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47050 Federal Register / Vol. 62, No.

172 / Friday, September 5, 1997 / Notices

OR970013 (Feb. 14, 1997) AZ970011 (Feb. 14, 1997) seven separate volumes, arranged by
OR970014 (Feb. 14, 1997) AZ970013 (Feb. 14, 1997) State. Subscriptions include an annual
OR970016 (Feb. 14, 1997) AZ970014 (Feb. 14, 1997) edition (issued in January or February)
South Dakota AZ970016 (Feb. 14, 1997)
which includes all current general wage
SD970007 (Feb. 14, 1997) AZ970017 (Feb. 14, 1997)
SD970009 (Feb. 14, 1997) AZ970018 (Feb. 14, 1997) determinations for the States covered by
SD970011 (Feb. 14, 1997) AZ970020 (Feb. 14, 1997) each volume. Throughout the remainder
SD970012 (Feb. 14, 1997) California of the year, regular weekly updates are
SD970015 (Feb. 14, 1997) CA970001 (Feb. 14, 1997) distributed to subscribers.
SD970016 (Feb. 14, 1997) CA970002 (Feb. 14, 1997) Signed at Washington, D.C. this 29th day
SD970018 (Feb. 14, 1997) CA970004 (Feb. 14, 1997) of August 1997.
SD970020 (Feb. 14, 1997) CA970005 (Feb. 14, 1997)
SD970022 (Feb. 14, 1997) CA970007 (Feb. 14, 1997) Margaret Washington,
SD970025 (Feb. 14, 1997) CA970017 (Feb. 14, 1997) Acting Chief, Branch of Construction Wage
SD970026 (Feb. 14, 1997) CA970022 (Feb. 14, 1997) Determinations.
SD970027 (Feb. 14, 1997) CA970024 (Feb. 14, 1997) [FR Doc. 97–23492 Filed 9–4–97; 8:45 am]
SD970028 (Feb. 14, 1997) CA970028 (Feb. 14, 1997) BILLING CODE 4510–27–M
SD970029 (Feb. 14, 1997) CA970029 (Feb. 14, 1997)
SD970030 (Feb. 14, 1997) CA970030 (Feb. 14, 1997)
SD970031 (Feb. 14, 1997) CA970031 (Feb. 14, 1997) DEPARTMENT OF LABOR
SD970032 (Feb. 14, 1997) CA970032 (Feb. 14, 1997)
SD970033 (Feb. 14, 1997) CA970033 (Feb. 14, 1997)
Pension and Welfare Benefits
SD970034 (Feb. 14, 1997) CA970034 (Feb. 14, 1997)
CA970035 (Feb. 14, 1997) Administration
SD970035 (Feb. 14, 1997)
SD970036 (Feb. 14, 1997) CA970036 (Feb. 14, 1997) [Prohibited Transaction Exemption 97–44;
SD970037 (Feb. 14, 1997) CA970037 (Feb. 14, 1997) Exemption Application No. D–10346, et al.]
SD970038 (Feb. 14, 1997) CA970038 (Feb. 14, 1997)
SD970039 (Feb. 14, 1997) CA970039 (Feb. 14, 1997) Grant of Individual Exemptions; 1st
SD970040 (Feb. 14, 1997) CA970040 (Feb. 14, 1997) Source Bank, et al.
SD970042 (Feb. 14, 1997) CA970041 (Feb. 14, 1997)
SD970043 (Feb. 14, 1997) CA970042 (Feb. 14, 1997) AGENCY: Pension and Welfare Benefits
Utah CA970043 (Feb. 14, 1997) Administration, Labor.
UT970001 (Feb. 14, 1997) CA970044 (Feb. 14, 1997) ACTION: Grant of Individual Exemptions.
UT970004 (Feb. 14, 1997) CA970045 (Feb. 14, 1997)
UT970006 (Feb. 14, 1997) CA970046 (Feb. 14, 1997) SUMMARY: This document contains
UT970007 (Feb. 14, 1997) CA970047 (Feb. 14, 1997) exemptions issued by the Department of
UT970008 (Feb. 14, 1997) CA970048 (Feb. 14, 1997) Labor (the Department) from certain of
UT970009 (Feb. 14, 1997) Nevada
the prohibited transaction restrictions of
UT970011 (Feb. 14, 1997) NV970005 (Feb. 14, 1997)
NV970006 (Feb. 14, 1997) the Employee Retirement Income
UT970012 (Feb. 14, 1997)
UT970013 (Feb. 14, 1997) NV970007 (Feb. 14, 1997) Security Act of 1974 (the Act) and/or
UT970015 (Feb. 14, 1997) the Internal Revenue Code of 1986 (the
General Wage Determination Code).
