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Grant of Individual Exemptions; Salomon Smith Barney Inc. (SSB), Citigroup Inc. (Citigroup) and their Affiliates (collectively, the Applicants)   [4/3/2001]
[PDF]
[Federal Register: April 3, 2001 (Volume 66, Number 64)]
[Notices]               
[Page 17738-17741]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap01-92]                         


[[Page 17738]]

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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Prohibited Transaction Exemption 2001-11; Exemption Application No. D-
10760, 
et al.]

 
Grant of Individual Exemptions; Salomon Smith Barney Inc. (SSB), 
Citigroup Inc. (Citigroup) and their Affiliates (collectively, the 
Applicants)

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Grant of Individual Exemptions.

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

Statutory Findings

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

Salomon Smith Barney Inc. (SSB), Citigroup Inc. (Citigroup) and 
their Affiliates (collectively, the Applicants)

Located in New York, New York

[Prohibited Transaction Exemption 2001-11; Exemption Application Number 
D-10760]

Exemption

Section I. Covered Transactions
    The restrictions of section 406(a)(1)(A) through (D) of the Act and 
the sanctions resulting from the application of section 4975 of the 
Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall 
not apply to: (1) the purchase or sale by employee benefit plans (the 
Plans), other than Plans sponsored and maintained by the Applicants, of 
publicly-traded debt securities (the Debt Securities) issued by the 
Applicants; and (2) the extension of credit by the Plans to the 
Applicants in connection with the holding of the Debt Securities.
    This exemption is subject to the general conditions that are set 
forth below in Section II.

Section II. General Conditions

    (a) The Debt Securities are made available by the Applicants in the 
ordinary course of their business to Plans as well as to customers 
which are not Plans.
    (b) The decision to invest in the Debt Securities is made by a Plan 
fiduciary (the Independent Plan Fiduciary) or a participant in a Plan 
that provides for participant-directed investments (the Plan 
Participant), which is independent of the Applicants.
    (c) The Applicants do not have any discretionary authority or 
control or provide any investment advice, within the meaning of 29 CFR 
2510.3-21(c), with respect to the Plan assets involved in the 
transactions.
    (d) The Plans pay no fees or commissions to the Applicants in 
connection with the transactions covered by the requested exemption, 
other than the mark-up for a principal transaction permissible under 
Part II of Prohibited Transaction Class Exemption (PTCE) 75-1 (40 FR 
50845, October 31, 1975).\1\
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    \1\ The Department is providing no opinion herein as to whether 
any principal transactions involving debt securities would be 
covered by PTCE 75-1, or whether any particular mark-up by a broker-
dealer for such transaction would be permissible under Part II of 
PTCE 75-1.
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    (e) The issuer of the Debt Securities (the Issuer) agrees to notify 
Plan investors in the prospectus (the Prospectus) for the Debt 
Securities that, at the time of acquisition, no more than 15 percent of 
a Plan's assets should be invested in any of the Debt Securities.
    (f) The Debt Securities do not have a duration which exceeds 9 
years from the date of issuance.
    (g) Prior to a Plan's acquisition of any of the Debt Securities, 
the Applicants fully disclose, in the Prospectus, to the Independent 
Plan Fiduciary or Plan Participant, all of the terms and conditions of 
such Debt Securities, including, but not limited to, the following:
    (1) A statement to the effect that the return calculated for the 
Debt Securities will be denominated in U.S. dollars;
    (2) The specified index (the Index) or Indexes on which the rate of 
return on the Debt Securities is based;
    (3) A numerical example, designed to be understood by the average 
investor, which explains the calculation of the return on the Debt 
Securities at maturity and reflects, among other things, (i) a 
hypothetical initial value and closing value of the applicable Index, 
and (ii) the effect of any adjustment factor on the percentage change 
in the applicable Index;
    (4) The date on which the Debt Securities are issued;
    (5) The date on which the Debt Securities will mature and the 
conditions of such maturity;
    (6) The initial date on which the value of the Index is calculated;
    (7) Any adjustment factor or other numerical methodology that would 
affect the rate of return, if applicable;
    (8) The ending date on which interest is determined, calculated and 
paid;
    (9) Information relating to the calculation of payments of 
principal and interest, including a representation to the effect that, 
at maturity, the beneficial owner of the Debt Securities is entitled to 
receive the entire principal amount, plus an amount derived directly 
from the growth in the Index (but in no event less than zero);
    (10) All details regarding the methodology for measuring 
performance;
    (11) The terms under which the Debt Securities may be redeemed;
    (12) The exchange or market where the Debt Securities are traded or 
maintained; and

