[Federal Register Volume 82, Number 148 (Thursday, August 3, 2017)]
[Notices]
[Pages 36214-36235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16295]



[[Page 36213]]

Vol. 82

Thursday,

No. 148

August 3, 2017

Part II





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. 82 , No. 148 / Thursday, August 3, 2017 / 
Notices  

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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). If granted, these proposed 
exemptions allow designated parties to engage in transactions that 
would otherwise be prohibited provided the conditions stated there in 
are met. This notice includes the following proposed exemptions: D-
11869, Liberty Mutual Insurance Company; and D-11916, Russell 
Investment Management, LLC (RIM), Russell Investments Capital, LLC 
(RICap), and their 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 via mail to the Employee Benefits Security 
Administration (EBSA), Office of Exemption Determinations, U.S. 
Department of Labor, 200 Constitution Avenue NW., Suite 400, 
Washington, DC 20210. Attention: Application No. ___, stated in each 
Notice of Proposed Exemption or via private delivery service or courier 
to the Employee Benefits Security Administration (EBSA), Office of 
Exemption Determinations, U.S. Department of Labor, 122 C St. NW., 
Suite 400, Washington, DC 20001. 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], by FAX to (202) 693-8474, or online through http://www.regulations.gov 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.

Liberty Mutual Insurance Company

(Liberty Mutual or the Applicant)

Located in Boston, MA

[Application No. D-11869]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of 29 U.S.C. 1108 (section 408(a) of the Employee Retirement 
Income Security Act of 1974, as amended (ERISA or the Act)) and 26 
U.S.C. 4975(c)(2) (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).\2\ Effective December 31, 1978, section 102 of Reorganization 
Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority 
of the Secretary of the Treasury to issue exemptions of the type 
requested to the Secretary of Labor. Therefore, this notice of proposed 
exemption is issued solely by the Department. If the proposed exemption 
is granted, the restrictions of sections 406(a)(1)(A), 406(a)(1)(B), 
and 406(a)(1)(D) of ERISA and the sanctions resulting from the 
application of sections 4975(a) and 4975(b) of the Code, by reason of 
sections 4975(c)(1)(A), 4975(c)(1)(B), and 4975(c)(1)(D) of the Code, 
shall not apply to a transaction between a party in interest with 
respect to an employee benefit plan sponsored by Liberty Mutual or its 
affiliates (the Liberty Mutual Plan) and such Liberty Mutual Plan, as 
described in Part I of Prohibited Transaction Exemption 96-23 (PTE 96-
23),\3\ provided that the in-house asset manager (INHAM) for the 
Liberty Mutual Plan has discretionary control with respect to plan 
assets involved in the transaction, and certain conditions are 
satisfied.
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    \2\ For purposes of this proposed exemption, references to the 
provisions of section 406 of Title I of ERISA, unless otherwise 
specified, should be read to refer as well to the corresponding 
provisions of section 4975 of the Code.
    \3\ 61 FR 15975 (April 10, 1996), as amended at 76 FR 18255 
(April 1, 2011).
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Summary of Facts and Representations \4\
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    \4\ 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.
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Background

    1. Liberty Mutual is an insurance company domiciled in the

[[Page 36215]]

Commonwealth of Massachusetts, engaged primarily in the provision of 
property and casualty insurance. Liberty Mutual is a wholly-owned 
subsidiary of Liberty Mutual Holding Company Inc. (Liberty Mutual 
Group), which, together with its subsidiaries and affiliates, is a 
diversified global insurer. Liberty Mutual Group is based in Boston, 
Massachusetts and currently operates in 30 countries, with 
approximately 900 offices worldwide and over 50,000 employees.
    2. Liberty Mutual Group established the Liberty Mutual Retirement 
Benefit Plan (the Retirement Plan) in 1951 in a consolidation of the 
Employees' Retirement Annuity Plan of Liberty Mutual, Liberty Mutual 
Fire and the Liberty Mutual Supplementary Pension Plan. Liberty Mutual 
represents that the Retirement Plan is a defined benefit plan providing 
benefits based on a cash balance formula and a final average pay 
formula. Liberty Mutual states that, as of December 31, 2014, the 
Retirement Plan had assets valued at $6.24 billion with 77,244 
participants and beneficiaries covered. Liberty Mutual represents that, 
prior to the enactment of ERISA, the Retirement Plan was funded under, 
and its assets were invested pursuant to, a group annuity contract. 
Liberty Mutual represents that the Retirement Plan continued to be 
funded and managed through the use of a group annuity contract, until 
2011, when the assets of the Retirement Plan were transferred to a 
trust, the Liberty Mutual Retirement Plan Master Trust (the Trust).\5\ 
According to Liberty Mutual, in 2011, Liberty Mutual established a 
separate investment management subsidiary, Liberty Mutual Group Asset 
Management Inc. (LMGAMI), described in more detail below, which was 
appointed as the Retirement Plan's investment manager. The Bank of New 
York Mellon became the Retirement Plan's trustee.
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    \5\ According to the Retirement Plan's Investment Policy 
Statement, effective October 24, 2014, a small portion of the 
Retirement Plan's legacy assets remain in the group annuity contract 
issued by Liberty Life Assurance Company of Boston. The Retirement 
Plan intends to transition all of its assets from the group annuity 
contract to the Trust.
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LMGAMI

    3. Liberty Mutual represents that LMGAMI became a registered 
investment adviser (an RIA) under the Investment Advisers Act of 1940, 
as amended (the Advisers Act) in May 2011. According to Liberty Mutual, 
there were several unrelated business objectives that motivated the 
decision to register LMGAMI as an RIA. First, Liberty Mutual owns a 
number of entities operating in, and incorporated under the laws of, 
non-U.S. jurisdictions. Liberty Mutual represents that, as with its 
U.S. operations, Liberty Mutual's preference is for LMGAMI to manage 
its assets internally in conjunction with the assets of other Liberty 
Mutual affiliates. Liberty Mutual states further that, at the time the 
decision was made to register LMGAMI as an RIA, the benefits derived 
from being able to internally manage more of Liberty Mutual's foreign 
operations, as well as the fees associated with managing institutional 
third party money, was expected to offset the financial, administrative 
and regulatory burdens associated with LMGAMI being an RIA.
    Furthermore, Liberty Mutual states that LMGAMI's registration as an 
RIA provided the collateral opportunity to transfer the assets of the 
Retirement Plan to a trust and to appoint LMGAMI as the Retirement 
Plan's discretionary investment manager, as permitted under ERISA. 
Liberty Mutual states that investing the assets of the Retirement Plan 
through an independent trust could provide the Retirement Plan access 
to investments that were otherwise not permitted or practical under the 
terms of a group annuity contract. When LMGAMI became an RIA, the 
assets of the Retirement Plan were transferred to the Trust and LMGAMI 
was appointed as the investment manager of the Retirement Plan and any 
other employee benefit plan maintained for the benefit of the employees 
of Liberty Mutual and its affiliated entities that is subject to the 
fiduciary responsibility provisions of Part IV of Title I of ERISA 
(collectively with the Retirement Plan, the Liberty Mutual Plans).
    4. The Department notes that the rules set forth in section 406 of 
ERISA proscribe certain ``prohibited transactions'' between plans and 
related parties with respect to those plans, known as ``parties in 
interest.'' Under section 3(14) of ERISA, parties in interest with 
respect to a plan include, among others, service providers with respect 
to the plan, and certain of their affiliates. The prohibited 
transaction provisions under section 406(a) of ERISA prohibit, in 
relevant part, sales, leases, loans or the provision of services 
between a party in interest and a plan (or an entity whose assets are 
deemed to constitute the assets of a plan), as well as the use of plan 
assets by or for the benefit of, or a transfer of plan assets to, a 
party in interest.\6\ Under the authority of ERISA section 408(a) and 
Code section 4975(c)(2), the Department has the authority to grant 
exemptions from such ``prohibited transactions'' in accordance with the 
procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 
66644, October 27, 2011).
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    \6\ The prohibited transaction provisions also include certain 
fiduciary prohibited transactions under section 406(b) of ERISA, 
which do not necessitate a transaction between a plan and a party in 
interest. These include transactions involving fiduciary self-
dealing, fiduciary conflicts of interest, and kickbacks to 
fiduciaries.
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    5. Liberty Mutual states that PTE 96-23 provides broad exemptive 
relief for transactions entered into on behalf of a plan at the 
direction of an ``in-house asset manager'' (i.e., an INHAM), an 
investment manager that manages assets for related employee benefit 
plans, upon meeting certain requirements. The principal part of the 
exemption is relief for transactions between an INHAM and persons who 
are parties in interest to the plan solely by reason of providing 
services to the plan or by reason of a relationship to such a service 
provider; and certain ``co-joint venturers'' with the plan's sponsoring 
employer. Among other things, in order to rely on the relief, the INHAM 
must adopt written policies and procedures designed to ensure 
compliance with the conditions of the exemption, and a qualified, 
independent auditor must annually conduct an audit of compliance with 
the policies and procedures and certain conditions of the exemption.\7\ 
Moreover, Liberty Mutual states that relief under PTE 96-23 is only 
available to entities that register as RIAs. Specifically, Part 
IV(a)(2) of PTE 96-23 defines an INHAM, in relevant part, as ``an 
investment adviser registered under the [Advisers Act.]'' The 
requirement that an INHAM be registered under the Advisers Act as an 
RIA was included, in addition to others, to ``help to ensure that the 
INHAM is an entity that has developed an appropriate level of expertise 
in financial and business matters.'' \8\ Liberty Mutual's 
representations regarding its experience and expertise are described in 
paragraph 27 below.
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    \7\ See 67 FR 18257, 18258 (April 1, 2011).
    \8\ See 60 FR 15600 (March 24, 1995).
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Decision To Withdraw RIA Status

    6. According to Liberty Mutual, LMGAMI determined that maintaining 
its RIA status was more burdensome than originally anticipated and 
would not further Liberty Mutual's business strategy. The Applicant 
states that, in its insurance business, Liberty Mutual invests 
significant amounts of capital in long-term investment vehicles (such 
as private capital transactions). The Applicant states that LMGAMI's

