to the consummation of such transaction; (b) has 
reviewed and approved the methodology used by the Appraiser; (c) 
ensures that such methodology is properly applied in determining the 
fair market value of the Property at the time the transaction occurs, 
and determines whether it is prudent to go forward with the proposed 
transaction; and (d) represents the interests of the Plan at the time 
the proposed transaction is consummated;
    (6) Immediately following the Purchase, the fair market value of 
the Property does not exceed 3 percent (3%) of the fair market value of 
the total assets of the Plan; and
    (7) The Plan does not incur any fees, costs, commissions, or other 
charges as a result of engaging in the Purchase, other than the 
necessary and reasonable fees payable to the I/F and to the Appraiser, 
respectively.

[[Page 44710]]

Summary of Facts and Representations \10\
---------------------------------------------------------------------------

    \10\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
---------------------------------------------------------------------------

    1. The Plan is a multiemployer apprenticeship and training fund, 
which provides education and training in residential and commercial 
construction skills to carpenter apprentices and journeyman carpenters 
in six New England states. The carpenter apprentices and journeyman are 
members of local carpenters unions (the Unions) that are affiliated 
with the New England Regional Council of Carpenters (the NERCC). The 
Plan is jointly sponsored by the Unions and signatory building 
contractors (the Contributing Employers). As of April 30, 2015, the 
Plan had net assets valued at $36,184,388.30. As of May 1, 2015, the 
Plan had 1,166 active apprentices in the program (that does not include 
Connecticut).
    2. The Plan is administered by a fourteen member Board of Trustees 
(the Trustees), consisting of seven Trustees representing the 
Contributing Employers (the Employer Trustees) and seven Trustees 
representing the Unions (the Union Trustees). In accordance with the 
Plan's investment policy, the Trustees have the authority to invest the 
Plan's assets in real estate and other investments. The Plan currently 
owns two training facilities in Massachusetts and Maine, and it rents 
facilities located in New Hampshire, Vermont and Rhode Island. The Plan 
provides all of its classes and training at these facilities.\11\
---------------------------------------------------------------------------

    \11\ It is represented that there are no leases on these 
properties between the Plan and parties in interest.
---------------------------------------------------------------------------

    3. Local 24 is a local labor organization that is affiliated with 
the NERCC. The NERCC is an organization made up of 30 local carpenter 
unions in the six New England states, including Local 24. No officials 
of Local 24 sit on the Plan's Board of Trustees.
    4. The Connecticut Carpenters Training Fund (the CT Fund) is the 
only carpenters training fund in New England that has not merged into 
the Plan. The CT Fund has a Board of Trustees, consisting of five 
trustees that represent its union and four trustees that represent the 
contributing employers (the CT Fund Trustees).\12\ The Business Manager 
of Local 24 sits on the Board of Trustees of the CT Fund. As of March 
31, 2014, the CT Fund had total net assets of $1,336,104, and 312 
participants.
---------------------------------------------------------------------------

    \12\ It is represented that the CT Fund has only four employer 
trustees sitting CT Fund Board of Trustees because one employer 
trustee resigned, and his position has not been filled due to the 
pending merger transaction that is described herein in 
Representations 6 and 7. It is further represented that the union 
and employer trustees comprising the CT Fund Trustees have a unit 
vote, so one side cannot outvote the other.
---------------------------------------------------------------------------

    5. The CT Fund operates from a training facility that is located at 
500 Main Street, Yalesville, Connecticut. The training facility is 
owned by Local 24 and is the subject Property of this exemption 
request. Local 24 uses a portion of the Property as its administrative 
office and for periodic Executive Board and membership meetings. The 
Property consists of a 25,560 square foot one-story building. The CT 
Fund leases 15,949.5 of interior square feet of space in the building 
from Local 24. An additional 3,142 square feet of interior space in the 
building is shared jointly by Local 24 and the CT Fund.\13\
---------------------------------------------------------------------------

    \13\ The Department notes that the CT Fund is not a party to the 
proposed transaction that is described herein. Therefore, the 
Department has not considered whether the leasing arrangement and 
the joint sharing of space in the Property between Local 24 and the 
CT Fund fit within the statutory exemptive relief provided under 
section 408(b)(2) of the Act or Prohibited Transaction Exemption 
(PTE) 78-6 (43 FR 23024, May 30, 1978).
     Section 408(b)(2) of the Act allows a plan to contract or make 
reasonable arrangements with a party in interest for office space, 
legal, accounting or other services necessary for the establishment 
or operation of the plan. Under section 408(b)(2), exemptive relief 
is permitted from violations of section 406(a) of the Act, 
exclusively.
     PTE 78-6 is a class exemption that allows a contributing 
employer, a wholly owned subsidiary of a contributing employer, or 
an employee organization such as a union, to lease real property, 
other than office space, to an apprenticeship or training plan. PTE 
78-6 provides relief from section 406(a)(1)(A),(C) and (D), only.
     To the extent the leasing/joint sharing arrangements between 
Local 24 and the CT Fund do not comply with the terms and conditions 
of section 408(b)(2) of the Act (and the regulations that have been 
promulgated thereunder) or PTE 78-6, the Department is not providing 
an administrative exemption for such arrangements.
---------------------------------------------------------------------------

    6. At their December 12, 2012 Trustee meeting, the Employer 
Trustees of the Plan voted to begin negotiations for a merger with the 
CT Fund and to purchase the Property for continuing use as a training 
facility. The vote was further subject to review by an I/F and the 
Department's granting an individual exemption. All of the Union 
Trustees recused themselves from the vote to (a) merge the two training 
funds, (b) hire an I/F, and (c) purchase the Property.\14\
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    \14\ To date, there has been no vote regarding the proposed 
lease of the Property by the Plan to Local 24. Once the Purchase 
takes place, and when that vote is taken, the Applicant represents 
that all of the Union Trustees will recuse themselves from the 
leasing decision.
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    7. Local 24 has decided to sell the Property because it no longer 
wishes to retain ownership or to act as landlord to the CT Fund. If the 
Plan does not purchase the Property, it is represented that the Plan 
will be at risk of losing its current facility and will need to 
purchase or lease a new Property in order to continue to provide its 
training programs. In addition, it is represented that the Property is 
hard to duplicate in the market. To find buildings of the same caliber, 
the Plan will either need to spend more money on a facility or relocate 
to a different market.
    It is also represented that during the merger discussions, the Plan 
Trustees and the CT Fund Trustees agreed that it was important to 
maintain a training facility in Connecticut after the merger. The Plan 
Trustees and the CT Fund Trustees further determined that in order for 
the Plan to best serve the Connecticut carpenter apprentices, it would 
be desirable to maintain the facility in Yalesville, Connecticut due to 
the suitability of the facility for training purposes and the location.
    8. Therefore, an administrative exemption is requested from the 
Department to allow the Plan to purchase the Property from Local 24. 
The proposed transaction will be subject to a number of conditions. In 
this regard, the Purchase price paid by the Plan for the Property will 
be the lesser of $1,280,000 or the fair market value of such Property, 
as determined by the Appraiser, on the date of the transaction. In 
addition, the Purchase will be a one-time transaction for cash. The 
terms and conditions of the Purchase will reflect arm's-length dealings 
between the Plan and Local 24. Further, the Purchase has been 
negotiated, reviewed, and approved by an I/F, who will monitor such 
transaction on behalf of the Plan and its participants and 
beneficiaries. The I/F has selected the Appraiser to determine the fair 
market value of the Property and has reviewed and approved the 
methodology used by the Appraiser. Finally, the Plan will not incur any 
fees, costs, commissions, or other charges as a result of engaging in 
the Purchase, other than the necessary and reasonable fees that will be 
paid to the I/F and to the Appraiser, respectively.
    9. The Purchase would violate section 406(a)(1)(A) and (D) of the 
Act.\15\ Section 406(a)(1)(A) of the Act provides, in relevant part, 
that a fiduciary with respect to a plan shall not cause the plan to 
engage in a transaction, if he knows or should know that such

[[Page 44711]]

transaction constitutes a direct or indirect sale of Property between a 
plan and a party in interest. The term ``party in interest'' is defined 
under section 3(14)(A) of the Act to include, a fiduciary such as the 
Trustees. Under section 3(14)(D), the term party in interest also 
includes an employee organization, any of whose employees or members 
are covered by such plan. Local 24 is a party in interest with respect 
to the Plan because it is an employee organization whose members are 
covered by the Plan.
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    \15\ The Department notes that the Purchase does not appear to 
violate the fiduciary self-dealing and conflict of interest 
provisions of section 406(b)(1) and (b)(2) of the Act because no 
officials of Local 24 sit on the Plan's Board of Trustees. 
Therefore, exemptive relief is being provided herein from section 
406(a)(1)(A) and (D) only.
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    In addition, section 406(a)(1)(D) of the Act provides that a 
fiduciary shall not cause a plan to engage in a transaction, if he 
knows or should know that such transaction constitutes a transfer to, 
or use by or for the benefit of, a party in interest, of any assets of 
the plan. As fiduciaries, the Plan's Trustees would be causing the 
Plan, in the process of purchasing the Property, to transfer funds to 
Local 24 in order to consummate the transaction. Thus, in the absence 
of an administrative exemption, the Purchase would violate section 
406(a)(1)(A) and (D) of the Act.
    10. As stated above, Local 24 currently maintains office space in 
the portion of the Property that the CT Fund does not presently occupy. 
If the Property is sold to the Plan, Local 24 intends to lease the same 
portion of the Property that it currently occupies from the Plan. 
According to the Applicant, the rental rate will be based on the fair 
market rental rates for office space in the Yalesville, Connecticut 
area, and the terms of the lease will comply with PTEs 76-1 and 77-
10.\16\
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    \16\ Part C of PTE 76-1 (41 FR 12740, March 26, 1976, as 
corrected at 41 FR 16620 (April 20, 1976)) provides exemptive relief 
from the prohibited transaction provisions of sections 406(a) and 
407(a) of the Act for the leasing of office space, or the provision 
of administrative services, or the sale or leasing of goods by a 
multiple employer plan to a participating employee organization, 
participating employer or another multiple employer plan. PTE 77-10 
(42 FR 33918, July 1, 1977), which complements PTE 76-1, provides 
exemptive relief from the prohibited transaction provisions of 
section 406(b)(2) of the Act with respect to the sharing of office 
space, administrative services or goods, or the leasing of office 
space, or the provision of administrative services or the sale or 
leasing of goods. In addition, with respect to the sharing of office 
space, PTE 77-10 requires that the plan must receive reasonable 
compensation. The costs of securing such space are assessed and paid 
on a pro-rata basis with respect to each party's use of such space, 
services and goods.
     Notwithstanding the applicant's views on the applicability of 
PTEs 76-1 and 77-10 to the proposed leases, the Department expresses 
no opinion on whether the lease will satisfy the terms and 
conditions of these class exemptions.
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    11. Integra Realty Resources, Inc. (Integra) of New York City, New 
York has been retained to serve as the Appraiser. Specifically, Mark 
Bates, the Senior Managing Director for Integra and a Member of the 
Appraisal Institute, prepared the appraisal report (the Appraisal 
Report) for the Property to determine the fair market value of the 
Property. Mr. Bates represents that he provides advisory and valuation 
services to leading institutions, developers and owners, involving 
major commercial and residential properties throughout the United 
States. He also represents that Integra's gross revenues received from 
parties in interest with respect to the Plan, including the preparation 
of the Appraisal Report, represents less than 1% of Integra's actual 
gross revenues in 2014.
    12. In the Appraisal Report dated July 3, 2014, Mr. Bates describes 
the Property as an existing industrial building containing 25,560 
square feet of rentable area, including 53% finished office space used 
as administration space and classrooms. He explains that the 
improvements were constructed in 1973 and are 100% owner-occupied as of 
the effective appraisal date. The site consists of 3.10 acres or 
135,036 square feet.
    13. Mr. Bates considered two standard approaches for valuing older 
properties similar to the Property: (a) The Income Capitalization 
Approach; and (b) the Sales Comparison Approach. According to Mr. 
Bates, the Income Capitalization Approach is an applicable valuation 
method because there is an active rental market for similar properties 
that permits the estimation of the Property's income-generating 
potential. However, he believes the Sales Comparison Approach is the 
best valuation method because: (a) There is an active market for 
similar properties plus sufficient sales data available for analysis; 
(b) this approach directly considers the prices of alternative 
properties having similar utility; and (c) this approach is typically 
most relevant for owner-user properties.
    Using the Sales Comparison Approach, Mr. Bates arrived at a value 
for the Property of $1,280,000, as of July 3, 2014, or 3% of the value 
of the Plan's assets. The Appraisal Report will be updated by the 
Appraiser on the date of the closing.
    14. The Plan's Employer Trustees retained Gallagher Fiduciary 
Advisors, LLC (GFA) of Newark, NJ to serve as the I/F on behalf of the 
Plan. Under its engagement letter, the I/F agreed to: (a) Evaluate the 
proposed transaction to determine whether it is in the interest of the 
Plan's participants and beneficiaries; (b) negotiate and agree on 
behalf of the Plan to the specific terms of the proposed transaction, 
to decide on behalf of the Plan whether to consummate the proposed 
transaction, and (c) to direct the appropriate Plan fiduciaries to 
execute the instruments necessary for the proposed transaction, if it 
is consummated.
    15. The I/F is a registered investment adviser subsidiary of 
Gallagher Benefit Services, Inc., an employee benefits consulting firm. 
The I/F has served, and continues to serve, as an independent fiduciary 
in connection with numerous pension and welfare funds' investment 
transactions, involving substantial issues under the fiduciary 
responsibility provisions of the Act. GFA has acted in a variety of 
independent fiduciary roles, including independent fiduciary, named 
fiduciary, investment manager and advisor or special consultant.
    16. The I/F represents that it is a ``qualified independent 
fiduciary'' because it and its employees have the appropriate training, 
experience, and facilities to act on behalf of the Plan regarding the 
proposed transaction, in accordance with the fiduciary duties and 
responsibilities prescribed by the Act. In this regard, the I/F states 
that its staff includes professionals experienced with the management 
and disposition of portfolio assets, including real estate, as well as 
ERISA lawyers, who are aware of the fiduciary responsibilities 
involving investment activities.
    The I/F further represents that it is ``independent'' because it 
has no relationship with Local 24 or other parties in interest, except 
for its role as the Plan's independent fiduciary with respect to the 
proposed transaction. The I/F's fee for its services for the Plan will 
be less than 1% of its annual gross revenues.
    17. Besides retaining the Appraiser, the I/F retained Cardno ATC of 
Portland, Oregon (U.S. headquarters) to conduct a property condition 
assessment (PCA). The PCA identified some immediately needed repairs, 
which the I/F will require to be made by Local 24 before closing or 
``reserved for in the Purchase price,'' meaning the value of the cost 
of those repairs will be deducted from the Purchase price. The repairs 
identified by Cardno ATC are site conditions, structural frame repair, 
HVAC system repair and handicapped access, totaling $35,200.
    The I/F also retained Cardno ATC to conduct a phase one 
environmental survey of the Property. The survey identified an open 
question regarding the previous removal of an underground storage tank. 
This will likely require additional testing to ascertain soil 
conditions. The I/F will require this to be fully resolved or otherwise 
reserved prior to closing.
    18. In addition, the I/F retained real estate consultants Bertram & 
Cochran,

[[Page 44712]]

Inc (B&C) of Hartford, Connecticut, to conduct a survey of other 
available properties that were potentially suitable for the purchase or 
leasing by the Plan. As mentioned above, the result of the survey was 
that purchasing the Property was the least expensive alternative and in 
the interest of the Plan's participants.
    19. The I/F has reviewed and approved the methodology used by the 
Appraiser and it will ensure that such methodology is properly applied 
in determining the fair market value of the Property. In addition, the 
I/F will determine whether it is prudent to go forward with the 
proposed transaction. Further, the I/F will represent the interests of 
the Plan at the time the proposed transaction is consummated.
    In carrying out its duties, the I/F requested, received and 
reviewed numerous documents concerning the Plan and the transaction. 
Among the documents the I/F reviewed were the: (a) Exemption 
application; (b) recent audited financial statements of the Plan; (c) 
the Appraisal Report for the Property; (d) the PCA; (e) the 
environmental assessment of the Property; (f) a competitive property 
market evaluation; (g) Local 24 financial statements; and (h) the 
existing lease between Local 24 and the CT Fund. In addition, the I/F 
visited the Property and met with the Plan's counsel and the NERCC 
Business Representative.
    The I/F represents that the exemption request is administratively 
feasible because the purchase by the Plan from Local 24 will be a one-
time transaction for cash, rather than a mortgage arrangement. Further, 
once the Property is owned by the Plan, the I/F represents that there 
will be no oversight required by the Department other than its usual 
and customary regulatory audits of all welfare benefit plans.
    The I/F has opined that it is less expensive for the Plan to 
purchase the Property rather than find a similar facility and expend 
even more funds to convert it to an appropriate carpenter training 
facility. In this regard, the I/F hired a real estate appraiser to seek 
out other facilities that might serve as a training facility for the 
Plan that would also be less expensive than purchasing the Property. 
The result of the survey was that purchasing the Property was the least 
expensive alternative and in the interest of the Plan's participants.
    20. In summary, it is represented that the proposed transaction has 
satisfied or will satisfy the statutory requirements for an exemption 
under section 408(a) of the Act because:
    (a) The Purchase price paid by the Plan for the Property will be 
the lesser of $1,280,000 or the fair market value of such Property, as 
determined by an Appraiser, as of the date of the Purchase;
    (b) The Purchase will be a one-time transaction for cash;
    (c) The terms and conditions of the Purchase will be no less 
favorable to the Plan than those obtainable by the Plan under similar 
circumstances when negotiated at arm's length with unrelated third 
parties;
    (d) Prior to entering into the Purchase, the I/F will determine 
that the Purchase is in the interest of, and protective of the Plan and 
of its participants and beneficiaries;
    (e) The I/F has negotiated, reviewed, and approved the terms of the 
Purchase prior to the consummation of such transaction;
    (f) The I/F has reviewed and approved the methodology used by the 
Appraiser, and it will ensure that such methodology is properly applied 
in determining the fair market value of the Property, and determine 
whether it is prudent to go forward with the proposed transaction. In 
addition, the I/F will represent the interests of the Plan at the time 
the proposed transaction is consummated;
    (g) Immediately following the Purchase, the fair market value of 
the Property will not exceed 3 percent (3%) of the fair market value of 
the total assets of the Plan; and
    (h) The Plan will not incur any fees, costs, commissions, or other 
charges as a result of engaging in the Purchase, other than the 
necessary and reasonable fees payable to the I/F and to the Appraiser.

Notice to Interested Persons

    Notice of the proposed exemption (the Notice) will be given to 
interested persons within 7 days of the date of publication of the 
Notice in the Federal Register. The Notice will be given to interested 
persons by first class mail, with postage prepaid. Such Notice will 
contain a copy of the Notice, as published in the Federal Register, and 
a supplemental statement, as required pursuant to 29 CFR 2570.43(b)(2). 
The supplemental statement will inform interested persons of their 
right to comment on and/or to request a hearing with respect to the 
pending exemption. Written comments and hearing requests are due within 
37 days of the publication of the Notice in the Federal Register.
    All comments will be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments may be posted on the Internet and can be retrieved by most 
Internet search engines.

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

Virginia Bankers Association Defined Contribution Plan for First 
Capital Bank (the Plan), Located in Glen Allen, Virginia

[Application No. D-11818]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Employee Retirement Income Security 
Act of 1974, as amended, (ERISA or the Act) and section 4975(c)(2) of 
the Internal Revenue Code of 1986, as amended (the Code), and in 
accordance with the procedures set forth in 29 CFR part 2570, subpart B 
(76 FR 66637, 66644, October 27, 2011).
Section I. Covered Transactions
    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(E), 406(a)(2), 406(b)(1), 406(b)(2), and 
407(a)(1)(A) of the Act and the sanctions resulting from the 
application of section 4975 of the Code, by reason of sections 
4975(c)(1)(A) and 4975(c)(1)(E) of the Code,\17\ shall not apply to: 
(1) The acquisition of certain warrants (the Warrants) to purchase a 
half-share of common stock (the Stock) of First Capital Bancorp, Inc. 
(First Capital) by the participant-directed accounts (the Accounts) of 
certain participants in the Plan (the Participants) in connection with 
a rights offering (the Rights Offering) of shares of Stock by First 
Capital, a party in interest with respect to the Plan; and (2) the 
holding of the Warrants received by the Accounts, provided that the 
conditions set forth in Section II below were satisfied for the 
duration of the acquisition and holding.
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    \17\ For purposes of this proposed exemption, references to 
specific provisions of Title I of the Act, unless otherwise 
specified, refer also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

Section II. Conditions for Relief
    (a) The acquisition of the Warrants by the Accounts of the 
Participants occurred in connection with the exercise of subscription 
rights to purchase Stock and Warrants (the Subscription Rights) 
pursuant to the Rights Offering, which was made available by First 
Capital to all

[[Page 44713]]

shareholders of Stock, including the Plan;
    (b) The acquisition of the Warrants by the Accounts of the 
Participants resulted from their participation in the Rights Offering, 
an independent corporate act of First Capital;
    (c) Each shareholder of Stock, including each of the Accounts of 
the Participants, was entitled to receive the same proportionate number 
of Warrants, and this proportionate number of Warrants was based on the 
number of shares of Stock held by each such shareholder on the record 
date of the Rights Offering;
    (d) The Warrants were acquired pursuant to, and in accordance with, 
provisions under the Plan for individually-directed investments of the 
Accounts by the individual participants in the Plan, a portion of whose 
Accounts in the Plan held the Stock;
    (e) The decisions with regard to the acquisition, holding, and 
disposition of the Warrants by an Account have been made, and will 
continue to be made, by the individual Participant whose Account 
received the Subscription Right in respect of which such Warrants were 
acquired;
    (f) The trustee of the Plan's fund maintained to hold Stock, the 
First Capital Stock Fund, will not allow Participants to exercise the 
Warrants unless the fair market value of the Stock exceeds the exercise 
price of the Warrants on the date of exercise; and
    (g) No brokerage fees, commissions, or other fees or expenses were 
paid or will be paid by the Plan in connection with the acquisition, 
holding and/or exercise of the Subscription Right or the Warrants.
    Effective Date: This proposed exemption, if granted, will be 
effective for the period beginning on April 30, 2012, until the date 
the Warrants are exercised or expire.

Summary of Facts and Representations \18\
---------------------------------------------------------------------------

    \18\ The Summary of Facts and Representations is based on First 
Capital's representations and does not reflect the views of the 
Department, unless indicated otherwise.
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Background

    1. First Capital Bancorp, Inc. (First Capital or the Applicant) is 
a Virginia corporation maintaining its principal place of business in 
Glen Allen, Virginia. First Capital Bank (the Bank) is a subsidiary of 
First Capital that maintains its principal place of business in Glen 
Allen, Virginia.
    2. First Capital represents that the Bank sponsors the Virginia 
Bankers Association Defined Contribution Plan for First Capital Bank 
(the Plan), a 401(k) plan that provides for participant-directed 
investments. The Applicant represents that the Plan was adopted by the 
Bank effective May 1, 1999. As of December 31, 2012, the Plan had total 
assets of approximately $4,252,512 and 97 participants.
    3. First Capital represents that the participants in the Plan (the 
Participants) may direct the investments of their Plan accounts 
(individually, the Account, and collectively, the Accounts) into 
various investment funds, including a First Capital Stock Fund (the 
Stock Fund). The Applicant represents that the Plan does not impose 
requirements with respect to investing in First Capital Stock (the 
Stock). First Capital represents that, as of December 31, 2012, the 
Stock Fund was valued at $332,197, which represented approximately 8% 
of the fair market value of total Plan assets, and those shares of the 
Stock Fund were allocated to the Accounts of 35 Participants.
    First Capital represents that Participants may make investment 
directions in the Stock Fund in increments of 1% of their pre-tax 
elective deferral Account under the Plan, subject to a 25% limit. 
Account balances invested in the Stock Fund are distributed in whole 
shares of Stock and cash instead of fractional shares.
    4. First Capital represents that, at the time the transactions 
described herein occurred, the VBA Benefits Corporation, located in 
Glen Allen, Virginia, served as the trustee of the Plan (the Trustee). 
However, effective June 1, 2014, Reliance Trust Company (Reliance), 
located in Atlanta, Georgia, assumed the role of Trustee and is the 
Custodian of the Stock Fund (the Custodian). The Applicant represents 
that the Trustee holds the Plan's assets, and executes investment 
directions in accordance with Participants' instructions.

The Rights Offering

    5. In a prospectus, dated February 13, 2012 (the Offering 
Prospectus), First Capital initiated a rights offering (the Rights 
Offering) to permit shareholders of record as of February 10, 2012 (the 
Record Date), including the Plan, to purchase Stock and transferable 
10-year warrants (the Warrants). As of the Record Date, there were 
2,971,171 shares of Stock issued and outstanding.
    6. The Applicant represents that the Rights Offering was undertaken 
as an independent act on the part of First Capital, as a corporate 
entity under which all shareholders of Stock, including the Plan, were 
treated in a like manner. The Applicant represents that First Capital 
engaged in the Rights Offering in order to raise equity capital and 
improve its capital position. Under the terms set forth in the Offering 
Prospectus, the Rights Offering commenced on February 13, 2012, and was 
intended to terminate on April 16, 2012 (the Subscription Period). 
First Capital had reserved the right to extend the Subscription Period 
to no later than June 29, 2012. On April 4, 2012, First Capital 
exercised its right to extend the Subscription Period, and extended it 
until April 30, 2012.
    7. First Capital represents that the Stock and the Warrants were 
issued separately, but were offered together as ``Units'' consisting of 
one share of Stock and one Warrant to purchase one-half of a share of 
Stock at a price of $2.00 per share. The Rights Offering provided that, 
for every share of Stock held as of the Record Date, each shareholder 
had the nontransferable right to subscribe for up to three Units (the 
Subscription Right) for an exercise price of $2.00 per Unit. 
Furthermore, First Capital represents, shareholders who exercised the 
Subscription Right in full for three Units subsequently had the 
opportunity to purchase Units not purchased by other shareholders (the 
Over-Subscription Privilege). The Applicant represents that the 
exercise of the Over-Subscription Privilege was subject to a right of 
first refusal that First Capital granted to a private investor (the 
Standby Purchaser).\19\
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    \19\ The Applicant represents that First Capital also entered 
into a standby purchase agreement (the Standby Agreement) with the 
Standby Purchaser, pursuant to which the Standby Purchaser agreed to 
acquire from First Capital, at the price of $2.00 per Unit, 350,000 
Units if such Units were available after exercise of the 
Subscription Right.
---------------------------------------------------------------------------

    8. First Capital represents that, while the Stock is traded on the 
NASDAQ under the ticker symbol ``FCVA,'' neither the Subscription 
Rights nor the Warrants were listed for trading on the NASDAQ or any 
other stock exchange or market.\20\ First Capital represents that the 
shares of Stock issuable upon the exercise of the Warrants will be 
listed for trading on the NASDAQ with the other outstanding shares of 
Stock.
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    \20\ First Capital reserved its right to apply to list the 
Warrants for trading on the NASDAQ following the Rights Offering. 
However, the Applicant represents that First Capital has thus far 
not elected to do so and does not currently expect to do so.
---------------------------------------------------------------------------

    9. First Capital represents that Participants were offered the 
opportunity to purchase Units through the Stock Fund investment option 
under the Plan. In this regard, Participants completed a Rights 
Offering Election Form (the Election Form) and submitted it to the 
Bank, indicating the total number of Units to be purchased for their 
Accounts and the total purchase

[[Page 44714]]

price, or their election not to participate in the Rights Offering. 
First Capital represents that the Election Form also provided for the 
Participant to designate which Plan investment fund(s) in the 
Participant's Account were to be liquidated in order to pay for the 
Units and the designated amounts to be liquidated from each fund. The 
Applicant represents that the Bank provided the Election Form to the 
Custodian to facilitate the Participants' elections to participate in 
or opt out of the Rights Offering.
    10. The Applicant represents that First Capital engaged a financial 
advisor, Davenport & Company LLC (Davenport), to advise it on the 
Rights Offering. The Applicant represents that First Capital paid 
Davenport's fees in connection with the Rights Offering, with no fees 
paid with Plan assets. The Applicant represents that Davenport helped 
to negotiate the terms of the Standby Agreement and render a fairness 
opinion to the First Capital's Board of Directors that the 
consideration to be received by First Capital for the Units was fair.
    First Capital represents that, on February 13, 2012, the closing 
sale price of the Stock on the NASDAQ Capital Market (NASDAQ) was $2.65 
per share. First Capital further notes that, on April 30, 2012, the 
closing sale price of the Stock on the NASDAQ was $2.03 per share. 
Therefore, the per-Unit exercise price of $2.00 per share was below the 
price at which the Stock was trading on the date that the Rights 
Offering commenced as well as the date of the exercise of the Rights.

The Warrants

    11. As described above, the Warrants entitled each shareholder who 
participated in the Rights Offering the right to purchase one-half a 
share of Stock at $2.00 per share, paid in cash at the time of 
exercise. Pursuant to the Offering Prospectus, each Warrant was 
exercisable immediately upon completion of the Rights Offering and will 
expire on the tenth anniversary of the end of the Subscription Period. 
The Offering Prospectus notes that the Warrants will be subject to 
redemption by First Capital for $0.01 per Warrant, on not less than 30 
days written notice, at any time after the closing price of the Stock 
exceeds $4.00 per share for 20 consecutive business days ending within 
15 days of the date on which notice of redemption is given, provided 
that the Warrant may not be redeemed before the first anniversary of 
the completion of the Rights Offering.\21\ The Offering Prospectus 
indicates that the Warrants will be adjusted to reflect any stock 
split, stock dividend or similar recapitalization with respect to the 
Stock. Furthermore, as no fractional shares of Stock would be issued, 
the Offering Prospectus explains that if a shareholder purchased an odd 
number of Units, the number of shares of Stock to be purchased through 
the Warrants would be rounded down to the nearest whole share.
---------------------------------------------------------------------------

    \21\ The Department notes that the redemption of the Warrants by 
First Capital from the Plan in exchange for cash would constitute a 
prohibited transaction under sections 406(a)(1)(A), 406(a)(1)(D), 
406(b)(1), and 406(b)(2) of the Act, for which exemptive relief is 
not provided hereunder.
---------------------------------------------------------------------------

    12. First Capital represents that, with respect to the exercise and 
disposition of the Warrants, the Trustee will follow the directions of 
the Participants in accordance with the procedures set forth in the 
Warrant Certificate and established by the Bank. However, First Capital 
states, the Trustee will not allow Participants to exercise the 
Warrants unless the fair market value of the Stock exceeds the exercise 
price of the Warrants. The Applicant represents that the shares of 
Stock received upon the exercise of the Warrants will be credited to 
Participants' Accounts.
    13. First Capital represents that all shareholders of Stock, 
including Participants, were treated in a similar manner with respect 
to their acquisition and holding of the Warrants. First Capital further 
represents that no Participant in the Plan paid, or will pay, any fees 
or commissions in connection with the acquisition, holding or exercise 
of the Warrants. Finally, First Capital represents that all decisions 
regarding the acquisition, holding, and disposition of the Warrants 
have been and will be made by the Participants to whose Plan accounts 
the Warrants were allocated.