UT970018 (Feb. 14, 1997)
UT970019 (Feb. 14, 1997) Publication Notices were published in the Federal
UT970023 (Feb. 14, 1997) General wage determinations issued Register of the pendency before the
UT970024 (Feb. 14, 1997) under the Davis-Bacon and related Acts, Department of proposals to grant such
UT970025 (Feb. 14, 1997) including those noted above, may be exemptions. The notices set forth a
UT970026 (Feb. 14, 1997) found in the Government Printing Office summary of facts and representations
UT970028 (Feb. 14, 1997) contained in each application for
(GPO) document entitled ‘‘General Wage
UT970029 (Feb. 14, 1997) exemption and referred interested
UT970031 (Feb. 14, 1997) Determinations Issued Under The Davis-
UT970034 (Feb. 14, 1997) Bacon and Related Acts’’. This persons to the respective applications
UT970035 (Feb. 14, 1997) publication is available at each of the 50 for a complete statement of the facts and
UT970036 (Feb. 14, 1997) Regional Government Depository representations. The applications have
Washington Libraries and many of the 1,400 been available for public inspection at
WA970001 (Feb. 14, 1997) Government Depository Libraries across the Department in Washington, DC. The
WA970002 (Feb. 14, 1997) the country. notices also invited interested persons
Wyoming The general wage determinations to submit comments on the requested
WY970004 (Feb. 14, 1997) issued under the Davis-Bacon and exemptions to the Department. In
WY970008 (Feb. 14, 1997) addition the notices stated that any
WY970011 (Feb. 14, 1997)
related Acts are available electronically
WY970014 (Feb. 14, 1997) by subscription to the FedWorld interested person might submit a
WY970015 (Feb. 14, 1997) Bulletin Board System of the National written request that a public hearing be
WY970019 (Feb. 14, 1997) Technical Information Service (NTIS) of held (where appropriate). The
WY970023 (Feb. 14, 1997) the U.S. Department of Commerce at applicants have represented that they
(703) 487–4630. have complied with the requirements of
Volume VII
Hard-copy subscriptions may be the notification to interested persons.
Arizona purchased from: Superintendent of No public comments and no requests for
AZ970001 (Feb. 14, 1997) Documents, U.S. Government Printing a hearing, unless otherwise stated, were
AZ970002 (Feb. 14, 1997)
AZ970003 (Feb. 14, 1997)
Office, Washington, D.C. 20402, (202) received by the Department.
AZ970004 (Feb. 14, 1997) 512–1800. The notices of proposed exemption
AZ970005 (Feb. 14, 1997) When ordering hard-copy were issued and the exemptions are
AZ970006 (Feb. 14, 1997) subscription(s), be sure to specify the being granted solely by the Department
AZ970007 (Feb. 14, 1997) State(s) of interest, since subscriptions because, effective December 31, 1978,
AZ970010 (Feb. 14, 1997) may be ordered for any or all of the section 102 of Reorganization Plan No.
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices 47051

4 of 1978 (43 FR 47713, October 17, (2) A statement describing the fees for that is equal to the value of the assets
1978) transferred the authority of the investment management, investment of the Plans or the CIFs exchanged for
Secretary of the Treasury to issue advisory, or other similar services, any such shares on the date of transfer,
exemptions of the type proposed to the fees for secondary services (Secondary based on the current market value of the
Secretary of Labor. Services), as defined in paragraph (H) of assets of the Plans or the CIFs
section III below, and all other fees to (F) The current market value of the
Statutory Findings assets of the Plans or the CIFs to be
be charged to or paid by the Plan and
In accordance with section 408(a) of by such Funds to the Bank, including transferred in-kind in exchange for
the Act and/or section 4975(c)(2) of the the nature and extent of any differential shares is determined in a single
Code and the procedures set forth in 29 between the rates of such fees, valuation performed in the same
CFR part 2570, subpart B (55 FR 32836, (3) The reasons why the Bank may manner and at the close of business on
32847, August 10, 1990) and based upon consider such investment in the Funds the same day, using independent
the entire record, the Department makes to be appropriate for the Plan, sources in accordance with the
the following findings: (4) A statement describing whether procedures set forth in Rule 17a–7(b)
(a) The exemptions are there are any limitations applicable to (Rule 17a–7), issued by the Securities
administratively feasible the Bank with respect to which assets of and Exchange Commission under the
(b) They are in the interests of the a Plan may be invested in the Funds, Investment Company Act of 1940, and
plans and their participants and and, if so, the nature of such limitations, the procedures established by the Funds
beneficiaries; and and pursuant to Rule 17a–7 for the valuation
(c) They are protective of the rights of (5) Upon request of the Second of such assets. Such procedures must
the participants and beneficiaries of the Fiduciary, a copy of this proposed require that all securities for which a
plans. exemption and/or a copy of the final current market price cannot be obtained
1st Source Bank, Located in South exemption; by reference to the last sale price for
Bend, Indiana (B)(1) With respect to each of the transactions reported on a recognized
Funds in which a Plan invests, the Bank securities exchange or NASDAQ be
[Prohibited Transaction Exemption 97–44;
will provide the Second Fiduciary of valued based on an average of the
Exemption Application No. D–10346]
such Plan: highest current independent bid and
Exemption (a) At least annually with a copy of an lowest current independent offer, as of
updated prospectus of such Fund, the close of business on the day
Section I—Exemption for In-Kind (b) Upon the request of such Second
Transfer of Assets preceding the CIF or Plan transfers
Fiduciary, with a report or statement determined on the basis of reasonable
The restrictions of section 406(a) and (which may take the form of the most inquiry from at least three sources that
section 406(b) of the Act and the recent financial report, the current are broker-dealers or pricing services
sanctions resulting from the application statement of additional information or independent of the Bank;
of section 4975 of the Code, by reason some other written statement) which (G) For all conversion transactions
of section 4975(c)(1) (A) through (F) of contains a description of all fees paid by that occur after the date of publication
the Code, shall not apply, effective the Fund to the Bank; in the Federal Register of a notice
September 19, 1996, to the in-kind (2) On the basis of the information proposing this exemption: Not later than