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registration as an RIA was required to create strategic partnerships 
with a small number of large institutional investors with like 
objectives. By doing so, Liberty Mutual could enhance its ability to 
invest in such assets and provide additional diversification through 
such investments.
    7. Liberty Mutual represents that: Legislative changes such as 
those enacted under the Dodd-Frank Wall Street Reform and Consumer 
Protection Act; \9\ regulatory changes that substantially discounted 
the value of long-term illiquid investments for purposes of satisfying 
the capital requirements applicable to insurance companies and other 
financial services companies; and adverse changes in the capital 
treatment of such investments by credit rating agencies; combined to 
substantially diminish the appetite for such investments, among large 
institutions, and essentially derailed this business objective. As a 
result, the Applicant states, Liberty Mutual had no unaffiliated third 
party assets under management, and had no intention to seek to manage 
any such assets.
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    \9\ Public Law 111-203, 124 Stat. 1376 (2010).
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    8. Without any third-party assets under its management, the 
Applicant states that the rules and regulations pertaining to 
investments made by RIAs are inapplicable to Liberty Mutual's business 
model. Liberty Mutual represents that a significant part of its 
business is the investment of assets that belong to the insurance 
company. Thus, the efficient investment of substantial sums of its 
assets is critical to its ongoing operations. As a regulated insurance 
company, it must maintain certain statutory reserves and meet minimum 
standards of risk-based capital. Liberty Mutual is subject to 
regulation by state authorities that monitor its ongoing solvency and 
establish certain rules and procedures that must be followed with 
respect to the investments of its assets.
    9. Similarly, Liberty Mutual states the Advisers Act contains other 
rules and prohibitions intended to protect a third party investor from 
the adviser over-promoting its recommendations. The Applicant states 
that while such restrictions may be appropriate for protecting the 
interests of third-party investors, these conditions added substantial 
burdens for an entity managing billions of dollars of assets for an 
integrated group of affiliated financial services companies and did not 
provide any useful protection when LMGAMI was communicating with the 
sophisticated and financially astute officers of Liberty Mutual and its 
other affiliates.\10\
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    \10\ The Department notes that it is not expressing a view 
whether certain rules under the Advisers Act may be unduly 
burdensome or inappropriate in protecting Liberty Mutual's 
interests.
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    10. Liberty Mutual states that the Advisers Act imposes the 
safeguards and limitations contained therein because many of a given 
RIA's clients are individuals without significant sophistication and/or 
bargaining power and without any other statutory regime to protect them 
against any potential adviser misconduct. However, the only ``client'' 
money under Liberty Mutual's management is that of its own Retirement 
Plan. As such, the Applicant states that Liberty Mutual and LMGAMI are 
already legally compelled as fiduciaries to act in the Retirement 
Plan's best interests under provisions of section 404 of ERISA. Liberty 
Mutual and LMGAMI are expressly precluded from acting to the detriment 
of the Retirement Plan, and any action undertaken to benefit itself or 
any of its affiliates would be precluded by the provisions of section 
406 of ERISA (among others). Moreover, the Applicant states that 
Liberty Mutual has an economic interest in the performance of the 
Retirement Plan's assets, as ERISA and the Code make the company 
responsible for any shortfalls in the Retirement Plan's funding. Thus, 
Liberty Mutual states that it and the Retirement Plan have a 
commonality of interests when it comes to the success of the Retirement 
Plan's investments that is not typically present between an RIA and its 
client.\11\
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    \11\ The Department notes that this exemption does not provide 
relief for LMGAMI or any other Liberty Mutual entity to receive a 
fee in connection with any transaction described herein.
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    11. Thus, Liberty Mutual represents that while LMGAMI's status as 
an RIA afforded the benefits available under PTE 96-23 and the ability 
to manage the Retirement Plan's assets in a trusteed arrangement, the 
burdens for the business and its operations made continuing such status 
unacceptable. Liberty Mutual represents that LMGAMI filed a Form ADV-W 
with the Securities and Exchange Commission on October 27, 2014, to 
effect the withdrawal of its RIA status. As such, Liberty Mutual 
states, LMGAMI no longer qualifies to serve as an INHAM pursuant to PTE 
96-23.
    12. Upon LMGAMI discontinuing its RIA registration, Liberty Mutual, 
as an investment manager under section 3(38) of ERISA, assumed 
management responsibilities over the assets of the Retirement Plan 
under an investment management agreement with an effective date of 
October 27, 2014 (the IMA). LMGAMI continues to provide investment 
services to the Retirement Plan as a sub-adviser to Liberty Mutual, at 
no cost, pursuant to a sub-adviser agreement between Liberty Mutual and 
LMGAMI, effective October 27, 2014 (the SAA). Liberty Mutual submitted 
the IMA and the SAA to the Massachusetts Department of Insurance 
(Department of Insurance) on October 10, 2014, and the Department of 
Insurance approved the IMA and SAA on October 24, 2014.

Exemptive Relief Requested

    13. Liberty Mutual requests an individual exemption from sections 
406(a)(1)(A), 406(a)(1)(B), and 406(a)(1)(D) of ERISA with regard to 
the management by Liberty Mutual and its asset manager affiliates 
(collectively, the Liberty Mutual Asset Managers) of the plan assets of 
the Liberty Mutual Plans. In this regard, Liberty Mutual requests 
exemptive relief for certain party-in-interest transactions with 
respect to which the Liberty Mutual Asset Managers would engage in on 
behalf of a Liberty Mutual Plan if PTE 96-23 were available. Such 
transactions include arm's-length sales or exchanges of property, the 
provision of necessary services, and various commercially appropriate 
extensions of credit. According to Liberty Mutual, the requested relief 
includes transactions for which no other statutory or administrative 
exemptions are available, including, hedges of currency risks 
associated with investments denominated in foreign currencies, as well 
as transactions with regard to assets for which there is not an 
established market, such as real estate transactions, secondary 
investments in private equity vehicles, and certain private debt 
offerings of reliable borrowers.
    14. Liberty Mutual states that sections 3(14)(A) and 3(14)(B) of 
ERISA define the term ``party in interest'' to include, respectively, 
any fiduciary of a plan and any person providing services to a plan. 
Numerous entities currently provide, and will in the future continue to 
provide services to the Liberty Mutual Plans, including as brokers, 
custodians, investment advisers, consultants, actuaries or trustees, 
and therefore constitute parties in interest with respect to the 
Liberty Mutual Plans. Furthermore, section 3(14)(I) of ERISA defines 
the term ``party in interest'' to include certain entities (co-joint 
venturers) owning at least 10% of a joint venture in which an employer 
of employees participating in the plan (or its parent) has at least a 
50% interest.

[[Page 36217]]

    15. Liberty Mutual represents that section 406(a)(1)(A) of ERISA 
prohibits the sale or exchange, or leasing, of property between a plan 
and a party in interest. Liberty Mutual states that, to the extent that 
any service provider, such as a broker that provides brokerage services 
to a Liberty Mutual Plan or any co-joint venturer, sells any security 
(including a debt instrument) or other property to, or purchases a 
security or other property from, a Liberty Mutual Plan as a principal, 
a prohibited transaction would occur under section 406(a)(1)(A) of 
ERISA.
    16. Liberty Mutual represents that section 406(a)(1)(B) of ERISA 
prohibits the lending of money or other extension of credit between a 
plan and a party in interest. Thus, Liberty Mutual states, to the 
extent that any service provider to a Liberty Mutual Plan or a co-joint 
venturer of Liberty Mutual, such as a bank, holds a mortgage on real 
property that a Liberty Mutual Plan owns, or a broker extends credit to 
a Liberty Mutual Plan to effect a securities transaction, or a Liberty 
Mutual Plan purchases a debt obligation of any person that is also a 
service provider to such Liberty Mutual Plan or a co-joint venture of 
Liberty Mutual, a prohibited transaction would occur under section 
406(a)(1)(B) of ERISA.
    17. Liberty Mutual further states that section 406(a)(1)(D) of 
ERISA 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. As such, 
Liberty Mutual states, to the extent that any Liberty Mutual Asset 
Manager acting in a fiduciary capacity on behalf of any Liberty Mutual 
Plan were to allow such Liberty Mutual Plan to engage in a transaction 
with a service provider, such as the manager of an investment fund that 
is treated as plan assets under ERISA; or a co-joint venturer of 
Liberty Mutual; such transaction would involve the use or transfer to 
by such entity of the assets of the Liberty Mutual Plan, in violation 
of section 406(a)(1)(D) of ERISA.

Statutory Findings--In The Interest of Liberty Mutual Plans

    18. Liberty Mutual represents that the proposed exemption, if 
granted, would facilitate an efficient execution of the Liberty Mutual 
Plans' investment strategy, by permitting the Liberty Mutual Plans to 
engage in a series of commercially common, beneficial transactions with 
counterparties that may constitute ``parties in interest'' because of 
their status as service providers under section 3(14)(B) of ERISA.
    19. Liberty Mutual represents that, while section 408(b)(17) of 
ERISA generally permits the sale or exchange of property or the 
extension of credit between a plan and a person that is a service 
provider to such plan, there are certain transactions beneficial to the 
Retirement Plan, such as hedges of currency risks associated with 
investments denominated in foreign currencies, which cannot be effected 
in reliance on the available statutory exemptions. Liberty Mutual 
states that the Retirement Plan incorporates into its investment 
strategy investments covering a wide array of investment classes, 
including alternative investments. Liberty Mutual states that 
sophisticated counterparties to the Retirement Plan usually insist on 
representations and warranties that no prohibited transaction will 
occur as a result of a transaction.
    20. Furthermore, Liberty Mutual represents that, for common 
commercial transactions involving assets for which there is not an 
established market, such as real estate transactions, secondary 
investments in private equity vehicles, and certain private debt 
offerings of reliable borrowers, the requisite data to assure 
compliance with the statutory exemptions, such as demonstrating 
``adequate consideration'' with regard to transactions relying upon 
section 408(b)(17) of ERISA, may not be available or timely available. 
Without the availability of such market references, the availability of 
the statutory exemption under section 408(b)(l7) of ERISA is dependent 
on the judgment of the fiduciary acting on behalf of the investing 
plan. The Applicant represents that counterparties are sometimes 
unwilling to rely on a fiduciary's subjective determination of value, 
which often leads to additional time and expense (such as may arise 
from having to obtain additional independent appraisals of the value of 
the underlying assets from independent valuation firms at the expense 
of the plan) to complete an investment. The Applicant represents that 
counterparties may not wish to delay the consummation of the 
transaction in order to assure that such a valuation can be obtained, 
particularly if other investors are available that can rely on a 
statutory exemption such as PTE 96-23. Liberty Mutual states that, 
therefore, the requested exemption would facilitate the Retirement 
Plan's ability to properly diversify its investments and make it more 
competitive in procuring such assets for its own account.
    21. Liberty Mutual represents further that it requires relief for 
transactions between the plan and co-joint venturers, or entities that 
own at least 10% of a joint venture in which an employer of employees 
participating in the plan (or its parent) has at least a 50% interest 
and are described in section 3(14)(I) of ERISA. Liberty Mutual 
represents that its investment arm invests in assets through comingled 
investment vehicles as a part of its business model. For instance, the 
investment arm of Liberty mutual may invest in real estate with a joint 
venture partner and the joint venturer would own 10% and manage the 
real estate and Liberty Mutual would own the remaining interest in the 
real estate investment through its general account. Liberty Mutual 
states that it engages in such transactions with other investment 
vehicles also where they invest with a partnership or joint venture and 
Liberty owns least 50%. According to the Applicant, it is 
administratively burdensome to monitor every joint venture in which an 
employer participates in order to ensure that a plan maintained by such 
employer does not engage in commercially common, low-risk transactions 
with such entities.
    Liberty Mutual represents that, given the magnitude of the assets 
that it manages in the ordinary course of its business, Liberty Mutual 
makes numerous investments, including significant investments in real 
estate, private equity and other types of alternative investments. 
Liberty Mutual represents that, in the context of real estate 
investments, it is common for the developer of the property to hold a 
substantial minority interest in the investment, while the investor 
that finances the development of the property holds the majority 
interest. However, the developer, which has the expertise to develop 
the property effectively, would retain operational control over the 
management and development of the property. On the other hand, Liberty 
Mutual represents, in private equity investments, Liberty Mutual will 
often take a direct substantial ownership position or be a significant 
investor in an investment fund established to make investments in 
portfolio companies. To this end, it would not be uncommon for Liberty 
Mutual to have ownership of more than 10% and less than 50% in such 
private equity investments. Operational control over the portfolio 
companies will usually be vested in the sponsor of the fund or the lead 
investor in a direct investment. The Applicant represents that other 
kinds of alternative

