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EBSA Notices

Exemptions From Certain Prohibited Transaction Restrictions   [9/26/2011]
[PDF]
Federal Register, Volume 76 Issue 186 (Monday, September 26, 2011)
[Federal Register Volume 76, Number 186 (Monday, September 26, 2011)]
[Notices]
[Pages 59426-59434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24657]


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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: [D-11513, 2011-18 Northern Trust 
Corporation; D-11576, 2011-19 Bank of America, NA et al.; and D-11659, 
2011-20 Pacific Capital Bancorp Amended and Restated Incentive and 
Investment and Salary Savings Plan (the Plan).

SUPPLEMENTARY INFORMATION: 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.

Northern Trust Corporation Located in Chicago, IL

[Prohibited Transaction Exemption 2011-18; Exemption Application No. D-
11513]

Exemption

Section I. Transactions

    The restrictions of section 406(a)(1)(A) and (D) and section 
406(b)(1) and (2) of ERISA and the sanctions resulting from the 
application of section 4975 of the Code, by reason of section 
4975(c)(1)(A), (D), and (E) of the Code, shall not apply, effective 
October 31, 2008, to the sale (the Sale) by a Plan (as defined in 
Section III(e)) of an Auction Rate Security (ARS, as defined in Section 
III(c)) to Northern Trust Corporation or an affiliate thereof 
(Northern), if the conditions of Section II are met.\1\
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    \1\ 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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Section II. Conditions

    (a) The Plan acquired the ARS in connection with brokerage or 
advisory services provided by Northern to the Plan;
    (b) The last auction for the ARS was unsuccessful;
    (c) The Sale is made pursuant to a written offer by Northern (the 
Offer) containing all of the material terms of the Sale, in which the 
Plan would have

[[Page 59427]]

the opportunity to sell the ARS but would be under no obligation to do 
so, and would include but is not limited to the following:
    (i) Northern will distribute each Offer to its eligible customers, 
marked, or otherwise prepared in a manner reasonably designed to 
prominently indicate to the recipient the subject matter, importance, 
and time-sensitivity of the information provided;
    (ii) Acceptance of an Offer would cause Northern to purchase the 
eligible ARS at the next applicable coupon interest payment date as 
described therein. Purchase dates may vary depending on when an Offer 
is accepted and when the next coupon interest payment date for such 
eligible ARS occurs;
    (iii) Acceptance of the Offer could be withdrawn at any time until 
three business days prior to the payment date; and
    (iv) The Offer will comply with ``plain English'' standards and 
will include: A reference to a Web site containing a description of the 
eligibility criteria used by Northern; a reference to where the Plan 
fiduciary can find a list of eligible ARS held in the account 
(including the amount and other identifying information); the 
background of the Offer; the methods and timing by which eligible 
customers may accept the Offer; the manner of determining the purchase 
dates for eligible ARS pursuant to the Offer; the timing of payment for 
eligible ARS purchased pursuant to the Offer; the methods and timing by 
which a customer may elect to withdraw its acceptance of the Offer; the 
expiration date of the Offer; a suggestion that eligible customers 
consult their tax advisors to determine the tax consequences, if any, 
of accepting the Offer and to ensure that accounting and financial 
reporting complies with applicable accounting guidance; and how to 
obtain additional information concerning the Offer;
    (d) The Sale is a one-time transaction for no consideration other 
than cash payment against prompt delivery of the ARS;
    (e) The sales price for the ARS is equal to the par value of the 
ARS, plus any accrued but unpaid interest or dividends as applicable, 
as of the date of the Sale;
    (f) The Plan does not waive any rights or claims in connection with 
the Sale;
    (g) The decision to accept the Offer or retain the ARS is made by 
an Independent Fiduciary (as defined in section III(d)).\2\ 
Notwithstanding the foregoing, in the case of an individual retirement 
account (IRA) which is beneficially owned by an employee, officer, 
director or partner of Northern, the decision to accept the Offer or 
retain the ARS may be made by such employee, officer, director, or 
partner;
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    \2\ The Department notes that ERISA's general standards of 
fiduciary conduct would 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, the decision to sell the ARS to 
Northern for the par value of the ARS. The Department further 
emphasizes that it expects plan fiduciaries, prior to entering into 
any of the transactions, to fully understand the risks associated 
with this type of transaction, following disclosure by Northern of 
all the relevant information.
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    (h) Neither Northern nor an affiliate thereof exercises investment 
discretion or renders investment advice, within the meaning of 29 CFR 
2510.3-21(c), in connection with the decision to sell or retain the 
ARS;
    (i) The Plan does not pay any commissions or any other transaction 
costs with respect to the Sale;
    (j) The Sale is not part of an arrangement, agreement, or 
understanding designed to benefit a party in interest or disqualified 
person to the Plan;
    (k) Northern maintains, or causes to be maintained, for a period of 
six (6) years from the date of the Sale such records as are necessary 
to enable the persons described below in paragraph (l)(i), to determine 
whether the conditions of this exemption have been met, except that--
    (i) No party in interest or disqualified person with respect to a 
Plan which engages in a Sale, other than Northern and its affiliates, 
as applicable, 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 not available for examination, 
as required below by paragraph (l)(i); and
    (ii) A separate prohibited transaction shall not be considered to 
have occurred solely because, due to circumstances beyond the control 
of Northern or its affiliates, as applicable, such records are lost or 
destroyed prior to the end of the six-year period; and
    (l)(i) Except as provided below in paragraph (l)(ii), and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of ERISA, the records referred to above in paragraph (k) 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; or
    (B) Any fiduciary of any Plan, including an IRA owner, that engages 
in a Sale, or any duly authorized employee or representative of such 
fiduciary; or
    (C) Any employer of participants and beneficiaries and any employee 
organization whose members are covered by a Plan that engages in the 
Sale, or any authorized employee or representative of these entities;
    (ii) None of the persons described above in paragraph (l)(i)(B)-(C) 
shall be authorized to examine trade secrets of Northern, or commercial 
or financial information which is privileged or confidential; and
    (iii) Should Northern refuse to disclose information on the basis 
that such information is exempt from disclosure, Northern 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.

