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Federal Register / Vol. 72, No.

173 / Friday, September 7, 2007 / Notices 51467

publication of January 31, 2001, at 66 DEPARTMENT OF LABOR CFR Part 2570, Subpart B (55 FR 32836,
FR 8425–8432: 32847, August 10, 1990) and based upon
Employee Benefits Security the entire record, the Department makes
BOP–014 ‘‘Employee Assistance Administration the following findings:
Program (EAP) Record System;’’ (a) The exemption is administratively
[Exemption Application Nos. D–11272; D–
JMD–002 ‘‘Controlled Substances Act 11340; and D–11344] feasible;
Nonpublic Records;’’ (b) The exemption is in the interests
JMD–016 ‘‘Employee Assistance Grant of Individual Exemptions of the plan and its participants and
Program (EAP) Counseling and Involving; D–11272 Wells Fargo & beneficiaries; and
Company (WFC), (PTE 2007–14); D– (c) The exemption is protective of the
Referral Records;’’
11340, Hawaii Emergency Physicians rights of the participants and
USM–015 ‘‘U.S. Marshals Service Associated, Inc. Profit Sharing Plan beneficiaries of the plan.
(USMS) Employee Assistance (the Plan), (PTE 2007–15); D–11344,
Program (EAP) Records.’’ Wells Fargo & Company (WFC), Located
Victor P. Olson Profit Sharing Plan (the in San Francisco, California
In addition, the language of this routine Plan), (PTE 2007–16)
[Prohibited Transaction Exemption 2007–14;
use is removed from the notice AGENCY: Employee Benefits Security Exemption Application No. D–11272]
published on March 20, 2001, at 66 FR Administration, Labor.
15755, entitled USA–020 ‘‘Employee Exemption
ACTION: Grant of Individual Exemptions.
Assistance Program (EAP) Counseling Section I—Transactions
and Referral Records.’’ The language is SUMMARY: This document contains
exemptions issued by the Department of The restrictions of section 406 of the
routine use ‘‘f’’ in that notice. The
Labor (the Department) from certain of Act and the sanctions resulting from the
change in the text of USA–020 is shown application of section 4975 of the Code,
below. the prohibited transaction restrictions of
the Employee Retirement Income by reason of section 4975(c)(1)(A)
EFFECTIVE DATE: These modifications Security Act of 1974 (ERISA or the Act) through (F) of the Code, shall not apply
will be effective September 7, 2007. and/or the Internal Revenue Code of to the purchase of certain securities (the
1986 (the Code). Securities), as defined, below in Section
FOR FURTHER INFORMATION CONTACT: Joo III(h), by an asset management affiliate
Chung, Counsel, Privacy and Civil A notice was published in the Federal
Register of the pendency before the of WFC, as ‘‘affiliate’’ is defined, below,
Liberties Office, Office of the Deputy in Section III(c), from any person other
Attorney General, 202–514–4921. Department of a proposal to grant such
exemption. The notice set forth a than such asset management affiliate of
Dated: August 27, 2007. summary of facts and representations WFC or any affiliate thereof, during the
Lee J. Lofthus, contained in the application for existence of an underwriting or selling
exemption and referred interested syndicate with respect to such
Assistant Attorney General for
persons to the application for a Securities, where a broker-dealer
Administration.
complete statement of the facts and affiliated with WFC (the Affiliated
DEPARTMENT OF JUSTICE representations. The application has Broker-Dealer), as defined, below, in
been available for public inspection at Section III(b), is a manager or member
SYSTEM NAME: the Department in Washington, DC. The of such syndicate and the asset
notice also invited interested persons to management affiliate of WFC purchases
Employee Assistance Program (EAP) such Securities, as a fiduciary:
Counseling and Referral Records, submit comments on the requested
exemption to the Department. In (a) On behalf of an employee benefit
Justice/USA–020. plan or employee benefit plans (Client
addition the notice stated that any
* * * * * interested person might submit a Plan(s)), as defined, below, in Section
written request that a public hearing be III(e); or
ROUTINE USES OF RECORDS MAINTAINED IN THE (b) on behalf of Client Plans, and/or
held (where appropriate). The applicant
SYSTEM, INCLUDING CATEGORIES OF USERS AND In-House Plans, as defined, below, in
has represented that it has complied
THE PURPOSES OF SUCH USES: Section III(l), which are invested in a
with the requirements of the notification
* * * * * pooled fund or in pooled funds (Pooled
to interested persons. No requests for a
Fund(s)), as defined, below, in Section
* * * hearing were received by the
III(f); provided that the conditions as set
* * * Department. Public comments were
forth, below, in Section II, are satisfied
received by the Department as described
* * * (An affiliated underwriter transaction
in the granted exemption.
The notice of proposed exemption (AUT)).1
* * *
* * * was issued and the exemption is being Section II—Conditions
granted solely by the Department The exemption is conditioned upon
[Remove Routine Use ‘‘f.’’] because, effective December 31, 1978, adherence to the material facts and
* * * * * section 102 of Reorganization Plan No. representations described herein and
[FR Doc. E7–17687 Filed 9–6–07; 8:45 am] 4 of 1978, 5 U.S.C. App. 1 (1996), upon satisfaction of the following
BILLING CODE 4410–FB–P transferred the authority of the Secretary requirements:
of the Treasury to issue exemptions of (a)(1) The Securities to be purchased
the type proposed to the Secretary of are either—
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Labor. (i) Part of an issue registered under


Statutory Findings the Securities Act of 1933 (the 1933 Act)
In accordance with section 408(a) of 1 For purposes of this exemption an In-House
the Act and/or section 4975(c)(2) of the Plan may engage in AUT’s only through investment
Code and the procedures set forth in 29 in a Pooled Fund.

