Exemptions From Certain Prohibited Transaction Restrictions, 61775-61777 [2010-25119]
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mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices
may be obtained from the RegInfo.gov
Web site, https://www.reginfo.gov/
public/do/PRAMain or by contacting
Michel Smyth by telephone at 202–693–
4129 (this is not a toll-free number) or
sending an e-mail to
DOL_PRA_PUBLIC@dol.gov.
Submit comments about this request
to the Office of Information and
Regulatory Affairs, Attn: OMB Desk
Officer for the Department of Labor,
Bureau of Labor Statistics, Office of
Management and Budget, Room 10235,
Washington, DC 20503, Telephone:
202–395–7314/Fax: 202–395–7245
(these are not toll-free numbers), e-mail:
OIRA_submission@omb.eop.gov.
FOR FURTHER INFORMATION: Contact
Michel Smyth by telephone at 202–693–
4129 (this is not a toll-free number) or
by e-mail at
DOL_PRA_PUBLIC@dol.gov.
SUPPLEMENTARY INFORMATION: The DOL
is seeking OMB reauthorization of the
Annual Refiling Survey (ARS)
information collection. While the
primary purpose of the ARS is to verify
or to correct the North American
Industry Classification System (NAICS)
code assigned to establishments, there
are other important purposes of the
ARS. The ARS seeks accurate mailing
and physical location addresses of
establishments as well as geographic
codes such as county and township
(independent city, parish, or island in
some States).
The ARS constitutes an information
collection within the meaning of the
PRA. Under the PRA, a Federal agency
generally cannot conduct or sponsor a
collection of information unless it is
currently approved by the OMB under
the PRA and displays a currently valid
OMB control number. Furthermore, the
public is generally not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. In addition,
notwithstanding any other provisions of
law, no person shall generally be subject
to penalty for failing to comply with a
collection of information if the
collection of information does not
display a currently valid OMB control
number. See 5 CFR 1320.5(a) and
1320.6. The DOL obtains OMB approval
for this information collection under
OMB Control Number 1220–0032. The
current OMB approval is scheduled to
expire on October 31, 2010. For
additional information, see the related
notice published in the Federal Register
on May 27, 2010 (75 FR 29782).
Interested parties are encouraged to
send comments to the OMB, Office of
Information and Regulatory Affairs at
the address shown in the ADDRESSES
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section within 30 days of publication of
this notice in the Federal Register. In
order to ensure the appropriate
consideration, comments should
reference OMB Control Number 1220–
0032. The OMB is particularly
interested in comments that:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Enhance the quality, utility, and
clarity of the information to be
collected; and
• Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Agency: Bureau of Labor Statistics.
Type of Review: Extension without
change of currently approved collection.
Title of Collection: Annual Refiling
Survey Forms.
Form Numbers: Forms BLS–3023–
(NVS), BLS–3023–(NVM), and BLS–
3023–NCA.
OMB Control Number: 1220–0032.
Affected Public: Business or other forprofit; Not-for-profit institutions, and
farms.
Total Estimated Number of
Respondents: 1,296,334.
Total Estimated Number of
Responses: 1,296,334.
Total Estimated Annual Burden
Hours: 128,838.
Total Estimated Annual Costs Burden:
$0.
Dated: September 30, 2010.
Michel Smyth,
Departmental Clearance Officer.
[FR Doc. 2010–25106 Filed 10–5–10; 8:45 am]
BILLING CODE 4510–24–P
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
Exemptions From Certain Prohibited
Transaction Restrictions
Employee Benefits Security
Administration, Labor.
ACTION: Grant of Individual Exemptions.
AGENCY:
PO 00000
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61775
This document contains
exemptions issued by the Department of
Labor (the Department) from certain of
the prohibited transaction restrictions of
the Employee Retirement Income
Security Act of 1974 (ERISA or the Act)
and/or the Internal Revenue Code of
1986 (the Code). This notice includes
the following: 2010–28, John D.
