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Employee Benefits Security Administration

EBSA Federal Register Notice

Prohibited Transaction Exemption; 2005-07; Grant of Individual Exemptions; PAMCAH-UA Local 675 Pension Plan (Pension Plan); PAMCAH-UA Local 675 Training Fund (Training Fund) (Collectively the Plans) [06/29/2005]

[PDF Version]

Volume 70, Number 124, Page 37440-37444

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Exemption Application Nos. D-10993 & L-10994, et al.]

 
Prohibited Transaction Exemption; 2005-07; Grant of Individual 
Exemptions; PAMCAH-UA Local 675 Pension Plan (Pension Plan); PAMCAH-UA 
Local 675 Training Fund (Training Fund) (Collectively the Plans)

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 
(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 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.

PAMCAH-UA Local 675 Pension Plan (Pension Plan); PAMCAH-UA Local 675 
Training Fund (Training Fund) (Collectively the Plans); Located in 
Honolulu, Hawaii

[Prohibited Transaction Exemption No. 2005-07; Application Nos. D-10993 
and L-10994]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the 
Act and the sanctions resulting from the application of section 4975 of 
the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, 
shall not apply to: (1) The Training Fund's purchase (the Purchase) of 
an improved parcel of real property (the Property) located at 731 
Kamehameha Highway, Pearl City, Hawaii from the Pension Plan; and (2) a 
loan (the Loan) from the Pension Plan to the Training Fund to finance 
the Purchase. This exemption is subject to the following conditions:
    (a) The fair market value of the Property is established by an 
independent, qualified, real estate appraiser that is unrelated to the 
Plans or any party in interest;
    (b) The Training Fund pays no more, and the Pension Plan receives 
no less than the fair market value of the Property as determined at the 
time of the transaction;
    (c) The Pension Plan will, on irreversible default of the Training 
Fund, reassume the ownership of the Property automatically without 
requirement of a foreclosure and cancel the promissory note;
    (d) Under the terms of the Loan, the Pension Plan in the event of 
default by the Training Fund has recourse only against the Property and 
not the against the general assets of the Training Fund;

[[Page 37441]]

    (e) The terms and conditions of the Loan are not less favorable to 
the Plans than those obtained in arm's-length transactions with 
unrelated parties;
    (f) The Plans will not pay any commissions or other expenses with 
respect to the transaction;
    (g) The Bank of Hawaii (BOH), acting as an independent, qualified 
fiduciary for the Training Fund, has determined that the transactions 
are in the best interest of the Training Fund and its participants and 
beneficiaries;
    (h) The First Hawaiian Bank (FHB), acting as an independent, 
qualified fiduciary for the Pension Plan, has determined that the 
transactions are in the best interest of the Pension Plan and its 
participants and beneficiaries; and
    (i) FHB will monitor the terms and conditions of the Loan 
throughout the duration of the Loan and take whatever actions are 
necessary to protect the rights of the Pension Plan.
    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 March 23, 2005 at 70 FR 
14716.

Mutual Service Life Insurance Company (MSL); Located in Arden Hills, MN

[Prohibited Transaction Exemption 2005-08; Exemption Application No. D-
11267]

