Exemptions From Certain Prohibited Transaction Restrictions, 29331-29333 [2017-13508]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 82, Number 123 (Wednesday, June 28, 2017)]
[Notices]
[Pages 29331-29333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13508]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Exemptions From Certain Prohibited Transaction Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of individual exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). 
This notice includes the following: 2017-01, Rosetree & Company 401(k) 
Plan and Trust, D-11845; and 2017-02, Aon Pension Plan, D-11880.

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 (76 FR 66637, 66644, October 27, 2011) \1\ and based 
upon the entire record, the Department makes the following findings:
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    \1\ The Department has considered exemption applications 
received prior to December 27, 2011 under the exemption procedures 
set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 
10, 1990).
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    (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.

Rosetree & Company 401(k) Plan and Trust (the Plan) Located in Skokie, 
IL

[Prohibited Transaction Exemption 2017-01; Exemption Application No. D-
11845]

Exemption

Section I. Covered Transactions

    The sanctions resulting from the application of section 
4975(c)(1)(B) of the Code shall not apply to the guarantee (the 
Guarantee) by Richard Rosenbaum (Mr. Rosenbaum), the Plan trustee, a 
disqualified person with respect to the Plan, of: (1) A loan (the Loan) 
made by the Great Lakes Credit Union (GLCU), an unrelated third party 
lender, to Kurtson Realty, LLC (Kurtson), a real estate company that is 
wholly owned by the Plan; \2\ and (2) a future Loan made by an 
unrelated third party lender (hereinafter, GLCU and any third party 
lender is referred to as a ``Lender'') to Kurtson, provided that the 
general conditions that are set forth below in Section II are 
satisfied.
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    \2\ Because Mr. Rosenbaum is the sole owner of Rosetree & 
Company, Ltd. (Rosetree), the Plan sponsor, and the only participant 
in the Plan, there is no jurisdiction under Title I of the Employee 
Retirement Income Security Act of 1974 (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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Section II. General Conditions

    (a) The Loan is made for purposes of the Plan acquiring and 
rehabilitating investment property from an unrelated third party 
through Kurtson;
    (b) The Loan is made on commercially reasonable terms;
    (c) The debt service and value to loan ratio for the Loan, and for 
any future Loan, are based primarily on the characteristics of the 
property serving as collateral for such Loan (the Collateral Property);
    (d) The Lender and the Loan servicer (the Loan Servicer) are 
unrelated to Mr. Rosenbaum and the Plan;
    (e) The Lender has a pre-existing Loan service arrangement with the 
Loan Servicer, and maintains this relationship for the duration of the 
Loan;
    (f) Mr. Rosenbaum does not receive any compensation or derive any 
personal benefit from the Collateral Property;
    (g) For the duration of the Loan or any future Loan, the Collateral 
Property is not used by or leased to: (1) Any other disqualified 
persons with respect to the Plan; (2) Rosetreee or any affiliate of 
Rosetree; or (3) any person or entity in which Mr. Rosenbaum may have 
an interest that would affect his best judgment as a Plan fiduciary;

[[Page 29332]]

    (h) The Guarantee is a condition that is: (1) Customarily required 
in similar transactions between Kurtson and the Lender, and is not 
unique to the Loan or to the specific parties to the Loan; and (2) 
solely due to a regulatory requirement of the National Credit Union 
Administration that is imposed upon credit unions, including GLCU;
    (i) If the Plan defaults on a Loan, Mr. Rosenbaum pays the balance 
of such Loan, and has no recourse against the Plan for repayment;
    (j) No interest or any fee is charged to Kurtson or the Plan in 
connection with the Guarantee; and
    (k) The Guarantee is not part of an agreement, arrangement, or 
understanding in which Mr. Rosenbaum causes the assets of the Plan to 
be used in a manner that is designed to benefit himself or any person 
who has an interest which would affect the exercise of Mr. Rosenbaum's 
best judgment as a fiduciary of the Plan.

Written Comments

    Because Mr. Rosenbaum is the sole participant and beneficiary of 
the Plan, the Department determined that there was no need to 
distribute, to interested persons, the Notice of Proposed Exemption 
(the Notice), which was published in the Federal Register on May 1, 
2017 at 82 FR 20384. All comments were due by May 31, 2017.
    During the comment period, the Department received no comments from 
interested persons. Accordingly, after giving full consideration to the 
entire record, the Department has decided to grant the exemption. The 
complete application file (Exemption Application No. D-11845) and all 
supplemental submissions received by the Department are 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 cited above.