III. Definitions

    For purposes of this exemption:
    (a) The term ``affiliate'' of another person means: (1) Any person 
directly or indirectly, through one or more intermediaries, 
controlling, controlled by, or under common control with such person; 
(2) any officer, director, partner, employee, or relative (as defined 
in section 3(15) of ERISA) of such other person; and (3) any 
corporation or partnership of which such other person is an officer, 
director, partner, or employee;
    (b) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual;
    (c) The term ``Auction Rate Security'' or ``ARS'' means a debt 
obligation of a corporation, business entity, municipality or other 
governmental agency with a nominal long-term maturity for which the 
interest rate is reset through a Dutch Auction typically held every 7, 
14, 28, 35, or 49 days, with interest paid at the end of each auction 
period. The term also means preferred stock issued by a corporation or 
other business entity for which the dividend is reset and paid through 
the same process;
    (d) The term ``Independent Fiduciary'' shall mean the fiduciary of 
the Plan making the decision to engage the Plan in the covered 
transactions, provided

[[Page 59428]]

that such fiduciary may not be Northern or an affiliate thereof; and
    (e) The term ``Plan'' means an individual retirement account (an 
IRA) or similar account described in section 4975(e)(1)(B) through (F) 
of the Code; or an employee benefit plan as defined in section 3(3) of 
ERISA.

DATES: Effective Date: This exemption is effective as of October 31, 
2008.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on May 5, 2011 at 76 FR 
25711.

Written Comments

    No written comments were received by the Department with respect to 
the notice of proposed exemption.

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

Bank of America, NA et al., Located in Charlotte, North Carolina

[Prohibited Transaction Exemption 2011-19;Exemption Application No. D-
11576]

Exemption

Section I. Covered Transactions

    The restrictions of sections 406(a) and 406(b) of the Act and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of section 4975(c)(1)(A) through (F) of the Code, shall not 
apply: (a) From January 1, 2009 to October 7, 2010: (1) To the 
operation of the RPT Stable Value Agreements, pursuant to the terms 
thereof, and to the receipt of a fee by BANA in connection therewith; 
and (2) to transactions under the RPT Stable Value Agreements (the RPT 
Wrap-Related Transactions); (b) from April 23, 2009 to October 7, 2010: 
(1) To the execution of the RPT Special Purpose Wrap Agreement; (2) to 
the operation of the RPT Special Purpose Wrap Agreement, pursuant to 
the terms thereof, and to the receipt of a fee by BANA in connection 
therewith; and (3) to transactions under the RPT Special Purpose Wrap 
Agreement (the Special Purpose Wrap-Related Transactions); and (c) from 
January 1, 2009 to April 8, 2011: (1) To the operation of the 
Separately Managed Account Wrap Agreements, pursuant to the terms 
thereof, and to the receipt of a fee by BANA in connection therewith; 
and (2) to transactions under the Separately Managed Account Wrap 
Agreements (the Separately Managed Account Wrap-Related Transactions), 
provided that the following conditions, as applicable, have been 
met.\3\
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    \3\ For purposes of this exemption, references to section 406 of 
ERISA should be read to refer as well to the corresponding 
provisions of section 4975 of the Code.
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Section II. Conditions Applicable to Transactions Described in Section 
I(a).

    (a) Effective June 1, 2009, BlackRock Advisors may change the 
formula for calculating the Crediting Rate with respect to the Global 
Wrap Account or the Global Buy and Hold Account (either, a Global 
Account) only after obtaining prior approval from:
    (1) Each financial institution that has entered into a wrap 
agreement covering assets included in the applicable Global Account; 
and
    (2) The Independent Fiduciary, after BlackRock Advisors has 
provided the Independent Fiduciary with any information that the 
Independent Fiduciary has reasonably requested in determining whether 
to approve the proposed change in the Crediting Rate formula;
    (b) BANA may not reset a Crediting Rate attributable to a Global 
Account more frequently than on a monthly basis unless:
    (1) A crediting rate attributable to a non-BANA wrap agreement 
covering assets in the same Global Account is reset more frequently 
than on a monthly basis; and
    (2) BANA resets the Crediting Rate at the same time, and in the 
same manner, as such other non-BANA wrap agreement crediting rate;
    (c) Each financial institution entering into a wrap agreement 
covering assets included in a Global Account obtains information from 
BlackRock Advisors on a monthly basis regarding the investments 
included in such Global Account. This information must be sufficiently 
detailed to enable the financial institution to independently verify 
that the applicable Crediting Rate was calculated properly;
    (d) The fee received by BANA in connection with the BANA RPT Global 
Wrap Agreement or the BANA RPT Buy and Hold Wrap Agreement will be 
reasonable relative to market conditions and risks. Notwithstanding the 
above, in no event shall the fee received by BANA under the BANA RPT 
Global Wrap Agreement or the BANA RPT Buy and Hold Wrap Agreement 
exceed the maximum percentage fee paid to any other financial 
institution pursuant to a wrap agreement covering assets in the 
applicable Global Wrap Account or the Global Buy and Hold Account, as 
relevant;
    (e) The Trustee may trigger immunization with respect to the BANA 
RPT Global Wrap Agreement only if:
    (1) The Trustee triggers immunization with respect to another wrap 
agreement covering assets in the Global Wrap Account immediately prior 
to, or at the same time as, the Trustee triggers immunization with 
respect to the BANA RPT Global Wrap Agreement; or
    (2) A financial institution not affiliated with BANA triggers 
immunization with respect to assets in the Global Wrap Account 
immediately prior to, or at the same time as, the Trustee triggers 
immunization with respect to the BANA RPT Global Wrap Agreement; or
    (3) The Trustee determines that BANA is no longer financially 
responsible and the Independent Fiduciary determines that immunization 
is in the interests of Plans invested in RPT;
    (f) Assets held in RPT will be valued at their current fair market 
value on a daily basis utilizing the following BlackRock firm-wide 
approved valuation process:
    (1) Valuations will be performed without regard to whether the 
security is held in RPT or another account or commingled vehicle 
advised by BlackRock;
    (2) Valuations will be based on the price that may be obtained in a 
current arm's-length sale to an unrelated third party;
    (3) BlackRock will first obtain prices for securities from 
independent third-party sources, including index providers, broker-
dealers and independent pricing services. BlackRock will maintain a 
hierarchy that prioritizes pricing sources by asset class or type and 
will value securities based on the price generated by the highest 
priority source. The hierarchy may vary by asset class or type, but not 
for a particular security;
    (4) If no third-party sources are available to value a security or 
the price generated by the third-party falls outside specified 
statistical norms and after review BlackRock determines that such price 
is not reliable, BlackRock will value the security using an analytic 
methodology in accordance with its written valuation policy. If 
BlackRock values a security using such analytic methodology, the 
Independent Fiduciary will review that methodology and valuation and 
will obtain its own valuation if it deems appropriate; and
    (5) Values determined in accordance with (1) through (4) above will 
be provided to each financial institution that has entered into a wrap 
agreement covering assets in the Global Wrap

