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Secretary of Labor Thomas E. Perez
Grant of Individual Exemptions; Wells Fargo Bank, N.A. (Wells Fargo), et al. [Notices] [02/18/1997]

EBSA (Formerly PWBA) Federal Register Notice

Grant of Individual Exemptions; Wells Fargo Bank, N.A. (Wells Fargo), et al. [02/18/1997]

[PDF Version]

Volume 62, Number 32, Page 7275-7279

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DEPARTMENT OF LABOR
[Prohibited Transaction Exemption 97-12; Exemption Application No. D-
10014, et al.]

 
Grant of Individual Exemptions; Wells Fargo Bank, N.A. (Wells 
Fargo), et al.

AGENCY: Pension and Welfare Benefits 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 
(the Act) and/or the Internal Revenue Code of 1986 (the Code).
    Notices were published in the Federal Register of the pendency 
before the Department of proposals to grant such exemptions. The 
notices set forth a summary of facts and representations contained in 
each application for exemption and referred interested persons to the 
respective applications for a complete statement of the facts and 
representations. The applications have been available for public 
inspection at the Department in Washington, D.C. The notices also 
invited interested persons to submit comments on the requested 
exemptions to the Department. In addition the notices stated that any 
interested person might submit a written request that a public hearing 
be held (where appropriate). The applicants have represented that they 
have complied with the requirements of the notification to interested 
persons. No public comments and no requests for a hearing, unless 
otherwise stated, were received by the Department.
    The notices of proposed exemption were issued and the exemptions 
are being granted solely by the Department because, effective December 
31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 
47713, October 17, 1978) 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 exemptions are administratively feasible;
    (b) They are in the interests of the plans and their participants 
and beneficiaries; and
    (c) They are protective of the rights of the participants and 
beneficiaries of the plans.

Wells Fargo Bank, N.A. (Wells Fargo) Located in San Francisco, CA

[Prohibited Transaction Exemption (PTE) 97-12; Exemption Application 
No. D-10014]

Exemption

Section I. Covered Transactions

    The restrictions of section 406(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 (D) of the Code, shall not apply, 
effective October 1, 1995, to the purchase or redemption of shares by 
an employee benefit plan (the Plan), in certain mutual funds that are 
either affiliated with Wells Fargo (the Affiliated Funds) or are 
unaffiliated with Wells Fargo (the Third Party Funds)*, in connection 
with the participation by the Plan in the Wells Fargo Portfolio Advisor 
Program (the Portfolio Advisor Program).
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    * The Affiliated Funds and the Third Party Funds are 
collectively referred to herein as the Funds.
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    In addition, the restrictions of section 406(b) of the Act and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of section 4975(c)(1) (E) and (F) of the Code, shall not 
apply, effective October 1, 1995, to the provision, by Wells Fargo, of 
asset allocation services to an independent fiduciary of a 
participating Plan (the Independent Fiduciary) or to a participant (the 
Directing Participant) of a Plan covered under the provisions of 
section 404(c) of the Act (the Section 404(c) Plan) which may result in 
the selection of portfolios by the Independent Fiduciary or the 
Directing Participant in the Portfolio Advisor Program for the 
investment of Plan assets.
    This exemption is subject to the conditions set forth below in 
Section II.

Section II. General Conditions

    (a) The participation by each Plan in the Portfolio Advisor Program 
is

[[Page 7276]]

