Employee Benefits Security Administration, Labor.
Notice of proposed exemption.
This document contains a notice of pendency before the Department of Labor (the Department) of a proposed exemption 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).
Written Comments and Hearing Requests
All interested persons are invited to submit written comments or requests for a hearing on the pending exemption, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this Federal Register Notice. Comments and requests for a hearing should state: (1) the name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing.
All written comments and requests for a hearing (at least three copies) should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Room N-5649, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No. __, stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to EBSA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to: “email@example.com”, or by FAX to (202) 219-0204 by the end of the scheduled comment period. The application for exemption and the comments received will be available for public inspection in the Public Documents Room of the Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC 20210.
Warning: If you submit written comments or hearing requests, do not include any personally-identifiable or confidential business information that you do not want to be publicly-disclosed. All comments and hearing requests are posted on the Internet exactly as they are received, and they can be retrieved by most Internet search engines. The Department will make no deletions, modifications or redactions to the comments or hearing requests received, as they are public records.
Notice to Interested Persons
Notice of the proposed exemption will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the Federal Register. Such notice shall include a copy of the notice of proposed exemption as published in the Federal Register and shall inform interested persons of their right to comment and to request a hearing (where appropriate).End Preamble Start Supplemental Information
The proposed exemption was requested in an application filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). 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 requested to the Secretary of Labor. Therefore, this notice of proposed exemption is issued solely by the Department.
The application contains representations with regard to the proposed exemption which is summarized below. Interested persons are referred to the application on file with the Department for a complete statement of the facts and representations.
Citizens Bank Wealth Management, N.A., Located in Flint, Michigan
[Application No. D-11565]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR Part 2570 Subpart B (55 FR 32836, 32847, August 10, 1990).
Section I. Transaction
If the proposed exemption is granted, the restrictions of section 406(a)(1)(A) Start Printed Page 17967and (D) and section 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), (D), and (E) of the Code, shall not apply, effective December 16, 2008, to the past sale of certain Auction Rate Securities (ARS) by the Four-Way Tool & Die, Inc. Profit Sharing Plan and Trust (the Plan) to Citizens Republic Bancorp (Citizens Republic), a party in interest with respect to the Plan, provided that the following conditions were satisfied: 
(A) The subject ARS were acquired for the Plan by Citizens Bank Wealth Management, N.A. (the Trustee), acting in its capacity as trustee of the Plan, from an independent broker;
(B) The last auction for each of the ARS was unsuccessful;
(C) The sale of the ARS was directly between the Plan and Citizens Republic for solely cash consideration against prompt delivery of the ARS;
(D) The sale price for each of the ARS was equal to the par value, plus any accrued but unpaid interest;
(E) The Plan did not waive any rights or claims in connection with the sale;
(F) The decision to sell the ARS to the Trustee was made by a Plan fiduciary independent of the Trustee;
(G) The Plan did not pay any commissions or transaction costs in connection with the sale;
(H) The sale was not part of an arrangement, agreement, or understanding designed to benefit a party in interest to the Plan;
(I) Upon termination of the Plan, the Plan participants received 100 percent of their account balances, and as a result of the pre-termination sale of the ARS to Citizens Republic at face value, plus any accrued but unpaid interest, no participant was adversely affected by the absence of an auction market for the ARS or the resulting decline in their market value;
(J) The Trustee and its affiliate, as applicable, maintain, or cause to be maintained, for a period of at least six (6) years from the date of the sale, such records as are necessary to enable the persons described in paragraph (K), below, to determine whether the conditions of this exemption, if granted, have been met, except that—
(i) No party in interest with respect to the Plan that engaged in the sale, other than the Trustee and its affiliate, 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 are not available for examination, as required, below, by paragraph (K); and
(ii) A separate prohibited transaction shall not be considered to have occurred solely because, due to circumstances beyond the control of the Trustee or its affiliate, as applicable, such records are lost or destroyed prior to the end of the six-year period; and
(K)(i) Except as provided in subparagraph (ii), below, and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (J), above, are unconditionally available at their customary location for examination during normal business hours by—
(a) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the U.S. Securities and Exchange Commission;
(b) Any fiduciary of the Plan, or any duly authorized employee or representative of such fiduciary; or
(c) The employer of participants of the Plan, and any employee organization whose members are covered by the Plan, or any authorized employee or representative of these entities;
(ii) None of the persons described above in (b) or (c) of subparagraph (K) shall be authorized to examine trade secrets of the Trustee, or commercial or financial information which is privileged or confidential; and
(iii) If the Trustee refuses to disclose information on the basis that such information is exempt from disclosure, the Trustee 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.