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51468 Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices

(15 U.S.C. 77a et. seq.). If the Securities (3) The Securities to be purchased are Exchange Commission (SEC) during the
to be purchased are part of an issue that offered pursuant to an underwriting or preceding twelve (12) months.
is exempt from such registration selling agreement under which the (c) The aggregate amount of Securities
requirement, such Securities: members of the syndicate are committed of an issue purchased, pursuant to this
(A) Are issued or guaranteed by the to purchase all of the Securities being exemption, by the asset management
United States or by any person offered, except if— affiliate of WFC with: (i) The assets of
controlled or supervised by and acting (i) Such Securities are purchased by all Client Plans; and (ii) the assets,
as an instrumentality of the United others pursuant to a rights offering; or calculated on a pro-rata basis, of all
States pursuant to authority granted by (ii) Such Securities are offered Client Plans and In-House Plans
the Congress of the United States, pursuant to an over-allotment option. investing in Pooled Funds managed by
(B) Are issued by a bank, (b) The issuer of the Securities to be the asset management affiliate of WFC;
(C) Are exempt from such registration purchased pursuant to this exemption and (iii) the assets of plans to which the
requirement pursuant to a federal must have been in continuous operation asset management affiliate of WFC
statute other than the 1933 Act, or for not less than three years, including renders investment advice within the
(D) Are the subject of a distribution the operation of any predecessors, meaning of 29 CFR 2510.3–21(c) does
and are of a class which is required to unless the Securities to be purchased— not exceed:
be registered under section 12 of the (1) Are non-convertible debt securities (1) 10 percent (10%) of the total
Securities Exchange Act of 1934 (the rated in one of the four highest rating amount of the Securities being offered
1934 Act) (15 U.S.C. 781), and are categories by Standard & Poor’s Rating in an issue, if such Securities are equity
issued by an issuer that has been subject Services, Moody’s Investors Service, securities;
to the reporting requirements of section Inc., FitchRatings, Inc., Dominion Bond (2) 35 percent (35%) of the total
13 of the 1934 Act (15 U.S.C. 78m) for Rating Service Limited, Dominion Bond amount of the Securities being offered
a period of at least ninety (90) days Rating Service, Inc., or any successors in an issue, if such Securities are debt
immediately preceding the sale of such thereto (collectively, the Rating securities rated in one of the four
Securities and that has filed all reports Organizations); provided that none of highest rating categories by at least one
required to be filed thereunder with the the Rating Organizations rates such of the Rating Organizations; provided
Securities and Exchange Commission Securities in a category lower than the that none of the Rating Organizations
(SEC) during the preceding twelve (12) fourth highest rating category; or rates such Securities in a category lower
months; or (2) are debt securities issued or fully than the fourth highest rating category;
(ii) Part of an issue that is an Eligible guaranteed by the United States or by or
Rule 144A Offering, as defined in SEC any person controlled or supervised by (3) 25 percent (25%) of the total
Rule 10f–3 (17 CFR 270.10f–3(a)(4)). and acting as an instrumentality of the amount of the Securities being offered
Where the Eligible Rule 144A Offering United States pursuant to authority in an issue, if such Securities are debt
of the Securities is of equity securities, granted by the Congress of the United securities rated in the fifth or sixth
the offering syndicate shall obtain a States; or highest rating categories by at least one
legal opinion regarding the adequacy of (3) are debt securities which are fully of the Rating Organizations; provided
the disclosure in the offering guaranteed by a person (the Guarantor) that none of the Rating Organizations
memorandum; that has been in continuous operation rates such Securities in a category lower
(2) The Securities to be purchased are for not less than three years, including than the sixth highest rating category;
purchased prior to the end of the first the operation of any predecessors, and
day on which any sales are made, provided that such Guarantor has issued (4) The assets of any single Client
pursuant to that offering, at a price that other securities registered under the Plan (and the assets of any Client Plans
is not more than the price paid by each 1933 Act; or if such Guarantor has and any In-House Plans investing in
other purchaser of the Securities in that issued other securities which are Pooled Funds) may not be used to
offering or in any concurrent offering of exempt from such registration purchase any Securities being offered, if
the Securities, except that— requirement, such Guarantor has been such Securities are debt securities rated
(i) If such Securities are offered for in continuous operation for not less lower than the sixth highest rating
subscription upon exercise of rights, than three years, including the category by any of the Rating
they may be purchased on or before the operation of any predecessors, and such Organizations;
fourth day preceding the day on which Guarantor: (5) Notwithstanding the percentage of
the rights offering terminates; or (a) Is a bank; or Securities of an issue permitted to be
(ii) If such Securities are debt (b) is an issuer of securities which are acquired, as set forth in Section II(c)(1),
securities, they may be purchased at a exempt from such registration (2), and (3), above, of this exemption,
price that is not more than the price requirement, pursuant to a Federal the amount of Securities in any issue
paid by each other purchaser of the statute other than the 1933 Act; or (whether equity or debt securities)
Securities in that offering or in any (c) is an issuer of securities that are purchased, pursuant to this exemption,
concurrent offering of the Securities and the subject of a distribution and are of by the asset management affiliate of
may be purchased on a day subsequent a class which is required to be registered WFC on behalf of any single Client Plan,
to the end of the first day on which any under section 12 of the Securities either individually or through
sales are made, pursuant to that offering, Exchange Act of 1934 (the 1934 Act) (15 investment, calculated on a pro-rata
provided that the interest rates, as of the U.S.C. 781), and are issued by an issuer basis, in a Pooled Fund may not exceed
date of such purchase, on comparable that has been subject to the reporting three percent (3%) of the total amount
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debt securities offered to the public requirements of section 13 of the 1934 of such Securities being offered in such
subsequent to the end of the first day on Act (15 U.S.C. 78m) for a period of at issue, and;
which any sales are made and prior to least ninety (90) days immediately (6) If purchased in an Eligible Rule
the purchase date are less than the preceding the sale of such securities and 144A Offering, the total amount of the
interest rate of the debt Securities being that has filed all reports required to be Securities being offered for purposes of
purchased; and filed thereunder with the Securities and determining the percentages, described,