FOR FURTHER INFORMATION CONTACT: Ms. Anna Mpras Vaughan of the 
Department, telephone (202) 693-8565. (This is not a toll-free number.)

Aon Pension Plan (the Plan) Located in Chicago, Illinois

[Prohibited Transaction Exemption 2017-02; Exemption Application No. D-
11880]

Exemption

Section I. Covered Transaction

    The restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1) 
and 406(b)(2) of the Act (or ERISA) and the sanctions resulting from 
the application of section 4975 of the Code, by reason of section 
4975(c)(1)(A),(D), and (E) of the Code,\3\ shall not apply to the in-
kind contribution (the Contribution) by Aon Corporation (Aon), to the 
Plan of a 3.5% limited partnership interest (the Partnership Interest) 
in the Trident V, L.P. Fund (the Fund).
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    \3\ For purposes of this exemption, references to specific 
provisions of section 406 of Title I of the Act, unless otherwise 
specified, should be read to refer as well to the corresponding 
provisions of section 4975 of the Code.
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Section II. General Conditions

    (a) A qualified independent fiduciary (the Independent Fiduciary), 
as defined in Section IV(c), negotiates the terms and conditions of the 
Contribution, and approves the Contribution as being in the interest of 
the Plan;
    (b) The Partnership Interest is contributed to the Plan by Aon at 
its current fair market value, as determined by the Independent 
Fiduciary, at the time of the Contribution;
    (c) On a date preceding the Contribution, Aon made a cash 
contribution to the Plan of $7.5 million (the Additional Cash 
Contribution);
    (d) The Plan does not have any obligation to make future payments 
with respect to the Partnership Interest;
    (e) Aon contributes, on behalf of the Plan, cash amounts that are 
equal to the remaining capital calls that are requested by the general 
partner (the General Partner) of the Fund with respect to the 
Partnership Interest;
    (f) The Plan does not pay any fees, commissions, costs or other 
expenses in connection with the either the Contribution or the 
Additional Cash Contribution, except for fees that are paid by the Plan 
to the Independent Fiduciary; and
    (g) The terms and conditions of the Contribution and the Additional 
Cash Contribution are no less favorable to the Plan than those 
obtainable under similar circumstances when negotiated at arm's-length 
with unrelated third parties.

Section III. Independent Fiduciary

    (a) The Independent Fiduciary represents the interests of the Plan 
for all purposes with respect to the Contribution and the Additional 
Cash Contribution;
    (b) The Independent Fiduciary:
    (1) Reviews, negotiates (if applicable), and approves the terms and 
conditions of the Contribution and the Additional Cash Contribution, as 
evidenced in the Contribution Agreement;
    (2) Determines, in its sole discretion, that the reported value of 
the Partnership, as calculated by the General Partner, reflects the 
fair market value of the Partnership Interest;
    (3) Determines, at the time of the Contribution, that the terms of 
such transaction are no less favorable to the Plan than the terms 
negotiated at arm's-length under similar circumstances between 
unrelated third parties;
    (4) Ensures the Plan incurs no fees, costs or other charges (other 
than the fees and expenses of the Independent Fiduciary) as a result of 
the Contribution and the Additional Cash Contribution;
    (5) Acknowledges that the Partnership Interest may not be sold, 
assigned, transferred or otherwise disposed of without the prior 
written consent of the General Partner of the Fund, which must be given 
at least 30 days prior to such transfer;
    (6) Enforces the Plan's rights and interests with respect to the 
terms the Contribution and the Additional Cash Contribution; and
    (7) Takes all steps that are necessary and proper to protect the 
Plan under the terms of the Contribution Agreement.

Section IV. Definitions

    (a) The term ``Aon'' means Aon Corporation, and any of its 
affiliates.
    (b) The term ``affiliate'' means:
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person;
    (2) Any officer, director, employee, relative, or partner in any 
such person; or
    (3) Any corporation or partnership of which such person is an 
officer, director, partner, or employee.