Exemptive Relief Requested

    14. First Capital previously requested retroactive exemptive relief 
to cover the Plan's acquisition and holding of both the Subscription 
Rights and the Warrants. However, the Department was unable to make the 
required statutory findings under section 408(a) of the Act for 
retroactive exemptive relief, due to, among other things, the length of 
time between the end of the Subscription Period and the filing of the 
application for exemptive relief, and the inadequacy of the information 
presented to Participants with respect to the Rights Offering. 
Consequently, First Capital withdrew its request for retroactive 
exemptive relief with respect to the acquisition and holding of 
Subscription Rights by the Plan. First Capital filed a Form 5330 with 
the IRS disclosing a prohibited transaction with no related loss.\22\ 
Therefore, the Department is proposing relief only for the acquisition 
and holding of the Warrants.
---------------------------------------------------------------------------

    \22\ The Department is taking no view herein regarding whether 
First Capital properly filed the Form 5330, including properly 
reporting such loss amount.
---------------------------------------------------------------------------

    15. First Capital states that the acquisition and holding of the 
Warrants violates certain prohibited transaction restrictions of the 
Act. In this regard, First Capital states that, although the Warrants 
constitute ``employer securities'' as defined under section 407(d)(1) 
of the Act, they do not satisfy the definition of ``qualifying employer 
securities'' as defined under section 407(d)(5) of the Act because they 
are not stock or marketable debt securities. Under section 407(a)(1)(A) 
of the Act, a plan may not acquire or hold any ``employer security'' 
which is not a ``qualifying employer security.'' In addition, section 
406(a)(1)(E) of the Act prohibits the acquisition, on behalf of a plan, 
of any ``employer security in violation of section 407(a) of the Act.'' 
Finally, section 406(a)(2) of the Act prohibits a fiduciary who has 
authority or discretion to control or manage the assets of a plan to 
permit the plan to hold any ``employer security'' in violation of 
section 407(a) of the Act. Therefore, First Capital states that the 
acquisition and holding of the Warrants by the Plan constitute 
prohibited transactions in violation of sections 406(a)(1)(E) and 
406(a)(2) of the Act.
    16. Furthermore, First Capital states that the acquisition of the 
Warrants violates section 406(a)(1)(A) of the Act. First Capital notes 
that, in relevant part, section 406(a)(1)(A) of the Act provides that a 
fiduciary with respect to a plan shall not cause the plan to engage in 
a transaction if the fiduciary knows or should know that the 
transaction is a sale or exchange of any property between a plan and a 
party in interest. First Capital states that, because the Plan 
fiduciaries acquired the Warrants on behalf of Participants through the 
exercise of Subscription Rights in the Rights Offering, the acquisition 
of the Warrants constituted a sale or exchange of property between a 
Plan and a party in interest, in violation of section 406(a)(1)(A) of 
the Act.
    17. First Capital states further that the acquisition and holding 
of the Warrants may violate sections 406(b)(1) and 406(b)(2) of the 
Act. First Capital notes that section 406(b)(1) of the Act prohibits a 
fiduciary from dealing with the assets of a plan in his own interest

[[Page 44715]]

or for his own account. Furthermore, section 406(b)(2) of the Act 
prohibits a fiduciary with respect to a plan from acting in any 
transaction involving the plan on behalf of a party, or representing a 
party, whose interests are adverse to the interests of the plan or its 
participants and beneficiaries. First Capital states that, in effecting 
the Plan's participation in the Rights Offering and allowing the Plan 
to purchase and hold the Warrants, the Plan fiduciaries may have 
violated section 406(b)(1) of the Act because they dealt with the 
assets of the Plan in their own interest. Furthermore, the Applicant 
states that the Plan fiduciaries may have violated section 406(b)(2) of 
the Act because they acted on their own behalf as well as the Plan's 
behalf in the Rights Offering. Therefore, First Capital requests that 
the Department grant an exemption from the prohibitions of sections 
406(a)(1)(A), 406(a)(1)(E), 406(a)(2), 406(b)(1), 406(b)(2), and 
407(a)(1)(A) of the Act, for the acquisition and holding of the 
Warrants.
    18. As explained above, First Capital represents that the 
acquisition of the Warrants has been completed. First Capital 
represents that, to date, no Plan Participants have exercised any of 
their Accounts' Warrants. First Capital further represents that, to 
date, no Plan Participants have transferred any Warrants in their 
Accounts to third parties. According to First Capital, all Accounts 
that received the Warrants may hold them until exercised for Stock or 
transferred to a third party, or until the Warrants expire, ten years 
from the date that the Rights Offering closed. First Capital seeks 
retroactive relief effective from April 30, 2012, the date that the 
Accounts of Participants exercised their Subscription Rights, until the 
Warrants are exercised or expire.

Statutory Findings

    19. First Capital represents that the proposed exemption is 
administratively feasible. First Capital represents that all 
shareholders, including the Plan, were, and will continue to be treated 
in a like manner with respect to the acquisition and holding of the 
Warrants. First Capital represents that the Plan recordkeeper has 
indicated that it can administer the Warrants as part of the Plan's 
assets, of which the Warrants comprise less than 1 percent. As such, 
First Capital represents that there is no reason for any continuing 
Departmental oversight with respect to the holding of the Warrants.
    20. First Capital represents that the Plan's acquisition of the 
Warrants through its participation in the Rights Offering was in the 
interests of the Plan and its Participants because it provides 
Participants with the opportunity to purchase additional Stock at below 
fair market value price. Furthermore, First Capital represents that 
rights offerings are a very common approach used by banks and other 
issuers to raise capital, and that they provide shareholders, including 
the Plan, with an additional opportunity to invest in the entity. 
Furthermore, the price of a Unit, which included one share of Stock and 
one Warrant to purchase a half-share of Stock, was lower than the price 
of Stock, as reflected on the NASDAQ, on the date the Rights Offering 
commenced and the date of the exercise of the Rights.
    21. First Capital represents that the acquisition and holding of 
the Warrants in the Rights Offering was protective of the rights of 
Participants and beneficiaries because all decisions regarding the 
holding, exercise and disposition of the Warrants by an Account were 
made or will be made by the Participant whose Account received such 
Warrants. Furthermore, the Trustee will not allow Participants to 
exercise the Warrants unless the fair market value of the Stock exceeds 
the exercise price of the Warrants on the date of exercise.

Summary

    22. In summary, First Capital represents that the proposed 
exemption satisfies the statutory criteria for an exemption under 
section 408(a) of the Act for the reasons stated above and for the 
following reasons:
    a. The acquisition of the Warrants by the Accounts of the 
Participants occurred in connection with the exercise of Subscription 
Rights pursuant to the Rights Offering, which was made available by 
First Capital to all shareholders of Stock, including the Plan;
    b. The acquisition of the Warrants by the Accounts of the 
Participants resulted from their participation in the Rights Offering, 
an independent corporate act of First Capital;
    c. Each shareholder of Stock, including each of the Accounts of the 
Participants, was entitled to receive the same proportionate number of 
Warrants, and this proportionate number of Warrants was based on the 
number of shares of Stock held by each such shareholder;
    d. The Warrants were acquired pursuant to, and in accordance with, 
provisions under the Plan for individually-directed investments of the 
Accounts by the individual Participants, a portion of whose Accounts in 
the Plan held the Stock;
    e. The decisions with regard to the holding, exercise and 
disposition of the Warrants by an Account were made and are to be made 
by the Participant whose Account received the Warrants;
    f. The Trustee will not allow Participants to exercise the Warrants 
unless the fair market value of the Stock exceeds the exercise price of 
the Warrants on the date of exercise; and
    g. No brokerage fees, commissions, or other fees or expenses were 
paid by the Plan in connection with the acquisition, holding or 
exercise of any of the Warrants.

Notice to Interested Persons

    Notice of the proposed exemption will be given to all Interested 
Persons within 15 days of the publication of the notice of proposed 
exemption in the Federal Register, by first class U.S. mail to the last 
known address of all such individuals. Such notice will contain a copy 
of the notice of proposed exemption, as published in the Federal 
Register, and a supplemental statement, as required pursuant to 29 CFR 
2570.43(a)(2). The supplemental statement will inform interested 
persons of their right to comment on and to request a hearing with 
respect to the pending exemption. Written comments and hearing requests 
are due within 45 days of the publication of the notice of proposed 
exemption in the Federal Register.
    All comments will be made available to the public.
    Warning: If you submit a comment, EBSA recommends that you include 
your name and other contact information in the body of your comment, 
but DO NOT submit information that you consider to be confidential, or 
otherwise protected (such as Social Security number or an unlisted 
phone number) or confidential business information that you do not want 
publicly disclosed. All comments may be posted on the Internet and can 
be retrieved by most Internet search engines.

FOR FURTHER INFORMATION CONTACT: Scott Ness of the Department, 
telephone (202) 693-8561. (This is not a toll-free number.)

Idaho Veneer Company/Ceda-Pine Veneer, Inc. Employees' Retirement Plan, 
Located in Post Falls, ID

[Application No. D-11823]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the

[[Page 44716]]

Employee Retirement Income Security Act of 1974, as amended (ERISA or 
the Act) and section 4975(c)(2) of the Internal Revenue Code of 1986, 
as amended (the Code) and in accordance with the procedures set forth 
in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 
2011).\23\
---------------------------------------------------------------------------

    \23\ For purposes of this proposed exemption, references to the 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

Section I. Covered Transactions
    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of the Act and the 
sanctions resulting from the application of section 4975(a) and (b) of 
the Code, by reason of section 4975(c)(1)(A), (D) and (E) of the Code, 
shall not apply to the in-kind contribution (the Contribution) by Idaho 
Veneer Company (Idaho Veneer or the Applicant) of unimproved real 
property (the Property) to the Idaho Veneer Company/Ceda-Pine Veneer, 
Inc. Employees' Retirement Plan (the Plan), provided that the 
conditions described in Section II below have been met.
Section II. Conditions for Relief
    (a) The Property is contributed to the Plan at the greater of 
either: (1) $1,249,000; or (2) the fair market value of the Property, 
as determined by a qualified independent appraiser, in an appraisal 
(the Appraisal) that is updated on the date of the Contribution;
    (b) A qualified independent fiduciary (the Independent Fiduciary), 
acting on behalf of the Plan, represents the interests of the Plan and 
its participants and beneficiaries with respect to the Contribution, 
and in doing so: (1) Determines that the Contribution is in the 
interests of the Plan and of its participants and beneficiaries and is 
protective of the rights of participants and beneficiaries of the Plan; 
(2) reviews the Appraisal to approve of the methodology used by the 
appraiser and to verify that the appraiser's methodology was properly 
applied; and (3) ensures compliance with the terms of the Contribution 
and the conditions for the proposed exemption, if granted;
    (c) All rights exercisable in connection with any existing third-
party lease for billboard space (the Lease) on the Property are 
transferred to the Plan along with the Property;
    (d) The Plan does not incur any expenses with respect to the 
Contribution;
    (e) As of the date of the Contribution, there are no adverse 
claims, liens or debts to be levied against the Property, and Idaho 
Veneer is not aware of any pending adverse claims, liens or debts to be 
levied against the Property;
    (f) On the date of the Contribution, and to the extent that the 
value of the Property as of the date of the Contribution is less than 
the cumulative cash contributions Idaho Veneer would have been required 
to make to the Plan in the absence of the Contribution, Idaho Veneer 
will make a cash contribution to the Plan equal to the difference 
between the value of the Property at the date of the Contribution and 
the outstanding required cash contributions;
    (g) The Property represents no more than 20% of the fair market 
value of the total assets of the Plan at the time it is contributed to 
the Plan; and
    (h) The terms and conditions of the Contribution are no less 
favorable to the Plan than those the Plan could negotiate in an arms-
length transaction with an unrelated third party.
    Effective Date: The proposed exemption, if granted, will be 
effective as of the date that a final notice of granted exemption is 
published in the Federal Register.

Summary of Facts and Representations \24\
---------------------------------------------------------------------------

    \24\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
---------------------------------------------------------------------------

Background

    1. Idaho Veneer Company (Idaho Veneer or the Applicant) is a 
producer of white pine lumber and veneer products based in Post Falls, 
Idaho. Idaho Veneer was first established in 1953 and has operated from 
its headquarters in Post Falls for over 60 years. Idaho Veneer also 
owns a property in Samuels, Idaho, on which it operated a mill until 
recently. From 1993 to 2013, Idaho Veneer and Ceda-Pine Veneer, Inc. 
(Ceda-Pine) were wholly-owned subsidiaries of Excaliber, Inc. 
(Excaliber), a holding company for all Idaho Veneer and Ceda-Pine 
stock. In October 2013, Ceda-Pine was liquidated and dissolved. Idaho 
Veneer was merged with Excaliber, the surviving corporation, which 
subsequently changed its name to ``Idaho Veneer Company.'' The 
Applicant represents that during its boom years in the 1980s, Idaho 
Veneer employed more than 200 workers and distributed its products in 
North America, Asia, and Europe. However, the Applicant explains, a 
decline in demand for timber products in recent years caused Idaho 
Veneer to modify its product lineup, and has occasionally resulted in 
seasonal layoffs. The Applicant represents that, due to low demand, 
Idaho Veneer ceased production at the Samuels Mill in 2009 and 
auctioned the mill equipment in May 2012.
    2. Idaho Veneer is the sponsor of the Idaho Veneer Company/Ceda-
Pine Veneer, Inc. Employees' Retirement Plan (the Plan), a defined 
benefit plan established effective December 4, 1972. The Plan was later 
amended to freeze benefit accruals, effective December 31, 2006. In 
addition, no future accrual service would be credited and no future 
compensation will be taken into account when determining the 
participant's accrued benefit, and no additional employees will become 
active participants. As of December 31, 2013, the Plan had 236 
participants and total net assets valued at $7,139,481. Idaho Veneer 
represents that the current trustees of the Plan (the Trustees) 
include: John Malloy, the President and \1/3\ owner of Idaho Veneer; 
Daniel J. Malloy, Director and \1/3\ owner of Idaho Veneer; and Terry 
Newcomb, the chief financial officer of Idaho Veneer.
    3. Idaho Veneer represents that it owns a parcel of vacant, 
unimproved land (the Property), consisting of 11.8 acres bordering 
Interstate 90, and in close proximity to its primary business location 
and mill site in Post Falls. The Applicant purchased the Property in 
1980 from John and Julia Gregor, the original founders of Idaho Veneer. 
Idaho Veneer represents that it originally purchased the Property with 
the intention to expand its mill site operations. However, Idaho Veneer 
represents that it ultimately abandoned its plans for expansion onto 
the Property as another site proved adequate.
    4. Idaho Veneer represents that the Property, though currently 
undeveloped, generates advertising revenue from two billboard signs 
located on the Property. On September 14, 2010, Idaho Veneer entered 
into a ten-year lease (the Lease) with the Lamar Advertising Company 
(Lamar) beginning on December 1, 2010. Lamar is one of the largest 
advertising companies in North America, with more than 300,000 displays 
in the United States, Canada, and Puerto Rico. Lamar offers billboard, 
interstate logo, and transit advertising formats, as well as a network 
of digital billboards with over 2,000 displays. The Lease provides 
Lamar access to the Property to construct and maintain the billboards, 
in exchange for paying Idaho Veneer the greater of $5,000 annually or 
20% of the annual gross income generated from the billboard rentals. 
Idaho Veneer represents that it has earned approximately $18,000 per 
year in

[[Page 44717]]

advertising income in 2013 and 2014 through its ownership of the 
Property. Idaho Veneer states that, as of May 14, 2014, the Property 
has an appraised value of $1,249,000. Idaho Veneer represents that it 
paid $9,140 in 2013 and $8,736 in 2014 in property taxes with respect 
to the Property.

Plan Funding Shortfalls

    5. According to projections prepared by Milliman, the Plan's 
actuary (the Actuary), the Plan had a 78% Adjusted Funding Target 
Attainment Percentage (AFTAP)funded status as of January 1, 2015.\25\ 
The projections indicate that the Plan's funded status will decline to 
77.6% funded after 1 year, 75% after 2 years, and 55.8% after 7 years. 
Idaho Veneer further represents that it lacks the financial resources 
to meet its current minimum required contribution, as required under 
section 305 of the Act and section 412(d) of the Code, through a 
contribution of cash. Idaho Veneer explains that it applied for and was 
granted a partial Minimum Funding Waiver (the Waiver) from the IRS for 
the 2011 Plan year. Pursuant to the terms of the Waiver, Idaho Veneer, 
on June 7, 2012, contributed the first two quarterly payments for the 
2011 Plan year, in the amounts of $78,705 and $78,709. However, the 
Applicant explains, the partial relief provided under the Waiver did 
not sufficiently improve Idaho Veneer's financial condition so as to 
allow it to make its minimum required contributions for either Plan 
years 2012 or 2013.\26\
---------------------------------------------------------------------------

    \25\ Idaho Veneer notes that the funding valuation results 
prepared by the Actuary were made utilizing interest rate 
assumptions provided under the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) legislation enacted on July 6, 2012, that, 
among other things, changed the interest rate that pension plans use 
to measure their liabilities.
    \26\ The Applicant represents that it has filed a Form 5330 with 
the IRS in connection with Idaho Veneer's missed minimum required 
contributions.
---------------------------------------------------------------------------

The In-Kind Contribution

    6. Idaho Veneer wishes to satisfy its funding obligation to the 
Plan through an in-kind contribution of the Property to the Plan (the 
Contribution). The Applicant represents that the Contribution will 
fully satisfy Idaho Veneer's minimum funding obligations with respect 
to the 2011 and 2012 Plan Years. The Applicant further contends that 
the Contribution will satisfy most of the minimum funding obligation 
for the 2013 Plan Year, and that Idaho Veneer will contribute the 
remaining amount for the 2013 Plan Year in cash. Furthermore, Milliman 
projects, the Plan's AFTAP following the Contribution will increase to 
91.4% after 1 year, then decrease to 89.1% after 2 years, and 67.5% 
after 7 years.
    7. The Trustees have determined that the Property is a prudent 
investment for the Plan. Idaho Veneer represents that, although the 
Property is already valuable, the Trustees believe there is still 
significant opportunity for increased upside as the real estate market 
in the western United States continues to recover. On the other hand, 
the Applicant notes, if the Property does decline in value, Idaho 
Veneer will have to supplement its future contributions in order to 
account for any resulting shortfall in the Plan's funding status.
    8. The Applicant notes that Idaho Veneer has previously used the 
Property for storage space. However, all items owned by Idaho Veneer 
will be removed from the Property, and nothing will be stored on the 
Property after the Contribution. According to Idaho Veneer, the 
Property is clear of any adverse claims and there are no liens or debts 
to be levied against the Property, and Idaho Veneer is not aware of any 
pending adverse claims, liens or debts to be levied against the 
Property. Idaho Veneer represents that all rights under the Lease will 
transfer to the Plan along with the Property. Furthermore, Idaho Veneer 
represents that a Phase 1 environmental site assessment was done on 
October 21, 2013 by Hoy Environmental, PLLC located in Spokane, 
Washington. According to Idaho Veneer, the assessment revealed no 
evidence of recognized adverse environmental conditions.
    9. Idaho Veneer notes that it has been actively marketing the 
Property. A third-party buyer, Active West Development, LLC, has 
expressed interest in purchasing the Property, as well as another 
parcel Idaho Veneer owns, as part of a larger development in Post 
Falls.\27\ The Applicant notes that, if the proposed exemption is 
granted and Idaho Veneer contributes the Property to the Plan, the 
Trustees will continue to market the Property for sale to potential 
buyers. According to Idaho Veneer, the Property is currently zoned 
industrial, but re-zoning is not required for the Plan to market the 
Property.
---------------------------------------------------------------------------

    \27\ The Applicant expects that discussions with Active West 
Development, LLC will continue after the Contribution and that the 
Plan may be able to sell the Property shortly after the 
Contribution.
---------------------------------------------------------------------------

    10. The Applicant represents that, to the extent that the value of 
the Property at the date of the Contribution is less than the 
cumulative cash contributions Idaho Veneer would have been required to 
make to the Plan in the absence of the Contribution, Idaho Veneer will 
make a cash contribution to the Plan on the date of the Contribution 
equal to the difference between the value of the Property at the date 
of the Contribution and the outstanding required cash contributions.
    11. The Applicant represents that Idaho Veneer plans to satisfy its 
minimum required contributions for any subsequent years following the 
Contribution. The Applicant represents that Idaho Veneer intends to 
take into account the value of the Property in calculating its minimum 
required payment.

The Independent Fiduciary Report

    12. The Trustees engaged William J. Kropkof, Managing Member of the 
ERISA Advisory Group, to serve as the qualified independent fiduciary 
(the Independent Fiduciary) on behalf of the Plan. The Independent 
Fiduciary represents that he has served in various engagements as a 
qualified independent fiduciary for 19 years, including reviewing 
various types of real estate transactions for ERISA-covered plans.
    13. The Independent Fiduciary represents that he understands that 
his duties and responsibilities under ERISA require him to act on 
behalf of the participants and beneficiaries of the Plan, and not on 
behalf of Idaho Veneer. To this end, the Independent Fiduciary 
represents that he has no current or former relationship with any party 
in interest with respect to the Contribution, including Stanley Moe of 
Columbia Valuation Group, Inc., the qualified independent appraiser 
(the Appraiser), or any affiliates except to the extent necessary to 
perform his duties as Independent Fiduciary. The Independent Fiduciary 
estimates that the percentage of his current revenue derived from any 
party in interest involved in the proposed transaction will be 1.26%, 
determined by comparing, in fractional form, his revenues from Idaho 
Veneer (or its affiliates) and any party in interest, in the current 
federal income tax year (expressed as a numerator), and his revenues 
from all sources (excluding fixed, non-discretionary retirement income) 
for the prior federal income tax year (expressed as a denominator).
    14. The Independent Fiduciary submitted to the Department his 
report, dated November 4, 2014 (the Independent Fiduciary Report), in 
which he analyzed the proposed transaction and submitted and formulated 
recommendations for the Trustees.
    In the Independent Fiduciary Report, the Independent Fiduciary 
explains that he identified and considered several issues in forming 
the recommendation,

[[Page 44718]]

including: The prudence of the proposed transaction; the impact of the 
proposed transaction on the Plan, including the need to diversify the 
Plan's investments, the Plan's current and projected liquidity needs 
based on actuarial models, and the Property's fit with the Plan's other 
investments in light of the overall investment objectives; the impact 
of alternatives to proceeding with the proposed transaction; the risks 
associated with the proposed transaction; and the need to monitor the 
Plan's real estate investments going forward.
    15. In the Independent Fiduciary Report, the Independent Fiduciary 
represents that he evaluated numerous aspects of the proposed 
transaction in analyzing the impact of the Contribution on the Plan. 
The Independent Fiduciary reviewed the appraisal of the Property (the 
Appraisal), completed by the Appraiser. Furthermore, the Independent 
Fiduciary discussed the actuarial projections with the Actuary and 
analyzed the Plan's ability to pay required benefits as well as the 
liquidity of all the Plan's assets. The Independent Fiduciary 
represents that he also conducted an analysis of the Plan's existing 
investment allocation mix and the impact the Contribution would have on 
the Plan's overall investment strategy. Finally, the Independent 
Fiduciary evaluated the current real estate conditions and the 
potential for short- and mid-term appreciation of the value of the 
Property.
    16. After performing the necessary due diligence, the Independent 
Fiduciary recommends in the Independent Fiduciary Report that the 
parties engage in the Contribution. The Independent Fiduciary notes 
that the Plan currently has sufficient liquidity to pay benefits as 
they become due. The asset projections prepared for the Plan indicate 
that the Plan will continue to have sufficient liquidity to meet its 
benefit obligations for at least the next 10 years, with or without the 
Contribution.
    17. Furthermore, according to the Independent Fiduciary Report, the 
Independent Fiduciary believes that the Contribution is in the 
interests of the Plan's Participants. The Independent Fiduciary Report 
notes that the Contribution will satisfy most of the minimum funding 
requirements for Plan years 2012 and 2013. As such, the Independent 
Fiduciary contends that the Contribution would alleviate the cash 
burden on Idaho Veneer, and make it more likely that Idaho Veneer will 
remain financially stable and able to make required cash contributions 
to the Plan in future years.\28\
---------------------------------------------------------------------------

    \28\ The Independent Fiduciary states that the interests of the 
Plan sponsor, Idaho Veneer, are relevant only insofar as the 
Contribution will affect the Applicant's continuing financial 
viability and its ability to fund the Plan.
---------------------------------------------------------------------------

    18. The Independent Fiduciary represents that he reviewed the 
credentials of the Appraiser and determined that he is a certified 
appraiser in good standing with the Idaho Bureau of Occupational 
Licenses and the Washington State Department of Licensing. Based on the 
Appraiser's credentials and the Appraisal completed in connection with 
the Contribution, the Independent Fiduciary believes that the valuation 
is fair and reasonable.
    19. The Independent Fiduciary also notes that because local real 
estate values remain depressed relative to historical trends, the 
Property has significant upside potential. The Independent Fiduciary 
states that, based on recent interest in the Property by third-party 
potential buyers, even a sale in the near future may yield proceeds in 
excess of the current appraised value. Furthermore, according to the 
Independent Fiduciary, the Property generates a stable cash flow 
through the Lease without posing substantial risks to the Plan.
    20. In the Independent Fiduciary Report, the Independent Fiduciary 
concludes that the Contribution is protective of the rights of the Plan 
participants and beneficiaries because the Trustees will perform the 
following duties on an on-going basis: Inspect the Property at least 
annually; review the Plan's financial stability each year; review and 
update the insurance provided for the Property (including liability and 
fire insurance) as necessary; commission a full appraisal of the 
Property every three years and order an update from the Appraiser every 
year in which a full appraisal is not done; review with the Actuary the 
impact that the continued investment in the Property will have on the 
Plan's liquidity; negotiate all current and/or future leases, collect 
stated rents and ensure tenant(s) are performing consistent with the 
terms of those leases; periodically (at least annually) review 
compliance with the terms of any current or future leases; maintain the 
Property in a safe, stable and marketable condition, including 
performing any necessary maintenance on, or removal of, personal 
property, improvements, or other items that are in the best interest of 
the Plan, and keeping the Property free of hazards, noxious weeds and 
other items that could increase risk to the Plan or interfere with the 
Property's value; periodically (at least annually) discuss the current 
strategy for holding the Property and document any changes to such 
strategy; and review, and approve or reject, all purchase offers or 
other proposed transactions involving real estate held by the Plan.

The Appraisal of the Property

    21. In the Appraisal, dated May 14, 2014, and addendum, dated July 
9, 2014, the Appraiser represents that he was hired to perform a market 
appraisal of the property, to be submitted to the Department for the 
purpose of obtaining a prohibited transaction exemption, and that the 
Appraisal was completed solely on behalf of the Plan. The Appraiser 
represents that he is a Member of the Appraisal Institute and has 
performed real estate appraisals in Idaho since 1976. The Appraiser 
represents that he has performed two Appraisals on behalf of the Plan. 
However, the Appraiser represents that he has no other relationship 
with any party in interest with respect to the Contribution, or its 
affiliates, that may influence the Appraiser's actions. The Appraiser 
represents that less than 1% of his revenue in 2014 was derived from 
Idaho Veneer.
    22. In the Appraisal, the Appraiser represents that he employed the 
sales comparison approach to valuing the property. The Appraiser 
explains that the sales comparison approach reflects the opinions of 
buyers and sellers of comparable properties in the local real estate 
market, evaluating certain benchmark value indicators such as price per 
square foot, price per unit, price per room, or an indication of value 
through some variant of the gross income multiplier. The Appraiser 
states that the sales comparison approach is usually the only 
applicable valuation method for unimproved real property.
    23. In the Appraisal, the Appraiser explains that he examined four 
land sales and one active listing that represent the most recent 
comparable land deals with similarities to the Property. The Appraiser 
represents that, after adjustments for differences in economic and 
physical conditions, the land sales indicate a range of value between 
$1.89 and $2.40 per square foot for the Property. The Appraiser 
concludes that this is the most probable transaction range in which a 
sale of the subject property would occur. The Appraiser also observes 
that location, configuration, access and utility are all considered 
good for light industrial or a mixed use development, although access 
and visibility from the freeway are less than ideal. Based on the

[[Page 44719]]

comparison, the Appraiser derived the current market value of the 
Property at $2.25 per square foot, or $1,157,000.
    24. The Appraiser then considered the effect that the Lease would 
have on the value of the Property. The Appraiser notes that the signs 
cover very little land area and are located close to the freeway in the 
least likely location to place buildings. As such, even if a 
prospective buyer wished to develop the Property, a prudent investor 
would continue leasing to Lamar. The Lease would add income to whatever 
other use might develop over time. Therefore, the Appraiser reasons, 
the minimum value added would be the present value income over the 
remaining Lease term. In calculating the present value, the Appraiser 
applied a discount rate of 8%, recognizing this income is virtually 
guaranteed for 7 more years. The Appraiser concluded that the added 
value from the Lease would be $92,000. As such, the Appraiser concluded 
that the total value of the Property, including the Lease, is 
$1,249,000.

Exemptive Relief Requested

    25. Idaho Veneer requests exemptive relief from certain of the 
prohibited transaction restrictions of section 406 of ERISA for the 
Contribution.\29\ Idaho Veneer represents that the Contribution 
violates section 406(a)(1)(A) of the Act, which prohibits the sale or 
exchange of property between a plan and a party in interest. Idaho 
Veneer notes that the Department concluded in Interpretive Bulletin 
2509.94-3 that an in-kind contribution of property by a plan sponsor to 
an employee pension plan constitutes a prohibited transaction in 
violation of section 406(a)(1)(A) of the Act. Furthermore, an employer 
whose employees participate in the plan is a ``party in interest'' 
under section 3(14) of the Act. As such, Idaho Veneer requests 
exemptive relief from section 406(a)(1)(A) of the Act for the transfer 
of the Property to the Plan through the Contribution.
---------------------------------------------------------------------------

    \29\ For purposes of this proposed exemption, references to the 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

    26. Idaho Veneer states that section 406(a)(1)(D) of the Act 
provides that any transfer to, or use by or for the benefit of, a party 
in interest or disqualified person, of any assets of the Plan is a 
prohibited transaction. Idaho Veneer states that, accordingly, the 
Contribution may also violate section 406(a)(1)(D) of the Act. Thus, 
Idaho Veneer requests exemptive relief from 406(a)(1)(D) of the Act.
    27. The Applicant further requests exemptive relief from sections 
406(b)(1) and 406(b)(2) of the Act. The Applicant represents that 
section 406(b)(1) of the Act prohibits a plan fiduciary from dealing 
with the assets of the plan in its own interest or for its own account 
(i.e., self-dealing). The Applicant represents that the current 
Trustees, other than the Independent Fiduciary, are full-time 
executives and are each \1/3\ owners of Idaho Veneer. As such, the 
proposed Contribution may constitute transactions in which the Trustees 
deal with Plan assets in a manner which benefits themselves by 
strengthening the financial prospects of Idaho Veneer. The Applicant 
states further that section 406(b)(2) of the Act prohibits a fiduciary 
from acting in its individual or any other capacity in any transaction 
involving the plan, on behalf of a party whose interests are adverse to 
the interests of the plan or the interests of its participants or 
beneficiaries. In acting on behalf of the Plan as Trustees and on 
behalf of Idaho Veneer as executives and owners in connection with the 
Contribution, the Trustees will have acted on behalf of a party whose 
interests are adverse to the interests of the Plan.

