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Employee Benefits Security Administration

EBSA Federal Register Notice

Prohibited Transaction Exemption 2007-10 Through 2007-13; Grant of Individual Exemptions involving; D-11393 & D-11394, (PTE 2007-10), [08/01/2007]

[PDF Version]

Volume 72, Number 147, Page 42129-42131

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

 
Prohibited Transaction Exemption 2007-10 Through 2007-13; Grant 
of Individual Exemptions involving; D-11393 & D-11394, (PTE 2007-10), 
Paul Niednagel IRAs and Lynne Niednagel IRAs (Collectively, the IRAs); 
D-11406, (PTE 2007-11), The Revlon Employees Savings, Investment and 
Profit Sharing Plan (the Plan); L-11365, (PTE 2007-12), American 
Maritime Officers Safety & Education Plan (the S&E Plan); and L-11382, 
(PTE 2007-13), Sheet Metal Workers Local Union 17 Insurance Fund (the 
Fund)

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).
    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.

Paul Niednagel IRAs and Lynne Niednagel IRAs (collectively, the IRAs), 
Located in Laguna Niguel, California

[Prohibited Transaction Exemption 2007-10; Exemption Application 
Numbers: D-11393 and D-11394]

Exemption

    The sanctions resulting from the application of section 4975 of the 
Code, by reason of sections 4975(c)(1)(D) and (E) of the Code, shall 
not apply to the purchase (the Purchase) by the respective IRAs \1\ of 
Paul and Lynne Niednagel (the Account Holders) of certain ownership 
interests (the Units) from Pacific Island Investment Partners, LLC. 
(Pacific Island) (the issuer of the Units), an entity which is 
indirectly controlled by Daniel and Stephen Niednagel (the Principals), 
both of whom are lineal descendents of the Account Holders and 
therefore disqualified persons with respect to the IRAs, provided that 
the following conditions are satisfied:
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    \1\ Because each IRA has only one participant, there is no 
jurisdiction under 29 CFR Sec.  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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Conditions

    (a) The Purchase of the Units by each IRA is for cash;
    (b) The price paid by each IRA to purchase a Unit ($10,000) is 
identical to the price paid by other Pacific Island investors to 
acquire a Unit;
    (c) The terms and conditions of each Purchase are at least as 
favorable as those available in an arm's length transaction with an 
unrelated third party;
    (d) Each IRA does not pay any commissions or other expenses in 
connection with each Purchase; and
    (e) Each IRA does not acquire Units if, after acquisition, the 
aggregate fair market value of the Units would exceed 25% of the fair 
market value of such IRA.

[[Page 42130]]

Temporary Nature of Exemption

    This grant of exemption is temporary and becomes effective on the 
date of publication of the grant of the final exemption in the Federal 
Register. The exemption will expire on the date which is five (5) years 
from the date of the grant of the exemption.

