[Federal Register: May 6, 2009 (Volume 74, Number 86)]
[Notices]               
[Page 20990-20998]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my09-102]                         

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

 
Prohibited Transaction Exemptions and Grant of Individual 
Exemptions involving: 2009-13, The Bank of New York Mellon Corporation 
(the Applicant); and 2009-14, UBS AG (UBS), and Its Affiliates UBS 
Financial Services Inc. (UBS Financial), and UBS Financial Services 
Inc. of Puerto Rico (PR Financial) (Collectively, the Applicants)

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of individual exemptions.

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

Statutory Findings

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

Exemption

Section I--Transactions

    The restrictions of section 406 of the Act, and the sanctions 
resulting from the application of section 4975 of the Code, by reason 
of section 4975(c)(1)(A) through (F) of the Code, shall not apply, 
effective December 24, 2008, to the purchase of certain securities (the 
Securities), as defined below in Section III(h), by an asset management 
affiliate of The Bank of New York Mellon Corporation (BNYMC), as 
``affiliate'' is defined below in Section III(c), from any person other 
than such asset management affiliate of BNYMC or any affiliate thereof, 
during the existence of an underwriting or selling syndicate with 
respect to such Securities, where a broker-dealer affiliated with BNYMC 
(the Affiliated Broker-Dealer), as defined below in Section III(b), is 
a manager or member of such syndicate (an ``affiliated underwriter 
transaction'' (AUT \1\)) and/or where an Affiliated Trustee, as defined 
below in Section III(m), serves as trustee of a trust that issued the 
Securities (whether or not debt securities) or serves as indenture 
trustee of Securities that are debt Securities (an ``affiliated trustee 
transaction'' (ATT \2\))

[[Page 20991]]

and the asset management affiliate of BNYMC, as a fiduciary, purchases 
such Securities:
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    \1\ For purposes of this proposed exemption, an In-House Plan 
may engage in AUTs only through investment in a Pooled Fund.
    \2\ For purposes of this proposed exemption, an In-House Plan 
may engage in ATTs only through investment in a Pooled Fund.
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    (a) On behalf of an employee benefit plan or employee benefit plans 
(Client Plan(s)), as defined below in Section III(e); or
    (b) On behalf of Client Plans, and/or In-House Plans, as defined 
below in Section III(l), which are invested in a pooled fund or in 
pooled funds (Pooled Fund(s)), as defined below in Section III(f).

Section II--Conditions

    This exemption is conditioned upon adherence to the material facts 
and representations described in the Notice of Proposed Exemption 
published in the Federal Register on December 24, 2008 at 73 FR 79174, 
and also upon the satisfaction of the following conditions:
    (a)(1) The Securities to be purchased are either--
    (i) Part of an issue registered under the Securities Act of 1933 
(the 1933 Act) (15 U.S.C. 77a et seq.) or, if the Securities to be 
purchased are part of an issue that is exempt from such registration 
requirement, such Securities:
    (A) Are issued or guaranteed by the United States or by any person 
controlled or supervised by and acting as an instrumentality of the 
United States pursuant to authority granted by the Congress of the 
United States,
    (B) Are issued by a bank,
    (C) Are exempt from such registration requirement pursuant to a 
federal statute other than the 1933 Act, or
    (D) Are the subject of a distribution and are of a class which is 
required to be registered under section 12 of the Securities Exchange 
Act of 1934 (the 1934 Act) (15 U.S.C. 781), and are issued by an issuer 
that has been subject to the reporting requirements of section 13 of 
the 1934 Act (15 U.S.C. 78m) for a period of at least ninety (90) days 
immediately preceding the sale of such Securities and that has filed 
all reports required to be filed thereunder with the Securities and 
Exchange Commission (SEC) during the preceding twelve (12) months; or
    (ii) Part of an issue that is an Eligible Rule 144A Offering, as 
defined in SEC Rule 10f-3(17 CFR 270.10f-3(a)(4)). Where the Eligible 
Rule 144A Offering of the Securities is of equity securities, the 
offering syndicate shall obtain a legal opinion regarding the adequacy 
of the disclosure in the offering memorandum;
    (2) The Securities to be purchased are purchased prior to the end 
of the first day on which any sales are made, pursuant to that 
offering, at a price that is not more than the price paid by each other 
purchaser of the Securities in that offering or in any concurrent 
offering of the Securities, except that--
    (i) If such Securities are offered for subscription upon exercise 