[[Page 36218]]

investments are frequently structured in a similar fashion, where 
Liberty Mutual is a significant minority holder, but not a controlling 
investor and does not have any operational control over the investment 
or the investment vehicle managing the assets. As such, in the ordinary 
course of business, Liberty Mutual owns substantial passive interests 
in a very large number of investments where other partners in the 
investment, who have unique expertise in the particular investment 
category, have the control over the management of the underlying 
investments.
    Liberty Mutual represents that, compared to other employers, which 
generally engage in joint ventures only as part of their core business, 
Liberty Mutual most often engages in such relationships in its capacity 
as an investor. To this end, the Applicant represents that Liberty 
Mutual is a passive joint venture partner with a multitude of entities 
that ordinarily operate the applicable ventures independently from 
Liberty Mutual. If any Liberty Mutual Plan engaged in any transaction 
with such an entity, the counterparty representing the venture will 
conduct itself like any other independent, third party engaging in a 
commercial transaction. The Applicant represents that, to the extent 
that Liberty Mutual directs any investment on behalf of any Liberty 
Mutual Plan, it will be subject to ERISA's fiduciary responsibility 
provisions, both as a matter of law and as a condition of the 
exemption. Moreover, the Liberty Mutual Plan investors will often be 
investing side by side with the general account in those investments 
that are appropriate for the Plans. Thus, with regard to any such 
investment, the interests of Liberty Mutual and any Liberty Mutual Plan 
investor would be aligned.
    22. Liberty Mutual states that it has not charged, and will not 
charge in the future, the Retirement Plan fees for the investment 
management services that it provides, and does not seek reimbursement 
for the expenses it incurs in providing the services of its employees 
to manage the assets of the Retirement Plan. Liberty Mutual represents 
that, were the Liberty Mutual Plans to retain the services of similarly 
qualified third party investment managers, the operating expenses of 
the Liberty Mutual Plans would increase significantly. Liberty Mutual 
states that, absent exemptive relief, even if only alternative assets 
were turned over to third-party managers, the incremental annual cost 
to the Liberty Mutual Plans would be approximately $15 million.
    23. Liberty Mutual represents that, aside from the increased cost 
in fees, retaining third party managers is not the optimal approach for 
the investment of the Retirement Plan's assets. In this regard, Liberty 
Mutual states that having control over the Retirement Plan's assets 
provides it with the ability to increase investment returns in a manner 
that could not be achieved if multiple unaffiliated managers were 
retained to invest the Retirement Plan's assets.
    Liberty Mutual further represents that having control over the 
entire portfolio allows for efficiencies that can improve the ability 
to maximize returns and control investment risks by affording greater 
integration in the asset/liability management process. For example, 
with respect to managing interest rate risks, having multiple 
individual asset managers hedge their interest rate risk to a target 
(relative to liabilities) can result in inefficient trading. Some 
managers will be buying, while others will be selling. The Applicant 
represents that the net impact of having separate managers each manage 
the risk associated with the portion of the portfolio under their 
management can result in unnecessary transaction costs for the Liberty 
Mutual Plan.
    The Applicant states that having current oversight of the entire 
asset base allows for more efficient risk control. Setting investment 
criteria relative to benchmark levels is not a static process, as index 
weights adjust on a daily basis. The Applicant represents that, if the 
Liberty Mutual Plan wants to set an absolute aggregate (across stocks 
and bonds) energy exposure to 10% of assets under management, the 
various investment management agreements or guidelines with multiple 
managers would need to be adjusted more frequently than is practical.
    24. The Applicant states that as a matter of policy, certain 
counterparties will not engage in hedging transactions with plans in 
reliance on the service provider exemption under section 408(b)(l7) of 
ERISA. Others may do so only with regard to currencies that are widely 
traded and do not fluctuate significantly in value. Thus, according to 
Liberty Mutual, there have been and may in the future be occasions 
where it would be advantageous (and a normal precaution) for the 
Retirement Plan to put in place a currency hedge, or perhaps an 
interest rate hedge, as a secondary protection for an appropriate and 
attractive primary investment opportunity that cannot be effected 
without the benefit of the requested exemption. In such circumstances, 
the fiduciaries on behalf of the Retirement Plan would have to 
determine whether to forego the perceived beneficial investment 
opportunity or make the investment and assume the exposure to the risk 
that could otherwise be hedged.
    Liberty Mutual represents that counterparties are reluctant, or may 
refuse, to engage in transactions with plan investors relying on other 
potentially available exemptions that are dependent on fact specific 
considerations that can vary from transaction to transaction, such as 
is the case with regard to the relief provided under the ``service 
provider'' exemption set forth in section 408(b)(17) of ERISA.
    25. Liberty Mutual states that, if the exemption is granted, the 
continued absence of RIA status will not affect in any way the manner 
in which Liberty Mutual or LMGAMI manages the assets of Liberty Mutual 
Plans. Liberty Mutual represents that the fact that neither Liberty 
Mutual nor LMGAMI is an RIA does not preclude the Liberty Mutual Plans 
from any services or any transactions that Liberty Mutual or LMGAMI 
offers.
    26. Liberty Mutual represents that it has over 80 years of 
experience managing insurance company assets and it conducts extensive 
compliance training of investment personnel, including ERISA fiduciary 
training. Liberty Mutual and LMGAMI collectively employ approximately 
85 investment professionals dedicated to the investment of the assets 
under Liberty Mutual's management and control, with investment teams 
dedicated to distinct asset classes. Liberty Mutual states that its 
Chief Investment Officer has over 30 years of experience in the 
investment industry. Furthermore, Liberty Mutual states an investment 
compliance team monitors portfolio compliance in real time employing 
sophisticated software.

Statutory Findings--Protective of the Rights of Participants

    27. Liberty Mutual represents that state insurance laws regulate 
Liberty Mutual's financial condition and reporting requirements, the 
diversification of Liberty Mutual's investment portfolio, and types of 
investments that Liberty Mutual can undertake. Liberty Mutual states 
that it files audited annual financial statements and unaudited 
quarterly financial statements with the insurance authorities in all 50 
states, and is subject to robust, risk-focused inspections by state 
insurance regulators every three to five years. Liberty Mutual states 
that these inspections include extensive audits of its control systems 
and reviews of its operating procedures, investments and other 
transactions.

[[Page 36219]]

    28. Furthermore, the exemption will be subject to a suite of 
robust, protective conditions. The terms of transactions entered into 
in reliance of this exemption will be negotiated on behalf of the 
Liberty Mutual Plan by, or under the authority and general direction 
of, the Liberty Mutual Asset Manager, and either the Liberty Mutual 
Asset Manager or, so long as the Liberty Mutual Asset Manager retains 
full fiduciary responsibility with respect to the transaction, a sub-
adviser acting in accordance with written guidelines established and 
administered by the Liberty Mutual Asset Manager, makes the decision on 
behalf of the plan to enter into the transaction. Furthermore, the 
party in interest engaging in the transaction with the Liberty Mutual 
Plan may not have discretionary authority or control with respect to 
the investment of the Liberty Mutual Plan assets involved in the 
transaction and may not render investment advice (within the meaning of 
29 CFR 2510.3-21(c)) with respect to those assets.
    29. Liberty Mutual represents that, notwithstanding the withdrawal 
of its registration as an RIA under the Advisers Act, the exemption 
requires the Liberty Mutual Asset Manager to adopt, maintain, and 
follow policies and procedures (Policies) designed to ensure compliance 
with the conditions of this exemption, reinforce the Liberty Mutual 
Asset Manager's fiduciary duties, ensuring that the Liberty Mutual 
Asset Manager and its personnel operate within an impartial conduct 
standard in accordance with a duty of loyalty and prudence pursuant to 
section 404 of the Act with respect to the Liberty Mutual Plan when 
condu0cting business with, or on behalf of, the applicable Liberty 
Mutual Plan, and avoid conflicts of interest or risk exposure, 
including an investment allocation policy and best execution policy.
    30. Liberty Mutual represents that its control systems are tested 
three times per year, with regular internal and external audits. 
Nevertheless, the Department views a robust independent audit 
requirement as an essential condition for exemptive relief hereunder. 
Therefore, the exemption requires that the Liberty Mutual Asset Manager 
must submit to an audit conducted annually by an independent auditor. 
The audit must cover a consecutive twelve-month period beginning on the 
effective date of the exemption.
    31. The auditor must issue a written report (the Audit Report) to 
Liberty Mutual and the Liberty Mutual Asset Manager with respect to 
each audit that describes the procedures performed by the auditor 
during the course of its examination, to be completed within six months 
following the end of the 12-month period to which the audit relates. 
The Audit Report must include, among other things, the auditor's 
specific determinations regarding the compliance with the conditions 
for the exemption; the adequacy of, and compliance with, the Policies; 
the auditor's recommendations (if any) with respect to strengthening 
such Policies; and any instances of noncompliance with the conditions 
for the exemption or the Policies.
    32. The Liberty Mutual Asset Manager will make its Audit Report 
unconditionally available for examination by any duly authorized 
employee or representative of the Department, other relevant 
regulators, and any participant in a Liberty Mutual Plan.
    33. The Liberty Mutual Asset Managers will prepare and make 
available to all participants of, and beneficiaries entitled to receive 
benefits under, the Liberty Mutual Plans (the Eligible Recipients) a 
plain English, narrative brochure (the Brochure) that contains 
information comparable to that required by Part 2A of Form ADV filed 
under the Investment Advisers Act of 1940,\12\ modified such that the 
disclosure is relevant to Eligible Recipients with respect to the 
management of the applicable Liberty Mutual Plan. Liberty Mutual must 
also provide an annual update to the Brochure (the Updated Brochure), 
containing or accompanied by a summary of material changes.
---------------------------------------------------------------------------

