Prohibited Transaction Exemption 2005-01; [Exemption Application No. D-11211] et al.; Grant of Individual Exemptions; J.C.O., Inc. Retirement Plan and Trust (the Plan), 5701-5705 [05-2078]
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Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Notices
independent fiduciary for each ERISA
pension plan client of DBTCA.
General Information
The attention of interested persons is
directed to the following:
(1) The fact that a transaction is the
subject of an exemption granted under
section 408(a) of the Act and/or
4975(c)(2) of the Internal Revenue Code
of 1986 (the Code) does not relieve a
fiduciary or other party in interest with
respect to a plan to which the
exemption is applicable from certain
other provisions of the Act and/or the
Code. These provisions include any
prohibited transaction provisions to
which the exemption does not apply
and the general fiduciary provisions of
section 404 of the Act which, among
other things, requires a fiduciary to
discharge his or her duties respecting
the plan solely in the interests 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) The proposed exemption, if
granted, will be supplemental to, and
not in derogation of, any other
provisions of the Act and/or 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;
(3) The availability of this exemption,
if granted, is subject to the express
condition that the material facts and
representations contained in the
application are true and complete and
accurately describe all material terms of
the transaction which is the subject of
this exemption. In the case of
continuing transactions, if any of the
material facts or representations
described in the application change, the
exemption will cease to apply as of the
date of such change. In the event of any
such change, an application for a new
exemption must be made to the
Department; and
(4) Before an exemption may be
granted under section 408(a) of ERISA,
the Department must find that the
exemption is administratively feasible,
in the interests of the plan and of its
beneficiaries and protective of the rights
or participants and beneficiaries of the
plan.
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Proposed Exemption
Based on the facts set forth in the
application, and 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, August 10, 1990), the
Department proposes to modify PTE 99–
29 as set forth below:
Section I is amended to read as
follows: ‘‘Bankers Trust Company (now
known as DBTCA) shall not be
precluded from functioning as a
‘‘qualified professional asset manager’’
pursuant to Prohibited Transaction
Exemption 84–14 (49 FR 9494, March
13, 1994) (PTE 84–14) for the period
beginning on the date of sentencing
with respect to the charges to which
Bankers Trust Company pled guilty on
March 11, 1999 and ending July 27,
2009, solely because of a failure to
satisfy section I(g) of PTE 84–14 as a
result of the conviction of Bankers Trust
Company for felonies described in the
March 11, 1999 felony information (the
Information) entered in the U.S. District
Court for the Southern District of New
York, provided that:’’
Section I(c) is amended to read as
follows: ‘‘The custody operations that
were part of Bankers Trust Company at
the time of the March 11, 1999
information, and which have
subsequently been reorganized as part of
Global Institutional Services (GIS), are
subject to an annual examination of its
abandoned property and escheatment
policies, procedures and practices by an
independent public accounting firm.
The examination required by this
condition shall determine whether the
written procedures adopted by Bankers
Trust Company are properly designed to
assure compliance with the
requirements of ERISA. The annual
examination shall specifically require a
determination by the auditor as to
whether the Bank has developed and
adopted internal policies and
procedures that achieve appropriate
control objectives and shall include a
test of a representative sample of
transactions, fifty percent of which must
involve ERISA covered plans, to
determine operational compliance with
such policies and procedures. The
auditor shall issue a written report
describing the steps performed by the
auditor during the course of its
examination. The report shall include
the auditor’s specific findings and
recommendations. This requirement
shall continue to be applicable to the
custody operations that were part of
Bankers Trust Company as of March 11,
1999, notwithstanding any subsequent
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5701
reorganization of the custody operation
function during the term of the
exemption. Such audit requirements
shall be applicable for any year or part
thereof in which DBTCA held ERISA
covered plan assets in custody.’’
Section III(a) is amended to read as
follows: ‘‘For purposes of this
exemption, the term ‘‘Bankers Trust
Company’’ includes Bankers Trust
Company, and any entity that was
affiliated with Bankers Trust Company
prior to the date of the acquisition of
Bankers Trust Corporation by Deutsche
Bank AG, other than BT Alex. Brown
Incorporated and its subsidiaries. This
term also refers to Deutsche Bank Trust
Company Americas (DBTCA).’’
For a more complete statement of
facts and representations supporting the
Department’s decision to grant PTE 99–
29, refer to the proposed exemption (64
FR 30360, June 7, 1999) and the grant
notice (64 FR 40623, July 27, 1999).
Signed at Washington, DC, this 31st day of
January 2005.
Ivan L. Strasfeld,
Director, Office of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 05–2077 Filed 2–2–05; 8:45 am]
BILLING CODE 4510–29–P
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
Prohibited Transaction Exemption
2005–01; [Exemption Application No.
D–11211] et al.; Grant of Individual
Exemptions; J.C.O., Inc. Retirement
Plan and Trust (the Plan)
Employee Benefits Security
Administration, Labor.
ACTION: Grant of individual exemptions.
AGENCY:
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).
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, DC. The
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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.
J.C.O., Inc. Retirement Plan and Trust
(the Plan)
Located in Boulder, Colorado
[Prohibited Transaction Exemption
2005–01; Exemption Application No. D–
11211]
Exemption
The restrictions of sections 406(a),
406(b)(1) and 406(b)(2) of the Act and
the sanctions resulting from the
application of section 4975 of the Code,1
by reason of section 4975(c)(1)(A)
through (E) of the Code, shall not apply
to (1) the cash sale (the Sale) of certain
improved real property (the Property) to
the Plan by Cynthia G. Vogels, a party
in interest with respect to the Plan and
a 50% shareholder of J.C.O., Inc. (JCO),
the Plan sponsor; and (2) the
1 For
purposes of this exemption, references to
provisions of Title I of the Act, unless otherwise
specified, refer also to corresponding provisions of
the Code.