of rights, they may be purchased on or before the fourth day preceding 
the day on which the rights offering terminates; or
    (ii) If such Securities are debt securities, they may be purchased 
at a price that is not more than the price paid by each other purchaser 
of the Securities in that offering or in any concurrent offering of the 
Securities and may be purchased on a day subsequent to the end of the 
first day on which any sales are made, pursuant to that offering, 
provided that the interest rates, as of the date of such purchase, on 
comparable debt securities offered to the public subsequent to the end 
of the first day on which any sales are made and prior to the purchase 
date are less than the interest rate of the debt Securities being 
purchased; and
    (3) The Securities to be purchased are offered pursuant to an 
underwriting or selling agreement under which the members of the 
syndicate are committed to purchase all of the Securities being 
offered, except if--
    (i) Such Securities are purchased by others pursuant to a rights 
offering; or
    (ii) Such Securities are offered pursuant to an over-allotment 
option.
    (b) The issuer of the Securities to be purchased pursuant to this 
exemption must have been in continuous operation for not less than 
three years, including the operation of any predecessors, unless the 
Securities to be purchased--
    (1) Are non-convertible debt securities rated in one of the four 
highest rating categories by Standard & Poor's Rating Services, Moody's 
Investors Service, Inc., FitchRatings, Inc., Dominion Bond Rating 
Service Limited, Dominion Bond Rating Service, Inc., or any successors 
thereto (collectively, the Rating Organizations), provided that none of 
the Rating Organizations rates such securities in a category lower than 
the fourth highest rating category; or
    (2) Are debt securities issued or fully guaranteed by the United 
States or by any person controlled or supervised by and acting as an 
instrumentality of the United States pursuant to authority granted by 
the Congress of the United States; or
    (3) Are debt securities which are fully guaranteed by a person (the 
Guarantor) that has been in continuous operation for not less than 
three years, including the operation of any predecessors, provided that 
such Guarantor has issued other securities registered under the 1933 
Act; or if such Guarantor has issued other securities which are exempt 
from such registration requirement, such Guarantor has been in 
continuous operation for not less than three years, including the 
operation of any predecessors, and such Guarantor is:
    (i) A bank; or
    (ii) An issuer of securities which are exempt from such 
registration requirement, pursuant to a Federal statute other than the 
1933 Act; or
    (iii) An issuer of securities that are the subject of a 
distribution and are of a class which is required to be registered 
under Section 12 of the Securities Exchange Act of 1934 (the 1934 Act) 
(15 U.S.C. 781), and are issued by an issuer that has been subject to 
the reporting requirements of section 13 of the 1934 Act (15 U.S.C. 
78m) for a period of at least ninety (90) days immediately preceding 
the sale of such securities and that has filed all reports required to 
be filed thereunder with the SEC during the preceding twelve (12) 
months.
    (c) The aggregate amount of Securities of an issue purchased, 
pursuant to this exemption, by the asset management affiliate of BNYMC 
with: (i) The assets of all Client Plans; (ii) The assets, calculated 
on a pro-rata basis, of all Client Plans and In-House Plans investing 
in Pooled Funds managed by the asset management affiliate of BNYMC; and 
(iii) The assets of plans to which the asset management affiliate of 
BNYMC renders investment advice within the meaning of 29 CFR 2510.3-
21(c)) does not exceed:
    (1) Ten percent (10%) of the total amount of the Securities being 
offered in an issue, if such Securities are equity securities;
    (2) Thirty-five percent (35%) of the total amount of the Securities 
being offered in an issue, if such Securities are debt securities rated 
in one of the four highest rating categories by at least one of the 
Rating Organizations, provided that none of the Rating Organizations 
rates such Securities in a category lower than the fourth highest 
rating category; or
    (3) Twenty-five percent (25%) of the total amount of the Securities 
being offered in an issue, if such Securities are debt securities rated 
in the fifth or sixth highest rating categories by at least one of the 
Rating Organizations, provided that none of the Rating Organizations 
rates such Securities in a category lower than the sixth highest rating 
category; and
    (4) The assets of any single Client Plan (and the assets of any 
Client Plans and any In-House Plans investing in Pooled Funds) may not 
be used to purchase any debt securities being