Simmons Individual Retirement Act
(the IRA), D–11597; and 2010–29,
Boston Carpenters Apprenticeship and
Training Fund (the Fund), L–11624.
SUPPLEMENTARY INFORMATION: 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
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.
SUMMARY:
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.
John D. Simmons Individual Retirement
Account (the IRA) Located in West Chester,
PA
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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices
[Prohibited Transaction Exemption 2010–28;
Exemption Application No. D–11597]
appraiser in an updated appraisal on the date
of the Sale;
Exemption
The sanctions resulting from the
application of section 4975(c)(1)(A)–(E)
of the Code, shall not apply to the sale
(the Sale) by the IRA to John D.
Simmons, a disqualified person with
respect to the IRA,* of a 50 percent
interest (the Interest) in a condominium,
provided that the following conditions
are satisfied:
(a) The terms and conditions of the
Sale are at least as favorable to the IRA
as those obtainable in an arm’s length
transaction with an unrelated party;
(b) The Sale is a one-time transaction
for cash;
(c) As consideration, the IRA receives
the fair market value of the Interest as
determined by a qualified, independent
appraiser in an updated appraisal on the
date of Sale; and
(d) The IRA pays no commissions,
costs, fees, or other expenses with
respect to the Sale.
After giving full consideration to the
entire record, the Department has
decided to grant the exemption. The
complete application file is made
available for public inspection in the
Public Disclosure Room of the
Employee Benefits Security
Administration, Room N–1513, U.S.
Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210.
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
August 6, 2010 at 75 FR 47642.
FOR FURTHER INFORMATION CONTACT: Mr.
Anh-Viet Ly of the Department at (202)
693–8648. (This is not a toll-free
number.)
mstockstill on DSKH9S0YB1PROD with NOTICES
Written Comment
In the notice of proposed exemption,
the Department invited all interested
persons to submit written comments
and requests for a hearing within 30
days from the date of publication of the
notice of proposed exemption in the
Federal Register. All comments and
requests for a hearing were due by
September 5, 2010. Although the
Department received no comments or
requests for a hearing during the
comment period, the Department
noticed that Condition (c) of the
proposal needed to be revised for
technical accuracy.
As drafted in the proposal, Condition
(c) states that as consideration for the
Sale of the Interest, the IRA will receive
the lesser of $192,500 or the fair market
value of the Interest as determined by a
qualified, independent appraiser in an
updated appraisal on the date of the
Sale. The Department intended that the
IRA should receive the fair market value
for the Interest on the date of the Sale.
Therefore, it has deleted the words ‘‘the
lesser of $192,500 or’’ in Condition (c)
of the final exemption and notes a
corresponding change in Representation
11(b) in the notice of proposed
exemption. The revised condition now
reads as follows:
(c) As consideration, the IRA receives the
fair market value of the Interest as
determined by a qualified, independent
* Pursuant to 29 CFR 2510.3–2(d), the IRA is not
within the jurisdiction of Title I of the Employee
Retirement Income Security Act of 1974 (the Act).
However, there is jurisdiction under Title II of the
Act pursuant to section 4975 of the Code.
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Boston Carpenters Apprenticeship and
Training Fund (the Fund) Located in
Boston, Massachusetts
[Prohibited Transaction Exemption No. PTE
2010–29; Exemption Application No. L–
11624]
Exemption
The restrictions of 406(b)(1), and
406(b)(2) of the Act shall not apply
effective for the period from January 29,
2010, through June 30, 2010, to the lease
(the Lease) by the Fund from the
NERCC, LLC (the Building Corporation),
a party in interest with respect to the
Fund, of a condominium unit (the
Condo) in a building (the Building)
owned by the Building Corporation,
where the New England Regional
Council of Carpenters (the Union), also
a party in interest with respect to the
Fund, indirectly owns the only other
condominium unit in the Building;
provided that, at the time the
transaction was entered into, the
following conditions were satisfied:
(a) The exemption is conditioned
upon satisfaction at all times of the
terms and conditions of this exemption,
and upon adherence to the material
facts and representations, as described
in the Notice of Proposed Exemption
(the Notice), and, as set forth in
application D–11624, and in application
D–11558, including those
representations that are required by 29
CFR 2570.34 and 29 CFR 2570.35 of the
Department’s regulations;
(b) Prior to entering into the Lease, the
Fund sought legal advice from Aaron D.
