Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Notices 79953 

1 29 CFR part 2570, subpart B (75 FR 66637, 

66644, October 27, 2011). For purposes of this 

proposed exemption, references to specific 

provisions of title I of ERISA unless otherwise 

specified, should be read to refer as well to the 

corresponding provisions of Code section 4975. 

If additional information is required 

contact: Darwin Arceo, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Two Constitution 

Square, 145 N Street NE, 4W–218, 

Washington, DC. 

Dated: September 26, 2024. 

Darwin Arceo, 

Department Clearance Officer for PRA, U.S. 

Department of Justice. 

[FR Doc. 2024–22534 Filed 9–30–24; 8:45 am] 

BILLING CODE 4410–04–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Exemption Application No. D–12084] 

Proposed Exemption From Certain 

Prohibited Transaction Restrictions 

Involving United Brotherhood of 

Carpenters and Joiners of America 

(the Applicant) Located in Washington, 

DC 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of proposed exemption. 

SUMMARY: This document provides 

notice of the pendency before the 

Department of Labor (the Department) of 

a proposed individual exemption from 

certain prohibited transaction 

restrictions of the Employee Retirement 

Income Security Act of 1974 (ERISA) 

and the Internal Revenue Code of 1986 

(the Code). This proposed exemption 

would provide an exemption for the 

Trustees of the United Brotherhood of 

Carpenters Pension Fund (the Plan) to 

sell 19.25 acres of improved real 

property (the Property) on behalf of the 

Plan to the United Brotherhood of 

Carpenters and Joiners of America 

(UBC) for cash (the Sale). The 

exemption, if granted, requires 

adherence to a number of conditions, 

including that an independent fiduciary 

will represent the Plan for all purposes 

with respect to the Sale. The amount of 

benefits that Plan participants are due 

under the Plan will not be affected by 

the exemption. 

DATES: 

Exemption date: If granted, the 

exemption would be in effect on the 

date that the grant notice is published 

in the Federal Register. 

Comments due: Written comments 

and requests for a public hearing on the 

proposed exemption should be 

submitted to the Department by 

November 15, 2024. 

ADDRESSES: All written comments and 

requests for a hearing should be 

submitted to the Employee Benefits 

Security Administration (EBSA), Office 

of Exemption Determinations, 

Attention: Application No. D–12084 via 

email to e-OED@dol.gov or online 

through https://www.regulations.gov. 

Any such comments or requests should 

be sent by the end of the scheduled 

comment period. The application for 

exemption and the comments received 

will be available for public inspection in 

the Public Disclosure Room of the 

Employee Benefits Security 

Administration, U.S. Department of 

Labor, Room N–1515, 200 Constitution 

Avenue NW, Washington, DC 20210, 

reachable by telephone at (202) 693– 

8673. See SUPPLEMENTARY INFORMATION

below for additional information 

regarding comments. 

FOR FURTHER INFORMATION CONTACT: 

Anna Mpras Vaughan of the 

Department, telephone (202) 693–8567. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: 

Comments: Persons are encouraged to 

submit all comments electronically 

without submitting paper versions. 

Comments should state the nature of the 

person’s interest in the proposed 

exemption and how the person would 

be adversely affected by the exemption, 

if granted. Any person who may be 

adversely affected by an exemption can 

request a hearing on the exemption. A 

request for a hearing must state: (1) The 

name, address, telephone number, and 

email address of the person making the 

request; (2) the nature of the person’s 

interest in the exemption and the 

manner in which the person would be 

adversely affected by the exemption; 

and (3) a statement of the issues to be 

addressed and a general description of 

the evidence to be presented at the 

hearing. The Department will grant a 

request for a hearing made in 

accordance with the requirements above 

where a hearing is necessary to fully 

explore material factual issues 

identified by the person requesting the 

hearing. The Department would publish 

a notice announcing such hearing in the 

Federal Register. The Department may 

decline to hold a hearing if: (1) the 

request for the hearing does not meet 

the requirements above; (2) the only 

issues identified for exploration at the 

hearing are matters of law; or (3) the 

factual issues identified can be fully 

explored through the submission of 

evidence in written (including 

electronic) form. 

Warning: All comments received will 

be included in the public record 

without change and may be made 

available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential or other 

information whose disclosure is 

restricted by statute. If you submit a 

comment, EBSA recommends that you 

include your name and other contact 

information in the body of your 

comment, but DO NOT submit 

information that you consider to be 

confidential, or otherwise protected 

(such as a Social Security number or an 

unlisted phone number) or confidential 

business information that you do not 

want publicly disclosed. However, if 

EBSA cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EBSA might not be 

able to consider your comment. 