transfer to separate series of an open- described above in paragraph (A) of this thirty (30) days after completion of each
end investment company registered section I, the Second Fiduciary in-kind transfer of assets of the Plans or
under the Investment Company Act of authorizes in writing the in-kind the CIFs in exchange for shares of the
1940 (the Funds) to which 1st Source transfer of assets of the Plans in Funds, the Bank sends by regular mail
Bank or any of its affiliates (collectively, exchange for shares of the Funds, the to the Second Fiduciary, as defined in
the Bank) serves as investment advisor, investment of such assets in paragraph (G) of Section III below, a
and may provide other services, of the corresponding portfolios of the Funds, written confirmation which contains the
assets of various employee benefit plans and the fees received by the Bank in following information:
(the Plans) that are held in certain connection with its services to the (1) The identity of each of the assets
collective investment funds (the CIFs) Funds, such authorization by the that was valued for purposes of the
maintained by the Bank or otherwise Second Fiduciary to be consistent with transaction in accordance with Rule
held by the Bank as trustee, investment the responsibilities, obligations, and 17a–7(b)(4) under the Investment
manager, or in any other capacity as duties imposed on fiduciaries by Part 4 Company Act of 1940;
fiduciary on behalf of the Plans, in of Title I of the Act; (2) The price of such asset involved in
exchange for shares of such Funds; (C) No sales commissions or other fees the transaction; and
provided that the following conditions are paid by the Plans in connection with (3) The identity of each pricing
are met: the purchase of Fund shares through the service or market maker consulted in
(A) A fiduciary (the Second in-kind transfer of Plan assets in the determining the value of such assets
Fiduciary) who is acting on behalf of CIFs, and no redemption fees are paid (H) No later than ninety (90) days
each affected Plan and who is in connection with the sale of such after completion of each in-kind transfer
independent of and unrelated to the shares by the Plans to the Fund; of assets of the Plans or the CIFs in
Bank, as defined in paragraph (G) of (D) All or a pro rata portion of the exchange for shares of the Funds, the
Section III below, receives in advance of assets of the Plans held in the CIFs or Bank sends by regular mail to the
the investment by the Plan in any of the all or a pro rata portion of the assets of Second Fiduciary, who is acting on
Funds a full and detailed written the Plans held by the Bank in any behalf of each affected Plan and who is
disclosure of information concerning capacities as fiduciary on behalf of such independent of and unrelated to the
such Fund, including, but not limited Plans are transferred in-kind to the Bank, as defined in paragraph (G) of
to: Funds in exchange for shares of such section III below, a written confirmation
(1) A current prospectus for each Funds; that contains the following information:
portfolio of each of the Funds in which (E) The Plans receive shares of the (1) The number of CIF units held by
such Plan is considering investing, Funds that have a total net asset value each affected Plan immediately before
47052 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices

the transfer, the related per unit value, customary location for examination of and unrelated to the Bank. For
and the aggregate dollar value of the during normal business hours by— purposes of this exemption, the Second
units transferred; and (a) Any duly authorized employee or Fiduciary will not be deemed to be
(2) The number of shares in the Funds representative of the Department or the independent of and unrelated to the
that are held by each affected Plan Internal Revenue Service, Bank if:
following the transfer, the related per (b) Any fiduciary of each of the Plans (1) Such Second Fiduciary directly or
share net asset value, and the aggregate who has authority to acquire or dispose indirectly controls, is controlled by, or
dollar value of the shares received; of shares of any of the Funds owned by is under common control with the Bank,
(I) The combined total of all fees such a Plan, or any duly authorized (2) Such Second Fiduciary, or any
received by the Bank for the provision employee or representative of such officer, director, partner, employee, or
of services to the Plans, and in fiduciary, and relative of such Second Fiduciary is an
connection with the provision of (c) Any participant or beneficiary of officer, director, partner, or employee of
services to any of the Funds in which the Plans or duly authorized employee the Bank (or is a relative of such
the Plans may invest, are not in excess or representative of such participant or person), or
of ‘‘reasonable compensation’’ within beneficiary; (3) Such Second Fiduciary directly or
(2) None of the persons described in indirectly receives any compensation or
the meaning of section 408(b)(2) of the
paragraphs (B)(1)(b) and (B)(1)(c) of this other consideration for his or her own
Act;
section II shall be authorized to examine personal account in connection with
(J) The Bank does not receive any fees trade secrets of the Bank or commercial
payable pursuant to Rule 12b–1 under any transaction described in this
or financial information which is exemption.
the Investment Company Act of 1940 in privileged or confidential.
connection with the transactions If an officer, director, partner, or
described herein; Section III—Definitions employee of the Bank (or a relative of
such persons) is a director of such
(K) The Plans are not sponsored by For purposes of this exemption: Second Fiduciary, and if he or she
the Bank; (A) The term Bank means 1st Source abstains from participation in (i) the
(L) All dealings between the Plans Bank and any affiliate of the Bank, as choice of the Plan’s investment
and any of the Funds are on a basis no defined in paragraph (B) of this section manager/advisor, (ii) the approval of
less favorable to the Plans than dealings III. any purchase or sale by the Plan of
between the Funds and other (B) An affiliate of a person includes:
(1) Any person directly or indirectly shares of the Funds, and (iii) the
shareholders holding the same class of
through one or more intermediaries, approval of any change of fees charged
shares as the Plans; and
controlling, controlled by, or under to or paid by the Plan, in connection
(M) The requirements of Prohibited
common control with the person, with any of the transactions described
Transaction Class Exemption 77–4 (42
(2) Any officer, director, employee, in section I above, then paragraph (G)(2)
FR 18732, April 8, 1977) are met with
relative, or partner in any such person, of section III above shall not apply.
