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EBSA Notices

Exemptions From Certain Prohibited Transaction Restrictions   [1/19/2011]
[PDF]
FR Doc 2011-975
[Federal Register: January 19, 2011 (Volume 76, Number 12)]
[Notices]               
[Page 3161-3164]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja11-96]                         


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

 
Exemptions From Certain Prohibited Transaction Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of Individual Exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). 
This notice includes the following: 2011-01, Wasatch Advisers, Inc., D-
11400; 2011-02, Morgan Stanley & Co. Incorporated, D-11489; and 2011-
03, The West Coast Bancorp 401(k) Plan (the Plan), D-11611: A notice 
was published in the Federal Register of the pendency before the 
Department of a proposal to grant such exemption. The notice set forth 
a summary of facts and representations contained in the application for 
exemption and referred interested persons to the application for a 
complete statement of the facts and representations. The application 
has been available for public inspection at the Department in 
Washington, DC. The notice also invited interested persons to submit 
comments on the requested exemption to the Department. In addition the 
notice stated that any interested person might submit a written request 
that a public hearing be held (where appropriate). The applicant has 
represented that it has complied with the requirements of the 
notification to interested persons. No requests for a hearing were 
received by the Department. Public comments were received by the 
Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), transferred the authority of the Secretary of the Treasury to 
issue exemptions of the type proposed to the Secretary of Labor.

Statutory Findings

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

Wasatch Advisers, Inc.; Located in Salt Lake City, Utah

[Prohibited Transaction Exemption 2011-01; Exemption Application Number 
D-11400]

Exemption

Section I. Exemption and Conditions

    Wasatch Advisors, Inc. (Wasatch) shall not be precluded from 
qualifying as a ``qualified professional asset manager'' (a QPAM) 
pursuant to Prohibited Transaction Exemption 84-14 (hereinafter, either 
PTE 84-14 or the QPAM Class Exemption) \1\ for the period from April 
19, 2006 through July 13, 2007, solely because of its failure to 
satisfy the shareholders' equity requirement of PTE 84-14, section 
V(a)(4) (the Shareholders' Equity Requirement), provided that the 
following conditions were met:
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    \1\ 49 FR 9494 (Mar. 13, 1984), as corrected at 50 FR 41430 
(Oct. 10, 1985), and amended at 70 FR 49305 (Aug. 23, 2005) and at 
75 FR 38837 (Jul. 6, 2010).
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    (a) Upon learning that it did not have adequate shareholders' 
equity to satisfy the Shareholders' Equity Requirement, Wasatch took 
all steps necessary to protect the interests of its ERISA Clients (as 
defined in section II(b)), including obtaining a letter of credit (the 
Letter of Credit);
    (b) The Letter of Credit was an irrevocable standby letter of 
credit for $1,000,000, structured in a manner that covered any ERISA 
Claim (as defined in section II(a)) occurring from April 19, 2006 (the 
date Wasatch learned it did not satisfy the Shareholders' Equity 
Requirement) through July 13, 2007 (the date on which Wasatch 
determined it satisfied the Shareholders' Equity Requirement);
    (c) The Letter of Credit was issued by Zions First National Bank, 
which was independent of Wasatch and regulated by federal banking 
authorities;
    (d) The Letter of Credit was held by Zions First National Bank for 
the benefit of all ERISA Clients;
    (e) The Letter of Credit was payable on demand solely to an ERISA 
Client (or its agent) if the ERISA Client provided:
    (1) A certified copy of the final order for damages against Wasatch 
based on an ERISA Claim from a court of competent jurisdiction with all 
rights of appeal having expired or having been exhausted; or a true 
copy of a settlement agreement between the ERISA Client and Wasatch 
providing for damages to the ERISA Client with respect to an ERISA 
Claim;
    (2) In the case of a final court judgment, a certified true copy of 
a Sheriff's or Marshall's levy and execution on the judgment, returned 
unsatisfied, or such other documentation, certified by an officer of 
the court in which the judgment was entered, stating that the judgment 
remains unsatisfied following attempts to collect the judgment in 
accordance with local court rules; and
    (3) A certificate of an authorized representative of the ERISA 
Client stating the amount of the judgment or settlement which remains 
unsatisfied;
    (f) From 1996 through 2007, Joseph S. Call, a certified public 
accountant who is independent of Wasatch, performed a yearly audit on 
Wasatch, using generally acceptable accounting principles to quantify 
Wasatch's shareholders' equity; and
    (g) From 1996 through 2007, Wasatch's reliance on Mr. Call's 
determinations as to the dollar amount relevant to the Shareholders' 
Equity Requirement was reasonable.