approved by an Independent Fiduciary or Directing Participant, in the 
case of a Section 404(c) Plan, and, with the exception of Wells Fargo 
master and prototype plans, no Plan investing therein is sponsored or 
maintained by Wells Fargo and/or its affiliates with respect to their 
own employees.
    (b) As to each Plan, the total fees that are paid to Wells Fargo 
and its affiliates constitute no more than reasonable compensation for 
the services provided.
    (c) With the exception of distribution-related fees pursuant to 
Rule 12b-1 (the 12b-1 Fees) of the Investment Company Act of 1940 which 
are offset, no Plan pays a fee or commission by reason of the 
acquisition or redemption of shares in the Funds.
    (d) The terms of each purchase or redemption of shares in the Funds 
remain at least as favorable to an investing Plan as those obtainable 
in an arm's length transaction with an unrelated party.
    (e) Wells Fargo provides written documentation to each Plan's 
Independent Fiduciary or Directing Participant of its recommendations 
or evaluations with respect to the Affiliated Funds or the Third Party 
Funds based upon objective criteria.
    (f) Any recommendation or evaluation made by Wells Fargo to an 
Independent Fiduciary or Directing Participant is implemented only at 
the express direction of such Independent Fiduciary or Directing 
Participant.
    (g) The quarterly fee that is paid by a Plan to Wells Fargo and its 
affiliates for asset allocation and related services (the Outside Fee) 
rendered to such Plan under the Portfolio Advisor Program is offset by 
all gross investment management fees (the Advisory Fees) and 
administrative fees (the Administrative Fees) received from the 
Affiliated Funds by Wells Fargo, its affiliates, its former affiliates 
and unrelated parties, including all 12b-1 Fees and Administrative Fees 
that are paid by the Affiliated Funds to Stephens Inc. and all 12b-1 
Fees that Wells Fargo receives from the Third Party Funds, such that 
the sum of the offset and the net Outside Fee will always equal the 
Outside Fee and the selection of Affiliated or Third Party Funds will 
always be revenue-neutral.
    (h) With respect to its participation in the Portfolio Advisor 
Program, prior to purchasing shares in the Affiliated Funds and the 
Third Party Funds,
    (1) Each Independent Fiduciary receives the following written or 
oral disclosures from Wells Fargo:
    (A) A brochure describing the Portfolio Advisor Program; a 
Portfolio Advisor Program Account Agreement; a description of the 
allocation models (the Allocation Models); and a reference guide/
disclosure statement providing details about the Portfolio Advisor 
Program, the fees charged thereunder, the procedures for establishing, 
making additions to and withdrawing from Portfolio Advisor Program 
Accounts (the Accounts); and other related information.
    (B) A risk tolerance and goal analysis questionnaire (the 
Questionnaire).
    (C) Copies of applicable prospectuses (the Prospectuses) for the 
Funds discussing the investment objectives of the Funds; the policies 
employed to achieve these objectives; the corporate affiliation 
existing between Wells Fargo and its affiliates; the compensation paid 
to such entities; disclosures relating to rebalancing and reallocating 
Allocation Models; and information explaining the risks attendant to 
investing in the Affiliated Funds or the Third Party Funds.
    (D) Upon written or oral request to Wells Fargo, a Statement of 
Additional Information supplementing the applicable Prospectus, which 
describes the types of securities and other instruments in which the 
Funds may invest, the investment policies and strategies that the Funds 