Additionally, the https://

www.regulations.gov website is an 

‘‘anonymous access’’ system, which 

means EBSA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email directly 

to EBSA without going through https:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public record and 

made available on the internet. 

Proposed Exemption 

The Department is considering 

granting the exemption pursuant to its 

authority under ERISA section 408(a), 

and in accordance with the 

Department’s exemption procedures.1

This proposed exemption, if granted, 

does not provide relief from the 

requirements of, or specific sections of, 

any other law. Accordingly, the 

Applicant is responsible for ensuring 

compliance with any other laws 

applicable to the transactions covered 

by this proposed exemption. 

Benefits of the Exemption: As 

described in more detail below, the 

Department is proposing relief based, in 

part, on the Applicant’s representations 

that the Sale will permit the Plan, and 

its participants and beneficiaries, to 

earn approximately $4,317,500 to 

$4,620,000 more in net value than it 

would otherwise in a sale to an 

unrelated third party. Other benefits to 

the Plan are described below. 


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2The Summary of Facts and Representations is 

based on the Applicant’s representations and does 

not reflect factual findings or opinions of the 

Department at all times, unless indicated otherwise. 

The Department notes that the availability of this 

exemption, if granted, is subject to the express 

condition that the material facts and representations 

contained in application D–12084 (the Application) 

are true and complete, and accurately describe all 

material terms of the transactions covered by this 

exemption. If there is any material change in a 

transaction covered by this exemption, or in a 

material fact or representation described in the 

Application, the exemption will cease to apply as 

of the date of such change. 

3The Applicant states that the Plan elected to 

become a multiemployer plan in accordance with 

section 3(37)(G) of ERISA and meets the legislative 

definition of a multiemployer plan under 

3(37)(G)(vi). That section reads, ‘‘(vi) A plan is 

described in this clause if it is a plan sponsored by 

an organization which is described in section 

501(c)(5) of the Internal Revenue Code of 1986 and 

exempt from tax under section 501(a) of such Code 

1986 and which was established in Chicago, 

Illinois, on August 12, 1881.’’ The United 

Brotherhood of Carpenters Pension Fund is 

sponsored by the UBC, which is a 501(c)(5) 

organization, tax exempt under Section 501(a) of 

the Code, and was established in Chicago, Illinois, 

on August 12, 1881. 

4Employees of the Carpenters International 

Training Fund, The International LaborManagement Committee for the Floor and Wall 

Covering Industry, the UBC National Job Corps 

Training Fund, The United Brotherhood of 

Carpenters Pension Fund, and the Carpenters 

Legislative Improvement Committee may also be 

eligible for participation in the Fund. 

5The Applicant represents that, unlike other 

multiemployer plans, the Plan is not maintained by 

a collective bargaining agreement and, therefore, is 

not a ‘‘Taft-Hartley’’ plan, pursuant to section 

305(c)(5) of the Labor Management Relations Act. 

Because the Trustees of the Plan are appointed by 

either the UBC or UBC Local Unions and UBC 

Councils, none of the Trustees could be considered 

‘‘employer representatives,’’ which would be 

required for the plan to constitute a Taft-Hartley 

multiemployer plan. 6 76 FR 49789 (August 11, 2011). 

Summary of Facts and 

Representations 2

The UBC 

1. The United Brotherhood of 

Carpenters and Joiners of America 

(UBC) is an international labor 

organization with 725 local unions 

(UBC Local Unions) and 37 councils 

(the UBC Councils). As of June 20, 2023, 

the UBC had total assets of 

$694,351,926. According to the 

Applicant, a UBC Local Union is 

chartered by and affiliated with the UBC 

and represents the individual members 

of the UBC in its geographic area. In 

addition, the Applicant states that each 

UBC Council is affiliated with a UBC 

Local Union and the various UBC 

Councils are affiliated to the UBC by the 

UBC Constitution. However, the 

Applicant states that the UBC Councils 

are separate legal entities from the UBC 

and the UBC does not control the UBC 

Councils affiliated with it. Further, the 

Applicant states that none of the 

trustees appointed by the UBC Councils 

are officers of the UBC, and no agency 

relationship exists between the UBC and 

the UBC Councils. 