respect to all arrangements under which (H) The term, Secondary Service
investment advisory fees are paid to the and
(3) Any corporation or partnership of means a service, other than an
Bank directly or indirectly by Plans investment management, investment
with assets invested in the Funds. which such person is an officer,
director, partner or employee. advisory, or similar service, which is
Section II—General Conditions (C) The term control means the power provided by the Bank to the Funds,
to exercise a controlling influence over including but not limited to custodial,
(A) The Bank maintains for a period
the management or policies of a person accounting, brokerage, administrative or
of six years the records necessary to
other than an individual. any other service.
enable the persons, as described in
(D) The term Fund or Funds means EFFECTIVE DATE: This exemption is
paragraph (B) of this section II, to
any diversified open-end investment effective as of September 19, 1996.
determine whether the conditions of
company or companies registered under For a more complete statement of the
this exemption have been met, except
the Investment Company Act of 1940 for facts and representations supporting
that:
which the Bank serves as investment this exemption, refer to the notice of
(1) A prohibited transaction will not adviser, and may also provide custodial proposed exemption published on June
be considered to have occurred if, due or other services as approved by such 23, 1997 at 62 FR 33911.
to circumstances beyond the control of Funds. FOR FURTHER INFORMATION CONTACT: Mr.
the Bank, the records are lost or (E) The term net asset value means
destroyed prior to the end of the six (6) Ronald Willett of the Department,
the amount for purposes of pricing all telephone (202) 219–8881. (This is not
year period, and purchases and sales calculated by
(2) No party in interest, other than the a toll-free number.)
dividing the value of all securities,
Bank, shall be subject to the civil determined by a method as set forth in Ronald L. Chez (Mr. Chez) IRA and
penalty that may be assessed under a Fund’s prospectus and statement of Lawrence G. Kuntz (Mr. Kuntz) IRA
section 503(i) of the Act, or to the taxes additional information, and other assets (Collectively; the IRAs) Located in
imposed by section 4975(a) and (b) of belonging to each of the portfolios in Chicago, Illinois and Wilmington,
the Code, if the records are not such Fund, less the liabilities charged to Delaware, Respectively
maintained, or are not available for each portfolio, by the number of [Prohibited Transaction Exemption 97–45;
examination as required by paragraph outstanding shares. Exemption Application Nos. D–10359 and D–
(B) of this section; (F) The term relative means a relative 10360]
(B)(1) Except as provided in as that term is defined in section 3(15)
paragraph (B)(2) of this section II and of the Act (or a ‘‘member of the family’’ Exemption
notwithstanding any provisions of as that term is defined in section The sanctions resulting from the
subsection (a)(2) and (b) of section 504 4975(e)(6) of the Code), or a brother, a application of section 4975 of the Code,
of the Act, the records referred to in sister, or a spouse of a brother or sister. by reason of section 4975(c)(1) (A)
paragraph (A) of section II above are (G) The term Second Fiduciary means through (E) of the Code, shall not apply
unconditionally available at their a fiduciary of a plan who is independent to: (a) The sale by the IRAs of certain
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices 47053

closely held stock (the Stock) to Happy 20, 1995, at the request of Mr. Kuntz, for the rights is no more than the fair
Valley Corporation (the Corporation), the Corporation issued a replacement market value of such rights; (b) an
the issuer of the Stock and an unrelated Stock certificate to Mr. Kuntz’s IRA.’’ independent fiduciary determines that
third party with respect to the IRAs; and The applicant clarified that although the continuation of the Leases is in the
(b) the subsequent repurchase of the the Stock was originally issued by the best interests of the FPGT Account; and
Stock from the Corporation by Mr. Chez Corporation to Mr. Kuntz, the intent of (c) an independent fiduciary will
and Mr. Kuntz, fiduciaries and Mr. Kuntz was always to make his monitor the performance of Enerfin
disqualified persons with respect to the investment in the Corporation through under the Leases, as well as any
IRAs; provided that the following his IRA. proposed modifications or renewals of
conditions are met: 3. Section 5 of the Summary of the the Leases, and will take such steps as
1. The sale and the repurchase of the Facts and Representations states that are necessary to protect the interests of
Stock will be one-time transactions for ‘‘By letter dated May 22, 1997, the the FPGT Account with respect to the
cash; attorneys for the Corporation represent Leases.
2. The transactions described in (1) that the transaction must be structured For a more complete statement of the
above will take place on the same through the Corporation’’ (emphasis facts and representations supporting the
business day; added). Department’s decision to grant this
3. Mr. Chez and Mr. Kuntz, in their In this regard, the applicant clarified exemption, refer to the notice of
individual capacity, will purchase the that it believed that the taint of having proposed exemption published on June
same shares of the Stock, as those that a non-permitted shareholder of the 23, 1997 at 62 FR 33915.
were sold to the Corporation by the Corporation was most completely
FOR FURTHER INFORMATION CONTACT: Gary
IRAs. The stock transfer records of the removed where the parties were put
H. Lefkowitz of the Department,
Corporation will evidence that this is back in the position they would have
telephone (202) 219–8881. (This is not
the case; and been in had the stock been issued to the
a toll-free number.)