[[Page 20992]]

offered, if such securities are rated lower than the sixth highest 
rating category by any of the Rating Organizations;
    (5) Notwithstanding the percentage of Securities of an issue 
permitted to be acquired, as set forth in Section II(c)(1), (2), and 
(3) above of this exemption, the amount of Securities in any issue 
(whether equity or debt securities) purchased, pursuant to this 
exemption, by the asset management affiliate of BNYMC on behalf of any 
single Client Plan, either individually or through investment, 
calculated on a pro-rata basis, in a Pooled Fund may not exceed three 
percent (3%) of the total amount of such Securities being offered in 
such issue; and
    (6) If purchased in an Eligible Rule 144A Offering, the total 
amount of the Securities being offered for purposes of determining the 
percentages, described above in Section II(c)(1)-(3) and (5), is the 
total of:
    (i) The principal amount of the offering of such class of 
Securities sold by underwriters or members of the selling syndicate to 
``qualified institutional buyers'' (QIBs), as defined in SEC Rule 144A 
(17 CFR 230.144A(a)(1)); plus
    (ii) The principal amount of the offering of such class of 
Securities in any concurrent public offering.
    (d) The aggregate amount to be paid by any single Client Plan in 
purchasing any Securities which are the subject of this exemption, 
including any amounts paid by any Client Plan or In-House Plan in 
purchasing such Securities through a Pooled Fund, calculated on a pro-
rata basis, does not exceed three percent (3%) of the fair market value 
of the net assets of such Client Plan or In-House Plan, as of the last 
day of the most recent fiscal quarter of such Client Plan or In-House 
Plan prior to such transaction.
    (e) The covered transactions are not part of an agreement, 
arrangement, or understanding designed to benefit the asset management 
affiliate of BNYMC or an affiliate.
    (f) If the transaction is an AUT, the Affiliated Broker-Dealer does 
not receive, either directly, indirectly, or through designation, any 
selling concession, or other compensation or consideration that is 
based upon the amount of Securities purchased by any single Client 
Plan, or that is based upon the amount of Securities purchased by 
Client Plans or In-House Plans through Pooled Funds, pursuant to this 
exemption. In this regard, the Affiliated Broker-Dealer may not 
receive, either directly or indirectly, any compensation or 
consideration that is attributable to the fixed designations generated 
by purchases of the Securities by the asset management affiliate of 
BNYMC on behalf of any single Client Plan or any Client Plan or In-
House Plan in Pooled Funds.
    (g) If the transaction is an AUT,
    (1) The amount the Affiliated Broker-Dealer receives in management, 
underwriting, or other compensation or consideration is not increased 
through an agreement, arrangement, or understanding for the purpose of 
compensating the Affiliated Broker-Dealer for foregoing any selling 
concessions for those Securities sold pursuant to this exemption. 
Except as described above, nothing in this Section II(g)(1) shall be 
construed as precluding the Affiliated Broker-Dealer from receiving 
management fees for serving as manager of the underwriting or selling 
syndicate, underwriting fees for assuming the responsibilities of an 
underwriter in the underwriting or selling syndicate, or other 
compensation or consideration that is not based upon the amount of 
Securities purchased by the asset management affiliate of BNYMC on 
behalf of any single Client Plan, or on behalf of any Client Plan or 
In-House Plan participating in Pooled Funds, pursuant to this 
exemption; and
    (2) The Affiliated Broker-Dealer shall provide, on a quarterly 
basis, to the asset management affiliate of BNYMC a written 
certification, signed and dated by an officer of the Affiliated Broker-
Dealer, stating that the amount that the Affiliated Broker-Dealer 
received in compensation or consideration during the past quarter, in 
connection with any offerings covered by this exemption, was not 
adjusted in a manner inconsistent with Section II(e), (f), or (g) of 
this exemption.
    (h) The covered transactions are performed under a written 
authorization executed in advance by an independent fiduciary of each 
single Client Plan (the Independent Fiduciary), as defined below in 
Section III(g).
    (i) Prior to the execution by an Independent Fiduciary of a single 
Client Plan of the written authorization described above in Section 
II(h), the following information and materials (which may be provided 
electronically) must be provided by the asset management affiliate of 
BNYMC to such Independent Fiduciary:
    (1) A copy of the Notice of Proposed Exemption (the Notice) and a 
copy of the final exemption (the Grant) as published in the Federal 
Register, provided that the Notice and the Grant are provided 
simultaneously; and
    (2) Any other reasonably available information regarding the 
covered transactions that such Independent Fiduciary requests the asset 
management affiliate of BNYMC to provide.
    (j) Subsequent to the initial authorization by an Independent 
Fiduciary of a single Client Plan permitting the asset management 
affiliate of BNYMC to engage in the covered transactions on behalf of 
such single Client Plan, the asset management affiliate of BNYMC will 
continue to be subject to the requirement to provide within a 
reasonable period of time any reasonably available information 
regarding the covered transactions that the Independent Fiduciary 
requests the asset management affiliate of BNYMC to provide.
    (k)(1) In the case of an existing employee benefit plan investor 
(or existing In-House Plan investor, as the case may be) in a Pooled 
Fund, such Pooled Fund may not engage in any covered transactions 
pursuant to this exemption, unless the asset management affiliate of 
BNYMC provides the written information, as described below and within 
the time period described below in this Section II(k)(2), to the 
Independent Fiduciary of each such plan participating in such Pooled 
Fund (and to the fiduciary of each such In-House Plan participating in 
such Pooled Fund).
    (2) The following information and materials (which may be provided 
electronically) shall be provided by the asset management affiliate of 
BNYMC not less than 45 days prior to such asset management affiliate of 
BNYMC engaging in the covered transactions on behalf of a Pooled Fund, 
pursuant to this exemption, and provided further that the information 
described below in this section II(k)(2)(i) and (iii) is supplied 
simultaneously:
    (i) A notice of the intent of such Pooled Fund to purchase 
Securities pursuant to this exemption, a copy of the Notice, and a copy 
of the Grant, as published in the Federal Register;
    (ii) Any other reasonably available information regarding the 
covered transaction that the Independent Fiduciary of a plan (or 
fiduciary of an In-House Plan) participating in a Pooled Fund requests 
the asset management affiliate of BNYMC to provide; and
    (iii) A termination form expressly providing an election for the 
Independent Fiduciary of a plan (or fiduciary of an In-House Plan) 
participating in a Pooled Fund to terminate such plan's (or In-House 
Plan's) investment in such Pooled Fund without penalty to such plan (or 
In-House Plan). Such form shall include

[[Page 20993]]