[[Page 17739]]

    (13) Copies of the proposed and final exemptions relating to the 
exemptive relief provided herein, upon request.
    (h) The terms of a Plan's investment in the Debt Securities are at 
least as favorable to the Plan as those available to an unrelated non-
Plan investor in a comparable arm's length transaction at the time of 
such acquisition.
    (i) In the event the Debt Securities are delisted from any 
nationally-recognized securities exchange, the Issuer will apply to 
list the Debt Securities on another nationally recognized exchange or 
apply for trading through the National Association of Securities 
Dealers Automated Quotations System (NASDAQ), which requires that there 
be independent market-makers establishing a market for such securities 
in addition to the Issuer. If there are no independent market-makers, 
the exemption will no longer be considered effective.
    (j) The Debt Securities are rated in one of the three highest 
generic rating categories by at least one nationally-recognized 
statistical rating service at the time of their acquisition.
    (k) The rate of return for the Debt Securities is objectively 
determined and, following issuance, the Applicants retain no authority 
to affect the determination of the return for such security, other than 
in connection with a ``market disruption event'' (the Market Disruption 
Event) that is described in the Prospectus for the Debt Securities.
    (l) The Debt Securities are based on an Index that is--
    (1) Created and maintained \2\ by an entity that is unrelated to 
the Applicants and is a standardized and generally-accepted Index of 
securities; or
    (2) Created by the Applicants, but maintained by an entity that is 
unrelated to the Applicants,
    (i) Consists either of standardized and generally-accepted Indexes 
or an Index comprised of publicly-traded securities that are not issued 
by the Applicants, are designated in advance and listed in the 
Prospectus for the Debt Securities (Under either circumstance, the 
Applicants may not unilaterally modify the composition of the Index, 
including the methodology comprising the rate of return.),
    (ii) Meets the requirements for an Index in Rule 19b-4 (Rule 19b-4) 
under the Securities Exchange Act of 1934 (the 1934 Securities Act), 
and
    (iii) The index value (the Index Value) for the Index is publicly-
disseminated through an independent pricing service, such as Reuters 
Group, PLC (Reuters) or Bloomberg L.P. (Bloomberg), or through a 
national securities exchange.
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    \2\ For purposes of this exemption, the term ``maintain'' means 
that all calculations relating to the securities in the Index, as 
well as the rate of return of the Index, are made by an entity that 
is unrelated to the Applicants.
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    (m) The Applicants do not trade in any way intended to affect the 
value of the Debt Securities through holding or trading in the 
securities which comprise an Index.
    (n) The Applicants maintain, for a period of six years, the records 
necessary to enable the persons described in paragraph (o) of this 
section to determine whether the conditions of this exemption have been 
met, except that--
    (1) A prohibited transaction will not be considered to have 
occurred if, due to circumstances beyond the control of the Applicants, 
the records are lost or destroyed prior to the end of the six year 
period; and
    (2) No party in interest other than the Applicants shall be subject 
to the civil penalty that may be assessed under section 502(i) of the 
Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if 
the records are not maintained, or are not available for examination as 
required by paragraph (o) below.
    (o)(1) Except as provided in section (o)(2) of this paragraph and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in paragraph (n) are 
unconditionally available at their customary location during normal 
business hours by:
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service or the Securities and Exchange 
Commission (the SEC);
    (B) Any fiduciary of a participating Plan or any duly authorized 
representative of such fiduciary;
    (C) Any contributing employer to any participating Plan or any duly 
authorized employee representative of such employer; and
    (D) Any Plan Participant or beneficiary of any participating Plan, 
or any duly authorized representative of such Plan Participant or 
beneficiary.
    (2) None of the persons described above in subparagraphs (B)-(D) of 
paragraph (o)(1) are authorized to examine the trade secrets of the 
Applicants or commercial or financial information which is privileged 
or confidential.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption (the Notice) published on February 15, 
2001 at 66 FR 10521.