The Plan 

2. The United Brotherhood of 

Carpenters Pension Fund (the Plan) is a 

defined benefit multiemployer pension 

plan, located in Las Vegas, Nevada.3

The Plan provides defined benefit 

pension retirement benefits to full-time 

officers or representatives employed by 

a UBC Local Union, UBC Council, other 

designated representatives of a UBC 

Local Union or UBC Council, or persons 

who are United States residents and 

determined to be representative of or 

professional, management, or 

confidential employees of the UBC.4 As 

of December 31, 2022, the Plan had 

4,627 participants; and as of June 30, 

2023, the Plan had approximately 

$931,860,235 in assets. According to the 

Plan’s annual funding notice issued in 

April 2022, the Plan had a funded 

percentage of 99.3% as of January 1, 

2021. 

3. The Plan is sponsored and 

administered by a Board of Trustees (the 

Board). The Board is made up of six (6) 

trustees who are current and former 

members of the UBC Executive Board 

(the UBC Trustees) and five (5) trustees 

who are appointed by officers of UBC 

Local Unions or UBC Councils (the 

Council Trustees).5 The UBC Trustees 

and the Council Trustees may be 

referred to collectively as the 

‘‘Trustees.’’ The Applicant represents 

that the UBC is an employee 

organization whose members are 

covered by the Plan, as well as an 

employer of employees who are covered 

by the Plan, and as such is a party in 

interest with respect to the Plan 

pursuant to ERISA section 3(14)(C) and 

(D). 

The Property 

4. The Plan owns the Property 

through its wholly-owned LLC, 

Bermuda Hidden Well, LLC (Bermuda 

LLC), a limited liability corporation 

incorporated by the Plan on April 19, 

2001 in the State of Delaware. Bermuda 

LLC was originally formed to hold real 

property on behalf of the Plan and is 

managed on behalf of the Plan by 

Washington Capital Management, Inc. 

(WCM), who serves as the Plan’s 

independent fiduciary and an 

‘‘Investment Manager’’ under ERISA 

section 3(38) with respect to the 

holdings of Bermuda LLC. 

5. The Property consists of 19.25 acres 

located at 6855 Bermuda Road, Las 

Vegas, Clark County, Nevada 89119. The 

Property has been specifically 

developed for car rental operations and 

is currently improved with various 

structures, including an office, a car 

wash building with fuel area, and a 

shop building, along with surface and 

covered parking spaces and a few kiosk 

guard shack buildings. The total 

building area comprises 45,321 square 

feet. 

6. The Property was originally a 

portion of a larger 30.14 acre parcel (the 

Original Parcel) that was acquired by 

the Plan on June 11, 2011, from LVAirport Investors, LLC, an unrelated 

party, for a total cash price of 

$10,464,126. The Original Parcel was 

subdivided and a 10.89 acre portion (the 

Adjacent Parcel) was sold to the 

Southwest Regional Council of 

Carpenters (the Southwest Council) in 

2011 pursuant to PTE 2011–15.6

7. The UBC then acquired the 

Adjacent Parcel from the Southwest 

Council in 2017. The Applicant 

represents that the Adjacent Parcel 

abuts the Carpenters International 

Training Center (on the side opposite 

the Property), which is a UBC memberowned training facility. 

8. When the Property was acquired by 

the Plan, it was subject to and 

encumbered by a lease between lessee 

Alamo Rent-A-Car, LLC and Lessor LVAirport Investors, LLC, effective April 

12, 2001, for an initial term of twenty 

(20) years, with two (2) renewal terms 

of five (5) years each (the 2001 Lease). 

The monthly basic rent under the 2001 

Lease was $75,708.33 for an annual 

basic rent of $908,500.00. Since 2001, 

the lessee has changed over the years. 

Vanguard Car Rental USA, Inc. became 

the successor in interest to Alamo 

Rental (US) Inc., which was the 

successor in interest to Alamo Rent-ACar, LLC. The current lessee, Enterprise 

Leasing Company-West, LLC 

(Enterprise), eventually became the 

successor-in-interest to Vanguard Car 

Rental USA, Inc. The Plan (through 

Bermuda LLC) became the lessor in 

2011 following the purchase of the 

Original Parcel that included the 

Property. 

9. The 2001 Lease was scheduled to 

expire in April 2021. In preparation for 

discussions with the current lessee over 

a possible renewal term, WCM engaged 

Valuation Consultants, Inc. to complete 

an appraisal and rental study of the 

Property (the June 2020 Appraisal). The 

June 2020 Appraisal demonstrated that 

rent escalations in Enterprise’s 20-year 

lease had lagged far behind market 

rental rates. The Applicant states that 

considering the June 2020 Appraisal 

findings, any rental rate agreed to 


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7The Applicant represents further that other car 

rental companies would be unlikely to enter into a 

long-term lease for the Property due to the land’s 

increasing value for this limited purpose. 