    \12\ The Department understands that Form ADV is the uniform 
form used by investment advisers to register with both the 
Securities and Exchange Commission (SEC) and state securities 
authorities. The form consists of two parts. Part 2 requires 
investment advisers to prepare narrative brochures written in plain 
English that contain information such as the types of advisory 
services offered, the adviser's fee schedule, disciplinary 
information, conflicts of interest, and the educational and business 
background of management and key advisory personnel of the adviser. 
The brochure is the primary disclosure document that investment 
advisers provide to their clients.
---------------------------------------------------------------------------

    34. As an additional condition of the exemption, each Liberty 
Mutual Asset Manager must establish an internal compliance program that 
addresses the Liberty Mutual Asset Manager's performance of its 
fiduciary and substantive obligations under ERISA (the Compliance 
Program). Each Liberty Mutual Asset Manager must designate a chief 
compliance officer (the CCO), who must be knowledgeable about ERISA and 
have the authority to develop and enforce appropriate compliance 
policies and procedures for the Liberty Mutual Asset Manager. Also, as 
part of the Compliance Program, each Liberty Mutual Asset Manager must 
adopt and enforce a written code of ethics that, among other things, 
will reflect the Liberty Mutual Asset Manager's fiduciary duties to the 
Liberty Mutual Plans.
    35. Finally, the Liberty Mutual Asset Manager must act in the Best 
Interest of the Liberty Mutual Plan at the time of the transaction. 
Furthermore, the Liberty Mutual Asset Manager's statements about 
material conflicts of interest and any other matters relevant to the 
Liberty Mutual Asset Manager's relationship with the Liberty Mutual 
Plan, must not be materially misleading at the time they are made.

Statutory Findings--Administratively Feasible

    36. Liberty Mutual represents that the proposed exemption is 
administratively feasible. Liberty Mutual represents that it maintains 
substantial internal control systems regulating its financial reporting 
and related functions, including portfolio management, that are tested 
three times per year, with regular internal audits. Furthermore, as 
described above, the Liberty Mutual Asset Manager will be subject to 
robust annual audits to be conducted by an independent auditor. The 
Liberty Mutual Asset Manager must then make its Audit Report 
unconditionally available for examination by any duly authorized 
employee or representative of the Department, other relevant 
regulators, and any participant in a Liberty Mutual Plan.

Summary

    37. In summary, provided that the conditions described above are 
satisfied, the Department has tentatively determined that the relief 
sought by the Applicant satisfies the statutory requirements for an 
exemption under section 408(a) of ERISA.

Proposed Exemption Operative Language

Section I. Covered Transactions

    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(B), and 406(a)(1)(D) of ERISA and the sanctions 
resulting from the application of sections 4975(a) and 4975(b) of the 
Code, by reason of sections 4975(c)(1)(A), 4975(c)(1)(B), and 
4975(c)(1)(D) of the Code, shall not apply to a transaction between a 
party in interest with respect to a Liberty Mutual Plan (as defined in 
Section II(h)) and such Liberty Mutual Plan, provided that the Liberty 
Mutual Asset Manager

[[Page 36220]]

(as defined in Section II(a)) has discretionary authority or control 
with respect to the assets of the Liberty Mutual Plan involved in the 
transaction and the following conditions are satisfied:
    (a) The terms of the transaction are negotiated on behalf of the 
Liberty Mutual Plan by, or under the authority and general direction 
of, the Liberty Mutual Asset Manager, and either the Liberty Mutual 
Asset Manager or, so long as the Liberty Mutual Asset Manager retains 
full fiduciary responsibility with respect to the transaction, a sub-
adviser acting in accordance with written guidelines established and 
administered by the Liberty Mutual Asset Manager, makes the decision on 
behalf of the Plan to enter into the transaction;
    (b) The transaction is not described in--
    (1) Prohibited Transaction Exemption 2006-16 (71 FR 63786, October 
31, 2006) (relating to securities lending arrangements) (as amended or 
superseded);
    (2) Prohibited Transaction Exemption 83-1 (48 FR 895, January 7, 
1983) (relating to acquisitions by plans of interests in mortgage 
pools) (as amended or superseded); or
    (3) Prohibited Transaction Exemption 88-59 (53 FR 24811, June 30, 
1988) (relating to certain mortgage financing arrangements) (as amended 
or superseded);
    (c) The transaction is not part of an arrangement, agreement, or 
understanding designed to violate or evade compliance with ERISA or the 
Code;
    (d) At the time the transaction is entered into, and at the time of 
any subsequent renewal or modification thereof that requires the 
consent of the Liberty Mutual Asset Manager, the terms of the 
transaction are at least as favorable to the Liberty Mutual Plan as the 
terms generally available in arm's length transactions between 
unrelated parties;
    (e) The party in interest dealing with the Liberty Mutual Plan:
    (1) Is a party in interest with respect to the Liberty Mutual Plan 
(including a fiduciary); either
    (A) Solely by reason of providing services to the Liberty Mutual 
Plan, or solely by reason of a relationship to a service provider 
described in section 3(14)(F), (G), (H) or (I) of ERISA; or
    (B) Solely by reason of being a 10-percent or more shareholder, 
partner or joint venturer, in a person, which is 50 percent or more 
owned by an employer of employees covered by the Liberty Mutual Plan 
(directly or indirectly in capital or profits), or the parent company 
of such an employer, provided that such person is not controlled by, 
controlling, or under common control with such employer; or
    (C) By reason of both (A) and (B) only; and
    (2) Does not have discretionary authority or control with respect 
to the investment of the Liberty Mutual 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;
    (f) The party in interest dealing with the Liberty Mutual Plan is 
neither the Liberty Mutual Asset Manager nor a person related to the 
Liberty Mutual Asset Manager (within the meaning of Section II(d));
    (g) The Liberty Mutual Asset Manager adopts, maintains, and follows 
written policies and procedures (the Policies) that:
    (1) Are designed to assure compliance with the conditions of the 
exemption and its fiduciary responsibilities and avoid any conflicts of 
interest or risk exposure, including an investment allocation policy 
and best execution policy, and ensure that the Liberty Mutual Asset 
Manager and its personnel operate within an impartial conduct standard 
in accordance with a duty of loyalty and prudence pursuant to section 
404 of the Act with respect to the Liberty Mutual Plan when conducting 
business with, or on behalf of, the applicable Liberty Mutual Plan;
    (2) Describe the objective requirements of the exemption, and 
describe the steps adopted by the Liberty Mutual Asset Manager to 
assure compliance with each of these requirements:
    (A) The requirements of Section I of the exemption, including 
Section I(a) regarding the discretionary authority or control of the 
Liberty Mutual Asset Manager with respect to the plan assets involved 
in the transaction, in negotiating the terms of the transaction, and 
with regard to the decision on behalf of the Liberty Mutual Plan to 
enter into the transaction;
    (B) That any procedure for approval or veto of the transaction 
meets the requirements of Section I(a);
    (C) For a transaction described in Section I:
    (i) That the transaction is not entered into with any person who is 
excluded from relief under Section I(e)(1), Section I(e)(2), or Section 
I(f); and
    (ii) That the transaction is not described in any of the class 
exemptions listed in Section I(b);
    (3) Are reasonably designed to prevent the Liberty Mutual Asset 
Manager or its personnel from violating ERISA or other federal or state 
laws or regulations applicable with respect to the investment of the 
assets of the applicable Liberty Mutual Plan (Applicable Law);
    (4) Cover, at a minimum, the following areas to the extent 
applicable to the Liberty Mutual Asset Manager:
    (A) Portfolio management processes, including allocation of 
investment opportunities among any Liberty Mutual Plan and Liberty 
Mutual's proprietary investments, taking into account the investment 
objectives of the applicable Liberty Mutual Plan and any restrictions 
under Applicable Law;
    (B) Trading practices, including procedures by which the Liberty 
Mutual Asset Manager satisfies its best execution obligation, and 
allocates aggregated trades among all Liberty Mutual Plans and/or 
Liberty Mutual proprietary accounts for which it provides investment 
management services;
    (C) Personal trading activities of any employee of Liberty Mutual 
and its subsidiaries who has personal involvement and responsibility 
for investment decisions regarding the investment of the assets of the 
applicable Liberty Mutual Plan (an LM Advisory Employee);
    (D) The Liberty Mutual Asset Manager's policies regulating 
conflicts of interest;
    (E) The accuracy of disclosures, including account statements, made 
to the trustee(s) or fiduciaries of any Liberty Mutual Plan or to any 
regulators;
    (F) Safeguarding of Liberty Mutual Plan assets from conversion or 
inappropriate use by any LM Advisory Employee;
    (G) The accurate creation of required records and their maintenance 
in a manner that secures them from unauthorized alteration or use and 
protects them from untimely destruction;
    (H) Processes to value holdings of any Liberty Mutual Plan, to the 
extent, if any, that such valuation is within the control of the 
Liberty Mutual Asset Manager;
    (I) Safeguards for the privacy protection of records and 
information pertaining to each Liberty Mutual Plan; and
    (J) Business continuity plans; and
    (5) Any violations of or failure to comply with items (1) through 
(4) above are corrected promptly upon discovery and any such violations 
or compliance failures not promptly corrected are reported, upon 
discovering the failure to promptly correct, in writing to appropriate 
corporate officers, the Chief