Krakow, Esq. (Mr. Krakow), acting as
legal counsel on behalf of the Fund,
who advised the Fund that it was
permissible for the Fund to enter into a
short term lease with the Building
Corporation, and the Board of Trustees
PO 00000
Frm 00085
Fmt 4703
Sfmt 4703
of the Fund (the Board) relied on Mr.
Krakow’s advice;
(c) The Lease which is the subject of
this exemption and any other leasing
arrangement of the Condo between the
Fund and the Building Corporation and/
or the Union terminated on June 30,
2010; and the Fund shall have no
obligation to pay rent to the Union or to
the Building Corporation after the date
of such termination;
(d) Before the Fund entered into the
Lease of the Condo, James F. Grosso,
Esq. (Mr. Grosso), of O’Reilly, Grosso &
Gross, PC, acting as attorney for the
Fund, assisted in the negotiation of the
terms of the Lease, reviewed and
approved the terms of such Lease to
ensure that such terms were at least as
favorable to the Fund as an arm’s length
transaction with an unrelated party,
determined that such terms were fair
and reasonable, and selected an
independent, qualified appraiser to
determine the fair market rental value of
the Condo;
(e) Mr. Grosso was responsible
throughout the duration of the Lease for:
(i) Monitoring the rent payments made
by the Fund to ensure that such
payments were consistent with the
amount of rental specified under the
terms of such Lease, (ii) monitoring the
payments of the Fund’s share of the
expenses for taxes, insurance, and
operating expenses (including repairs)
to ensure that such payments represent
a fair apportionment of such expenses;
and (iii) determining that the Fund had
sufficient assets to pay the rental
amount and its portion of taxes,
insurance, and operating expenses
(including repairs);
(f) Throughout the duration of the
Lease, the terms of the Lease of the
Condo between the Fund and the
Building Corporation were at all times
satisfied;
(g) The rent paid by the Fund for the
Condo under the terms of the Lease was
at no time greater than the fair market
rental value of the Condo, as determined
by an independent, qualified appraiser
selected by Mr. Grosso;
(h) Under the provisions of the Lease,
the subject transaction was on terms and
at all times remained on terms that were
at least as favorable to the Fund as those
that would have been negotiated under
similar circumstances at arm’s length
with an unrelated third party;
(i) The transaction was appropriate
and helpful in carrying out the purposes
for which the Fund is established or
maintained;
(j) The Board maintains, or causes to
be maintained within the United States
for a period of six (6) years in a manner
that is convenient and accessible for
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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices
audit and examination, such records as
are necessary to enable the persons
described, below, in paragraph (k)(1) of
this exemption to determine whether
the conditions of this exemption have
been met; except that—
(1) If the records necessary to enable
the persons described, below, in
paragraph (k)(1) of this exemption to
determine whether the conditions of
this exemption have been met are lost
or destroyed, due to circumstances
beyond the control of the Board, then no
prohibited transaction will be
considered to have occurred solely on
the basis of the unavailability of those
records; and
(2) No party in interest, other than the
Board shall be subject to the civil
penalty that may be assessed under
section 502(i) of the Act, or to the taxes
imposed by section 4975(a) and (b) of
the Code, if the records are not
maintained, or are not available for
examination as required by paragraph (j)
of this exemption; and
(k)(1) Except as provided, below, in
paragraph (k)(2) of this exemption and
notwithstanding any provisions of
sections (a)(2) and (b) of section 504 of
the Act, the records referred to in
paragraph (j) of this exemption 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 any other
applicable federal or state regulatory
agency;
(B) Any fiduciary of the Fund, or any
duly authorized representative of such
fiduciary;
(C) Any contributing employer to the
Fund and any employee organization
whose members are covered by the
Fund, or any duly authorized employee
or representative of these entities; or
(D) Any participant or beneficiary of
the Fund, or any duly authorized
representative of such participant or
beneficiary.
