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64280 Federal Register / Vol. 66, No.

239 / Wednesday, December 12, 2001 / Notices

of the annual audit fee. The amount for Signed at Washington, DC, this 30th day of Statutory Findings
the late fee is based on 1 hour of staff November, 2001.
In accordance with section 408(a) of
time. John L. Henshaw,
the Act and/or section 4975(c)(2) of the
Assistant Secretary. Code and the procedures set forth in 29
Proposed Decision
[FR Doc. 01–30727 Filed 12–11–01; 8:45 am] CFR part 2570, subpart B (55 FR 32836,
OSHA has performed its annual
review of the fees it currently charges to
BILLING CODE 4510–26–P 32847, August 10, 1990) and based upon
Nationally Recognized Testing the entire record, the Department makes
Laboratories, as provided under 29 CFR the following findings:
DEPARTMENT OF LABOR (a) The exemption is administratively
1910.7(f). Based on this review, OSHA
has determined that certain fees warrant feasible;
Pension and Welfare Benefits (b) The exemption is in the interests
change, as detailed in this notice. As a Administration of the plan and its participants and
result, OSHA proposes to revise those
beneficiaries; and
current fees by adopting the Nationally [Exemption Application No. D–10848] (c) The exemption is protective of the
Recognized Testing Laboratory Program
rights of the participants and
Fees Schedule shown as Table A above, Prohibited Transaction Exemption beneficiaries of the plan.
which would become effective on 2001–46; Grant of Individual
January 1, 2002. As provided in our Exemption; Bank of America Bank of America Corporation (BAC),
regulations, this proposed fee schedule Corporation (BAC) Located in Charlotte, North Carolina
would remain in effect until superseded
[Prohibited Transaction Exemption 2001–46;
by another fee schedule. OSHA would AGENCY:Pension and Welfare Benefits Exemption Application No. D–10848]
give the public an opportunity to Administration, Labor.
comment on any future changes to the Exemption
ACTION: Grant of individual exemption.
fees, as we are doing through this Section I—Exemption for In-Kind
notice. SUMMARY: This document contains an Redemption of Assets
OSHA welcomes public comments, in exemption issued by the Department of
sufficient detail, as to whether it should The restrictions of section 406(a) and
Labor (the Department) from certain of
adopt the proposed Nationally 406(b) of ERISA and the sanctions
the prohibited transaction restrictions of
Recognized Testing Laboratory Program resulting from the application of section
the Employee Retirement Income
Fees Schedule shown as Table A above. 4975 of the Code by reason of section
Security Act of 1974 (the Act) and/or
Your comment should consist of 4975(c)(1)(A) through (F) of the Code
the Internal Revenue Code of 1986 (the
pertinent written documents and shall not apply, effective August 1,
Code).
exhibits. To consider it, OSHA must 2001,1 to certain in-kind redemptions
receive the comment at the address A notice was published in the Federal (the Redemptions) by the NationsBank
provided above (see ADDRESS no later Register of the pendency before the Cash Balance Plan (the In-house Plan) of
than the last date for comments (see Department of a proposal to grant such shares (the Shares) of proprietary
DATES above). Should you need more exemption. The notice set forth a mutual funds (the Portfolios) offered by
time to comment, OSHA must receive summary of facts and representations investment companies for which Bank
your written request for extension at the contained in the application for of America, N.A. (Bank of America) or
address provided above (also see exemption and referred interested an affiliate thereof provides investment
ADDRESS no later than the last date for persons to the application for a advisory and other services (the Nations
comments (also see DATES above). You complete statement of the facts and Funds).
must include your reason(s) for any representations. The application has This exemption is subject to the
request for extension. OSHA will limit been available for public inspection at following conditions:
an extension to 15 days unless the the Department in Washington, DC. The (A) The In-house Plan pays no sales
requester justifies a longer period. We notice also invited interested persons to commissions, redemption fees, or other
may deny a request for extension if it is submit comments on the requested similar fees in connection with the
frivolous or otherwise unwarranted. exemption to the Department. In Redemptions (other than customary
You may obtain or review documents addition the notice stated that any transfer charges paid to parties other
related to the establishment of the fees interested person might submit a than Bank of America and affiliates of
and all submitted comments, as written request that a public hearing be Bank of America (Bank of America
received, by contacting the Docket held (where appropriate). The applicant Affiliates));
Office, Room N2625, Occupational has represented that it has complied (B) The assets transferred to the In-
Safety and Health Administration, U.S. with the requirements of the notification house Plan pursuant to the Redemptions
Department of Labor, at the above to interested persons. No requests for a consist entirely of cash and
address. You should refer to Docket No. hearing were received by the Transferrable Securities.
NRTL95–F–1, the permanent record of Department. Public comments were Notwithstanding the foregoing,
public information on OSHA NRTL received by the Department as described Transferrable Securities which are odd
Program fees. in the granted exemption. lot securities, fractional shares and
The NRTL Program staff will review The notice of proposed exemption
all timely comments and, after was issued and the exemption is being 1 BAC anticipates that the Redemptions will take