Section II. Definitions

    (a) The term ``ERISA Claim'' means: a civil proceeding for monetary 
relief which is commenced by the filing or service of a civil complaint 
or similar pleading or a request for monetary relief which could have 
been the subject of such a complaint or pleading but for a settlement 
agreement, filed against Wasatch or with respect to which a settlement 
is reached prior to July 13, 2007, by reason of Wasatch's breach or 
violation of a duty described in sections 404 or 406 of ERISA;
    (b) The term ``ERISA Client'' means any employee benefit plan 
covered by Title I of ERISA to which Wasatch provides or provided 
investment management services on or before July 13, 2007;
    (c) A person will be ``independent'' of another person only if:
    (i) For purposes of this exemption, such person is not an affiliate 
of that other person; and
    (ii) The other person, or an affiliate thereof, is not a fiduciary 
that has investment management authority or renders investment advice 
with respect to the assets of such person;
    (d) An ``affiliate'' of a person means:
    (i) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person. For purposes of this paragraph, the term

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``control'' means the power to exercise a controlling influence over 
the management or policies of a person other than an individual;
    (ii) Any officer, director, employee or relative (as defined in 
section 3(15) of the Act) of any such other person or any partner in 
any such person; and
    (iii) Any corporation or partnership of which such person is an 
officer, director or employee or in which such person is a partner.
    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 in the Federal Register on 
September 16, 2010 at 75 FR 56569.

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

Morgan Stanley & Co. Incorporated Located in New York, New York

[Prohibited Transaction Exemption 2011-02; Exemption Application No. D-
11489]

Exemption

Section I. Transactions Involving Plans Described in Both Title I and 
Title II of ERISA

    The restrictions of section 406(a)(1)(A) through (D) and section 
406(b) of ERISA, and the sanctions resulting from the application of 
sections 4975(a) and (b) of the Code, by reason of section 4975(c)(1) 
of the Code, shall not apply, effective February 1, 2008, to the 
following transactions, if the conditions set forth in Section III have 
been met: \2\
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    \2\ For purposes of this exemption, references to section 406 of 
ERISA should be read to refer also to the corresponding provisions 
of section 4975 of the Code.
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    (a) The sale or exchange of an ``Auction Rate Security'' (as 
defined in Section IV (b)) by a ``Plan'' (as defined in Section IV(h)) 
to the ``Sponsor'' (as defined in Section IV (g)) of such Plan; or
    (b) A lending of money or other extension of credit to a Plan in 
connection with the holding of an Auction Rate Security by the Plan, 
from (1) Morgan Stanley & Co. Incorporated or an ``Affiliate'' (Morgan 
Stanley); (2) an ``Introducing Broker'' (as defined in Section IV (f)); 
or (3) a ``Clearing Broker'' (as defined in Section IV (d))--where the 
loan is (i) repaid in accordance with its terms, and (ii) guaranteed by 
the Plan Sponsor.