For purposes of clause (b)(1), above, the term ``control'' means the 
power to exercise a controlling influence over the management or 
policies of a person other than an individual.
    (c) The term ``Independent Fiduciary'' means a fiduciary with 
respect to the Plan that is independent of or unrelated to Aon, and has 
the appropriate training, experience, and facilities to act on behalf 
of the Plan regarding the proposed transactions in accordance with the 
fiduciary duties and responsibilities prescribed by the Act (including, 
if necessary, the

[[Page 29333]]

responsibility to seek the counsel of knowledgeable advisors to assist 
in its compliance with the Act). The Independent Fiduciary will not be 
deemed to be independent of and unrelated to Aon if: (1) Such 
Independent Fiduciary directly or indirectly controls, is controlled by 
or is under common control, with Aon; (2) such Independent Fiduciary 
directly or indirectly receives any compensation or other consideration 
in connection with any transaction described in this exemption other 
than for acting as Independent Fiduciary in connection with the 
transactions described herein, provided that 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 from Aon, during any year 
of its engagement, does not exceed three percent (3%) of such 
Independent Fiduciary's annual gross revenue from all sources (for 
federal income tax purposes) for its prior tax year.
    Effective Date: This exemption is effective as of the date of the 
Contribution.

Written Comments

    In the notice of proposed exemption (the Notice), the Department 
invited all interested persons to submit written comments within 44 
calendar days of the publication, on April 14, 2017, of the Notice in 
the Federal Register. All comments were due by May 28, 2017. During the 
comment period, the Department received three written comments from 
Plan participants, one comment from Evercore Trust Company (Evercore), 
the Independent Fiduciary described in the Notice, and one comment from 
Aon. The Department did not receive any requests for a public hearing. 
The comments and the Department's responses are discussed below.

Participant Comments

    With respect to the comments received from the Plan participants, 
the first commenter thought the Contribution would ``undermine the 
soundness of the pension plan.'' The second commenter thought the 
Contribution would ``jeopardize pension payments.'' The third commenter 
was concerned that the exemption was contrary to the intent of ERISA in 
that it would not ``protect pension funds.'' Each commenter's concerns 
were allayed following a discussion with a Department representative, 
and the comments were withdrawn.

Evercore's Comment/Appointment of Successor Independent Fiduciary

    Evercore informed the Department that its parent, Evercore 
Partners, had entered into an agreement to sell Evercore's independent 
fiduciary business to the Newport Group, and that the transaction would 
close by the end of the third quarter of 2017. Evercore also informed 
the Department that the Fund currently owns a majority interest in the 
Newport Group. Evercore represents it had no prior knowledge of the 
contemplated sale at the time its initial Independent Fiduciary Report 
was submitted to the Department.
    On June 16, 2017, Brock Fiduciary Services LLC of New York, New 
York was appointed as the new Independent Fiduciary for the Plan. The 
Department has revised the definition of the term ``Independent 
Fiduciary'' to read as follows:

    (c) The term ``Independent Fiduciary'' means a fiduciary with 
respect to the Plan that is independent of or unrelated to Aon, and 
has the appropriate training, experience, and facilities to act on 
behalf of the Plan regarding the proposed transactions in accordance 
with the fiduciary duties and responsibilities prescribed by the Act 
(including, if necessary, the responsibility to seek the counsel of 
knowledgeable advisors to assist in its compliance with the Act). 
The Independent Fiduciary will not be deemed to be independent of 
and unrelated to Aon if: (1) Such Independent Fiduciary directly or 
indirectly controls, is controlled by or is under common control, 
with Aon; (2) such Independent Fiduciary directly or indirectly 
receives any compensation or other consideration in connection with 
any transaction described in this exemption other than for acting as 
Independent Fiduciary in connection with the transactions described 
herein, provided that 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 from Aon, during any year of 
its engagement, does not exceed three percent (3%) of such 
Independent Fiduciary's annual gross revenue from all sources (for 
federal income tax purposes) for its prior tax year.

Aon's Comment

    Aon requests that the effective date of the exemption be the date 
the Contribution occurs, which Aon expects will be July 1, 2017. The 
Department has made the requested revision.
    After giving full consideration to the entire record, the 
Department has decided to grant the exemption. The complete application 
file (Exemption Application No. D-11880), all supplemental submissions, 
and the written comments received by the Department are 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 at 82 FR 18013, April 14, 2017.

FOR FURTHER INFORMATION CONTACT: Mrs. Blessed Chuksorji-Keefe of the 
Department, telephone (202) 693-8567. (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) These exemptions are supplemental to and not in derogation of, 
any other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of these exemptions is subject to the express 
condition that the material facts and representations contained in the 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 21st day of June, 2017.
Lyssa E. Hall,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department Of Labor.
[FR Doc. 2017-13508 Filed 6-27-17; 8:45 am]
 BILLING CODE 4510-29-P