Section II. Definitions
For purposes of this exemption:
(A) The term “affiliate” means any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such other person (with respect to the Trustee, “affiliate” includes, but is not limited to, its parent corporation, Citizens Republic Bancorp;
(B) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual;
(C) The term “Auction Rate Securities” or “ARS” means securities that are debt instruments (generally with a long-term nominal maturity) with an interest rate that is reset at specific intervals through a Dutch Auction process;
(D) A person is “independent” of the Trustee if the person is (1) not the Trustee or an affiliate, and (2) not a “relative” (as defined in section 3(15) of the Act) of the party engaging in the transaction; and
(E) The term “Plan” means the Four-Way Tool & Die, Inc. Profit Sharing Plan and Trust, which is an employee benefit plan as defined in section 3(3) of the Act, and its related trust, which is an entity holding plan assets within the meaning of 29 CFR 2510.3-101, as modified by section 3(42) of the Act.
Summary of Facts and Representations
1. Four-Way Tool & Die, Inc. (the Employer), located in Troy, Michigan, is engaged in the production of tooling, primarily for the automotive industry. The Four-Way Tool & Die, Inc. Profit Sharing Plan and Trust (the Plan), a defined contribution plan qualified under section 401(a) of the Code, was adopted by the Employer, effective October 1, 1969; was most recently amended and restated, effective October 1, 2007; and was terminated, effective January 31, 2009, and all assets were liquidated and distributed to the Plan participants. As of December 16, 2008, the Plan had 16 active participants (and no beneficiaries receiving benefits) and total assets of approximately $4,166,240. The Plan maintained individual accounts for each participant, but participants were not permitted to direct the investment of his or her account.
2. The applicant Citizens Bank Wealth Management, N.A. (also referred to herein as the Trustee) was the trustee of the Plan, beginning in October 1, 2007, having full investment discretion under a trust agreement with the Employer to invest Plan assets within the guidelines set by a written investment policy. The Trustee is a national banking association headquartered in Flint, Michigan and a wholly owned subsidiary of Citizens Republic Bancorp (Citizens Republic), a bank holding company. Among other things, the Trustee acts as an institutional trustee for employee benefit plans and is a registered investment advisor subject to the Investment Advisers Act of 1940.
3. It is represented that, on various dates from November 2, 2007 to December 24, 2007, the Trustee acquired certain Auction Rate Securities (ARS) as an investment for the Plan through UBS Financial Services, an independent international broker. The Start Printed Page 17968value of the ARS was allocated among all participants' accounts (in the same manner as all other Plan investments) in accordance with the terms of the Plan.
The Trustee describes the ARS and the arrangement by which they are purchased and sold as follows. The ARS are securities (in each case herein issued as debt) with an interest rate that is not fixed but is reset at periodic intervals pursuant to a process called a “Dutch Auction.” Investors submit orders to buy, hold, or sell a specific ARS to a broker-dealer selected by the entity that issued the ARS. The broker-dealers, in turn, submit all of these orders to an auction agent. The auction agent's functions include collecting orders from all participating broker-dealers by the auction deadline, determining the amount of securities available for sale, and organizing the bids to determine the winning bid. If there are any buy orders placed into the auction at a specific rate, the auction agent accepts bids with the lowest rate above any applicable minimum rate and then successively higher rates up to the maximum applicable rate, until all sell orders and orders that are treated as sell orders are filled. Bids below any applicable minimum rate or above the applicable maximum rate are rejected. After determining the “clearing rate” for all of the securities at auction, the auction agent allocates the ARS available for sale to the participating broker-dealers based on the orders that they submitted. If there are multiple bids at the clearing rate, the auction agent will allocate securities among the bidders at such rate on a pro rata basis. In the event of a failed auction, existing ARS holders receive the maximum rate set in the official statements under which the ARS were issued (i.e., the “default rate”) until such time as sufficient bids are received to set a new clearing rate at the next auction.