resolution of issues raised by these granted solely by the Department place on or after August 1, 2001 and, for each
Portfolio, will be completed in a single transaction
comments, will recommend the final because, effective December 31, 1978, on a single day. However, the applicant represents
version of the NRTL Program Fees section 102 of Reorganization Plan No. that different Portfolios may effect Redemptions on
Schedule to the Assistant Secretary. The 4 of 1978, 5 U.S.C. App. 1 (1996), different dates. As a result, reference to ‘‘the
Agency will publish a public notice of transferred the authority of the Secretary Redemptions’’ throughout this proposed exemption
shall include all in-kind redemptions of Shares
its final version of the Fees Schedule in of the Treasury to issue exemptions of made pursuant to the exemption regardless of
the Federal Register, as provided under the type proposed to the Secretary of whether such redemptions are made on the same
29 CFR 1910.7. Labor. day.

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Federal Register / Vol. 66, No. 239 / Wednesday, December 12, 2001 / Notices 64281

accruals on such securities may be Redemption (and the related per Share examination during normal business
distributed in cash; net asset value and the total dollar value hours by (i) any duly authorized
(C) With certain exceptions defined of the Shares held), employee or representative of the
below, the In-house Plan receives a pro (ii) the identity (and related aggregate Department of Labor, the Internal
rata portion of the securities of the dollar value) of each security provided Revenue Service, or the Securities and
Portfolio upon a Redemption that is to the In-house Plan pursuant to the Exchange Commission, (ii) any fiduciary
equal in value to the number of Shares Redemption, including each security of the In-House Plan or any duly
redeemed for such securities, as valued in accordance with Rule 17a- authorized representative of such
determined in a single valuation 7(b)(4), fiduciary, and (iii) any participant or
performed in the same manner and as of (iii) the current market price of each beneficiary of the In-House Plan or duly
the close of business on the same day in security received by the In-house Plan authorized representative of such
accordance with the procedures set pursuant to the Redemption, and participant or beneficiary.
forth in Rule 17a-7 under the (iv) the identity of each pricing (2) None of the persons described in
Investment Company Act of 1940, as service or market-maker consulted in paragraphs (M)(1)(ii) and (iii) shall be
amended from time to time (the 1940 determining the value of such securities; authorized to examine trade secrets of
Act) (using sources independent of Bank (I) The value of the securities received Bank of America or the Nations Funds,
of America and Bank of America by the In-house Plan for each redeemed or commercial or financial information
Affiliates); Share equals the net asset value of such which is privileged or confidential.
(D) Bank of America, or any affiliate Share at the time of the transaction, and
thereof, does not receive any fees, such value equals the value that would Section II—Definitions
including any fees payable pursuant to have been received by any other For purposes of this exemption,
Rule 12b-1 under the 1940 Act in investor for shares of the same class of (A) The term ‘‘affiliate’’ means:
connection with any redemption of the the Portfolio at that time; (1) Any person directly or indirectly
Shares; (J) Subsequent to a Redemption, the through one or more intermediaries,
(E) Prior to a Redemption, Bank of Independent Fiduciary performs a post- controlling, controlled by, or under
America provides in writing to an transaction review which will include, common control with the person;
independent fiduciary, as such term is among other things, a random sampling (2) any officer, director, employee,
defined in section II (an Independent of the pricing information supplied by relative, or partner in any such person;
Fiduciary), a full and detailed written Bank of America; and and
disclosure of information regarding the (K) Each of the In-house Plan’s (3) any corporation or partnership of