instructions specifying how to use the form. Specifically, the 
instructions must explain that such plan (or such In-House Plan) has an 
opportunity to withdraw its assets from a Pooled Fund for a period of 
no more than 30 days after such plan's (or such In-House Plan's) 
receipt of the initial notice of intent, described above in Section 
II(k)(2)(i), and that the failure of the Independent Fiduciary of such 
plan (or fiduciary of such In-House Plan) to return the termination 
form to the asset management affiliate of BNYMC in the case of a plan 
(or In-House Plan) participating in a Pooled Fund by the specified date 
shall be considered as an approval by such plan (or such In-House Plan) 
of its participation in the covered transactions as an investor in such 
Pooled Fund.
    Further, the instructions will identify BNYMC, the asset management 
affiliate of BNYMC, the Affiliated Broker-Dealer and/or Affiliated 
Trustee and will provide the address of the asset management affiliate 
of BNYMC. The instructions will state that the exemption will not be 
available, unless the fiduciary of each plan participating in the 
covered transactions as an investor in a Pooled Fund is, in fact, 
independent of BNYMC, the asset management affiliate of BNYMC, the 
Affiliated Broker-Dealer, and the Affiliated Trustee. The instructions 
will also state that the fiduciary of each such plan must advise the 
asset management affiliate of BNYMC, in writing, if it is not an 
``Independent Fiduciary,'' as that term is defined below in Section 
III(g) of this exemption.
    For purposes of this Section II(k)(1) and (2), the requirement that 
the fiduciary responsible for the decision to authorize the 
transactions described, above, in Section I of this exemption for each 
plan be independent of the asset management affiliate of BNYMC shall 
not apply in the case of an In-House Plan.
    (3) Notwithstanding the requirement described in Section II(h), the 
written authorization requirement for an existing single Client Plan 
shall be satisfied solely with respect to covered ATT transactions if 
the asset management affiliate provides to the Independent Fiduciary of 
such existing single Client Plan the written information and materials 
described below in Section II(k)(4), and the Independent Fiduciary does 
not return the termination form required to be provided by Section 
II(k)(4)(iii) within the time period specified therein.
    (4) The following information and materials (which may be provided 
electronically) shall be provided by the asset management affiliate of 
BNYMC not less than 45 days prior to such asset management affiliate of 
BNYMC engaging in the covered ATT transactions on behalf of such 
existing single Client Plan pursuant to this proposed exemption:
    (i) A notice of the intent of such asset management affiliate to 
purchase Securities pursuant to this exemption, a copy of the Notice, 
and a copy of the Grant, as published in the Federal Register;
    (ii) Any other reasonably available information regarding the 
covered ATT transactions that the Independent Fiduciary of such 
existing single Client Plan requests the asset management affiliate of 
BNYMC to provide; and
    (iii) A termination form expressly providing an election for the 
Independent Fiduciary of an existing single Client Plan to deny the 
asset management affiliate of BNYMC from engaging in covered ATT 
transactions on behalf of such Client Plan. Such form shall include 
instructions specifying how to use the form. Specifically, the 
instructions must explain that the existing single Client Plan has an 
opportunity to deny the asset management affiliate of BNYMC from 
engaging in covered ATT transactions of behalf of such Client Plan for 
a period of no more than 30 days after such Client Plan's receipt of 
the initial notice of intent, described above in Section II(k)(4)(i), 
and that the failure of the Independent Fiduciary of such existing 
single Client Plan to return the form to the asset management affiliate 
of BNYMC by the specified date shall be considered an approval by such 
Client Plan of its participation in the covered ATT transactions.
    Further, the instructions will identify BNYMC, the asset management 
affiliate of BNYMC, and the Affiliated Trustee and will provide the 
address of the asset management affiliate of BNYMC. The instructions 
will state that the exemption will not be available, unless the 
Independent Fiduciary of such existing single Client Plan is, in fact, 
independent of BNYMC, the asset management affiliate of BNYMC, and the 
Affiliated Trustee. The instructions will also state that the fiduciary 
of each such existing single Client Plan must advise the asset 
management affiliate of BNYMC, in writing, if it is not an 
``Independent Fiduciary,'' as that term is defined, below, in Section 
III(g).
    (l)(1) In the case of each plan (and in the case of each In-House 
Plan) whose assets are proposed to be invested in a Pooled Fund after 
such Pooled Fund has satisfied the conditions set forth in this 
exemption to engage in the covered transactions, the investment by such 
plan (or by such In-House Plan) in the Pooled Fund is subject to the 
prior written authorization of an Independent Fiduciary representing 
such plan (or the prior written authorization by the fiduciary of such 
In-House Plan, as the case may be), following the receipt by such 
Independent Fiduciary of such plan (or by the fiduciary of such In-
House Plan, as the case may be) of the written information described 
above in Section II(k)(2)(i) and (ii).
    (2) For purposes of this Section II(l), the requirement that the 
fiduciary responsible for the decision to authorize the transactions 
described, above, in Section I of this exemption for each plan 
proposing to invest in a Pooled Fund be independent of BNYMC and its 
affiliates shall not apply in the case of an In-House Plan.
    (m) Subsequent to the initial authorization by an Independent 
Fiduciary of a plan (or by a fiduciary of an In-House Plan) to invest 
in a Pooled Fund that engages in the covered transactions, the asset 
management affiliate of BNYMC will continue to be subject to the 
requirement to provide within a reasonable period of time any 
reasonably available information regarding the covered transactions 
that the Independent Fiduciary of such plan (or the fiduciary of such 
In-House Plan, as the case may be) requests the asset management 
affiliate of BNYMC to provide.
    (n) At least once every three months, and not later than 45 days 
following the period to which such information relates, the asset 
management affiliate of BNYMC shall furnish:
    (1) In the case of each single Client Plan that engages in the 
covered transactions, the information described below in this Section 
II(n)(3)-(7), to the Independent Fiduciary of each such single Client 
Plan;
    (2) In the case of each Pooled Fund in which a Client Plan (or in 
which an In-House Plan) invests, the information described below in 
this Section (II)(n)(3)-(6) and (8), to the Independent Fiduciary of 
each such Client Plan (and to the fiduciary of each such In-House Plan) 
invested in such Pooled Fund;
    (3) A quarterly report (the Quarterly Report) (which may be 
provided electronically) which discloses all the Securities purchased 
pursuant to the exemption during the period to which such report 
relates on behalf of the Client Plan, In-House Plan or Pooled Fund to 
which such report relates, and which discloses the terms of each of the 
transactions described in such report, including:

[[Page 20994]]