8As described in more detail below, the 

Applicant states the sale to the UBC would generate 

an additional profit of $3,410,000 to the Plan as 

compared to a sale to an unrelated third party. 

9A discussion of the whether the purported 

recusal may be effective to negate a violation of 

ERISA section 406(b) is found below. Further, the 

Department notes that the Council Trustees 

themselves may have an interest in the UBC that 

could affect their decision making as fiduciaries of 

the Plan. 

10The Council Trustees prepared a request for 

proposal for an independent fiduciary to oversee 

the sale of the Property pursuant to which 

candidates were asked, among other things, to 

provide: examples of similar independent fiduciary 

services to other clients; their knowledge and 

experience of the Las Vegas real estate market; their 

process for selecting appraisers, reviewing 

appraisals, and analyzing the adequacy of the 

appraisal methodologies; and their experience with 

appraisers and understanding how to oversee the 

appraisal process. The Department is not expressing 

a view whether the process followed by the Council 

Trustees was prudent, as such matter is outside the 

scope of this application. 

11Unless otherwise provided, Mr. Newsom and 

Ms. Eckel are referred to herein collectively as 

‘‘Shumaker.’’ 

between WCM and the current lessee 

should be significantly higher than the 

rent the lessee had been paying under 

the 2001 Lease. Based on the rate 

increase, impact of the Covid pandemic 

on the Las Vegas economy, and its 

internal needs, Enterprise decided not 

to renew the 2001 Lease and to negotiate 

its gradual exit from the 2001 Lease. To 

this end, the Plan entered into several 

short-term lease extensions with 

Enterprise that included early right of 

termination clauses in favor of the Plan. 

Most recently, the Plan and Enterprise 

entered into an amendment of the 2001 

Lease extending the expiration date for 

a portion of the Property through 

December 31, 2024. The Plan is 

permitted to terminate the 2001 Lease 

before December 31, 2024, upon 90 

days’ written notice. 

Decision To Sell the Property 

10. The Plan’s immediate goal was to 

receive fair market value rental rate for 

the lease of the Property upon the 

termination of Enterprise’s lease. Based 

on analyses by Valuation Consultants, 

Inc. and guidance from WCM, a new 

tenant was not likely to enter a longterm lease at the Property’s current fair 

market rental value. Furthermore, the 

Property had been modified to 

specifications that suited Enterprise’s 

operations (rental car business with 

attached storage and maintenance 

facilities). Following an evaluation 

process in the fourth quarter of 2020, 

WCM reported that it appeared unlikely 

that the Plan could secure another longterm lease without significantly 

redeveloping the Property to reposition 

it for a new tenant that was not in the 

car rental business.7 WCM identified 

that the highest and best use of the 

Property would be to redevelop it with 

light industrial buildings. 

11. WCM determined that, in order to 

receive the most value in connection 

with the Plan’s investment in the 

Property, and to avoid additional 

redevelopment costs and maintenance 

expenses, the Plan could sell the 

Property to the UBC.8 As discussed 

below, the UBC owns a parcel of 

property that is adjacent to the Property, 

and the Property is in close proximity 

to the Carpenters International Training 

Center. The Applicant states that no 

third party has inquired about 

purchasing the Property, and the UBC 

does not intend to sell the Property to 

a third party after its acquisition from 

the Plan. The Applicant represents that 

the UBC plans to develop the Property 

into two light industrial buildings to 

accommodate the UBC’s expansion of 

its International Training Center. 

12. The Applicant represents that the 

UBC Trustees recused themselves and 

abstained from any and all discussions 

concerning the potential Sale of the 

Property to the UBC, and that only the 

Council Trustees participated in the 

decision to sell the Property to the 

UBC.9 The Council Trustees decided 

that the Sale to the UBC was the most 

appropriate approach given the Plan’s 

goals. The Council Trustees ultimately 

determined that it would be appropriate 

to engage an independent fiduciary 

other than WCM to oversee and 

ultimately determine whether the Plan 

will complete the proposed Sale. 

The Independent Fiduciary 

13. The Plan engaged Shumaker, Loop 

& Kendrick LLP (Shumaker or the 

Independent Fiduciary) as the Plan’s 

Independent Fiduciary with respect to 

the proposed Sale pursuant to an 

engagement agreement dated December 

5, 2022. The Applicant represents that 

the Council Trustees engaged in a 

prudent process on behalf of the Plan to 

select Shumaker as the independent 

fiduciary.10

14. Scott D. Newsom and Beth M. 

Eckel of Shumaker were retained to 

carry out the independent fiduciary 

duties of Shumaker to the Plan.11 Mr. 