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simultaneous lease (the New Lease) of
the Property by the Plan to JCO.
This exemption is subject to the
following conditions:
(a) The terms and conditions of the
transactions are not less favorable to the
Plan than those obtainable in an arm’s
length transaction between unrelated
parties.
(b) The Sale is a one-time transaction
for cash.
(c) The acquisition price that is paid
by the Plan for the Property is not more
than the fair market value of the
Property as determined by a qualified,
independent appraiser on the date of the
Sale.
(d) The value of the Property that is
acquired by the Plan does not exceed
20% of the Plan’s assets at the time of
the Sale nor throughout the duration of
the New Lease.
(e) The Plan does not pay any real
estate fees, commissions or other
expenses with respect to the
transactions.
(f) Mrs. Vogels indemnifies and holds
the Plan harmless from any liability
arising from the Sale, including but not
limited to hazardous materials found on
the Property, violation of zoning or land
use regulations or restrictions, and
violations of federal, state or local
environmental regulations or laws.
(g) The New Lease is a triple-net lease
under which the JCO, as lessee, pays, in
addition to the base rent, all expenses
incurred by the Property, including all
taxes and assessments, insurance,
maintenance, utilities and any other
expenses.
(h) The annual rental amount under
the New Lease is the higher of $40,800
or the fair market rental value of the
Property, as determined by a qualified,
independent appraiser on the date the
New Lease is entered into by the parties.
(i) The rent payable under the New
Lease is adjusted every year after the
first 12 months of the New Lease by an
amount equal to the percentage increase
in the Consumer Price Index for All
Urban Consumers for the Denver
Metropolitan Area. In addition, the
Property is reappraised every five years
by a qualified, independent appraiser
selected by the Plan’s independent
fiduciary and the independent fiduciary
then adjusts the rental for the Property
based on the appraisal. However, in no
event is the rent adjusted below the
rental amount paid for the preceding
year.
(j) The Plan is represented at all times
and for all purposes with respect to the
Sale and the New Lease by a qualified,
independent fiduciary.
(k) The Plan’s independent fiduciary
has negotiated, reviewed, and approved
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the terms and conditions of the Sale and
the New Lease and has determined that
the transactions are appropriate for the
Plan and in the best interests of the
Plan’s participants and beneficiaries.
(l) The Plan’s independent fiduciary
monitors and enforces compliance with
the terms and conditions of the New
Lease and this exemption throughout
the duration of the New Lease.
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 published on
November 30, 2004 at 69 FR 69621.
FOR FURTHER INFORMATION CONTACT: Ms.
Anna M.N. Mpras of the Department,
telephone (202) 693–8565. (This is not
a toll-free number.)
Roy A. Herberger Defined Benefit
Pension Plan (the Plan)
Located in Phoenix, Arizona
[Prohibited Transaction Exemption No.
2005–02; Application No. D–11259]
Exemption
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 three past in-kind contributions
(the Contribution(s)) to the Plan of
common stock (the Stock) of Pinnacle
West Capital Corporation (PNW) by Roy
A. Herberger, Jr. (the Applicant), a
disqualified party with respect to the
Plan,2 provided that the following
conditions are met:
(a) The transactions involved publicly
traded securities, the fair market values
of which were based upon published
prices at the time of each Contribution;
(b) The cumulative value of the
Contributions represented no more than
18% of the total assets of the Plan;
(c) The Plan has not paid any
commissions, costs or other expenses in
connection with the Contributions;
(d) The Applicant, who is the only
person affected by the transactions,
believes that the transactions were in
the best interest of the Plan;
(e) The Applicant made the
Contributions based on erroneous
advice from his tax adviser; and
(f) The terms of the transactions
between the Plan and the Applicant are
no less favorable to the Plan than terms
negotiated at arm’s length under similar
circumstances between unrelated third
parties.
2 Since the Applicant is a sole proprietor and the
only participant in the Plan, there is no jurisdiction
under Title I of the Act pursuant to 29 CFR 2510.3–
3(b). However, there is jurisdiction under Title II of
the Act pursuant to section 4975 of the Code.
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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 published on
November 8, 2004 at 69 FR 64787.
FOR FURTHER INFORMATION CONTACT:
Khalif Ford of the Department,
telephone (202) 693–8540 (this is not a
toll-free number).
The National Electrical Benefit Fund
(the Plan)
Located in Rockville, MD
[Prohibited Transaction Exemption
2005–03; Exemption Application No. D–
11165]
Exemption
The restrictions of section
406(a)(1)(A) through (D) 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 April 1, 2003, to (1) the
collateral assignment (the Collateral
Assignment) by the Plan, of its rights
and interests in the Stonegate at
Bellefaire, LLC (the LLC), a real estate
operating company, to M&T Real Estate,
Inc. (the Senior Lender), a party in
interest with respect to the Plan; and (2)
the guaranty (the Guaranty) by the Plan,
executed in favor of the Senior Lender,
requiring the Plan to reimburse the
Senior Lender for any losses the Senior
Lender may incur as a result of certain
affirmative ‘‘bad acts’’ that are
committed by the Plan as a member (the
Member) of the LLC.