    (i) The type of Securities (including the rating of any Securities 
which are debt securities) involved in each transaction;
    (ii) The price at which the Securities were purchased in each 
transaction;
    (iii) The first day on which any sale was made during the offering 
of the Securities;
    (iv) The size of the issue of the Securities involved in each 
transaction, so that the Independent Fiduciary may verify compliance 
with section II(c);
    (v) The number of Securities purchased by the asset management 
affiliate of BNYMC for the Client Plan, In-House Plan or Pooled Fund to 
which the transaction relates;
    (vi) The identity of the underwriter from whom the Securities were 
purchased for each transaction;
    (vii) In the case of an AUT, the underwriting spread in each 
transaction (i.e., the difference between the price at which the 
underwriter purchases the Securities from the issuer and the price at 
which the Securities are sold to the public);
    (viii) In the case of an ATT, the basis upon which the Affiliated 
Trustee is compensated in each transaction;
    (ix) The price at which any of the Securities purchased during the 
period to which such report relates were sold; and
    (x) The market value at the end of the period to which such report 
relates of the Securities purchased during such period and not sold;
    (4) The Quarterly Report contains:
    (i) In the case of AUTs, a representation that the asset management 
affiliate of BNYMC has received a written certification signed by an 
officer of the Affiliated Broker-Dealer, as described above in Section 
II(g)(2), affirming that, as to each AUT covered by this exemption 
during the past quarter, the Affiliated Broker-Dealer acted in 
compliance with Section II(e), (f) and (g) of this exemption;
    (ii) In the case of ATTs, a representation by the asset management 
affiliate of BNYMC affirming that, as to each ATT, the transaction was 
not part of an agreement, arrangement of understanding designed to 
benefit the Affiliated Trustee; and
    (iii) A statement that copies of such certifications will be 
provided upon request;
    (5) A disclosure in the Quarterly Report that states that any other 
reasonably available information regarding a covered transaction that 
an Independent Fiduciary (or fiduciary of an In-House Plan) requests 
will be provided, including but not limited to:
    (i) The date on which the Securities were purchased on behalf of 
the Client Plan (or the In-House Plan) to which the disclosure relates 
(including Securities purchased by the Pooled Funds in which such 
Client Plan (or such In-House Plan) invests);
    (ii) The percentage of the offering purchased on behalf of all 
Client Plans (and the pro-rata percentage purchased on behalf of Client 
Plans and In-House Plans investing in Pooled Funds); and
    (iii) The identity of all members of the underwriting syndicate;
    (6) The Quarterly Report discloses any instance during the past 
quarter where the asset management affiliate of BNYMC was precluded for 
any period of time from selling Securities purchased under this 
exemption in that quarter because of its status as an affiliate of an 
Affiliated Broker-Dealer or an Affiliated Trustee and the reason for 
this restriction;
    (7) Explicit notification, prominently displayed in each Quarterly 
Report sent to the Independent Fiduciary of each single Client Plan 
that engages in the covered transactions, that the authorization to 
engage in such covered transactions may be terminated, without penalty 
to such single Client Plan, within five (5) days after the date that 
the Independent Fiduciary of such single Client Plan informs the person 
identified in such notification that the authorization to engage in the 
covered transactions is terminated; and
    (8) Explicit notification, prominently displayed in each Quarterly 
Report sent to the Independent Fiduciary of each Client Plan (and to 
the fiduciary of each In-House Plan) that engages in the covered 
transactions through a Pooled Fund, that the investment in such Pooled 
Fund may be terminated without penalty to such Client Plan (or such In-
House Plan), within such time as may be necessary to effect the 
withdrawal in an orderly manner that is equitable to all withdrawing 
plans and to the non-withdrawing plans, after the date that the 
Independent Fiduciary of such Client Plan (or the fiduciary of such In-
House Plan, as the case may be) informs the person identified in such 
notification that the investment in such Pooled Fund is terminated.
    (o) For purposes of engaging in covered transactions, each Client 
Plan (and each In-House Plan) shall have total net assets with a value 
of at least $50 million (the $50 Million Net Asset Requirement). For 
purposes of engaging in covered transactions involving an Eligible Rule 
144A Offering,\3\ each Client Plan (and each In-House Plan) shall have 
total net assets of at least $100 million in securities of issuers that 
are not affiliated with such Client Plan (or such In-House Plan, as the 
case may be) (the $100 Million Net Asset Requirement).
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    \3\ SEC Rule 10f-3(a)(4), 17 CFR 270.10f-3(a)(4), states that 
the term ``Eligible Rule 144A Offering'' means an offering of 
securities that meets the following conditions:
    (i) The securities are offered or sold in transactions exempt 
from registration under section 4(2) of the Securities Act of 1933 
[15 U.S.C. 77d(d)], rule 144A thereunder [Sec. 230.144A of this 
chapter], or rules 501-508 thereunder [Sec. 230.501-230-508 of this 
chapter];
    (ii) The securities are sold to persons that the seller and any 
person acting on behalf of the seller reasonably believe to include 
qualified institutional buyers, as defined in Sec. 230.144A(a)(1) of 
this chapter; and
    (iii) The seller and any person acting on behalf of the seller 
reasonably believe that the securities are eligible for resale to 
other qualified institutional buyers pursuant to Sec. 230.144A of 
this chapter.
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    For purposes of a Pooled Fund engaging in covered transactions, 
each Client Plan (and each In-House Plan) in such Pooled Fund shall 
have total net assets with a value of at least $50 million. 
Notwithstanding the foregoing, if each such Client Plan (and each such 
In-House Plan) in such Pooled Fund does not have total net assets with 
a value of at least $50 million, the $50 Million Net Asset Requirement 
will be met if fifty percent (50%) or more of the units of beneficial 
interest in such Pooled Fund are held by Client Plans (or by In-House 
Plans) each of which has total net assets with a value of at least $50 
million.
    For purposes of a Pooled Fund engaging in covered transactions 
involving an Eligible Rule 144A Offering, each Client Plan (and each 
In-House Plan) in such Pooled Fund shall have total net assets of at 
least $100 million in securities of issuers that are not affiliated 
with such Client Plan (or such In-House Plan, as the case may be). 
Notwithstanding the foregoing, if each such Client Plan (and each such 
In-House Plan) in such Pooled Fund does not have total net assets of at 
least $100 million in securities of issuers that are not affiliated 
with such Client Plan (or In-House Plan, as the case may be), the $100 
Million Net Asset Requirement will be met if fifty percent (50%) or 
more of the units of beneficial interest in such Pooled Fund are held 
by Client Plans (or by In-House Plans) each of which have total net 
assets of at least $100 million in securities of issuers that are not 
affiliated with such Client Plan (or such In-House Plan, as the case 
may be), and the Pooled Fund itself qualifies as a QIB, as determined 
pursuant to SEC Rule 144A (17 CFR 230.144A(a)(F)).
    For purposes of the net asset requirements described above in this

[[Page 20995]]