(2) None of the persons described,
above, in paragraph (k)(1)(B)–(D) of this
exemption are authorized to examine
trade secrets or commercial or financial
information that is privileged or
confidential.
For a more complete statement of the
facts and representations supporting the
Department’s decision to grant this
exemption refer to the Notice published
on June 11, 2010, at 75 FR 33350.
FOR FURTHER INFORMATION CONTACT:
Angelena C. Le Blanc of the Department,
telephone (202) 693–8551 (This is not a
toll-free number.)
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19:00 Oct 05, 2010
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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.
Signed at Washington, DC, this 1st day of
October 2010.
Ivan Strasfeld,
Director of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 2010–25119 Filed 10–5–10; 8:45 am]
BILLING CODE 4510–29–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[Notice: (10–119)]
Notice of Information Collection
National Aeronautics and
Space Administration (NASA).
ACTION: Notice of information collection.
AGENCY:
The National Aeronautics and
Space Administration, as part of its
continuing effort to reduce paperwork
and respondent burden, invites the
general public and other Federal
agencies to take this opportunity to
comment on proposed and/or
SUMMARY:
PO 00000
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Sfmt 4703
61777
continuing information collections, as
required by the Paperwork Reduction
Act of 1995 (Pub. L. 104–13, 44 U.S.C.
3506(c)(2)(A)).
DATES: All comments should be
submitted within 60 calendar days from
the date of this publication.
ADDRESSES: All comments should be
addressed to Lori Parker, National
Aeronautics and Space Administration,
Washington, DC 20546–0001.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument(s) and instructions should
be directed to Lori Parker, NASA
Clearance Officer, NASA Headquarters,
300 E Street SW., JF0000, Washington,
DC 20546, (202) 358–1351,
Lori.Parker@nasa.gov.
SUPPLEMENTARY INFORMATION:
I. Abstract
NASA Johnson Space Center (JSC)
regularly employs cooperative (Co-op)
and Intern employees. This information
is collected from public citizens
(landlords) in and around the JSC area,
who may have rooms, residences, or
apartments available for rent by the coops and interns. Contact information for
these landlords is compiled and made
available to co-ops and interns who are
travelling into the JSC area from distant
Texas cities or from out-of-state. Access
to this information, prior to co-op and
intern arrival, would facilitate advance
housing arrangements, and ease the
burden of securing housing after arrival.
II. Method of Collection
NASA does not prescribe a format for
submission, though encourages the use
of computer technology for submission.
III. Data
Title: JSC Cooperative Education
Program—Housing Availability.
OMB Number: 2700-xxxx.
Type of review: Existing Collection in
use w/o an OMB number.
Affected Public: Individuals/
households.
Estimated Number of Respondents:
101.
Estimated Time per Response: 5
minutes.
Estimated Total Annual Burden
Hours: 8.4 hours.
Estimated Total Annual Cost: $0.00.
IV. Request for Comments
Comments are invited on: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of NASA, including
whether the information collected has
practical utility; (2) the accuracy of
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]]>Agencies
[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Notices]
[Pages 61775-61777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25119]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employee Benefits Security Administration
Exemptions From Certain Prohibited Transaction Restrictions
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
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
This notice includes the following: 2010-28, John D. Simmons Individual
Retirement Act (the IRA), D-11597; and 2010-29, Boston Carpenters
Apprenticeship and Training Fund (the Fund), L-11624.
SUPPLEMENTARY INFORMATION: 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 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.
John D. Simmons Individual Retirement Account (the IRA) Located in
West Chester, PA
[[Page 61776]]
[Prohibited Transaction Exemption 2010-28; Exemption Application No.