4. The amount paid to the IRAs for the individuals concerned and not to the
Stock will be the fair market value of the IRAs. AmSouth Bank of Alabama (AmSouth),
Stock determined at the time of the sale After giving full consideration to the Located in Birmingham, Alabama
by a qualified independent appraiser. record and the comment submitted to [Prohibited Transaction Exemption 97–47;
Mr. Chez and Mr. Kuntz will purchase the Department, the Department has Application No. D–10422]
the Stock from the Corporation for the determined to grant the exemption.
same consideration as was received by FOR FURTHER INFORMATION CONTACT: Exemption
the IRAs for the sale of the Stock. Ekaterina A. Uzlyan of the Department Section I—Transactions
For a more complete statement of the at (202) 219–8883. (This is not a toll-free
facts and representations supporting the number.) The restrictions of section 406(a) and
Department’s decision to grant this 406(b) of the Act and the sanctions
exemption refer to the notice of John Hancock Mutual Life Insurance resulting from the application of section
proposed exemption published on July Company (JH), Located in Boston, 4975 of the Code, by reason of section
11, 1997 at 62 FR 37309. Massachusetts, 4975(c)(1) (A) through (F) of the Code,
[Prohibited Transaction Exemption 97–46; shall not apply to the receipt of fees by
Written Comments Exemption Application Nos. D–10416– AmSouth from the AmSouth Mutual
The Department received one written 10420] Funds, or any other diversified open-
comment on the proposed exemption end investment companies registered
Exemption
and no requests for a hearing. The under the Investment Company Act of
attorney for the applicant submitted the The restrictions of sections 406(a), 1940 (the Funds), for acting as an
written comment as follows: 406 (b)(1) and (b)(2) of the Act and the investment adviser for the Funds as well
1. Paragraph 1 at the top of the of the sanctions resulting from the application as for providing other services to the
third column on page 37309 and section of section 4975 of the Code, by reason Funds which are ‘‘Secondary Services’’
7 of the Summary of Facts and of section 4975(c)(1) (A) through (E) of as defined in Section III(h), in
Representations on page 37310 state that the Code, shall not apply to the: (1) The connection with the investment by the
‘‘the sale and repurchase of the Stock acquisition by a separate account Client Plans in shares of the Funds,
will be one-time transactions for cash.’’ maintained by JH (the FPGT Account) provided that the conditions set forth in
The applicant requests that the phrase from Willamette Industries, Inc. of Section II below are met.
‘‘check or bank transfer’’ be added at the certain oil and gas rights (the Deer Creek
Oil and Gas Rights), subject to existing Section II—Conditions
end of that sentence to permit payment
by check or bank transfer. leases (the Leases) of such rights to (a) Each Client Plan satisfies either
The Department notes that the term Enerfin Resources Northwest Limited (but not both) of the following:
cash includes payment by ‘‘check or Partnership (Enerfin), a party in interest (1) The Client Plan receives a cash
bank transfer.’’ In this regard, the with respect to the plans invested in the credit of such Plan’s proportionate share
Department wishes to assure that, as a FPGT Account; and (2) the continuation of all fees charged to the Funds by
result of the transactions, the IRAs of the Leases following the acquisition AmSouth for investment advisory
receive payment by cash, as by the FPGT Account, provided the services, including any investment
distinguished from an in-kind transfer following conditions are satisfied: (a) As advisory fees paid by AmSouth to third
of assets other than cash, and there will part of its decision to enter into the party sub-advisers, no later than one
be no extension of credit associated separate account contract establishing business day after the receipt of such
with the transactions. the FPGT Account, an independent fees by AmSouth. The crediting of all
2. The second paragraph of section 3 fiduciary determines that the such fees to the Client Plans by
of the Summary of Facts and acquisition of the Deer Creek Oil and AmSouth is audited by an independent
Representations states that ‘‘On August Gas Rights is in the interest of the accounting firm on at least an annual
1, 1995, Mr. Kuntz subscribed for Stock participants of the plans investing in the basis to verify the proper crediting of
shares in his own name. On December FPGT Account and that the price paid the fees to each Plan; or
47054 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices

(2) The Client Plan does not pay any (3) The reasons why AmSouth may (l)(1) For each Client Plan using the
Plan-level investment management fees, consider such investment to be fee structure described in paragraph
investment advisory fees, or similar fees appropriate for the Client Plan (a)(2) above with respect to investments
to AmSouth with respect to any of the (4) A statement describing whether in a particular Fund, an increase in the
assets of such Plan which are invested there are any limitations applicable to rate of fees paid by the Fund to
in shares of any of the Funds. This AmSouth with respect to which assets AmSouth regarding any investment
condition does not preclude the of a Client Plan may be invested in the management services, investment
payment of investment advisory or Funds, and if so, the nature of such advisory services, or similar services
similar fees by the Funds to AmSouth limitations; and that AmSouth provides to the Fund over
under the terms of an investment (5) Upon request of the Second an existing rate for such services that
management agreement adopted in Fiduciary, a copy of the proposed had been authorized by a Second
accordance with section 15 of the exemption and/or a copy of the final Fiduciary in accordance with paragraph
Investment Company Act of 1940 (the exemption as published in the Federal (i) above; or
1940 Act), nor does it preclude the Register. (2) For any Client Plan under this
payment of fees for Secondary Services (i) After consideration of the exemption, an addition of a Secondary
to AmSouth pursuant to a duly adopted information described above in Service (as defined in Section III(h)
agreement between AmSouth and the paragraph (h), the Second Fiduciary below) provided by AmSouth to the
Funds. authorizes in writing the investment of Fund for which a fee is charged, or an
(b) The price paid or received by a assets of the Client Plan in each increase in the rate of any fee paid by
Client Plan for shares in a Fund is the particular Fund and the fees to be paid the Funds to AmSouth for any
net asset value per share at the time of by such Funds to AmSouth. Secondary Service that results either
the transaction, as defined in Section (j) All authorizations made by a from an increase in the rate of such fee
III(e), and is the same price which Second Fiduciary regarding investments or from the decrease in the number of
would have been paid or received for in a Fund and the fees paid to AmSouth kind of services performed by AmSouth
the shares by any other investor at that are subject to an annual reauthorization for such fee over an existing rate for
time. wherein any such prior authorization such Secondary Service which had been
(c) AmSouth, including any officer or referred to in paragraph (i) shall be authorized by the Second Fiduciary of
director of AmSouth, does not purchase terminable at will by the Client Plan, a Client Plan in accordance with
or sell shares of the Funds from or to without penalty to the Client Plan, upon paragraph (i) above.