Written Comments

    In the Notice of Proposed Exemption (the Notice), the Department of 
Labor (the Department) invited all interested persons to submit written 
comments on the proposed exemption within thirty (30) days of the date 
of the publication of the Notice in the Federal Register on June 1, 
2007. All comments were due by July 1, 2007.
    During the comment period, the Department received one written 
comment concerning the Notice; this comment was submitted by one of the 
Account Holders, Mr. Paul Niednagel. In his comment, Mr. Niednagel 
informed the Department that Condition (a) of the Notice (located at 
the first column on page 30638 of the June 1, 2007 issue of the Federal 
Register), which proposed that the cash purchase of the Units by each 
IRA be undertaken as a ``one-time transaction'', could not be satisfied 
by the Account Holders because of the limited quantity of Units of 
Pacific Island available for sale to investors at any given point in 
time. Accordingly, Mr. Niednagel proposed that Condition (a) be 
modified to remove the language stipulating that the Purchase of the 
Units occur as a one-time transaction. In addition, Mr. Niednagel 
proposed that the exemption be further modified to permit the Account 
Holders to purchase the Units incrementally over the course of a five 
year term, beginning from the date of the grant of an exemption for the 
proposed transaction. Mr. Niednagel stated that permitting the Account 
Holders to purchase the Units over such an extended period would be 
consistent with the availability of such Units for acquisition by 
investors.
    After giving full consideration to the entire record, including the 
written comments provided by Mr. Niednagel, the Department has 
determined to grant the exemption, subject to the modification of 
certain conditions initially contained in the Notice. While retaining 
the language contained in Condition (a) of the Notice stipulating that 
``the Purchase of the Units by each IRA is for cash,'' the Department 
has decided to adopt Mr. Niednagel's comments by: (1) Deleting from the 
final exemption the requirement that the Purchase occur as a ``one-time 
transaction'', and (2) adding language to the exemption which 
stipulates that the Department's grant of relief for the Purchase of 
the Units is temporary in nature, and shall expire five years from the 
date of publication of the grant of exemption in the Federal Register.
    In addition, Condition (e) of the Notice (located at the first 
column of page 30638 of the June 1, 2007 issue of the Federal Register) 
stated that ``[t]he IRA assets invested in the Units do not exceed 25% 
of the total assets of each IRA at the time of the Purchase.'' For 
purposes of clarification, the Department has determined to modify 
Condition (e) to read as follows: ``Each IRA does not acquire Units if, 
after acquisition, the aggregate fair market value of the Units would 
exceed 25% of the fair market value of such IRA.''
    The complete application file for this exemption, encompassing all 
supplemental submissions received by the Department (including the 
written comment received by the Account Holder, Mr. Niednagel), is made 
available for public inspection in the Public Documents 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, interested persons 
should also refer to the notice of proposed exemption published on June 
1, 2007 at 72 FR 30637 (as corrected by a notice of technical 
correction published on June 7, 2007 at 72 FR 31610).

FOR FURTHER INFORMATION CONTACT: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (This is not a toll-free number.)

The Revlon Employees Savings, Investment and Profit Sharing Plan (the 
Plan) Located in New York, NY

[Prohibited Transaction Exemption No. 2007-11; [Application No. D-
11406]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) and 
407(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 
(E) of the Code, shall not apply, effective December 18, 2006, to (1) 
The acquisition of certain stock rights (Stock Right(s)) by the Plan in 
connection with a Stock Rights offering by Revlon, Inc. (Revlon), a 
holding company that wholly owns Revlon Consumer Products Corporation 
(RCPC), a party in interest with respect to the Plan; (2) the holding 
of the Stock Rights by the Plan during the subscription period of the 
Stock Rights offering; and (3) the disposition or exercise of the Stock 
Rights by the Plan, provided that the following conditions were met:
    (a) The Stock Rights were acquired pursuant to Plan provisions for 
individually-directed investment of such accounts;
    (b) The Plan's receipt of the Stock Rights occurred in connection 
with a Stock Rights offering made available on the same terms to all 
shareholders of common stock of Revlon;
    (c) All decisions regarding the holding and disposition of the 
Stock Rights by the Plan were made, in accordance with the Plan 
provisions for individually-directed investment of participant 
accounts, by the individual Plan participants whose accounts in the 
Plan received Stock Rights in connection with the Stock Rights 
offering;
    (d) The Plan's acquisition of the Stock Rights resulted from an 
independent act of Revlon as a corporate entity, and all holders of the 
Stock 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 Stock Rights 
as other owners of Class A common stock.
    Effective Date: This exemption is effective as of December 18, 
2006.
    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 April 30, 2007 at 72 FR 
21303.

FOR FURTHER INFORMATION CONTACT: Khalif Ford of the Department, 
telephone (202) 693-8540 (this is not a toll-free number).

American Maritime Officers Safety & Education Plan (the S&E Plan) 
Located in Dania Beach, Florida and Toledo, Ohio

[Prohibited Transaction Exemption No. 2007-12; Exemption Application 
No. L-11365]

Exemption

    The restrictions of sections 406(a)(1)(C), and 406(a)(1)(D) of the 
Act shall not apply to the S&E Plan, doing business as the STAR Center, 
entering into an agreement with Kongsberg Maritime Simulator Inc. 
(Kongsberg), a party in interest, to provide certain services (the 
Services) to Kongsberg at the Dania Beach, Florida facility (the 
Facility) involving hydrodynamic and geographic modeling and training, 
provided that the following conditions are met:

[[Page 42131]]