II. Transactions Involving Plans Described in Title II of ERISA Only

    The sanctions resulting from the application of section 4975(a) and 
(b) of the Code, by reason of section 4975(c)(1) of the Code, shall not 
apply, effective February 1, 2008, to the following transactions, if 
the conditions set forth in Section III have been met:
    (a) The sale or exchange of an Auction Rate Security by a ``Title 
II-Only Plan'' (as defined in Section IV(i)) to the ``Beneficial 
Owner'' (as defined in Section IV(c)) of such Plan; or
    (b) A lending of money or other extension of credit to a Title II-
Only Plan in connection with the holding of an Auction Rate Security by 
the Title II-Only Plan, from (1) Morgan Stanley; (2) an Introducing 
Broker; or (3) a Clearing Broker--where the loan is (i) repaid in 
accordance with its terms, and (ii) guaranteed by the Beneficial Owner.

III. Conditions

    (a) Morgan Stanley acted as a broker or dealer, non-bank custodian, 
or fiduciary in connection with the acquisition or holding of the 
Auction Rate Security that is the subject of the transaction;
    (b) For transactions involving a Plan (including a Title II-Only 
Plan) not sponsored by Morgan Stanley for its own employees, the 
decision to enter into the transaction is made by a Plan fiduciary who 
is ``Independent'' (as defined in Section IV(e)) of Morgan Stanley. 
Notwithstanding the foregoing, an employee of Morgan Stanley who is the 
Beneficial Owner of a Title II-Only Plan may direct such Plan to engage 
in a transaction described in Section II, if all of the other 
conditions of this Section III have been met;
    (c) The last auction for the Auction Rate Security was 
unsuccessful;
    (d) The Plan does not waive any rights or claims in connection with 
the loan or sale as a condition of engaging in the above described 
transaction;
    (e) The Plan does not pay any fees or commissions in connection 
with the transaction;
    (f) The transaction is not part of an arrangement, agreement, or 
understanding designed to benefit a party in interest or disqualified 
person;
    (g) With respect to any sale described in Section I(a) or Section 
II(a):
    (1) The sale is for no consideration other than cash payment 
against prompt delivery of the Auction Rate Security; and
    (2) For purposes of the sale, the Auction Rate Security is valued 
at par, plus any accrued but unpaid interest; \3\
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    \3\ The Department notes that this exemption does not address 
tax issues. The Department has been informed by the Internal Revenue 
Service and the Department of the Treasury that they are considering 
providing limited relief from the requirements of sections 72(t)(4), 
401(a)(9), and 4974 of the Code with respect to retirement plans 
that hold Auction Rate Securities. The Department has also been 
informed by the Internal Revenue Service that if Auction Rate 
Securities are purchased from a Plan in a transaction described in 
Sections I and II at a price that exceeds the fair market value of 
those securities, then the excess value would be treated as a 
contribution for purposes of applying applicable contribution and 
deduction limits under sections 219, 404, 408, and 415 of the Code.
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    (h) With respect to an in-kind exchange described in Section (I)(a) 
or Section II(a), the exchange involves the transfer by a Plan of an 
Auction Rate Security in return for a ``Delivered Security,'' as such 
term is defined in Section IV(j), where:
    (1) The exchange is unconditional;
    (2) For purposes of the exchange, the Auction Rate Security is 
valued at par, plus any accrued but unpaid interest;
    (3) The Delivered Security is valued at fair market value, as 
determined at the time of the in-kind exchange by a third party pricing 
service or other objective source;
    (4) The Delivered Security is appropriate for the Plan and is a 
security that the Plan is otherwise permitted to hold under applicable 
law; \4\
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    \4\ The Department notes that ERISA's general standards of 
fiduciary conduct would also apply to the transactions described 
herein. In this regard, section 404 requires, among other things, 
that a fiduciary discharge his duties respecting a plan solely in 
the interest of the plan's participants and beneficiaries and in a 
prudent manner. Accordingly, a plan fiduciary must act prudently 
with respect to, among other things: (1) The decision to exchange an 
Auction Rate Security for a Delivered Security; and (2) the 
negotiation of the terms of such exchange (or a cash sale or loan 
described above), including the pricing of such securities. The 
Department further emphasizes that it expects plan fiduciaries, 
prior to entering into any of the transactions, to fully understand 
the risks associated with these types of transactions, following 
disclosure by Morgan Stanley of all the relevant information.
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    (5) The total value of the Auction Rate Security (i.e., par, plus 
any accrued but unpaid interest) is equal to the fair market value of 
the Delivered Security;
    (i) With respect to a loan described in Section I(b) or II(b):
    (1) The loan is documented in a written agreement containing all of 
the material terms of the loan, including the consequences of default;
    (2) The Plan does not pay an interest rate that exceeds one of the 
following three rates as of the commencement of the loan:
    (A) The coupon rate for the Auction Rate Security;