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Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices 51469

above, in Section II(c)(1)–(3) and (5), is or consideration that is not based upon below, and within the time period
the total of: the amount of Securities purchased by described below in this Section II(k)(2),
(i) The principal amount of the the asset management affiliate of WFC to the Independent Fiduciary of each
offering of such class of Securities sold on behalf of any single Client Plan, or such plan participating in such Pooled
by underwriters or members of the on behalf of any Client Plan or In-House Fund (and to the fiduciary of each such
selling syndicate to ‘‘qualified Plan participating in Pooled Funds, In-House Plan participating in such
institutional buyers’’ (QIBs), as defined pursuant to this exemption; and Pooled Fund).
in SEC Rule 144A (17 CFR (2) The Affiliated Broker-Dealer shall (2) The following information and
230.144A(a)(1)); plus provide to the asset management materials (which may be provided
(ii) The principal amount of the affiliate of WFC a written certification, electronically) shall be provided by the
offering of such class of Securities in signed by an officer of the Affiliated asset management affiliate of WFC not
any concurrent public offering. Broker-Dealer, stating the amount that less than 45 days prior to such asset
(d) The aggregate amount to be paid the Affiliated Broker-Dealer received in management affiliate of WFC engaging
by any single Client Plan in purchasing compensation or consideration during in the covered transactions on behalf of
any Securities which are the subject of the past quarter, in connection with any a Pooled Fund, pursuant to this
this exemption, including any amounts offerings covered by this exemption, exemption; and provided further that
paid by any Client Plan or In-House was not adjusted in a manner the information described below, in this
Plan in purchasing such Securities inconsistent with Section II(e), (f), or (g) Section II(k)(2)(i) and (iii), is supplied
through a Pooled Fund, calculated on a of this exemption. simultaneously:
pro-rata basis, does not exceed three (h) The covered transactions are (i) A notice of the intent of such
percent (3%) of the fair market value of performed under a written authorization Pooled Fund to purchase Securities
the net assets of such Client Plan or In- executed in advance by an independent pursuant to this exemption, a copy of
House Plan, as of the last day of the fiduciary of each single Client Plan (the the Notice, and a copy of the Grant, as
most recent fiscal quarter of such Client Independent Fiduciary), as defined, published in the Federal Register;
Plan or In-House Plan prior to such below, in Section III(g). (ii) Any other reasonably available
transaction. (i) Prior to the execution by an information regarding the covered
(e) The covered transactions are not Independent Fiduciary of a single Client transactions that the Independent
part of an agreement, arrangement, or Plan of the written authorization Fiduciary of a plan (or fiduciary of an
understanding designed to benefit the described, above, in Section II(h), the In-House Plan) participating in a Pooled
asset management affiliate of WFC or an following information and materials Fund requests the asset management
affiliate. (which may be provided electronically) affiliate of WFC to provide; and
(f) The Affiliated Broker-Dealer does must be provided by the asset (iii) A termination form expressly
not receive, either directly, indirectly, or management affiliate of WFC to such providing an election for the
through designation, any selling Independent Fiduciary: Independent Fiduciary of a plan (or
concession, or other compensation or (1) A copy of the Notice of Proposed fiduciary of an In-House Plan)
consideration that is based upon the Exemption (the Notice) and a copy of participating in a Pooled Fund to
amount of Securities purchased by any the final exemption (the Grant) as terminate such plan’s (or In-House
single Client Plan, or that is based on published in the Federal Register, Plan’s) investment in such Pooled Fund
the amount of Securities purchased by provided that the Notice and the Grant without penalty to such plan (or In-
Client Plans or In-House Plans through are supplied simultaneously; and House Plan). Such form shall include
Pooled Funds, pursuant to this (2) Any other reasonably available instructions specifying how to use the
exemption. In this regard, the Affiliated information regarding the covered form. Specifically, the instructions will
Broker-Dealer may not receive, either transactions that such Independent explain that such plan (or such In-
directly or indirectly, any compensation Fiduciary requests the asset House Plan) has an opportunity to
or consideration that is attributable to management affiliate of WFC to provide. withdraw its assets from a Pooled Fund
the fixed designations generated by (j) Subsequent to the initial for a period of no more than 30 days
purchases of the Securities by the asset authorization by an Independent after such plan’s (or such In-House
management affiliate of WFC on behalf Fiduciary of a single Client Plan Plan’s) receipt of the initial notice of
of any single Client Plan or any Client permitting the asset management intent, described above in Section
Plan or In-House Plan in Pooled Funds. affiliate of WFC to engage in the covered II(k)(2)(i), and that the failure of the
(g)(1) The amount the Affiliated transactions on behalf of such single Independent Fiduciary of such plan (or
Broker-Dealer receives in management, Client Plan, the asset management fiduciary of such In-House Plan) to
underwriting, or other compensation or affiliate of WFC will continue to be return the termination form to the asset
consideration is not increased through subject to the requirement to provide management affiliate of WFC in the case
an agreement, arrangement, or within a reasonable period of time any of a plan (or In-House Plan)
understanding for the purpose of reasonably available information participating in a Pooled Fund by the
compensating the Affiliated Broker- regarding the covered transactions that specified date shall be deemed to be an
Dealer for foregoing any selling the Independent Fiduciary requests the approval by such plan (or such In-House
concessions for those Securities sold asset management affiliate of WFC to Plan) of its participation in the covered
pursuant to this exemption. Except as provide. transactions as an investor in such
described above, nothing in this Section (k)(1) In the case of an existing Pooled Fund.
II(g)(1) shall be construed as precluding employee benefit plan investor (or Further, the instructions will identify
the Affiliated Broker-Dealer from existing In-House Plan investor, as the WFC, the asset management affiliate of
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receiving management fees for serving case may be) in a Pooled Fund, such WFC, and the Affiliated Broker-Dealer
as manager of the underwriting or Pooled Fund may not engage in any and will provide the address of the asset
selling syndicate, underwriting fees for covered transactions pursuant to this management affiliate of WFC. The
assuming the responsibilities of an exemption, unless the asset instructions will state that this
underwriter in the underwriting or management affiliate of WFC provides exemption may be unavailable, unless
selling syndicate, or other compensation the written information, as described the fiduciary of each plan participating