D-11597]
Exemption
The sanctions resulting from the application of section
4975(c)(1)(A)-(E) of the Code, shall not apply to the sale (the Sale)
by the IRA to John D. Simmons, a disqualified person with respect to
the IRA,* of a 50 percent interest (the Interest) in a condominium,
provided that the following conditions are satisfied:
---------------------------------------------------------------------------
* Pursuant to 29 CFR 2510.3-2(d), the IRA is not within the
jurisdiction of Title I of the Employee Retirement Income Security
Act of 1974 (the Act). However, there is jurisdiction under Title II
of the Act pursuant to section 4975 of the Code.
---------------------------------------------------------------------------
(a) The terms and conditions of the Sale are at least as favorable
to the IRA as those obtainable in an arm's length transaction with an
unrelated party;
(b) The Sale is a one-time transaction for cash;
(c) As consideration, the IRA receives the fair market value of the
Interest as determined by a qualified, independent appraiser in an
updated appraisal on the date of Sale; and
(d) The IRA pays no commissions, costs, fees, or other expenses
with respect to the Sale.
Written Comment
In the notice of proposed exemption, the Department invited all
interested persons to submit written comments and requests for a
hearing within 30 days from the date of publication of the notice of
proposed exemption in the Federal Register. All comments and requests
for a hearing were due by September 5, 2010. Although the Department
received no comments or requests for a hearing during the comment
period, the Department noticed that Condition (c) of the proposal
needed to be revised for technical accuracy.
As drafted in the proposal, Condition (c) states that as
consideration for the Sale of the Interest, the IRA will receive the
lesser of $192,500 or the fair market value of the Interest as
determined by a qualified, independent appraiser in an updated
appraisal on the date of the Sale. The Department intended that the IRA
should receive the fair market value for the Interest on the date of
the Sale. Therefore, it has deleted the words ``the lesser of $192,500
or'' in Condition (c) of the final exemption and notes a corresponding
change in Representation 11(b) in the notice of proposed exemption. The
revised condition now reads as follows:
(c) As consideration, the IRA receives the fair market value of
the Interest as determined by a qualified, independent appraiser in
an updated appraisal on the date of the Sale;
After giving full consideration to the entire record, the
Department has decided to grant the exemption. The complete application
file is made available for public inspection in the Public Disclosure
Room of the Employee Benefits Security Administration, Room N-1513,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
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 August 6, 2010 at 75 FR
47642.
FOR FURTHER INFORMATION CONTACT: Mr. Anh-Viet Ly of the Department at
(202) 693-8648. (This is not a toll-free number.)
Boston Carpenters Apprenticeship and Training Fund (the Fund)
Located in Boston, Massachusetts
[Prohibited Transaction Exemption No. PTE 2010-29; Exemption
Application No. L-11624]
Exemption
The restrictions of 406(b)(1), and 406(b)(2) of the Act shall not
apply effective for the period from January 29, 2010, through June 30,
2010, to the lease (the Lease) by the Fund from the NERCC, LLC (the
Building Corporation), a party in interest with respect to the Fund, of
a condominium unit (the Condo) in a building (the Building) owned by
the Building Corporation, where the New England Regional Council of
Carpenters (the Union), also a party in interest with respect to the
Fund, indirectly owns the only other condominium unit in the Building;
provided that, at the time the transaction was entered into, the
following conditions were satisfied:
(a) The exemption is conditioned upon satisfaction at all times of
the terms and conditions of this exemption, and upon adherence to the
material facts and representations, as described in the Notice of
Proposed Exemption (the Notice), and, as set forth in application D-
11624, and in application D-11558, including those representations that
are required by 29 CFR 2570.34 and 29 CFR 2570.35 of the Department's
regulations;
(b) Prior to entering into the Lease, the Fund sought legal advice
from Aaron D. Krakow, Esq. (Mr. Krakow), acting as legal counsel on
behalf of the Fund, who advised the Fund that it was permissible for
the Fund to enter into a short term lease with the Building
Corporation, and the Board of Trustees of the Fund (the Board) relied
on Mr. Krakow's advice;
(c) The Lease which is the subject of this exemption and any other
leasing arrangement of the Condo between the Fund and the Building
Corporation and/or the Union terminated on June 30, 2010; and the Fund
shall have no obligation to pay rent to the Union or to the Building
Corporation after the date of such termination;
(d) Before the Fund entered into the Lease of the Condo, James F.