[[Page 59429]]

Account or the Global Buy and Hold Account, as the case may be;
    (g) Each financial institution that has entered into a wrap 
agreement covering assets in the Global Wrap Account and/or the Global 
Buy and Hold Account, including BANA, may raise an objection regarding 
a particular security's valuation, regardless of the source of such 
valuation. Once an objection is raised, wrap providers other than BANA 
may determine a new valuation for such security and BANA must accept 
this new valuation, provided that BANA is given reasonably satisfactory 
documentation supporting the new valuation;
    (h) Prior to a Plan sponsor's decision to include RPT as an 
investment option for its Plan's participants, the Trustee will provide 
the Plan sponsor with the following:
    (1) RPT's Declaration of Trust (as amended and restated as of April 
23, 2009, and as may be further amended from time to time);
    (2) A purchase agreement to be entered into by the Plan fiduciary 
and the Trustee;
    (3) Upon request, a copy of the Annual Report for RPT and a fact 
sheet describing RPT's investment objective and strategy and a 
performance analysis; and
    (4) A copy of the proposed exemption or a copy of the final 
exemption;
    (i) The Trustee will provide the following ongoing disclosures to 
Plan fiduciaries regarding a Plan's investment in RPT:
    (1) The Annual Report for RPT; and
    (2) The Plan's Investment Summary and Accounting;
    (j) Plan participants will be provided the following disclosures 
regarding their investment in RPT:
    (1) Prior to and following their initial investment, information 
describing the investment objectives and performance of RPT; and
    (2) A statement, delivered at least quarterly, that sets forth the 
value of the participant's account contributions, withdrawals, 
distributions, loans and change in value since the prior statement;
    (k) The Independent Fiduciary must receive a copy of any RPT Stable 
Value Agreement amendment prior to the effective date of such 
amendment. The Independent Fiduciary must review and approve the 
amendment prior to its implementation, except that no such review and 
approval shall be required for an amendment that is purely ministerial 
in nature;
    (l) The dollar amount of Global Wrap Account assets covered by the 
BANA RPT Global Wrap Agreement shall not exceed 50% of the total assets 
held in such Account, and the terms associated with the BANA RPT Global 
Wrap Agreement at the time such Agreement was entered into, amended, 
modified or renewed shall be no less favorable to RPT than the terms 
associated with comparable agreements with unrelated parties;
    (m) The dollar amount of Global Buy and Hold Account assets covered 
by the BANA RPT Buy and Hold Wrap Agreement shall not exceed 60% of the 
total assets held in such Account, and the terms associated with the 
BANA RPT Buy and Hold Wrap Agreement at the time such Agreement was 
entered into, amended, modified or renewed shall be no less favorable 
to RPT than the terms associated with comparable agreements with 
unrelated parties; and
    (n) Any RPT Wrap-Related Transaction that involves: (1) The 
exercise by BANA, the Trustee, or BlackRock Advisors of their rights 
under the RPT Stable Value Agreements; or (2) the performance by BANA, 
the Trustee, or BlackRock Advisors of their obligations under the RPT 
Stable Value Agreements, shall be subject to prior review and approval 
by the Independent Fiduciary if such exercise or performance affects 
the Crediting Rate or would otherwise have an adverse impact on the 
book value of a participant's or beneficiary's investment in RPT.

Section III. Conditions Applicable to Transactions Described in Section 
I(b)

    (a) Below Investment Grade Securities will be transferred 
automatically to a RPT account (the Type D1 Account) and covered by the 
RPT Special Purpose Wrap Agreement. The RPT Special Purpose Wrap 
Agreement shall cover up to in the aggregate $200 million of the 
following:
    (1) Book value of Downgraded Securities that have not been sold; 
and/or
    (2) Aggregate unamortized realized losses with respect to sold 
Downgraded Securities;
    (b) The Minimum Ratio shall be maintained;
    (c) The total book value of the assets included in the Type D1 
Account and covered by the RPT Special Purpose Wrap, including the 
Permitted Securities, will not exceed $700 million without the prior 
written consent of the Trustee, BlackRock Advisors, BANA and the 
Independent Fiduciary;
    (d) The crediting rate with respect to the Type D1 Account (the 
Type D1 Account Crediting Rate) shall be 0.00% at times when there are 
unamortized losses (whether realized or unrealized) attributable to 
Downgraded Securities in the Type D1 Account, calculated in accordance 
with the provisions of the RPT Special Purpose Wrap Agreement. In the 
event there are no unamortized losses (i.e., neither realized nor 
unrealized) recorded to the Type D1 Account which relate to Downgraded 
Securities, the Type D1 Account Crediting Rate shall be determined in 
accordance with a formula that has been reviewed by the Independent 
Fiduciary;
    (e) Effective June 1, 2009, BlackRock Advisors may change the 
formula for calculating the Type D1 Account Crediting Rate only after 
obtaining prior approval from BANA and the Independent Fiduciary. 
BlackRock Advisors shall provide the Independent Fiduciary with any 
information it may reasonably request in determining whether to approve 
a proposed change in the Type D1 Account Crediting Rate formula;
    (f) The Type D1 Account Crediting Rate will not be reset more 
frequently than on a monthly basis;
    (g) Permitted Securities will have a maximum duration of 3.5 years 
at the time of purchase;
    (h) The fee charged by BANA for the RPT Special Purpose Wrap will 
be reasonable relative to market conditions and risks, as determined 
annually by the Independent Fiduciary. Notwithstanding the above, in no 
event shall such fee exceed 15 basis points per annum of the total book 
value of assets included in the Type D1 Account;
    (i) Assets covered by the RPT Special Purpose Wrap Agreement will 
be valued in accordance with the methodology specified in section II(f) 
above, provided, however, that if the Independent Fiduciary obtains a 
valuation, such valuation will be binding on BANA;
    (j) The Trustee has the right to immunize the portfolio of 
securities included in the Type D1 Account only if BANA elects to 
terminate the RPT Special Purpose Wrap Agreement, or if BANA defaults 
under the RPT Special Purpose Wrap Agreement. If an immunization 
election becomes effective (the RPT Special Purpose Immunization Date), 
the RPT Special Purpose Wrap Agreement would terminate on the later of: 
(1) The date that is the number of years after the RPT Special Purpose 
Immunization Date which does not extend beyond the modified duration 
(as defined in the RPT Special Purpose Wrap Agreement) of the 
underlying assets on the RPT Special Purpose Immunization Date; or (2) 
the first date on which the market value of the underlying assets 
equals or