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51470 Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices

in the covered transactions as an relates, the asset management affiliate of Dealer acted in compliance with Section
investor in a Pooled Fund is, in fact, WFC shall furnish: II(e), (f), and (g) of this exemption, and
independent of WFC, the asset (1) In the case of each single Client (ii) A representation that copies of
management affiliate of WFC, and the Plan that engages in the covered such certifications will be provided
Affiliated Broker-Dealer. The transactions, the information described upon request;
instructions will also state that the below in this Section II(n)(3)–(7), to the (5) A disclosure in the Quarterly
fiduciary of each such plan must advise Independent Fiduciary of each such Report that states that any other
the asset management affiliate of WFC, single Client Plan. reasonably available information
in writing, if it is not an ‘‘Independent (2) In the case of each Pooled Fund in regarding a covered transaction that an
Fiduciary,’’ as that term is defined which a Client Plan (or in which an In- Independent Fiduciary (or fiduciary of
below in Section III(g). House Plan) invests, the information an In-House Plan) requests will be
For purposes of this Section II(k), the described below in this Section II(n)(3)– provided, including, but not limited to:
requirement that the fiduciary (6) and (8), to the Independent (i) The date on which the Securities
responsible for the decision to authorize Fiduciary of each such Client Plan (and were purchased on behalf of the Client
the transactions described above in to the fiduciary of each such In-House Plan (or the In-House Plan) to which the
Section I of this exemption for each plan Plan) invested in such Pooled Fund. disclosure relates (including Securities
be independent of the asset management (3) A quarterly report (the Quarterly purchased by Pooled Funds in which
affiliate of WFC shall not apply in the Report) (which may be provided such Client Plan (or such In-House Plan)
case of an In-House Plan. electronically) which discloses all the invests;
Securities purchased pursuant to this (ii) The percentage of the offering
(l)(1) In the case of each plan (and in purchased on behalf of all Client Plans
the case of each In-House Plan) whose exemption during the period to which
such report relates on behalf of the (and the pro-rata percentage purchased
assets are proposed to be invested in a on behalf of Client Plans and In-House
Pooled Fund after such Pooled Fund has Client Plan, In-House Plan, or Pooled
Fund to which such report relates, and Plans investing in Pooled Funds); and
satisfied the conditions set forth in this (iii) The identity of all members of the
exemption to engage in the covered which discloses the terms of each of the
transactions described in such report, underwriting syndicate;
transactions, the investment by such (6) The Quarterly Report discloses any
plan (or by such In-House Plan) in the including:
(i) The type of Securities (including instance during the past quarter where
Pooled Fund is subject to the prior the asset management affiliate of WFC
written authorization of an Independent the rating of any Securities which are
debt securities) involved in each was precluded for any period of time
Fiduciary representing such plan (or the from selling Securities purchased under
prior written authorization by the transaction;
(ii) The price at which the Securities this exemption in that quarter because
fiduciary of such In-House Plan, as the of its status as an affiliate of an
case may be), following the receipt by were purchased in each transaction;
(iii) The first day on which any sale Affiliated Broker-Dealer and the reason
such Independent Fiduciary of such for this restriction;
plan (or by the fiduciary of such In- was made during the offering of the
Securities; (7) Explicit notification, prominently
House Plan, as the case may be) of the displayed in each Quarterly Report sent
(iv) The size of the issue of the
written information described above in to the Independent Fiduciary of each
Securities involved in each transaction;
Section II(k)(2)(i) and (ii); provided that (v) The number of Securities single Client Plan that engages in the
the Notice and the Grant, described purchased by the asset management covered transactions that the
above in Section II(k)(2)(i), are provided affiliate of WFC for the Client Plan, In- authorization to engage in such covered
simultaneously. House Plan, or Pooled Fund to which transactions may be terminated, without
(2) For purposes of this Section II(l), the transaction relates; penalty to such single Client Plan,
the requirement that the fiduciary (vi) The identity of the underwriter within five (5) days after the date that
responsible for the decision to authorize from whom the Securities were the Independent Fiduciary of such
the transactions described above in purchased for each transaction; single Client Plan informs the person
Section I of this exemption for each plan (vii) The underwriting spread in each identified in such notification that the
proposing to invest in a Pooled Fund be transaction (i.e., the difference, between authorization to engage in the covered
independent of WFC and its affiliates the price at which the underwriter transactions is terminated; and
shall not apply in the case of an In- purchases the Securities from the issuer (8) Explicit notification, prominently
House Plan. and the price at which the Securities are displayed in each Quarterly Report sent
(m) Subsequent to the initial sold to the public); to the Independent Fiduciary of each
authorization by an Independent (viii) The price at which any of the Client Plan (and to the fiduciary of each
Fiduciary of a plan (or by a fiduciary of Securities purchased during the period In-House Plan) that engages in the
an In-House Plan) to invest in a Pooled to which such report relates were sold; covered transactions through a Pooled
Fund that engages in the covered and Fund that the investment in such
transactions, the asset management (ix) The market value at the end of the Pooled Fund may be terminated,
affiliate of WFC will continue to be period to which such report relates of without penalty to such Client Plan (or
subject to the requirement to provide the Securities purchased during such such In-House Plan), within such time
within a reasonable period of time any period and not sold; as may be necessary to effect the
reasonably available information (4) The Quarterly Report contains: withdrawal in an orderly manner that is
regarding the covered transactions that (i) A representation that the asset equitable to all withdrawing plans and
the Independent Fiduciary of such plan management affiliate of WFC has to the non-withdrawing plans, after the
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(or the fiduciary of such In-House Plan, received a written certification signed date that the Independent Fiduciary of
as the case may be) requests the asset by an officer of the Affiliated Broker- such Client Plan (or the fiduciary of
management affiliate of WFC to provide. Dealer, as described, above, in Section such In-House Plan, as the case may be)
(n) At least once every three months, II(g)(2), affirming that, as to each AUT informs the person identified in such
and not later than 45 days following the covered by this exemption during the notification that the investment in such
period to which such information past quarter, the Affiliated Broker- Pooled Fund is terminated.