Redemption; dealings with: the Nations Funds, the which such person is an officer,
(F) Prior to a Redemption, the investment advisors to the Nations director, partner, or employee.
Independent Fiduciary provides written Funds (the Investment Advisers), the (B) The term ‘‘control’’ means the
authorization for such Redemption to principal underwriter for the Nations power to exercise a controlling
Bank of America, such authorization Funds, or any affiliated person thereof, influence over the management or
being terminable at any time prior to the are on a basis no less favorable to the policies of a person other than an
date of the Redemption without penalty In-house Plan than dealings between the individual.
to the In-house Plan, and such Nations Funds and other shareholders (C) The term ‘‘net asset value’’ means
termination being effectuated by the holding shares of the same class as the the amount for purposes of pricing all
close of business following the date of Shares; purchases and sales calculated by
receipt by Bank of America of written or (L) The Bank maintains, or causes to dividing the value of all securities,
electronic notice regarding such be maintained, for a period of six years determined by a method as set forth in
termination (unless circumstances from the date of any covered transaction the Portfolio’s prospectus and statement
beyond the control of Bank of America such records as are necessary to enable of additional information, and other
delay termination for no more than one the persons described in paragraph (M) assets belonging to the Portfolio, less the
additional business day); below to determine whether the liabilities charged to each such
(G) Before authorizing a Redemption, conditions of this exemption have been Portfolio, by the number of outstanding
based on the disclosures provided by met, except that (i) a prohibited shares.
the Portfolios to the Independent transaction will not be considered to (D) The term ‘‘Independent
Fiduciary, the Independent Fiduciary have occurred if, due to circumstances Fiduciary’’ means a fiduciary who is: (i)
determines that the terms of the beyond the control of Bank of America, independent of and unrelated to Bank of
Redemption are fair to the participants the records are lost or destroyed prior to America and its affiliates, and (ii)
of the In-house Plan, and comparable to the end of the six-year period, (ii) no appointed to act on behalf of the In-
and no less favorable than terms party in interest with respect to the In- house Plan with respect to the in-kind
obtainable at arms-length between house Plan other than Bank of America transfer of assets from one or more
unaffiliated parties, and that the shall be subject to the civil penalty that Portfolios to or for the benefit of the In-
Redemption is in the best interest of the may be assessed under section 502(i) of house Plan. For purposes of this
In-house Plan and its participants and the Act or to the taxes imposed by exemption, a fiduciary will not be
beneficiaries; section 4975(a) and (b) of the Code if deemed to be independent of and
(H) Not later than thirty (30) business such records are not maintained or are unrelated to Bank on America if: (i)
days after the completion of a not available for examination as Such fiduciary directly or indirectly
Redemption, the relevant Fund will required by paragraph (M) below. controls, is controlled by or is under
provide to an independent fiduciary (M) (1) Except as provided in common control with Bank of America,
acting on behalf of the Plan (the subparagraph (2) of this paragraph (M), (ii) such fiduciary directly or indirectly
Independent Fiduciary) a written and notwithstanding any provisions of receives any compensation or other
confirmation regarding such section 504(a)(2) and (b) of the Act, the consideration in connection with any
Redemption containing: records referred to in paragraph (L) transaction described in this exemption;
(i) The number of Shares held by the above are unconditionally available at except that an independent fiduciary
In-house Plan immediately before the their customary locations for may receive compensation from Bank of