Statutory Findings

    28. Idaho Veneer represents that the proposed exemption is 
administratively feasible because the Contribution is a one-time 
transaction. The Applicant represents that Idaho Veneer has clear title 
to the Property and that it is authorized to transfer title to the 
Plan. Idaho Veneer further represents that the Independent Fiduciary 
will review and approve the terms of the Contribution on behalf of the 
Plan. Idaho Veneer represents that, once the Contribution is completed, 
the Plan Trustees will continue to seek a third-party buyer for the 
Property, unrelated to either the Plan or the parties in interest.
    29. Idaho Veneer represents that the Contribution is in the 
interests of the Plan and its participants and beneficiaries because 
the Plan will enjoy the potential appreciation of the Property. 
Furthermore, the Property has the potential for future development 
because of its prime location close to a major interstate highway. In 
addition, there will be no restrictions on the resale of the Property 
by the Plan, and the Trustees have stated that they intend to market 
its subsequent sale to third parties. The Applicant notes further that, 
as Idaho Veneer's current financial state precludes it from making its 
timely minimum required contributions, the Contribution currently 
provides the only means of providing additional assets to the Plan.
    30. Finally, Idaho Veneer represents that the Contribution is 
protective of the rights of the participants and beneficiaries because 
the Property will be contributed at the greater of (1) $1,249,000, or 
(2) the fair market value of the Property, as determined by a qualified 
independent appraiser updated on the date of the Contribution. 
Furthermore, the Independent Fiduciary was engaged by the Plan to 
represent the Plan's interests related to the Contribution. In this 
capacity, the Independent Fiduciary represents that it reviewed the 
terms of the Contribution and the Appraisal; approved of the 
methodology used in the Appraisal; and verified that the Appraiser's 
methodology was properly applied. The Independent Fiduciary will ensure 
compliance with the terms of the Contribution and the conditions for 
the proposed exemption, if granted. Idaho Veneer represents that all 
rights exercisable in connection with the Lease on the Property will be 
transferred to the Plan along with the Property. Idaho Veneer notes 
that the Plan will not incur any expenses with respect to the 
Contribution. In addition, the Property will represent no more than 20% 
of the fair market value of the total assets of the Plan at the time it 
is contributed to the Plan. Finally, Idaho Veneer represents that the 
Trustees will closely monitor the Plan's investment in the Property and 
will continue to solicit third-party buyers for the Property in order 
to facilitate an expeditious sale.

Summary

    31. In summary, in addition to the reasons described above, Idaho 
Veneer represents that the proposed exemption, if granted, satisfies 
the statutory criteria of section 408 of the Act for the following 
reasons:
    (a) The Property will be contributed to the Plan at the greater of 
either: (1) $1,249,000; or (2) its fair market value of the Property, 
as determined in the Appraisal that is updated on the date of the 
Contribution;
    (b) The Independent Fiduciary has been retained to represent the 
interests of the Plan and its participants and beneficiaries with 
respect to the Contribution, and in doing so: (1) Determined that the 
Contribution is in the interests of the Plan and of its participants 
and beneficiaries and is protective of the rights of participants and 
beneficiaries of the Plan; (2) reviewed the Appraisal to approve of the 
methodology used by the Appraiser and to verify that the Appraiser's 
methodology was properly applied; and (3) will ensure compliance with 
the terms of the Contribution and the

[[Page 44720]]

conditions for the proposed exemption, if granted;
    (c) All rights exercisable in connection with any existing Lease 
will be transferred to the Plan along with the Property;
    (d) As of the date of the Contribution, there are no adverse 
claims, liens or debts to be levied against the Property, and Idaho 
Veneer is not aware of any pending adverse claims, liens or debts to be 
levied against the Property;
    (e) On the date of the Contribution, and to the extent that the 
value of the Property as of the date of the Contribution is less than 
the cumulative cash contributions the Applicant would have been 
required to make to the Plan in the absence of the Contribution, the 
Applicant will make a cash contribution to the Plan equal to the 
difference between the value of the Property at the date of the 
Contribution and the outstanding required cash contributions; and
    (f) The Property represents no more than 20% of the fair market 
value of the total assets of the Plan at the time it is contributed to 
the Plan.

Notice to Interested Persons

    Notice of the proposed exemption will be given to all Interested 
Persons in the manner agreed to with the Department within 15 days of 
the publication of the notice of proposed exemption in the Federal 
Register, by first class U.S. mail to the last known address of all 
such individuals. Such notice will contain a copy of the notice of 
proposed exemption, as published in the Federal Register, and a 
supplemental statement, as required pursuant to 29 CFR 2570.43(a)(2). 
The supplemental statement will inform interested persons of their 
right to comment on and to request a hearing with respect to the 
pending exemption. Written comments and hearing requests are due within 
45 days of the publication of the notice of proposed exemption in the 
Federal Register.
    All comments will be made available to the public.
    Warning: If you submit a comment, EBSA recommends that you include 
your name and other contact information in the body of your comment, 
but DO NOT submit information that you consider to be confidential, or 
otherwise protected (such as Social Security number or an unlisted 
phone number) or confidential business information that you do not want 
publicly disclosed. All comments may be posted on the Internet and can 
be retrieved by most Internet search engines.

FOR FURTHER INFORMATION CONTACT: Scott Ness of the Department, 
telephone (202) 693-8561. (This is not a toll-free number.)

United States Steel and Carnegie Pension Fund (UCF or the Applicant), 
Located in New York, New York

[Application No. D-11835]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code, as amended, and in accordance with the procedures set forth in 29 
CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).\30\
---------------------------------------------------------------------------

    \30\ For purposes of this proposed exemption references to 
specific provisions of Title I of the Act, unless otherwise 
specified, refer also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

Section I. Covered Transactions
    If the proposed exemption is granted, the restrictions of section 
406(a)(1)(A) through (D) of the Act and the sanctions resulting from 
the application of section 4975 of the Code, by reason of section 
4975(c)(1)(A) through (D) of the Code, shall not apply, effective from 
January 1, 2015, through December 31, 2017, to a transaction between a 
party in interest with respect to Former U.S. Steel Related Plan(s), as 
defined in Section II(e), and an investment fund, as defined in Section 
II(k), in which such plans have an interest (the Fund), 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 (the 1940 Act) that has, as of the last day of its 
most recent fiscal year, total client assets, including in-house plan 
assets (the In-House Plan Assets), as defined in Section II(g), under 
its management and control in excess of $100,000,000 and equity, as 
defined in Section II(j), in excess of $1,000,000 (as measured yearly 
on UCF's most recent balance sheet prepared in accordance with 
generally accepted accounting principles); and provided UCF has 
acknowledged in a written management agreement that it is a fiduciary 
with respect to each Former U.S. Steel Related Plan that has retained 
it;
    (b) At the time of the transaction, as defined in Section II(m), 
the party in interest, as defined in Section II(h), or its affiliate, 
as defined in Section II(a), 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, 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 2006-16 (PTE 2006-16),\31\ 
relating to securities lending arrangements (as amended or superseded);
---------------------------------------------------------------------------

    \31\ 71 FR 63786, October 31, 2006.
---------------------------------------------------------------------------

    (2) Prohibited Transaction Exemption 83-1 (PTE 83-1),\32\ relating 
to acquisitions by plans of interests in mortgage pools (as amended or 
superseded), or
---------------------------------------------------------------------------

    \32\ 48 FR 895, January 7, 1983.
---------------------------------------------------------------------------

    (3) Prohibited Transaction Exemption 88-59 (PTE 88-59),\33\ 
relating to certain mortgage financing arrangements (as amended or 
superseded);
---------------------------------------------------------------------------

    \33\ 53 FR 24811, June 30, 1988.
---------------------------------------------------------------------------

    (d) The terms of the transaction are negotiated on behalf of the 
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 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 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 
II(b), 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 misuses 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,

[[Page 44721]]

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 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 II(i).
    (i) UCF adopts written policies and procedures that are designed to 
assure compliance with the conditions of this proposed 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 II(f) of this proposed 
exemption, on an annual basis. Following 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 proposed exemption, 
and with the objective requirements of this proposed exemption. The 
written report also shall contain the auditor's overall opinion 
regarding whether UCF's program as a whole complies with the policies 
and procedures adopted by UCF and the objective requirements of this 
proposed 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
    (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 proposed 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 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 are not maintained, or are not 
available for examination as required by Section I(k)(2), of this 
proposed exemption.
    (2) Except as provided in Section I(k)(3), 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), of this proposed 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 of Labor (the Department) or of the Internal Revenue 
Service;
    (B) Any fiduciary of any of the Former U.S. Steel Related Plans 
investing in the 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 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 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), of this proposed exemption shall be authorized to examine trade 
secrets of UCF or its affiliates or commercial or financial information 
which is privileged or confidential.
Section II. Definitions
    (a) For purposes of Section I(b) of this proposed 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, five 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) or a plan, with respect to the plan assets 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 I(b), 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), of this proposed 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 II(e) and (g), of this proposed 
exemption, an ``affiliate'' of UCF includes a member of either:
    (1) A controlled group of corporations, as defined in section

[[Page 44722]]

414(b) of the Code, of which United States Steel Corporation (U.S. 
Steel) is a member, or
    (2) A group of trades or business 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) or 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 Plan(s)'' mean:
    (1) The Marathon Petroleum Retirement Plan and the Speedway 
Retirement Plan (the Marathon Plans);
    (2) The Pension Plan of RMI Titanium Company, the Pension Plan of 
Eligible Employees of RMI Titanium Company, the Pension Plan for 
Eligible Salaried Employees of RMI Titanium Company, and the TRADCO 
Pension Plan;
    (3) Any plan the assets of which include or have included assets 
that were managed by UCF as an in-house asset manager, pursuant to 
Prohibited Transaction Class Exemption 96-23 (PTE 96-23) \34\ 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 
II(c) of this proposed exemption); and
---------------------------------------------------------------------------

    \34\ 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 II(c), of this proposed exemption; provided 
that:
    (A) The assets of the Add-On Plan are invested in a commingled fund 
(the Comingled Fund), as defined in Section II(n) of this proposed 
exemption, with the assets of a plan or plans, described in Section 
II(e)(1)-(3) of this proposed exemption 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 II(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 
II(e)(1)-(3) of this proposed 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 II(e), 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 II(e)(1)-(3) of this proposed 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 II(e) 
of this proposed exemption, the 25% Test will be determined without 
regard to the assets of such other plans in such Commingled Fund.
    (f) An ``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 proposed exemption (as 
described in Section II(f)(5)).
    (2) A test of a representative sample of the subject 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 proposed exemption and
    (ii) The objective requirements of the proposed exemption; and
    (B) To render an overall opinion regarding the level of compliance 
of UCF's program with this Section II(f)(2)(A)(i) and (ii) of the 
proposed exemption;
    (3) A determination as to whether UCF has satisfied the 
requirements of Section I(a), of this proposed 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 Section II(f) of this proposed exemption, the 
written policies and procedures must describe the following objective 
requirements of the proposed exemption and the steps adopted by UCF to 
assure compliance with each of these requirements:
    (A) The requirements of Section I(a) of this proposed exemption 
regarding registration under the 1940 Act, total assets under 
management, and equity;
    (B) The requirements of Section I(d) of this proposed 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) That any procedure for approval of the transaction meets the 
requirements of Section I(d);
    (D) The transaction is not entered into with any person who is 
excluded from relief under Section I(h)(1) of this proposed exemption 
or Section I(h)(2), to the extent that such person has

[[Page 44723]]

discretionary authority or control over the plan assets involved in the 
transaction, or Section I(h)(3); and
    (E) The transaction is not described in any of the class exemptions 
listed in Section I(c) of this proposed exemption.
    (g) ``In-house Plan Assets'' mean the assets of any plan maintained 
by an affiliate of UCF, as defined in Section II(c) of this proposed 
exemption, and with respect to which UCF has discretionary authority of 
control.
    (h) 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.
    (i) UCF is ``related'' to a party in interest for purposes of 
Section I(h)(3) of this proposed 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.
    (j) For purposes of Section I(a) of this proposed 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 proposed exemption, in accordance with 
generally accepted accounting principles.
    (k) ``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.
    (l) 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.
    (m) The ``time of the transaction'' 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 
effective date of this Final Exemption or a renewal that requires the 
consent of UCF occurs on or after such effective date and the 
requirements of this proposed 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 
authorizing 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 proposed 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 proposed 
exemption. In determining compliance with the conditions of this 
proposed exemption at the time that the transaction was entered into 
for purposes of the preceding sentence, Section I(h) of this proposed 
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.
    (n) ``Commingled Fund'' means a trust fund managed by UCF 
containing assets of some or all of the plans described in Section 
II(e)(1)-(3) of this proposed 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 II(e)(4) of this proposed exemption 
has 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.
    Effective Date: If granted, this proposed exemption will be 
effective for the period beginning on January 1, 2015, and ending on 
the day which is two (2) years from the effective date.
---------------------------------------------------------------------------

    \35\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
---------------------------------------------------------------------------

Summary of Facts and Representations \35\

UCF

    1. UCF, with principal offices in New York, New York, is a 
Pennsylvania non-profit non-stock membership corporation created in 
1914 to manage the pension plan of the United States Steel Corporation 
(the Original U.S. Steel) and an endowment fund created by Andrew 
Carnegie for the benefit of that company's employees. Being a non-stock 
membership corporation, UCF has no shareholders, but is governed 
currently by eight (8) members who serve as directors of UCF and manage 
UCF's affairs in that capacity. The majority of these members are 
employees of U.S. Steel. Vacancies in the membership are filled by the 
vote of the majority of the remaining members.
    UCF, a registered investment adviser under the 1940 Act, currently 
serves as the plan administrator and trustee of several employee 
benefit plans sponsored by United States Steel Corporation (U.S. 
Steel), the successor to the Original U.S. Steel, and by affiliates and 
joint ventures of U.S. Steel, as well as certain former affiliates of 
U.S. Steel. The Original U.S. Steel was for many years a part of the 
USX Corporation (USX).
    As of December 31, 2013, UCF held a total of $9.9 billion in assets 
under management. The majority of these assets, $6.3 billion, are held 
in a group trust and managed by UCF for the benefit of a defined 
benefit plan covering certain employees of U.S. Steel. With respect to 
the remainder of UCF's assets under management, approximately $1.1 
billion is managed for pension plans of U.S. Steel Canada, Inc., a 
wholly-owned foreign subsidiary of U.S. Steel,\36\ and approximately 
$1.0 billion is managed for certain funds used to provide the 
steelworkers with welfare benefits. UCF also manages $1.9 million in 
assets for the U.S. Steel Foundation, a tax-exempt organization not 
subject to the Act, $162 million for pension plans of RMI, $145 million 
in legacy investments for pension plans of Marathon Petroleum Company 
(Marathon Petroleum), and $214 million

[[Page 44724]]

for pension plans of USS/POSCO Industries (UPI).\37\
---------------------------------------------------------------------------

    \36\ In 2007, U.S. Steel acquired Stelco Inc., renaming the 
Canadian wholly-owned subsidiary as U.S. Steel Canada Inc. UCF took 
over management of the investment of assets and certain 
administrative functions of its defined benefit pension plans in 
August 2008.
    \37\ In 1986, U.S. Steel and Pohang Iron and Steel Company 
entered into a steel-producing joint venture in Pittsburg, 
California, named UPI. U.S. Steel owns 50 percent of UPI. UCF took 
over management of the investment of assets of the two (2) UPI 
pension plans in July 2012.
---------------------------------------------------------------------------

    Investments managed by UCF include domestic and international 
equity securities (both public and private), fixed-income securities, 
real estate, mineral interests, timber and investment trusts.

USX Spin-Offs and Divestitures

    2. The current U.S. Steel is the result of a series of spin-offs 
and divestitures by USX of several of its subsidiaries. The major 
divestitures relevant to this proposed exemption are RTI International 
Metals, Inc. (RTI), Marathon Oil Corporation (Marathon Oil), and 
Marathon Petroleum.
    Following these divestitures, UCF continued to manage the assets of 
plans sponsored by the spun-off entities. These plans include the 
Pension Plan of RMI Titanium Company, the Pension Plan of Eligible 
Employees of RMI Titanium Company, the Pension Plan for Eligible 
Employees of RMI Titanium Company, and the TRADCO Pension Plan (the RMI 
Plans), as well as the Marathon Petroleum Retirement Plan and the 
Speedway Retirement Plan (the Marathon Plans).

Reasons for Continuing To Use UCF

    3. The assets of both the RTI Plans and the Marathon Plans had been 
managed by UCF for several years since the separation of their 
respective sponsors from what is now U.S. Steel. The Applicant 
represents that, based on past experience with UCF, both companies were 
familiar and comfortable with UCF's investment management style, and 
believed it prudent to continue to have the assets of their plans 
invested with UCF. In addition, it is represented that because UCF is a 
non-profit organization, it is able to provide its services at a 
relatively low cost.

INHAM and QPAM Issues

    4. Prohibited Transaction 96-23 (PTE 96-23) (61 FR 15795, April 10, 
1996, as amended at 76 FR 18255, April 1, 2011), provides an exemption 
from certain of the prohibited transaction rules for the management of 
plan assets by an in-house asset manager (INHAM). Section IV(a) of the 
exemption specifically contemplates that an INHAM may be a ``membership 
nonprofit corporation a majority of whose members are officers or 
directors of . . . an employer or parent organization [of an 
employer].'' Because a majority of the members of UCF were officers or 
directors of USX, UCF relied on PTE 96-23 in connection with its 
management of the assets of the plans of USX and USX affiliates, 
including the RTI Plans and the Marathon Plans.
    Following the spin-off of the U.S. Steel Group from USX at the end 
of 2001, the majority of the UCF members are employees of U.S. Steel, 
and not employees of Marathon Oil. As Marathon Oil is no longer an 
affiliate of the parent organization whose officers and directors 
constitute a majority of UCF's members, UCF no longer qualifies as an 
INHAM with respect to the Marathon Plans. For the same reason, UCF also 
no longer qualifies as an INHAM with respect to the RTI Plans.
    Part I of Prohibited Transaction Exemption 84-14 (PTE 84-14) (49 FR 
9494, March 13, 1994, as amended at 67 FR 9483, March 1, 2002 and 75 FR 
38837, July 6, 2010), provides relief from section 406(a) of the Act 
for investment transactions between plans and parties in interest, 
provided that such transactions are negotiated by a qualified 
professional asset manager (QPAM), and provided further that certain 
conditions are satisfied.
    The Applicant represents that UCF meets substantially all of the 
requirements to qualify as a QPAM as to the RTI Plans and the Marathon 
Plans. In this regard, UCF is registered as an investment adviser under 
the 1940 Act. UCF also meets the capitalization requirement, pursuant 
to PTE 84-14 that a QPAM have either (a) equity in excess of 
$1,000,000, or (b) payment of all its liabilities unconditionally 
guaranteed by an affiliate, if the investment advisor and the affiliate 
together have equity in excess of $1,000,000. Further, UCF meets the 
assets under management test in Section VI(a) of PTE 84-14, which 
requires an investment adviser to have (as of the last day of its most 
recent fiscal year) total client assets under its management and 
control in excess of $85 million. In this regard, UCF represents that 
it currently manages assets of the RTI Plans and the Marathon Plan with 
a value in excess of $306 million.
    However, UCF represents that it is unable to rely on PTE 84-14, 
because it does not satisfy the ``diverse clientele test,'' as set 
forth in that class exemption. This test requires that the assets of a 
plan when combined with the assets of other plans maintained by the 
same employer (or its affiliates) managed by the QPAM must not 
represent more than 20 percent (20%) of the QPAM's total client assets. 
Although the assets of the RTI Plans and the Marathon Plan managed by 
UCF comprise less than 20 percent (20%) of the assets under UCF's 
management, the vast majority of the remaining assets consist of plan 
assets for which UCF acts as an INHAM which do not count as ``client 
assets'' for purposes of the ``diverse clientele test.'' Accordingly, 
UCF is unable to act as a QPAM with respect to the RTI Plan and the 
Marathon Plans.

Prior Relief

    5. Previously, UCF requested and was granted final authorization on 
February 15, 2003 (FAN 2003-03E) under the Department's expedited 
exemption procedure (Prohibited Transaction Exemption 96-62, 67 FR 
44622, July 3, 2002) or ``EXPRO.'' The authorization afforded relief 
similar to that provided in Part I of PTE 84-14 for transactions 
involving the assets of (a) the RTI Plans; (b) the Retirement Plan of 
Marathon Oil Company; \38\ (c) the Marathon Plans; (d) any plans, the 
assets of which include or have included assets that were managed by 
UCF as an INHAM, pursuant to PTE 96-23, 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; and (e) any Add-On Plan that is 
sponsored or becomes sponsored by an entity that was, but has ceased to 
be, an affiliate of UCF, provided certain conditions were satisfied. 
FAN 2003-03E was only made effective for five (5) years.
---------------------------------------------------------------------------

    \38\ It is represented that, effective July 1, 2011, the assets 
of the Retirement Plan of Marathon Oil Company were removed from the 
master trust and placed in a separate trust, which continued to be 
managed by UCF. However, UCF was terminated as trustee for this 
plan, effective September 30, 2012. Therefore, the Retirement Plan 
of Marathon Oil Company is not included in the current application.
---------------------------------------------------------------------------

    FAN 2003-03E required that an exemption audit be conducted on an 
``annual basis.'' The report for the exemption audit for the year 2003 
was not completed until November 15, 2007, more than three and a half 
years after the period being audited, and similar questions were raised 
for the years 2004-2006. UCF sought and was granted on September 1, 
2009, a final administrative exemption (PTE 2009-24). PTE 2009-24 (74 
FR 45294, September 1, 2009) provided retroactive relief for the period 
from February 15, 2003, through December 31, 2007, interim relief from 
January 1, 2008, to the effective date of prospective relief, and 
prospective relief beginning with the first day of the first fiscal 
year of UCF after the date of the publication of the final exemption in 
the Federal

[[Page 44725]]

Register and expiring five (5) years from that date. The relief 
provided by PTE 2009-24 expired on January 1, 2015.

Current Request

    6. On September 19, 2014, UCF submitted a request (E-00754) for an 
authorization, pursuant to EXPRO, seeking an extension of the relief 
provided by PTE 2009-24 for an additional period of five (5) years for 
the Former U.S. Steel Related Plan, as defined in Section II(e). On 
November 4, 2014, at the Department's request, UCF withdrew the EXPRO 
submission, and acknowledged that the request would be processed as an 
individual administrative exemption. Accordingly, UCF's request was 
assigned the case number ``D-11835'' and transferred to the 
administrative process, pursuant to 408(a) of the Act.

Retroactive and Prospective Relief

    7. The proposed exemption would permit UCF to continue managing the 
assets of the Former U.S. Steel Related Plans without change to the 
investment of those assets, which is represented to be in the interests 
of those plans. The relief provided by this proposed exemption is 
temporary in nature. Although UCF originally requested relief for a 
five (5) year period, this proposed exemption, if granted, will provide 
relief only for a two (2) year period. Accordingly, the proposed 
exemption is effective for the period commencing January 1, 2015, 
through December 31, 2017.

Merits of the Proposed Transaction

    8. It is represented that the proposed exemption is 
administratively feasible because it would not impose any 
administrative burdens on either UCF or the Department beyond those 
described in PTE 84-14 and PTE 96-23. The proposed exemption would also 
be effective only for two (2) years. Further, UCF would maintain and 
offer to make available certain records necessary to enable Federal 
agencies and other interested parties to determine whether the 
conditions of exemption, if granted, have been met.
    9. The Applicant represents that the proposed exemption is in the 
interests of the former U.S. Steel Related Plans and the participants 
and beneficiaries of such plans because it would allow UCF, on behalf 
of the Former U.S. Steel Related Plans, to negotiate transactions that 
might involve parties in interest where the transactions are in the 
best interests of the Former U.S. Steel Related Plans. Absent the 
exemption, the Former U.S. Steel Related Plans may be precluded from 
engaging in such transactions, even where the transactions offer 
favorable investment opportunities.
    10. The Applicant represents that the proposed exemption is 
protective of the rights of the participants and beneficiaries of the 
former U.S. Steel related Plans because it incorporates safeguards that 
the Department has previously found to be protective of the rights of 
participants and beneficiaries of affected plans, since UCF would be 
subjected to the requirements of PTE 84-14 and to certain procedural 
requirements of PTE 96-23. In this regard, UCF would be required to 
maintain written policies and procedures designed to ensure compliance 
with the exemption and to retain an independent auditor to evaluate 
UCF's compliance with such policies and procedures and with the 
objective requirements of the exemption. The auditor must report his 
findings on an annual basis.

Denial of Exemption and Resulting Hardships

    11. UCF represents that a denial of the proposed exemption could 
deprive UCF of the ability to provide a full range of investment 
opportunities to the Former U.S. Steel Related Plans without undue 
administrative costs. Absent authorization of the proposed exemption, 
UCF would be unable to offer the full range of investment opportunities 
to the Former U.S. Steel Related Plans, which could substantially 
reduce UCF's overall effectiveness as an investment manager with 
respect to the former U.S. Steel Related Plans.
    12. UCF represents that the proposed exemption is administratively 
feasible because it would not impose administrative burdens on the 
Department beyond those described in PTE 84-14 and PTE 96-23. UCF 
emphasizes that the proposed exemption will only be effective for five 
years and asserts that it will maintain and offer to make available 
certain records to enable government agencies and other interested 
parties to determine whether the conditions of the proposed exemption 
have been met.
    13. In summary, it is represented that the subject transactions 
satisfy the statutory criteria for an exemption under section 408(a) of 
the Act for the following reasons:
    (a) UCF is an investment adviser registered under the 1940 Act 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 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) UCF has acknowledged in a written management agreement that it 
is a fiduciary with respect to each of the Former U.S. Steel Related 
Plans that have retained it;
    (c) At the time of the transaction, the party in interest or its 
affiliate does not have the authority to appoint or terminate UCF as a 
manager of any of the plan assets of the Former U.S. Steel Related 
Plans, or to negotiate the terms of the management agreement with UCF 
(including renewals or modifications thereof) on behalf of the Former 
U.S. Steel Related Plans.
    (d) The transactions that are the subject of the proposed exemption 
are not described in PTE 2006-16 (as amended or superseded); PTE 83-1 
(as amended or superseded), or PTE 88-59 (as amended or superseded);
    (e) The terms of the transaction are negotiated on behalf of the 
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 Fund to enter into the transaction;
    (f) 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 Fund as the terms generally available in arm's-length 
transactions between unrelated parties;
    (g) Neither UCF nor any affiliate thereof, 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 any felony, as set forth in Section I(f) of this 
proposed exemption;
    (h) The transaction is not part of an agreement, arrangement, or 
understanding designed to benefit a party in interest;
    (i) The party in interest dealing with the Fund 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; and does not have discretionary authority or control with 
respect to the investment of plan assets involved in the transaction 
and does not

[[Page 44726]]

render investment advice (within the meaning of 29 CFR 2510.3-21(c)) 
with respect to those assets; and is neither UCF nor a person related 
to UCF;
    (j) UCF adopts written policies and procedures that are designed to 
assure compliance with the conditions of this proposed exemption;
    (k) 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 on an annual basis. Following 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 proposed exemption, 
and with the objective requirements of this proposed exemption. The 
written report also shall contain the auditor's overall opinion 
regarding whether UCF's program as a whole complies with the policies 
and procedures adopted by UCF and the objective requirements of this 
proposed 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
    (l) 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 Department, the IRS, 
and other persons to determine whether the conditions of this proposed 
exemption have been met.

Notice to Interested Persons

    UCF will furnish a copy of the notice of proposed exemption (the 
Notice) along with the supplemental statement described at 29 CFR 
2570.43(a)(2) to the investment committee or other appropriate 
fiduciaries of the RTI Plans and the Marathon Plans to inform them of 
the pendency of the proposed exemption, by hand delivery or by first 
class mail (return receipt requested) within fifteen (15) days of the 
publication of the Notice in the Federal Register. Comments and request 
for hearing are due on or before 45 days from the date of the 
publication of the Notice in the Federal Register. A copy of the final 
exemption, if granted, will also be provided to the Former U.S. Steel 
Related Plans.
    All comments will be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments may be posted on the Internet and can be retrieved by most 
Internet search engines.

FOR FURTHER INFORMATION CONTACT: Joseph Brennan of the Department 
telephone (202) 693-8456 (This is not a toll-free number.)

Roberts Supply, Inc. Profit Sharing Plan and Trust (the Plan), Located 
in Winter Park, FL

[Exemption Application No. D-11836]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Employee Retirement Income Security 
Act of 1974, as amended (ERISA or the Act), and section 4975(c)(2)of 
the Internal Revenue Code of 1986, as amended, (the Code), and in 
accordance with the procedures set forth in 29 CFR part 2570, subpart B 
(76 FR 66637, 66644, October 27, 2011).\39\ If the proposed exemption 
is granted, the restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 
406(b)(1), and 406(b)(2) of the Act, shall not apply to the cash sale 
(the Sale) by the Plan of a parcel of improved real property located at 
7457 Aloma Avenue, Winter Park, Florida (the Property) to Roberts 
Brothers Development, LLC (Roberts Development), a party in interest 
with respect to the Plan, provided that the following conditions have 
been met:
---------------------------------------------------------------------------

    \39\ For purposes of this proposed exemption, references to 
section 406 of ERISA should be read to refer as well to the 
corresponding provisions of section 4975 of the Code.
---------------------------------------------------------------------------

    (a) The Sale is a one-time transaction for cash;
    (b) The Plan receives an amount of cash in exchange for the 
Property, equal to the greater of $900,000, or the current fair market 
value of the Property as determined by a qualified independent 
appraiser (the Appraiser) in a written appraisal that is updated on the 
date the Sale is consummated;
    (c) The Plan incurs no real estate fees, commissions, or other 
expenses in connection with the Sale, aside from the appraisals; and
    (d) The terms and conditions of the Sale are at least as favorable 
to the Plan as those obtainable in an arms-length transaction with an 
unrelated third party.