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    (B) The Federal Funds Rate; or
    (C) The Prime Rate;
    (3) The loan is unsecured; and
    (4) The amount of the loan is not more than the total par value of 
the Auction Rate Securities held by the Plan.
    (j) Morgan Stanley maintains, or causes to be maintained, for a 
period of at least six (6) years from the date of a covered 
transaction, such records as are necessary to enable the persons 
described in paragraph (k), below, to determine whether the conditions 
of this exemption, if granted, have been met, except that--
    (1) No party in interest with respect to a Plan that engages in a 
covered transaction, other than Morgan Stanley shall be subject to a 
civil penalty under section 502(i) of ERISA or the taxes imposed by 
section 4975(a) and (b) of the Code, if such records are not 
maintained, or are not available for examination, as required, below, 
by paragraph (k); and
    (2) A separate prohibited transaction shall not be considered to 
have occurred solely because, due to circumstances beyond the control 
of Morgan Stanley, such records are lost or destroyed prior to the end 
of the six-year period; and
    (k)(1) Except as provided in subparagraph (2), below, and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of ERISA, the records referred to in paragraph (j), above, are 
unconditionally available at their customary location for examination 
during normal business hours by--
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the U.S. Securities and 
Exchange Commission;
    (B) The fiduciary of any Plan, including any IRA owner, that 
engages in a covered transaction, or any duly authorized employee or 
representative of such fiduciary; or
    (C) The employer of participants and beneficiaries and the employee 
organization whose members are covered by the Plan that engages in a 
covered transaction, or any authorized employee or representative of 
these entities;
    (2) None of the persons described above in paragraph (k)(1)(B) or 
(C) shall be authorized to examine trade secrets of Morgan Stanley, or 
commercial or financial information which is privileged or 
confidential; and
    (3) Should Morgan Stanley refuse to disclose information on the 
basis that such information is exempt from disclosure, Morgan Stanley 
shall, by the close of the thirtieth (30th) day following the request, 
provide a written notice advising that person of the reasons for the 
refusal and that the Department may request such information.