Section II(o), where a group of Client Plans is maintained by a single 
employer or controlled group of employers, as defined in section 
407(d)(7) of the Act, the $50 Million Net Asset Requirement (or in the 
case of and Eligible Rule 144A Offering, the $100 Million Net Asset 
Requirement) may be met by aggregating the assets of such Client Plans, 
if the assets of such Client Plans are pooled for investment purposes 
in a single master trust.
    (p) The asset management affiliate of BNYMC is a ``qualified 
professional asset manager'' (QPAM), as that term is defined under Part 
V(a) of PTE 84-14, as amended from time to time, or any successor 
exemption thereto. In addition to satisfying the requirements for a 
QPAM under Section V(a) of PTE 84-14, the asset management affiliate of 
BNYMC also must have total client assets under its management and 
control in excess of $5 billion, as of the last day of its most recent 
fiscal year and shareholders' or partners' equity in excess of $1 
million.
    (q) No more than twenty percent (20%) of the assets of a Pooled 
Fund at the time of a covered transaction are comprised of assets of 
In-House Plans for which BNYMC, the asset management affiliate of 
BNYMC, the Affiliated Broker-Dealer, the Affiliated Trustee or an 
affiliate exercises investment discretion.
    (r) The asset management affiliate of BNYMC, the Affiliated Broker-
Dealer, and the Affiliated Trustee, as applicable, maintain, or cause 
to be maintained, for a period of six (6) years from the date of any 
covered transaction such records as are necessary to enable the 
persons, described below in Section II(s), to determine whether the 
conditions of this exemption have been met, except that--
    (1) No party in interest with respect to a plan which engages in 
the covered transactions, other than BNYMC, the asset management 
affiliate of BNYMC, the Affiliated Broker-Dealer or the Affiliated 
Trustee, as applicable, shall be subject to a civil penalty under 
section 502(i) of the Act or the taxes imposed by section 4975(a) and 
(b) of the Code, if such records are not maintained, or not available 
for examination, as required below by Section II(s); and
    (2) A separate prohibited transaction shall not be considered to 
have occurred if, due to circumstances beyond the control of the asset 
management affiliate of BNYMC, the Affiliated Broker-Dealer, or the 
Affiliated Trustee, as applicable, such records are lost or destroyed 
prior to the end of the six-year period.
    (s)(1) Except as provided below in Section II(s)(2), and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to above in Section II(r) are 
unconditionally available at their customary location for examination 
during normal business hours by--
    (i) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the SEC; or
    (ii) Any fiduciary of any plan that engages in the covered 
transactions, or any duly authorized employee or representative of such 
fiduciary; or
    (iii) Any employer of participants and beneficiaries and any 
employee organization whose members are covered by a plan that engages 
in the covered transactions, or any authorized employee or 
representative of these entities; or
    (iv) Any participant or beneficiary of a plan that engages in the 
covered transactions, or duly authorized employee or representative of 
such participant or beneficiary;
    (2) None of the persons described above in Section II(s)(1)(ii)-
(iv) shall be authorized to examine trade secrets of the asset 
management affiliate of BNYMC, the Affiliated Broker-Dealer, or the 
Affiliated Trustee, or commercial or financial information which is 
privileged or confidential; and
    (3) Should the asset management affiliate of BNYMC, the Affiliated 
Broker-Dealer, or the Affiliated Trustee refuse to disclose information 
on the basis that such information is exempt from disclosure, pursuant 
to Section II(s)(2) above, the asset management affiliate of BNYMC 
shall, by the close of the thirtieth (30th) day following the request, 
provide a written notice advising that person of the reasons for the 
refusal and that the Department may request such information.
    (t) An indenture trustee whose affiliate has, within the prior 12 
months, underwritten any Securities for an obligor of the indenture 
Securities must resign as indenture trustee if a default occurs upon 
the indenture Securities within a reasonable amount of time of such 
default.

Section III--Definitions

    (a) The term, ``the Applicant,'' means BNYMC and its current and 
future affiliates.
    (b) The term, ``Affiliated Broker-Dealer,'' means any broker-dealer 
affiliate, as ``affiliate'' is defined below in Section III(c), of the 
Applicant, as ``Applicant'' is defined above in Section III(a), that 
meets the requirements of this exemption. Such Affiliated Broker-Dealer 
may participate in an underwriting or selling syndicate as a manager or 
member. The term, ``manager,'' means any member of an underwriting or 
selling syndicate who, either alone or together with other members of 
the syndicate, is authorized to act on behalf of the members of the 
syndicate in connection with the sale and distribution of the 
Securities, as defined below in Section III(h), being offered or who 
receives compensation from the members of the syndicate for its 
services as a manager of the syndicate.
    (c) The term ``affiliate'' of a person includes:
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with such person;
    (2) Any officer, director, partner, employee, or relative, as 
defined in section 3(15) of the Act, of such person; and
    (3) Any corporation or partnership of which such person is an 
officer, director, partner, or employee.
    (d) The term, ``control,'' means the power to exercise a 
controlling influence over the management or policies of a person other 
than an individual.
    (e) The term, ``Client Plan(s),'' means an employee benefit plan(s) 
that is subject to the Act and/or the Code, and for which plan(s) an 
asset management affiliate of BNYMC exercises discretionary authority 
or discretionary control respecting management or disposition of some 
or all of the assets of such plan(s), but excludes In-House Plans, as 
defined below in Section III(l).
    (f) The term, ``Pooled Fund(s),'' means a common or collective 
trust fund(s) or a pooled investment fund(s): (i) In which employee 
benefit plan(s) subject to the Act and/or Code invest; (ii) Which is 
maintained by an asset management affiliate of BNYMC, (as the term, 
``affiliate'' is defined above in Section III(c)); and (iii) For which 
such asset management affiliate of BNYMC exercises discretionary 
authority or discretionary control respecting the management or 
disposition of the assets of such fund(s).
    (g)(1) The term, ``Independent Fiduciary,'' means a fiduciary of a 
plan who is unrelated to, and independent of, BNYMC, the asset 
management affiliate of BNYMC, the Affiliated Broker-Dealer and the 
Affiliated Trustee. For purposes of this exemption, a fiduciary of a 
plan will be deemed to be unrelated to, and independent of, BNYMC, the 
asset management affiliate of BNYMC, the Affiliated Broker-Dealer and 
the Affiliated Trustee, if such fiduciary represents in writing that