[[Page 36221]]

Compliance Officer (as described below in Section I(j)) of the Liberty 
Mutual Asset Manager, and the independent auditor described in Section 
I(h) below, and a fiduciary of the relevant Liberty Mutual Plan; the 
Liberty Mutual Asset Manager will not be treated as having failed to 
adopt, maintain, or follow the Policies, provided that it corrects any 
instances of noncompliance promptly when discovered or when they 
reasonably should have known of the noncompliance (whichever is 
earlier), and provided that it adheres to the reporting requirements 
set forth in this item (5);
    (h)(1) The Liberty Mutual Asset Manager submits to an audit 
conducted annually by an independent auditor, who has been prudently 
selected and who has the appropriate technical training or experience 
and proficiency with ERISA's fiduciary responsibility provisions and 
applicable securities laws to evaluate the adequacy of, and compliance 
with, the Policies described herein, and compliance with the 
requirements of the exemption, and so represents in writing. Upon the 
Department's request, the auditor must demonstrate its qualifications 
as required by this paragraph and its independence from Liberty Mutual. 
The audit must be incorporated into the Policies and cover a 
consecutive twelve-month period beginning on the effective date of the 
exemption. Each annual audit must be completed within six months 
following the end of the twelve-month period to which the audit 
relates;
    (2) To the extent necessary for the auditor, in its sole opinion, 
to complete its audit and comply with the conditions for relief 
described herein, and as permitted by law, the Liberty Mutual Asset 
Manager and, if applicable, Liberty Mutual, will grant the auditor 
unconditional access to its business, including, but not limited to: 
its computer systems, business records, transactional data, workplace 
locations, training materials, and personnel;
    (3) The auditor's engagement must specifically require the auditor 
to determine whether the Liberty Mutual Asset Manager has complied with 
the conditions for the exemption, including the requirement to adopt, 
maintain, and follow Policies in Section I(g);
    (4) The auditor's engagement shall specifically require the auditor 
to test the Liberty Mutual Asset Manager's operational compliance with 
the exemption, including the Policies in Section I(g). In this regard, 
the auditor must test a sample of the Liberty Mutual Asset Manager's 
transactions involving the Liberty Mutual Plan sufficient in size and 
nature to afford the auditor a reasonable basis to determine the 
operational compliance with the Policies;
    (5) For each audit, the auditor shall issue a written report (the 
Audit Report) to Liberty Mutual and the Liberty Mutual Asset Manager 
that describes the procedures performed by the auditor during the 
course of its examination, to be completed within six months following 
the end of the twelve-month period to which the audit relates. The 
Audit Report shall include the auditor's specific determinations 
regarding the compliance with the conditions for the exemption; the 
adequacy of, and compliance with, the Policies; the auditor's 
recommendations (if any) with respect to strengthening such Policies; 
and any instances of noncompliance with the conditions for the 
exemption or the Policies described in paragraph (g) above. Any 
determinations made by the auditor regarding the adequacy of the 
Policies and the auditor's recommendations (if any) with respect to 
strengthening the Policies shall be promptly addressed by the Liberty 
Mutual Asset Manager, and any actions taken by the Liberty Mutual Asset 
Manager to address such recommendations shall be included in an 
addendum to the Audit Report. Any determinations by the auditor that 
the Liberty Mutual Asset Manager has adopted, maintained, and followed 
sufficient Policies shall not be based solely or in substantial part on 
an absence of evidence indicating noncompliance. In this last regard, 
any finding that the Liberty Mutual Asset Manager has complied with the 
requirements under this subsection must be based on evidence that 
demonstrates the Liberty Mutual Asset Manager has actually adopted, 
maintained, and followed the Policies required by this exemption;
    (6) The auditor shall notify the Liberty Mutual Asset Manager and 
Liberty Mutual of any instances of noncompliance with the conditions 
for the exemption or the Policies identified by the auditor within five 
(5) business days after such noncompliance is identified by the 
auditor, regardless of whether the audit has been completed as of that 
date;
    (7) With respect to each Audit Report, the General Counsel or the 
Chief Compliance Officer (described in Section I(j)) of the Liberty 
Mutual Asset Manager certifies in writing, under penalty of perjury, 
that the officer has reviewed the Audit Report and this exemption; 
addressed, corrected, or remedied any inadequacies identified in the 
Audit Report; and determined that the Policies in effect at the time of 
signing are adequate to ensure compliance with the conditions of this 
exemption and with the applicable provisions of ERISA and the Code;
    (8) A senior executive officer with a direct reporting line to the 
highest ranking compliance officer of Liberty Mutual reviews the Audit 
Report and certifies in writing, under penalty of perjury, that such 
officer has reviewed each Audit Report; and
    (9) The Liberty Mutual Asset Manager makes its Audit Report 
unconditionally available for examination by any duly authorized 
employee or representative of the Department, other relevant 
regulators, and any participant in a Liberty Mutual Plan;
    (i) The Liberty Mutual Asset Manager will prepare and make 
available to all participants of, and beneficiaries entitled to receive 
benefits under, the Liberty Mutual Plans (the Eligible Recipients) a 
plain English, narrative brochure (the Brochure) that contains all 
substantive information, comparable to that required by Part 2A of Form 
ADV filed under the Investment Advisers Act of 1940, but modified such 
that the disclosure is relevant to Eligible Recipients with respect to 
the management of the applicable Liberty Mutual Plan;
    (1) The Brochure shall include, among other things:
    (A) The Liberty Mutual Asset Manager's investment strategy with 
respect to the applicable Liberty Mutual Plan;
    (B) The Liberty Mutual Asset Manager's policies regarding conflicts 
of interest;
    (C) Any disciplinary information related to employees of the 
Liberty Mutual Asset Manager; and
    (D) A prominent statement that the Eligible Recipients may request 
a copy of the Policies, with instructions on how to make such request 
and receive such copy;
    (2) The Liberty Mutual Asset Manager must make the Brochure 
available to the Eligible Recipients: (1) with respect to any Liberty 
Mutual Plan for which Liberty Mutual or its affiliate is then acting as 
an investment manager, within 90 days of the effective date of this 
exemption; and (2) with respect to any other Liberty Mutual Plan for 
which any Liberty Mutual Asset Manager thereafter becomes an investment 
manager, within ten (10) business days of the date that the applicable 
Investment Management Agreement or Sub-Adviser Agreement with a Liberty 
Mutual Plan becomes effective;
    (3) Liberty Mutual annually updates such brochure (the Updated 
Brochure), containing or accompanied by a

[[Page 36222]]

summary of material changes. Each Updated Brochure that is made 
available following the completion of the first audit required with 
respect to any Liberty Mutual Asset Manager in accordance with this 
exemption must include a prominently displayed statement indicating 
that the Liberty Mutual Asset Manager has completed the required audit, 
and must also provide clear instructions for obtaining a copy of the 
audit;
    (4) The Liberty Mutual Asset Manager will be deemed to have met the 
requirements pertaining to the provision of the Brochure and the 
Updated Brochure if it makes such documents available to the Eligible 
Recipients through a prominently displayed link on a Web site (the Plan 
Benefits Web site) where it makes available information to the Eligible 
Recipients about their benefits and rights under the applicable Liberty 
Mutual Plan (Plan Information), and contact information for an 
appropriate representative of Liberty Mutual to direct inquiries from 
the Eligible Recipients, which is readily available to such Eligible 
Recipients. Notwithstanding the above, the Liberty Mutual Asset Manager 
will not be deemed to have met the requirements of this subparagraph 
unless it provides notice of the Plan Benefits Web site, and the link 
to the Brochure and Updated Brochure at least once annually, to all 
Eligible Recipients;
    (5) For any such Eligible Recipient to whom Liberty Mutual makes 
Plan Information available by hard copy or other means (Supplemental 
Delivery), the Brochure and the Updated Brochure must be provided to 
such Eligible Recipient at the same time and by the same means that 
Plan Information is provided;
    (6) The Liberty Mutual Asset Manager will also provide supplements 
to the Brochure (each, a Brochure Supplement) that contain information 
about any LM Advisory Employee, including the LM Advisory Employee's 
educational background, business experience, other business activities, 
and disciplinary history;
    (7) Each Brochure Supplement must be made available in the same 
manner as the Brochure, and must be posted to the Plan Benefits Web 
site, not later than 90 days following the date that any such LM 
Advisory Employee begins to provide advisory services to that Liberty 
Mutual Plan. Such Brochure Supplement must be included with the next 
Updated Brochure included in the material provided to any Eligible 
Recipient receiving such Updated Brochure by Supplemental Delivery;
    (8) With respect to any individuals who become Eligible Recipients 
with respect to any Liberty Mutual Plan for which Liberty Mutual or its 
affiliate is then acting as an investment manager (the New Eligible 
Recipients) after the delivery of the Brochure to the Eligible 
Recipients with respect to the Liberty Mutual Plan, the Liberty Mutual 
Asset Manager will provide a copy of the Brochure as well as the most 
recent Updated Brochure, if applicable, and any Brochure Supplements 
related to LM Advisory Employees employed by the Liberty Mutual Asset 
Manager at the time the New Eligible Recipients became Eligible 
Recipients, within 90 days of the New Eligible Recipients becoming 
Eligible Recipients with respect to the Liberty Mutual Plan. The 
Liberty Mutual Asset Manager will be deemed to have met the disclosure 
requirements pertaining to the New Eligible Recipients if it makes the 
applicable documents available to the New Eligible Recipients through a 
prominently displayed link on the Plan Benefits Web site described in 
section I(i)(4) of this exemption. Notwithstanding the above, the 
Liberty Mutual Asset Manager will not be deemed to have met the 
requirements of this subparagraph unless it provides notice of the Plan 
Benefits Web site, and the link to the Brochure, Updated Brochure, and 
Brochure Supplements to all New Eligible Recipients. For any such New 
Eligible Recipient to whom Liberty Mutual makes Plan Information 
available by Supplemental Delivery, the Brochure and the Updated 
Brochure must be provided to such New Eligible Recipient at the same 
time and by the same means that Plan Information is provided;
    (j) Each Liberty Mutual Asset Manager must establish an internal 
compliance program that addresses the Liberty Mutual Asset Manager's 
performance of its fiduciary and substantive obligations under ERISA 
(the Compliance Program);
    (1) Each Liberty Mutual Asset Manager must designate a Chief 
Compliance Officer (the CCO), who must be knowledgeable about ERISA and 
have the authority to develop and enforce appropriate compliance 
policies and procedures for the Liberty Mutual Asset Manager;
    (2) As part of the Compliance Program, each Liberty Mutual Asset 
Manager must adopt and enforce a written code of ethics that, among 
other things, will reflect the Liberty Mutual Asset Manager's fiduciary 
duties to the Liberty Mutual Plans. At a minimum, the Liberty Mutual 
Asset Manager's code of ethics must:
    (A) Set forth a minimum standard of conduct for all LM Advisory 
Employees and any other employees of the Liberty Mutual Asset Manager 
whose responsibilities include assisting the LM Advisory Employees in 
managing the investments of any Liberty Mutual Plan (the LM 
Facilitating Employees);
    (B) Require LM Advisory Employees and LM Facilitating Employees to 
comply with Applicable Law in fulfilling their investment management 
duties to the Liberty Mutual Plans;
    (C) Require each LM Advisory Employee to report his or her 
securities holdings at the later of the time that the person becomes an 
LM Advisory Employee or within 90 days after this exemption becomes 
effective and at least once annually thereafter and to make a report at 
least once quarterly of all personal securities transactions in 
reportable securities to the Liberty Mutual Asset Manager's CCO or 
other designated person;
    (D) Require the CCO or other designated persons to pre-approve 
investments by any LM Advisory Employee in IPOs or limited offerings;
    (E) Require each LM Advisory Employee or LM Facilitating Employees 
to promptly report any violation of Applicable Law to the Liberty 
Mutual Asset Manager's CCO or other designated person;
    (F) Require the Liberty Mutual Asset Manager to provide training on 
applicable law and to obtain a written acknowledgment from each LM 
Advisory Employee documenting his/her agreement to abide by the code of 
ethics, the Policies, and applicable law; and
    (G) Require the Liberty Mutual Asset Manager to keep records of any 
violations of applicable law and of any actions taken against the 
violators;
    (k) The Liberty Mutual Asset Manager must act in the Best Interest 
of the Liberty Mutual Plan at the time of the transaction. For purposes 
of this paragraph, a Liberty Mutual Asset Manager acts in the ``Best 
Interest'' of the Liberty Mutual Plan when the Liberty Mutual Asset 
Manager acts with the care, skill, prudence, and diligence under the 
circumstances then prevailing that a prudent person acting in a like 
capacity and familiar with such matters would use in the conduct of an 
enterprise of a like character and with like aims, based on the 
investment objectives, risk tolerance, financial circumstances, and 
needs of the Liberty Mutual Plan, without regard to the financial or 
other interests of the Liberty Mutual Asset Manager, any affiliate or 
other party;