Written Comments

    The Department received one comment letter with respect to the 
Notice. The comment letter was submitted by the Applicants, who 
requested certain minor changes to the proposed exemption.
    First, the Applicants requested that the reference to ``Citigroup'' 
in Section II, paragraph (e), of the Notice should be changed to ``the 
Issuer.'' In this regard, the Applicants note that the obligation to 
produce a prospectus for any Debt Securities issued by the Applicants 
will reside with the Issuer of the Debt Securities, and not with its 
parent. Similarly, the Applicants requested that the two references to 
``Citigroup'' in Section II, paragraph (i), of the Notice should be 
changed to ``the Issuer'' since listing requirements will be handled by 
the Issuer rather than its parent. The Applicants noted that these 
changes would make Section II(i) consistent with Item 12 of the 
``Summary of Facts and Representations'' (SFR) contained in the Notice.
    In addition, the Applicants requested that the language in Section 
II, paragraph (i), should be modified to clarify that, upon a delisting 
of the Debt Securities from a nationally recognized exchange, the 
Issuer may choose to list the Debt Securities on another nationally 
recognized exchange as an alternative to applying for trading through 
NASDAQ.
    The Department agrees with the Applicants' comments and suggested 
changes, and has modified the language of the final exemption 
accordingly.
    With respect to the information contained in the SFR, the 
Applicants requested three changes.
    First, the last sentence of the first paragraph of Item 5 states 
that the Debt Securities will be issued in denominations of $10 per 
unit. The Applicants note that although currently only $10 
denominations have been issued, SSB would like to be able to use other 
denominations should the need arise. Accordingly, the Applicants 
request that the word ``generally'' be inserted between ``would'' and 
``be'' in that sentence to allow for variation in the denominations of 
any future issuance.
    Second, the first paragraph of Item 12 in the SFR discusses the 
availability of price quotations. Since the Debt Securities may not 
always meet the necessary requirements for being listed in the daily 
financial press, which may exclude certain securities due to space 
constraints, SSB requests that the word ``and'' in the first paragraph 
of Item 12 in the SFR be changed to ``or'' since

[[Page 17740]]

quotes will be available through market reporting services even when 
not included in the press listings.
    Third, the Applicants noted that the second sentence in Item 12 of 
the SFR should be modified to conform to the change requested to 
Section II, paragraph (i), above, that, upon any delisting of the Debt 
Securities from a nationally recognized exchange, the Issuer may choose 
to list the Debt Securities on another nationally recognized exchange 
as an alternative to applying for trading through NASDAQ.
    Accordingly, based on the entire record, the Department has 
determined to grant the exemption as modified herein.

FOR FURTHER INFORMATION CONTACT: Mr. Gary H. Lefkowitz of the 
Department, telephone (202) 219-8881. (This is not a toll-free number.)

Reagent Chemical & Research, Inc. Employees Profit Sharing Plan and 
Trust (the Plan)

Located in Middlesex, New Jersey

[Prohibited Transaction Exemption 2001-12; Exemption Application No. D-
10793]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the 
Act and the sanctions resulting from the application of section 4975 of 
the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, 
shall not apply to the sale of a certain residential lot (the Property) 
by the Plan to Mr. Brian Skeuse and Mrs. Jan Skeuse, parties in 
interest with respect to the Plan; provided that the following 
conditions are satisfied:
    (a) the sale is a one-time cash transaction;
    (b) the Plan receives the greater of either: (i) $105,000; or (ii) 
the current fair market value for the Property established at the time 
of the sale by an independent qualified appraiser; and
    (c) the Plan pays no commissions or other expenses associated with 
the sale.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on January 22, 2001 at 66 FR 
6688.