    (a) The S&E Plan will charge and will be paid for the Services at 
the rates approved by the Board of Trustees of the S&E Plan (the 
Trustees) for similar services provided to unrelated third parties;
    (b) The terms of the arrangement between the S&E Plan and Kongsberg 
are at least as favorable to the S&E Plan as those obtainable in an 
arm's length transaction with an unrelated party;
    (c) An independent auditor will perform annual audits of the S&E 
Plan to identify and reconcile any recordkeeping discrepancies 
involving the Services; and
    (d) The S&E Plan will maintain, for a period of six (6) years, the 
records necessary to determine whether the conditions of this exemption 
have been met.
    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 April 30, 
2007, at 72 FR 21305.
    The Department received one comment with regard to the Notice. The 
commenter, the applicant, requested that the Department modify certain 
language contained in the Notice. Specifically, on page 21305 of the 
Notice, the operative language states the following:

    ``The restrictions of sections 406(a)(1)(C) and 406(a)(1)(D) of the 
Act shall not apply to the S&E Plan's, doing business as STAR Center, 
entering into an agreement with Kongsberg Maritime Simulator Inc. 
(Kongsberg), a party in interest, to provide certain services (the 
Services) to Kongsberg at the Dania Beach, Florida facility (the 
Facility) involving hydrodynamic and geographic modeling and training 
required in connection with Kongsberg's contract with the U.S. Navy, 
provided that the following conditions are met:''

    The applicant requests that the services described in the Notice 
not be limited to services provided in connection with the U.S. Navy 
contract. The applicant represents that the additional services that 
the applicant is requesting would be identical to those described in 
the Notice. The applicant further represents that the modification 
would be beneficial to the S&E Plan because the STAR Center would 
provide the services at prices that would be charged to an unrelated 
third party.
    After due consideration, the Department has adopted the commenter's 
request and accordingly, has modified the operative language to read as 
follows:

    ``The restrictions of sections 406(a)(1)(C), 406(a)(1)(D) of the 
Act shall not apply to the S&E Plan, doing business as the STAR Center, 
entering into an agreement with Kongsberg Maritime Simulator Inc. 
(Kongsberg), a party in interest, to provide certain services (the 
Services) to Kongsberg at the Dania Beach, Florida facility (the 
Facility) involving hydrodynamic and geographic modeling and training, 
provided that the following conditions were met:''

    The Department hereby grants the exemption and incorporates the 
modification described above.

FOR FURTHER INFORMATION CONTACT: Khalif Ford of the Department, 
telephone (202) 693-8562 (this is not a toll-free number).

Sheet Metal Workers Local Union 17 Insurance Fund (the Fund), Located 
in Boston, Massachusetts

[Prohibited Transaction Exemption 2007-13; Exemption Application 
Number: L-11382]

Exemption

    The restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the 
Act shall not apply to the purchase (the Purchase) by the Fund of a 
business condominium unit (Unit No. 1) from the Sheet Metal Workers 
International Association Local 17 Building Association, Inc. (the 
Building Corporation), a party in interest with respect to the Fund, 
provided that the following conditions are satisfied:

Conditions

    (a) The terms and conditions of the transaction are no less 
favorable to the Fund than those which the Fund would receive in an 
arm's length transaction with an unrelated party;
    (b) The Purchase of Unit No. 1 by the Fund is a one-time 
transaction for cash;
    (c) The Fund will not pay any sales commissions, fees, or other 
similar expenses to any party as a result of the proposed transaction;
    (d) The Fund will purchase Unit No. 1 from the Building Corporation 
for the lesser of (1) $800,000 or (2) the fair market value of the 
Property as determined on the date of the purchase by a qualified, 
independent appraiser;
    (e) The proposed transaction will be consummated only after a 
qualified, independent fiduciary, acting on behalf of the Fund, 
negotiates the relevant terms and conditions of the transaction and 
determines that proceeding with the transaction would be in the 
interest of the Fund; and
    (f) The independent fiduciary monitors the transaction on behalf of 
the Fund to ensure compliance with the agreed upon terms.
    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 June 1, 2007 at 72 FR 
30635.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (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 27th day of July, 2007.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. E7-14881 Filed 7-31-07; 8:45 am]

BILLING CODE 4510-29-P