[[Page 59430]]

exceeds the book value under the wrap agreement;
    (k) No Below Investment Grade Securities will be added to the RPT 
Special Purpose Wrap Agreement after April 23, 2011, unless otherwise 
agreed by BANA, the Trustee, and the Independent Fiduciary. No party to 
the RPT Special Purpose Wrap Agreement is obligated to amend or extend 
the RPT Special Purpose Wrap Agreement;
    (l) The tasks performed by the Independent Fiduciary will include:
    (1) Determining whether the RPT Special Purpose Wrap Agreement and 
the portfolio arrangement for the Type D1 Account (including the wrap 
fee payable to BANA, the Minimum Ratio, the prefunding of the RPT 
Special Purpose Wrap Agreement and the formula for resetting the Type 
D1 Account Crediting Rate) are prudent and in the best interest of 
participants and beneficiaries of Plans investing in RPT;
    (2) Reviewing valuations generated by BlackRock (in connection with 
the RPT Special Purpose Wrap Agreement) in any situation where 
BlackRock is unable to obtain a reliable valuation from independent 
third party sources. If, after such review, the Independent Fiduciary 
deems appropriate, the Independent Fiduciary will obtain an independent 
valuation which will be binding on the parties;
    (3) Reviewing and monitoring whether the Type D1 Account Crediting 
Rate is calculated correctly;
    (4) Monitoring the addition and removal of Below Investment Grade 
Securities and any changes in Permitted Securities in the Type D1 
Account, and opining, in a written report, whether such addition, 
removal or change is appropriate;
    (5) If BANA objects to the calculation by the Trustee or its 
designee of the Type D1 Account Crediting Rate or the information used 
to calculate the Type D1 Account Crediting Rate, the Independent 
Fiduciary will make a conclusive and binding determination regarding 
such calculation or information;
    (6) Determining whether to approve any proposed change to the Type 
D1 Account Crediting Rate formula, including any proposed adjustment to 
the duration component of the Type D1 Account Crediting Rate formula;
    (7) No later than April 30, 2011, working with BANA, BlackRock, and 
the Trustee to review and determine whether additional Below Investment 
Grade Securities may be transferred to the Type D1 Account and be 
covered by the RPT Special Purpose Wrap Agreement;
    (8) Making an initial and, thereafter, annual determination 
regarding whether the fee described in paragraph (h) of this section is 
reasonable relative to the specific attributes of the RPT Special 
Purpose Wrap Agreement;
    (9) Making an annual determination regarding whether the continued 
maintenance of the RPT Special Purpose Wrap Agreement is appropriate 
and in the interest of Plans;
    (10) Making a monthly determination regarding whether the 
appropriate Type D1 Crediting Rate formula is being used; and
    (11) Reviewing and approving any amendment to a RPT Special Purpose 
Wrap Agreement consistent with paragraph (n) of this section;
    (m) Any Special Purpose Wrap-Related Transaction that involves: (1) 
The exercise by BANA, the Trustee, or BlackRock Advisors of their 
rights under the RPT Special Purpose Wrap Agreement; or (2) the 
performance by BANA, the Trustee, or BlackRock Advisors of their 
obligations under the RPT Special Purpose Wrap Agreement, shall be 
subject to prior review and approval by the Independent Fiduciary if 
such exercise or performance affects the Type D1 Crediting Rate or 
otherwise would have an adverse impact on the book value of a 
participant's or beneficiary's investment in RPT; and
    (n) The Independent Fiduciary must receive a copy of any RPT 
Special Purpose Wrap Agreement amendment prior to the effective date of 
such amendment. The Independent Fiduciary must review and approve the 
amendment prior to its implementation, except that no such review and 
approval shall be required for an amendment that is purely ministerial 
in nature.

Section IV. Conditions Applicable to Transactions Described in Section 
I(c)

    (a) Effective June 1, 2009, BlackRock Advisors may change the 
formula for calculating the Crediting Rate with respect to each 
Separately Managed Account Wrap Agreement only after obtaining prior 
approval from BANA and the Independent Fiduciary. BlackRock Advisors 
shall provide the Independent Fiduciary with any information it may 
reasonably request in determining whether to approve a proposed change 
in the Crediting Rate formula;
    (b) Effective June 1, 2009, the Crediting Rate will be reset no 
more frequently than on a monthly basis;
    (c) BANA will not receive a fee under the BANA Wal-Mart Separately 
Managed Wrap Agreement in excess of the maximum percentage fee received 
by any other Tier 3 Wrap Provider in the Wal-Mart Separately Managed 
Account; and BANA will not receive a fee under the BANA Hertz 
Separately Managed Wrap Agreement in excess of the maximum percentage 
fee received by any other financial institution that has entered into a 
wrap agreement covering assets in the Hertz Separately Managed Account;
    (d) Assets covered under each Separately Managed Account Wrap 
Agreement will be valued in accordance with the same methodology 
specified in section II(f) above; provided, however, that if BANA 
objects to the valuation of any asset, the Independent Fiduciary will 
make a binding determination of the value of the asset;
    (e) The tasks performed by the Independent Fiduciary will include:
    (1) Conducting a monthly review of the Crediting Rate, including, 
confirming: (A) The book value of the portfolio of assets wrapped by 
each Separately Managed Account Wrap Agreement; (B) the valuation of 
securities; (C) the duration of securities; (D) the market yield of 
securities; and (E) that the Crediting Rate formula was calculated 
properly;
    (2) Reviewing and approving any proposed amendment to a Separately 
Managed Wrap Agreement consistent with paragraph (i) below;
    (3) Reviewing any exercise of contract provisions by any of BANA, 
BlackRock Advisors or, in the case of the BANA Wal-Mart Separately 
Managed Wrap Agreement, the Trustee, and analyze its potential impact 
on investors;
    (4) Evaluating any changes to the fees paid to BANA under each 
Separately Managed Account Wrap Agreement to determine reasonableness 
relative to market conditions and risks; and
    (5) Providing quarterly reports to BlackRock Advisors and to the 
named fiduciaries of the Wal-Mart Plan and the Hertz Plan. These 
reports must certify that the Independent Fiduciary has reviewed the 
factors described above and state whether BlackRock Advisors has 
complied with all requirements of the contract. The Independent 
Fiduciary will inform the named fiduciaries of a Plan if it believes 
that BANA or BlackRock Advisors has taken any actions that are not in 
the best interests of the participants and beneficiaries in the Wal-
Mart Plan or the Hertz Plan, as relevant;
    (f) The Separately Managed Account Wrap Agreements shall authorize 
the Independent Fiduciary to:
    (1) Review and approve any proposed changes in the formula for 
calculating the Crediting Rate, prior to implementation of any such 
change;