FOR FURTHER INFORMATION CONTACT: Ekaterina A. Uzlyan of the Department 
at (202) 219-8883. (This is not a toll-free number.)

The Amalgamated Cotton Garment & Allied Industries Fund-Retirement 
Fund

Located in New York, New York

[Prohibited Transaction Exemption 2001-13; Exemption Application No.: 
D-10947]

Exemption

    The restrictions of sections 406(a)(1)(A), 406(a)(1)(D), and 
406(b)(2) of the Act and the sanctions resulting from the application 
of section 4975 of the Code, by reason of section 4975(c)(1)(A) through 
(D) of the Code,\3\ shall not apply to the purchase by the Amalgamated 
Cotton Garment & Allied Industries Fund-Retirement Fund (the Cotton 
Pension Fund) from the Amalgamated Insurance Fund-Insurance Fund (the 
Clothing Welfare Fund), a party in interest with respect to the Cotton 
Pension Fund, of 100 percent (100%) of the outstanding shares of non-
publicly traded common stock (the Common Stock) of ALICO Services 
Corporation (ASC), a service provider to the Cotton Pension Fund; 
provided that prior to the transaction: (a) An independent fiduciary 
(the I/F), acting on behalf of the Cotton Pension Fund determines that 
the transaction is feasible, in the interest of, and protective of the 
Cotton Pension Fund and its participants and beneficiaries; (b) the I/F 
determines, on behalf of the Cotton Pension Fund, that the ASC Common 
Stock should be purchased by the Cotton Pension Fund; (c) the I/F 
reviews, negotiates, and approves the terms of the purchase of the ASC 
Common Stock; (d) the I/F monitors the terms of the purchase of the ASC 
Common Stock and ensures that the Cotton Pension Fund and the Clothing 
Welfare Fund comply with the approved terms; (e) the I/F determines 
that the terms of the purchase of the ASC Common Stock are no less 
favorable to the Cotton Pension Fund than terms negotiated at arm's 
length with an unrelated third party under similar circumstances; (f) 
the I/F determines, as of the date the transaction is entered, that the 
purchase price for the ASC Common Stock paid by Cotton Pension Fund is 
the fair market value of such stock, not to exceed $30 million; (g) an 
independent, qualified appraiser issues a fairness opinion as to the 
price of the ASC Common Stock and determines, as of the date the 
transaction is entered, that the Clothing Welfare Fund is receiving the 
fair market value for such stock, not to exceed $30 million; (h) the 
Cotton Pension Fund incurs no fees, commissions, or other charges or 
expenses as a result of its participation in the transaction other than 
the following: (1) the fees incurred in making this exemption request, 
(2) the fee payable to the I/F, and (3) the fees payable to the parties 
representing the Cotton Pension Fund in the transaction; (i) the 
transaction is a one-time occurrence for cash; and (j) a committee 
composed of members of the Board of Trustees of the Clothing Welfare 
Fund determines that such fund should engage in the transaction and, if 
so, such committee is authorized to set the terms and conditions under 
which the Clothing Welfare Fund will engage in such transaction.
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    \3\ For purposes of this exemption, references to specific 
provisions of Title I of the Act, unless otherwise specified, refer 
to the corresponding provisions of the Code.

EFFECTIVE DATE: This exemption is effective on March 26, 2001, or the 
date on which the subject transaction closes.