may utilize, including a description of the risks.
    (E) A copy of the agreement between the Plan and Wells Fargo 
relating to such Plan's participation in the Portfolio Advisor Program.
    (F) A written recommendation of a specific Allocation Model 
together with a copy of the Questionnaire and response.
    (G) Upon written request to Wells Fargo, a copy of its investment 
advisory agreement and sub-advisory agreement pertaining to the 
Affiliated Funds as well as its distribution agreement pertaining to 
the Third Party Funds.
    (H) Copies of the proposed exemption and grant notice describing 
the exemptive relief provided herein.
    (I) Written disclosures of Wells Fargo's affiliation or 
nonaffiliation with the parties who act as sponsors, distributors, 
administrators, investment advisers and sub-advisers, custodians and 
transfer agents of the Third Party Funds and the Affiliated Funds; and
    (2) In the case of a Section 404(c) Plan,
    (A) Wells Fargo provides each Directing Participant or Independent 
Fiduciary (for dissemination to the Directing Participant) with copies 
of the documents described above in paragraphs (h)(1) (A)-(I); and,
    (B) In addition to the written disclosures, an explanation will be 
provided to the Independent Fiduciary, upon request, by a Wells Fargo 
representative (the Wells Fargo Representative) regarding the services 
offered under the Portfolio Advisor Program, including the operation 
and objectives of the Funds. Such information will be given to either 
the Independent Fiduciary or the Directing Participant.
    (3) If accepted as an investor in the Portfolio Advisor Program, an 
Independent Fiduciary or Directing Participant is required to 
acknowledge, in writing, to Wells Fargo, prior to purchasing shares of 
the Funds that such Independent Fiduciary or Directing Participant has 
received copies of the documents described in paragraph (h)(1) of this 
Section II.
    (4) With respect to a Title I Plan that does not permit 
participant-directed investments as contemplated under section 404(c) 
of the Act, written acknowledgement of the receipt of such documents is 
provided by the Independent Fiduciary (i.e., the Plan administrator, 
trustee, investment manager or named fiduciary, as the recordholder of 
shares of the Funds.) Such Independent Fiduciary will be required to 
represent in writing to Wells Fargo that such fiduciary is--
    (A) Independent of Wells Fargo and its affiliates;
    (B) Capable of making independent decisions regarding the 
investment of Plan assets;
    (C) Knowledgeable with respect to the Plan in administrative 
matters and funding matters related thereto; and
    (D) Able to make an informed decision concerning participation in 
the Portfolio Advisor Program.
    (5) With respect to a Section 404(c) Plan or a Plan that is covered 
under Title II of the Act, the Directing Participant or the Independent 
Fiduciary is required to acknowledge, in writing, receipt of such 
documents and represent to Wells Fargo that such individual is--
    (A) Independent of Wells Fargo and its affiliates;
    (B) Knowledgeable with respect to the Plan in administrative 
matters and funding matters related thereto; and,
    (C) Able to make an informed decision concerning participation in 
the Portfolio Advisor Program.
    (i) Subsequent to its participation in the Portfolio Advisor 
Program, each Independent Fiduciary receives the following written or 
oral disclosures from Wells Fargo with respect to ongoing participation 
in the Portfolio Advisor Program:
    (1) Written confirmations of each purchase or redemption 
transaction involving shares of an Affiliated Fund