[[Page 59431]]

    (2) If BlackRock Advisors generates its own valuation, review the 
valuation, and if the Independent Fiduciary deems appropriate, obtain 
an independent valuation, which shall be binding on the parties, 
subject to BANA's right to raise an objection to any valuation;
    (3) If BANA objects to the valuation of any asset, make a binding 
determination of the value of the asset;
    (g) The named fiduciaries (or their authorized representatives) for 
the Wal-Mart Plan have the right to terminate BlackRock Advisors, as 
investment manager for the Wal-Mart Separately Managed Account, on 90 
days' written notice. The named fiduciaries (or their authorized 
representatives) for the Hertz Plan have the right to terminate 
BlackRock Advisors as investment manager for the Hertz Separately 
Managed Account, on 30 days' written notice;
    (h) Any Separately Managed Account Wrap-Related Transaction that 
involves: (1) The exercise by BANA, the Trustee, or BlackRock Advisors 
of their rights under a Separately Managed Account Wrap Agreement; or 
(2) the performance by BANA, the Trustee, or BlackRock Advisors of 
their obligations under a Separately Managed Wrap Agreement: Shall be 
subject to prior review and approval by the Independent Fiduciary if 
such exercise or performance affects the Crediting Rate or otherwise 
would have an adverse impact on the book value of a participant's or 
beneficiary's investment in RPT;
    (i) The Independent Fiduciary must receive a copy of any amendment 
contemplated for a Separately Managed Wrap Agreement. The Independent 
Fiduciary must review and approve the amendment prior to its 
implementation, except that no such review and approval shall be 
required for an amendment that is purely ministerial in nature; and
    (j) BlackRock may not terminate a Separately Managed Account Wrap 
Agreement without the prior approval of the Independent Fiduciary.

Section V. General Conditions

    (a) BlackRock Advisors shall maintain in the United States the 
records necessary to enable the persons described in (b) below to 
determine whether the conditions of this exemption were met, except 
that:
    (1) If the records necessary to enable the persons described in (b) 
below to determine whether the conditions of the exemption have been 
met are lost or destroyed, due to circumstances beyond the control of 
BlackRock Advisors, then no prohibited transaction will be considered 
to have occurred solely on the basis of the unavailability of those 
records; and
    (2) No party in interest other than BlackRock Advisors shall be 
subject to the civil penalty that may be assessed under section 502(i) 
of the Act or to the taxes imposed by sections 4975(a) and (b) of the 
Code if the records have not been maintained or are not available for 
examination as required by paragraph (b) below;
    (b) Except as provided in paragraph (c) of this section V and 
notwithstanding the provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in section V(a) are 
unconditionally available for examination during normal business hours 
at their customary location to the following persons or an authorized 
representative thereof:
    (1) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service;
    (2) Any fiduciary of a Plan participating in RPT or the Hertz Plan 
or the Wal-Mart Plan;
    (3) Any participant or beneficiary of a Plan participating in RPT 
or the Hertz Plan or the Wal-Mart Plan; or
    (4) The Independent Fiduciary.
    (c) None of the persons described above in paragraphs (2), (3), and 
(4) of paragraph (b) of this section V shall be authorized to examine 
trade secrets of BlackRock, BANA, the Trustee or any of their 
Affiliates, or any commercial or financial information which is 
privileged or confidential. Should BlackRock Advisors refuse to 
disclose information on the basis that such information is exempt from 
disclosure, BlackRock Advisors shall, by the close of the thirtieth 
(30th) day following the request, provide written notice advising that 
person of the reason for the refusal and that the Department may 
request such information; and
    (d) Promptly following publication of this final exemption in the 
Federal Register, the Trustee or BlackRock Advisors will provide a copy 
of the final exemption to the Plan sponsor of each Plan invested in 
RPT, and to the Plan sponsor of the Hertz Plan, and to the Plan sponsor 
of the Wal-Mart Plan.