Written Comments

    In the Notice of Proposed Exemption (the Notice), the Department of 
Labor (the Department) invited all interested persons to submit written 
comments and requests for a hearing on the proposed exemption. As set 
forth in the Notice, interested persons consist of the trustees of the 
Cotton Pension Fund and the trustees of the Clothing Welfare Fund, all 
of the participants and beneficiaries of such funds, UNITE, whose 
members are participants in the Funds, all contributing employers of 
such funds, ASC, and the ASC Subsidiaries. The deadline for submission 
of such comments was within forty-five (45) days of the date of the 
publication of the Notice in the Federal Register on January 25, 2001. 
All comments and requests for a hearing were due on March 12, 2001.
    During the comment period, the Department received no requests for 
a hearing. However, the Department did receive comment letters from 
twenty (20) commentators. At the close of the comment period, the 
Department forwarded copies of these letters to the applicant for a 
written response. A description of the comments and the applicant's 
responses thereto are summarized below.
    Upon review of the comment letters, the applicant determined that 
the various concerns raised by the commentators fell into the following 
categories: (a) Ten (10) letters requesting confirmation that benefits 
will not be decreased or affected; (b) nine (9) letters asking for 
information about benefits and/or a claim for benefits; and (c) one (1) 
letter requesting that plan records concerning a participant's address 
be updated. In response to these

[[Page 17741]]

comments, the applicant forwarded the letters to the appropriate 
parties at the Cotton Pension Fund and the Clothing Welfare Fund, so 
that the concerns expressed by the commentators could be addressed.
    As the comments do not pertain to the transaction which is the 
subject of the exemption, the Department has concluded that it is 
appropriate for the issues identified by the commentators to be 
addressed by individuals at the Cotton Pension Fund and the Clothing 
Welfare Fund.
    In addition, to the letters from commentators, the Department 
received a comment letter from the applicant. In this regard, in a 
letter dated March 9, 2001, the applicant made four comments, three (3) 
of which concerned modifications to the language of the exemption, as 
proposed, and one which concerned an amendment to the language of the 
Summary of Facts and Representations (SFR) in the Notice. Subsequently, 
in a letter dated March 13, 2001, the applicant withdrew all but one 
comment. In that comment, the applicant suggested that the Department 
delete the following language that appeared in the SFR in the Notice: 
``The Clothing Welfare Fund has requested an individual exemption in 
order to sell to the Cotton Pension Fund all of the outstanding shares 
of ASC Common Stock.'' In place of that sentence, the applicant 
suggests the following language: ``The Cotton Pension Fund has 
requested an individual exemption in order to purchase from the 
Clothing Welfare Fund all of the outstanding shares of ASC Common 
Stock.'' The applicant maintains that this change is necessary because 
the Cotton Pension Fund made the application for the prohibited 
transaction exemption, not the Clothing Welfare Fund.
    The Department concurs. Accordingly, the first sentence of 
paragraph 6 of the SFR in the Notice, should have read as follows: 
``The Cotton Pension Fund has requested an individual exemption in 
order to purchase from the Clothing Welfare Fund all of the outstanding 
shares of ASC Common Stock.''
    In the Notice the Department stated that the proposed exemption, if 
granted, would be effective on the date that the subject transaction 
closes, or March 15, 2001, whichever is earlier. However, in a letter 
dated March 16, 2001, the applicant informed the Department that the 
Cotton Pension Fund and the Clothing Welfare Fund have scheduled March 
26, 2001, as the closing date for the transaction contemplated by the 
exemption. Accordingly, the Department has changed the effective date 
of the exemption to read: ``This exemption is effective on March 26, 
2001, or the date on which the subject transaction closes.''
    After giving full consideration to the entire record, including the 
written comments from the applicant and the commentators, the 
Department has decided to grant the exemption. In this regard, the 
comment letters submitted to the Department have been included as part 
of the public record of the exemption application. The complete 
application file, including all supplemental submissions received by 
the Department, is made available for public inspection in the Public 
Documents Room of the Pension Welfare Benefits Administration, Room N-
1513, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, D.C. 20210.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption refer to 
the Notice published on January 25, 2001, at 66 FR 7810.

FOR FURTHER INFORMATION CONTACT: Angelena C. Le Blanc of the 
Department, telephone (202) 219-8883. (This is not a toll-free number.)

General Information

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

    Signed at Washington, D.C., this 29th day of March, 2001.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, Department of Labor.
[FR Doc. 01-8155 Filed 4-2-01; 8:45 am]
BILLING CODE 4510-29-P