[[Page 7277]]

or a Third Party Fund (including transactions resulting from the 
realignment of assets caused by a change in the Allocation Model's 
investment mix and from periodic rebalancing of Account assets).
    (2) Telephone quotations of such Independent Fiduciary's Plan 
Account balance.
    (3) A periodic, but not less frequently than quarterly, statement 
of Account specifying the net asset value of the Plan's assets in such 
Account, a summary of purchase, sale and exchange activity and 
dividends received or reinvested and a summary of cumulative realized 
gains and/or losses.
    (4) Semiannual and annual reports that include financial statements 
for the Affiliated Funds and the Third Party Funds as well as the fees 
paid to Wells Fargo and its affiliates.
    (5) A quarterly newsletter or other report pertaining to the 
applicable Allocation Model which describes the Allocation Model's 
performance during the preceding quarter, market conditions and 
economic outlook and, if applicable, prospective changes in Affiliated 
Fund and Third Party Fund allocations for the Allocation Model and the 
reasons therefor.
    (6) At least annually, a written or oral inquiry from Wells Fargo 
to ascertain whether the information provided on the Questionnaire is 
still accurate and to determine if such information should be updated.
    (7) At least annually, a termination form (the Termination Form) as 
described below in Section II(l) and (m).
    (j) In the case of a Section 404(c) Plan, the Independent Fiduciary 
will decide whether the information described in
    Section II(i) above is to be distributed by Wells Fargo to the 
Directing Participants of such Plan or whether the Independent 
Fiduciary will receive this information and then provide it to the 
Directing Participants.
    (k) If authorized in writing by the Independent Fiduciary or 
Directing Participant, the Plan is automatically rebalanced on a 
periodic basis by Wells Fargo to the Allocation Model previously 
prescribed by the Independent Fiduciary or Directing Participant, if 
one or more Fund allocations deviates from the Allocation Model 
prescribed by the Independent Fiduciary or Directing Participant.
    (l) In rebalancing a Plan,
    (1) Wells Fargo is bound by the Allocation Model and is limited in 
the degree of change that it can make to an Allocation Model's 
investment mix.
    (2) Wells Fargo is authorized to make changes in the mix of asset 
classes in a Plan Account within a range of 0-15 percent (plus or 
minus) for Stock and Bond Fund investments and within a range of 0-30 
percent (plus or minus) for Money Market Fund investments without 
obtaining the prior written approval of the Independent Fiduciary or 
Directing Participant.
    (3) Wells Fargo may not change the asset mix outside the authorized 
limits unless it provides the Independent Fiduciary or Directing 
Participant with 30 days' advance written notice of the proposed change 
and gives the Independent Fiduciary or Directing Participant time to 
elect not to have the change made.
    (4) Wells Fargo may not divide a Fund sub-class unless it provides 
30 days' advance written notice to the Independent Fiduciary or 
Directing Participant of the proposed change and gives such individual 
the opportunity to object to the change.
    (5) Wells Fargo may not replace a Third Party Fund with an 
Affiliated Fund.
    (m) Although an Independent Fiduciary or Directing Participant may 
withdraw from the Portfolio Advisor Program at any time, Wells Fargo 
will provide such Independent Fiduciary or Directing Participant with 
the Termination Form, at least annually, but in all cases where Wells 
Fargo changes the asset mix outside of the current Allocation Model, 
when a Fund sub-class is to be divided, when Wells Fargo determines 
that it is in the best interest of the Plan or to use a Third Party 
Fund instead of an Affiliated Fund and whenever the Outside Fee is 
increased. Wells Fargo will provide such written notice to the 
Independent Fiduciary or Directing Participant at least 30 days prior 
to the implementation of the change.
    (n) The instructions for the Termination Form must--
    (1) State that the authorization is terminable at will by the 
Independent Fiduciary or Directing Participant, without penalty to 
such, upon receipt by Wells Fargo of written notice from the 
Independent Fiduciary or Directing Participant; and
    (2) Explain that any of the proposed changes noted above in 
paragraph (m) of this Section, will go into effect if the Independent 
Fiduciary or Directing Participant does not elect to withdraw by the 
effective date.
    (o) Wells Fargo maintains, for a period of six years, the records 
necessary to enable the persons described in paragraph (p) of this 
Section II to determine whether the conditions of this exemption have 
been met, except that--
    (1) A prohibited transaction will not be considered to have 
occurred if, due to circumstances beyond the control of Wells Fargo 
and/or its affiliates, the records are lost or destroyed prior to the 
end of the six year period; and
    (2) No party in interest other than Wells Fargo shall be subject to 
the civil penalty that may be assessed under section 502(i) of the Act, 
or to the taxes imposed by section 4975(a) and (b) of the Code, if the 
records are not maintained, or are not available for examination as 
required by paragraph (p) of this Section II below.
    (p)(1) Except as provided in section (p)(2) of this paragraph and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in paragraph (o) of this 
Section II are unconditionally available at their customary location 
during normal business hours by:
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service or the Securities and Exchange 
Commission;
    (B) Any fiduciary of a participating Plan or any duly authorized 
representative of such fiduciary;
    (C) Any contributing employer to any participating Plan or any duly 
authorized employee representative of such employer; and
    (D) Any participant or beneficiary of any participating Plan, or 
any duly authorized representative of such participant or beneficiary.
    (p)(2) None of the persons described above in paragraphs (p)(1)(B)-
(p)(1)(D) of this paragraph (p) are authorized to examine the trade 
secrets of Wells Fargo or commercial or financial information which is 
privileged or confidential.

Section III. Definitions

    For purposes of this exemption:
    (a) The term ``Wells Fargo'' means Wells Fargo Bank, N.A. and any 
affiliate of Wells Fargo, as defined in paragraph (b) of this Section 
III.
    (b) An ``affiliate'' of Wells Fargo includes----
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with Wells Fargo.
    (2) Any officer, director or partner in such person, and
    (3) Any corporation or partnership of which such person is an 
officer, director or a 5 percent partner or owner.
    (c) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (d) The term ``Plan or Plans'' include Keogh plans (Keogh Plans), 
cash or