Summary of Facts and Representations \40\
---------------------------------------------------------------------------

    \40\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
---------------------------------------------------------------------------

Background

    1. Roberts Supply, Inc. (Roberts Supply) is an outdoor power 
equipment distributor based in Winter Park, Florida. Roberts Supply is 
majority-owned by two brothers, Wayne P. Roberts and William H. 
Roberts, in equal proportions of 46.84% (Wayne P. Roberts and William 
H. Roberts, Jr. are hereinafter collectively referred to as the 
``Applicant''). The brothers are also owners of Roberts Brothers 
Development, LLC (Roberts Development), which was formed in May of 2008 
for the purpose of investing in commercial real estate. Roberts 
Development is currently owned 50% each by Wayne P. Roberts and his 
wife, Robin Roberts; and by William Roberts, Jr. and his wife, Mary 
Roberts. Currently, the LLC owns several small free standing buildings 
and two small office buildings.
    2. The Roberts Supply, Inc. Profit Sharing Plan and Trust (the 
Plan) is a frozen defined contribution profit sharing plan sponsored by 
Roberts Supply, with an original effective date of March 1, 1977. Under 
the Plan, the participants may receive employer contributions which are 
then invested by the board of trustees (the Board) on their behalf in 
investments which the Board considers suitable for a retirement plan. 
Plan participants are always 100% vested in the employer contributions 
received by the Plan on their behalf. Each participant's account value 
is based on a proportionate percentage of the total value of the Plan 
assets. According to the Applicant, as of November 6, 2014, the Plan 
had six participants \41\ and approximately $11,200,000 in total 
assets.
---------------------------------------------------------------------------

    \41\ The participants in the Plan include Wayne P. Roberts, 
William H. Roberts, Jr., Robin Roberts, Mary Roberts, and two 
unrelated individuals.
---------------------------------------------------------------------------

    3. The Applicant states that the current members of the Board (the 
Trustees) are Wayne P. Roberts and William H. Roberts, Jr. The Trustees 
are advised by Wells Fargo Advisors, LLC and Raymond James & 
Associates, Inc., who also manage the investment portfolios for the 
Plan.
    4. According to the Applicant, the Plan currently owns an office 
building located at 7457 Aloma Avenue, Winter Park, Florida, and an 
adjacent parking

[[Page 44727]]

lot located at 4920 Palm Avenue, Winter Park, Florida (together, the 
Property). The Property is a three-story, multi-tenant professional 
office building of approximately 13,212 square feet and an adjacent 
parking lot of 0.20 acres. The Applicant represents that the Property 
was initially purchased by the Plan in 1990 for a total initial 
purchase price of $557,000. The Property was transferred within the 
Plan to the Roberts Supply Profit Sharing, LLC in 2008. The LLC's 
assets include cash in a Wells Fargo checking account, and the subject 
Property.
    5. The Applicant represents that the purpose of the investment was 
to diversify Plan assets and provide income to the Plan. In this 
regard, during the course of the Plan holding the Property, the Plan 
leased it to various tenants, including one principal tenant. However, 
the principal tenant outgrew the space, and vacated in July 2014. The 
Plan currently leases space to one tenant and is attempting to secure 
new occupants.
    6. As provided by the Applicant, the income versus expenses for the 
previous five years was as follows:

----------------------------------------------------------------------------------------------------------------
                                       2010            2011            2012            2013            2014
----------------------------------------------------------------------------------------------------------------
Annual Income...................       94,195.31       94,239.15      106,704.58      107,170.06       66,373.60
Annual Expense..................       24,080.32       35,478.20       38,571.39       36,640.51       44,140.53
                                 -------------------------------------------------------------------------------
    Net Income..................       70,114.99       58,760.95       68,133.19       70,529.55       22,233.07
----------------------------------------------------------------------------------------------------------------

    The Applicant represents that these figures are representative of 
the income versus expenses over the course of the Plan holding the 
property.
    7. The Property was appraised by Central Florida Appraisal 
Consultants (Central Florida) in connection with this application for 
exemption in October 2014, at $900,000. The October 2014 appraisal is 
discussed in more detail below.
    8. The Applicant notes that the Plan does not own any real property 
aside from the Property. The Applicant represents that no parties in 
interest with respect to the Plan own or lease any property adjacent to 
the Property. In addition, the Applicant further represents that the 
Property has not been leased to, or used by, any party in interest with 
respect to the Plan since the date of acquisition.

The Sale

    9. The Applicant represents that they wish for the Plan to sell the 
Property as they intend to terminate the Plan and distribute the 
proceeds to the participants. The Applicant represents that because of 
the number of participants, a proportionate distribution of the 
Property is impractical. Further, because of the value of the Property, 
it would not be appropriate to distribute it to any one participant. 
According to the Applicant, the Plan has had the Property listed for 
sale since July 2013 and has not received any serious offers. The 
Applicant therefore seeks this proposed exemption, which, if granted, 
would permit the Plan to sell the Property to Roberts Development.
    10. Section 406(a)(1)(A) of the Act prohibits a fiduciary from 
causing a plan to engage in a transaction, if he knows or should know 
that such transaction constitutes a direct or indirect sale or 
exchange, or leasing, of any property between a plan and a party in 
interest. Section 406(a)(1)(D) of the Act prohibits a fiduciary from 
causing the Plan to engage in a transaction, if he knows or should know 
that such transaction constitutes a direct or indirect transfer to, or 
use by or for the benefit of, a party in interest, of any assets of the 
plan. The Applicant states that, because Roberts Development, jointly 
owned by Wayne P. Roberts and William H. Roberts, Jr., and their 
spouses, is a party in interest to the Plan under section 3(14)(G) of 
the Act, the Sale would constitute a prohibited transaction under 
sections 406(a)(1)(A) and (D) of the Act. Furthermore, section 
406(b)(1) of the Act prohibits a fiduciary from dealing with the assets 
of a plan in his own interest or for his own account. Section 406(b)(2) 
of the Act prohibits a fiduciary, in his individual or in any other 
capacity, from acting in any transaction involving the plan on behalf 
of a party (or representing a party) whose interests are adverse to the 
interests of the plan or the interests of its participants or 
beneficiaries. Because Wayne P. Roberts and William H. Roberts, Jr. 
have an interest in Roberts Development, the Sale represents a 
violation of section 406(b)(1) of the Act. Furthermore, by acting on 
both sides of the proposed Sale, the Trustees would violate section 
406(b)(2) of the Act. Therefore, the Applicant requests an 
administrative exemption from sections 406(a)(1)(A), 406(a)(1)(D), 
406(b)(1) and 406(b)(2) of the Act for the Sale.

The Appraisal

    11. Applicant represents that, in connection with the proposed 
Sale, the Plan arranged for a qualified, independent appraiser to 
conduct an appraisal of the Property. In its October 24, 2014, 
appraisal report (the Appraisal Report), Central Florida valued the 
Property at $900,000. The Applicant represents that the Property's 
decline in value from earlier appraisals can be attributed to a general 
decline in real estate values in the Orlando area as a result of the 
2008 recession.
    12. As provided in the Appraisal Report, Daniel L. Peele (the 
Appraiser) has worked as an appraiser for Central Florida since 1994, 
and is currently its president. He has over 25 years of full-time 
commercial real estate appraisal experience. Central Florida represents 
that the Appraiser is also certified by the State of Florida as a 
General Real Estate Appraiser, and is a Designated Member of the 
American Society of Appraisers. In the Appraisal Report, the Appraiser 
represents that there is no relationship between him and the Plan or 
Roberts Development. Furthermore, Central Florida represents and 
warrants that it meets the revenue test for a qualified independent 
appraiser for 2014, the year of the appraisal, as the fees received 
from the Plan were less than 2% of its annual revenues for income tax 
year 2013.
    13. The Appraisal Report provides that the Appraiser utilized the 
Sales Comparison and Income Capitalization approaches in arriving at 
his valuation for the Property. In using the Sales Comparison Approach, 
the Appraiser evaluated two recent sales of properties purchased for 
owner-occupancy. The Appraiser then adjusted those prices to account 
for financing terms, conditions of sale, market conditions, location, 
land area, property size, property condition and age, parking ratios, 
and other features. Based on his analysis, the Appraiser derived a 
value of $890,000 for the Property.
    14. In utilizing the Income Capitalization Approach, the Appraiser 
evaluated the leasing information from three comparable rentals within 
the Orlando marketplace. According to the Appraisal Report, the 
Appraiser adjusted those prices to account for differences in lease 
types, age, condition, size, and location. Based on

[[Page 44728]]

his analysis, the Appraiser derived a total value of $900,000 for the 
Property.
    15. The Appraisal Report provides that the Sales Comparison 
Approach provided a good indication of market value and was given 
primary weight, while the Income Approach was given secondary weight. 
Thus, the Appraiser arrived at his valuation of the Property at 
$900,000.

Statutory Findings

    16. The Applicant represents that the requested exemption is 
administratively feasible because the Sale is a one-time transaction 
for cash, which will not require continuous or future monitoring by the 
Department.
    The Applicant represents that the requested exemption is in the 
interest of the Plan and its participants and beneficiaries because it 
will facilitate the distribution of Plan assets to participants upon 
termination. As described earlier, the Applicant represents that a 
proportionate distribution of the Property is impractical; a 
distribution to any one participant of the whole Property is 
inappropriate; and the Applicant has been unable to sell the property 
to a third-party.
    The Applicant represents that the requested exemption is protective 
of the rights of the Plan and its participants and beneficiaries, 
because a qualified, independent appraiser was retained by the Plan to 
appraise the Property for the purpose of determining the purchase 
price. Furthermore, the Plan will pay no commissions, fees, or other 
charges in connection with the Sale, aside from the appraisals; and the 
Sale will be for the greater of $900,000, or the current fair market 
value.

Summary

    17. In summary, the Applicant represents that the proposed 
exemption satisfies the statutory criteria for an exemption under 
section 408(a) of the Act for the following reasons, among others:
    (a) The Sale will be a one-time transaction for cash;
    (b) The Plan receives an amount of cash in exchange for the 
Property, equal to the greater of $900,000, or the current fair market 
value of the Property as determined by a qualified independent 
appraiser (the Appraiser) in a written appraisal that is updated on the 
date the Sale is consummated;
    (c) The Plan will incur no real estate fees, commissions, or other 
expenses in connection with the Sale, aside from the appraisals; and
    (d) The terms and conditions of the Sale will be at least as 
favorable to the Plan as those obtainable in an arms-length transaction 
with an unrelated third party.

Notice to Interested Persons

    Notice of the proposed exemption will be given to all interested 
persons within 15 days of the publication of the notice of proposed 
exemption in the Federal Register, by first class U.S. mail to the last 
known address of all such individuals. Such notice will contain a copy 
of the notice of proposed exemption, as published in the Federal 
Register, and a supplemental statement, as required pursuant to 29 CFR 
2570.43(a)(2). The supplemental statement will inform interested 
persons of their right to comment on and to request a hearing with 
respect to the pending exemption. Written comments and hearing requests 
are due within 45 days of the publication of the notice of proposed 
exemption in the Federal Register. All comments will be made available 
to the public.
    Warning: If you submit a comment, EBSA recommends that you include 
your name and other contact information in the body of your comment, 
but DO NOT submit information that you consider to be confidential, or 
otherwise protected (such as Social Security number or an unlisted 
phone number) or confidential business information that you do not want 
publicly disclosed. All comments may be posted on the Internet and can 
be retrieved by most Internet search engines.

FOR FURTHER INFORMATION CONTACT: Erica R. Knox of the Department, 
telephone (202) 693-8644. (This is not a toll-free number.)

Red Wing Shoe Company Pension Plan for Hourly Employees, the Red Wing 
Shoe Company Retirement Plan and the S.B. Foot Tanning Company 
Employees' Pension Plan (Collectively, the Plans), Located in Red Wing, 
MN

[Application Nos. D-11763, D-11764, and D-11765]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Employee Retirement Income Security 
Act of 1974, as amended (the Act) and section 4975(c)(2) of the 
Internal Revenue Code of 1986, as amended (the Code) and in accordance 
with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 
66637, 66644, October 27, 2011).\42\
---------------------------------------------------------------------------

    \42\ For purposes of this proposed exemption, references to the 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

Section I. Covered Transactions
    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(B), 406(a)(1)(D), 406(a)(1)(E), 406(a)(2), 
406(b)(1), 406(b)(2), and 407(a) of the Act and the sanctions resulting 
from the application of section 4975(a) and (b) of the Code, by reason 
of section 4975(c)(1)(A), (B), (D) and (E) of the Code, shall not apply 
to: (1) The in-kind contribution (the Contribution) of shares (the 
Shares) in Red Wing International, Ltd. (RWI) to the Plans by Red Wing 
Shoe Company, Inc. (Red Wing or the Applicant), a party in interest 
with respect to the Plans; (2) the sale of the Shares by the Plans to 
Red Wing or an affiliate of Red Wing in connection with the exercise of 
the Terminal Put Option, the Call Option, or the Liquidity Put Option 
in accordance with the terms thereof; and (3) the deferred payment of: 
(i) The price of the Shares by Red Wing or its affiliate to the Plans 
in connection with the exercise of the Liquidity Put Option, the 
Terminal Put Option and the Call Option; and (ii) any Make-Whole 
Payments by Red Wing; provided that the conditions described in Section 
II below have been met.
Section II. Conditions
    (a) The Plans acquire the Shares solely through one or more in-kind 
Contributions by Red Wing;
    (b) An Independent Fiduciary acts on behalf of the Plans with 
respect to the acquisition, management and disposition of the Shares. 
Specifically, such Independent Fiduciary will: (1) Determine, prior to 
entering into any of the transactions described herein, that each such 
transaction, including the Contribution, is in the interest of the 
Plans; (2) negotiate and approve, on behalf of the Plans, the terms of 
the Contribution Agreements, and the terms of any of the transactions 
described herein; (3) manage the holding and sale of the Shares on 
behalf of the Plans, taking whatever actions it deems necessary to 
protect the rights of the Plans with respect to the Shares; and (4) 
ensure that all of the conditions of this exemption, if granted, are 
met;
    (c) An Independent Appraiser selected by the Independent Fiduciary 
determines the fair market value of the Shares contributed to each Plan 
as of the date of the Contribution, and for purposes of the Make-Whole 
Payments, the Terminal Put Option, the Liquidity Put Option, and the 
Call Option;
    (d) Immediately after the Contribution, the aggregate fair market

[[Page 44729]]

value of the Shares held by any Plan will represent no more than 10 
percent (10%) of the fair market value of such Plan's assets;
    (e) The Plans incur no fees, costs or other charges in connection 
with any of the transactions described herein;
    (f) For as long as the Plans hold the Shares, Red Wing makes the 
Periodic Make-Whole Payments and, if applicable, a Terminal Make-Whole 
Payment to the Plans in accordance with the terms thereof;
    (g) The Liquidity Put Option and the Terminal Put Option are 
exercisable by the Independent Fiduciary in its sole discretion in 
accordance with the terms thereof;
    (h) Each year, Red Wing will make a cash contribution to each Plan 
that is the greater of: (1) The minimum required contribution, as 
determined by section 430 of the Code; or (2) the lesser of: (i) The 
minimum required contribution, as determined by section 430 of the 
Code, as of the Plan's valuation date, except that the value of the 
assets will be reduced by an amount equal to the value of a Share, 
multiplied by the number of Shares in the Plan at the end of the Plan 
year, and (ii) the contribution that would result in the respective 
Plan attaining a 100% FTAP funded status (reflecting assets reduced by 
the credit balance) at the valuation date determining the contributions 
based on the value of all Plan assets, including the Shares. Any cash 
contributions in excess of the minimum required contribution described 
above will not be used to create additional prefunding credit balance;
    (i) The terms of any transactions between the Plans and Red Wing 
are no less favorable to the Plans than terms negotiated at arm's-
length under similar circumstances between unrelated third parties.
Section III. Definitions
    (a) ``affiliate'' means:
    (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; or
    (3) Any corporation or partnership of which such person is an 
officer, director, partner, or employee.
    For the purposes of clause (a)(1) above, the term ``control'' means 
the power to exercise a controlling influence over the management or 
policies of a person other than an individual.
    (b) ``Contribution Agreement'' means the written agreement 
governing the contribution of Shares to a Plan, by and between Red Wing 
and Vanguard Fiduciary Trust Company, to be executed prior to any 
Contribution to which such agreement relates.
    (c) ``Commission Agreement'' means the written Sales Agent Contract 
between Red Wing and RWI, to be executed prior to the Contributions, 
that governs the relationship between the parties and obligates RWI to 
act as a sales agent for Red Wing with respect to sales of certain Red 
Wing products for a ten-year term.
    (d) ``Make-Whole Payments'' means either Periodic Make-Whole 
Payments or Terminal Make-Whole Payments.
    (e) ``Periodic Make-Whole Payments'' means periodic payments made 
to each Plan every five years as follows:
    (1) Each periodic payment shall be made in an amount equal to the 
excess, if any, of:
    (A) A presumed 7.5% annual return, compounded annually, on the 
value of the Shares calculated from the beginning of the Holding 
Period, less
    (B) the sum of (i) the after-tax total return on such Shares (i.e., 
appreciation of the Shares' fair market value (whether realized or 
unrealized) plus after-tax dividend income), plus (ii) any Periodic 
Make-Whole Payments previously made to each Plan over the Holding 
Period with respect to such Shares.
    For purposes of calculating this reduction, any realized gains on 
the Shares will be credited with a presumed 7.5% annual return, 
compounded annually, calculated from the date the cash was received by 
the Plan. The after-tax dividend amounts and any previously paid 
Periodic Make-Whole Payments will be credited at the Plan's actual rate 
of return on its investments, compounded annually, calculated from the 
date the cash was received by the Plan.
    (2) A separate Periodic Make-Whole Payment will be calculated with 
respect to each Contribution to a Plan, every five years as of the 
anniversary date of such Contribution.
    (3) Each Periodic Make-Whole Payment will be due and payable to 
each Plan 60 days after the five-year anniversary date of the 
Contribution to which it relates. During the 60-day period, any unpaid 
portion of a Periodic Make-Whole Payment will accrue interest, 
compounded annually, at the average of Red Wing's regular corporate 
borrowing rate (but at a rate no less than LIBOR plus 1%), to be 
confirmed by the Independent Fiduciary, over the period from the five-
year anniversary date of the Contribution to which it relates to the 
date of payment.
    (4) The amount of any Make-whole Payment otherwise payable at any 
five-year term will be reduced (but not below zero) to the extent all 
or any portion of the Make-Whole Payment then payable would cause a 
Plan's ``funding target attainment percentage,'' as determined under 
section 430 of the Code and as calculated by its enrolled actuary and 
confirmed by the Independent Fiduciary immediately following such 
Contribution, to exceed: (A) 110%; or (B) if an amendment is adopted to 
terminate the Plan pursuant to the Plan's governing document, that 
Plan's termination liability as determined by its enrolled actuary and 
confirmed by the Independent Fiduciary.
    (f) ``Terminal Make-Whole Payment'' means a one-time cash 
contribution made to the Plans in the event of a Catastrophic Loss of 
Value of the Shares arising from a termination of the Commission 
Agreement between Red Wing and RWI, due and payable to each Plan 90 
days after the date of a written demand by the Independent Fiduciary 
(the demand date) as follows:
    (1) The Terminal Make-Whole Payment, if triggered, will terminate 
Red Wing's obligation to make Periodic Make-Whole Payments calculated 
as of any date that is after the Catastrophic Loss of Value.
    (2) The amount of the Terminal Make-Whole Payment will be 
calculated as the excess, if any, of:
    (A) The fair market value of the Shares as of the date of 
Contribution of such Shares to each Plan increased by a 7.5% annual 
growth rate, compounded annually, over the Holding Period, less
    (B) the sum of (i) the amount of the after-tax dividends on the 
Shares received during such Shares' Holding Period, and (ii) any 
Periodic Make-Whole Payments made to each Plan with respect to the 
Shares, further subtracted by
    (C) any previous realized gains on such Shares during their Holding 
Period.
    For purposes of calculating this reduction, any realized gains on 
the Shares will be credited with a presumed 7.5% annual return, 
compounded annually, calculated from the date the cash was received by 
the Plan. The after-tax dividend amounts and any previously paid 
Periodic Make-Whole Payments will be credited at the Plan's actual rate 
of return on its investments, compounded annually, calculated from the 
date the cash was received by the Plan.
    (3) The Terminal Make-Whole Payment will be further reduced by any

[[Page 44730]]

remaining fair market value of the Shares after the Catastrophic Loss 
of Value.
    (4) In the event of Catastrophic Loss of Value, the Shares held by 
a Plan will be subject to a put option (the Terminal Put Option) 
exercisable by the Independent Fiduciary to sell the Shares back to Red 
Wing at the Shares' fair market value as of the demand date as 
determined by the Independent Fiduciary; provided that, if the fair 
market value of the Shares is equal to $0.00 s a result of the 
Catastrophic Loss of Value, the Shares shall be transferred to Red Wing 
upon payment of the Terminal Make-Whole Payment.
    (5) The Terminal Make-Whole Payment, as well as the exercise price 
on the Terminal Put Option (if any) subsequently exercised by the 
Independent Fiduciary, can be paid in five equal annual installments. 
Any unpaid portion of the Terminal Make-Whole Payment or exercise price 
of the Terminal Put Option will accrue interest (compounded annually as 
of the anniversary of the demand date or the exercise date of the 
Terminal Put Option, as applicable) at the average of Red Wing's 
regular corporate borrowing rate (but at a rate no less than LIBOR plus 
1%), to be confirmed by the Independent Fiduciary, over each 12-month 
period.
    (6) The amount of any Terminal Make-Whole Payment will also be 
reduced (but not below zero) to the extent all or any portion of the 
Terminal Make-Whole Payment then payable would cause a Plan's ``funding 
target attainment percentage'' as determined under Code section 430, 
and as calculated by its enrolled actuary to exceed: (A) 110%; or (B) 
if an amendment is adopted to terminate the Plan pursuant to the Plan's 
governing document, that Plan's termination liability as determined by 
its enrolled actuary and confirmed by the Independent Fiduciary).
    (g) ``Holding Period'' means, for purposes of calculating the Make-
Whole Payments with respect to certain Shares, the period of time over 
which each Plan has held such Shares, beginning from the date such 
Shares were received by each Plan through the date of calculation of 
such Periodic Make-Whole Payment.
    (h) ``Catastrophic Loss of Value'' means, for purposes of 
triggering the Terminal Make-Whole Payment, any diminution of the value 
of the Shares held by the Plans arising from a termination of the 
Commission Agreement.
    (i) ``Liquidity Put Option'' means a put option granting each Plan 
the right to require Red Wing to purchase some or all of the Shares 
from the Plan at the Shares' fair market value as of the date of 
exercise, payable in cash no later than 60 days following the date of 
exercise. During this 60-day period, any unpaid portion of the purchase 
price for the Shares payable by Red Wing in connection with the 
exercise of the Liquidity Put Option will accrue interest, compounded 
annually, at the average of Red Wing's regular corporate borrowing rate 
(but at a rate no less than LIBOR plus 1%), to be confirmed by the 
Independent Fiduciary, over the period from the date of exercise of the 
Liquidity Put Option to the date of payment of such unpaid portion of 
the purchase price. The Liquidity Put Option is exercisable as follows:
    (1) For a period of 60 days leading up to a Change of Control, the 
Liquidity Put Option will be exercisable by the Independent Fiduciary 
on behalf of the Plans; and
    (2) Upon a Plan becoming entitled to receive a Periodic Make-Whole 
Payment, the Independent Fiduciary may exercise the Liquidity Put 
Option on behalf of the Plan with respect to as much as 20% of the 
original number of Shares to which the Periodic Make-Whole Payment 
relates, no later than 45 days following the five-year anniversary date 
of the Contribution, as follows:
    (A) If the Plan elects to exercise its Liquidity Put Option with 
respect to any of the Shares to which the Periodic Make-Whole Payment 
relates in the first year in which the Liquidity Put Option is 
exercisable, the Plan will be able to exercise a Liquidity Put Option 
for as much as an additional 20% of the original number of Shares to 
which the Periodic Make-Whole Payment relates upon each of the four 
succeeding anniversaries of the Contribution to the Plan, but no later 
than 45 days following each such anniversary; and
    (B) The exercise of a Liquidity Put Option for any of the Shares to 
which the Periodic Make-Whole Payment applies in the first year that 
the Liquidity Put Option is exercisable will eliminate the Plan's right 
to that Periodic Make-Whole Payment with respect to all Shares to which 
the Periodic Make-Whole Payment in that year relates, but any Shares 
for which the Liquidity Put Option is not exercised will continue to be 
eligible for future Periodic Make-Whole Payments.
    (3) Upon the occurrence of the tenth anniversary (the Anniversary 
Date) of a Contribution to a Plan, the Independent Fiduciary on behalf 
of the Plan will be able to exercise the Liquidity Put Option with 
respect to as much as 20% of the number of Shares to which such 
Contribution relates, in each year following the Anniversary Date.
    (4) Upon the effective date of a Plan's termination and at any time 
until the final distribution date of the Plan's assets, the Plan will 
have the right to exercise the Liquidity Put Option for any or all 
Shares remaining in the Plan, and Red Wing will have the right to 
exercise the Call Option.
    (j) ``Call Option'' means Red Wing's right to cause a Plan to sell 
any or all remaining Shares held in the Plan to Red Wing, exercisable 
upon the effective date of a Plan's termination, in exchange for cash 
at the Shares' fair market value on the date of exercise. The Plan will 
transfer its Shares to Red Wing and Red Wing will pay cash for such 
Shares no later than 60 days after Red Wing exercises the Call Option. 
During this 60-day period, any unpaid portion of the purchase price for 
the Shares payable by Red Wing in connection with its exercise of the 
Call Option will accrue interest, compounded annually, at the average 
of Red Wing's regular corporate borrowing rate (but at a rate no less 
than LIBOR plus 1%), to be confirmed by the Independent Fiduciary.
    (k) ``Change of Control'' means, for purposes of triggering the 
Liquidity Put Option, the sale or other transfer for value of all or 
substantially all of Red Wing's assets in a transaction or series of 
related transactions to a Third Party purchaser, or a transaction or 
series of transactions in which a Third Party acquires more than 50% of 
the voting power of Red Wing's outstanding shares. A ``Third Party'' 
for this purpose is an individual or entity other than: (1) (i) A 
current shareholder of Red Wing, or a spouse or issue of such 
shareholder, (ii) a trust created for the shareholder, his spouse, or 
his issue, or (iii) a shareholder of a shareholder; or (2) an entity 
controlled by an individual or entity described in (1), or an entity 
under common control with such an entity.
    (l) ``Independent Fiduciary'' means Gallagher Fiduciary Advisors, 
LLC (GFA) or another fiduciary of the Plans who: (1) Is independent or 
unrelated to Red Wing and its affiliates, and has the appropriate 
training, experience, and facilities to act on behalf of the Plan 
regarding the covered transactions in accordance with the fiduciary 
duties and responsibilities prescribed by ERISA (including, if 
necessary, the responsibility to seek the counsel of knowledgeable 
advisors to assist in its compliance with ERISA); and (2) if relevant, 
succeeds GFA in its capacity as Independent Fiduciary to the Plans in 
connection with the transactions

[[Page 44731]]

described herein. The Independent Fiduciary will not be deemed to be 
independent of and unrelated to Red Wing and its affiliates if: (i) 
Such Independent Fiduciary directly or indirectly controls, is 
controlled by or is under common control, with Red Wing and its 
affiliates; (ii) such Independent Fiduciary directly or indirectly 
receives any compensation or other consideration in connection with any 
transaction described in this proposed exemption other than for acting 
as Independent Fiduciary in connection with the transactions described 
herein, provided that the amount or payment of such compensation is not 
contingent upon, or in any way affected by, the Independent Fiduciary's 
ultimate decision; and (iii) the annual gross revenue received by the 
Independent Fiduciary, during any year of its engagement, from Red Wing 
and its affiliates, exceeds two percent (2%) of the Independent 
Fiduciary's annual gross revenue from all sources (for federal income 
tax purposes) for is prior tax year.
    (m) ``Independent Appraiser'' means an individual or entity meeting 
the definition of a ``Qualified Independent Appraiser'' under 
Department Regulation 25 CFR 2570.31(i) retained to determine, on 
behalf of the Plans, the fair market value of the Shares as of the date 
of the Contributions and while the Shares are held on behalf of the 
Plans, and may be the Independent Fiduciary, provided it satisfies the 
definition of Independent Appraiser herein.

Summary of Facts and Representations \43\
---------------------------------------------------------------------------

    \43\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
---------------------------------------------------------------------------

Background

    1. Red Wing Shoe Company, Inc. (Red Wing or the Applicant) is a 
privately-held corporation based in Red Wing, Minnesota that produces 
footwear sold to both consumer and industrial customers in the United 
States and in more than 100 countries around the world. Five members of 
the Sweasy family own the largest percentages of Red Wing stock, either 
in their individual capacities or within trusts established by or for 
the benefit of these individuals. The Applicant operates domestic 
manufacturing facilities in Red Wing, Minnesota; Potosi, Missouri; and 
Danville, Kentucky. The Applicant also sources products from contract 
manufacturers in China and the Dominican Republic, as well as owning 
and operating international subsidiaries in Japan and the Netherlands.
    The Applicant also owns and operates S.B. Foot Tanning Company 
based in Red Wing, Minnesota. S.B. Foot Tanning Company finishes and 
supplies leather for shoes, apparel, furniture and other applications. 
In addition to the shoe business, the Applicant's wholly-owned 
subsidiary Red Wing Hotel Corporation owns and operates The St. James 
Hotel located in downtown Red Wing, Minnesota. The Applicant earned 
revenues of $625 million during fiscal year 2013, representing a 10% 
growth over the reporting period in 2012.
    2. The Applicant represents that it owns approximately 38% of the 
outstanding shares (the Shares) of Red Wing International, Ltd. (RWI), 
a Delaware corporation incorporated in 1982 that operates as a Domestic 
International Sales Corporation (DISC). The Applicant explains that a 
DISC is a corporation whose ``qualified export revenues'' are generally 
exempt from federal income taxes. According to the Applicant, RWI 
operates under the provisions of Sections 991 through 997 of the Code, 
which were enacted by Congress to encourage and subsidize the export of 
products made in the United States. The Applicant represents that there 
are currently 39,272 issued and outstanding Shares. The Applicant 
represents further that all of the current shareholders of RWI are also 
shareholders of the Applicant.
    3. The Applicant represents that RWI contracts annually with Red 
Wing to be its commissioned agent for the sale and export of the 
Applicant's qualifying domestically-produced goods. The Applicant 
represents that Red Wing currently maintains a ``Sales Agent Contract'' 
with RWI (the Commission Agreement), which is terminable at will by 
either party, that governs the relationship between the parties and 
obligates RWI to act as a sales agent for Red Wing with respect to 
certain sales of Red Wing products.\44\ The Applicant represents that 
Red Wing has been RWI's only client since the DISC's incorporation. The 
Applicant represents that it pays RWI a tax-deductible sales commission 
for these services. RWI, in turn, pays no income tax on its 
``qualifying export commissions.''
---------------------------------------------------------------------------

    \44\ Under the Commission Agreement, these sales generally 
include: (1) A sale to a purchaser outside of the United States 
including delivery to a carrier or freight forwarder for delivery 
outside of the United States, regardless of the point or place of 
passage of title, whether to a United States or foreign purchaser; 
(2) a sale to an entity unrelated to Red Wing or RWI that qualifies 
as a DISC; or (3) a sale in which delivery occurs within the United 
States, provided that after the sale there is no further sale, use, 
assembly or other processing within the United States, and the 
property is delivered outside of the United States within one year 
after the sale.
---------------------------------------------------------------------------

    4. The Applicant represents that RWI's income (which it derives 
solely from these sales commissions) is then distributed to RWI's 
shareholders as dividends and is taxed against the shareholders at 
their applicable dividend tax rate. The Applicant represents that its 
international revenues in 2013 increased 11% to $150.4 million, 
representing 24% of the Applicant's consolidated revenues. Furthermore, 
RWI's qualifying DISC revenues decreased 7% to $63 million. The RWI 
dividend payment to shareholders was $157.40 per share in 2013, a 
decrease of 5.9% from 2012.
    5. Because neither the common stock of Red Wing nor the Shares are 
publically traded, they are valued at the conclusion of each fiscal 
year by an independent valuation firm, Duff & Phelps Corporation (Duff 
& Phelps). The Applicant represents that the independent valuation 
completed by Duff & Phelps for fiscal year 2013, using the discounted 
cash flow valuation method, valued the Shares at $2,050 per share, a 
10.6% increase over the 2012 value.