4. According to the applicant, the subject ARS acquired for the Plan were backed by student loans and were primarily selected based upon the credit rating of the issuer. Soon after the Plan's acquisition of the ARS, however, the unanticipated crisis in the national credit markets resulted in over ten months of failed auctions. Consequently, the Plan was unable to dispose of its ARS, thereby jeopardizing liquidity to make benefit payments, mandatory payments and withdrawals, and expense payments when due. The Employer's business was also impacted by the general economic downturn and the dramatic decline in automobile sales. In late 2008, the Trustee was notified of a proposed sale of the Employer and of its intention to terminate the Plan by year's end and distribute all assets to participants as soon as administratively possible. With the Employer likely to be sold and uncertainty about a new owner, Plan participants were anxious to receive their vested account balances.
To relieve the situation, it is represented that the Trustee offered to have its parent corporation, Citizens Republic Bancorp, purchase the ARS directly from the Plan at their par value, plus accrued but unpaid interest. Larry Erickson, the owner and president of the Employer and a fiduciary of the Plan, orally consented after reviewing all the material terms of the sale, including the identity and par value of each of the ARS, the interest amounts that were due with respect to each of the ARS, and the most recent rate information for each of the ARS (to the extent that reliable information was available). The percentage of Plan assets involved in the sale on December 16, 2008 was approximately 61.56%.
The following chart provides information on each of the subject ARS sold to Citizens Republic. The last column of the chart shows the “default rate” of interest for each of the ARS paid by Citizens Republic for accrued but unpaid interest from the date of the last interest payment until the date of sale. It is represented that none of the ARS was in default in payment of interest as of the sale date on December 16, 2008.
|Issuer name||Face value||CUSIP||Nature of issuer||Rating||Secondary insurance||Rate at sale date (%)|
|Iowa Student Loan Liquidity Corp||$300,000||462590GK0||Private Entity||Aa3/AA||AMBAC Assurance||3.135|
|Access to Loans for Learning Student Loan Corporation||300,000||00432MAR0||Private Entity||Aaa/AAA||None||3.135|
|Pennsylvania Higher Education Assistance Agency||300,000||709163GR4||Private Entity||Aaa/AAA||AMBAC Assurance||3.198|
|Connecticut Student Loan Foundation||200,000||207784AG4||Private Entity||Aaa/AAA||None||3.398|
|State Board of Regents of the State of Utah||200,000||917546EM1||Private Entity||Aaa/AAA||None||2.431|
|Illinois Student Loan Assistance Commission||350,000||452281HT8||Private Entity||Aaa/AAA||None||3.325|
|Start Printed Page 17969|
|Pennsylvania Higher Education Assistance Agency||300,000||709163DA4||Private Entity||Aaa/AAA||None||3.547|
|New Hampshire Higher Education Loan Corp||300,000||644616AV6||Private Entity||Aaa/AAA||None||0.000|
|Illinois Student Loan Assistance Commission||300,000||452281HS0||Private Entity||Aaa/AAA||None||2.695|
|Iowa Student Assistance Commission||300,000||462590GF1||Private Entity||Aaa/AAA||None||2.695|
5. The Trustee represents that the Plan was their only employee benefit plan client holding ARS. However, numerous other individual and corporate customers of the trust department held ARS in their accounts. When the business decision was made for Citizens Republic to purchase the illiquid ARS from the Trustee's customer accounts, it was determined that all purchases should be made on the same basis and at the same time, so as not to differentiate among different investors. It is represented that, because the Trustee's intention was to complete the purchases prior to the close of 2008, seeking a prospective exemption for the one employee benefit plan customer would have either delayed the repurchases for all customers or potentially disadvantaged the Plan by not simultaneously participating in the repurchase program. The Plan did not waive any rights or claims in connection with the sale of ARS to Citizens Republic.
The applicant represents that the sale of the ARS by the Plan to Citizens Republic was in the best interests of Plan because the sale permitted the Plan to pay benefits and expenses of administration and to proceed with termination, effective January 31, 2009, and the prompt distribution of cash to all participants. Further, according to the applicant, the extreme illiquidity in the credit markets at the time, and over ten months of failed auctions, made it very apparent that all the ARS held by the Plan had a fair market value below par and could not be worth more than that amount in the near term, given the historically low interest rate environment. The sale was for solely cash consideration against prompt delivery of the ARS, and the Plan did not pay any commissions or transaction costs in connection with the sale. It is represented that, upon termination of the Plan, the Plan participants received 100 percent of their account balances, and as a result of the pre-termination sale of the ARS to Citizens Republic at face value, plus any accrued but unpaid interest, no participant was adversely affected by the absence of an auction market for the ARS or the resulting decline in their market value.