Section VI. Definitions

    (a) The term Act means: The Employee Retirement Income Security Act 
of 1974, as amended;
    (b) The term Affiliate means: Any person, directly or indirectly, 
through one or more intermediaries, controlling, controlled by or under 
common control with such person;
    (c) The term BANA means: Bank of America, N.A. and its Affiliates;
    (d) The term BANA Hertz Separately Managed Wrap Agreement means: 
The agreement dated as of July 27, 2007 (and amended effective as of 
December 31, 2008) among BANA, BlackRock Advisors (as investment 
manager for a portion of the assets of the Hertz Plan), and the Bank of 
New York Mellon (the successor by operation of law to Mellon Bank N.A., 
and the trustee of the trust created pursuant to the Hertz Plan), as 
such agreement may be amended from time to time, pursuant to which BANA 
provides a book value benefit responsive facility with respect to a 
portion of the assets held in the Hertz Separately Managed Account;
    (e) The term BANA RPT Buy and Hold Wrap Agreement means: The 
agreement dated as of October 16, 1996, between Barclays Bank PLC and 
the Trustee (as assigned to BANA as of April 1, 1998, and amended 
effective as of December 31, 2008), as such agreement may be amended 
from time to time, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Global Buy and Hold Account;
    (f) The term BANA RPT Global Wrap Agreement means: The agreement 
dated as of May 1, 2004 (and amended effective as of December 31, 2008) 
between BANA and the Trustee, as such agreement may be amended from 
time to time, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Global Wrap Account;
    (g) The term BANA Wal-Mart Separately Managed Wrap Agreement means: 
The agreement dated as of August 19, 2003 (and amended effective as of 
December 31, 2008) between BANA and the Trustee, as such agreement may 
be amended from time to time, pursuant to which BANA provides a book 
value benefit responsive facility with respect to a portion of the 
assets held in the Wal-Mart Separately Managed Account;
    (h) The term Below Investment Grade Security means: Securities that 
cease to be covered by a benefit responsive contract in RPT (other than 
by the RPT Special Purpose Wrap Agreement) solely as a result of a 
downgrade in the credit rating of the security to below Baa3, BBB- or 
BBB- by Moody's Investors Services, Inc., Standard & Poor's Rating 
Group, or Fitch Ratings, respectively; provided, however, that a Below 
Investment Grade Security shall not include any security that is an 
Impaired Security;
    (i) The term BlackRock means: BlackRock, Inc.;

[[Page 59432]]

    (j) The term BlackRock Advisors means: BlackRock Investment 
Management, LLC and its Affiliates;
    (k) The term Code means: The Internal Revenue Code of 1986, as 
amended;
    (l) The term Crediting Rate means: The crediting rate described in 
sections II and IV that is used for purposes of determining the accrued 
interest to be added to the book value of an individual's account 
within RPT or the Separately Managed Accounts;
    (m) The term Downgraded Security means: A Below Investment Grade 
Security that is held in the Type D1 Account and covered by the RPT 
Special Purpose Wrap Agreement;
    (n) The term Global Buy and Hold Account means: The book account or 
sub-account maintained within RPT for purposes of identifying certain 
assets relating to the BANA RPT Buy and Hold Wrap Agreement;
    (o) The term Global Wrap Account means: The book account or sub-
account maintained within RPT for purposes of identifying certain 
assets relating to the BANA RPT Global Wrap Agreement;
    (p) The term Hertz Plan means: The Hertz Corporation Income Savings 
Plan;
    (q) The term Hertz Separately Managed Account means: The separately 
managed stable value account advised by BlackRock Advisors on behalf of 
the Hertz Plan;
    (r) The term Impaired Security means: (i) A security with respect 
to which the issuer or guarantor has failed to make one or more 
payments of principal or interest (after giving effect to any 
applicable grace period under the terms of such security or prescribed 
by any change in law, regulation, ruling or other governmental action); 
(ii) a security with respect to which the principal or interest has 
become due and payable before it otherwise would have been due or 
payable other than: (x) By reason of a call or other prepayment of such 
security made in accordance with its terms that does not constitute a 
default under such security, or (y) solely on account of any change in 
law, regulation, ruling or other governmental action; (iii) a security 
where the rate of interest thereon has been reset other than: (x) 
Pursuant to the original terms of such security, or (y) solely on 
account of any change in law, regulation, ruling or other governmental 
action; or (iv) a security with respect to which the issuer becomes 
insolvent or institutes or has instituted against it a proceeding 
seeking a judgment of insolvency or bankruptcy or any other relief 
under any bankruptcy or insolvency law or other similar law affecting 
creditor's rights;
    (s) The term Independent Fiduciary means an entity that is: (i) 
Experienced and knowledgeable in ERISA and the transactions and 
arrangements described herein; (ii) independent of and unrelated to 
BANA, Merrill, BlackRock, and their Affiliates; and (iii) appointed to 
act on behalf of Plans investing in RPT or the Separately Managed 
Accounts with respect to the matters described herein. The Independent 
Fiduciary will not be deemed to be independent of and unrelated to 
BANA, Merrill, BlackRock, and their Affiliates if: (i) Such fiduciary 
directly or indirectly controls, is controlled by or is under common 
control with BANA, Merrill, or BlackRock; (ii) such fiduciary directly 
or indirectly receives any compensation or other consideration in 
connection with any transaction described in this exemption other than 
for acting as an Independent Fiduciary in connection with the 
transactions described herein, provided that the amount or payment of 
such compensation is not contingent upon, or in any way affected by, 
the Independent Fiduciary's ultimate decision; and (iii) the annual 
gross revenue received by the Independent Fiduciary, during any year of 
its engagement, from BANA, Merrill, BlackRock, and any of their 
Affiliates, exceeds five percent (5%) of the Independent Fiduciary's 
annual gross revenue from all sources (for federal income tax purposes) 
for its prior tax year;
    (t) The term Minimum Ratio means: A ratio of 2.5 to 1.0 of market 
value of Permitted Securities to the total unamortized unrealized and 
realized losses with respect to Downgraded Securities;
    (u) The term Permitted Securities means any security that: (i) Is a 
U.S. Treasury debenture, a security issued by the Government National 
Mortgage Association or a security guaranteed by the Federal Deposit 
Insurance Corporation; and (ii) has a modified duration on the date of 
purchase by RPT of 3.5 years or less;
    (v) The term Plan means: An employee benefit plan within the 
meaning of and subject to Title I of the Act or an individual 
retirement account within the meaning of section 4975 of the Code;
    (w) The term RPT means: The Merrill Lynch Retirement Preservation 
Trust maintained by the Trustee;
    (x) The term RPT Special Purpose Wrap Agreement means: The 
agreement dated as of April 23, 2009, as amended, between BANA and the 
Trustee, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Type D1 Account;
    (y) The term RPT Stable Value Agreements means: The BANA RPT Global 
Wrap Agreement and the BANA RPT Buy and Hold Wrap Agreement;
    (z) The term Separately Managed Accounts means: The Hertz 
Separately Managed Account and the Wal-Mart Separately Managed Account;
    (aa) The term Separately Managed Account Wrap Agreements means: The 
BANA Wal-Mart Separately Managed Wrap Agreement and the BANA Hertz 
Separately Managed Wrap Agreement;
    (bb) The term Type D1 Account means: The book account maintained 
within RPT for purposes of identifying Downgraded Securities, including 
unamortized losses with respect to Downgraded Securities that have been 
sold, and Permitted Securities covered by the RPT Special Purpose Wrap 
Agreement;
    (cc) The term Tier 3 Wrap Provider means: A financial institution 
that has entered into a wrap agreement with respect to assets held in 
the Wal-Mart Separately Managed Account that will not be accessed for 
purposes of making benefit payments until after two tiers of buffer 
assets are accessed;
    (dd) The term Trustee means: Bank of America, N.A.;
    (ee) The term Wal-Mart Plan means: The Wal-Mart Profit Sharing and 
401(k) Plan and the Wal-Mart Puerto Rico Profit Sharing and 401(k) 
Plan;
    (ff) The term Wal-Mart Separately Managed Account means: The 
separately managed stable value account advised by BlackRock Advisors 
on behalf of the Wal-Mart Plan;
    (gg) The term Merrill means: Merrill Lynch & Co., Inc. and its 
Affiliates;
    (hh) The term RPT Wrap-Related Transaction means: (1) The 
determination, calculation of and adjustments to the Crediting Rate, 
and any changes to the Crediting Rate formula; (2) valuations of 
securities covered by the RPT Stable Value Agreements; (3) payment of 
wrap fees and any changes to wrap fees; (4) the purchase and sale of 
any security covered by the RPT Stable Value Agreements; (5) BANA's or 
the Trustee's exercise of its right to immunize or terminate the RPT 
Stable Value Agreements; (6) amendments to the RPT Stable Value 
Agreements; and (7) any other exercise by BANA, the Trustee, or 
BlackRock Advisors of their rights, or any performance by BANA, the 
Trustee, or BlackRock Advisors of their obligations, under the RPT 
Stable Value Agreements;
    (ii) The term Special Purpose Wrap-Related Transaction means: (1) 
The