This exemption is subject to the
following conditions:
(a) The Plan’s execution of the
Collateral Assignment and the Guaranty
was on terms no less favorable to the
Plan than those which the Plan could
obtain in an arm’s length transaction
with an unrelated party;
(b) The decisions on behalf of the Plan
to invest in the LLC and consent to the
terms of the Collateral Assignment and
Guaranty in favor of the Senior Lender
were made by fiduciaries which were
independent of and unaffiliated with
the Senior Lender;
(c) At the time of the transactions, the
Plan had total assets that were in excess
of $5 billion, and not more than 1% of
the Plan’s total assets was invested or
will be invested in the LLC.
(d) The other Member of the LLC also
executed Guaranties in favor of the
Senior Lender;
(e) As a Member of the LLC, the Plan’s
total potential liability with respect to
its investment in the real estate project
(the Project), which is being developed
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and will be owned by the LLC, is
limited to:
(1) Capital contributions made by the
Plan to the LLC.
(2) Amounts funded by the Plan to the
LLC.
(3) Rights and interests given to the
Senior Lender under the Collateral
Assignment.
(f) In the event the Plan engages in
any of the specified ‘‘bad acts’’ that are
described in the Guaranty, the Plan’s
total potential liability does not exceed
the greater of $32.98 million or the
outstanding principal amount of the
loan serving as the primary funding
vehicle for the Project.
EFFECTIVE DATES: This exemption will be
effective as of April 1, 2003.
For a complete statement of the facts
and representations supporting the
Department’s decision to grant this
exemption refer to the notice of
proposed exemption published on
November 8, 2004 at 69 FR 64784.
FOR FURTHER INFORMATION CONTACT: Mr.
Arjumand A. Ansari of the Department,
telephone (202) 693–8566. (This is not
a toll-free number.)
Wheeling-Pittsburgh Corporation and
Wheeling Pittsburgh Steel Corporation
Located in Wheeling, WV
[Prohibited Transaction Exemption
2005–04; Application No. L–11200]
Exemption
The restrictions of sections
406(a)(1)(E), 407(a)(2), 406(b)(1), and
406(b)(2) of the Act, shall not apply to:
(1) The initial acquisition of 4,000,000
shares on August 1, 2003 (Initial Shares)
of publicly traded Employer Stock
through the in-kind contribution of such
Initial Shares, and subsequent in-kind
acquisitions of Employer Stock, by the
Wheeling-Pittsburgh Steel Corporation
Retiree Benefits Plan (the Plan) for the
purpose of pre-funding welfare benefits
provided by the Plan; and (2) the
holding by the Plan of Employer Stock
acquired pursuant to the contributions,
provided that the following conditions
are satisfied:
(a) An Independent Fiduciary will
represent the Plan and its participants
and beneficiaries for all purposes
related to such contributions for the
duration of the Plan’s holding of such
Employer Stock and will have sole
responsibility relating to the acquisition,
holding, disposition, ongoing
management, and voting of Employer
Stock. The Independent Fiduciary will
authorize the Trustee to accept or
dispose of Employer Stock only after
such Independent Fiduciary determines,
at the time of each transaction, that such
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transaction is feasible, in the interest of
the Plan, and protective of the
participants and beneficiaries of such
Plan, subject to the terms of the
Registration Rights Agreement, Stock
Transfer Restriction and Voting
Agreement;
(b) The appropriate fair market value
of any Employer Stock contributed by
WPC and WPSC to the Trust will be
established by the Independent
Fiduciary;
(c) The Plan or Trust incurs no fees,
costs or other charges (other than those
described in the Engagement Letter
Agreement and the Trust Agreement) as
a result of any of the transactions
described herein;
(d) The terms of any transactions
between the Plan and the Companies
will be no less favorable to the Plan than
terms negotiated at arm’s length under
similar circumstances between
unrelated third parties;
(e) Employer Stock contributed inkind to the Plan will be held in a
separate account under a Trust which is
qualified under section 501(c)(9) of the
Code;
(f) The Committee maintains, for a
period of six years from the date of the
initial acquisition of shares by the Plan
and from the date of any subsequent
contributions of Employer Stock, any
and all records necessary to enable the
persons described in paragraph (g)
below to determine whether the
conditions of this exemption have been
met, except that: (1) If the records
necessary to enable the persons
described in paragraph (g) to determine
whether the conditions of the
exemption have been met are lost or
destroyed, due to circumstances beyond
the control of the plan fiduciary, then
no prohibited transaction will be
considered to have occurred solely on
the basis of unavailability of those
records; and (2) no party in interest
other than the Committee shall be
subject to the civil penalty that may be
assessed under section 502(i) of the Act
if the records are not maintained, or are
not available for examination as
required by paragraph (g) below;
(g)(1) Except as provided below in
paragraph (g)(2) and notwithstanding
any provisions of subsections 504(a)(2)
and (b) of the Act, the records referred
to in paragraph (f) above shall be
unconditionally available at their
customary location for examination
during normal business hours by:
(A) Any duly authorized employee or
representative of the Department;
(B) The USWA or any duly authorized
representative of the USWA; and
(C) Any participant or beneficiary of
the Plan, or any duly authorized
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representative of such participant or
beneficiary.
(2) None of the persons described
above in subparagraphs (B) and (C) of
this paragraph (g) shall be authorized to
examine the trade secrets of WPC or
WPSC or commercial or financial
information that is privileged or
confidential.