any Client Plan. AmSouth will, at least 30 days in
receipt by AmSouth of written notice of
(d) No sales commissions are paid by advance of the implementation of such
termination. A form expressly providing
the Client Plans in connection with the additional service for which a fee is
an election to terminate the
purchase or sale of shares of the Funds charged or fee increase, provide a
authorization described in paragraph (i)
and no redemption fees are paid in written notice (which may take the form
above (the Termination Form) with
connection with the sale of shares by of a proxy statement, letter, or similar
instructions on the use of the form must
the Client Plans to the Funds. communication that is separate from the
be supplied to the Second Fiduciary no
(e) For each Client Plan, the combined prospectus of the Fund and which
less than annually; provided that the
total of all fees received by AmSouth for explains the nature and amount of the
Termination Form need not be supplied
the provision of services to a Client additional service for which a fee is
to the Second Fiduciary pursuant to this
Plan, and in connection with the charged or of the increase in fees) to the
paragraph sooner than six months after
provision of services to the Funds in Second Fiduciary of the Client Plan.
such Termination Form is supplied
which the Client Plan may invest, are Such notice shall be accompanied by a
pursuant to paragraph (l) below, except
not in excess of ‘‘reasonable Termination Form with instructions as
to the extent required by such paragraph
compensation’’ within the meaning of described in paragraph (j) above.
in order to disclose an additional (m) On an annual basis, AmSouth
section 408(b)(2) of the Act.
(f) AmSouth does not receive any fees service or fee increase. The instructions provides the Second Fiduciary of a
payable pursuant to Rule 12b–1 under for the Termination Form must include Client Plan investing in the Funds with:
the 1940 Act in connection with the the following information: (1) A copy of the current prospectus
transactions. (1) The authorization is terminable at for the Funds in which the Client Plan
(g) The Client Plans are not employee will by the Client Plan, without penalty invests and, upon such fiduciary’s
benefit plans sponsored or maintained to the Client Plan, upon receipt by request, a copy of the Statement of
by AmSouth. AmSouth of written notice from the Additional Information for such Funds
(h) The Second Fiduciary receives, in Second Fiduciary; and which contains a description of all fees
advance of any initial investment by the (2) Failure to return the Termination paid by the Funds to AmSouth;
Client Plan in a Fund, full and detailed Form will result in continued (2) A copy of the annual financial
written disclosure of information authorization of AmSouth to engage in disclosure report prepared by AmSouth
concerning the Funds, including but not the transactions described in paragraph which includes information about the
limited to: (i) on behalf of the Client Plan. Fund portfolios as well as audit findings
(1) A current prospectus for each (k) For each Client Plan using the fee of an independent auditor within 60
Fund in which a Client Plan is structure described in paragraph (a)(1) days of the preparation of the report;
considering investing; above with respect to investments in a and
(2) A statement describing the fees for particular Fund, the Second Fiduciary (3) Oral or written responses to
investment advisory or similar services, of the Client Plan receives full written inquiries of the Second Fiduciary as
any secondary services as defined in disclosure in a Fund prospectus or they arise.
Section III(h), and all other fees to be otherwise of any increases in the rates (n) With respect to each of the Funds
charged to or paid by the Client Plan of fees charged by AmSouth to the in which a Client Plan invests, in the
and by the Funds, including the nature Funds for investment advisory services, event such Fund places brokerage
and extent of any differential between prior to the effective date of such transactions with AmSouth, AmSouth
the rates of such fees; increase. will provide the Second Fiduciary of
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices 47055

such Plan at least annually with a Section III—Definitions (3) Such fiduciary directly or
statement specifying: For purposes of this exemption: indirectly receives any compensation or
(1) The total, expressed in dollars, of (a) The term AmSouth means other consideration for his or her own
brokerage commissions of each Fund AmSouth Bank of Alabama and any personal account in connection with
that are paid to AmSouth by such Fund; affiliate thereof as defined below in any transaction described in this
(2) The total, expressed in dollars, of paragraph (b) of this section. exemption.
brokerage commissions of each Fund (b) An affiliate of a person includes: If an officer, director, partner or
that are paid by such Fund to brokerage (1) Any person directly or indirectly employee of AmSouth (or relative of
firms unrelated to AmSouth; through one or more intermediaries, such persons), is a director of such
(3) The average brokerage controlling, controlled by, or under Second Fiduciary, and if he or she
commissions per share, expressed as common control with the person; abstains from participation in (i) the
cents per share, paid to AmSouth by (2) Any officer, director, employee, choice of the Client Plan’s investment
each Fund; and relative, or partner in any such person; adviser, (ii) the approval of any such
(4) The average brokerage and purchase or sale between the Client Plan
commissions per share, expressed as (3) Any corporation or partnership of and the Funds, and (iii) the approval of
cents per share, paid by each Fund to which such person is an officer, any change in fees charged to or paid by
brokerage firms unrelated to AmSouth. director, partner, or employee. the Client Plan in connection with any
(o) All dealings between the Client (c) The term control means the power of the transactions described in Sections
Plans and the Funds are on a basis no to exercise a controlling influence over I and II above, then paragraph (g)(2) of
less favorable to the Plans than dealings the management or policies of a person this section shall not apply.