[[Page 59433]]

transfer of Below Investment Grade Securities to the Type D1 Account; 
(2) the sale or transfer of Downgraded Securities out of the Type D1 
Account; (3) the purchase and sale of certain other securities 
permitted to be held in the Type D1 Account; (4) transactions relating 
to maintenance of a minimum ratio of Permitted Securities and 
Downgraded Securities; (5) the determination, calculation of and 
adjustments to the Type D1 Account Crediting Rate and any changes to 
the Type D1 Account Crediting Rate formula; (6) valuations of 
securities covered by the RPT Special Purpose Wrap Agreement; (7) 
payment of and any changes to wrap fees; (8) BANA's or the Trustee's 
exercise of its right to immunize or terminate the RPT Special Purpose 
Wrap Agreement; (9) the entering into and amendment of the RPT Special 
Purpose Wrap Agreement; and (10) any exercise by BANA, the Trustee, or 
BlackRock Advisors of their rights, or any performance by BANA, the 
Trustee, or BlackRock Advisors of their obligations, under the RPT 
Special Purpose Wrap Agreement;
    (jj) The term Separately Managed Account Wrap-Related Transaction 
means: (1) The determination, calculation of and adjustments to the 
Crediting Rate, and any changes to the Crediting Rate formula; (2) 
valuations of securities covered by the Separately Managed Account Wrap 
Agreements; (3) payment of wrap fees and any changes to wrap fees; (4) 
the purchase and sale of any security covered by the Separately Managed 
Account Wrap Agreements; (5) BANA's or the Trustee's exercise of its 
right to terminate the Separately Managed Account Wrap Agreements; (6) 
amendments to the Separately Managed Wrap Agreements; and (7) any other 
exercise by BANA, the Trustee, or BlackRock Advisors of their rights, 
or any performance by BANA, the Trustee, or BlackRock of their 
obligations, under the Separately Managed Account Wrap Agreements.

Written Comment

    The Department received one written comment letter, dated November 
19, 2010, from Bank of America, N.A. (BANA), Merrill Lynch & Co., Inc. 
(Merrill Lynch) and BlackRock, Inc. (BlackRock) (collectively, the 
Applicants). In the letter, the Applicants made certain representations 
and/or requests regarding the preamble to the proposed exemption, and 
sections I(a) and (b), II(d), and III(h) of the proposed exemption. On 
August 18, 2011 and September 19, 2011, the Department received further 
correspondence from the Applicants, whereby the Applicants provided an 
additional representation and made an additional request regarding 
section I(c) of the proposed exemption.
    With respect to the preamble to the proposed exemption, the 
Applicants state that a clause was omitted from paragraph 47 of the 
Summary of Facts and Representations. In this regard, the Applicants 
represent that the first sentence of that paragraph should read as 
follows: ``BANA will not receive a fee under either the BANA Wal-Mart 
Separately Managed Wrap Agreement or the BANA Hertz Separately Managed 
Wrap Agreement in excess of the maximum percentage fee received by any 
other Tier 3 Wrap Provider in the Wal-Mart Separately Managed Account, 
or in excess of the maximum percentage fee received by any other entity 
that has entered into a wrap agreement covering assets in the Hertz 
Separately Managed Account, as the case may be.'' The Department 
concurs with this comment.
    With respect to section I(a) and (b) of the proposed exemption, the 
Applicants state that the RPT Stable Value Agreements and the RPT 
Special Purpose Wrap Agreement were terminated on October 6, 2010 and 
the relief set forth in section I(a) and (b) of the proposed exemption 
is not needed beyond October 7, 2010.\4\ The Applicants request that 
the relief contained in section I(a) and (b) of the final exemption 
expire on October 7, 2010.
---------------------------------------------------------------------------

    \4\ In the letter, the Applicants represented that, in 
connection with the change, Plan sponsors and participants and 
beneficiaries were to receive the book value of their investment and 
be permitted to transfer the proceeds to alternative investments.
---------------------------------------------------------------------------