Definitions
(a) For purposes of this exemption,
the term ‘‘Independent Fiduciary’’
means a fiduciary with respect to the
Plan who is: (1) Independent of and
unrelated to WPC, WPSC or its affiliates;
and (2) appointed to act on behalf of the
Plan with respect to the acquisition,
holding, management, and disposition
of the shares. In this regard, the
fiduciary will not be deemed to be
independent of and unrelated to WPC
and WPSC if: (1) Such fiduciary directly
or indirectly controls, is controlled by or
is under common control with WPC or
WPSC; (2) such fiduciary directly or
indirectly receives any compensation or
other consideration in connection with
any transaction described in this
exemption; except that the Independent
Fiduciary may receive compensation for
acting as an Independent Fiduciary from
WPC in connection with the
transactions contemplated herein if the
amount or payment of such
compensation is not contingent upon or
in any way affected by the Independent
Fiduciary’s ultimate decision, and (3)
the annual gross revenue received by
the Independent Fiduciary, during any
year of its engagement, from WPC
exceeds one percent (1%) of the
Independent Fiduciary’s annual gross
revenue from all sources (for federal
income tax purposes) for its prior tax
year;
(c) The term ‘‘Initial Shares’’ means
the 4,000,000 shares of common stock of
WPC that were contributed to the Trust
on August 1, 2003.
(d) The term ‘‘Participant’’ shall mean
former employees of WPC, WPSC and
its subsidiaries who separated from
service from USWA-represented
bargaining units and who are designated
as beneficiaries of the newly-created
WPSC Retiree Benefit Plan, as well as
any dependent, surviving spouse or
other beneficiary of a bargaining unit
retiree who is entitled to receive
benefits under the Plan.
(e) The term ‘‘Plan’’ refers to the
Wheeling-Pittsburgh Steel Corporation
Retiree Benefits Plan. The Plan is an
employee welfare benefit plan
established and maintained by the
Committee.
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(f) The term ‘‘Shares’’ or ‘‘Employer
Stock’’ means shares of publicly traded
common stock of WPC.
(g) The term ‘‘Trust’’ means a Code
section 501(c)(9) trust, which is
established for the purpose of funding
life, sickness, accident, and other
welfare benefits for the participants and
beneficiaries of the Plan.
(h) ‘‘USWA’’ shall mean the United
Steelworkers of America, AFL–CIO–
CLC.
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)
published on November 30, 2004, at 69
FR 69623.
Written Comments: The applicant
(i.e., WPSC) submitted written
comments with respect to the notice of
the proposed exemption (the Proposal).
The comments are summarized below.
The applicant requests that the third
transaction described in the first
paragraph in the proposed Exemption,
which refers to ‘‘the extension of credit
between Wheeling Pittsburgh
Corporation (WPC), WheelingPittsburgh Steel Corporation (WPSC)
and the Plan, which will occur in
conjunction with WPC’s and WPSC’s
contributions of Employer Stock and
cash for the benefit of the retirees,’’ be
omitted due to the absence of an
extension of credit in connection with
the contributions of Employer Stock.
The Department acknowledges the
applicant’s comment and has revised
the grant accordingly.
The applicant states that information
concerning the Independent Fiduciary
managing Employer Stock that is
contributed to the Plan, subject to the
provisions of the Independent Fiduciary
Engagement Agreement, the Stock
Agreement and the Registration Rights
Agreement was not included in Item 6
of the Summary of Facts and
Representations contained in the
proposal (the Summary) in describing
the responsibilities of the Independent
Fiduciary. The Department
acknowledges the applicant’s
clarifications to the information
contained in the Summary.
In addition, the applicant states that
the fifth paragraph in Item 6 of the
Summary indicates that ‘‘the
Independent Fiduciary sold 42,000
shares of Employer Stock from March
25, 2004 to April 20, 2004’’ and should
have indicated that the Independent
Fiduciary actually sold 42,400 shares
during this period. The Department
acknowledges the applicant’s
clarifications to the information
contained in the Summary.
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The Department received four written
inquiries and close to one hundred
telephone calls concerning the Proposal
from interested persons. All of the
telephone calls and written inquiries
requested additional information
regarding the transactions and the
possible affect on benefits payable to the
appropriate Plan participants. The
Department responded to each inquiry
by telephone and attempted to address
the issues that were raised. None of the
additional comments made to the
Department offered specific suggestions
or reasons for changes to the proposal.
The Department received no other
comments. Accordingly, the Department
has determined to grant the exemption,
as modified herein.
FOR FURTHER INFORMATION CONTACT:
Brian J. Buyniski of the Department,
telephone (202) 693–8545. (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
(3) The availability of this exemption
is subject to the express condition that
the material facts and representations
contained in the application accurately
describes all material terms of the
transaction which is the subject of the
exemption.
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Signed at Washington, DC, this 31st day of
January, 2005.
Ivan Strasfeld,
Director of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 05–2078 Filed 2–2–05; 8:45 am]
BILLING CODE 4510–29–P
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
Exemption Application No. L–11245;
The North Texas Electrical Joint
Apprenticeship and Training Trust
Fund (the Plan)
Employee Benefits Security
Administration, Department of Labor
(the Department).
ACTION: Notice of proposed exemption.