The Plans

    6. The Applicant represents that the three pension plans involved 
in the proposed transaction are: (1) The Red Wing Shoe Company Pension 
Plan for Hourly Wage Employees (the Hourly Plan); (2) the Red Wing Shoe 
Company Retirement Plan (the Salary Plan); and (3) the S.B. Foot 
Tanning Company Employees' Pension Plan (the S.B. Foot Plan) 
(collectively, the Plans).
    7. Red Wing is the sponsor of the Hourly Plan and the Salary Plan 
with the authority, either directly or through a committee of officers 
or employees (the Pension Committee), to appoint and remove trustees 
and investment managers. The Applicant is the plan administrator and 
the named fiduciary of the Hourly Plan and the Salary Plan for purposes 
of section 402(a) of the Act. The Applicant represents that it retains 
the authority to amend and terminate the Hourly Plan and the Salary 
Plan, subject to collective bargaining limitations, and to transfer 
assets and liabilities to and from the Plans.
    8. The Applicant represents that other fiduciaries include Vanguard 
Fiduciary Trust Company (Vanguard), Vanguard Institutional Advisory 
Services, certain employees of the Applicant and its affiliates, and 
the Pension Committee as it relates to the Hourly Plan and the Salary 
Plan. The Applicant states that Red Wing, as the sponsor of the Hourly

[[Page 44732]]

Plan and the Salary Plan, by and through the Pension Committee, 
generally has discretion with respect to the investments of those 
particular Plans' assets.
    9. The Applicant represents that the Hourly Plan covers 
substantially all employees who are paid on an hourly rate basis or 
whose compensation is determined under a collective bargaining 
agreement with the United Food and Commercial Workers Boot & Shoe Union 
Local 527. Accrual of benefits under the Hourly Plan was frozen in 
2004, and the Hourly Plan was frozen to new participants in 2011.
    10. The Applicant represents that the Salary Plan covers 
substantially all of the Applicant's salaried employees and sales 
personnel (other than employees at the Danville, Kentucky, and Potosi, 
Missouri facilities). The Salary Plan also covers a small group of 
employees and former employees whose employment with the Applicant is 
or was covered by a collective bargaining agreement with the 
International Brotherhood of Teamsters Warehousing Employees Local 
Union 160.
    11. Red Wing represents that it has made timely minimum funding 
contributions to the Hourly Plan and the Salary Plan and it intends to 
continue to do so. The Applicant represents that contributions required 
to fund the Hourly Plan and the Salary Plan are made to, and held under 
separate trust agreements for, each Plan. Vanguard is the trustee of 
the Hourly Plan and the Salary Plan's trust. Red Wing represents that, 
as of the most recent valuation, the Hourly Plan is 89.8% funded, and 
the Salary Plan is 95.7% funded.\45\
---------------------------------------------------------------------------

    \45\ The Applicant notes that the funding valuation results 
prepared by the enrolled actuary were made utilizing interest rate 
assumptions provided under the Moving Ahead for Progress in the 21st 
Century Act (MAP-21), legislation enacted on July 6, 2012, that, 
among other things, changed the interest rate that pension plans use 
to measure their liabilities.
---------------------------------------------------------------------------

    12. S.B. Foot Tanning Company is the sponsor of the S.B. Foot Plan 
with the authority to appoint and remove trustees and investment 
managers. S.B. Foot Tanning Company is also the plan administrator and 
a named fiduciary of S.B. Foot Plan for purposes of section 402(a) of 
the Act, and retains the authority to amend and terminate the S.B. Foot 
Plan and to transfer assets and liabilities to and from the Plan. 
Furthermore, S.B. Foot Tanning Company generally has discretion with 
respect to the investment of the S.B. Foot Plan's assets.
    13. The Applicant represents that the S.B. Foot Plan covers 
substantially all salaried and hourly employees of S.B. Foot Tanning 
Company. Amendments to the Salary Plan and S.B. Foot Plan in June 2008 
froze those Plans to new entrants, though all participants in both 
Plans at the time of the freeze continue to accrue benefits.
    14. The Applicant represents that S.B. Foot Tanning Company has 
made timely minimum funding contributions to the S.B. Foot Plan and it 
intends to continue to do so. The Applicant represents that 
contributions required to fund the S.B. Foot Plan are made to and held 
under separate trust agreements for the Plan. Vanguard is also the 
trustee of the S.B. Foot Plan's trust. As of the most recent valuation, 
the S.B. Foot Plan is 98% funded.

The In-Kind Contributions

    15. The Applicant seeks to make one or more in-kind contributions 
(individually, the Contribution, and collectively, the Contributions) 
of all or a portion of the Shares it owns to the Plans. The Applicant 
represents that, if this proposed exemption is granted, the value of 
Shares contributed to any Plan, when added to the Shares previously 
contributed to that Plan by the Applicant, will not exceed 10% of the 
aggregate fair market value of the respective Plan's assets as of the 
date of any Contribution.
    16. The Applicant represents that for each Plan year in which a 
Plan holds Shares at the end of the Plan year, Red Wing will continue 
to make a cash contribution to each Plan equal to the greater of: (1) 
The minimum required contribution, as determined by section 430 of the 
Code; or (2) the lesser of: (i) The minimum required contribution, as 
determined by section 430 of the Code, as of the Plan's valuation date, 
except that the value of the assets will be reduced by an amount equal 
to the value of a Share, multiplied by the number of Shares in the Plan 
at the end of the Plan year, and (ii) the contribution that would 
result in the respective Plan attaining a 100% FTAP funded status 
(reflecting assets reduced by the credit balance) at the valuation date 
determining the contributions based on the value of all Plan assets, 
including the Shares. The Applicant represents that any cash 
contributions in excess of the minimum required contribution described 
in (1) above will not be used to create additional prefunding credit 
balance.
    17. The Applicant represents that the proposed transactions would 
benefit the Plans and their participants because the current value of 
the Shares would improve each Plan's funded status over time, and the 
expected cash flows from dividends paid on the Shares would provide 
additional liquidity each year. The Applicant represents that, while 
the expected investment return used by the Plans' actuary is 
approximately 7.0%, the average dividend yield on the Shares from 2006 
through 2013 was approximately 11% per year.
    18. The Applicant represents that, although dividends paid to the 
Plans by RWI would be subject to the unrelated business income tax, the 
net after-tax yield to the Plans based on the prior 6-year average 
dividend yield would be approximately 8.76%, applying the 20% income 
tax rate for qualified dividends. Thus, the Applicant represents, the 
anticipated after-tax cash dividends alone will likely equal or exceed 
each Plan's actuarially assumed return on investments without any 
appreciation of the Shares. The Applicant represents that this cash 
liquidity will enhance each Plan's ability to satisfy its benefit 
obligations as they become due without the necessity for liquidating 
other investments.
    19. The Applicant represents that, based on comparative funding 
projections prepared by Mercer, the Plans' actuary, the Contributions 
will increase each Plan's funded status, even assuming no appreciation 
in the fair market value of the Shares over the time period covered by 
the projections other than a conservative after-tax cash dividend 
amount of 7.0% consistent with the growth assumption applicable to the 
Plans' other investments. The Applicant represents that the actuarial 
projections assume the Applicant or an affiliate will continue to make 
minimum required contributions to each Plan each year in an amount not 
less than the Plan's minimum required contributions under section 303 
of ERISA and section 430 of the Code. For this purpose, the fair market 
value of the Shares held by each Plan each year after the initial 
Contribution will be taken into account for purposes of determining the 
difference between the Plans' benefit obligations and assets.
    20. The Applicant states that, under the terms of the ``Agreement 
Between Red Wing Shoe Company, Inc. and Vanguard Fiduciary Trust 
Company regarding Contribution of Property'' entered into between Red 
Wing and Vanguard in connection with the Contributions to each Plan 
(collectively, the Contribution Agreements), to be executed prior to 
the Contributions, Gallagher Fiduciary Advisors, LLC (GFA), in its 
capacity as qualified, independent fiduciary (the Independent 
Fiduciary), will make all decisions on behalf of each Plan and each 
Plan's trust regarding the acceptance of the Contributions, engage a 
qualified, independent appraiser (the Appraiser)

[[Page 44733]]

to determine the value of the Shares held by each Plan's trust, and 
make such other decisions with regard to the Shares as are contemplated 
by the proposed transaction.

Value Protection Features

    21. The Applicant represents that the proposed transactions will be 
structured to ensure the Plans' continued protection against the risks 
of illiquidity of the Shares and adverse business conditions that could 
impair their value. The value protection features negotiated by GFA 
will consist of the following: (a) A new Commission Agreement with a 
ten-year term; (b) periodic cash payments (Periodic Make-Whole 
Payments) by the Applicant to the Plans for as long as the Plans hold 
the Shares; (c) a terminal cash payment (Terminal Make-Whole Payment) 
from the Applicant to the Plans in the event of the termination of the 
Commission Agreement; and (d) a put option given to the Plans (the 
Liquidity Put Option), which gives the Plans the right to require Red 
Wing to purchase some or all of the Shares from the Plan. The Applicant 
represents that GFA will negotiate on behalf of the Plans the formal, 
binding instruments documenting the transactions, including the value 
protection features described in more detail below.
    22. New Commission Agreement. The Applicant represents that a new 
Commission Agreement between Red Wing and RWI will be entered into, 
amending and superseding the existing Commission Agreement to provide 
for a 10-year term certain. In the event of a breach of the 10-year 
term, the Plans will receive Terminal Make-Whole Payments from Red Wing 
and may exercise a put option for the remaining value of the Shares 
(the Terminal Put Option), as described in further detail below.
    23. Periodic Make-Whole Payments. Red Wing may be required to make 
a Periodic Make-Whole Payment every five years as of the anniversary 
date of each Contribution. Each Periodic Make-Whole Payment will be due 
and payable to each Plan 60 days after the applicable anniversary date. 
The Applicant represents that any unpaid portion of a Periodic Make-
Whole Payment will accrue interest, compounded annually, at the average 
of Red Wing's regular corporate borrowing rate (but at a rate no less 
than LIBOR plus 1%) over the period from the applicable anniversary 
date to the date of payment. The Applicant represents that the 
Independent Fiduciary will verify Red Wing's corporate borrowing rate. 
A separate Periodic Make-Whole Payment will be calculated with respect 
to each Contribution to a Plan, every five years as of the anniversary 
date of such Contribution.
    24. The Applicant states that the amount of each Periodic Make-
Whole Payment with respect to a Contribution of Shares will be 
calculated as the excess, if any, of a presumed 7.5% annual return, to 
be compounded annually, on the value of the Shares calculated from the 
beginning of the period of time over which a Plan has held such Shares 
(the Holding Period), minus the sum of: (1) the after-tax total return 
on the Shares (i.e., the appreciation of the Shares' fair market value 
(whether realized or unrealized) plus after-tax dividend income), and 
(2) any Periodic Make-Whole Payments previously made to the Plan with 
respect to such Shares over the Holding Period. The Applicant states 
that, for purposes of calculating this reduction, any realized gains on 
the Shares will be credited with a presumed 7.5% annual return, 
compounded annually, calculated from the date the cash was received by 
the Plan. Furthermore, the after-tax dividend amounts and any 
previously paid Periodic Make-Whole Payments will be credited at the 
Plan's actual rate of return on its investments, compounded annually, 
calculated from the date the cash was received by the Plan.
    25. The Applicant states that the amount of any Periodic Make-Whole 
Payment will be further reduced (but not below zero) to the extent all 
or any portion of the Make-Whole Payment then payable would cause a 
Plan's ``funding target attainment percentage,'' as determined under 
section 430 of the Code and as calculated by its enrolled actuary 
immediately following such contribution, to exceed 110% (or if an 
amendment is adopted to terminate the Plan pursuant to the Plan's 
governing document, that Plan's termination liability as determined by 
its enrolled actuary and confirmed by the Independent Fiduciary).
    26. Terminal Make-Whole Payment. Red Wing will be required to make 
a one-time cash Terminal Make-Whole Payment to each Plan in the event 
of the Shares' loss of value arising from a termination of the 
Commission Agreement (Catastrophic Loss), which is due and payable to 
each Plan 90 days after the date of a written demand by the Independent 
Fiduciary (the demand date). The Applicant represents that the Terminal 
Make-Whole Payment, if triggered, will terminate Red Wing's obligation 
to make future Periodic Make-Whole Payments calculated as of any date 
that is after the Catastrophic Loss.
    27. The Applicant represents that the amount of the Terminal Make-
Whole Payment will be calculated as the excess, if any, of: The fair 
market value of the Shares as of the date of the respective 
Contribution to each Plan increased by a 7.5% annual growth rate, 
compounded annually, over the Holding Period, minus the sum of: (1) The 
amount of the after-tax dividends on the Shares received during the 
Holding Period, and (2) any Periodic Make-Whole Payments made to each 
Plan with respect to such Shares, and (3) any previous realized gains 
on such Shares during their Holding Period. The Applicant notes that, 
for purposes of calculating this reduction, any realized gains on the 
Shares will be credited with a presumed 7.5% annual return, compounded 
annually, calculated from the date the cash was received by the Plan. 
Furthermore, the after-tax dividend amounts and any previously paid 
Periodic Make-Whole Payments will be credited at the Plan's actual rate 
of return on its investments, compounded annually, calculated from the 
date the cash was received by the Plan. The Applicant represents that 
the Terminal Make-Whole Payment will be further reduced by any 
remaining fair market value of the Shares after the Catastrophic Loss.
    28. The Applicant represents that the Shares will also be subject 
to the Terminal Put Option, exercisable by the Independent Fiduciary in 
the event of a Catastrophic Loss, to sell the Shares back to Red Wing 
at the Shares' fair market value as of the date of exercise. If the 
fair market value of the Shares is zero at the time of the Catastrophic 
Loss, the Shares will be transferred to Red Wing upon payment of the 
Terminal Make-Whole Payment.
    29. The Applicant represents that the Terminal Make-Whole Payment 
as well as the exercise price on the Terminal Put Option may be paid in 
five equal annual installments. The Applicant further represents that 
any unpaid portion of the Terminal Make-Whole Payment or exercise price 
of the Terminal Put Option during this period will accrue interest 
(compounded annually as of the anniversary of the demand date or the 
exercise date of the Terminal Put Option, as applicable) at the average 
of Red Wing's regular corporate borrowing rate (but at a rate no less 
than LIBOR plus 1%) over each 12-month period. The Applicant represents 
that the Independent Fiduciary will be responsible for verifying Red 
Wing's corporate

[[Page 44734]]

borrowing rate in the event of a Catastrophic Loss.
    30. The Applicant represents that the amount of any Terminal Make-
Whole Payment will also be reduced (but not below zero) to the extent 
all or any portion of the Contribution then payable would cause a 
Plan's ``funding target attainment percentage,'' as determined under 
section 430 of the Code and as calculated by its enrolled actuary 
immediately following such Contribution, to exceed 110% (or if an 
amendment is adopted to terminate the Plan pursuant to the Plan's 
governing document, that Plan's termination liability as determined by 
its enrolled actuary and confirmed by the Independent Fiduciary).
    31. Liquidity Put Option. The Liquidity Put Option will give the 
Plans the ability to cause Red Wing to purchase some or all of the 
Shares from the Plan at the Shares' fair market value as of the date of 
exercise, payable in cash no later than 60 days following the date of 
exercise. Any unpaid portion of the purchase price for the Shares 
payable by Red Wing in connection with the exercise of the Liquidity 
Put Option will accrue interest, compounded annually, at the average of 
Red Wing's regular corporate borrowing rate (but at a rate no less than 
LIBOR plus 1%), to be confirmed by the Independent Fiduciary, over the 
period from the date of exercise of the Liquidity Put Option to the 
date of payment of such unpaid portion of the purchase price.
    32. Pursuant to the Liquidity Put Option, in the event of a Change 
of Control, all or a portion of the Shares held by a Plan will be 
exercisable for a period of 60 days by the Independent Fiduciary on 
behalf of the Plan. The Applicant represents that, for purposes of 
triggering the Liquidity Put Option, a ``Change of Control'' includes 
the sale or other transfer for value of all or substantially all of Red 
Wing's assets in a transaction or series of related transactions to a 
Third Party purchaser, or a transaction or series of transactions in 
which a Third Party acquires more than 50% of the voting power of Red 
Wing's outstanding shares. A ``Third Party'' for this purpose is an 
individual or entity other than: (1) (i) A current shareholder of Red 
Wing, or a spouse or issue of such shareholder, (ii) a trust created 
for the shareholder, his spouse, or his issue, or (iii) a shareholder 
of a shareholder; or (2) an entity controlled by an individual or 
entity described in (1), or an entity under common control with such an 
entity.
    33. Pursuant to the Liquidity Put Option, upon a Plan's becoming 
entitled to receive a Periodic Make-Whole Payment, the Independent 
Fiduciary on behalf of the Plan may exercise as much as 20% of the 
original number of Shares to which the Periodic Make-Whole Payment 
relates, no later than 45 days following the five-year anniversary date 
of the Contribution. The Applicant represents that, if the Plan 
exercises its Liquidity Put Option with respect to any of the Shares to 
which the Periodic Make-Whole Payment relates in the first year in 
which the Liquidity Put Option is exercisable, the Plan may exercise a 
Liquidity Put Option for as much as an additional 20% of the original 
number of Shares to which the Periodic Make-Whole payment relates upon 
each of the four succeeding anniversaries of the Contribution to the 
Plan, but no later than 45 days following each such anniversary. The 
Applicant represents that the exercise of a Liquidity Put Option for 
any of the Shares to which the Periodic Make-Whole Payment applies in 
the first year in which the Liquidity Put Option is exercisable 
eliminates the Plan's right to that Periodic Make-Whole Payment with 
respect to all Shares to which the Periodic Make-Whole Payment in such 
year relates, but any Shares for which the Liquidity Put Option is not 
exercised will continue to be eligible for future Periodic Make-Whole 
Payments, if any.
    34. Pursuant to the Liquidity Put Option, upon the occurrence of 
the tenth anniversary (the Anniversary Date) of a Contribution to a 
Plan, the Independent Fiduciary on behalf of the Plan may exercise the 
Liquidity Put Option with respect to as much as 20% of the number of 
Shares to which such Contribution relates, in each year following the 
Anniversary Date.
    35. Pursuant to the Liquidity Put Option, upon the effective date 
of a Plan's termination and at any time until the final distribution 
date of the Plan's assets, the Independent Fiduciary on behalf of the 
Plan may exercise the Liquidity Put Option for any or all Shares 
remaining in the Plan, and Red Wing will have the right to cause a Plan 
to sell any or all remaining Shares held in the Plan to Red Wing (the 
Call Option).
    36. Call Option. Red Wing may exercise the Call Option upon the 
effective date of a Plan's termination. The Applicant represents that 
in such event, the Plan will transfer its Shares to Red Wing in 
exchange for a cash payment equal to the Shares' fair market value on 
the date of exercise as determined by the Independent Fiduciary, no 
later than 60 days after Red Wing exercises the Call Option. Any unpaid 
portion of the purchase price for the Shares payable by Red Wing in 
connection with its exercise of the Call Option will accrue interest, 
compounded annually, at the average of Red Wing's regular corporate 
borrowing rate (but at a rate no less than LIBOR plus 1%), to be 
confirmed by the Independent Fiduciary, over the period from the date 
of exercise of the Call Option to the date of payment of such unpaid 
portion of the purchase price.

Exemptive Relief Requested

    37. The Applicant requests exemptive relief from certain of the 
prohibited transaction restrictions of sections 406 and 407 of the Act 
and section 4975 of the Code for the Contributions. Section 
407(a)(1)(A) of the Act precludes a plan from acquiring or holding any 
employer security which is not a ``qualifying employer security.'' 
Moreover, section 406(a)(1)(E) of the Act prohibits the acquisition, on 
behalf of a plan, of any ``employer security in violation of section 
407(a) of the Act.'' Finally, section 406(a)(2) of the Act prohibits a 
fiduciary who has authority or discretion to control or manage the 
assets of a plan to permit the plan to hold any ``employer security'' 
that violates section 407(a) of the Act.
    38. The Applicant represents that, with respect to the Plans, the 
Shares constitute ``employer securities,'' as defined in section 
407(d)(1) of the Act. The Applicant notes that, to be an ``employer 
security,'' the Shares must be issued by an employer of employees 
covered by the plan or by an affiliate of such employer. According to 
the Applicant, although RWI is not the employer of any employees 
covered by the plans, RWI can be considered an affiliate of Red Wing. 
The Applicant notes that section 407(d)(7) of the Act defines an 
``affiliate'' as an entity that is a member of the employer's 
controlled group, as defined by section 1563(a) of the Code, but by 
substituting 50% for 80% ownership for purposes of establishing 
control. The Applicant notes also that the stock ownership attribution 
rules set forth in section 1563(a) of the Code could cause the Sweasy 
family to own both RWI and Red Wing.\46\ In this regard, the

[[Page 44735]]

Applicant explains that the largest percentages of Red Wing stock and 
RWI Shares, attributing Shares owned by Red Wing to Red Wing 
shareholders, are owned by five members of the Sweasy family or trusts 
established by or for the benefit of such individuals. With respect to 
three trusts established by one of these individuals and her husband, 
the Applicant contends that certain assumptions concerning the control 
the individual or her husband exercises over the trusts or the 
beneficiaries of the trusts could cause RWI and Red Wing to be 
considered members of a brother-sister controlled group under section 
1563(a)(2) of the Code. As such, the Applicant believes that RWI can be 
considered an ``affiliate'' of Red Wing under section 407(d)(7) of the 
Act, and the Shares would thus constitute ``employer securities'' under 
section 407(d)(1) of the Act. The Applicant contends that the Shares 
are not ``qualifying employer securities'' within the meaning of 
Section 407(d)(5) of the Act, because the Shares will not satisfy the 
requirements of Section 407(f)(1) following the Contributions.\47\ As 
such, the Applicant requests an exemption from sections 406(a)(1)(E) 
and 406(a)(2), and section 407(a)(1)(A) of the Act.
---------------------------------------------------------------------------

    \46\ Section 1563(a)(2) of the Code provides that a brother-
sister controlled group of corporate entities applies to ``two or 
more corporations if 5 or fewer persons who are individuals, 
estates, or trusts own. . .stock possessing more than 50 percent of 
the total combined voting power of all classes of stock entitled to 
vote or more than 50 percent of the total value of shares of all 
classes of stock of each corporation, taking into account the stock 
ownership of each such person only to the extent such stock 
ownership is identical with respect to each such corporation.''
    \47\ Section 407(d)(5) of the Act requires, in relevant part, 
that, in the case of a plan other than an individual account plan, 
in order for stock to constitute ``qualifying employer securities,'' 
it must satisfy the requirements of section 407(f)(1) of the Act. 
Section 407(f)(1) provides that, immediately after its acquisition, 
qualifying stock must constitute (A) no more than 25 percent of the 
aggregate amount of the stock of the same class issued and 
outstanding at the time of acquisition is held by the plan, and (B) 
at least 50 percent of such aggregate amount is held by persons 
independent of the issuer. The Applicant represents that the Sweasy 
family will own in excess of 50% of the Shares through various 
family trusts and indirectly through its ownership of Red Wing, 
after the Contribution. Thus, the Shares will not satisfy the 
requirement under section 407(f)(1)(B) of the Act.
---------------------------------------------------------------------------

    39. The Applicant notes that section 406(a)(1)(A) of the Act 
provides that any sale, exchange, or leasing of any property between a 
plan and a party in interest constitutes a prohibited transaction. 
According to the Applicant, the Department concluded in Interpretive 
Bulletin 2509.94-3 that an in-kind contribution of property by a plan 
sponsor to an employee pension plan constitutes a prohibited 
transaction in violation of section 406(a)(1)(A). Furthermore, an 
employer whose employees participate in the plan is a ``party in 
interest'' under section 3(14) of the Act. The Applicant states that 
Red Wing is prohibited from purchasing the Shares from the Plans in 
connection with the Plans' exercise of the Terminal Put Option and the 
Liquidity Put Option as well as Red Wing's exercise of the Call Option. 
Therefore, the Applicant requests an exemption from section 
406(a)(1)(A) of the Act for the transactions described above.
    40. The Applicant notes that section 406(a)(1)(B) of the Act 
provides that any lending of money or other extension of credit between 
the plan and a party in interest constitutes a prohibited transaction. 
The Applicant represents that the Terminal Make-Whole Payment and the 
exercise price on the Terminal Put Option are due and payable 90 days 
after the demand date, and can be paid over a five-year period, with 
interest. Such arrangement may constitute a prohibited extension of 
credit between the Plans and Red Wing. As such, the Applicant requests 
an exemption from section 406(a)(1)(B) of the Act.
    41. The Applicant represents that section 406(a)(1)(D) of the Act 
provides that any transfer to, or use by or for the benefit of, a party 
in interest, of any assets of the Plans is a prohibited transaction. 
The Applicant states that, accordingly, the proposed transactions also 
violate section 406(a)(1)(D) of the Act, in that in connection with the 
Plans' acceptance of the Contributions, Red Wing proposes to transfer 
assets of the Plans to itself upon the exercise of the Terminal Put 
Option, the Liquidity Put Option, or the Call Option.
    42. The Applicant notes that section 406(b)(1) of the Act prohibits 
a plan fiduciary from dealing with the assets of the plan in its own 
interest or for its own account. Furthermore, the Applicant notes that 
section 406(b)(2) of the Act prohibits a fiduciary of a plan from 
acting in its individual or any other capacity in any transaction 
involving the plan, or on behalf of a party whose interests are adverse 
to the interests of the plan or the interests of its participants or 
beneficiaries. The Applicant represents that Red Wing is a fiduciary of 
the Plans. The Applicant states that it is possible that the 
Contributions could be considered to violate section 406(b)(1) of the 
Act because of the possible ancillary effects to the Applicant of 
reduced future cash contributions due to additional funding of the 
Plans. Moreover, according to the Applicant, it is possible that the 
Contributions could violate section 406(b)(2) of the Act because the 
Applicant, a fiduciary with respect to the Plans, will be acting on 
behalf of another party (itself) whose interests may be adverse to 
those of the Plan. Therefore, the Applicant requests an exemption from 
section 406(b)(1) and (2) of the Act for the transactions described 
herein.

The Independent Fiduciary

    43. The Applicant represents that it has retained GFA to act as the 
Independent Fiduciary and investment manager of the Plans with respect 
to the acquisition, management and disposition of the Shares on behalf 
of the Plans. GFA represents that it is qualified to serve as 
Independent Fiduciary on behalf of the Plans with respect to the 
covered transactions by virtue of its experience and expertise. GFA 
represents that it has acted as an independent fiduciary regarding 
numerous ERISA-covered plans' acquisitions and holdings of securities 
issued by or contributed by the current or former employer of plan 
participants. GFA represents further that it serves as an investment 
consultant to ERISA-covered plans with assets totaling approximately 
$36.5 billion. GFA represents that it regularly evaluates matters of 
investment policy, diversification, and expected risk and return for a 
variety of asset classes, including privately-held securities.
    44. The Applicant represents that GFA does not provide any other 
services to the Applicant or its affiliates other than as the 
Independent Fiduciary. Red Wing represents that it is paying GFA for 
the entirety of its engagement with respect to the proposed 
transactions. GFA represents that its compensation for services related 
to the proposed transactions is less than 1% of its revenue. GFA has 
retained Lincoln Partners Advisors LLC (Lincoln) to prepare a 
preliminary valuation study of RWI which GFA has utilized in 
determining the valuation of the Shares to be contributed to the Plans. 
GFA has complete discretion to determine the valuation methodologies as 
well as the ultimate value of the Shares contributed to the Plans.
    45. The Applicant represents that GFA reviewed relevant Plan 
documents and financial information. In addition, the Applicant 
represents that GFA conducted extensive negotiations with the 
Applicant's management and advisors regarding the value protection 
features described above.
    46. The Applicant represents that GFA will have discretion and 
authority to negotiate the final terms and conditions of the 
Contributions, including any administrative security provisions, 
provided such terms comply with the requirements of the exemption. The 
Applicant represents that the contributed Shares will be held in an 
Investment Fund account within each Plan's trust, that is separate and 
distinct from the Plans' other assets. The Investment Fund account will 
be under

[[Page 44736]]

GFA's investment management and control until such time as GFA 
determines it is in the interests of the Plans' participants and 
beneficiaries to dispose of the Shares or the Plans are terminated.
    47. The Applicant represents that GFA will continue to serve as 
Independent Fiduciary and discharge the functions assigned to it until 
all transactions related to the Shares are concluded or GFA has been 
replaced by another Independent Fiduciary or the Plans are terminated.
    48. The Applicant represents that GFA is, and will continue to be 
during the term of its engagement, an ``investment manager'' within the 
meaning of section 3(38) of the Act and the Investment Advisers Act of 
1940, and, with respect to its duties, GFA will be a fiduciary as 
defined in section 3(21)(A) of the Act. The Applicant represents that 
GFA will take whatever actions it deems necessary to protect the rights 
of the Plans with respect to the Shares, and will act prudently and for 
the exclusive benefit and in the sole interest of the Plans and their 
participants and beneficiaries.