Exemption

Section I. Covered Transaction
    The restrictions of section 406(a) 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,\1\ shall not apply, 
effective January 1, 2005, to the receipt of cash (Cash) or policy 
credits (Policy Credits) by any eligible member (Eligible Member), 
including an Eligible Member which is an employee benefit plan (within 
the meaning of section 3(3) of Act), an individual retirement annuity 
(within meaning of section 408(b) or 408A of the Code), or a tax 
sheltered annuity (within the meaning of section 403(b) of the 
Code)(each a Plan), including Plans sponsored by MSL for its employees 
(the MSL Plans), in exchange for the termination of such Eligible 
Member's membership interest in MSL, in accordance with the terms of a 
plan of conversion (the Plan of Conversion) adopted by MSL and 
implemented pursuant to Minnesota Statutes Section 60A.075 2003).
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    \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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Section II. General Conditions
    This exemption is subject to the following conditions:
    (a) The Plan of Conversion was subject to approval, review and 
supervision by the Minnesota Commissioner of Commerce (the 
Commissioner) and was implemented in accordance with procedural and 
substantive safeguards that are imposed under the laws of the State of 
Minnesota.
    (b) The Commissioner reviewed the terms of the Plan of Conversion 
and approved the Plan of Conversion following a determination that such 
Plan of Conversion was fair and equitable to all Eligible Members.
    (c) Each Eligible Member had an opportunity to vote at a special 
meeting to approve the Plan of Conversion after full written disclosure 
was given to the Eligible Member by MSL.
    (d) Pursuant to the Plan of Conversion, Eligible Members received 
Cash, except that Eligible Members received Policy Credits, and not 
Cash, to the extent consideration was allocable to the Eligible Member 
based on ownership of a policy of the following types:
    (1) A policy that was an individual retirement annuity contract 
within the meaning of sections 408(b) or 408A of the Code or a tax 
sheltered annuity contract within the meaning of section 403(b) of the 
Code;
    (2) A policy that was an individual annuity contract issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code; or
    (3) A policy that was an individual life insurance policy issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code. Neither MSL nor any of its 
affiliates exercised any discretion or provided investment advice, 
within the meaning of 29 CFR 2510.3-21(c), with respect to such 
decisions.
    (e) After each Eligible Member was allocated a fixed amount of 
consideration (Fixed Consideration) of $400, such Eligible Member also 
received a variable amount of consideration for each policy owned by 
the Eligible Member on September 30, 2003 (the Record Date) to reflect 
the Eligible Member's estimated past and future contributions to 
surplus as determined by an actuarial formula (approved by the 
Commissioner) based on specific features of the policies owned by the 
Eligible Member on September 30, 2003.
    (f) In the case of a MSL Plan, the independent Plan fiduciary (the 
Independent Fiduciary):
    (1) Voted on whether to approve or not to approve the 
demutualization;
    (2) Reviewed and approved MSL's allocation of Cash received for the 
benefit of the participants and beneficiaries of the MSL Plans;
    (3) Provided the Department with a complete and detailed final 
report as it related to the MSL Plans prior to the granting of the 
exemption; and
    (4) Would take all actions that were necessary and appropriate to 
safeguard the interests of the MSL Plans and their participants and 
beneficiaries.
    (g) All Eligible Members that were Plans participated in the 
transaction on the same basis as all Eligible Members that were not 
Plans.
    (h) No Eligible Member paid any brokerage commissions or fees in 
connection with the receipt of Policy Credits.
    (i) All of MSL's policyholder obligations remained in force and 
were not affected by the Plan of Conversion.
    (j) The terms of the transactions were at least as favorable to the 
Plans as an arm's length transaction with an unrelated party.

DATES: This exemption is effective as of January 1, 2005.
Section III. Definitions
    For the purposes of this exemption, (a) The term ``MSL'' means 
Mutual Service Life Insurance Company and any affiliate of MSL, as 
defined below in Section III(b).
    (b) An ``affiliate'' of a person includes:
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with MSL; and
    (2) Any officer, director, or partner in any such person.
    (c) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (d) The term ``Independent Fiduciary'' means a fiduciary who is: 
(1) Independent of and unrelated to MSL and its affiliates, and (2) 
appointed to act on behalf of the MSL Plans with respect to the 
demutualization of MSL. For purposes of this exemption, a fiduciary 
will not be deemed to be independent of and unrelated to MSL if: (1) 
Such fiduciary directly or indirectly controls, is controlled by or is 
under common control with MSL; (2) such fiduciary directly or 
indirectly receives any compensation or other consideration in 
connection with any transaction described in this exemption,