Grosso, Esq. (Mr. Grosso), of O'Reilly, Grosso & Gross, PC, acting as
attorney for the Fund, assisted in the negotiation of the terms of the
Lease, reviewed and approved the terms of such Lease to ensure that
such terms were at least as favorable to the Fund as an arm's length
transaction with an unrelated party, determined that such terms were
fair and reasonable, and selected an independent, qualified appraiser
to determine the fair market rental value of the Condo;
(e) Mr. Grosso was responsible throughout the duration of the Lease
for: (i) Monitoring the rent payments made by the Fund to ensure that
such payments were consistent with the amount of rental specified under
the terms of such Lease, (ii) monitoring the payments of the Fund's
share of the expenses for taxes, insurance, and operating expenses
(including repairs) to ensure that such payments represent a fair
apportionment of such expenses; and (iii) determining that the Fund had
sufficient assets to pay the rental amount and its portion of taxes,
insurance, and operating expenses (including repairs);
(f) Throughout the duration of the Lease, the terms of the Lease of
the Condo between the Fund and the Building Corporation were at all
times satisfied;
(g) The rent paid by the Fund for the Condo under the terms of the
Lease was at no time greater than the fair market rental value of the
Condo, as determined by an independent, qualified appraiser selected by
Mr. Grosso;
(h) Under the provisions of the Lease, the subject transaction was
on terms and at all times remained on terms that were at least as
favorable to the Fund as those that would have been negotiated under
similar circumstances at arm's length with an unrelated third party;
(i) The transaction was appropriate and helpful in carrying out the
purposes for which the Fund is established or maintained;
(j) The Board maintains, or causes to be maintained within the
United States for a period of six (6) years in a manner that is
convenient and accessible for
[[Page 61777]]
audit and examination, such records as are necessary to enable the
persons described, below, in paragraph (k)(1) of this exemption to
determine whether the conditions of this exemption have been met;
except that--
(1) If the records necessary to enable the persons described,
below, in paragraph (k)(1) of this exemption to determine whether the
conditions of this exemption have been met are lost or destroyed, due
to circumstances beyond the control of the Board, then no prohibited
transaction will be considered to have occurred solely on the basis of
the unavailability of those records; and
(2) No party in interest, other than the Board shall be subject to
the civil penalty that may be assessed under section 502(i) of the Act,
or to the taxes imposed by section 4975(a) and (b) of the Code, if the
records are not maintained, or are not available for examination as
required by paragraph (j) of this exemption; and
(k)(1) Except as provided, below, in paragraph (k)(2) of this
exemption and notwithstanding any provisions of sections (a)(2) and (b)
of section 504 of the Act, the records referred to in paragraph (j) of
this exemption 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 any other applicable
federal or state regulatory agency;
(B) Any fiduciary of the Fund, or any duly authorized
representative of such fiduciary;
(C) Any contributing employer to the Fund and any employee
organization whose members are covered by the Fund, or any duly
authorized employee or representative of these entities; or
(D) Any participant or beneficiary of the Fund, or any duly
authorized representative of such participant or beneficiary.
(2) None of the persons described, above, in paragraph (k)(1)(B)-
(D) of this exemption are authorized to examine trade secrets or
commercial or financial information that is privileged or confidential.
For a more complete statement of the facts and representations
supporting the Department's decision to grant this exemption refer to
the Notice published on June 11, 2010, at 75 FR 33350.
FOR FURTHER INFORMATION CONTACT: Angelena C. Le Blanc of the
Department, telephone (202) 693-8551 (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.
Signed at Washington, DC, this 1st day of October 2010.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor.
[FR Doc. 2010-25119 Filed 10-5-10; 8:45 am]
BILLING CODE 4510-29-P