[[Page 20996]]

neither such fiduciary, nor any individual responsible for the decision 
to authorize or terminate authorization for the transactions described 
above in Section I of this exemption, is an officer, director, or 
highly compensated employee (within the meaning of section 
4975(e)(2)(H) of the Code) of BNYMC, the asset management affiliate of 
BNYMC, the Affiliated Broker-Dealer or the Affiliated Trustee and 
represents that such fiduciary shall advise the asset management 
affiliate of BNYMC within a reasonable period of time after any change 
in such facts occur.
    (2) Notwithstanding anything to the contrary in this Section 
III(g), a fiduciary of a plan is not independent:
    (i) If such fiduciary directly or indirectly controls, is 
controlled by, or is under common control with BNYMC, the asset 
management affiliate of BNYMC, the Affiliated Broker-Dealer or the 
Affiliated Trustee;
    (ii) If such fiduciary directly or indirectly receives any 
compensation or other consideration from BNYMC, the asset management 
affiliate of BNYMC, the Affiliated Broker-Dealer or the Affiliated 
Trustee for his or her own personal account in connection with any 
transaction described in this exemption;
    (iii) If any officer, director, or highly compensated employee 
(within the meaning of section 4975(e)(2)(H) of the Code) of the asset 
management affiliate of BNYMC responsible for the transactions 
described above in Section I of this exemption, is an officer, director 
or highly compensated employee (within the meaning of section 
4975(e)(2)(H) of the Code) of the sponsor of the plan or of the 
fiduciary responsible for the decision to authorize or terminate 
authorization for the transactions described in Section I. However, if 
such individual is a director of the sponsor of the plan or of the 
responsible fiduciary, and if he or she abstains from participation in: 
(A) The choice of the plan's investment manager/adviser; and (B) The 
decision to authorize or terminate authorization for transactions 
described above in Section I, then Section III(g)(2)(iii) shall not 
apply.
    (3) The term, ``officer'' means a president, any vice president in 
charge of a principal business unit, division, or function (such as 
sales, administration, or finance), or any other officer who performs a 
policy-making function for BNYMC or any affiliate thereof.
    (h) The term, ``Securities,'' shall have the same meaning as 
defined in section 2(36) of the Investment Company Act of 1940 (the 
1940 Act), as amended (15 U.S.C. 80a-2(36)). For purposes of this 
exemption, mortgage-backed or other asset-backed securities rated by 
one of the Rating Organizations, as defined, below, in Section III(k), 
will be treated as debt securities.
    (i) The term, ``Eligible Rule 144A Offering,'' shall have the same 
meaning as defined in SEC Rule 10f-3(a)(4) (17 CFR 270.10f-3(a)(4)) 
under the 1940 Act.
    (j) The term, ``qualified institutional buyer,'' or the term, 
``QIB,'' shall have the same meaning as defined in SEC Rule 144A (17 
CFR 230.144A(a)(1)) under the 1933 Act.
    (k) The term, ``Rating Organizations,'' means Standard & Poor's 
Rating Services, Moody's Investors Service, Inc., Fitch Ratings, Inc., 
Dominion Bond Rating Service Limited, and Dominion Bond Rating Service, 
Inc.; or any successors thereto.
    (l) The term, ``In-House Plan(s),'' means an employee benefit 
plan(s) that is subject to the Act and/or the Code, and that is, 
respectively, sponsored by the Applicant as defined above in Section 
III(a) or by any affiliate, as defined above in Section III(b), of the 
Applicant, for its own employees.
    (m) The term, ``Affiliated Trustee,'' means the Applicant and any 
bank or trust company affiliate of the Applicant (as ``affiliate'' is 
defined above in Section III(c)(1)), that serves as trustee of a trust 
that issues Securities which are asset-backed securities or as 
indenture trustee of Securities which are either asset-backed 
securities or other debt securities that meet the requirements of this 
exemption. For purposes of this exemption, other than Section II(t), 
performing services as custodian, paying agent, registrar or in similar 
ministerial capacities is, in each case, also considered serving as 
trustee or indenture trustee.
    Effective December 24, 2008, this exemption is available to BNYMC 
and its affiliates for as long as the terms and conditions of the 
exemption are satisfied with respect to each Client Plan.

Written Comments

    1. The Notice of Proposed Exemption (the Notice), published in the 
Federal Register on December 24, 2008, stated that the Applicant would 
distribute the Notice to interested persons within fifteen (15) days of 
its publication in the Federal Register; the Notice also invited all 
interested persons to submit written comments and requests for a 
hearing to the Department concerning the proposed exemption within 
forty-five (45) days of the date of its publication.
    On December 31, 2008, the Applicant requested that the Department 
extend the foregoing deadlines for notification to interested persons. 
The Department agreed to this request, and instructed the Applicant 
that notification of interested persons be provided no later than 
January 18, 2009. In addition, the Department directed the Applicant to 
advise such interested persons that the deadline for receipt of written 
comments and requests for a hearing had been adjusted to February 17, 
2009. The Department received a written certification from the 
Applicant dated January 19, 2009 confirming that the Notice and the 
accompanying supplemental statement had been distributed to interested 
persons on or before January 18, 2009 via first-class mail or 
electronically (with verification of receipt).
    2. At the conclusion of the adjusted comment period on February 17, 
2009, the Department received a written comment from the Applicant 
regarding the content of the Notice. In its comment, the Applicant 
expressed the opinion that the references to ``Affiliated Broker-
Dealer'' in the second paragraph of Section II(k)(4)(iii) of the Notice 
were inappropriate insofar as this subsection only relates to the 
notice requirements of asset management affiliates of BNYMC engaging 
solely in covered ATT transactions on behalf of existing single Client 
Plans. Because the Department concurs with the Applicant's comment, the 
references to ``Affiliated Broker-Dealer'' contained in the second 
paragraph of Section II(k)(4)(iii) have been deleted.
    In addition, the Applicant's comment to the Department proposed a 
number of minor editorial adjustments to Sections II and III of the 
Notice, none of which related to the substance of the exemption. After 
reviewing these suggestions, the Department incorporated the requested 
changes. Further, the Department did not receive a request for a 
hearing.
    During the comment period, the Department also received two e-mails 
from recipients of the notice to interested persons who inquired 
generally about its significance, but contained no comments regarding 
the Notice. The Department determined that no additional revisions to 
the Notice were necessary after reviewing the content of these 
communications.
    3. The Department has determined, on its own motion, to amend the 
content of Section II(g)(2) as it appears in the Notice by requiring 
that the quarterly written certification concerning compensation that 
is provided by the Affiliated Broker-Dealer to the asset management 
affiliate of BNYMC must