[[Page 37442]]

except that an Independent Fiduciary may receive compensation for 
acting as an Independent Fiduciary from MSL in connection with the 
transactions contemplated herein if the amount of 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 such fiduciary from MSL and its affiliates during 
any year of its engagement, does not exceed 5 percent (5%) of the 
Independent Fiduciary's annual gross revenue from all sources for its 
prior tax year.
    (e) An ``Eligible Member'' means a person (an individual, 
corporation, joint venture, limited liability company, association, 
trust, trustee, unincorporated entity, organization or government or 
any department or agency thereof) who is an owner of a policy that is 
in force on the Record Date, i.e., September 30, 2003.
    (f) ``Policy Credit'' means consideration to be paid in the form of 
an increase in cash value, account value, dividend accumulations, face 
amount, extended term period or benefit payment, as appropriate, 
depending on the policy.
    (g) ``Effective Date'' means the date of the demutualization, which 
occurred on January 1, 2005.
    (h) ``The Plan of Conversion'' means the process by which MSL will 
convert from a mutual life insurance company to a stock life insurance 
company, and following consummation of the Stock Purchase Agreement, 
will thereafter continue its corporate existence without interruption 
as a wholly owned subsidiary of Country Life Insurance Company. MSL's 
conversion to a stock insurance company occurred on the Effective Date 
(i.e., January 1, 2005) and was subject to the conditions contained in 
the Plan of Conversion.
    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 March 23, 2005 at 70 FR 
14719.
Written Comments
    The Department received one written comment with respect to the 
proposed exemption. The comment was submitted by MSL and it requests 
certain clarifications to the operative language of the proposal and 
the Summary of Facts and Representations (the Summary). These 
modifications are described below.
    1. Form of Demutualization Consideration. MSL notes that in 
Sections II(b) and (d) of the proposal and in other portions, there are 
references to an election by Eligible Members as to the form of 
consideration received (i.e., Cash or Policy Credits). MSL explains 
that Eligible Members were not given the choice as to the form of 
consideration they were to receive. Rather, MSL asserts, Eligible 
Members received Policy Credits, and not Cash, to the extent 
consideration was allocable to the Eligible Member based on ownership 
of a policy of the following types:

    (a) A policy that was an individual retirement annuity contract 
within the meaning of sections 408(b) or 408A of the Code or a tax 
sheltered annuity contract within the meaning of section 403(b) of 
the Code;
    (b) A policy that was an individual annuity contract issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code; or
    (c) A policy that was an individual life insurance policy issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code.

Therefore, MSL suggests that Section II(b) of the proposal be revised 
to read as follows:

    (b) The Commissioner reviewed the terms of the Plan of 
Conversion and approved the Plan of Conversion following a 
determination that such Plan of Conversion was fair and equitable to 
all Eligible Members.

    MSL further suggests that Section II(d) of the proposal be revised 
to read as follows:

    (d) Pursuant to the Plan of Conversion, Eligible Members 
received Cash, except that Eligible Members received Policy Credits, 
and not Cash, to the extent consideration was allocable to the 
Eligible Member based on ownership of a policy of the following 
types:
    (1) A policy that was an individual retirement annuity contract 
within the meaning of sections 408(b) or 408A of the Code or a tax 
sheltered annuity contract within the meaning of section 403(b) of 
the Code;
    (2) A policy that was an individual annuity contract issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code; or
    (3) A policy that was an individual life insurance policy issued 
directly to the Plan participant pursuant to a Plan qualified under 
sections 401(a) or 403(a) of the Code.
    Neither MSL nor any of its affiliates exercised any discretion 
or provided investment advice, within the meaning of 29 CFR 2510.3-
21(c), with respect to such decisions.

