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Secretary of Labor Thomas E. Perez
Grant of Individual Exemptions; Equitable Life Assurance Society [Notices] [05/18/1998]

EBSA (Formerly PWBA) Federal Register Notice

Grant of Individual Exemptions; Equitable Life Assurance Society [05/18/1998]

[PDF Version]

Volume 63, Number 95, Page 27328-27329

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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration
[Prohibited Transaction Exemption 98-20; Exemption Application No. D-
10355, et al.]

 
Grant of Individual Exemptions; Equitable Life Assurance Society

AGENCY: Pension and Welfare Benefits 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).
    Notices were published in the Federal Register of the pendency 
before the Department of proposals to grant such exemptions. The 
notices set forth a summary of facts and representations contained in 
each application for exemption and referred interested persons to the 
respective applications for a complete statement of the facts and 
representations. The applications have been available for public 
inspection at the Department in Washington, D.C. The notices also 
invited interested persons to submit comments on the requested 
exemptions to the Department. In addition the notices stated that any 
interested person might submit a written request that a public hearing 
be held (where appropriate). The applicants have represented that they 
have complied with the requirements of the notification to interested 
persons. No public comments and no requests for a hearing, unless 
otherwise stated, were received by the Department.
    The notices of proposed exemption were issued and the exemptions 
are being granted solely by the Department because, effective December 
31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 
47713, October 17, 1978) 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 exemptions are administratively feasible;
    (b) They are in the interests of the plans and their participants 
and beneficiaries; and
    (c) They are protective of the rights of the participants and 
beneficiaries of the plans.

Equitable Life Assurance Society of the United States (Equitable) 
Located in New York, New York; Exemption

[Prohibited Transaction Exemption 98-20; Exemption Application No. D-
10355]

    The restrictions of sections 406(a), 406(b)(1), and 406(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the 
Code shall not apply to the past and continuing lease (the Lease) of 
commercial space in One Boston Place by Equitable Separate Account No. 
8, also known as the Prime Property Fund (PPF), to an Equitable 
affiliate, Equitable Real Estate Investment Management, Inc. (ERE), 
provided the following conditions are satisfied:
    (1) All terms and conditions of the Lease are at least as favorable 
to PPF as could be obtained in an arm's length transaction with an 
unrelated party;
    (2) The interests of PPF for all purposes under the Lease is 
represented by an independent fiduciary, Lawrence A. Bianchi, a 
principal of the Codman Company in Boston, Massachusetts;
    (3) The rent paid by ERE at all times under the Lease is no less 
than the fair market rental value of the property; and
    (4) The independent fiduciary will continue to monitor the Lease on 
behalf of PPF.
    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 February 6, 1998 at 63 FR 
6214.

EFFECTIVE DATE: This exemption has an effective date of July 24, 1996.

FOR FURTHER INFORMATION CONTACT: Janet L. Schmidt of the Department, 
telephone (202) 219-8883 (This is not a toll-free number.)

Tyson Foods, Incorporated Employee Profit Sharing Plan and Trust 
(the Plan) Located in Springdale, Arkansas Exemption

[Prohibited Transaction Exemption 98-21; Exemption Application No. D-
10421]

    The restrictions of sections 406(a), 406(b)(1), and 406(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code, by reason of section 4975(c)(1) (A) through (E) of 
the Code shall not apply to the past sale by the Plan of certain 
hatcheries, a freezer facility and an office complex (collectively, the 
Properties), all located in Arkansas, to Tyson Foods, Incorporated (the 
Company), a party in interest with respect to the Plan, provided that 
the following conditions were satisfied:
    (A) All terms of the transactions were at least as favorable to the 
Plan as those which the Plan could obtain in an arm's-length 
transaction with an unrelated party;
    (B) The sale was a one-time transaction for cash;
    (C) The Plan paid no commissions nor other expenses relating to the 
sale;
    (D) The purchase price was the greater of: (1) the fair market 
value of each of the Properties as determined by a qualified, 
independent appraiser; or (2) the Plan's original acquisition cost; and
    (E) Prior to the sale, an independent fiduciary reviewed the 
transactions and determined that the transactions described herein, 
were appropriate and in the best interests of the Plan and its 
participants and beneficiaries.
    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 20, 1998 at 63 FR 
13693.

EFFECTIVE DATE: This Exemption has an effective date of May 23, 1997.

FOR FURTHER INFORMATION CONTACT: Janet L. Schmidt of the Department, 
telephone (202) 219-8883 (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 exemptions 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

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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 each 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 13th day of May 1998.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 98-13146 Filed 5-15-98; 8:45 am]
BILLING CODE 4510-29-P