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Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices 51471

(o) For purposes of engaging in total net assets of at least $100 million shall be subject to a civil penalty under
covered transactions, each Client Plan in securities of issuers that are not section 502(i) of the Act or the taxes
(and each In-House Plan) shall have affiliated with such Client Plan (or such imposed by section 4975(a) and (b) of
total net assets with a value of at least In-House Plan, as the case may be), and the Code, if such records are not
$50 million (the $50 Million Net Asset the Pooled Fund itself qualifies as a maintained, or not available for
Requirement). For purposes of engaging QIB, as determined pursuant to SEC examination, as required below by
in covered transactions involving an Rule 144A (17 CFR 230.144A(a)(F)). Section II(s); and
Eligible Rule 144A Offering,2 each For purposes of the net asset (2) A prohibited transaction shall not
Client Plan (and each In-House Plan) requirements described, above, in this be considered to have occurred solely
shall have total net assets of at least Section II(o), where a group of Client because, due to circumstances beyond
$100 million in securities of issuers that Plans is maintained by a single the control of the asset management
are not affiliated with such Client Plan employer or controlled group of affiliate of WFC, or the Affiliated
(or such In-House Plan, as the case may employers, as defined in section Broker-Dealer, as applicable, such
be) (the $100 Million Net Asset 407(d)(7) of the Act, the $50 Million Net records are lost or destroyed prior to the
Requirement). Asset Requirement (or in the case of an end of the six-year period.
For purposes of a Pooled Fund Eligible Rule 144A Offering, the $100 (s)(1) Except as provided below in
engaging in covered transactions, each Million Net Asset Requirement) may be Section II(s)(2), and notwithstanding
Client Plan (and each In-House Plan) in met by aggregating the assets of such any provisions of subsections (a)(2) and
such Pooled Fund shall have total net Client Plans, if the assets of such Client (b) of section 504 of the Act, the records
assets with a value of at least $50 Plans are pooled for investment referred to above in Section II(r) are
million. Notwithstanding the foregoing, purposes in a single master trust. unconditionally available at their
if each such Client Plan (and each such (p) The asset management affiliate of customary location for examination
In-House Plan) in such Pooled Fund WFC qualifies as a ‘‘qualified during normal business hours by—
does not have total net assets with a professional asset manager’’ (QPAM), as (i) Any duly authorized employee or
value of at least $50 million, the $50 that term is defined under Part V(a) of representative of the Department, the
Million Net Asset Requirement will be PTE 84–14. Notwithstanding the fact Internal Revenue Service, or the SEC; or
met, if 50 percent (50%) or more of the that the asset management affiliate of (ii) Any fiduciary of any plan that
units of beneficial interest in such WFC satisfies the requirements, as set engages in the covered transactions, or
Pooled Fund are held by Client Plans (or forth in Part V(a) of PTE 84–14, such any duly authorized employee or
by In-House Plans) each of which has asset management affiliate of WFC must representative of such fiduciary; or
total net assets with a value of at least also have total client assets under its (iii) Any employer of participants and
$50 million. For purposes of a Pooled management and control in excess of $5 beneficiaries and any employee
Fund engaging in covered transactions billion, as of the last day of its most organization whose members are
involving an Eligible Rule 144A recent fiscal year and shareholders’ or covered by a plan that engages in the
Offering, each Client Plan (and each In- partners’ equity in excess of $1 million. covered transactions, or any authorized