Appraisal of the Shares

    49. In its appraisal, dated September 4, 2012 (the Appraisal), 
Lincoln represents that it was retained by GFA to act as the 
independent appraiser of the Shares in connection with the Applicant's 
request for an exemption from the Department for the proposed 
transactions. Lincoln represents that its fees are not contingent on 
the conclusions provided within the Appraisal, and it had not provided 
previous services to Red Wing, GFA, or the Plans for which it received 
compensation. Red Wing represents that it is paying Lincoln for the 
entirety of its engagement with respect to the proposed transactions. 
Lincoln represents that its compensation for services related to the 
proposed transactions is less than 1% of its revenue.
    50. Lincoln represents that Patricia Luscombe, the Managing 
Director of Lincoln's Valuations and Opinions Group responsible for the 
Appraisal, is a chartered financial analyst and has more than 20 years 
of experience in financial advisory and valuation. Lincoln represents 
that Ms. Luscombe has worked on valuations of closely held businesses, 
including for various transactions, tax, accounting, litigation and 
regulatory purposes. Lincoln further represents that Michael Fisch, the 
senior member of Lincoln's Valuations and Opinions Group assigned to 
the Appraisal, is a Certified Public Accountant, and has experience in 
managing or participating in valuation assignments.
    51. Lincoln represents that it calculated the enterprise value of 
RWI, or the measure of a company's fair market value of the aggregate 
assets (both tangible and intangible) on a going concern basis. Lincoln 
explains that the enterprise value is normally calculated as the 
aggregate fair market value of equity plus debt, minority interests, 
and preferred shares. Lincoln notes that, as RWI has no debt, minority 
interests, or preferred shares, the enterprise value for RWI equals the 
aggregate fair market value of the Shares. Lincoln represents that it 
calculated the enterprise value of the Shares by employing the income 
approach valuation method (the Income Approach). Lincoln represents 
that the Income Approach estimates value based on projected future free 
cash flows and an estimated discount rate.
    52. As RWI depends on Red Wing's commissions for international 
sales, Lincoln represents further that the enterprise value Lincoln 
derived from the Income Approach reflects the expectations of the 
business by senior management and the going concern value of Red Wing 
on a monthly basis. To arrive at RWI's fair market value, Lincoln 
applied a 10% discount to account for RWI's lack of marketability. 
Lincoln concluded that, as of April 30, 2012 the Shares could be valued 
between $1,920 to $2,177.\48\
---------------------------------------------------------------------------

    \48\ GFA represents that it will obtain an updated appraisal 
report prior to the Contributions.
---------------------------------------------------------------------------

    53. In explaining its need for a discount in its valuation, Lincoln 
represents that the Shares have never been traded in any public market 
nor is there any prospect of the Shares being registered in the future. 
In the absence of a price set in a public market, widely circulated 
information about a company, a following of security analysts and 
investors, or an initial public offering in the near term, Lincoln 
states that it is difficult to find parties interested and willing to 
buy a minority interest investment in a privately owned company such as 
RWI. In recognition of this difficulty, Lincoln determines a discount 
for lack of marketability.
    54. After reviewing the value protection provisions described 
herein, Lincoln concludes that the expected volatility associated with 
the Shares would be reduced given the guaranteed annual return of 7.5% 
provided through the Periodic Make-Whole Payments and the Terminal 
Make-Whole Payment. Furthermore, Lincoln represents that the Periodic 
Make-Whole Payment as well as the Terminal Make-Whole Payment provide 
RWI shareholders a floor on value that is linked to the Applicant's 
overall creditworthiness.
    55. Lincoln represents that the holding period risk is significant 
with respect to the Shares because of the uncertainty surrounding the 
long-term outlook of RWI's tax treatment as well as potential 
volatility of international sales. With only the Applicant's 
international business contributing to RWI's net sales, net sales could 
be highly volatile and thus commission income would also be highly 
volatile, in turn leading to volatility in the value of the Shares. 
However, Lincoln asserts that this uncertainly would be offset by the 
value protection provisions.
    56. In its report, Lincoln states that the market of interested 
buyers for the Shares is quite limited. Red Wing management has stated 
it intends to remain an independent family owned business, so an 
investor in the Shares would not likely receive liquidity based upon a 
sale of Red Wing overall. Furthermore, because of RWI's dependence upon 
the Applicant's international sales, Lincoln concludes that it is 
unlikely that there would be willing buyers of Shares beyond the Red 
Wing shareholders.
    57. The Applicant represents that Duff & Phelps performed the most 
recent valuation of the Shares, as part of Red Wing's annual valuation 
of RWI. The Applicant represents that the Duff & Phelps valuation for 
fiscal year 2013, using the discounted flow valuation method, valued 
the Shares at $2,050, a 10.6% increase over the 2012 value. GFA 
represents that, in connection with the proposed exemption, it will 
obtain an updated appraisal report from Lincoln, the independent 
appraiser, in accordance with the terms of the proposed exemption.

The Independent Fiduciary's Opinion

    58. In its capacity as Independent Fiduciary with respect to the 
proposed transactions, GFA submitted to the Department its report 
entitled ``Statement by GFA as the Independent Fiduciary in Support of 
the Application,'' dated November 16, 2012 (the GFA Report). In the GFA 
Report, GFA represents that it reviewed relevant documents concerning 
the Applicant, RWI and the proposed transactions. Such documents 
include: The Plan documents and related amendments; the Plans' trust 
agreements; the Plans' investment policy statement, most recent audited 
financial statements, statements of assets, and actuarial funding 
reports; copies of the most recent appraisals of the Shares; schedules 
of the appraised value per

[[Page 44737]]

Share and dividends paid per Share during the prior five years; copies 
of RWI's organizing documents; the most recent audited financial 
statements for Red Wing; and the Commission Agreement. GFA represents 
that it conducted research into DISCs to understand their purpose, 
legal structure, and the tax consequences of the commission arrangement 
for both the sponsoring companies and DISC shareholders. GFA also met 
with the Applicant to learn more about its history, business model and 
financial performance, the history, structure and status of and outlook 
for RWI and its relationship to the Applicant, and the status of the 
Plans and the purpose and expected effect of the proposed transactions.
    59. According to the GFA Report, GFA proposed and negotiated the 
value protection features included as a condition of the Contribution 
Agreement. GFA represents further that it proposed and designed the 
Liquidity Put Option to address concerns with respect to the liquidity 
of the Shares and negotiated with Red Wing to further develop its 
terms.
    60. As provided in the GFA Report, after reviewing the documents as 
well as the independent valuation performed by Lincoln, GFA believes 
that the proposed transactions are in the interest of the Plans and 
their participants and beneficiaries, and protective of the rights of 
the participants and beneficiaries. GFA also believes the Shares 
represent a sound investment for the Plans. In this regard, the GFA 
Report provides that the Applicant's international sales have been the 
fastest growing segment for the Applicant, having grown at a compound 
annual growth rate of 12% from 2008 to 2011, with sales increasing 11% 
from 2012 to 2013. Between 2008 and 2011, GFA notes in the GFA report 
that the percentage of international sales relative to the Applicant's 
total sales increased from 19% to 23%. In 2013, international revenues 
represented 24% of the Applicant's total sales. As a result of the 
strong pace of international sales growth, RWI's qualifying DISC 
revenues, income and dividends to shareholders grew at compound annual 
growth rates of 14%, 13%, and 13%, respectively, from 2008 to 2011.\49\ 
Furthermore, GFA states in the GFA Report that from 2008 through 2011, 
the average dividend yield on the Shares was almost 12%. Over a broader 
period, the Applicant represents that the average dividend yield on the 
Shares has been approximately 11% from 2006 through 2013.
---------------------------------------------------------------------------

    \49\ The Applicant represents that RWI's qualifying DISC 
revenues decreased 7% to $63 million in 2013.
---------------------------------------------------------------------------

    61. In addition, the GFA Report emphasizes that the appraised value 
of the Shares has appreciated over time, growing at a compound annual 
growth rate of 22% between 2006 until 2011. The Applicant represents 
that the appraised value of the Shares grew approximately 11% between 
2012 and 2013. The GFA Report provides that continued future growth in 
the Applicant's international sales and DISC-qualified sales and income 
should have a positive effect on future appraised values.
    62. As provided in the GFA report, GFA believes that the Applicant 
has a strong financial standing. The GFA Report provides that the 
Applicant's debt-to-capital ratio stood at 36% as of November 30, 2011. 
GFA represents that, as of August 2014, Red Wing's debt-to-equity ratio 
stood at 31% while the times-interest-earned ratio is 49,000. GFA 
explains that a times-interest-earned ratio of 49,000 is very high and 
a favorable statistic from the perspective of the Plans, as it means 
Red Wing is able to pay its interest expenses 49 times over, based on 
its level of operating earnings. Furthermore, according to the 
Applicant, Red Wing's cash flow generation has recently been strong, 
providing it with necessary liquidity to fund its obligations and 
growth initiatives.
    63. GFA represents that the value of the Shares and expected cash 
flows from dividends on the Shares will improve the Plans' funded 
status over time and provide additional liquidity for the Plans each 
year, given that the Contributions will be in addition to and in excess 
of the mandatory minimum funding requirements required for each of the 
Plans. In addition, GFA represents that the proposed transactions will 
reduce the Plans' dependence on the Applicant's ability to pay future 
minimum required cash contributions.
    64. The GFA Report suggests that the value protection measures 
resemble features of other in-kind contribution transactions previously 
approved by the Department. Additionally, the Contribution Agreements 
limit the transactions' scope to a number of Shares equal in value to 
not more than 10% of Plan assets for each respective Plan. The GFA 
Report also notes that the terms of the Contribution Agreements provide 
for a term certain of ten years for the Commission Agreement, thereby 
providing for the payment of commissions to RWI on account of the 
Applicant's foreign sales for a set period. Finally, the Periodic Make-
Whole Payment and the Terminal Make-Whole Payment provisions guarantee 
a minimum return on the Shares of 7.5% per year.
    65. As detailed in the GFA Report, GFA will: Negotiate on behalf of 
the Plans the definitive documentation to memorialize the Contribution 
Agreements and the value protection provisions featured therein and/or 
described in this proposed exemption; enforce all of the Plans' rights 
under the Contribution Agreements; enforce the Plans' rights as 
shareholders of RWI, including obtaining reports confirming that the 
Applicant is adhering to the terms of the Commission Agreement; obtain 
regular valuations of the Shares, vote the Plans' Shares, respond to 
any corporate actions, and monitor tax and regulatory developments that 
can affect RWI; and have authority to sell the Shares if and when it 
determines it to be in the Plans' interest to do so.

Statutory Findings

    66. The Applicant represents that the proposed exemption is 
administratively feasible because the Applicant has retained GFA to 
represent the Plans' interests with respect to the proposed 
transactions. As such, the transactions will require no ongoing 
monitoring by the Department.
    67. The Applicant represents that the proposed transactions are in 
the interests of the Plans and their participants and beneficiaries 
because the value of the Shares and the expected cash flows from their 
dividends will substantially improve the Plans' funded status over time 
and provide additional liquidity each year. The Applicant represents 
that this liquidity will enhance the Plans' ability to satisfy benefit 
obligations as they become due. The Applicant represents further that, 
based on comparative funding projections prepared by Mercer, each 
Plan's funded status following the Contributions will increase at a 
faster rate than it would otherwise without the Contributions.
    68. The Applicant represents that the Plans will generally continue 
to receive cash contributions notwithstanding the Contribution of 
Shares. In this regard, the Applicant explains that for each Plan year 
in which the Plan holds Shares at the end of the Plan year, Red Wing 
will make a contribution to such Plan that is the greater of: (1) The 
minimum required contribution, as determined by section 430 of the 
Code, or (2) the lesser of: (i) The minimum required contribution, as 
determined by section 430 of the Code, as of the Plan's valuation date, 
except that the value of

[[Page 44738]]

the assets will be reduced by an amount equal to the value of a Share, 
multiplied by the number of Shares in the Plan at the end of the Plan 
year, and (ii) the contribution that would result in the respective 
Plan attaining a 100% FTAP funded status (reflecting assets reduced by 
the credit balance) at the valuation date determining the contributions 
based on the value of all Plan assets, including the Shares. The 
Applicant represents that any cash contributions in excess of the 
minimum required contribution described above will not be used to 
create additional prefunding credit balance.
    69. The Applicant represents that the proposed transactions are 
protective of the rights of the participants and beneficiaries of the 
Plans. The Applicant represents that the Plans will incur no fees, 
costs or other charges as a result of their participation in any of the 
proposed transactions. Furthermore, the Applicant represents that, 
after each Contribution, the Shares will represent no more than 10% of 
the value of each Plan's assets.
    70. The Applicant represents that GFA will monitor and make all 
decisions with respect to the Plans' investment in the Shares, 
including making determinations of their value and monitoring their 
performance and the applicability of the value protection features. 
Further, GFA have discretion to negotiate the final terms and 
conditions of the Contributions, consistent with the conditions and the 
facts and representations contained in this proposed exemption, and 
will continue to serve as the Independent Fiduciary and discharge the 
functions assigned to it until all transactions related to the Shares 
are concluded, GFA has been replaced by another Independent Fiduciary, 
or the Plans are terminated.
    71. Finally, the Applicant represents that the proposed 
transactions will also be structured to ensure continued protection of 
the Plans against the risks of illiquidity of the Shares and adverse 
business conditions that could impair their value. The value protection 
features, which GFA negotiated with the Applicant, include a binding 
long-term Commission Agreement to provide for a continuing stream of 
commission payments to RWI; Periodic Make-Whole Payments by the 
Applicant to the Plans for as long as the Plans hold the Shares; a 
Liquidity Put Option exercisable by GFA in lieu of accepting the 
Periodic Make-Whole Payment, after a Change of Control, after 10 years, 
or upon termination of a Plan; and a Terminal Make-Whole Payment from 
the Applicant to the Plans in the event of the termination of the 
Commission Agreement.

Summary

    72. In summary, the Applicant represents that the proposed 
exemption, if granted, satisfies the statutory criteria of section 408 
of the Act for the following reasons:
    (a) The Plans acquire the Shares solely through one or more 
Contributions by Red Wing;
    (b) GFA, will act on behalf of the Plans with respect to the 
acquisition, management and disposition of the Shares;
    (c) An Independent Appraiser selected by GFA will determine the 
fair market value of the Shares contributed to each Plan for all 
purposes under the proposed exemption;
    (d) Immediately after any Contribution, the aggregate fair market 
value of the Shares held by any Plan will represent no more than 10% of 
the fair market value of such Plan's assets.
    (e) The Plans incur no fees, costs or other charges in connection 
with any of the transactions described herein;
    (f) For as long as the Plans hold the Shares, Red Wing makes the 
Periodic Make-Whole Payments and Terminal Make-Whole Payment to the 
Plans in accordance with the terms thereof;
    (g) The Liquidity Put Option and the Terminal Put Option will be 
exercisable by the Independent Fiduciary in its sole discretion in 
accordance with the terms thereof; and
    (h) Each year, Red Wing will make a cash contribution to each Plan 
that is the greater of: (1) The minimum required contribution, or (2) 
the lesser of: (i) The minimum required contribution (without taking 
into account the value of the Shares in the Plan at the end of the 
respective Plan year), and (ii) the contribution that would result in 
the respective Plan attaining a 100% FTAP funded status (reflecting 
assets reduced by the credit balance) at the valuation date determining 
the contributions based on the value of all Plan assets, including the 
Shares.

Notice to Interested Persons

    Notice of the proposed exemption will be given to all Interested 
Persons in the manner agreed to with the Department within 20 days of 
the publication of the notice of proposed exemption in the Federal 
Register, by first class U.S. mail to the last known address of all 
such individuals. Such notice will contain a copy of the notice of 
proposed exemption, as published in the Federal Register, and a 
supplemental statement, as required pursuant to 29 CFR 2570.43(a)(2). 
The supplemental statement will inform interested persons of their 
right to comment on and to request a hearing with respect to the 
pending exemption. Written comments and hearing requests are due within 
50 days of the publication of the notice of proposed exemption in the 
Federal Register. All comments will be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments may be posted on the Internet and can be retrieved by most 
Internet search engines.

FOR FURTHER INFORMATION CONTACT: Scott Ness of the Department, 
telephone (202) 693-8561. (This is not a toll-free number.)

Frank Russell Company and Affiliates (Russell), Located in Seattle, WA

[Application No. D-11781]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of 408(a) of the Act and section 4975(c)(2) of the Code, in 
accordance with the procedures set forth in 29 CFR part 2570, subpart B 
(76 FR 46637, 66644, October 27, 2011).
Section I. Transactions
    If the exemption is granted, the restrictions of sections 
406(a)(1)(D) and 406(b) of the Act and the taxes resulting from the 
application of section 4975 of the Code, by reason of sections 
4975(c)(1)(D) through (F) of the Code,\50\ shall not apply, effective 
June 1, 2014, to:
---------------------------------------------------------------------------

    \50\ For purposes of this proposed exemption reference to 
specific provisions of Title I of the Act, unless otherwise 
specified, refer also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

    (a) The receipt of a fee by Russell, as Russell is defined below in 
Section IV(a), from an open-end investment company or open-end 
investment companies (Affiliated Fund(s)), as defined below in Section 
IV(e), in connection with the direct investment in shares of any such 
Affiliated Fund, by an employee benefit plan or by employee benefit 
plans (Client Plan(s)) as defined below in Section IV(b), where Russell 
serves as a fiduciary with respect to such Client Plan, and where 
Russell:
    (1) Provides investment advisory services, or similar services to 
any such Affiliated Fund; and

[[Page 44739]]

    (2) Provides to any such Affiliated Fund other services (Secondary 
Service(s)), as defined below in Section IV(i); and
    (b) In connection with the indirect investment by a Client Plan in 
shares of an Affiliated Fund through investment in a pooled investment 
vehicle or pooled investment vehicles (Collective Fund(s)),\51\ as 
defined below in Section IV(j), where Russell serves as a fiduciary 
with respect to such Client Plan, the receipt of fees by Russell from:
---------------------------------------------------------------------------

    \51\ The Department, herein, is expressing no opinion in this 
proposed exemption regarding the reliance of the Applicants on the 
relief provided by section 408(b)(8) of the Act with regard to the 
purchase and with regard to the sale by a Client Plan of an interest 
in a Collective Fund and the receipt by Russell, thereby, of any 
investment management fee, any investment advisory fee, and any 
similar fee (a Collective Fund-Level Management Fee), as defined 
below in Section IV(n)), where Russell serves as an investment 
manager or investment adviser with respect to such Collective Fund 
and also serves as a fiduciary with respect to such Client Plan, nor 
is the Department offering any view as to whether the Applicants 
satisfy the conditions, as set forth in section 408(b)(8) of the 
Act.
---------------------------------------------------------------------------

    (1) An Affiliated Fund for the provision of investment advisory 
services, or similar services by Russell to any such Affiliated Fund; 
and
    (2) An Affiliated Fund for the provision of Secondary Services by 
Russell to any such Affiliated Fund; provided that the conditions, as 
set forth below in Section II and Section III, are satisfied, as of 
June 1, 2014 and thereafter.
Section II. Specific Conditions
    (a)(1) Each Client Plan which is invested directly in shares of an 
Affiliated Fund either:
    (i) Does not pay to Russell for the entire period of such 
investment any investment management fee, or any investment advisory 
fee, or any similar fee at the plan-level (the Plan-Level Management 
Fee), as defined below in Section IV(m), with respect to any of the 
assets of such Client Plan which are invested directly in shares of 
such Affiliated Fund; or
    (ii) Pays to Russell a Plan-Level Management Fee, based on total 
assets of such Client Plan under management by Russell at the plan-
level, from which a credit has been subtracted from such Plan-Level 
Management Fee, where the amount subtracted represents such Client 
Plan's pro rata share of any investment advisory fee and any similar 
fee (the Affiliated Fund Level Advisory Fee), as defined below in 
Section IV(o), paid by such Affiliated Fund to Russell.
    If, during any fee period, in the case of a Client Plan invested 
directly in shares of an Affiliated Fund, such Client Plan has prepaid 
its Plan Level Management Fee, and such Client Plan purchases shares of 
an Affiliated Fund directly, the requirement of this Section 
II(a)(1)(ii) shall be deemed met with respect to such prepaid Plan-
Level Management Fee, if, by a method reasonably designed to accomplish 
the same, the amount of the prepaid Plan-Level Management Fee that 
constitutes the fee with respect to the assets of such Client Plan 
invested directly in shares of an Affiliated Fund:
    (A) Is anticipated and subtracted from the prepaid Plan-Level 
Management Fee at the time of the payment of such fee; or
    (B) Is returned to such Client Plan, no later than during the 
immediately following fee period; or
    (C) Is offset against the Plan-Level Management Fee for the 
immediately following fee period or for the fee period immediately 
following thereafter.
    For purposes of Section II(a)(1)(ii), a Plan-Level Management Fee 
shall be deemed to be prepaid for any fee period, if the amount of such 
Plan-Level Management Fee is calculated as of a date not later than the 
first day of such period.
    (2) Each Client Plan invested in a Collective Fund the assets of 
which are not invested in shares of an Affiliated Fund:
    (i) Does not pay to Russell for the entire period of such 
investment any Plan-Level Management Fee with respect to any assets of 
such Client Plan invested in such Collective Fund.
    The requirements of this Section II(a)(2)(i) do not preclude the 
payment of a Collective Fund-Level Management Fee by such Collective 
Fund to Russell, based on the assets of such Client Plan invested in 
such Collective Fund; or
    (ii) Does not pay to Russell for the entire period of such 
investment any Collective Fund-Level Management Fee with respect to any 
assets of such Client Plan invested in such Collective Fund.
    The requirements of this Section II(a)(2)(ii) do not preclude the 
payment of a Plan-Level Management Fee by such Client Plan to Russell, 
based on total assets of such Client Plan under management by Russell 
at the plan-level; or
    (iii) Such Client Plan pays to Russell a Plan-Level Management Fee, 
based on total assets of such Client Plan under management by Russell 
at the plan-level, from which a credit has been subtracted from such 
Plan-Level Management Fee (the ``Net'' Plan-Level Management Fee), 
where the amount subtracted represents such Client Plan's pro rata 
share of any Collective Fund-Level Management Fee paid by such 
Collective Fund to Russell.
    The requirements of this Section II(a)(2)(iii) do not preclude the 
payment of a Collective Fund-Level Management Fee by such Collective 
Fund to Russell, based on the assets of such Client Plan invested in 
such Collective Fund.
    (3) Each Client Plan invested in a Collective Fund, the assets of 
which are invested in shares of an Affiliated Fund:
    (i) Does not pay to Russell for the entire period of such 
investment any Plan-Level Management Fee (including any ``Net'' Plan-
Level Management Fee, as described, above, in Section II(a)(2)(ii)), 
and does not pay directly to Russell or indirectly to Russell through 
the Collective Fund for the entire period of such investment any 
Collective Fund-Level Management Fee with respect to the assets of such 
Client Plan which are invested in such Affiliated Fund; or
    (ii) Pays indirectly to Russell a Collective Fund-Level Management 
Fee, in accordance with Section II(a)(2)(i) above, based on the total 
assets of such Client Plan invested in such Collective Fund, from which 
a credit has been subtracted from such Collective Fund-Level Management 
Fee, where the amount subtracted represents such Client Plan's pro rata 
share of any Affiliated Fund-Level Advisory Fee paid to Russell by such 
Affiliated Fund; and does not pay to Russell for the entire period of 
such investment any Plan-Level Management Fee with respect to any 
assets of such Client Plan invested in such Collective Fund; or
    (iii) Pays to Russell a Plan-Level Management Fee, in accordance 
with Section II(a)(2)(ii) above, based on the total assets of such 
Client Plan under management by Russell at the plan-level, from which a 
credit has been subtracted from such Plan-Level Management Fee, where 
the amount subtracted represents such Client Plan's pro rata share of 
any Affiliated Fund-Level Advisory Fee paid to Russell by such 
Affiliated Fund; and does not pay directly to Russell or indirectly to 
Russell through the Collective Fund for the entire period of such 
investment any Collective Fund-Level Management Fee with respect to any 
assets of such Client Plan invested in such Collective Fund; or
    (iv) Pays to Russell a ``Net'' Plan-Level Management Fee, in 
accordance with Section II(a)(2)(iii) above, from which a further 
credit has been subtracted from such ``Net'' Plan-Level Management Fee, 
where the amount of such further credit which is subtracted represents 
such Client Plan's pro rata share of any Affiliated Fund-Level Advisory 
Fee paid to Russell by such Affiliated Fund.

[[Page 44740]]

    Provided that the conditions of this proposed exemption are 
satisfied, the requirements of Section II(a)(1)(i)-(ii) and Section 
II(a)(3)(i)-(iv) do not preclude the payment of an Affiliated Fund-
Level Advisory Fee by an Affiliated Fund to Russell 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). 
Further, the requirements of Section II(a)(1)(i)-(ii) and Section 
II(a)(3)(i)-(iv) do not preclude the payment of a fee by an Affiliated 
Fund to Russell for the provision by Russell of Secondary Services to 
such Affiliated Fund under the terms of a duly adopted agreement 
between Russell and such Affiliated Fund.
    For the purpose of Section II(a)(1)(ii) and Section II(a)(3)(ii)-
(iv), in calculating a Client Plan's pro rata share of an Affiliated 
Fund-Level Advisory Fee, Russell must use an amount representing the 
``gross'' advisory fee paid to Russell by such Affiliated Fund. For 
purposes of this paragraph, the ``gross'' advisory fee is the amount 
paid to Russell by such Affiliated Fund, including the amount paid by 
such Affiliated Fund to sub-advisers.
    (b) The purchase price paid and the sales price received by a 
Client Plan for shares in an Affiliated Fund purchased or sold 
directly, and the purchase price paid and the sales price received by a 
Client Plan for shares in an Affiliated Fund purchased or sold 
indirectly through a Collective Fund, is the net asset value per share 
(NAV), as defined below in Section IV(f), at the time of the 
transaction, and is the same purchase price that would have been paid 
and the same sales price that would have been received for such shares 
by any other shareholder of the same class of shares in such Affiliated 
Fund at that time.\52\
---------------------------------------------------------------------------

    \52\ The selection of a particular class of shares of an 
Affiliated Fund as an investment for a Client Plan indirectly 
through a Collective Fund is a fiduciary decision that must be made 
in accordance with the provisions of section 404(a) of the Act.
---------------------------------------------------------------------------

    (c) Russell, including any officer and any director of Russell, 
does not purchase any shares of an Affiliated Fund from, and does not 
sell any shares of an Affiliated Fund to, any Client Plan which invests 
directly in such Affiliated Fund, and Russell, including any officer 
and director of Russell, does not purchase any shares of any Affiliated 
Fund from, and does not sell any shares of an Affiliated Fund to, any 
Collective Fund in which a Client Plan invests indirectly in shares of 
such Affiliated Fund.
    (d) No sales commissions, no redemption fees, and no other similar 
fees are paid in connection with any purchase and in connection with 
any sale by a Client Plan directly in shares of an Affiliated Fund, and 
no sales commissions, no redemption fees, and no other similar fees are 
paid by a Collective Fund in connection with any purchase, and in 
connection with any sale, of shares in an Affiliated Fund by a Client 
Plan indirectly through such Collective Fund. However, this Section 
II(d) does not prohibit the payment of a redemption fee, if:
    (1) Such redemption fee is paid only to an Affiliated Fund; and
    (2) The existence of such redemption fee is disclosed in the 
summary prospectus for such Affiliated Fund in effect both at the time 
of any purchase of shares in such Affiliated Fund and at the time of 
any sale of such shares.
    (e) The combined total of all fees received by Russell is not in 
excess of reasonable compensation within the meaning of section 
408(b)(2) of the Act, for services provided:
    (1) By Russell to each Client Plan;
    (2) By Russell to each Collective Fund in which a Client Plan 
invests;
    (3) By Russell to each Affiliated Fund in which a Client Plan 
invests directly in shares of such Affiliated Fund; and
    (4) By Russell to each Affiliated Fund in which a Client Plan 
invests indirectly in shares of such Affiliated Fund through a 
Collective Fund.
    (f) Russell does not receive any fees payable pursuant to Rule 12b-
1 under the Investment Company Act in connection with the transactions 
covered by this proposed exemption;
    (g) No Client Plan is an employee benefit plan sponsored or 
maintained by Russell.
    (h)(1) In the case of a Client Plan investing directly in shares of 
an Affiliated Fund, a second fiduciary (the Second Fiduciary), as 
defined below in Section IV(h), acting on behalf of such Client Plan, 
receives, in writing, in advance of any investment by such Client Plan 
directly in shares of such Affiliated Fund, a full and detailed 
disclosure via first class mail or via personal delivery of (or, if the 
Second Fiduciary consents to such means of delivery, through electronic 
email, in accordance with Section II(q), as set forth below) 
information concerning such Affiliated Fund, including but not limited 
to the items listed below:
    (i) A current summary prospectus issued by each such Affiliated 
Fund;
    (ii) A statement describing the fees, including the nature and 
extent of any differential between the rates of such fees for:
    (A) Investment advisory and similar services to be paid to Russell 
by each Affiliated Fund;
    (B) Secondary Services to be paid to Russell by each such 
Affiliated Fund; and
    (C) All other fees to be charged by Russell to such Client Plan and 
to each such Affiliated Fund and all other fees to be paid to Russell 
by each such Client Plan and by each such Affiliated Fund;
    (iii) The reasons why Russell may consider investment directly in 
shares of such Affiliated Fund by such Client Plan to be appropriate 
for such Client Plan;
    (iv) A statement describing whether there are any limitations 
applicable to Russell with respect to which assets of such Client Plan 
may be invested directly in shares of such Affiliated Fund, and if so, 
the nature of such limitations; and
    (v) Upon the request of the Second Fiduciary acting on behalf of 
such Client Plan, a copy of the Notice of Proposed Exemption (the 
Notice), a copy of the final exemption, if granted, and any other 
reasonably available information regarding the transactions which are 
the subject of this proposed exemption.
    (2) In the case of a Client Plan whose assets are proposed to be 
invested in a Collective Fund after such Collective Fund has begun 
investing in shares of an Affiliated Fund, a Second Fiduciary, acting 
on behalf of such Client Plan, receives, in writing, in advance of any 
investment by such Client Plan in such Collective Fund, a full and 
detailed disclosure via first class mail or via personal delivery (or, 
if the Second Fiduciary consents to such means of delivery, through 
electronic email, in accordance with Section II(q), as set forth below) 
of information concerning such Collective Fund and information 
concerning each such Affiliated Fund in which such Collective Fund is 
invested, including but not limited to the items listed, below:
    (i) A current summary prospectus issued by each such Affiliated 
Fund;
    (ii) A statement describing the fees, including the nature and 
extent of any differential between the rates of such fees for:
    (A) Investment advisory and similar services to be paid to Russell 
by each Affiliated Fund;
    (B) Secondary Services to be paid to Russell by each such 
Affiliated Fund; and
    (C) All other fees to be charged by Russell to such Client Plan, to 
such Collective Fund, and to each such Affiliated Fund and all other 
fees to be paid to Russell by such Client Plan, by