AGENCY:
On November 8, 2004, the Department
published in the Federal Register (69
FR 64788) a notice of a proposed
exemption (the Notice) which states
that, [i]f the exemption is granted, the
restrictions of section 406(a) of the Act
shall not apply to the sale (the Sale(s))
of (1) a 1.112 acres of land (Parcel 1) to
the North Texas Chapter, National
Electrical Contractors Association, a
party in interest to the Plan; and (2)
5.383 acres of land (Parcel 2) to Local
Union #20, International Brotherhood of
Electrical Workers, a party in interest to
the Plan, conditioned upon the
satisfaction of the following
requirements:
(a) The Sales are one-time
transactions for cash;
(b) The Plan does not pay any
commissions, costs or other expenses in
connection with the Sale of Parcel 1 and
Parcel 2 (collectively the Parcels); and
(c) The Plan will receive an amount
equal to the greater of: (i) $145,000 or
the current fair market value of Parcel
1 as established by an independent,
qualified, appraiser and updated at the
time of the Sale; and (ii) $655,000; or
the current fair market value of Parcel
2 as established by an independent,
qualified, appraiser and updated at the
time of the Sale; and
(d) The terms of the Sales will be no
less favorable to the Plan than terms it
would have received under similar
circumstances in an arm’s length
negotiations with an unrelated party.
On page 64788 of the Notice, the
operative language provides relief from
the restrictions of section 406(a) of the
Act. The Notice should have provided
relief from the restrictions of sections
406(a), 406(b)(1) and 406(b)(2) of the
Act. Accordingly, the Department
VerDate jul<14>2003
19:18 Feb 02, 2005
Jkt 205001
hereby corrects the notice of proposed
exemption as set forth below. The
proposed exemption is amended to
read:
If the exemption is granted, the
restrictions of sections 406(a), 406(b)(1)
and (2) of the Act shall not apply to the
sale (the Sale(s)) of (1) a 1.112 acre of
land (Parcel 1) to the North Texas
Chapter, National Electrical Contractors
Association (NECA), a party in interest
to the Plan; and (2) 5.383 acres of land
to Local Union #20, International
Brotherhood of Electrical Workers
(IBEW), a party in interest to the Plan.
FOR FURTHER INFORMATION CONTACT: Mr.
Khalif Ford of the Department at (202)
693–8540. (This is not a toll-free
number.)
Signed at Washington, DC, this 31st day of
January, 2005.
Ivan L. Strasfeld,
Director of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 05–2076 Filed 2–2–05; 8:45 am]
5705
Alexandria, VA 22314–3428, or at (703)
518–6444.
SUPPLEMENTARY INFORMATION: Proposal
for the following collection of
information:
Title: Central Liquidity Facility
Repayment Agreement, Regular
Member.
OMB Number: 3133–0061.
Form Number: CLF–8703.
Type of Review: Extension of a
currently approved collection.
Description: The form is used by CLF
regular members borrowing from the
CLF.
Respondents: Credit unions which are
CLF regular members who borrow from
the CLF.
Estimated No. of Respondents/Record
keepers: 40.
Estimated Burden Hours Per
Response: 2.875 hours.
Frequency of Response: Other. As the
need for borrowing arises.
Estimated Total Annual Burden
Hours: 115 hours.
Estimated Total Annual Cost: 0.
By the National Credit Union
Administration Board on January 27, 2005.
Mary Rupp,
Secretary of the Board.
[FR Doc. 05–2007 Filed 2–2–05; 8:45 am]
BILLING CODE 4510–29–P
NATIONAL CREDIT UNION
ADMINISTRATION
BILLING CODE 7535–01–P
Agency Information Collection
Activities: Submission to OMB for
Extension of a Currently Approved
Collection; Comment Request
National Credit Union
Administration (NCUA).
ACTION: Request for comment.
AGENCY:
SUMMARY: The NCUA is submitting the
following information collection to the
Office of Management and Budget
(OMB) for review and clearance under
the Paperwork Reduction Act of 1995
(Pub. L. 104–13, 44 U.S.C. Chapter 35).
This information collection is published
to obtain comments from the public.
DATES: Comments will be accepted until
March 7, 2005.
ADDRESSES: Interested parties are
invited to submit written comments to
the NCUA Clearance Officer listed
below:
Clearance Officer: Mr. Neil
McNamara, National Credit Union
Administration, 1775 Duke Street,
Alexandria, VA 22314–3428, Fax No.
703–518–6669, E-mail:
mcnamara@ncua.gov.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or a
copy of the information collection
request, should be directed to Tracy
Sumpter at the National Credit Union
Administration, 1775 Duke Street,
PO 00000
Frm 00105
Fmt 4703
Sfmt 4703
NATIONAL CREDIT UNION
ADMINISTRATION
Agency Information Collection
Activities: Submission to OMB for
Extension of a Currently Approved
Collection; Comment Request
National Credit Union
Administration (NCUA).
ACTION: Request for comment.
AGENCY:
SUMMARY: The NCUA is submitting the
following information collection to the
Office of Management and Budget
(OMB) for review and clearance under
the Paperwork Reduction Act of 1995
(Pub. L. 104–13, 44 U.S.C. Chapter 35).
This information collection is published
to obtain comments from the public.
DATES: Comments will be accepted until
March 7, 2005.
ADDRESSES: Interested parties are
invited to submit written comments to
the NCUA Clearance Officer listed
below:
Clearance Officer: Mr. Neil
McNamara, National Credit Union
Administration, 1775 Duke Street,
Alexandria, VA 22314–3428, Fax No.