IV. Definitions

    (a) The term ``Affiliate'' means any person, directly or 
indirectly, through one or more intermediaries, controlling, controlled 
by, or under common control with such other person;
    (b) The term ``Auction Rate Security'' or ``ARS'' means a security:
    (1) That is either a debt instrument (generally with a long-term 
nominal maturity) or preferred stock; and
    (2) With an interest rate or dividend that is reset at specific 
intervals through a Dutch Auction process;
    (c) The term ``Beneficial Owner'' means the individual for whose 
benefit the Title II-Only Plan is established and includes a relative 
or family trust with respect to such individual;
    (d) The term ``Clearing Broker'' means a member of a securities 
exchange who acts as a liaison between an investor and a clearing 
corporation, helps to ensure that a trade is settled appropriately, 
ensures that the transaction is successfully completed, and is 
responsible for maintaining the paper work associated with the clearing 
and execution of a transaction;
    (e) The term ``Independent'' means a person who is (1) not Morgan 
Stanley or an Affiliate, and (2) not a ``relative'' (as defined in 
ERISA section 3(15)) of the party engaging in the transaction;
    (f) The term ``Introducing Broker'' means a registered broker who 
is able to perform all the functions of a broker, except for the 
ability to accept money, securities, or property from a customer;
    (g) The term ``Sponsor'' means a plan sponsor as described in 
section 3(16)(B) of ERISA and any Affiliates;
    (h) The term ``Plan'' means any plan described in section 3(3) of 
ERISA and/or section 4975(e)(1) of the Code;
    (i) The term ``Title II-Only Plan'' means any plan described in 
section 4975(e)(1) of the Code that is not an employee benefit plan 
covered by Title I of ERISA;
    (j) The term ``Delivered Security'' means a security that is (1) 
Listed on a national securities exchange (excluding OTC Bulletin Board-
eligible securities and Pink Sheets-quoted securities); or (2) A U.S. 
Treasury obligation; or (3) A fixed income security that has a rating 
at the time of the exchange that is in one of the two highest generic 
rating categories from an Independent nationally recognized statistical 
rating organization (e.g., a highly rated municipal bond or a highly 
rated corporate bond); or (4) A certificate of deposit insured by the 
Federal Deposit Insurance Corporation. Notwithstanding the above, the 
term ``Delivered Security'' shall not include any Auction Rate 
Security, or any related Auction Rate Security, including derivatives 
or securities materially comprised of Auction Rate Securities or any 
illiquid securities.
    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 July 2, 1010 at 75 FR 
38557. In addition, a notice of technical correction was published on 
July 12, 2010 at 75 FR 39707.

Written Comments

    The Department received one written comment with respect to the 
notice of proposed exemption (Proposal). The comment was submitted by 
the applicant, who requests certain modifications to the exemption 
language.
    Specifically, the applicant requests deletion of the recordkeeping 
and record access conditions in Section III(j) and (k) of the Proposal. 
The applicant argues that the Proposal covers transactions that are 
identical to the those covered in certain individual prohibited 
transaction exemptions that the Department has previously granted and 
that these exemptions do not contain any recordkeeping and record 
access conditions.
    In the event, however, that the Department decides to impose the 
aforementioned conditions, the applicant requests the following 
modifications. (1) Because the covered transactions are not pursuant to 
a settlement with the U.S. Securities and Exchange Commission (SEC), 
the applicant requests deletion of the reference to the SEC in Section 
III(k)(1)(A); (2) The applicant objects to permitting access to its 
records not only by plan fiduciaries but all clients as ``unreasonable, 
unwarranted and burdensome,'' and requests that Section III(k)(1)(B) be 
modified to limit record access to fiduciaries of plans that engage in 
a covered transaction and then only to their own plan's records; (3) 
The applicant objects to permitting access to its records not only by 
plan sponsors but to all plan participants and their representatives as 
an ``unwarranted burden'' and one that ``makes absolutely no sense in 
the context of an IRA,'' and requests deletion of the reference to 
participants and their representatives from Section III(k)(1)(C); (4) 
The applicant objects to the 30-day deadline for providing a written 
explanation for any refusal to disclose information that