[[Page 7278]]

deferred compensation plans (e.g., Plans qualified under section 401(k) 
of the Code), profit sharing plans, pension and stock bonus plans, 
individual retirement accounts (IRAs), salary reduction simplified 
employee pension plans (SARSEPs), simplified employee pension plans 
(SEP-IRAs), custodial account plans as described in section 403(b) of 
the Code (Section 403(b) Plans), savings incentive match plans for 
employees (SIMPLEs), and, in the case of a Section 404(c) Plan, the 
individual account of a Directing Participant.
    (e) The term ``Independent Fiduciary'' means a Plan fiduciary which 
is independent of Wells Fargo and its affiliates and is either----
    (1) A Plan administrator, trustee, investment manager or named 
fiduciary, as the recordholder of shares of the Funds of a Section 
404(c) Plan;
    (2) An individual covered by a Keogh Plan which invests in shares 
of the Funds;
    (3) An individual covered under a self-directed IRA, SEP-IRA or 
SARSEP, SIMPLE or Section 403(b) Plan which invests in shares of the 
Funds;
    (4) An employee, officer or director of Wells Fargo and/or its 
affiliates covered by an IRA, a SEP-IRA or a SARSEP not subject to 
Title I of the Act; or
    (5) A Plan administrator, trustee, investment manager or named 
fiduciary responsible for investment decisions in the case of a Title I 
Plan that does not permit individual direction as contemplated by 
Section 404(c) of the Act.
    (f) The term ``Directing Participant'' is a participant in a Plan, 
such as a Section 404(c) Plan, who is permitted under the terms of the 
Plan to direct, and who elects to so direct the investment of the 
assets of his or her account in such Plan.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption (the Notice) on December 3, 1996 at 61 
FR 64150.

Written Comments

    The Department received one written comment with respect to the 
Notice. The comment was submitted by Wells Fargo and is intended to 
clarify the Notice in the following areas:
    (1) Inclusion of Master and Prototype Plans in the Portfolio 
Advisor Program. Section II(a) of the General Conditions states, in 
part, that no Plan investing in the Portfolio Advisor Program may be 
sponsored or maintained by Wells Fargo and/or its affiliates. Wells 
Fargo wishes to clarify that this exclusion does not preclude the 
participation in the Portfolio Advisor Program by a master or prototype 
Plan sponsored by Wells Fargo and/or its affiliates. Rather, Wells 
Fargo points out that the exclusion is limited to Plans sponsored by 
Wells Fargo and its affiliates with respect to their own employees.
    (2) Substitution of Term ``Wells Fargo Representative'' for ``Wells 
Fargo Personal Financial Officer.'' Section II(H)(2)(B) of the General 
Conditions states that a Wells Fargo Personal Financial Officer (the 
Personal Financial Officer) will provide an explanation of the services 
offered under the Portfolio Advisor Program, including the operation 
and objectives of the Funds to an Independent Fiduciary or the 
Directing Participant of a Section 404(c) Plan, upon request. Wells 
Fargo requests that the term ``Personal Financial Officer'' be deleted 
and that the term ``Wells Fargo Representative'' be substituted for 
that term because the title ``Personal Financial Officer'' has been 
changed. In addition, Wells Fargo requests that the term ``Wells Fargo 
Representative'' be substituted throughout the Notice, particularly at 
pages 64155 and 64157.
    (3) Distribution of the Termination Form. Section II(m) of the 
General Conditions requires, in part, that Wells Fargo provide an 
Independent Fiduciary or a Directing Participant with a Termination 
Form, at least annually, during the first quarter of each calendar 
year. Wells Fargo requests that this condition be revised to require 
annual distribution of the Termination Form without any requirement 
that the Termination Form be delivered during the first calendar 
quarter of each year. Wells Fargo states that the condition would then 
be consistent with Representation 27 of the Notice which contains no 
reference to distribution of the Termination Form within the first 
quarter of each calendar year.
    (4) Definition of the Term ``Plan or Plans.'' Section III(d) of the 
Definitions covers the types of Plans that may invest in the Portfolio 
Advisor Program. Wells Fargo requests that the term include Section 
403(b) Plans as well as SIMPLEs. In addition, Wells Fargo wishes to 
clarify that the term ``cash or deferred compensation plans'' includes 
Plans qualified under Section 401(k) of the Code.
    (5) Acronym for Wells Fargo Institutional Trust Company N.A. 
(WFITC). In Representations 3 and 7 of the Summary of Facts and 
Representations of the Notice, Wells Fargo notes that the letters ``I'' 
and ``T'' of the acronym ``WFITC'' have been transposed and should read 
``WFITC'' instead of ``WFTIC.''
    (6) Description of the Portfolio Advisor Program. The first 
sentence of Footnote 9 of the Summary of Facts and Representations of 
the Notice states that for any Allocation Model, not more than 30 
percent of an investor's assets can be placed in the Money Market 
Funds. Wells Fargo points out that this sentence is only applicable to 
the sample Allocation Model shown in Table 4 of the Notice but it is 
inapplicable to other Allocation Models which may hold more than 30 
percent of their assets in Money Market Funds. Accordingly, Wells Fargo 
requests that this sentence be deleted and states that the remaining 
text is accurate.
    Thus, after giving full consideration to the entire record, 
including the written comment, the Department has made the 
aforementioned changes to the Notice. In addition, the Department has 
decided to grant the exemption subject to the modifications or 
clarifications described above. The comment letter has been included as 
part of the public record of the exemption application. The complete 
application file, as well as all supplemental submissions received by 
the Department, is made available for public inspection in the Public 
Documents Room of the Pension and Welfare Benefits Administration, Room 
N-5638, U.S. Department of Labor, 200 Constitution Avenue, N.W., 
Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Ms. Jan D. Broady of the Department, 
telephone (202) 219-8881. (This is not a toll-free number.)