703–518–6669, E-mail:
mcnamara@ncua.gov.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or a
E:\FR\FM\03FEN1.SGM
03FEN1
]]>Agencies
[Federal Register Volume 70, Number 22 (Thursday, February 3, 2005)]
[Notices]
[Pages 5701-5705]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2078]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employee Benefits Security Administration
Prohibited Transaction Exemption 2005-01; [Exemption Application
No. D-11211] et al.; Grant of Individual Exemptions; J.C.O., Inc.
Retirement Plan and Trust (the Plan)
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Grant of individual exemptions.
-----------------------------------------------------------------------
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).
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, DC. The
[[Page 5702]]
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.
J.C.O., Inc. Retirement Plan and Trust (the Plan)
Located in Boulder, Colorado
[Prohibited Transaction Exemption 2005-01; Exemption Application No. D-
11211]
Exemption
The restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the
Act and the sanctions resulting from the application of section 4975 of
the Code,\1\ by reason of section 4975(c)(1)(A) through (E) of the
Code, shall not apply to (1) the cash sale (the Sale) of certain
improved real property (the Property) to the Plan by Cynthia G. Vogels,
a party in interest with respect to the Plan and a 50% shareholder of
J.C.O., Inc. (JCO), the Plan sponsor; and (2) the simultaneous lease
(the New Lease) of the Property by the Plan to JCO.
---------------------------------------------------------------------------
\1\ For purposes of this exemption, references to provisions of
Title I of the Act, unless otherwise specified, refer also to
corresponding provisions of the Code.
---------------------------------------------------------------------------
This exemption is subject to the following conditions:
(a) The terms and conditions of the transactions are not less
favorable to the Plan than those obtainable in an arm's length
transaction between unrelated parties.
(b) The Sale is a one-time transaction for cash.
(c) The acquisition price that is paid by the Plan for the Property
is not more than the fair market value of the Property as determined by
a qualified, independent appraiser on the date of the Sale.
(d) The value of the Property that is acquired by the Plan does not
exceed 20% of the Plan's assets at the time of the Sale nor throughout
the duration of the New Lease.
(e) The Plan does not pay any real estate fees, commissions or
other expenses with respect to the transactions.
(f) Mrs. Vogels indemnifies and holds the Plan harmless from any
liability arising from the Sale, including but not limited to hazardous
materials found on the Property, violation of zoning or land use
regulations or restrictions, and violations of federal, state or local
environmental regulations or laws.
(g) The New Lease is a triple-net lease under which the JCO, as
lessee, pays, in addition to the base rent, all expenses incurred by
the Property, including all taxes and assessments, insurance,
maintenance, utilities and any other expenses.
(h) The annual rental amount under the New Lease is the higher of
$40,800 or the fair market rental value of the Property, as determined
by a qualified, independent appraiser on the date the New Lease is
entered into by the parties.
(i) The rent payable under the New Lease is adjusted every year
after the first 12 months of the New Lease by an amount equal to the
percentage increase in the Consumer Price Index for All Urban Consumers
for the Denver Metropolitan Area. In addition, the Property is
reappraised every five years by a qualified, independent appraiser
selected by the Plan's independent fiduciary and the independent
fiduciary then adjusts the rental for the Property based on the
appraisal. However, in no event is the rent adjusted below the rental
amount paid for the preceding year.
(j) The Plan is represented at all times and for all purposes with
respect to the Sale and the New Lease by a qualified, independent
fiduciary.
(k) The Plan's independent fiduciary has negotiated, reviewed, and
approved the terms and conditions of the Sale and the New Lease and has
determined that the transactions are appropriate for the Plan and in
the best interests of the Plan's participants and beneficiaries.
(l) The Plan's independent fiduciary monitors and enforces
compliance with the terms and conditions of the New Lease and this
exemption throughout the duration of the New Lease.
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 published on November 30, 2004 at 69
FR 69621.
FOR FURTHER INFORMATION CONTACT: Ms. Anna M.N. Mpras of the Department,
telephone (202) 693-8565. (This is not a toll-free number.)
Roy A. Herberger Defined Benefit Pension Plan (the Plan)
Located in Phoenix, Arizona
[Prohibited Transaction Exemption No. 2005-02; Application No. D-11259]
Exemption
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 three past in-kind contributions (the Contribution(s))
to the Plan of common stock (the Stock) of Pinnacle West Capital
Corporation (PNW) by Roy A. Herberger, Jr. (the Applicant), a
disqualified party with respect to the Plan,\2\ provided that the
following conditions are met:
---------------------------------------------------------------------------
\2\ Since the Applicant is a sole proprietor and the only
participant in the Plan, there is no jurisdiction under Title I of
the Act pursuant to 29 CFR 2510.3-3(b). However, there is
jurisdiction under Title II of the Act pursuant to section 4975 of
the Code.
---------------------------------------------------------------------------
(a) The transactions involved publicly traded securities, the fair
market values of which were based upon published prices at the time of
each Contribution;
(b) The cumulative value of the Contributions represented no more
than 18% of the total assets of the Plan;
(c) The Plan has not paid any commissions, costs or other expenses
in connection with the Contributions;
(d) The Applicant, who is the only person affected by the
transactions, believes that the transactions were in the best interest
of the Plan;
(e) The Applicant made the Contributions based on erroneous advice
from his tax adviser; and
(f) The terms of the transactions between the Plan and the
Applicant are no less favorable to the Plan than terms negotiated at
arm's length under similar circumstances between unrelated third
parties.
[[Page 5703]]
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 published on November 8, 2004 at 69 FR
64787.