[[Page 44741]]

such Collective Fund, and by each such Affiliated Fund;
    (iii) The reasons why Russell may consider investment by such 
Client Plan in shares of each such Affiliated Fund indirectly through 
such Collective Fund to be appropriate for such Client Plan;
    (iv) A statement describing whether there are any limitations 
applicable to Russell with respect to which assets of such Client Plan 
may be invested indirectly in shares of each such Affiliated Fund 
through such Collective Fund, and if so, the nature of such 
limitations;
    (v) Upon the request of the Second Fiduciary, acting on behalf of 
such Client Plan, a copy of the Notice, a copy of the final exemption, 
if granted, and any other reasonably available information regarding 
the transactions which are the subject of this proposed exemption; and
    (vi) A copy of the organizational documents of such Collective Fund 
which expressly provide for the addition of one or more Affiliated 
Funds to the portfolio of such Collective Fund.
    (3) In the case of a Client Plan whose assets are proposed to be 
invested in a Collective Fund before such Collective Fund has begun 
investing in shares of any Affiliated Fund, a Second Fiduciary, acting 
on behalf of such Client Plan, receives, in writing, in advance of any 
investment by such Client Plan in such Collective Fund, a full and 
detailed disclosure via first class mail or via personal delivery (or, 
if the Second Fiduciary consents to such means of delivery through 
electronic email, in accordance with Section II(q), as set forth below) 
of information, concerning such Collective Fund, including but not 
limited to, the items listed below:
    (i) A statement describing the fees, including the nature and 
extent of any differential between the rates of such fees for all fees 
to be charged by Russell to such Client Plan and to such Collective 
Fund and all other fees to be paid to Russell by such Client Plan, and 
by such Collective Fund;
    (ii) Upon the request of the Second Fiduciary, acting on behalf of 
such Client Plan, a copy of the Notice, a copy of the final exemption, 
if granted, and any other reasonably available information regarding 
the transactions which are the subject of this proposed exemption; and
    (iii) A copy of the organizational documents of such Collective 
Fund which expressly provide for the addition of one or more Affiliated 
Funds to the portfolio of such Collective Fund.
    (i) On the basis of the information, described above in Section 
II(h), a Second Fiduciary, acting on behalf of a Client Plan:
    (1) Authorizes in writing the investment of the assets of such 
Client Plan, as applicable:
    (i) Directly in shares of an Affiliated Fund;
    (ii) Indirectly in shares of an Affiliated Fund through a 
Collective Fund where such Collective Fund has already invested in 
shares of an Affiliated Fund; and
    (iii) In a Collective Fund which is not yet invested in shares of 
an Affiliated Fund but whose organizational document expressly provides 
for the addition of one or more Affiliated Funds to the portfolio of 
such Collective Fund; and
    (2) Authorizes in writing, as applicable:
    (i) The Affiliated Fund-Level Advisory Fee received by Russell for 
investment advisory services and similar services provided by Russell 
to such Affiliated Fund;
    (ii) The fee received by Russell for Secondary Services provided by 
Russell to such Affiliated Fund;
    (iii) The Collective Fund-Level Management Fee received by Russell 
for investment management, investment advisory, and similar services 
provided by Russell to such Collective Fund in which such Client Plan 
invests;
    (iv) The Plan-Level Management Fee received by Russell for 
investment management and similar services provided by Russell to such 
Client Plan at the plan-level; and
    (v) The selection by Russell of the applicable fee method, as 
described, above, in Section II(a)(1)-(3).
    All authorizations made by a Second Fiduciary pursuant to this 
Section II(i) must be consistent with the responsibilities, 
obligations, and duties imposed on fiduciaries by Part 4 of Title I of 
the Act;
    (j)(1) Any authorization, described above in Section II(i), and any 
authorization made pursuant to negative consent, as described below in 
Section II(k) and in Section II(l), made by a Second Fiduciary, acting 
on behalf of a Client Plan, shall be terminable at will by such Second 
Fiduciary, without penalty to such Client Plan (including any fee or 
charge related to such penalty), upon receipt by Russell via first 
class mail, via personal delivery, or via electronic email of a written 
notification of the intent of such Second Fiduciary to terminate any 
such authorization.
    (2) A form (the Termination Form), expressly providing an election 
to terminate any authorization, described above in Section II(i), or to 
terminate any authorization made pursuant to negative consent, as 
described below in Section II(k) and in Section II(l), with 
instructions on the use of such Termination Form, must be provided to 
such Second Fiduciary at least annually, either in writing via first 
class mail or via personal delivery (or if such Second Fiduciary 
consents to such means of delivery through electronic email, in 
accordance with Section II(q), as set forth below). However, if a 
Termination Form has been provided to such Second Fiduciary pursuant to 
Section II(k) or pursuant to Section II(l) below, then a Termination 
Form need not be provided pursuant to this Section II(j), until at 
least six (6) months, but no more than twelve (12) months, have 
elapsed, since the prior Termination Form was provided;
    (3) The instructions for the Termination Form must include the 
following statements:
    (i) Any authorization, described above in Section II(i), and any 
authorization made pursuant to negative consent, as described below in 
Section II(k) or in Section II(l), is terminable at will by a Second 
Fiduciary, acting on behalf of a Client Plan, without penalty to such 
Client Plan, upon receipt by Russell via first class mail or via 
personal delivery or via electronic email of the Termination Form, or 
some other written notification of the intent of such Second Fiduciary 
to terminate such authorization;
    (ii) Within 30 days from the date the Termination Form is sent to 
such Second Fiduciary by Russell, the failure by such Second Fiduciary 
to return such Termination Form or the failure by such Second Fiduciary 
to provide some other written notification of the Client Plan's intent 
to terminate any authorization, described in Section II(i), or intent 
to terminate any authorization made pursuant to negative consent, as 
described below in Section II(k) or in Section II(l), will be deemed to 
be an approval by such Second Fiduciary;
    (4) In the event that a Second Fiduciary, acting on behalf of a 
Client Plan, at any time returns a Termination Form or returns some 
other written notification of intent to terminate any authorization, as 
described above in Section II(i), or intent to terminate any 
authorization made pursuant to negative consent, as described below in 
Section II(k) or in Section II(l);
    (i)(A) In the case of a Client Plan which invests directly in 
shares of an Affiliated Fund, the termination will be implemented by 
the withdrawal of all investments made by such Client Plan in the 
affected Affiliated Fund, and such withdrawal will be effected by 
Russell

[[Page 44742]]

within one (1) business day of the date that Russell receives such 
Termination Form or receives from the Second Fiduciary, acting on 
behalf of such Client Plan, some other written notification of intent 
to terminate any such authorization;
    (B) From the date a Second Fiduciary, acting on behalf of a Client 
Plan that invests directly in shares of an Affiliated Fund, returns a 
Termination Form or returns some other written notification of intent 
to terminate such Client Plan's investment in such Affiliated Fund, 
such Client Plan will not be subject to pay a pro rata share of any 
Affiliated Fund-Level Advisory Fee and will not be subject to pay any 
fees for Secondary Services paid to Russell by such Affiliated Fund, or 
any other fees or charges;
    (ii)(A) In the case of a Client Plan which invests in a Collective 
Fund, the termination will be implemented by the withdrawal of such 
Client Plan from all investments in such affected Collective, and such 
withdrawal will be implemented by Russell within such time as may be 
necessary for withdrawal in an orderly manner that is equitable to the 
affected withdrawing Client Plan and to all non-withdrawing Client 
Plans, but in no event shall such withdrawal be implemented by Russell 
more than five business (5) days after the day Russell receives from 
the Second Fiduciary, acting on behalf of such withdrawing Client Plan, 
a Termination Form or receives some other written notification of 
intent to terminate the investment of such Client Plan in such 
Collective Fund, unless such withdrawal is otherwise prohibited by a 
governmental entity with jurisdiction over the Collective Fund, or the 
Second Fiduciary fails to instruct Russell as to where to reinvest or 
send the withdrawal proceeds; and
    (B) From the date Russell receives from a Second Fiduciary, acting 
on behalf of a Client Plan, that invests in a Collective Fund, a 
Termination Form or receives some other written notification of intent 
to terminate such Client Plan's investment in such Collective Fund, 
such Client Plan will not be subject to pay a pro rata share of any 
fees arising from the investment by such Client Plan in such Collective 
Fund, including any Collective Fund-Level Management Fee, nor will such 
Client Plan be subject to any other charges to the portfolio of such 
Collective Fund, including a pro rata share of any Affiliated Fund-
Level Advisory Fee and any fee for Secondary Services arising from the 
investment by such Collective Fund in an Affiliated Fund.
    (k)(1) Russell, at least thirty (30) days in advance of the 
implementation of each fee increase (Fee Increase(s)), as defined below 
in Section IV(l), must provide in writing via first class mail or via 
personal delivery (or if the Second Fiduciary consents to such means of 
delivery through electronic email, in accordance with Section II(q), as 
set forth below), a notice of change in fees (the Notice of Change in 
Fees) (which may take the form of a proxy statement, letter, or similar 
communication which is separate from the summary prospectus of such 
Affiliated Fund) and which explains the nature and the amount of such 
Fee Increase to the Second Fiduciary of each affected Client Plan. Such 
Notice of Change in Fees shall be accompanied by a Termination Form and 
by instructions on the use of such Termination Form, as described above 
in Section II(j)(3);
    (2) Subject to the crediting, interest-payback, and other 
requirements below, for each Client Plan affected by a Fee Increase, 
Russell may implement such Fee Increase without waiting for the 
expiration of the 30-day period, described above in Section II(k)(1), 
provided Russell does not begin implementation of such Fee Increase 
before the first day of the 30-day period, described above in Section 
II(k)(1), and provided further that the following conditions are 
satisfied:
    (i) Russell delivers, in the manner described in Section II(k)(1), 
to the Second Fiduciary for each affected Client Plan, the Notice of 
Change of Fees, as described in Section II(k)(1), accompanied by the 
Termination Form and by instructions on the use of such Termination 
Form, as described above in Section II(j)(3);
    (ii) Each affected Client Plan receives from Russell a credit in 
cash equal to each such Client Plan's pro rata share of such Fee 
Increase to be received by Russell for the period from the date of the 
implementation of such Fee Increase to the earlier of:
    (A) The date when an affected Client Plan, pursuant to Section 
II(j), terminates any authorization, as described above in Section 
II(i), or, terminates any negative consent authorization, as described 
in Section II(k) or in Section II(l); or
    (B) The 30th day after the day that Russell delivers to the Second 
Fiduciary of each affected Client Plan the Notice of Change of Fees, 
described in Section II(k)(1), accompanied by the Termination Form and 
by the instructions on the use of such Termination Form, as described 
above in Section II(j)(3).
    (iii) Russell pays to each affected Client Plan the cash credit, 
described above in Section II(k)(2)(ii), with interest thereon, no 
later than five (5) business days following the earlier of: (A) The 
date such affected Client Plan, pursuant to Section II(j), terminates 
any authorization, as described above in Section II(i), or terminates, 
any negative consent authorization, as described in Section II(k) or in 
Section II(l); or
    (B) The 30th day after the day that Russell delivers to the Second 
Fiduciary of each affected Client Plan, the Notice of Change of Fees, 
described in Section II(k)(1), accompanied by the Termination Form and 
instructions on the use of such Termination Form, as described above in 
Section II(j)(3);
    (iv) Interest on the credit in cash is calculated at the prevailing 
Federal funds rate plus two percent (2%) for the period from the day 
Russell first implements the Fee Increase to the date Russell pays such 
credit in cash, with interest thereon, to each affected Client Plan;
    (v) An independent accounting firm (the Auditor) at least annually 
audits the payments made by Russell to each affected Client Plan, 
audits the amount of each cash credit, plus the interest thereon, paid 
to each affected Client Plan, and verifies that each affected Client 
Plan received the correct amount of cash credit and the correct amount 
of interest thereon;
    (vi) Such Auditor issues an audit report of its findings no later 
than six (6) months after the period to which such audit report 
relates, and provides a copy of such audit report to the Second 
Fiduciary of each affected Client Plan; and
    (3) Within 30 days from the date Russell sends to the Second 
Fiduciary of each affected Client Plan, the Notice of Change of Fees 
and the Termination Form, the failure by such Second Fiduciary to 
return such Termination Form and the failure by such Second Fiduciary 
to provide some other written notification of the Client Plan's intent 
to terminate the authorization, described in Section II(i), or to 
terminate the negative consent authorization, as described in Section 
II(k) or in Section II(l), will be deemed to be an approval by such 
Second Fiduciary of such Fee Increase.
    (l) Effective upon the date that the final exemption is granted, in 
the case of (a) a Client Plan which has received the disclosures 
detailed in Section II(h)(2)(i), II(h)(2)(ii)(A), II(h)(2)(ii)(B), 
II(h)(2)(ii)(C), II(h)(2)(iii), II(h)(2)(iv), II(h)(2)(v), and 
II(h)(2)(vi), and which has authorized the investment by such Client 
Plan in a Collective Fund in

[[Page 44743]]

accordance with Section II(i)(1)(ii) above, and (b) a Client Plan which 
has received the disclosures detailed in Section II(h)(3)(i), 
II(h)(3)(ii), and II(h)(3)(iii), and which has authorized investment by 
such Client Plan in a Collective Fund, in accordance with Section 
II(i)(1)(iii) above, the authorization pursuant to negative consent in 
accordance with this Section II(l), applies to:
    (1) The purchase, as an addition to the portfolio of such 
Collective Fund, of shares of an Affiliated Fund (a New Affiliated 
Fund) where such New Affiliated Fund has not been previously authorized 
pursuant to Section II(i)(1)(ii), or, as applicable, Section 
II(i)(1)(iii), and such Collective Fund may commence investing in such 
New Affiliated Fund without further written authorization from the 
Second Fiduciary of each Client Plan invested in such Collective Fund, 
provided that:
    (i) The organizational documents of such Collective Fund expressly 
provide for the addition of one or more Affiliated Funds to the 
portfolio of such Collective Fund, and such documents were disclosed in 
writing via first class mail or via personal delivery (or, if the 
Second Fiduciary consents to such means of delivery, through electronic 
email, in accordance with Section II(q)) to the Second Fiduciary of 
each such Client Plan invested in such Collective Fund, in advance of 
any investment by such Client Plan in such Collective Fund;
    (ii) At least thirty (30) days in advance of the purchase by a 
Client Plan of shares of such New Affiliated Fund indirectly through a 
Collective Fund, Russell provides, either in writing via first class or 
via personal delivery (or if the Second Fiduciary consents to such 
means of delivery through electronic email, in accordance with Section 
II(q)) to the Second Fiduciary of each Client Plan having an interest 
in such Collective Fund, full and detailed disclosures about such New 
Affiliated Fund, including but not limited to:
    (A) A notice of Russell's intent to add a New Affiliated Fund to 
the portfolio of such Collective Fund. Such notice may take the form of 
a proxy statement, letter, or similar communication that is separate 
from the summary prospectus of such New Affiliated Fund to the Second 
Fiduciary of each affected Client Plan;
    (B) Such notice of Russell's intent to add a New Affiliated Fund to 
the portfolio of such Collective Fund shall be accompanied by the 
information described in Section II(h)(2)(i), II(h)(2)(ii)(A), 
II(h)(2)(ii)(B), II(h)(2)(ii)(C), II(h)(2)(iii), II(h)(2)(iv), and 
II(2)(v) with respect to each such New Affiliated Fund proposed to be 
added to the portfolio of such Collective Fund; and
    (C) A Termination Form and instructions on the use of such 
Termination Form, as described in Section II(j)(3); and
    (2) Within 30 days from the date Russell sends to the Second 
Fiduciary of each affected Client Plan, the information described above 
in Section II(l)(1)(ii), the failure by such Second Fiduciary to return 
the Termination Form or to provide some other written notification of 
the Client Plan's intent to terminate the authorization described in 
Section II(i)(1)(ii), or, as appropriate, to terminate the 
authorization, described in Section II(i)(1)(iii), or to terminate any 
authorization, pursuant to negative consent, as described in this 
Section II(l), will be deemed to be an approval by such Second 
Fiduciary of the addition of a New Affiliated Fund to the portfolio of 
such Collective Fund in which such Client Plan invests, and will result 
in the continuation of the authorization of Russell to engage in the 
transactions which are the subject of this proposed exemption with 
respect to such New Affiliated Fund.
    (m) Russell is subject to the requirement to provide within a 
reasonable period of time any reasonably available information 
regarding the covered transactions that the Second Fiduciary of such 
Client Plan requests Russell to provide.
    (n) All dealings between a Client Plan and an Affiliated Fund, 
including all such dealings when such Client Plan is invested directly 
in shares of such Affiliated Fund and when such Client Plan is invested 
indirectly in such shares of such Affiliated Fund through a Collective 
Fund, are on a basis no less favorable to such Client Plan, than 
dealings between such Affiliated Fund and other shareholders of the 
same class of shares in such Affiliated Fund.
    (o) In the event a Client Plan invests directly in shares of an 
Affiliated Fund, and, as applicable, in the event a Client Plan invests 
indirectly in shares of an Affiliated Fund through a Collective Fund, 
if such Affiliated Fund places brokerage transactions with Russell, 
Russell will provide to the Second Fiduciary of each such Client Plan, 
so invested, at least annually a statement specifying:
    (1) The total, expressed in dollars of brokerage commissions that 
are paid to Russell by each such Affiliated Fund;
    (2) The total, expressed in dollars, of brokerage commissions that 
are paid by each such Affiliated Fund to brokerage firms unrelated to 
Russell;
    (3) The average brokerage commissions per share, expressed as cents 
per share, paid to Russell by each such Affiliated Fund; and
    (4) The average brokerage commissions per share, expressed as cents 
per share, paid by each such Affiliated Fund to brokerage firms 
unrelated to Russell.
    (p)(1) Russell provides to the Second Fiduciary of each Client Plan 
invested directly in shares of an Affiliated Fund with the disclosures, 
as set forth below, and at the times set forth below in Section 
II(p)(1)(i), II(p)(1)(ii), II(p)(1)(iii), II(p)(1)(iv), and 
II(p)(1)(v), either in writing via first class mail or via personal 
delivery (or if the Second Fiduciary consents to such means of 
delivery, through electronic email, in accordance with Section II(q) as 
set forth below);
    (i) Annually, with a copy of the current summary prospectus for 
each Affiliated Fund in which such Client Plan invests directly in 
shares of such Affiliated Fund;
    (ii) Upon the request of such Second Fiduciary, a copy of the 
statement of additional information for each Affiliated Fund in which 
such Client Plan invests directly in shares of such Affiliated Fund 
which contains a description of all fees paid by such Affiliated Fund 
to Russell;
    (iii) With regard to any Fee Increase received by Russell pursuant 
to Section II(k)(2), a copy of the audit report referred to in Section 
II(k)(2)(v) within sixty (60) days of the completion of such audit 
report;
    (iv) Oral or written responses to the inquiries posed by the Second 
Fiduciary of such Client Plan, as such inquiries arise; and
    (v) Annually, with a Termination form, as described in Section 
II(j)(1), and instructions on the use of such form, as described in 
Section II(j)(3), except that if a Termination Form has been provided 
to such Second Fiduciary, pursuant to Section II(k) or pursuant to 
Section II(l), then a Termination Form need not be provided again 
pursuant to this Section II(p)(1)(v) until at least six (6) months but 
no more than twelve (12) months have elapsed since a Termination Form 
was provided.
    (2) Russell provides to the Second Fiduciary of each Client Plan 
invested in a Collective Fund, with the disclosures, as set forth 
below, and at the times set forth below in Section II(p)(2)(i), 
II(p)(2)(ii), II(p)(2)(iii), II(p)(2)(iv), II(p)(2)(v), II(p)(2)(vi), 
II(p)(2)(vii), and II(p)(2)(viii), either in writing via first class 
mail or via personal delivery (or if the Second Fiduciary consents to 
such means of

[[Page 44744]]

delivery, through electronic email, in accordance with Section II(q);
    (i) Annually, with a copy of the current summary prospectus for 
each Affiliated Fund in which such Client Plan invests indirectly in 
shares of such Affiliated Fund through each such Collective Fund;
    (ii) Upon the request of such Second Fiduciary, a copy of the 
statement of additional information for each Affiliated Fund in which 
such Client Plan invests indirectly in shares of such Affiliated Fund 
through each such Collective Fund which contains a description of all 
fees paid by such Affiliated Fund to Russell;
    (iii) Annually, with a statement of the Collective Fund-Level 
Management Fee for investment management, investment advisory or 
similar services paid to Russell by each such Collective Fund, 
regardless of whether such Client Plan invests in shares of an 
Affiliated Fund through such Collective Fund;
    (iv) A copy of the annual financial statement of each such 
Collective Fund in which such Client Plan invests, regardless of 
whether such Client Plan invests in shares of an Affiliated Fund 
through such Collective Fund, within sixty (60) days of the completion 
of such financial statement;
    (v) With regard to any Fee Increase received by Russell pursuant to 
Section II(k)(2), a copy of the audit report referred to in Section 
II(k)(2)(v) within sixty (60) days of the completion of such audit 
report;
    (vi) Oral or written responses to the inquiries posed by the Second 
Fiduciary of such Client Plan as such inquiries arise;
    (vii) For each Client Plan invested indirectly in shares of an 
Affiliated Fund through a Collective Fund, a statement of the 
approximate percentage (which may be in the form of a range) on an 
annual basis of the assets of such Collective Fund that was invested in 
Affiliated Funds during the applicable year; and
    (viii) Annually, with a Termination Form, as described in Section 
II(j)(1), and instructions on the use of such form, as described in 
Section II(j)(3), except that if a Termination Form has been provided 
to such Second Fiduciary, pursuant to Section II(k) or pursuant to 
Section II(l), then a Termination Form need not be provided again 
pursuant to this Section II(p)(2)(viii) until at least six (6) months 
but no more than twelve (12) months have elapsed since a Termination 
Form was provided.
    (q) Any disclosure required herein to be made by Russell to a 
Second Fiduciary may be delivered by electronic email containing direct 
hyperlinks to the location of each such document required to be 
disclosed, which are maintained on a Web site by Russell, provided:
    (1) Russell obtains from such Second Fiduciary prior consent in 
writing to the receipt by such Second Fiduciary of such disclosure via 
electronic email;
    (2) Such Second Fiduciary has provided to Russell a valid email 
address; and
    (3) The delivery of such electronic email to such Second Fiduciary 
is provided by Russell in a manner consistent with the relevant 
provisions of the Department's regulations at 29 CFR 2520.104b-1(c) 
(substituting the word ``Russell'' for the word ``administrator'' as 
set forth therein, and substituting the phrase ``Second Fiduciary'' for 
the phrase ``the participant, beneficiary or other individual'' as set 
forth therein).
    (r) The authorizations described in paragraphs II(k) or II(l) may 
be made affirmatively, in writing, by a Second Fiduciary, in a manner 
that is otherwise consistent with the requirements of those paragraphs.
    (s) All of the conditions of PTE 77-4, as amended and/or restated, 
are met. Notwithstanding this, if PTE 77-4 is amended and/or restated, 
the requirements of paragraph (e) therein will be deemed to be met with 
respect to authorizations described in section II(l) above, but only to 
the extent the requirements of section II(l) are met. Similarly, if PTE 
77-4 is amended and/or restated, the requirements of paragraph (f) 
therein will be deemed to be met with respect to authorizations 
described in section II(k) above, if the requirements of section II(k) 
are met.
    (t) Standards of Impartial Conduct. If Russell is a fiduciary 
within the meaning of section 3(21)(A)(i) or (ii) of the Act, or 
section 4975(e)(3)(A) or (B) of the Code, with respect to the assets of 
a Client Plan involved in the transaction, Russell must comply with the 
following conditions with respect to the transaction: (1) Russell acts 
in the Best Interest of the Client Plan; (2) all compensation received 
by Russell in connection with the transaction is reasonable in relation 
to the total services the fiduciary provides to the Client Plan; and 
(3) Russell's statements about recommended investments, fees, material 
conflicts of interest,\53\ and any other matters relevant to a Client 
Plan's investment decisions are not misleading.
---------------------------------------------------------------------------

    \53\ A ``material conflict of interest'' exists when a fiduciary 
has a financial interest that could affect the exercise of its best 
judgment as a fiduciary in rendering advice to a Client Plan. For 
this purpose, Russell's failure to disclose a material conflict of 
interest relevant to the services it is providing to a Client Plan 
Plan, or other actions it is taking in relation to a Client Plan's 
investment decisions, is deemed to be a misleading statement.
---------------------------------------------------------------------------

    For purposes of this section, Russell acts in the ``Best Interest'' 
of the Client Plan when Frank Russell acts with the care, skill, 
prudence, and diligence under the circumstances then prevailing that a 
prudent person would exercise based on the investment objectives, risk 
tolerance, financial circumstances, and needs of the plan or IRA, 
without regard to the financial or other interests of the fiduciary, 
any affiliate or other party.
Section III. General Conditions
    (a) Russell 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 proposed 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 
Russell, the records are lost or destroyed prior to the end of the six-
year period; and
    (2) No party in interest other than Russell 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 below by Section III(b).
    (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 or the Internal Revenue Service, or the Securities & 
Exchange Commission;
    (ii) Any fiduciary of a Client Plan invested directly in shares of 
an Affiliated Fund, any fiduciary of a Client Plan who has the 
authority to acquire or to dispose of the interest in a Collective Fund 
in which a Client Plan invests, any fiduciary of a Client Plan invested 
indirectly in an Affiliated Fund through a Collective Fund where such 
fiduciary has the authority to acquire or to dispose of the interest in 
such Collective Fund, and any duly authorized employee or 
representative of such fiduciary; and
    (iii) Any participant or beneficiary of a Client Plan invested 
directly in shares of an Affiliated Fund or invested in a

[[Page 44745]]

Collective Fund, and any participant or beneficiary of a Client Plan 
invested indirectly in shares of an Affiliated Fund through a 
Collective Fund, and any representative of such participant or 
beneficiary; and
    (2) None of the persons described in Section III(b)(1)(ii) and 
(iii) shall be authorized to examine trade secrets of Russell, or 
commercial or financial information which is privileged or 
confidential.
Section IV. Definitions
    For purposes of this proposed exemption:
    (a) The term ``Russell'' means Frank Russell Company and any 
affiliate thereof, as defined below in Section IV(c).
    (b) The term ``Client Plan(s)'' means a 401(k) plan(s), an 
individual retirement account(s), other tax-qualified plan(s), and 
other plan(s) as defined in the Act and Code, but does not include any 
employee benefit plan sponsored or maintained by Russell.
    (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 ``Affiliated Fund(s)'' means any diversified open-end 
investment company or companies registered with the Securities and 
Exchange Commission under the Investment Company Act, as amended, 
established and maintained by Russell now or in the future for which 
Russell serves as an investment adviser.
    (f) The term ``net asset value per share'' and the term ``NAV'' 
mean the amount for purposes of pricing all purchases and sales of 
shares of an Affiliated Fund, calculated by dividing the value of all 
securities, determined by a method as set forth in the summary 
prospectus for such Affiliated Fund and in the statement of additional 
information, and other assets belonging to such Affiliated Fund or 
portfolio of such Affiliated Fund, less the liabilities charged to each 
such portfolio or each such Affiliated 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 the fiduciary of a Client 
Plan who is independent of and unrelated to Russell. For purposes of 
this proposed exemption, the Second Fiduciary will not be deemed to be 
independent of and unrelated to Russell if:
    (1) Such Second Fiduciary, directly or indirectly, through one or 
more intermediaries, controls, is controlled by, or is under common 
control with Russell;
    (2) Such Second Fiduciary, or any officer, director, partner, 
employee, or relative of such Second Fiduciary, is an officer, 
director, partner, or employee of Russell (or is a relative of such 
person); or
    (3) Such Second Fiduciary, directly or indirectly, receives any 
compensation or other consideration for his or her personal account in 
connection with any transaction described in this proposed exemption.
    If an officer, director, partner, or employee of Russell (or 
relative of such person) is a director of such Second Fiduciary, and if 
he or she abstains from participation in:
    (i) The decision of a Client Plan to invest in and to remain 
invested in shares of an Affiliated Fund directly, the decision of a 
Client Plan to invest in shares of an Affiliated Fund indirectly 
through a Collective Fund, and the decision of a Client Plan to invest 
in a Collective Fund that may in the future invest in shares of an 
Affiliated Fund;
    (ii) Any authorization in accordance with Section II(i), and any 
authorization, pursuant to negative consent, as described in Section 
II(k) or in Section II(l); and
    (iii) The choice of such Client Plan's investment adviser, then 
Section IV(h)(2) above shall not apply.
    (i) The term ``Secondary Service(s)'' means a service or services 
other than an investment management service, investment advisory 
service, and any similar service which is provided by Russell to an 
Affiliated Fund, including but not limited to custodial, accounting, 
administrative services, and brokerage services. Russell may also serve 
as a dividend disbursing agent, shareholder servicing agent, transfer 
agent, fund accountant, or provider of some other Secondary Service, as 
defined in this Section IV(i).
    (j) The term ``Collective Fund(s)'' means a separate account of an 
insurance company, as defined in section 2510.3-101(h)(1)(iii) of the 
Department's plan assets regulations,\54\ maintained by Russell, and a 
bank-maintained common or collective investment trust maintained by 
Russell.
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    \54\ 51 FR 41262 (November 13, 1986).
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    (k) The term ``business day'' means any day that
    (1) Russell is open for conducting all or substantially all of its 
business; and
    (2) The New York Stock Exchange (or any successor exchange) is open 
for trading.
    (l) The term ``Fee Increase(s)'' includes any increase by Russell 
in a rate of a fee previously authorized in writing by the Second 
Fiduciary of each affected Client Plan pursuant to Section II(i)(2)(i)-
(iv) above, and in addition includes, but is not limited to:
    (1) Any increase in any fee that results from the addition of a 
service for which a fee is charged;
    (2) Any increase in any fee that results from a decrease in the 
number of services and any increase in any fee that results from a 
decrease in the kind of service(s) performed by Russell for such fee 
over an existing rate of fee for each such service previously 
authorized by the Second Fiduciary, in accordance with Section 
II(i)(2)(i)-(iv) above; and
    (3) Any increase in any fee that results from Russell changing from 
one of the fee methods, as described above in Section II(a)(1)-(3), to 
using another of the fee methods, as described above in Section 
II(a)(1)-(3).
    (m) The term ``Plan-Level Management Fee'' includes any investment 
management fee, investment advisory fee, and any similar fee paid by a 
Client Plan to Russell for any investment management services, 
investment advisory services, and similar services provided by Russell 
to such Client Plan at the plan-level. The term ``Plan-Level Management 
Fee'' does not include a separate fee paid by a Client Plan to Russell 
for asset allocation service(s) (Asset Allocation Service(s)), as 
defined below in Section IV(p), provided by Russell to such Client Plan 
at the plan-level.
    (n) The term ``Collective Fund-Level Management Fee'' includes any 
investment management fee, investment advisory fee, and any similar fee 
paid by a Collective Fund to Russell for any investment management 
services, investment advisory services, and any similar services 
provided by Russell to such Collective Fund at the collective fund 
level.
    (o) The term ``Affiliated Fund-Level Advisory Fee'' includes any 
investment advisory fee and any similar fee paid by an Affiliated Fund 
to Russell under the terms of an investment advisory

[[Page 44746]]

agreement adopted in accordance with section 15 of the Investment 
Company Act.
    (p) The term ``Asset Allocation Service(s)'' means a service or 
services to a Client Plan relating to the selection of appropriate 
asset classes or target-date ``glidepath'' and the allocation or 
reallocation (including rebalancing) of the assets of a Client Plan 
among the selected asset classes. Such services do not include the 
management of the underlying assets of a Client Plan, the selection of 
specific funds or manager, and the management of the selected 
Affiliated Funds or Collective Funds.
    Effective Date: If granted, this proposed exemption will be 
effective as of June 1, 2014.