House Plan) in such Pooled Fund shall Furthermore, the requirement that the employee or representative of these
have total net assets of at least $100 asset management affiliate of WFC must entities; or
million in securities of issuers that are have total client assets under its (iv) Any participant or beneficiary of
not affiliated with such Client Plan (or management and control in excess of $5 a plan that engages in the covered
such In-House Plan, as the case may be). billion, as of the last day of its most transactions, or duly authorized
Notwithstanding the foregoing, if each recent fiscal year and shareholders’ or employee or representative of such
such Client Plan (and each such In- partners’ equity in excess of $1 million, participant or beneficiary;
House Plan) in such Pooled Fund does as set forth in this Section II(p), applies (2) None of the persons described,
not have total net assets of at least $100 whether such asset management affiliate above, in Section II(s)(1)(ii)–(iv) shall be
million in securities of issuers that are of WFC, qualifies as a QPAM, pursuant authorized to examine trade secrets of
not affiliated with such Client Plan (or to Part V(a)(1), (a)(2), (a)(3) or (a)(4) of the asset management affiliate of WFC,
In-House Plan, as the case may be), the PTE 84–14. or the Affiliated Broker-Dealer, or
$100 Million Net Asset Requirement (q) No more than 20 percent of the commercial or financial information
will be met if 50 percent (50%) or more assets of a Pooled Fund at the time of which is privileged or confidential; and
of the units of beneficial interest in such a covered transaction are comprised of (3) Should the asset management
Pooled Fund are held by Client Plans (or assets of In-House Plans for which WFC, affiliate of WFC, or the Affiliated
by In-House Plans) each of which have the asset management affiliate of WFC, Broker-Dealer refuse to disclose
the Affiliated Broker-Dealer, or an information on the basis that such
2 SEC Rule 10f–3(a)(4), 17 C.F.R. § 270.10f–3(a)(4), affiliate exercises investment discretion. information is exempt from disclosure,
states that the term ‘‘Eligible Rule 144A Offering’’ (r) The asset management affiliate of pursuant to Section II(s)(2), above, the
means an offering of securities that meets the WFC, and the Affiliated Broker-Dealer, asset management affiliate of WFC shall,
following conditions:
as applicable, maintain, or cause to be by the close of the thirtieth (30th) day
(i) The securities are offered or sold in
transactions exempt from registration under section maintained, for a period of six (6) years following the request, provide a written
4(2) of the Securities Act of 1933 [15 U.S.C. 77d(d)], from the date of any covered transaction notice advising that person of the
rule 144A thereunder [§ 230.144A of this chapter], such records as are necessary to enable reasons for the refusal and that the
or rules 501–508 thereunder [§§ 230.501–230–508 the persons described below in Section
of this chapter];
Department may request such
(ii) The securities are sold to persons that the
II(s), to determine whether the information.
seller and any person acting on behalf of the seller conditions of this exemption have been
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reasonably believe to include qualified institutional met, except that— Section III—Definitions
buyers, as defined in § 230.144A(a)(1) of this (1) No party in interest with respect (a) The term, ‘‘the Applicant,’’ means
chapter; and to a plan which engages in the covered WFC.
(iii) The seller and any person acting on behalf
of the seller reasonably believe that the securities
transactions, other than WFC, the asset (b) The term, ‘‘Affiliated Broker-
are eligible for resale to other qualified institutional management affiliate of WFC, and the Dealer,’’ means any broker-dealer
buyers pursuant to § 230.144A of this chapter. Affiliated Broker-Dealer, as applicable, affiliate, as ‘‘affiliate’’ is defined, below,

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51472 Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices

in Section III(c), of the Applicant, as the asset management affiliate of WFC, other asset-backed securities rated by
‘‘Applicant’’ is defined, above, in and the Affiliated Broker-Dealer, if such one of the Rating Organizations, as
Section III(a), that meets the fiduciary represents that neither such defined, below, in Section III(k), will be
requirements of this exemption. Such fiduciary, nor any individual treated as debt securities.
Affiliated Broker-Dealer may participate responsible for the decision to authorize (i) The term, ‘‘Eligible Rule 144A
in an underwriting or selling syndicate or terminate authorization for the Offering,’’ shall have the same meaning
as a manager or member. The term, transactions described, above, in as defined in SEC Rule 10f–3(a)(4) (17
‘‘manager,’’ means any member of an Section I of this exemption, is an officer, CFR 270.10f–3(a)(4)) under the 1940
underwriting or selling syndicate who, director, or highly compensated Act.
either alone or together with other employee (within the meaning of (j) The term, ‘‘qualified institutional
members of the syndicate, is authorized section 4975(e)(2)(H) of the Code) of buyer,’’ or the term, ‘‘QIB,’’ shall have
to act on behalf of the members of the WFC, the asset management affiliate of the same meaning as defined in SEC
syndicate in connection with the sale WFC, or the Affiliated Broker-Dealer, Rule 144A (17 CFR 230.144A(a)(1))
and distribution of the Securities, as and represents that such fiduciary shall under the 1933 Act.
defined, below, in Section III(h), being advise the asset management affiliate of (k) The term, ‘‘Rating Organizations,’’
offered or who receives compensation WFC within a reasonable period of time means Standard & Poor’s Rating
from the members of the syndicate for after any change in such facts occur. Services, Moody’s Investors Service,
its services as a manager of the (2) Notwithstanding anything to the Inc., FitchRatings, Inc., Dominion Bond
syndicate. contrary in this Section III(g), a Rating Service Limited, and Dominion
(c) The term ‘‘affiliate’’ of a person fiduciary of a plan is not independent: Bond Rating Service, Inc., or any
includes: (i) If such fiduciary directly or successors thereto.
(1) Any person directly or indirectly indirectly controls, is controlled by, or (l) The term, ‘‘In-House Plan(s),’’
through one or more intermediaries, is under common control with WFC, the means an employee benefit plan(s) that
controlling, controlled by, or under asset management affiliate of WFC, or is subject to the Act and/or the Code,
common control with such person; the Affiliated Broker-Dealer; and that is sponsored by the Applicant,
(2) Any officer, director, partner, (ii) If such fiduciary directly or as defined, above, in Section III(a) for its
employee, or relative, as defined in indirectly receives any compensation or own employees.
section 3(15) of the Act, of such person; other consideration from WFC, the asset For a more complete statement of the
and management affiliate of WFC, or the facts and representations supporting the
(3) Any corporation or partnership of Affiliated Broker-Dealer for his or her Department’s decision to grant this
which such person is an officer, own personal account in connection exemption, refer to the Notice published
director, partner, or employee. with any transaction described in this on July 2, 2007 at 72 FR 36048.
(d) The term, ‘‘control,’’ means the exemption; FOR FURTHER INFORMATION CONTACT: Mr.
power to exercise a controlling (iii) If any officer, director, or highly Gary H. Lefkowitz of the Department,
influence over the management or compensated employee (within the telephone (202) 693–8546. (This is not
policies of a person other than an meaning of section 4975(e)(2)(H) of the a toll-free number.)
individual. Code) of the asset management affiliate
(e) The term, ‘‘Client Plan(s),’’ means of WFC responsible for the transactions Hawaii Emergency Physicians
an employee benefit plan(s) that is described, above, in Section I of this Associated, Inc. Profit Sharing Plan (the
subject to the Act and/or the Code, and exemption, is an officer, director, or Plan), Located in Kailua, Hawaii
for which plan(s) an asset management highly compensated employee (within [Prohibited Transaction Exemption No.
affiliate of WFC exercises discretionary the meaning of section 4975(e)(2)(H) of 2007–15; Application No. D–11340]
authority or discretionary control the Code) of the sponsor of the plan or
of the fiduciary responsible for the Exemption
respecting management or disposition of
some or all of the assets of such plan(s), decision to authorize or terminate The restrictions of sections 406(a),
but excludes In-House Plans, as defined, authorization for the transactions 406(b)(1), and 406(b)(2) of the Act and
below, in Section III(l). described, above, in Section I. However, the sanctions resulting from the
(f) The term, ‘‘Pooled Fund(s),’’ means if such individual is a director of the application of section 4975 of the Code,
a common or collective trust fund(s) or sponsor of the plan or of the responsible by reason of section 4975(c)(1)(A)
a pooled investment fund(s): fiduciary, and if he or she abstains from through (E) of the Code, shall not apply
(1) In which employee benefit plan(s) participation in: (A) the choice of the to the Sale (the Sale) by the Plan to 407
subject to the Act and/or Code invest, plan’s investment manager/adviser; and Partners LLC (the LLC), a limited
(2) which is maintained by an asset (B) the decision to authorize or liability corporation, and a party in
management affiliate of WFC, (as the terminate authorization for transactions interest to the Plan, of a parcel of
term, ‘‘affiliate’’ is defined, above, in described, above, in Section I, then improved real property (the Property)
Section III(c)), and Section III(g)(2)(iii) shall not apply. located in Kailua, Hawaii. This
(3) for which such asset management (3) The term, ‘‘officer,’’ means a exemption is conditioned upon the
affiliate of WFC exercises discretionary president, any vice president in charge adherence to the material facts and
authority or discretionary control of a principal business unit, division, or representations described herein and
respecting the management or function (such as sales, administration, upon the satisfaction of the following
disposition of the assets of such fund(s). or finance), or any other officer who requirements:
(g)(1) The term, ‘‘Independent performs a policy-making function for (a) All terms and conditions of the
Fiduciary,’’ means a fiduciary of a plan WFC or any affiliate thereof. Sale are at least as favorable to the Plan
mstockstill on PROD1PC66 with NOTICES

who is unrelated to, and independent of (h) The term, ‘‘Securities,’’ shall have as those which the Plan could obtain in
WFC, the asset management affiliate of the same meaning as defined in section an arm’s-length transaction with an
WFC, and the Affiliated Broker-Dealer. 2(36) of the Investment Company Act of unrelated party;
For purposes of this exemption, a 1940 (the 1940 Act), as amended (15 (b) The fair market value of the
fiduciary of a plan will be deemed to be U.S.C. 80a–2(36)(1996)). For purposes of Property has been determined by a
unrelated to, and independent of WFC, this exemption, mortgage-backed or qualified, independent appraiser;

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Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Notices 51473