FOR FURTHER INFORMATION CONTACT: Khalif Ford of the Department,
telephone (202) 693-8540 (this is not a toll-free number).
The National Electrical Benefit Fund (the Plan)
Located in Rockville, MD
[Prohibited Transaction Exemption 2005-03; Exemption Application No. D-
11165]
Exemption
The restrictions of section 406(a)(1)(A) through (D) 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 April 1, 2003, to (1) the collateral assignment
(the Collateral Assignment) by the Plan, of its rights and interests in
the Stonegate at Bellefaire, LLC (the LLC), a real estate operating
company, to M&T Real Estate, Inc. (the Senior Lender), a party in
interest with respect to the Plan; and (2) the guaranty (the Guaranty)
by the Plan, executed in favor of the Senior Lender, requiring the Plan
to reimburse the Senior Lender for any losses the Senior Lender may
incur as a result of certain affirmative ``bad acts'' that are
committed by the Plan as a member (the Member) of the LLC.
This exemption is subject to the following conditions:
(a) The Plan's execution of the Collateral Assignment and the
Guaranty was on terms no less favorable to the Plan than those which
the Plan could obtain in an arm's length transaction with an unrelated
party;
(b) The decisions on behalf of the Plan to invest in the LLC and
consent to the terms of the Collateral Assignment and Guaranty in favor
of the Senior Lender were made by fiduciaries which were independent of
and unaffiliated with the Senior Lender;
(c) At the time of the transactions, the Plan had total assets that
were in excess of $5 billion, and not more than 1% of the Plan's total
assets was invested or will be invested in the LLC.
(d) The other Member of the LLC also executed Guaranties in favor
of the Senior Lender;
(e) As a Member of the LLC, the Plan's total potential liability
with respect to its investment in the real estate project (the
Project), which is being developed and will be owned by the LLC, is
limited to:
(1) Capital contributions made by the Plan to the LLC.
(2) Amounts funded by the Plan to the LLC.
(3) Rights and interests given to the Senior Lender under the
Collateral Assignment.
(f) In the event the Plan engages in any of the specified ``bad
acts'' that are described in the Guaranty, the Plan's total potential
liability does not exceed the greater of $32.98 million or the
outstanding principal amount of the loan serving as the primary funding
vehicle for the Project.
EFFECTIVE DATES: This exemption will be effective as of April 1, 2003.
For a complete statement of the facts and representations
supporting the Department's decision to grant this exemption refer to
the notice of proposed exemption published on November 8, 2004 at 69 FR
64784.
FOR FURTHER INFORMATION CONTACT: Mr. Arjumand A. Ansari of the
Department, telephone (202) 693-8566. (This is not a toll-free number.)
Wheeling-Pittsburgh Corporation and Wheeling Pittsburgh Steel
Corporation
Located in Wheeling, WV
[Prohibited Transaction Exemption 2005-04; Application No. L-11200]
Exemption
The restrictions of sections 406(a)(1)(E), 407(a)(2), 406(b)(1),
and 406(b)(2) of the Act, shall not apply to: (1) The initial
acquisition of 4,000,000 shares on August 1, 2003 (Initial Shares) of
publicly traded Employer Stock through the in-kind contribution of such
Initial Shares, and subsequent in-kind acquisitions of Employer Stock,
by the Wheeling-Pittsburgh Steel Corporation Retiree Benefits Plan (the
Plan) for the purpose of pre-funding welfare benefits provided by the
Plan; and (2) the holding by the Plan of Employer Stock acquired
pursuant to the contributions, provided that the following conditions
are satisfied:
(a) An Independent Fiduciary will represent the Plan and its
participants and beneficiaries for all purposes related to such
contributions for the duration of the Plan's holding of such Employer
Stock and will have sole responsibility relating to the acquisition,
holding, disposition, ongoing management, and voting of Employer Stock.
The Independent Fiduciary will authorize the Trustee to accept or
dispose of Employer Stock only after such Independent Fiduciary
determines, at the time of each transaction, that such transaction is
feasible, in the interest of the Plan, and protective of the
participants and beneficiaries of such Plan, subject to the terms of
the Registration Rights Agreement, Stock Transfer Restriction and
Voting Agreement;
(b) The appropriate fair market value of any Employer Stock
contributed by WPC and WPSC to the Trust will be established by the
Independent Fiduciary;
(c) The Plan or Trust incurs no fees, costs or other charges (other
than those described in the Engagement Letter Agreement and the Trust
Agreement) as a result of any of the transactions described herein;
(d) The terms of any transactions between the Plan and the
Companies will be no less favorable to the Plan than terms negotiated
at arm's length under similar circumstances between unrelated third
parties;
(e) Employer Stock contributed in-kind to the Plan will be held in
a separate account under a Trust which is qualified under section
501(c)(9) of the Code;
(f) The Committee maintains, for a period of six years from the
date of the initial acquisition of shares by the Plan and from the date
of any subsequent contributions of Employer Stock, any and all records
necessary to enable the persons described in paragraph (g) below to
determine whether the conditions of this exemption have been met,
except that: (1) If the records necessary to enable the persons
described in paragraph (g) to determine whether the conditions of the
exemption have been met are lost or destroyed, due to circumstances
beyond the control of the plan fiduciary, then no prohibited
transaction will be considered to have occurred solely on the basis of
unavailability of those records; and (2) no party in interest other
than the Committee shall be subject to the civil penalty that may be
assessed under section 502(i) of the Act if the records are not
maintained, or are not available for examination as required by
paragraph (g) below;
(g)(1) Except as provided below in paragraph (g)(2) and
notwithstanding any provisions of subsections 504(a)(2) and (b) of the
Act, the records referred to in paragraph (f) above shall be
unconditionally available at their customary location for examination
during normal business hours by:
(A) Any duly authorized employee or representative of the
Department;
(B) The USWA or any duly authorized representative of the USWA; and
(C) Any participant or beneficiary of the Plan, or any duly
authorized
[[Page 5704]]
representative of such participant or beneficiary.