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64282 Federal Register / Vol. 66, No. 239 / Wednesday, December 12, 2001 / Notices

America in connection with the (1) The Nations Managed SmallCap period beginning on the date IFS was
transactions contemplated herein if the Index Fund was incorrectly identified in appointed to represent the In-house
amount or payment of such the proposed exemption (and exemption Plan and ending on the date the last in-
compensation is not contingent upon or application) as the Nations Managed kind redemption is expected to occur,
in any way affected by the independent SmallCap Value Index Fund; the amount of income IFS will have
fiduciary’s ultimate decision, (iii) more (2) The amount of fiduciary assets received from BAC or any affiliate
than three percent (3%) of such under BAC management was incorrectly thereof will be less than 2% of IFS’s
fiduciary’s gross income, for federal stated in the proposed exemption (and aggregate gross taxable income over
income tax purposes, in its current tax exemption application) as totaling such period.
year, will be paid by Bank of America $231,000,000. Such amount, the The Department recognizes that, in
and its affiliates in the fiduciary’s applicant states, is $231,000,000,000; certain instances, proper representation
current tax year, or (iv) for the period (3) The heading of the proposed of a plan may require that an
comprising the tax years in which the exemption should state that Bank of independent plan fiduciary provide a
independent fiduciary represents the In- America is located in Charlotte, North level of services which varies greatly
house Plan, more than two percent (2%) Carolina. over time. In consideration of, among
of such fiduciary’s aggregate gross In addition, in its letter to the other things, the size and nature of the
income over such period will be paid by Department, BAC stated that the names transaction involved in this exemption,
Bank of America and its affiliates. of certain parties to the proposed the Department has decided to modify
(E) The term ‘‘Transferable Securities’’ transaction have changed. In this regard, section II(D) of the proposed exemption
shall mean securities (1) for which ‘‘Bank of America Advisors, Inc.’’ is to read as follows:
market quotations are readily available now ‘‘Banc of America Advisors, LLC’’, (D) The term ‘‘Independent
as determined under Rule 17(a)–7 of the and ‘‘TradeStreet Investment Associates, Fiduciary’’ means a fiduciary who is: (i)
1940 Act; and (2) which are not: (i) Inc.’’ is now ‘‘Banc of America Capital independent of and unrelated to Bank of
Securities which may not be publicly Management, LLC’’. In addition, BAC America and its affiliates, and (ii)
offered or sold without registration stated that the ‘‘NationsBank Cash appointed to act on behalf of the In-
under the 1933 Act; (ii) securities issued Balance Plan’’ is now ‘‘The Bank of house Plan with respect to the in-kind
by entities in countries which (a) restrict America Pension Plan’’. transfer of assets from one or more
or prohibit the holding of securities by BAC stated further that an additional Portfolios to or for the benefit of the In-
non-nationals other than through Portfolio, the ‘‘Nations MidCap Index house Plan. For purposes of this
qualified investment vehicles, such as Fund’’, was added as an investment exemption, a fiduciary will not be
the Nations Funds, or (b) permit option to BAC’s in-house plans in July deemed to be independent of and
transfers of ownership or securities to be 2000. Such portfolio may therefore be unrelated to Bank on America if: (i)
effected only by transactions conducted affected by the exemption. In addition, Such fiduciary directly or indirectly
on a local stock exchange; (iii) certain of the various Nations Funds and controls, is controlled by or is under