[[Page 36223]]

    (l) The Liberty Mutual Asset Manager's statements about material 
conflicts of interest and any other matters relevant to the Liberty 
Mutual Asset Manager's relationship with the Liberty Mutual Plan, are 
not materially misleading at the time they are made. For purposes of 
this paragraph, a ``material conflict of interest'' exists when a 
Liberty Mutual Asset Manager has a financial interest that a reasonable 
person would conclude could affect the exercise of its best judgment as 
a Liberty Mutual Asset Manager; and
    (m) The Liberty Mutual Asset Manager will not charge any asset 
management fees or receive any fee in connection with transactions 
covered by this exemption.

Section II. Definitions

    (a) The term ``Liberty Mutual Asset Manager'' means Liberty Mutual 
or any organization that is either a direct or indirect 80 percent or 
more owned subsidiary of Liberty Mutual, or a direct or indirect 80 
percent more owned subsidiary of a parent organization of Liberty 
Mutual, provided that such Liberty Mutual Asset Manager:
    (1) Is an insurance company which is qualified under the laws of 
more than one State to manage, acquire, or dispose of any assets of a 
plan, which company has, as of the last day of its most recent fiscal 
year, net worth (capital, paid-in and contributed surplus, unassigned 
surplus, contingency reserves, group contingency reserves, and special 
reserves) in excess of $1,000,000;
    (2) Is subject to supervision and examination by a State authority 
having supervision over insurance companies and is subject to periodic 
audits by applicable State insurance regulators in accordance with the 
requirements of applicable state law, which, under current law, would 
be no less than once every five years;
    (3) Has any arrangements between it and any Liberty Mutual Plan 
reviewed by the applicable State insurance regulators, including any 
investment management agreements (or revisions thereto) with the 
Liberty Mutual Plan and sub-advisor agreements with any other Liberty 
Mutual Asset Managers, the results of which will be made available 
without limitation to the independent auditor conducting the audit 
required under Section I(i);
    (4) As of the last day of its most recent fiscal year, has under 
its management and control total assets in excess of $1 billion; and
    (5) Together with its affiliates, maintains Liberty Mutual Plans 
holding aggregate assets of at least $500 million as of the last day of 
each Liberty Mutual Plan's reporting year;
    (b) For purposes of Sections II(a) and II(h), an ``affiliate'' of a 
Liberty Mutual Asset Manager means a member of either (1) a controlled 
group of corporations (as defined in section 414(b) of the Code) of 
which the Liberty Mutual Asset Manager is a member, or (2) a group of 
trades or businesses under common control (as defined in section 414(c) 
of the Code) of which the Liberty Mutual Asset Manager is a member; 
provided that ``50 percent'' shall be substituted for ``80 percent'' 
wherever ``80 percent'' appears in section 414(b) or 414(c) of the Code 
or the rules thereunder;
    (c) The term ``party in interest'' means a person described in 
section 3(14) of ERISA and includes a ``disqualified person'' as 
defined in section 4975(e)(2) of the Code;
    (d) A Liberty Mutual Asset Manager is ``related'' to a party in 
interest for purposes of Section I(f) of this exemption, if, as of the 
last day of its most recent calendar quarter: (i) The Liberty Mutual 
Asset Manager (or a person controlling, or controlled by, the Liberty 
Mutual Asset Manager) owns a ten percent or more interest in the party 
in interest; or (ii) the party in interest (or a person controlling, or 
controlled by, the party in interest) owns a 10 percent or more 
interest in the Liberty Mutual Asset Manager.
    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 if, other than in a 
fiduciary capacity, 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; and
    (3) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual;
    (e) For purposes of this exemption, the time as of which any 
transaction occurs is the date upon which the transaction is entered 
into. In addition, in the case of a transaction that is continuing, the 
transaction shall be deemed to occur until it is terminated. Nothing in 
this paragraph shall be construed as exempting a transaction entered 
into by a plan which becomes a transaction described in section 406 of 
ERISA or section 4975 of the Code while the transaction is continuing, 
unless the conditions of the exemption were met either at the time the 
transaction was entered into or at the time the transaction would have 
become prohibited but for this exemption. In determining compliance 
with the conditions of the exemption at the time that the transaction 
was entered into for purposes of the preceding sentence, Section I(e) 
will be deemed satisfied if the transaction was entered into between a 
Liberty Mutual Plan and a person who was not then a party in interest;
    (f) The term ``LMGAMI'' means Liberty Mutual Group Asset Management 
Inc., a separate investment management subsidiary of Liberty Mutual;
    (g) The term ``Liberty Mutual'' means Liberty Mutual Insurance 
Company; and
    (h) The term ``Liberty Mutual Plan'' means the Liberty Mutual 
Retirement Benefit Plan and any other employee benefit plan subject to 
the fiduciary responsibility provisions of Part IV of Title I of ERISA 
maintained by Liberty Mutual or an affiliate of Liberty Mutual, and 
covering the employees of such entities.
    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.

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 the pending exemption. Written 
comments 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

[[Page 36224]]

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.)

Russell Investment Management, LLC (RIM), Russell Investments Capital, 
LLC (RICap), and Their Affiliates (Collectively, Russell Investments or 
the Applicants) Located in Seattle, WA

[Application No. D-11916]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of 29 U.S.C. 1108 (section 408(a) of the Act) and 26 U.S.C. 
(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). Effective December 31, 1978, section 102 of Reorganization Plan 
No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the 
Secretary of the Treasury to issue exemptions of the type requested to 
the Secretary of Labor. Therefore, this notice of proposed exemption is 
issued solely by the Department. If the exemption is granted, the 
restrictions of sections 406(a)(1)(D) and 406(b) of the Act and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of sections 4975(c)(1)(D) through (F) of the Code,\13\ shall 
not apply, effective June 1, 2016, to:
---------------------------------------------------------------------------

    \13\ For purposes of this proposed exemption reference to 
specific provisions of Title I of the Act, unless otherwise 
specified, should be read to refer as well to the corresponding 
provisions of the Code.
---------------------------------------------------------------------------

    (a) The receipt of a fee by Russell Investments, from an open-end 
investment company or open-end investment companies (Affiliated 
Fund(s)), 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)), where Russell Investments serves as a 
fiduciary with respect to such Client Plan, and where Russell 
Investments: (1) Provides investment advisory services, or similar 
services to any such Affiliated Fund; and (2) provides to any such 
Affiliated Fund other services (Secondary Service(s)); 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)), where 
Russell Investments serves as a fiduciary with respect to such Client 
Plan, the receipt of fees by Russell Investments from: (1) An 
Affiliated Fund for the provision of investment advisory services, or 
similar services by Russell Investments to any such Affiliated Fund; 
and (2) an Affiliated Fund for the provision of Secondary Services by 
Russell Investments to any such Affiliated Fund.