(2) None of the persons described above in subparagraphs (B) and
(C) of this paragraph (g) shall be authorized to examine the trade
secrets of WPC or WPSC or commercial or financial information that is
privileged or confidential.
Definitions
(a) For purposes of this exemption, the term ``Independent
Fiduciary'' means a fiduciary with respect to the Plan who is: (1)
Independent of and unrelated to WPC, WPSC or its affiliates; and (2)
appointed to act on behalf of the Plan with respect to the acquisition,
holding, management, and disposition of the shares. In this regard, the
fiduciary will not be deemed to be independent of and unrelated to WPC
and WPSC if: (1) Such fiduciary directly or indirectly controls, is
controlled by or is under common control with WPC or WPSC; (2) such
fiduciary directly or indirectly receives any compensation or other
consideration in connection with any transaction described in this
exemption; except that the Independent Fiduciary may receive
compensation for acting as an Independent Fiduciary from WPC in
connection with the transactions contemplated herein if the amount or
payment of such compensation is not contingent upon or in any way
affected by the Independent Fiduciary's ultimate decision, and (3) the
annual gross revenue received by the Independent Fiduciary, during any
year of its engagement, from WPC exceeds one percent (1%) of the
Independent Fiduciary's annual gross revenue from all sources (for
federal income tax purposes) for its prior tax year;
(c) The term ``Initial Shares'' means the 4,000,000 shares of
common stock of WPC that were contributed to the Trust on August 1,
2003.
(d) The term ``Participant'' shall mean former employees of WPC,
WPSC and its subsidiaries who separated from service from USWA-
represented bargaining units and who are designated as beneficiaries of
the newly-created WPSC Retiree Benefit Plan, as well as any dependent,
surviving spouse or other beneficiary of a bargaining unit retiree who
is entitled to receive benefits under the Plan.
(e) The term ``Plan'' refers to the Wheeling-Pittsburgh Steel
Corporation Retiree Benefits Plan. The Plan is an employee welfare
benefit plan established and maintained by the Committee.
(f) The term ``Shares'' or ``Employer Stock'' means shares of
publicly traded common stock of WPC.
(g) The term ``Trust'' means a Code section 501(c)(9) trust, which
is established for the purpose of funding life, sickness, accident, and
other welfare benefits for the participants and beneficiaries of the
Plan.
(h) ``USWA'' shall mean the United Steelworkers of America, AFL-
CIO-CLC.
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) published on November 30,
2004, at 69 FR 69623.
Written Comments: The applicant (i.e., WPSC) submitted written
comments with respect to the notice of the proposed exemption (the
Proposal). The comments are summarized below.
The applicant requests that the third transaction described in the
first paragraph in the proposed Exemption, which refers to ``the
extension of credit between Wheeling Pittsburgh Corporation (WPC),
Wheeling-Pittsburgh Steel Corporation (WPSC) and the Plan, which will
occur in conjunction with WPC's and WPSC's contributions of Employer
Stock and cash for the benefit of the retirees,'' be omitted due to the
absence of an extension of credit in connection with the contributions
of Employer Stock. The Department acknowledges the applicant's comment
and has revised the grant accordingly.
The applicant states that information concerning the Independent
Fiduciary managing Employer Stock that is contributed to the Plan,
subject to the provisions of the Independent Fiduciary Engagement
Agreement, the Stock Agreement and the Registration Rights Agreement
was not included in Item 6 of the Summary of Facts and Representations
contained in the proposal (the Summary) in describing the
responsibilities of the Independent Fiduciary. The Department
acknowledges the applicant's clarifications to the information
contained in the Summary.
In addition, the applicant states that the fifth paragraph in Item
6 of the Summary indicates that ``the Independent Fiduciary sold 42,000
shares of Employer Stock from March 25, 2004 to April 20, 2004'' and
should have indicated that the Independent Fiduciary actually sold
42,400 shares during this period. The Department acknowledges the
applicant's clarifications to the information contained in the Summary.
The Department received four written inquiries and close to one
hundred telephone calls concerning the Proposal from interested
persons. All of the telephone calls and written inquiries requested
additional information regarding the transactions and the possible
affect on benefits payable to the appropriate Plan participants. The
Department responded to each inquiry by telephone and attempted to
address the issues that were raised. None of the additional comments
made to the Department offered specific suggestions or reasons for
changes to the proposal.
The Department received no other comments. Accordingly, the
Department has determined to grant the exemption, as modified herein.
FOR FURTHER INFORMATION CONTACT: Brian J. Buyniski of the Department,
telephone (202) 693-8545. (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
(3) The availability of this exemption is subject to the express
condition that the material facts and representations contained in the
application accurately describes all material terms of the transaction
which is the subject of the exemption.
[[Page 5705]]
Signed at Washington, DC, this 31st day of January, 2005.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor.
[FR Doc. 05-2078 Filed 2-2-05; 8:45 am]
BILLING CODE 4510-29-P