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it believes is exempt from disclosure on grounds that ``it is 
practically impossible to meet this deadline, because the request would 
likely be received in a branch office and would have to be forwarded to 
headquarters for analysis and determination whether in fact the 
information sought should be disclosed.'' The applicant therefore 
requests that Section III(k)(3) be modified to provide for a 60-day 
deadline; and 5) Finally, the applicant objects to the requirement in 
Section III(k)(3) that the applicant's written explanation for any 
refusal to disclose information to a requesting person include a notice 
advising that the Department may request such information on grounds 
that ``such advice may mislead the person into thinking that the 
Department could request the information on behalf of the person.'' The 
applicant therefore requests deletion of this requirement from Section 
III(k)(3).
    In response to the applicant's written comment, the Department 
notes that an individual prohibited transaction exemption is granted on 
a particular set of facts and circumstances to a particular applicant 
and may not be relied upon by any other entity. Thus, the Department is 
not persuaded by the applicant's argument that, because the 
recordkeeping and record access conditions were not contained in 
certain 2009 individual exemptions, therefore such conditions should 
not be imposed on the applicant. Moreover, the Department notes that 
the record-keeping and record access conditions are, in general, 
contained in a number of other similar recently issued exemptions 
during 2010 involving ARS.
    Regarding the applicant's requested modification to proposed 
Section III(k)(1)(B), however, the Department agrees that access to the 
records should be limited to the fiduciary of the Plan involved in the 
covered transaction, and, accordingly, has modified this condition.
    Regarding the applicant's requested modification to proposed 
Section III(k)(1)(C), the Department disagrees with the applicant's 
objection to this condition because it refers to record access by ``any 
employer of participants and beneficiaries'' including any authorized 
employee--not directly by all participants and their representatives. 
Although the Department has not made this requested change, it has 
revised the language contained in Section III(k)(1)(C) so it is 
parallel to the language contained in Section III(k)(1)(B). The 
Department further notes that Section III(k)(1)(C) has no relevance in 
the context of a Title II only IRA since there is no employer to 
request access to records.
    Accordingly, except as indicated, the Department has not adopted 
the applicant's alternative requests either to delete the recordkeeping 
and record access conditions in Section III(j) and (k), or to modify 
the language of those conditions in the final exemption and has granted 
the exemption as proposed.

FOR FURTHER INFORMATION CONTACT: Ms. Karin Weng of the Department, 
telephone (202) 693-8557. (This is not a toll-free number.)

The West Coast Bancorp 401(k) Plan (the Plan) Located in Lake Oswego, 
Oregon

[Prohibited Transaction Exemption 2011-03; Exemption Application No. D-
11611]

Exemption

    The restrictions of sections 406(a)(1)(A) and (E), 406(a)(2), 
406(b)(1), 406(b)(2), and 407(a) and the sanctions resulting from the 
application of section 4975(c)(1)(A) and (E) of the Code, shall not 
apply, effective January 29, 2010, to: (1) The acquisition of stock 
rights (the Rights) by the Plan issued by the West Coast Bancorp, Inc. 
(Bancorp), the Plan sponsor and a party in interest with respect to the 
Plan under the terms and conditions of a Rights offering (the 
Offering); and (2) the holding of the Rights by the Plan until their 
expiration, during the subscription period of the Offering, provided 
that the following conditions were met:
    (a) The receipt of the Rights by the Plan occurred in connection 
with the Offering and was made available by Bancorp on the same terms 
to all shareholders (the Shareholders) of the common stock of Bancorp 
(Common Stock);
    (b) The acquisition of the Rights by the Plan resulted from an 
independent act of Bancorp as a corporate entity, and all holders of 
the Rights, including the Plan, were treated in the same manner with 
respect to such acquisition;
    (c) All Shareholders of Common Stock, including the Plan, received 
the same proportionate number of Rights based on the number of shares 
of Common Stock held by such Shareholders;
    (d) All decisions regarding the Rights held by the Plan were made 
by the individual Plan participants whose accounts in the Plan received 
the Rights, in accordance with the provisions under the Plan for 
individually-directed investment of such account; and
    (e) The Plan did not pay any fees or commissions in connection with 
the acquisition and or holding of the Rights.

DATES:  Effective Date: This exemption is effective as of January 29, 
2010, the commencement date of the Offering.
    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 October 6, 2010 at 75 FR 
61953.

FOR FURTHER INFORMATION CONTACT: Mr. Anh-Viet Ly of the Department at 
(202) 693-8648. (This is not a toll-free number.)

General Information

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

    Signed at Washington, DC, this 13th day of January 2011.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2011-975 Filed 1-18-11; 8:45 am]
BILLING CODE 4510-29-P