with other shareholders of the Funds. other than an individual. (h) The term Secondary Service means
(d) The term Fund or Funds shall a service other than an investment
(p) AmSouth maintains for a period of
include the AmSouth Mutual Funds or management, investment advisory, or
six years the records necessary to enable
any other diversified open-end similar service, which is provided by
the persons described below in
investment company or companies AmSouth to the Funds, including (but
paragraph (q) to determine whether the
registered under the 1940 Act for which not limited to) custodian services,
conditions of this exemption have been
AmSouth serves as an investment transfer and dividend disbursing agent
met, except that (1) a prohibited
adviser and may also serve as a services, administrator or sub-
transaction will not be considered to
custodian, dividend disbursing agent, administrator services, accounting
have occurred if, due to circumstances
shareholder servicing agent, transfer services, shareholder servicing agent
beyond the control of AmSouth, the
agent, Fund accountant, or provide services and brokerage services.
records are lost or destroyed prior to the
some other ‘‘Secondary Service’’ (as (i) The term Termination Form means
end of the six-year period, and (2) no
defined below in paragraph (h) of this the form supplied to the Second
party in interest other than AmSouth or
Section) which has been approved by Fiduciary which expressly provides an
an affiliate shall be subject to the civil
such Funds. election to the Second Fiduciary to
penalty that may be assessed under (e) The term net asset value means the
section 502(i) of the Act or to the taxes terminate on behalf of a Client Plan the
amount for purposes of pricing all authorization described in paragraph (i)
imposed by section 4975 (a) and (b) of purchases and sales calculated by
the Code if the records are not of Section II. Such Termination Form
dividing the value of all securities, may be used at will by the Second
maintained or are not available for determined by a method as set forth in
examination as required by paragraph Fiduciary to terminate an authorization
the Fund’s prospectus and statement of without penalty to the Client Plan and
(q) below. additional information, and other assets
(q)(1) Except as provided below in to notify AmSouth in writing to effect a
belonging to the Fund or portfolio of the termination by selling the shares of the
paragraph (q)(2) and notwithstanding Fund, less the liabilities charged to each
any provisions of section 504(a)(2) of Funds held by the Client Plan
such portfolio or Fund, by the number requesting such termination within one
the Act, the records referred to in of outstanding shares.
paragraph (p) are unconditionally business day following receipt by
(f) The term relative means a relative AmSouth of the form; provided that if,
available at their customary location for as that term is defined in section 3(15)
examination during normal business due to circumstances beyond the control
of the Act (or a ‘‘member of the family’’ of AmSouth, the sale cannot be
hours by— as that term is defined in section
(i) Any duly authorized employee or executed within one business day,
4975(e)(6) of the Code), or a brother, a AmSouth shall have one additional
representative of the Department or the sister, or a spouse of a brother or a
Internal Revenue Service, business day to complete such sale.
sister.
(ii) Any fiduciary of the Client Plans (g) The term Second Fiduciary means EFFECTIVE DATE: This exemption is
who has authority to acquire or dispose a fiduciary of a Client Plan who is effective as of April 16, 1997.
of shares of the Funds owned by the independent of and unrelated to For a more complete statement of the
Client Plans, or any duly authorized AmSouth. For purposes of this facts and representations supporting the
employee or representative of such exemption, the Second Fiduciary will Department’s decision to grant this
fiduciary, and not be deemed to be independent of and exemption refer to the notice of
(iii) Any participant or beneficiary of unrelated to AmSouth if: proposed exemption published on June
the Client Plans or duly authorized (1) Such fiduciary directly or 23, 1997, at 62 FR 33917.
employee or representative of such indirectly controls, is controlled by, or WRITTEN COMMENTS: The Department
participant or beneficiary; is under common control with received one written comment from an
(2) None of the persons described in AmSouth; officer of a Client Plan sponsor, which
paragraph (q)(1) (ii) and (iii) shall be (2) Such fiduciary, or any officer, supported the granting of an exemption
authorized to examine trade secrets of director, partner, employee, or relative for the subject transactions. No other
AmSouth, or commercial or financial of the fiduciary is an officer, director, written comments, and no requests for
information which is privileged or partner or employee of AmSouth (or is a hearing, were received by the
confidential. a relative of such persons); or Department. Accordingly, the
47056 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Notices

Department has determined to grant the 401(a) of the Code that the plan must investments by employee benefit plans
requested exemption as proposed. operate for the exclusive benefit of the for which Old AEW provided
FOR FURTHER INFORMATION CONTACT: Mr. employees of the employer maintaining investment management services, as
E.F. Williams of the Department, the plan and their beneficiaries; well as the investment by such plans in
telephone (202) 219–8194. (This is not (2) These exemptions are a multiple client commingled account
a toll-free number.) supplemental to and not in derogation managed by Old AEW, subject to certain
of, any other provisions of the Act and/ conditions. These transactions were
Martin D. Ross Individual Retirement or the Code, including statutory or described in a notice of pendency that
Account (the IRA) Located in Boca administrative exemptions and was published in the Federal Register
Raton, Florida transactional rules. Furthermore, the on April 27, 1993 at 58 FR 25662. PTE
[Prohibited Transaction Exemption 97–48; fact that a transaction is subject to an 93–40, which was effective as of April
Exemption Application No. D–10451] administrative or statutory exemption is 27, 1993, expired by operation of law,
not dispositive of whether the as discussed below. The proposed
Exemption transaction is in fact a prohibited exemption would provide conditional
The sanctions resulting from the transaction; and relief identical to that provided by PTE
application of section 4975 of the Code, (3) The availability of these 93–40 for a newly-merged entity known
by reason of section 4975(c)(1) (A) exemptions is subject to the express as ‘‘AEW Capital Management, L.P.’’