portfolio positions (such as forward Portfolios affected by the exemption, the common control with Bank of America,
foreign currency contracts, futures and following have changed their names: (ii) such fiduciary directly or indirectly
options contracts, swap transactions, ‘‘Nations Disciplined Equity Fund’’ is receives any compensation or other
certificates of deposit and repurchase now ‘‘Nations Aggressive Growth Fund’; consideration in connection with any
agreements) that, although they may be ‘‘Nations Equity Index Fund’’ is now transaction described in this exemption;
liquid and marketable, involve the ‘‘Nations LargeCap Index Fund’; except that an independent fiduciary
assumption of contractual obligations, ‘‘Nations Emerging Growth Fund’’ is may receive compensation from Bank of
require special trading facilities or can now ‘‘Nations MidCap Growth Fund’; America in connection with the
only be traded with the counter-party to ‘‘Nations Managed SmallCap Index transactions contemplated herein if the
the transaction to effect a change in Fund’’ is now ‘‘Nations SmallCap Index amount or payment of such
beneficial ownership; (iv) cash Fund’; and ‘‘Nations Small Company compensation is not contingent upon or
equivalents (such as certificates of Growth Fund’’ is now ‘‘Nations Small in any way affected by the independent
deposit, commercial paper and Company Fund’’. fiduciary’s ultimate decision, (iii) more
repurchase agreements); and (v) other Finally, BAC requests that the than three percent (3%) of such
assets which are not readily definition of Independent Fiduciary, as fiduciary’s gross income, for federal
distributable (including receivables and such term is defined in section II(D) of income tax purposes, in its current tax
prepaid expenses), net of all liabilities the proposed exemption, be modified. year, will be paid by Bank of America
(including accounts payable). In this regard, BAC represents that, after and its affiliates in the fiduciary’s
(F) The term ‘‘relative’’ means a reviewing several possible candidates current tax year, or (iv) for the period
‘‘relative’’ as that term is defined in for the position of independent comprising the tax years in which the
section 3(15) of ERISA (or a ‘‘member of fiduciary with respect to the independent fiduciary represents the In-
the family’’ as that term is defined in transactions described herein, it house Plan, more than two percent (2%)
section 4975(e)(6) of the Code), or a specifically chose IFS to represent the of such fiduciary’s aggregate gross
brother, sister, or a spouse of a brother In-house Plan. This decision was based income over such period will be paid by
or a sister. on, among other things, the experience, Bank of America and its affiliates.
qualifications and reputation IFS had Finally, as stated in footnote 6 of the
Written Comments representing ERISA plans in proposed exemption, BAC represented
The Department received 28 written transactions similar to those contained that certain redeemed securities may
comments with respect to the proposed in this exemption. BAC represents that, have different purchase dates and tax
exemption. Of this amount, 27 in addition to being so qualified, the bases attached to them as compared
comments sought clarification as to the income IFS has or will receive from with otherwise identical securities
terms of the proposed exemption. The BAC or any affiliate in association with remaining in a Portfolio. BAC
remaining comment was submitted by the in-kind redemptions is of an amount subsequently clarified this point by
BAC. In its letter, BAC stated the which ensures IFS’s independence. In noting that for each issue of securities
following: this regard, BAC represents that for the held by a Portfolio, basis will be