(c) The Sale is a one-time transaction 4975(c)(1)(A) through (E) of the Code, NATIONAL SCIENCE FOUNDATION
for cash; should be provided as well, and hereby
(d) The Plan does not pay any modifies the proposed exemption and Notice of Permit Applications Received
commissions, costs or other expenses in incorporates such modification in this Under the Antarctic Conservation Act
connection with the Sale; and grant notice. of 1978 (Pub. L. 95–541)
(e) The Plan will receive an amount
For a more complete statement of the AGENCY: National Science Foundation.
equal to the greater of: (i) $3,250,000; or
facts and representations supporting the ACTION: Notice of Permit Applications
(ii) The current fair market value of the
Department’s decision to grant this Received Under the Antarctic
Property, as established by an
exemption, refer to the Notice of Conservation Act of 1978, Public Law
independent, qualified appraiser at the
Proposed Exemption published on April 95–541.
time of the Sale.
For a more complete statement of the 30, 2007 at 72 FR 21302.
SUMMARY: The National Science
facts and representations supporting the FOR FURTHER INFORMATION CONTACT: Foundation (NSF) is required to publish
Department’s decision to grant this Khalif Ford of the Department, notice of permit applications received to
exemption, refer to the Notice of telephone (202) 693–8540 (this is not a conduct activities regulated under the
Proposed Exemption published on June toll-free number). Antarctic Conservation Act of 1978.
1, 2007 at 72 FR 30633.
General Information NSF has published regulations under
FOR FURTHER INFORMATION CONTACT: the Antarctic Conservation Act at Title
Khalif Ford of the Department, The attention of interested persons is 45 Part 670 of the Code of Federal
telephone (202) 693–8540 (this is not a directed to the following: Regulations. This is the required notice
toll-free number). of permit applications received.
(1) The fact that a transaction is the
Victor P. Olson Profit Sharing Plan (the subject of an exemption under section DATES: Interested parties are invited to
Plan), Located in White City, Oregon 408(a) of the Act and/or section submit written data, comments, or
[Prohibited Transaction Exemption No. 4975(c)(2) of the Code does not relieve views with respect to this permit
2007–16; Application No. D–11344] a fiduciary or other party in interest or application by October 9, 2007. This
disqualified person from certain other application may be inspected by
Exemption provisions to which the exemption does interested parties at the Permit Office,
The restrictions of sections not apply and the general fiduciary address below.
406(a)(1)(A) through (D) and 406(b)(1), responsibility provisions of section 404 ADDRESSES: Comments should be
and 406(b)(2) of the Act and the of the Act, which among other things addressed to Permit Office, Room 755,
sanctions resulting from the application require a fiduciary to discharge his Office of Polar Programs, National
of section 4975 of the Code, by reason duties respecting the plan solely in the Science Foundation, 4201 Wilson
of section 4975(c)(1)(A) through (E) of interest of the participants and Boulevard, Arlington, Virginia 22230.
the Code shall not apply to the proposed beneficiaries of the plan and in a FOR FURTHER INFORMATION CONTACT:
cash sale (the Sale) of a parcel of prudent fashion in accordance with Nadene G. Kennedy at the above
improved real property (the Property) by section 404(a)(1)(B) of the Act; nor does address or (703) 292–7405.
the Plan to Victor P. Olson (the it affect the requirement of section SUPPLEMENTARY INFORMATION: The
Applicant), a party in interest with 401(a) of the Code that the plan must National Science Foundation, as
respect to the Plan, provided that the operate for the exclusive benefit of the directed by the Antarctic Conservation
following conditions are met: employees of the employer maintaining Act of 1978 (Pub. L. 95–541), as
(a) The Sale is a one-time transaction the plan and their beneficiaries; amended by the Antarctic Science,
for cash; Tourism and Conservation Act of 1996,
(b) The terms and conditions of the (2) This exemption is supplemental to
and not in derogation of, any other has developed regulations for the
Sale are at least as favorable to the Plan
provisions of the Act and/or the Code, establishment of a permit system for
as those obtainable in an arm’s length
including statutory or administrative various activities in Antarctica and
transaction with an unrelated party;
exemptions and transactional rules. designation of certain animals and
(c) The Plan will receive the greater of
Furthermore, the fact that a transaction certain geographic areas a requiring
$375,000 or the fair market value of the
is subject to an administrative or special protection. The regulations
Property at the time of the Sale;
(d) The Plan is not required to pay statutory exemption is not dispositive of establish such a permit system to
any commissions, costs or other whether the transaction is in fact a designate Antarctic Specially Protected
expenses in connection with the Sale; prohibited transaction; and Areas.
and The applications received are as
(3) The availability of this exemption
(e) The fair market value of the follows:
is subject to the express condition that
Property is determined by an the material facts and representations 1. Applicant: Permit Application No.:
independent, qualified appraiser. contained in the application accurately 2008–018, Juan M. Lopez-Bautista,
The operative language of the describes all material terms of the Department of Biological Sciences, The
proposed exemption (72 FR 21302) transaction which is the subject of the University for Alabama, P.O. Box
provided relief from the restrictions of exemption. 870345, 425 Scientific Collections
section 406(a)(1)(A) of the Act and Building, Tuscaloosa, AL 35487–03451.
Signed at Washington, DC, this 30th day of
section 4975(c)(1)(A) of the Code. The Activity for Which Permit is
August, 2007.
Department has determined, as a matter Requested: Take. The applicant plans to
mstockstill on PROD1PC66 with NOTICES

of clarification, that relief from the Ivan Strasfeld, collect two 10 centimeters samples of
restrictions of sections 406(a)(1)(A) Director of Exemption Determinations, terrestrial algae (Prasiola crispa) found
through (D) and 406(b)(1), and 406(b)(2) Employee Benefits Security Administration, widespread through out Antarctica.
of the Act and the sanctions resulting U.S. Department of Labor. Samples will be stored in silica gel and
from the application of section 4975 of [FR Doc. E7–17677 Filed 9–6–07; 8:45 am] returned to the United States for
the Code, by reason of section BILLING CODE 4510–29–P analysis. Part of the sample will be

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