through (E) of the Code, shall not apply condition that the material facts and DATES: Written comments and/or
to the March 4, 1996 sale by the IRA of representations contained in each requests for a public hearing should be
certain debentures (the Debentures) to application are true and complete and received by the Department within 45
Mr. Martin D. Ross (Mr. Ross), a accurately describe all material terms of days of the date of publication of this
disqualified person with respect to the the transaction which is the subject of notice of proposed exemption in the
IRA, provided the following conditions the exemption. In the case of continuing Federal Register. The proposed
were satisfied: (1) The sale of the exemption transactions, if any of the exemption, if granted, will be effective
Debentures by the IRA was a one-time material facts or representations December 10, 1996.
transaction for cash; (2) the IRA described in the application change ADDRESSES: All written comments and/
received no less than the fair market after the exemption is granted, the or requests for a public hearing
value of the Debentures as of the time exemption will cease to apply as of the (preferably, three copies) should be sent
of the sale; and (3) as soon as Mr. Ross date of such change. In the event of any to the Office of Exemption
became aware that the transaction was such change, application for a new Determinations, Pension and Welfare
prohibited, he reversed the transaction.1 exemption may be made to the Benefits Administration, Room N–5649,
For a more complete statement of the Department. U.S. Department of Labor, 200
facts and representations supporting the Signed at Washington, DC, this 2nd day of Constitution Avenue, NW, Washington,
Department’s decision to grant this September, 1997. DC 20210, Attention: Application No.
exemption, refer to the notice of Ivan Strasfeld, D–10393. The application pertaining to
proposed exemption published on July Director of Exemption Determinations, the proposed exemption and the
21, 1997 at 62 FR 39030. Pension and Welfare Benefits Administration, comments received will be available for
EFFECTIVE DATE: This exemption is Department of Labor. public inspection in the Public
effective March 4, 1996. [FR Doc. 97–23641 Filed 9–4–97; 8:45 am] Documents Room of the Pension and
FOR FURTHER INFORMATION CONTACT: Gary BILLING CODE 4510–29–P Welfare Benefits Administration, U.S.
H. Lefkowitz of the Department, Department of Labor, Room N–5507,
telephone (202) 219–8881. (This is not 200 Constitution Avenue, NW.,
a toll-free number.) DEPARTMENT OF LABOR Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Ms.
General Information Pension and Welfare Benefits Karin Weng of the Department,
The attention of interested persons is Administration telephone (202) 219–8881. (This is not
directed to the following: [Application No. D–10393] a toll-free number.)
(1) The fact that a transaction is the SUPPLEMENTARY INFORMATION: Notice is
subject of an exemption under section AEW Capital Management, L.P. (AEW); hereby given of the pendency before the
408(a) of the Act and/or section Located in Boston, Massachusetts Department of a proposed exemption
4975(c)(2) of the Code does not relieve that would replace PTE 93–40. PTE 93–
a fiduciary or other party in interest or AGENCY: Pension and Welfare Benefits
Administration. 40 provided an exemption from certain
disqualified person from certain other prohibited transaction restrictions of
provisions to which the exemption does ACTION: Notice of proposed exemption,
U.S. Department of Labor to replace section 406 of the Employee Retirement
not apply and the general fiduciary Income Security Act of 1974 (the Act)
responsibility provisions of section 404 Prohibited Transaction Exemption (PTE)
93–40 Involving Aldrich, Eastman & and from the sanctions resulting from
of the Act, which among other things the application of section 4975 of the
require a fiduciary to discharge his Waltch, L.P. and Aldrich, Eastman &
Waltch, Inc. (collectively, Old AEW). Internal Revenue Code of 1986 (the
duties respecting the plan solely in the Code), as amended, by reason of section
interest of the participants and SUMMARY: This document contains a 4975(c)(1) of the Code. The proposed
beneficiaries of the plan and in a notice of pendency before the exemption was requested in an
prudent fashion in accordance with Department of Labor (the Department) of application filed by AEW pursuant to
section 404(a)(1)(B) of the Act; nor does a proposed individual exemption section 408(a) of the Act and section
it affect the requirement of section which, if granted, would replace PTE 4975(c)(2) of the Code and in
1 Pursuant to 29 CFR 2510.3–2(d), the IRA is not
93–40 (58 FR 34821, June 29, 1993). PTE accordance with the procedures (the
within the jurisdiction of Title I of the Act.
93–40 permitted the payment to Old Procedures) set forth in 29 CFR part
However, there is jurisdiction under Title II of the AEW of certain investment fees and 2570, subpart B (55 FR 32836, August
Act pursuant to section 4975 of the Code. disposition fees relating to real estate 10, 1990). Effective December 31, 1978,

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