    In response to these comments, the Department has made the changes 
requested by MSL to Sections II(b) and (d) of the proposal and it notes 
MSL's following revision to Representation 25(d) of the Summary: 
``Neither MSL nor any of its affiliates exercised any discretion or 
provided investment advice, within the meaning of 29 CFR 2510.3-21(c), 
with respect to any decision of an Eligible Member.''
    With respect to Section II(d) of the proposal, the Department 
wishes to point out that it never intended this provision to imply that 
an Eligible Member would be given the choice of receiving either Cash 
or Policy Credits. Rather, the Department notes that this provision 
actually meant that an Eligible Member would be given the opportunity 
to receive or to reject the form of demutualization consideration 
allocated to such Eligible Member by MSL.
    2. Amount of Fixed Consideration. Section II(e) of the proposed 
exemption states that after each Eligible Member was allocated Fixed 
Consideration equivalent to approximately $400, such Eligible Member 
also received a variable amount of consideration. For purposes of 
clarity, MSL suggests that this provision be revised to read, in part, 
as follows: ``After each Eligible Member was allocated a fixed amount 
of consideration (Fixed Consideration) of $400, such Eligible Member 
may also have received a variable amount of consideration * * *''
    In response, the Department concurs with this clarification and it 
has made MSL's requested change to the final exemption. The Department 
also notes MSL's corresponding revision to Representation 25(e) of the 
Summary.
    3. Role of the Independent Fiduciary. Section II(f)(2) of the 
proposed exemption states that one of the duties of the Independent 
Fiduciary for the MSL Plans was to elect between consideration in the 
form of Cash or Policy Credits on behalf of these Plans. Section 
II(f)(3) of the proposal states that the Independent Fiduciary reviewed 
and approved MSL's allocation of Cash or Policy Credits for the 
participants and beneficiaries of the MSL Plans. In keeping with the 
clarifications described above in item 1 of this grant notice, MSL 
suggests that Section II(f)(2) be deleted and the subsequent 
subparagraph be renumbered, accordingly. MSL also suggests that the 
phrase ``Cash or Policy Credits'' in Section II(f)(3) be revised to 
read ``Cash.''
    In response to these comments, the Department has made the 
revisions suggested by MSL. In addition, the Department notes MSL's 
corresponding revisions to Representation 25 of the Summary, in 
paragraphs (f)(2) and (f)(3).
    4. Other Revisions to the Summary. In addition to suggesting the 
foregoing changes to portions of the operative language of the proposal 
and identical representations in the Summary, MSL

[[Page 37443]]

has requested additional clarifications to the Summary. For example,
    (a) In Representation 5, MSL requests that the parenthetical ``(MSI 
Preferred)'' be revised to include an alternate reference to ``MSI,'' 
and thereby be amended to read ``(MSI Preferred or MSI).''
    (b) To correct a typographical error in Representation 8, MSL 
suggests that the word ``of'' be added to the phrase ``the number of 
New MSL Members.'' In addition, MSL requests that the defined term 
``MSL'' be added to the phrase ``interest in purchasing MSL.''
    (c) In Representation 11, MSL suggests that the phrase ``Although a 
wholly owned subsidiary of MSL, PSI, formerly provided * * *'' be 
revised, in part, to read ``While a wholly owned subsidiary of MSL, PSI 
provided * * *''
    (d) In Representation 12, MSL requests that the table showing the 
MSL Plans be corrected.\2\ In this regard, MSL states that in the name 
of the first two MSL Plans, the word ``Employees'' should be 
``Employees''' and in the name of the fourth MSL Plan, the word 
``Agent's'' should be ``Agents.'' For ``Participant totals,'' MSL 
states that the first three dates should be changed to ``9/30/03'' and 
the fourth date should be changed to ``12/1/03.'' For ``Asset totals,'' 
MSL requests that both dates be changed to ``7/7/04.''
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    \2\ MSL notes that effective December 31, 2004, the MSI 
Employees' Capital Accumulation Plan and Trust, the MSI Employees' 
Defined Contribution Retirement Plan and the MSI Employees' Life 
Insurance Plan were terminated.
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    (e) In Representation 13, MSL suggests that the reference to 
``PSI'' be changed to ``MSI Preferred'' and the word ``entitled,'' in 
the final sentence, be changed to the word ``required.''
    (f) In Representation 22, MSL recommends that the first sentence be 
revised to read as follows: ``Decisions on voting whether to approve 
the plan of Conversion or as to any matter in connection with such Plan 
was made by one or more Plan fiduciaries which were independent of 
MSL.'' Also, MSL states that the word ``Employees'' in the name of the 
MSL Employees'' Life Insurance Plan should be changed to 
``Employees'.''
    In response to these comments, the Department notes MSL's foregoing 
revisions the Summary.
    Accordingly, after giving full consideration to the entire record, 
including MSL's comment letter, the Department has determined to grant 
the exemption as modified herein. For further information regarding the 
comment, additional information provided by the Independent Fiduciary, 
and other matters discussed herein, interested persons are encouraged 
to obtain copies of the exemption application file (Exemption 
Application No. D-11267) the Department is maintaining in this case. 
The complete application file, as well as all supplemental submissions 
received by the Department, are 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 FURTHER INFORMATION CONTACT: Ms. Jan D. Broady of the Department, 
telephone (202) 693-8556. (This is not a toll-free number.)