Summary of Facts and Representations \14\
---------------------------------------------------------------------------

    \14\ The Summary of Facts and Representations is based on the 
Applicants' representations, unless indicated otherwise.
---------------------------------------------------------------------------

Background

    1. On October 6, 2015, the Department granted Prohibited 
Transaction Exemption 2015-17 (PTE 2015-17) to Frank Russell Company 
and Affiliates (collectively, FRC). PTE 2015-17 provides conditional 
relief to FRC for the receipt of a fee from an Affiliated Fund, in 
connection with a Client Plan's direct investment in shares of an 
Affiliated Fund, or a Client Plan's indirect investment in shares of an 
Affiliated Fund, through investment in a pooled investment vehicle (the 
Collective Fund), where FRC: (a) Serves as a fiduciary with respect to 
such Client Plan, and (b) provides to such Affiliated Fund, investment 
advisory services or similar services, and Secondary Services, if 
certain conditions are met.
    PTE 2015-17 defines FRC as ``Frank Russell Company and any 
affiliate thereof,'' and ``affiliate'' as ``[a]ny person directly or 
indirectly, through one or more intermediaries, controlling, controlled 
by, or under common control with the person.'' While PTE 2015-17 was 
nominally granted to ``Frank Russell Company and Affiliates,'' the 
primary intended beneficiaries of the relief provided were two entities 
operating as ``Russell Investments''--Russell Investment Management, 
LLC (RIM) and Russell Investments Capital, LLC (RICap), each of which 
qualified as an ``affiliate'' of FRC within the meaning of PTE 2015-17. 
However, as of June 1, 2016, RIM and RICap no longer were under the 
control of, or common control with, FRC and, thus, no longer are 
``affiliates'' of FRC within the meaning of PTE 2015-17.
    On June 1, 2016, London Stock Exchange Group PLC (LSEG), FRC's 
ultimate parent company, sold Russell Investments for $1.15 billion to 
certain holding companies ultimately owned by certain private equity 
funds sponsored by TA Associates Management, LP and Reverence Capital 
Partners LP (the Sale). Following the Sale, FRC continues to operate as 
a wholly-owned subsidiary of LSEG, whereas RIM and RICap continue to 
operate as ``Russell Investments.'' Because FRC is no longer affiliated 
with Russell Investments by reason of the Sale, the Applicants have 
requested a new exemption that would apply the relief provided under 
PTE 2015-17 to the recently sold entities comprising Russell 
Investments.

Russell Investments

    2. Russell Investments is a global asset management firm providing 
investment management products and services to individuals and 
institutions in 47 different countries. As of June 30, 2016, Russell 
Investments had approximately $244 billion in assets under management. 
Among the companies currently comprising Russell Investments are RIM 
and RICap.
    RIM is an investment adviser registered with the U.S. Securities 
and Exchange Commission. RIM provides investment advisers and broker/
dealers with model strategies designed to optimize asset allocation 
strategies based on various investment principles, and may also provide 
marketing assistance and subject matter expertise to these investment 
advisers. RIM may also provide objective setting, asset allocation, 
fund and manager selection services directly to pension plans or other 
institutional clients. As of December 31, 2016, RIM had total assets 
under management of over $40.4 billion, all of which was discretionary.
    RICap is also an investment adviser registered with the U.S. 
Securities and Exchange Commission. RICap provides general investment 
advisory services and acts as an adviser to separate account clients as 
well as several private, private equity and hedge funds offered to 
select institutional investors. RICap advises private investment funds 
which involve privately negotiated equity and equity-related 
investments. As of December 31, 2016, RICap had approximately $8.3 
billion in assets under management, all of which was discretionary.

Investment Products and Services

    3. The Applicants represent that, in the United States, certain 
affiliates of Russell Investments make investments in mutual funds and 
collective

[[Page 36225]]

investment funds available to Client Plans, and develop investment 
products and services for such Client Plans. The investment products 
include open-end investment companies registered under the Investment 
Company Act of 1940, as amended, for which RIM serves as an investment 
adviser or sub-adviser (i.e., the Affiliated Funds). Russell 
Investments 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.
    The Applicants state that other investment products provided by 
Russell Investments include bank-maintained common or collective trust 
funds and other similar pooled funds including, potentially, insurance 
company pooled separate accounts (Collective Funds) managed by Russell 
Investments Trust Company, a RIM affiliate.
    4. The Applicants represent that the services provided by Russell 
Investments may include various types of investment advisory and/or 
investment management services which may be rendered at the individual 
Plan level, the Collective Fund level, or the Affiliated Fund level. 
According to the Applicants, Plan investment advisory, investment 
management and similar services include money manager selection, cash 
management, individual security selection and trading strategies, as 
well as various asset allocation strategies involving asset class 
selection and rebalancing, including target date fund ``glidepath'' 
strategies. Such services include Russell Investments' Adaptive 
Retirement Accounts asset allocation service, under which RIM provides 
individualized asset allocation advice to defined contribution plan 
participants.
    5. The Applicants also represent that a Russell Investments entity 
acting as a fiduciary may cause a Client Plan to invest directly in one 
or more Affiliated Funds. It is also possible, the Applicants state, 
that a Russell Investments entity acting as a fiduciary to plans 
participating in a Collective Fund may cause a Client Plan to invest 
indirectly in Affiliated Funds by directing the investment of a 
Collective Fund in which a Client Plan participates into one or more 
Affiliated Funds.

Prohibited Transactions

    6. 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 Investments may currently serve, and may in the future 
serve, as investment adviser, investment manager, trustee, or other 
fiduciary with respect to Client Plans. Accordingly, pursuant to 
section 3(21)(A)(i) and (ii) of the Act, Russell Investments may 
currently be, or may in the future be, a fiduciary with respect to 
Client Plans which engage in the proposed transactions. As a fiduciary, 
Russell Investments may currently be, or may in the future be a party 
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 Investments, as investment 
adviser or manager to a Client Plan, invests plan assets, directly or 
indirectly, in shares of a collective fund or a mutual fund that is 
managed or advised by Russell Investments, the investment purchase 
transaction violates 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.
    Russell Investments, as investment manager or investment adviser to 
a Client Plan, may invest plan assets, or cause the investment of plan 
assets, directly or indirectly, in shares of a collective fund or 
mutual fund, from which Russell Investments receives compensation. Such 
added compensation would violate section 406(b)(1) and (b)(2) of the 
Act.
    With respect to section 406(b)(3) of the Act, Russell Investments, 
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. Such payments would 
implicate section 406(b)(3) of ERISA.

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

    7. The Applicants represent that all of the Russell Investments 
entities to which the exemption would apply are currently part of the 
same controlled group. In this regard, Russell Investments maintains 
that--if and to the extent that Russell Investments invests Client Plan 
assets (directly or indirectly via Collective Funds) in Affiliated 
Funds, such Russell Investments entities can rely on the relief 
provided pursuant to PTE 77-4 (42 FR 18732 (April 8, 1977)), except as 
described below. PTE 77-4 exempts certain purchases and sales 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.
    8. Russell Investments 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: 
(a) Approving Fee Increases with respect to Affiliated Funds, and (b) 
approving in advance the addition of Affiliated Funds (not previously 
authorized) as investments ``inside'' a Russell Investments 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.
    Russell Investments 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 Investments 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.

[[Page 36226]]

Negative Consent for Fee Increases

    9. Russell Investments requests a negative consent procedure for: 
(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 Investments 
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 Investments must provide 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 would 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.
    The exemption would permit Russell Investments to implement a Fee 
Increase, without waiting until the expiration of the thirty (30) day 
period, provided that implementation of such Fee Increase does not 
start before Russell Investments 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 Investments delivers the Notice of 
Change of Fee to the Second Fiduciary of each affected Client Plan. In 
addition, Russell Investments 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. The exemption would further permit a Russell Investments 
Collective Fund holding the assets of a Client Plan, such as a Target 
Date Fund, to purchase shares of an Affiliated Fund 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 Investments 
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 Investments 
proposes to add an Affiliated Fund to such Collective Fund's portfolio.
    Specifically, the Second Fiduciary of each Client Plan invested in 
such Collective Fund would receive in advance: (a) A notice of Russell 
Investments' 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 Investments represents 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, 
Russell Investments states that to the extent it finds it desirable 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 Investments' Collective Funds.

Electronic Disclosures

    12. Russell Investments may utilize electronic mail with hyperlinks 
to documents required to be disclosed by this proposed exemption. 
Russell Investments will ``actively'' satisfy the various disclosure 
requirements of this proposed exemption by transmitting emails, rather 
than relying on ``passive'' postings on a Web site. Russell Investments 
represents that this method of disclosure will be consistent with the 
Department's regulations at 29 CFR 2520.104b-l. Russell Investments 
represents that 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 Investments 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 Investments more than five (5) business days 
after

[[Page 36227]]

receipt by Russell Investments 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 Investments will pay interest on the settlement amount 
for the period from receipt by Russell Investments 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 Investments 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 Investments 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 Investments 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 Investments 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 below in Section II(a)(l)-(3).

Receipt of Fees for Secondary Services

    15. Russell Investments may also receive various fees and expenses 
for ``Secondary Services,'' which are services other than investment 
management services, investment advisory services, and any similar 
service, which are provided by Russell Investments to an Affiliated 
Fund. These services include accounting, administrative and brokerage 
services. It is represented that all fees for Secondary Services 
received by Russell Investments at this time are paid to Russell 
Investments directly by the Affiliated Funds. The negative consent 
procedure applicable for a Fee Increase for Secondary Services is 
discussed above.
    Russell Investments 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 Investments, Russell Investments 
will provide the Second Fiduciary of each such Client Plan, at least 
annually, the disclosure described in Section II(o) of this proposed 
exemption.

Statutory Findings

    16. According to the Applicants, 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. Further the Applicants state that 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.
    17. The Applicants represent that the proposed exemption is in the 
interest of Client Plans, because it will allow Russell Investments 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.
    18. The Applicants represent that the proposed exemption is 
protective of Client Plans because: (a) 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; (b) Fee Increases and Affiliated Fund additions 
to the portfolios of Collective Funds will be monitored and approved by 
the Second Fiduciary, who will have the ability to avoid the effect of 
such Fee Increases of Affiliated Fund additions; (c) Client Plan 
investments 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 such investment, without 
penalty to such Client Plan; (d) Russell Investments will provide to 
such Second Fiduciary, in addition to certain initial disclosures, 
ongoing disclosures regarding such Affiliated Funds; and (e) Russell 
Investments, in its fiduciary capacity, will: (i) Act in the Best 
Interest of the Client Plans; (ii) charge fees which are reasonable in 
relation to the total services it provides to Client Plans; and (iii) 
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.

Summary

    19. Given the conditions described below, the Department has 
tentatively determined that the relief sought by the Applicants 
satisfies the statutory requirements for an exemption under section 
408(a) of the Act.