[[Page 20997]]

not only be signed but also dated by an officer of the Affiliated 
Broker-Dealer.
    The Department has also determined, on its own motion, to amend the 
content of Section II(k)(3) as it appears in the Notice. Section 
II(k)(3) of the Notice states that, ``[N]otwithstanding the requirement 
described in Section II(h), the written authorization requirement for 
an existing single Client Plan shall be satisfied solely with respect 
to covered ATT transactions (where the asset management affiliate of 
BNYMC or any affiliate thereof is not a manager or member of an 
underwriting or selling syndicate) if the asset management affiliate 
provides to the Independent Fiduciary of such existing single Client 
Plan the written information and materials described below in Section 
II(k)(4), and the Independent Fiduciary does not return the termination 
form required to be provided by Section II(k)(4)(iii) within the time 
frame specified therein.''
    Specifically, the Department notes that the inclusion of the 
parenthetical clause in the preceding sentence may create confusion, 
insofar as the ``solely'' covered ATT transactions referenced in the 
preceding paragraph do not involve selling syndicates or underwriters. 
Accordingly, the Department has determined to delete the forgoing 
parenthetical clause from Section II(k)(3).
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the text of the Notice at 73 FR 79174.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (This is not a toll-free number.)

Exemption

    The restrictions of sections 406(a), 406(b)(1), 406(b)(2), and 
407(a) of the Act and the sanctions resulting from the application of 
section 4975 of the Code, by reason of section 4975(c)(1)(A) through 
(E) of the Code, shall not apply to: (1) The acquisition by the UBS 
Savings and Investment Plan, the UBS Financial Services Inc. 401(k) 
Plus Plan, and the UBS Financial Services Inc. of Puerto Rico Savings 
Plus Plan (collectively, the Plans) of certain entitlements (each, an 
Entitlement) and certain subscription rights (each, a Right) issued by 
UBS, a party in interest with respect to the Plans; (2) the holding of 
the Entitlements by the Plans between April 28, 2008 and May 9, 2008, 
inclusive, pending the automatic conversion of the Entitlements into 
shares of UBS common stock; and (3) the holding of the Rights by the 
Plans between May 27, 2008 and June 9, 2008, inclusive, provided that 
the following conditions were satisfied:
    (a) All decisions regarding the acquisition and holding of the 
Rights and Entitlements by the Plans were made by U.S. Trust, Bank of 
America Private Wealth Management (U.S. Trust), a qualified, 
independent fiduciary;
    (b) The Plans' acquisition of the Rights and Entitlements resulted 
from an independent act of UBS as a corporate entity, and without any 
participation on the part of the Plans;
    (c) The acquisition and holding of the Rights and Entitlements by 
the Plans occurred in connection with a capital improvement plan 
approved by the board of directors of UBS, in which all holders of UBS 
common stock, including the Plans, were treated exactly the same;
    (d) All holders of UBS common stock, including the Plans, were 
issued the same proportionate number of Rights based on the number of 
shares of UBS common stock held by such Plans;
    (e) All holders of UBS common stock, including the Plans, were 
issued the same proportionate number of Entitlements based on the 
number of shares of UBS common stock held by such Plans;
    (f) The acquisition of the Rights and Entitlements by the Plans 
occurred on the same terms made available to other holders of UBS 
common stock;
    (g) The acquisition of the Rights and Entitlements by the Plans was 
made pursuant to provisions of each such Plan for the individually-
directed investment of participant accounts; and
    (h) The Plans did not pay any fees or commissions in connection 
with the acquisition or holding of the Rights or Entitlements.
    The Notice of Proposed Exemption (the Notice), published in the 
Federal Register on January 21, 2009, stated that the Applicants would 
distribute the Notice to interested persons within fifteen (15) days of 
its publication in the Federal Register; the Notice also invited all 
interested persons to submit written comments and requests for a 
hearing to the Department concerning the proposed exemption within 
forty-five (45) days of the date of its publication.
    On January 27, 2009, the Applicants requested in writing that the 
Department permit a 10 day extension of the foregoing deadlines for the 
provision of the Notice to interested persons. The Department agreed to 
this request, and instructed the Applicants that notification of 
interested persons be provided no later than February 15, 2009. In this 
connection, the Department received a written certification from a 
corporate officer of UBS AG (the sponsor of the UBS Savings and 
Investment Plan) dated February 11, 2009, as well as written 
certifications from a corporate officer of both UBS Financial Services 
Inc. (the sponsor of the UBS Financial Services Inc. 401(k) Plus Plan) 
and of UBS Financial Services Inc. of Puerto Rico (the sponsor of the 
UBS Financial Services Inc. of Puerto Rico Savings Plus Plan) dated 
February 9, 2009; each of these certifications confirmed that the 
Notice and the accompanying supplemental statement had been distributed 
to interested persons on or before February 15, 2009 via first class 
mail. At the conclusion of the comment period, the Department had not 
received any written comments or requests for a hearing from interested 
persons with respect to the Notice. Accordingly, the Department has 
determined to grant the exemption as proposed.
    For a complete statement of the facts and representations, refer to 
the Notice published on January 21, 2009 at 74 FR 3647.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (This is not a toll-free number).

General Information

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

[[Page 20998]]

    (3) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describe all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 30th day of April 2009.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. E9-10360 Filed 4-30-09; 8:45 am]

BILLING CODE 4510-29-P