Liberty Media International, Inc. (LMI); Located in Englewood, CO

[Prohibited Transaction Exemption 2005-09; Exemption Application No. D-
11277]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2), and 
407(a) of the Act shall not apply,\3\ effective July 26, 2004, to (1) 
the acquisition by the Liberty Cablevision of Puerto Rico 401(k) 
Savings Plan (the Plan) of certain stock rights (the Rights) pursuant 
to a stock rights offering (the Offering) by LMI, the Plan sponsor and 
a party in interest with respect to the Plan; (2) the holding of the 
Rights by the Plan during the subscription period of the Offering; and 
(3) the disposition or exercise of the Rights by the Plan.
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    \3\ It is represented that because the fiduciaries for the Plan 
have not made an election under section 1022(i)(2) of the Act, 
whereby the Plan would be treated as a trust created and organized 
in the United States for purposes of tax qualification under section 
401(a) of the Code, jurisdiction under Title II of the Act does not 
apply. Therefore, LMI is not requesting, nor is the Department 
providing, exemptive relief under the provisions of Title II of the 
Act. The Department is, however, providing exemptive relief under 
Title I of the Act.
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    This exemption is conditioned upon adherence to the material facts 
and representations described herein and upon satisfaction of the 
following general conditions:
    (a) The Rights were acquired by the Plan pursuant to Plan 
provisions for individually-directed investment of participant 
accounts;
    (b) The Plan's receipt of the Rights occurred in connection with 
the Rights Offering made available to all shareholders of LMI common 
stock;
    (c) All decisions regarding the holding and disposition of the 
Rights by the Plan were made in accordance with Plan provisions for 
individually-directed investment of participant accounts by the 
individual participants whose accounts in the Plan received Rights in 
the Offering, and if no instructions were received, the Rights were 
sold;
    (d) The Plan's acquisition of the Rights resulted from an 
independent act of LMI as a corporate entity, and all holders of the 
Rights, including the Plan, were treated in the same manner with 
respect to the acquisition; and
    (e) The Plan received the same proportionate number of the Rights 
as other owners of LMI Series A common stock.

DATES: This exemption is effective as of July 26, 2004.
    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 March 23, 2005 at 70 FR 
14726.

FOR FURTHER INFORMATION CONTACT: Ms. Silvia M. Quezada of the 
Department, telephone number (202) 693-8553. (This is not a toll-free 
number.)

The North Texas Electrical Joint Apprenticeship and Training Trust Fund 
(the Plan); Located in Grand Prairie, Texas

[Prohibited Transaction Exemption No. 2005-10; Application No. L-11245]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the 
Act shall not apply to the sale (the Sale(s)) of (1) 1.112 acres 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 (Parcel 2) to Local Union 20, 
International Brotherhood of Electrical Workers (IBEW), a party in 
interest to the Plan, provided that the following conditions are met:
    (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.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this

[[Page 37444]]

exemption, refer to the Notice of Proposed Exemption published on 
February 3, 2005 at 70 FR 5705.

FOR FURTHER INFORMATION CONTACT: Khalif Ford of the Department, 
telephone (202) 693-8540 (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 in Washington, DC, this 23rd day of June, 2005.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 05-12833 Filed 6-28-05; 8:45 am]

BILLING CODE 4510-29-P