    Upon consideration of this request, the Department has determined 
that it would be appropriate to modify the proposed exemption as 
requested by the Applicants and, accordingly, the relief set forth in 
section I(a) and (b) of the final exemption expires on October 7, 2010.
    With respect to section I(c) of the proposed exemption, the 
Applicants represent that Merrill Lynch's investment in BlackRock has 
diminished to the point where the relief described in section I(c) is 
not needed beyond April 8, 2011. The Applicants therefore request that 
the relief contained in section I(c) of the final exemption expire on 
April 8, 2011.
    Upon consideration of this request, the Department has determined 
that it would be appropriate to modify the proposed exemption as 
requested by the Applicants and, accordingly, the relief set forth in 
section I(c) of the final exemption expires on April 8, 2011.
    With respect to the above-described modifications to section I, the 
Department notes that the exemption was proposed with the expectation 
that the relief provided by the exemption, if granted, would be on-
going in nature. The proposed exemption therefore contains certain 
conditions applicable to section I(a) and (b) that expressly require 
the Applicants and/or the Independent Fiduciary to perform a specific 
action subsequent to October 7, 2010.\5\ Similarly, the proposed 
exemption contains a condition applicable to section I(c) that 
expressly requires the Applicants to perform a specific action 
subsequent to April 8, 2011.\6\ While these conditions have not been 
modified for purposes of this final exemption, such conditions do not 
remain in effect after: October 7, 2010 for conditions relating to the 
relief set forth in section I(a) or (b); or April 8, 2011 for 
conditions relating to the relief set forth in section I(c).
---------------------------------------------------------------------------

    \5\ See, for example, paragraph (l)(7) of section III.
    \6\ See paragraph (d) of section V.
---------------------------------------------------------------------------

    With respect to section II(d) of the proposed exemption, the 
Applicants request the removal of that condition's requirement that the 
Independent Fiduciary review the fees received by BANA in connection 
with the RPT Stable Value Agreements and the RPT Special Purposes Wrap 
Agreement. In this regard, the Applicants represent that such review is 
unnecessary due to: The limited time period for which exemptive relief 
is required (i.e., from January 1, 2009 to October 7, 2010); and the 
other fee restrictions contained in the proposed exemption.\7\ Upon 
consideration of this request, the Department has determined that it is 
appropriate to modify the proposed exemption in the manner requested by 
the Applicants and, accordingly, has revised section II(d) of the final 
exemption.
---------------------------------------------------------------------------

    \7\ The Applicants represent that BANA is no longer receiving 
any fees with respect to the RPT Stable Value Agreements or the RPT 
Special Purpose Wrap Agreement.
---------------------------------------------------------------------------

    With respect to section III(h) of the proposed exemption, the 
Applicants request the removal of the second sentence of this 
condition. The subject sentence provides, in part, that ``in no event 
shall the fee received by BANA under the BANA RPT Global Wrap Agreement 
or the BANA RPT Buy and Hold Wrap Agreement exceed the maximum 
percentage fee paid to any other financial institution pursuant to a 
wrap agreement covering assets in the applicable Global Wrap Account or 
the Global Buy and Hold Account, as relevant, as determined annually by 
the Independent Fiduciary.'' Upon

[[Page 59434]]

consideration of this request, the Department has determined that it is 
appropriate to modify the proposed exemption in the manner requested by 
the Applicants and, accordingly, has revised section III(h) of the 
final exemption.
    After full consideration and review of the entire record, including 
the written comment, the Department has determined to grant the 
exemption, as modified herein. The comment submitted by the Applicants 
to the Department has 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 available for 
public inspection in the Public Disclosure Room of the Employee 
Benefits Security Administration, Room N-1513, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
    For a complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the Notice published on October 6, 2010 (75 FR 61932).

FOR FURTHER INFORMATION CONTACT: Christopher Motta of the Department, 
telephone (202) 693-8544. (This is not a toll-free number.)

Pacific Capital Bancorp Amended and Restated Incentive and Investment 
and Salary Savings Plan (the Plan) Located in Santa Barbara, California

[Prohibited Transaction Exemption No. 2011-20; Exemption Application 
No. D-11659]

Exemption

Section I: Transactions

    Effective October 27, 2010, the restrictions of sections 
406(a)(1)(A), 406(a)(1)(E), 406(a)(2), 406(b)(1), 406(b)(2), and 
407(a)(1)(A) of the Act and the sanctions resulting from the 
application of section 4975 of the Code, by reason of section 
4975(c)(1)(A) and 4975(c)(1)(E) of the Code,\8\ shall not apply:
---------------------------------------------------------------------------

    \8\ For purposes of this exemption, references to specific 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

    (1) To the acquisition of certain rights (the Rights) by the Plan 
in connection with an offering (the Offering) of shares of the common 
stock (the Stock) in Pacific Capital Bancorp (Bancorp) by Bancorp, a 
party in interest with respect to the Plan, and
    (2) To the holding of the Rights received by the Plan during the 
subscription period of the Offering; provided that the conditions as 
set forth in section II of this exemption were satisfied for the 
duration of the acquisition and holding.

Section II: Conditions

    The relief provided in this exemption is conditioned upon adherence 
to the material facts and representations described, herein, and as set 
forth in the application file and upon compliance with the conditions, 
as set forth in this exemption.
    (1) 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 of the Stock of Bancorp;
    (2) 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 the acquisition of such Rights;
    (3) Each shareholder of the Stock, including the Plan, received the 
same proportionate number of Rights based on the number of shares of 
Stock of Bancorp held by such shareholder;
    (4) The Board of Directors of Bancorp decided that the Offering 
should be made available to all shareholders of the Stock, including 
the Plan, as record owner of the Stock held in the Plan on behalf of 
the accounts of the individual participants (the Invested Participants) 
all or a portion of whose accounts in the Plan are invested in the 
Stock, in accordance with provisions under such Plan for individually-
directed investment of such accounts;
    (5) The decision to exercise the Rights or to refrain from 
exercising the Rights was made by each of the Invested Participants in 
accordance with the provision under the Plan for individually-directed 
accounts; and
    (6) No brokerage fees, commissions, subscription fees, or any other 
charges were paid by the Plan with respect to the Offering, and no 
brokerage fees, commissions, or other monies were paid by the Plan to 
any broker in connection with the exercise of the Rights.

DATES: Effective Date: This exemption is effective, October 27, 2010, 
the date the Plan acquired the Rights.
    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 June 13, 2011, at 76 FR 
34266.

FOR FURTHER INFORMATION CONTACT: Ms. Angelena C. Le Blanc of the 
Department, telephone (202) 693-8540. (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 21st day of September 2011.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2011-24657 Filed 9-23-11; 8:45 am]
BILLING CODE 4510-29-P