The Trustee is bearing the costs of the exemption application. The Employer is bearing the costs of notifying interested persons.
6. In summary, the subject transaction satisfied the statutory criteria for an exemption under section 408(a) of the Act for the following reasons: (a) The sale of the ARS was directly between the Plan and Citizens Republic for solely cash consideration against prompt delivery of the ARS; (b) the sale price for each of the ARS was equal to the par value, plus any accrued but unpaid interest; (c) the Plan did not waive any rights or claims in connection with the sale; (d) the decision to sell the ARS to the Trustee was made by the Employer, who is independent of the Trustee, after receiving disclosure of all the material terms of the sale; (e) the Plan did not pay any commissions or transaction costs in connection with the sale; and (f) upon termination of the Plan, the Plan participants received 100 percent of their account balances, and as a result of the pre-termination sale of the ARS to Citizens Republic at face value, plus any accrued but unpaid interest, no participant was adversely affected by the absence of an auction market for the ARS or the resulting decline in their market value.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Ms. Karin Weng of the Department, telephone (202) 693-8557. (This is not a toll-free.)
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 of the Act and/or the Code, including any prohibited transaction 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) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional 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
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.Start Signature
Signed at Washington, DC, this 2nd day of April, 2010.
Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor.
1. For purposes of this proposed exemption, references to section 406 of the Act should be read to refer also to the corresponding provisions of section 4975 of the Code.Back to Citation
2. The Department expresses no opinion herein as to whether the acquisition and holding of the ARS by the Plan met the requirements of Part 4 in Title I of the Act.Back to Citation
3. The applicant represents that all auctions for the ARS subsequent to the subject sale also failed.Back to Citation
4. According to the applicant, the anticipated sale of the Employer ultimately was not consummated at the last minute, due to the rapid decline in capital available to the prospective buyer in late 2008, but the Plan has been terminated.Back to Citation
5. According to the applicant, Mr. Erickson is a member of the Citizens Bank Southeast Michigan Advisory Board, an entity that has no management responsibility or authority and cannot bind Citizens Republic nor any of its affiliates; thus, the board had no role in the subject sale of ARS by the Plan to Citizens Republic. The board's primary function is in the area of public relations—ensuring community involvement in determining important goals and strategies for the bank to benefit the community, identifying area charitable organizations in need of support, and suggesting ways in which the bank can effectively support the local economy. The board is comprised of various community leaders and bank customers, such as Mr. Erickson. Each member of the board receives a stipend of $550 per meeting attended; there are six or fewer meetings per year.Back to Citation
6. The Department notes that the general standards of fiduciary conduct set forth in the Act also apply to the subject transaction described herein. In this regard, section 404 duties respecting a plan solely in the interest of the plan's participants and beneficiaries and in a prudent manner. Accordingly, the Plan fiduciary must act prudently with respect to, among other things: (1) the decision to sell an ARS, following disclosure by the Trustee of all of the relevant information; and (2) the negotiation of the terms of such sale, including the pricing. The Department further emphasizes that the prudence rule described in section 404 requires that fiduciaries conduct an objective and thorough decision making process that considers all of the relevant information prior to entering into financial transactions involving employee benefit plan assets to ensure that all risks associated with such transactions are understood.Back to Citation
7. The Department expresses no opinion herein as to whether the percentage of Plan assets invested in the subject ARS met the diversification requirement of Part 4 in Title I of the Act.Back to Citation
8. With respect to the ARS issued by the New Hampshire Higher Education Loan Corp, the applicant represents that the 0.000% coupon rate indicated in the chart was the result of earlier interest coupon overpayments by the issuer that had been made in error. In total, the Plan had already received a greater amount of interest than the issuer was responsible to pay under the terms of the security's official statement.Back to Citation
9. According to the applicant, due to the failure of the primary market, a secondary market arose; information obtained from secondary market activity, as well as third party valuations, indicates that these particular ARS issues have traded at discounts averaging between 72.0% and 84.5% of par.Back to Citation
[FR Doc. 2010-7892 Filed 4-7-10; 8:45 am]
BILLING CODE 4510-29-P