Summary of Facts and Representations

The Parties

    1. Russell is a global asset management firm providing investment 
management products and services to individuals and institutions in 47 
different countries. Frank Russell and its U.S. affiliates offer a 
broad range of financial products and services to businesses, 
individuals, and institutional clients, including portfolio management, 
transition strategies and cash management. As of March 31, 2014, 
Russell had approximately $259.7 billion in assets under management. In 
addition, Russell is the creator of a family of global equity indices 
that allow investors to track the performance of distinct market 
segments. These include the broad market Russell 3000 Index, the small 
cap Russell 2000 Index and the global equity Russell Global Index.
    2. Russell has numerous direct or indirect subsidiaries, including 
Russell Investment Management Company (RIMCo); Russell Implementation 
Services, Inc.; Russell Capital, Inc.; Russell Real Estate Advisors, 
Inc.; Russell Institutional Funds Management, LLC; Russell 
Institutional Funds, LLC; Russell Trust Company (Russell Trust), and 
many other entities. Several of these entities operate under the trade 
name/registered trademark ``Russell Investments.'' Russell and the 
various other affiliates controlled or under common control with 
Russell (the ``Affiliates'') are collectively referred to herein as 
``Russell.''
    3. Russell makes investments available to Client Plans, either 
directly or indirectly through Collective Funds. Russell has requested 
that the proposed exemption apply to any Client Plan for which Russell 
serves as investment fiduciary and for which Russell causes such Client 
Plan to invest in shares of Affiliated Funds, either directly or 
indirectly through a Collective Fund. It is represented that Russell 
places no limits on the minimum or maximum portion of the total assets 
of each Client Plan that may be invested directly in shares of an 
Affiliated Fund or invested indirectly in an Affiliated Fund through a 
Collective Fund.
    4. Section 3(14)(A) and (B) of the Act defines the term ``party in 
interest'' to include, respectively, any fiduciary of a plan and any 
person providing services to a plan. Section 3(21)(A) of the Act 
provides, in relevant part, that a person is a fiduciary with respect 
to a plan to the extent that the person (i) exercises any discretionary 
authority or control respecting management of the Plan or any authority 
or control respecting management or disposition of its assets, or (ii) 
renders investment advice for a fee or other compensation, direct or 
indirect, with respect to any moneys or other property of a plan or has 
any authority or responsibility to do so.
    Russell entities may currently serve, and may in the future serve, 
as investment advisers, investment managers, trustees, or other 
fiduciaries with respect to Client Plans. Accordingly, pursuant to 
section 3(21)(A)(i) and (ii) of the Act, Russell and various other 
Russell affiliates may currently be, or may in the future be, 
fiduciaries with respect to Client Plans which engage in the proposed 
transactions. As fiduciaries, Russell and various other Russell 
affiliates may currently be, or may in the future be parties in 
interest with respect to Client Plans which engage in the transactions 
described in Section I of this proposed exemption.
    Section 406(a)(l)(D) of the Act prohibits a fiduciary with respect 
to a plan from causing such plan to engage in a transaction, if such 
fiduciary knows or should know, that such transaction constitutes a 
transfer to, or use by or for the benefit of, a party in interest, of 
any assets of such plan. Where Russell or its affiliates, as investment 
adviser or manager to a Client Plan, recommends the investment of plan 
assets, directly or indirectly, in shares of a collective fund or a 
mutual fund that is managed or advised by Russell or its affiliates, 
the investment purchase transaction by a Client Plan could be viewed as 
a transfer to, or use by or for the benefit of, the assets of such 
Client Plan by Russell or its affiliates in violation of section 
406(a)(1)(D) of the Act.
    Under section 406(b) of the Act, a fiduciary with respect to a plan 
may not: (a) deal with the assets of a plan in his own interest or for 
his own account, (b) act, in his individual or in any other capacity in 
any transaction involving a plan on behalf of a party (or represent a 
party) whose interests are adverse to the interests of such plan or the 
interests of its participants or beneficiaries, or (c) receive any 
consideration for his own personal account from any party dealing with 
a plan in connection with a transaction involving the assets of such 
plan.
    Under section 406(b)(1) of the Act, Russell or its affiliates, as 
investment manager or investment adviser to a Client Plan, may 
recommend the investment of plan assets, or cause the investment of 
plan assets, directly or indirectly, in shares of a collective fund or 
mutual fund, from which Russell or its affiliates receive compensation. 
Under such circumstances, due to the fact that the investment of plan 
assets in such collective fund or mutual fund may increase Russell's or 
its affiliates' compensation in connection with services provided to 
such fund, Russell, directly or indirectly through its affiliates, 
would be dealing with the assets of such Client Plan for its own 
interest or personal account in violation of section 406(b)(1) of the 
Act.
    With respect to section 406(b)(2) of the Act, Russell, acting in 
its capacity as investment manager or investment adviser, could cause a 
Client Plan to invest in, or could recommend that a Client Plan invest 
in, directly or indirectly, shares of a collective fund or a mutual 
fund that is managed or advised by Russell or its affiliates. In 
effect, Russell or its affiliates may be increasing their own 
compensation with respect to such collective fund or mutual fund. As 
such, at the Plan-level, Russell or its affiliates may be acting with 
interests that are divergent from those of the Plan, thus potentially 
violating section 406(b)(2) of the Act.
    With respect to section 406(b)(3) of the Act, Russell or its 
affiliates, as investment manager or investment adviser to a Client 
Plan, may receive investment advisory fees and ``secondary services'' 
fees from one or more collective funds or mutual funds in connection 
with a Client Plan's investment in such funds, subject to the terms and 
conditions of this proposed exemption, if granted. The Applicant notes 
that the fund is a third party and such payments may implicate 
406(b)(3) of ERISA.
    Thus, in the absence of an administrative exemption, the covered 
transactions described in Section I of this proposed exemption would 
violate sections 406(a)(1)(D) and (b) of the Act. If granted, this 
exemption would be effective as of June 1, 2014.

[[Page 44747]]

The Collective Funds and the Affiliated Funds

    5. Russell's Collective Funds currently include various bank-
maintained collective investment trusts and insurance company pooled 
separate accounts. Currently, to the extent that the investment of 
Client Plan assets into Russell Collective Funds may involve one or 
more prohibited transactions, Russell believes that the exemption 
afforded by section 408(b)(8) of the Act should apply.\55\
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    \55\ The Department, herein, is expressing no opinion in this 
proposed exemption regarding the reliance of Russell on the relief 
provided in section 408(b)(8) of the Act, nor is the Department 
offering any view as to whether Russell satisfies the conditions, as 
set forth in 408(b)(8).
---------------------------------------------------------------------------

    6. The Affiliated Funds are a series of mutual funds managed by 
RIMCo, and may include other Affiliated Funds to be established in the 
future by Russell. The Affiliated Funds are open-end investment 
companies registered with the Securities and Exchange Commission under 
the Investment Company Act of 1940, as amended. Russell may also serve 
as dividend disbursing agent, shareholder servicing agent, transfer 
agent, fund accountant, or provider of some other Secondary Services, 
including brokerage services, to an Affiliated Fund.

Prohibited Transaction Exemption 77-4 (PTE 77-4)

    7. It is represented that all of the Russell entities to which the 
proposed exemption, if granted, would apply are currently part of the 
same controlled group. In this regard, Russell maintains that--if and 
to the extent that Russell invests Client Plan assets (directly or 
indirectly via Collective Funds) in Affiliated Funds, such Russell 
entities can rely on the relief provided pursuant to PTE 77-4 (42 FR 
18732 (April 8, 1977))3.\56\
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    \56\ The Department, herein, is expressing no opinion in this 
proposed exemption regarding the reliance of Russell on the relief 
provided by PTE 77-4, nor is the Department offering any view as to 
whether Russell satisfies the conditions, as set forth in PTE 77-4.
---------------------------------------------------------------------------

    PTE 77-4 provides an exemption from section 406 of the Act and 
section 4975 of the Code for the purchase and for the sale by a plan of 
shares of a registered, open-ended investment company where the 
investment adviser of such fund: (a) Is a plan fiduciary or affiliated 
with a plan fiduciary; and (b) is not an employer of employees covered 
by the plan. The conditions of PTE 77-4 do not permit the payment by a 
plan of commissions, 12b-1 fees, redemption fees, and similar fees. PTE 
77-4 also requires the provision of prior disclosures (e.g., fee 
information and a current prospectus) to a second fiduciary, as well as 
written authorization from such second fiduciary for any changes in the 
fund fee rates. Finally, PTE 77-4 prohibits the payment of double 
investment advisory fees and similar fees with respect to plan assets 
invested in such shares for the entire period of such investment.
    8. Russell represents that the requested relief is essentially the 
same as that afforded by PTE 77-4, with the exception of the use of a 
``negative consent'' procedure, as discussed below for: (1) Approving 
Fee Increases with respect to Affiliated Funds, and (2) approving in 
advance the addition of Affiliated Funds (not previously authorized) as 
investments ``inside'' a Russell Collective Fund, subject to notice and 
a right to terminate the original approval at the time a new Affiliated 
Fund is proposed to be added.
    With respect to the PTE 77-4 requirement of ``affirmative'' 
consent, Russell maintains that obtaining advance written approval from 
a Second Fiduciary can be difficult, particularly in the case of a 
Collective Fund, where a Second Fiduciary from every investing Client 
Plan must provide written approval before fees payable to Russell by an 
Affiliated Fund in which such Client Plans invest indirectly via a 
Collective Fund can be increased, or before a new investment in an 
Affiliated Fund that was not previously authorized can be made. 
Affirmative consent may also be difficult to obtain in a timely fashion 
in the context of smaller Client Plans. If advance written approval is 
not obtained from the Second Fiduciary of each affected Client Plan, 
then PTE 77-4 may not apply and Russell may violate the restrictions of 
section 406(a) and 406(b) of the Act.

Negative Consent for Fee Increases

    9. With respect to fee increases, in order to avoid the delays 
associated with obtaining advance written approval from the Second 
Fiduciary of each affected Client Plan, Russell requests an individual 
administrative exemption which would allow for a negative consent 
procedure. Fee Increases are defined in Section IV(l) and include: (a) 
Any increase in the rate of a fee previously authorized in writing by 
the Second Fiduciary of an affected Client Plan, (b) any increase in 
any fee that results from an addition of services for which a fee is 
charged, (c) any increase in any fee that results from a decrease in 
the number or kind of services performed for such fee over an existing 
rate for such service previously authorized by the Second Fiduciary, 
and (d) any increase in a fee that results from Russell changing from 
one of the fee methods to another of the fee methods.
    To obtain negative consent authorization with regard to a Fee 
Increase, Russell will have to provide to the Second Fiduciary of any 
Client Plan invested directly or indirectly in shares of an Affiliated 
Fund certain disclosures, in writing, thirty (30) days in advance of 
any proposed Fee Increase, including but not limited to any Fee 
Increase for Secondary Services, as such services are described below. 
Such disclosures are to be delivered by regular mail or personal 
delivery (or if the Second Fiduciary consents by electronic means), and 
are to be accompanied by a Termination Form and instructions on the use 
of such form.
    Notwithstanding the requirement for thirty (30) days advance notice 
of a Fee Increase, the proposed exemption would permit Russell to 
implement a Fee Increase, without waiting until the expiration of the 
30 day period, provided that implementation of such Fee Increase does 
not start before Russell delivers to each affected Client Plan the 
Notice of Intent of Change of Fees, as described in Section II(k), and 
provided further that any affected Client Plan receives a cash credit 
equal to its pro rata share of such Fee Increase, for the period from 
the date of the implementation of such Fee Increase to the earlier of 
the date of the termination of the investment or the thirtieth (30th) 
day after the date Russell delivers the Notice of Change of Fee to the 
Second Fiduciary of each affected Client Plan. In addition, Russell 
must pay to each affected Client Plan interest on such cash credit. An 
independent auditor, on at least an annual basis, will verify the 
proper crediting of the pro rata share of each such Fee Increase and 
interest.
    An audit report shall be completed by such auditor no later than 
six (6) months after the period to which it relates.
    Failure of the Second Fiduciary to return the Termination Form or 
to provide some other written notification of the intent to terminate 
within a certain period of time will be deemed to be approval of the 
proposed Fee Increase, including but not limited to an increase in the 
fee for Secondary Services.

Negative Consent for New Affiliated Funds

    10. Russell further requests that the proposed exemption permit a 
Russell Collective Fund holding the assets of a Client Plan, such us a 
Target Date Fund, to purchase shares of an Affiliated Fund

[[Page 44748]]

not previously affirmatively authorized by the Second Fiduciary of such 
Client Plan, provided: (a) The organizational document of such 
Collective Fund expressly provides for the addition of one or more 
Affiliated Funds to the portfolio of such Collective Fund and such 
organizational document is disclosed initially to such Client Plan; and 
(b) Russell satisfies the requirements of the negative consent 
procedure for obtaining the approval of the Second Fiduciary for each 
Client Plan invested in such Collective Fund at the time Russell 
proposes to add an Affiliated Fund to such Collective Fund's portfolio.
    Specifically, the negative consent procedure would entail that the 
Second Fiduciary of each Client Plan invested in such Collective Fund 
receives in advance: (a) a notice of Russell's intent to add an 
Affiliated Fund to the portfolio of such Collective Fund; and (b) 
certain disclosures in writing, including a summary prospectus of such 
Affiliated Fund. The disclosures are delivered by regular mail or 
personal delivery (or if the Second Fiduciary consents, by electronic 
means), and are accompanied by a Termination Form and instructions on 
the use of such form.
    Failure of the Second Fiduciary to return the Termination Form or 
to provide some other written notification of the intent to terminate 
within a certain period of time will be deemed to be approval of the 
investment by such Collective Fund in such Affiliated Fund.
    Authorizations for fee increases and new affiliated funds may also 
be made affirmatively, in writing, by a Second Fiduciary, in a manner 
that is otherwise consistent with the requirements of the exemption.
    11. Russell represents that the negative consent procedures, 
described in the paragraphs above, are more efficient, cost effective, 
and administratively feasible than the advance written approval from 
the Second Fiduciary, as described in PTE 77-4. It is represented that 
the negative consent procedure avoids the administrative delays that 
would result if advance written approval from the Second Fiduciary were 
required.
    It is further represented that because the Second Fiduciary of each 
Client Plan will receive all of the necessary disclosures and will have 
an opportunity to terminate the investment in any Affiliated fund 
without penalty, such Client Plan and its participants and 
beneficiaries are adequately protected. Further, to the extent that 
Russell may find it desirable from time to time to create an Affiliated 
Fund with new investment goals, the negative consent procedure will 
facilitate the addition of an Affiliated Fund into the portfolios of 
Russell's Collective Funds.

Electronic Disclosures

    12. Russell intends that it may utilize electronic mail with 
hyperlinks to documents required to be disclosed by this proposed 
exemption. Russell agrees that it will ``actively'' satisfy the various 
disclosure requirements of this proposed exemption by transmitting 
emails, rather than relying on ``passive'' postings on a Web site. It 
is represented that this method of disclosure will be consistent with 
the Department's regulations at 29 CPR section 2520.104b-l. Client 
Plans which do not authorize electronic delivery will receive in 
advance hard copies of the documents required to be disclosed, and hard 
copies of documents will also be available on request.

Termination

    13. A Client Plan invested directly in shares of an Affiliated Fund 
or invested indirectly through a Collective Fund will have an 
opportunity to terminate and withdraw from investment in such 
Affiliated Fund, and, as applicable, to terminate and withdraw from 
investment in such Collective Fund in the event of a Fee Increase and 
in the event of the addition of an Affiliated Fund to the portfolio of 
a Collective Fund.
    In this regard, a Second Fiduciary will be provided with a 
Termination Form at least annually and may terminate the authorization 
to invest directly in shares of an Affiliated Fund or indirectly 
through a Collective Fund, at will, without penalty to a Client Plan. 
Termination of the authorization by the Second Fiduciary of a Client 
Plan investing directly in shares of an Affiliated Fund will result in 
such Client Plan withdrawing from such Affiliated Fund. Termination of 
the authorization by the Second Fiduciary of a Client Plan investing 
indirectly in shares of an Affiliated Fund through a Collective Fund 
will result in such Client Plan withdrawing from such Collective Fund.
    Generally, Russell will process timely requests for withdrawal from 
an Affiliated Fund within one (1) Business day. Withdrawal from a 
Collective Fund will generally be processed within the same time frame, 
subject to rules designed to ensure orderly withdrawals and fairness 
for the withdrawing Client Plans and non-withdrawing Client Plans, but 
in no event shall such withdrawal be implemented by Russell more than 
five business (5) days after receipt by Russell of a Termination Form 
or other written notification of intent to terminate investment in such 
Collective Fund from the Second Fiduciary acting on behalf of the 
withdrawing Client Plan. Russell will pay interest on the settlement 
amount for the period from receipt by Russell of a Termination Form or 
other written notification of intent to terminate from the Second 
Fiduciary, acting on behalf of the withdrawing Client Plan, to the date 
Russell pays the settlement amount, plus interest thereon.
    From the date a Client Plan terminates its investment in an 
Affiliated Fund, such Client Plan will not be subject to pay a pro rata 
share of the fees received by Russell from such Affiliated Fund. 
Likewise, from the date a Client Plan terminates its investment in a 
Collective Fund, such Client Plan will not be subject to pay a pro rata 
share of the fees received by Russell from such Collective Fund, nor 
will such Client Plan be subject to changes in the portfolio of such 
Collective Fund, including a pro rata share of any Affiliated Fund-
Level Advisory Fee arising from the investment by such Collective Fund 
in an Affiliated Fund.

Receipt of Fees Pursuant to the Fee Methods

    14. The exemption, if granted, includes conditions which detail 
various methods which ensure that Russell complies with the prohibition 
against a Client Plan paying double investment management fees, 
investment advisory, and similar fees for the assets of Client Plans 
invested directly in shares of an Affiliated Fund or invested 
indirectly in shares of an Affiliated Fund though a Collective Fund. 
These methods are described in Section II(a)(l)-(3) of this proposed 
exemption.

Plan-Level Fees

    15. It is represented that currently to the extent that Russell 
provides discretionary investment management services \57\ to any 
Client Plan that invests directly in shares of an Affiliated Fund or 
indirectly through a Collective Fund, Russell does not charge any 
investment management fee, any investment advisory fee, or any similar 
fee directly to such Client Plan.\58\ If, in the future, Russell were 
to do so, this

[[Page 44749]]

proposed exemption would require Russell to use the methods, as 
described in Section II(a) of this exemption, as applicable, so as to 
avoid receiving ``double'' investment management, investment advisory, 
and similar fees.
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    \57\ Investment management services do not include Asset 
Allocation Services, as defined above in Section IV(p).
    \58\ The Department, herein, is not providing relief for the 
receipt by Russell of a Plan-Level Management Fee for investment 
management services provided at the plan-level by Russell to a 
Client Plan.
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The Collective Fund-Level Management Fee

    16. With respect to Collective Funds that are collective investment 
trusts, Russell Trust currently charges a Trustee Fee that would cover 
non-fiduciary administrative, custody and record keeping services and 
may also cover fiduciary investment advisory/management services. If 
and to the extent that, in the future, Russell causes its Collective 
Funds to invest in Affiliated Funds, Russell will utilize the methods, 
described in Section II(a)(2) and in Section II(a)(3), as applicable, 
so as to avoid charging ``double'' investment advisory and similar 
fees.

The Affiliated Fund-Level Advisory Fee

    17. The Affiliated Fund-Level Advisory Fees are described in the 
summary prospectus for an Affiliated Fund and include fees for 
investment advisory services and fees for similar services which 
Russell receives as compensation for the provision of such services to 
such Affiliated Fund.
    Russell may also charge Plan-Level Management Fees and Collective 
Fund-Level Management Fees with respect to a Client Plan. Where a 
Client Plan invests in an Affiliated Fund through a Plan-Level and/or a 
Collective Fund-Level investment management arrangement, in order to 
avoid receiving double investment management fees with respect to the 
Client Plan's investment in an Affiliated Fund, Russell must comply 
with the conditions, as set forth in Section II(a) of this exemption, 
as applicable.

Receipt of Fees for Secondary Services

    18. Russell also receives from an Affiliated Fund various fees and 
expenses for dividend disbursing agency, transfer agency, and similar 
services, including brokerage services. It is represented that all such 
services are treated as ``Secondary Services.'' The term ``Secondary 
Services'' is defined above in Section IV(i), to mean a service other 
than an investment management service, an investment advisory service, 
and any similar service, which is provided by Russell to an Affiliated 
Fund, including but not limited to, accounting, administrative, 
brokerage, and other services. It is represented that all fees for 
Secondary Services received by Russell at this time are paid to Russell 
directly by the Affiliated Funds. The negative consent procedure 
applicable for a Fee Increase for Secondary Services is discussed above 
in Representation 9.
    Russell affiliates may receive commissions for the performance of 
brokerage services for the mutual funds. Under the conditions of this 
proposed exemption, if an Affiliated Fund places brokerage transactions 
with Russell, Russell will provide the Second Fiduciary of each such 
Client Plan, at least annually, the disclosure described in Section 
II(o) of this proposed exemption.
    19. It is represented that the proposed exemption is in the 
interest of Client Plans, because it will allow Russell to manage or 
advise with respect to the assets of such Client Plans invested in 
shares of an Affiliated Fund, either directly or indirectly through a 
Collective Fund, in an efficient or timely manner and on terms that 
might not otherwise be available without exemptive relief.
    20. It is represented that the proposed exemption contains 
sufficient safeguards for the protection of the Client Plans invested 
in shares of an Affiliated Fund, either directly or indirectly, through 
a Collective Fund. Prior to any investment by a Client Plan directly or 
indirectly in shares of an Affiliated Fund, such investment must be 
authorized by the Second Fiduciary of such Client Plan, based on full 
and detailed written disclosure concerning such Affiliated Fund.
    It is further represented that the proposed exemption is protective 
of the rights of Client Plans, because any Fee Increase or the addition 
of an Affiliated Fund to the portfolio of a Collective Fund will be on 
terms monitored and approved by the Second Fiduciary, who will have the 
ability to avoid the effect of such Fee Increase and the effect of the 
addition of an Affiliated Fund to the portfolio of a Collective Fund. 
Additionally, each investment of the assets of a Client Plan in shares 
of an Affiliated Fund, either directly or indirectly, will be subject 
to the ongoing ability of the Second Fiduciary of such Client Plan to 
terminate the investment in such Affiliated Fund and to terminate the 
investment in such Collective Fund, without penalty to such Client Plan 
at any time upon written notice of termination to Russell.
    It is also represented that the proposed exemption is protective of 
the rights of Client Plans, because any Fee Increase or the addition of 
an Affiliated Fund to the portfolio of a Collective Fund will be on 
terms monitored and approved by the Second Fiduciary who will have the 
ability to avoid the effect of such Fee Increase and the effect of the 
addition of an Affiliated Fund to the portfolio of a Collective Fund. 
Furthermore, each investment of the assets of a Client Plan in shares 
of an Affiliated Fund, either directly or indirectly through a 
Collective Fund, will be subject to the ongoing ability of the Second 
Fiduciary of such Client Plan to terminate the investment in such 
Affiliated Fund and to terminate the investment in such Collective 
Fund, without penalty to such Client Plan (including any fee or charge 
related to such penalty) at any time upon written notice of termination 
to Russell.
    In addition to the initial disclosures, Russell will provide to 
such Second Fiduciary ongoing disclosures regarding such Affiliated 
Funds. Moreover, Russell will respond to inquiries from a Second 
Fiduciary and will provide any other reasonably available information 
to a Second Fiduciary upon request.
    Finally, Russell, in its fiduciary capacity, will:
    (a) Act in the Best Interest of the Client Plans; (b) charge fees 
which are reasonable in relation to the total services it provides to 
Client Plans; and (c) not make misleading statements to Client Plans 
regarding recommended investments, fees, material conflicts of 
interest, and any other matters relevant to a Client Plan's investment 
decisions.
    21. It is represented that the proposed exemption is 
administratively feasible because the subject transactions will not 
require continued monitoring or other involvement on behalf of the 
Department or the Internal Revenue Service. The use of a Termination 
Form will provide both a record and a regular reminder to the Second 
Fiduciary of a Client Plan of such plan's rights vis-[agrave]-vis 
investing in Affiliated Funds, either directly or indirectly through a 
Collective Fund.
    22. Importantly, with very narrow exceptions relating to the 
negative consent authorizations described above, all of the conditions 
of PTE 77-4, as amended and/or restated, must be met.
    23. In summary, Russell represents that the proposed transactions 
satisfy the statutory criteria for an exemption under section 408(a) of 
the Act for the following reasons:
    (a) The Affiliated Funds will provide Client Plans with effective 
investment vehicles;
    (b) The receipt by Russell of an Affiliated Fund-Level Advisory 
Fee, and the receipt of a fee by Russell for Secondary Services will 
require authorization in writing in advance by a Second Fiduciary for 
each such Client Plan after receipt of full written disclosure;

[[Page 44750]]

    (c) Any authorization made by a Second Fiduciary, acting on behalf 
of a Client Plan will be terminable at will by such Second Fiduciary, 
without penalty to such Client Plan (including any fee or charge 
related to such penalty), following receipt by Russell of a Termination 
Form or any other written notice of termination from such Second 
Fiduciary of a Client Plan invested directly in shares of an Affiliated 
Fund or indirectly through a Collective Fund;
    (d) The Termination Form will be supplied to such Second Fiduciary 
at least annually;
    (e) No sales commissions will be paid by Client Plans in connection 
with the acquisition or in connection with the sale of shares of the 
Affiliated Funds either directly or through a Collective Fund, and only 
redemption fees disclosed in the summary prospectus of an Affiliated 
Fund will be paid by a Client Plan;
    (f) All dealings among a Client Plan, any Affiliated Fund, and 
Russell will be on a basis no less favorable to such Client Plan than 
such dealings with the other shareholders of such Affiliated Fund;
    (g) The purchase price paid and the sales price received by a 
Client Plan for shares in an Affiliated Fund purchased or sold 
directly, and the purchase price paid and the sales price received by a 
Client Plan for shares in an Affiliated Fund purchased or sold 
indirectly through a Collective Fund, will be the NAV at the time of 
the transaction, and will be the same purchase price paid and the same 
sales price received for such shares by any other shareholder of the 
same class of shares in such Affiliated Fund at that time;
    (h) A Client Plan investing in shares of an Affiliated Fund, either 
directly or indirectly, through a Collective Fund, will not pay 
``double fees'' for investment management, investment advisory, and 
similar fees with respect to the assets of such Client Plan so 
invested; and
    (i) An Auditor on at least an annual basis will verify the proper 
crediting of any Fee Increase and interest, received by a Client Plan, 
pursuant to Section II(k)(2), and an audit report shall be completed by 
such Auditor no later than six (6) months after the period to which it 
relates.

Notice to Interested Persons

    Those persons who may be interested in the publication in the 
Federal Register of the Notice include each Client Plan invested 
directly in shares of an Affiliated Fund, each Client Plan invested 
indirectly in shares of an Affiliated Fund through a Collective Fund, 
and each plan for which Russell provides discretionary management 
services at the time the proposed exemption is published in the Federal 
Register.
    It is represented that notification will be provided to each of 
these interested persons by first class mail, within fifteen (15) 
calendar days of the date of the publication of the Notice in the 
Federal Register. Such mailing will contain a copy of the Notice, as it 
appears in the Federal Register on the date of publication, plus a copy 
of the Supplemental Statement, as required, pursuant to 29 CFR 
2570.43(b)(2), which will advise such interested persons of their right 
to comment and to request a hearing.
    The Department must receive all written comments and requests for a 
hearing no later than forty-five (45) days from the date of the 
publication of the Notice in the Federal Register.
    All comments will be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments may be posted on the Internet and can be retrieved by most 
Internet search engines.

FURTHER INFORMATION CONTACT: Mr. Joseph Brennan of the Department, 
telephone (202) 693-8456 (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 of the Act and/or the Code, 
including any prohibited transaction provisions to which the exemption 
does not apply and the general fiduciary responsibility provisions of 
section 404 of the Act, which, among other things, require a fiduciary 
to discharge his duties respecting the plan solely in the interest of 
the participants and beneficiaries of the plan and in a prudent fashion 
in accordance with section 404(a)(1)(b) of the Act; nor does it affect 
the requirement of section 401(a) of the Code that the plan must 
operate for the exclusive benefit of the employees of the employer 
maintaining the plan and their beneficiaries;
    (2) Before an exemption may be granted under section 408(a) of the 
Act and/or section 4975(c)(2) of the Code, the Department must find 
that the exemption is administratively feasible, in the interests of 
the plan and of its participants and beneficiaries, and protective of 
the rights of participants and beneficiaries of the plan;
    (3) The proposed exemptions, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and/or the 
Code, including statutory or administrative exemptions and transitional 
rules. Furthermore, the fact that a transaction is subject to an 
administrative or statutory exemption is not dispositive of whether the 
transaction is in fact a prohibited transaction; and
    (4) The proposed exemptions, if granted, will be subject to the 
express condition that the material facts and representations contained 
in each application are true and complete, and that each application 
accurately describes all material terms of the transaction which is the 
subject of the exemption.

    Signed at Washington, DC, this 20th day of July, 2015.
 Lyssa E. Hall,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department Of Labor.
[FR Doc. 2015-18144 Filed 7-24-15; 8:45 am]
 BILLING CODE 4510-29-P