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Federal Register / Vol. 66, No. 239 / Wednesday, December 12, 2001 / Notices 64283

allocated pro rata between the securities not apply and the general fiduciary DEPARTMENT OF LABOR
to be transferred to the In-house Plan responsibility provisions of section 404
and the securities which are to remain of the Act, which among other things Pension and Welfare Benefits
in the Portfolio. require a fiduciary to discharge his Administration
Accordingly, after giving full duties respecting the plan solely in the
consideration to the entire record, interest of the participants and Notice of Extension of the Comment
including the written comments noted beneficiaries of the plan and in a Periods for Proposed Exemptions
above, the Department has decided to prudent fashion in accordance with Affected by the TemporaryClosure of
grant the exemption. section 404(a)(1)(B) of the Act; nor does the Mailroom at the Department of
For further information regarding the it affect the requirement of section Labor
comments and other matters discussed 401(a) of the Code that the plan must
herein, interested persons are operate for the exclusive benefit of the AGENCY: Pension and Welfare Benefits
encouraged to obtain copies of the employees of the employer maintaining Administration, U.S. Department of
exemption application file (Exemption the plan and their beneficiaries; Labor (the Department).
Application No. D–10848) the (2) This exemption is supplemental to
Department is maintaining in this case. ACTION: Notice of Extension of Comment
and not in derogation of, any other
The complete application file, as well as provisions of the Act and/or the Code, Periods.
all supplemental submissions received including statutory or administrative
by the Department, are made available exemptions and transactional rules. SUMMARY: As a result of the recent
for public inspection in the Public Furthermore, the fact that a transaction anthrax scare, the Department’s
Disclosure Room of the Pension and is subject to an administrative or mailroom was closed between October
Welfare Benefits Administration, Room statutory exemption is not dispositive of 22, 2001 and November 26, 2001 in
N–1513, U.S. Department of Labor, 200 whether the transaction is in fact a order that protective measures could be
Constitution Avenue, NW., Washington, prohibited transaction; and taken to ensure the appropriate
DC 20210. (3) The availability of this exemption handling of the mail as well as the
FOR FURTHER INFORMATION CONTACT: is subject to the express condition that general safety of the Department’s
Christopher Motta of the Department, the material facts and representations employees. However, during this time
telephone (202) 693–8544 (This is not a contained in the application accurately frame, the following proposed
toll-free number). describes all material terms of the individual and class exemptions were
General Information transaction which is the subject of the published in the Federal Register and
exemption. requested comments from interested
The attention of interested persons is
directed to the following: Signed at Washington, DC, this 6th day of persons:
(1) The fact that a transaction is the December, 2001.
subject of an exemption under section Ivan Strasfeld,
408(a) of the Act and/or section Director of Exemption Determinations,
4975(c)(2) of the Code does not relieve Pension and Welfare Benefits,
a fiduciary or other party in interest or Administration, U.S. Department of Labor.
disqualified person from certain other [FR Doc. 01–30756 Filed 12–11–01; 8:45 am]
provisions to which the exemption does BILLING CODE 4510–29–P

Case No. FR Citation Date Plan/Entity Name

D–10762 ................................... 66 FR 46830 ............................ 9/7/01 Key Trust Company of Ohio.


D–10894 ................................... 66 FR 46837 ............................ 9/7/01 Brookshire Brothers, Ltd.
D–10913, D–10914 ................... 66 FR 46839 ............................ 9/7/01 The Golden Comprehensive Security Program and The Gold-
en Retirement Savings Program.
D–10954 ................................... 66 FR 49400 ............................ 9/27/01 Metropolitan Life Insurance Company.
L–10937 .................................... 66 FR 49415 ............................ 9/27/01 Ford Motor Company.
D–10997 ................................... 66 FR 46843 ............................ 9/7/01 Exemption to Modify Prohibited Transaction Exemption 97–08
Involving Morgan Stanley Dean Witter & Co. Incorporated.
D–11034 ................................... 66 FR 49703 ............................ 9/28/01 Proposed Amendment to Prohibited Transaction Exemption
80–26 for Certain Interest Free Loans to Employee Benefit
Plans.

Because no written comments were requests by electronic mail to NATIONAL SCIENCE FOUNDATION
received from interested persons while moffittb@pwba.dol.gov or by facsimile,
the mailroom was closed and the (202) 219–0204. Agency Information Collection
comment periods have since expired for FOR FURTHER INFORMATION CONTACT: Ms.
Activities: Comment Request
these pendency notices, the Department Anna Mpras, U.S. Department of Labor,
is hereby extending the comment AGENCY: National Science Foundation.
telephone (202) 693–8565. (This is not
periods for the above referenced a toll-free number.) Submission for OMB review;
ACTION:
proposed exemptions until December comment request.
26, 2001. Therefore, all written Ivan L. Strasfeld,
comments and/or hearing requests Director of Exemption, Determinations, SUMMARY: The National Science
should be sent by regular mail to the Pension and Welfare Benefits Administration, Foundation (NMSF) has submitted the
address specified in the proposals. U.S. Department of Labor. following information collection
Alternatively, interested persons may [FR Doc. 01–30757 Filed 12–11–01; 8:45 am] requirement to OMB for review and
submit their comments and/or hearing BILLING CODE 4510–29–P clearance under the Paperwork

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