Proposed Exemption Operative Language

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA) and 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 proposed exemption is granted, the restrictions of sections 
406(a)(1)(D) and 406(b) of the Act, and the sanctions resulting from 
the application of section 4975 of the Code, by reason of sections 
4975(c)(1)(D) through (F) of the Code, shall not apply, effective June 
1, 2016, to:
    (a) The receipt of a fee by Russell Investments, from an Affiliated 
Fund, in connection with the direct investment in shares of any such 
Affiliated Fund, by a Client Plan, where Russell Investments serves as 
a fiduciary with respect to such Client Plan, and where Russell 
Investments:
    (1) Provides investment advisory services, or similar services to 
any such Affiliated Fund; and
    (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)), where 
Russell Investments serves as a fiduciary with respect to such Client 
Plan, the receipt of fees by Russell Investments from:
    (1) An Affiliated Fund for the provision of investment advisory 
services, or similar services by Russell Investments to any such 
Affiliated Fund; and
    (2) An Affiliated Fund for the provision of Secondary Services by 
Russell Investments to any such Affiliated Fund; provided that the

[[Page 36228]]

conditions, as set forth below, were satisfied, as of June 1, 2016, the 
effective date of this exemption, and continue to be satisfied 
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 Investments, for the entire period of 
such investment, any investment management fee, 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 Investments a Plan-Level Management Fee, based 
on total assets of such Client Plan under management by Russell 
Investments 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 
Investments.
    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 Investments 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 Investments, based on the assets of such Client Plan 
invested in such Collective Fund; or
    (ii) Does not pay to Russell Investments 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 
Investments, based on total assets of such Client Plan under management 
by Russell Investments at the plan-level; or
    (iii) Such Client Plan pays to Russell Investments a Plan-Level 
Management Fee, based on total assets of such Client Plan under 
management by Russell Investments 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 
Investments.
    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 Investments, 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 Investments 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 Investments or 
indirectly to Russell Investments 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 Investments 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 Investments by such Affiliated Fund; and does not pay to 
Russell Investments 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 Investments 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 Investments 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 Investments by such Affiliated Fund; and does not pay 
directly to Russell Investments or indirectly to Russell Investments 
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 Investments 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 Investments by such 
Affiliated Fund.
    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 Investments 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 Investments for the provision by Russell 
Investments of Secondary Services to such Affiliated Fund under the 
terms of a duly adopted agreement between Russell Investments and such 
Affiliated Fund.
    For the purpose of Section II(a)(1)(ii) and Section II(a)(3)(ii)-
(iv), in

[[Page 36229]]

calculating a Client Plan's pro rata share of an Affiliated Fund-Level 
Advisory Fee, Russell Investments must use an amount representing the 
``gross'' advisory fee paid to Russell Investments by such Affiliated 
Fund. For purposes of this paragraph, the ``gross'' advisory fee is the 
amount paid to Russell Investments 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.\15\
---------------------------------------------------------------------------

    \15\ 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 Investments, including any officer and any director of 
Russell Investments, 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 
Investments, including any officer and director of Russell Investments, 
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 Investments 
is not in excess of reasonable compensation within the meaning of 
section 408(b)(2) of the Act, for services provided:
    (1) By Russell Investments to each Client Plan;
    (2) By Russell Investments to each Collective Fund in which a 
Client Plan invests;
    (3) By Russell Investments to each Affiliated Fund in which a 
Client Plan invests directly in shares of such Affiliated Fund; and
    (4) By Russell Investments to each Affiliated Fund in which a 
Client Plan invests indirectly in shares of such Affiliated Fund 
through a Collective Fund.
    (f) Russell Investments 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 Investments.
    (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 
Investments by each Affiliated Fund;
    (B) Secondary Services to be paid to Russell Investments by each 
such Affiliated Fund; and
    (C) All other fees to be charged by Russell Investments to such 
Client Plan and to each such Affiliated Fund and all other fees to be 
paid to Russell Investments by each such Client Plan and by each such 
Affiliated Fund;
    (iii) The reasons why Russell Investments 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 Investments 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 
Investments by each Affiliated Fund;
    (B) Secondary Services to be paid to Russell Investments by each 
such Affiliated Fund; and
    (C) All other fees to be charged by Russell Investments to such 
Client Plan, to such Collective Fund, and to each such Affiliated Fund 
and all other fees to be paid to Russell Investments by such Client 
Plan, by such Collective Fund, and by each such Affiliated Fund;
    (iii) The reasons why Russell Investments 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 Investments with respect to which assets of such 
Client Plan may be invested indirectly in shares of each such 
Affiliated Fund through such

[[Page 36230]]

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 Investments to such Client Plan and to such 
Collective Fund and all other fees to be paid to Russell Investments 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 
Investments for investment advisory services and similar services 
provided by Russell Investments to such Affiliated Fund;
    (ii) The fee received by Russell Investments for Secondary Services 
provided by Russell Investments to such Affiliated Fund;
    (iii) The Collective Fund-Level Management Fee received by Russell 
Investments for investment management, investment advisory, and similar 
services provided by Russell Investments to such Collective Fund in 
which such Client Plan invests;
    (iv) The Plan-Level Management Fee received by Russell Investments 
for investment management and similar services provided by Russell 
Investments to such Client Plan at the plan-level; and
    (v) The selection by Russell Investments 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 Investments 
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 Investments 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 thirty (30) days from the date the Termination Form is 
sent to such Second Fiduciary by Russell Investments, 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 Investments within one (1) business day of the date that 
Russell Investments receives such Termination Form or receives from the 
Second Fiduciary, acting on behalf of such Client Plan,

[[Page 36231]]

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 Investments 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 Investments 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 Investments more than five business (5) days 
after the day Russell Investments 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 Investments as to where to reinvest or send the 
withdrawal proceeds; and
    (B) From the date Russell Investments 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 Investments, 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 Investments may implement such Fee Increase without waiting for 
the expiration of the 30-day period, described above in Section 
II(k)(1), provided Russell Investments 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 Investments 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 Investments a 
credit in cash equal to each such Client Plan's pro rata share of such 
Fee Increase to be received by Russell Investments 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 Investments 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 Investments pays to each affected Client Plan the 
cash credit, as 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 Investments 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 Investments first implements the Fee Increase to the date 
Russell Investments 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 Investments 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 thirty (30) days from the date Russell Investments 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),

[[Page 36232]]

II(h)(2)(v), and II(h)(2)(vi), and which has authorized the investment 
by such Client Plan in a Collective Fund in 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 Investments 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 Investments' intent to add a New Affiliated 
Fund to the portfolio of such Collective Fund, where 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 Investments' 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 thirty (30) days from the date Russell Investments 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 Investments to 
engage in the transactions which are the subject of this proposed 
exemption with respect to such New Affiliated Fund.
    (m) Russell Investments 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 Investments 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 
Investments, Russell Investments 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 Investments 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 Investments;
    (3) The average brokerage commissions per share, expressed as cents 
per share, paid to Russell Investments I 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 Investments;
    (p)(1) Russell Investments 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 Investments;
    (iii) With regard to any Fee Increase received by Russell 
Investments 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 Investments provides to the Second Fiduciary of each 
Client

[[Page 36233]]

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 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 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 Investments;
    (iii) Annually, with a statement of the Collective Fund-Level 
Management Fee for investment management, investment advisory or 
similar services paid to Russell Investments 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 Investments 
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 
Investments 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 
Investments, provided:
    (1) Russell Investments 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 Investments a 
valid email address; and
    (3) The delivery of such electronic email to such Second Fiduciary 
is provided by Russell Investments in a manner consistent with the 
relevant provisions of the Department's regulations at 29 CFR 
2520.104b-1(c) (substituting the word ``Russell Investments'' 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 Sections 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 sections.
    (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 Investments 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 Investments must 
comply with the following conditions with respect to the transaction: 
(1) Russell Investments acts in the Best Interest (as defined below, in 
Section IV(q)) of the Client Plan, at the time of the Transaction; (2) 
all compensation received by Russell Investments in connection with the 
transaction in relation to the total services the fiduciary provides to 
the Client Plan does not exceed reasonable compensation within the 
meaning of section 408(b)(2) of the Act; and (3) Russell Investments' 
statements about recommended investments, fees, material conflicts of 
interest,\16\ and any other matters relevant to a Client Plan's 
investment decisions are not materially misleading at the time they are 
made.
---------------------------------------------------------------------------

    \16\ 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, the failure of Russell Investments to disclose a 
material conflict of interest relevant to the services it is 
providing to a Client 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 Investments acts in the 
``Best Interest'' of the Client Plan when Russell Investments 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 Investments 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 Investments, the records are lost or destroyed prior to the end 
of the six-year period; and
    (2) No party in interest other than Russell Investments 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

[[Page 36234]]

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 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 
Investments, or commercial or financial information which is privileged 
or confidential.

Section IV. Definitions

    For purposes of this proposed exemption:
    (a) The term ``Russell Investments'' means RIM (f/k/a Russell 
Investment Management Company), RICap, 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 Investments, 
as defined above in Section IV(a).
    (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 Russell Investment 
Company, a series of mutual funds managed by RIM, and any other 
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 Investments now 
or in the future for which Russell Investments 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 Investments. For 
purposes of this proposed exemption, the Second Fiduciary will not be 
deemed to be independent of and unrelated to Russell Investments if:
    (1) Such Second Fiduciary, directly or indirectly, through one or 
more intermediaries, controls, is controlled by, or is under common 
control with Russell Investments;
    (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 Investments (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 Investments 
(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 
Investments to an Affiliated Fund, including, but not limited to, 
custodial, accounting, administrative services, and brokerage services. 
Russell Investments 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,\17\ maintained by Russell 
Investments, and a bank-maintained common or collective investment 
trust maintained by Russell Investments.
---------------------------------------------------------------------------

    \17\ 51 FR 41262 (November 13, 1986).
---------------------------------------------------------------------------

    (k) The term ``business day'' means any day that:
    (1) Russell Investments 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 
Investments 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 Investments 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 Investments 
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).

[[Page 36235]]

    (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 Investments for any investment management 
services, investment advisory services, and similar services provided 
by Russell Investments 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 Investments for asset allocation service(s) 
(Asset Allocation Service(s)), as defined below in Section IV(p), 
provided by Russell Investments 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 Investments for any investment 
management services, investment advisory services, and any similar 
services provided by Russell Investments 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 Investments under the terms of an investment advisory 
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.
    (q) The term ``Best Interest'' means acting with the care, skill, 
prudence, and diligence under the circumstances then prevailing that a 
prudent person acting in a like capacity and familiar with such matters 
would use in the conduct of an enterprise of a like character and with 
like aims, 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 Russell Investments, any 
affiliate or other party.
    Effective Date: If granted, this proposed exemption will be 
effective as of June 1, 2016.

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 Investments 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.

FOR 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 28th day of July, 2017.
 Lyssa E. Hall,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2017-16295 Filed 8-2-17; 8:45 am]
 BILLING CODE 4510-29-P