GE Capital Investment Advisors, Inc. Located in New York, New York

[Prohibited Transaction Exemption 97-13; Exemption Application No. D-
10318]

Exemption

    GE Capital Investment Advisors, Inc. (GECIA) and GECIA Holdings, 
Inc. (Holdings) shall not be precluded from functioning as a 
``qualified professional asset manager'' pursuant to Prohibited 
Transaction Class Exemption 84-14 (PTE 84-14, 49 FR 9494, March 13, 
1984) solely because of a failure to satisfy section I(g) of PTE 84-14, 
as a result of General Electric Company's ownership interest in them, 
including any of their subsidiaries or successors which provides 
investment advisory, management or related services and is registered 
under the Securities and Exchange Act of 1934, as amended, or the 
Investment Advisors Act of 1940, as amended; provided the following 
conditions are satisfied:
    (A) This exemption is not applicable to any affiliation by GECIA or 
Holdings with any person or entity convicted of

[[Page 7279]]

any of the felonies described in part I(g) of PTE 84-14, other than 
General Electric Company; and
    (B) This exemption is not applicable with respect to any 
convictions of General Electric Company for felonies described in part 
I(g) of PTE 84-14 other than those involved in the G.E. Felonies, 
described in the Notice of Proposed Exemption.
    For a more complete statement of the facts and representations 
supporting this exemption, refer to the notice of proposed exemption 
published on November 25, 1996 at 61 FR 59912.

EFFECTIVE DATE: This exemption is effective as of January 29, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Willett of the Department, 
telephone (202) 219-8881. (This is not a toll-free number.)

Givens 401(k) Savings and Retirement Plan (the Plan) Located in 
Chesapeake, VA

[Prohibited Transaction Exemption 97-14; Exemption Application No. D-
10364]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) 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 the purchase from the Plan of the Plan's interest in 
a group annuity contract (the GAC Interest) by Givens, Incorporated, a 
sponsor of the Plan; provided the following conditions are satisfied:
    (a) The sale is a one-time transaction for cash;
    (b) The Plan suffers no loss nor incurs any expense in connection 
with the sale; and
    (c) The Plan receives a purchase price of no less than the fair 
market value of the GAC Interest as of the date of the sale.
    For a more complete statement of the facts and representations 
supporting this exemption, refer to the notice of proposed exemption 
published on December 17, 1996 at 61 FR 66331.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Willett of the Department, 
telephone (202) 219-8881. (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 exemptions 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) These exemptions are supplemental to and not in derogation of, 
any other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of these exemptions is subject to the express 
condition that the material facts and representations contained in each 
application are true and complete and accurately describe all material 
terms of the transaction which is the subject of the exemption. In the 
case of continuing exemption transactions, if any of the material facts 
or representations described in the application change after the 
exemption is granted, the exemption will cease to apply as of the date 
of such change. In the event of any such change, application for a new 
exemption may be made to the Department.

    Signed at Washington, D.C., this 12th day of February, 1997.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 97-3838 Filed 2-14-97; 8:45 am]
BILLING CODE 4510-29-P