Newsom represents that he has over 20 

years of experience in employee benefits 

law and ERISA, primarily representing 

multiemployer benefit plans in all 

aspects of their maintenance and 

fulfillment of the Board of Trustees’ 

fiduciary obligations. Ms. Eckel 

represents that she has 13 years of 

experience as a real estate attorney 

focused on commercial real estate and 

financing matters. Ms. Eckel states she 

has broad experience in representing 

developers, owners, lenders, borrowers 

and large and small businesses in a 

wide range of transactions, including 

the acquisition, disposition, leasing, 

financing, construction and 

development of real property. 

15. Shumaker represents that the 

revenue received from its engagement as 

Independent Fiduciary for the Plan is 

less than two percent of its gross 

revenue for the 2021 federal income tax 

year, and less than 3.3 percent of its 

gross revenue for the 2022 federal 

income tax year. Shumaker does not 

have any interest in the proposed 

transaction other than the compensation 

it will earn by serving as Independent 

Fiduciary for the proposed Sale. 

Furthermore, Shumaker represents that 

it (1) has not entered into, and under the 

terms of the proposed exemption would 

not at any time enter into, any 

agreement, arrangement, or 

understanding that includes any 

provision providing for it to be directly 

or indirectly indemnified or reimbursed 

by the Plan or any other party if 

Shumaker fails to adhere to its 

contractual obligations or those imposed 

by any state or Federal laws applicable 

to the Independent Fiduciary’s work; (2) 

the Plan has not waived and will not 

waive any rights, claims, or remedies of 

the Plan under ERISA, state, or Federal 

law against Shumaker with respect to 

the proposed Sale. 

16. Shumaker acknowledges its 

responsibilities under ERISA as an 

Independent Fiduciary acting on behalf 

of the Plan with respect to the Proposed 

Sale. The Applicant and Shumaker 

confirm that Shumaker will determine 

whether the Plan proceeds with the 

Sale. Further, Shumaker states that it: 

does not have a past or ongoing 

relationship with the UBC except for the 

services provided to the Plan as 

Independent Fiduciary with respect to 

the proposed Sale; has not had and 

currently does not have any relationship 

with any UBC Locals or any individual 

trustees on the board of the Plan. 

17. In accordance with ERISA 

sections 404(a)(1)(A) and (B), Shumaker, 

as the Plan’s Independent Fiduciary, 

must prudently and loyally perform the 

following in connection with the 

proposed Sale and the exemption, if 

granted: (i) represent the interests of the 

Plan in the Sale; (ii) determine that the 

Sale is in the interest of, and protective 

of the rights of, the Plan and its 

participants and beneficiaries; (iii) 

determine that the Sale price is in the 


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12ERISA section 410 generally provides that any 

provision in an agreement or instrument that 

purports to relieve a fiduciary for responsibility or 

liability for any responsibility, obligation, or duty 

under Part I of Title I of ERISA is void against 

public policy. 

13Shumaker and Cushman are parties to an 

engagement agreement dated and executed on 

December 26, 2022. 

14The Applicant notes that the QIA also 

performed an appraisal in January 2022 on behalf 

of the Plan in order to assist WCM in determining 

the ‘‘highest and best use’’ of the Property. 

15The 2022 Appraisal contains detailed analysis 

which is available by contacting the Public 

Disclosure Room of the Employee Benefits Security 

Administration, U.S. Department of Labor, Room 

N–1515, 200 Constitution Avenue NW, Washington, 

DC 20210. Please reference D–12084. 

16As described above, the Original Parcel (30.14 

acres previously owned by the Plan in its entirety) 

was subdivided into the Property (19.25 acres 

currently owned by the Plan) and the Adjacent 

Parcel (10.89 acres currently owned by the UBC). 

17The 2022 Appraisal provides that the total 

value of architect, engineer, and development 

studies and other activities paid for by the Plan, 

which add to the value of the Property if purchased 

by the UBC is $270,000 (rounded). 

18The 2022 Appraisal will be updated prior to 

closing with a subsequent appraisal. 

interest of, and protective of the rights 

of, the Plan and its participants and 

beneficiaries; (iv) review and approve 

the terms and conditions of the Sale in 

the Independent Fiduciary’s sole 

discretion and further negotiate any 

conditions they consider to be in the 

interest of the Plan, in accordance with 

their fiduciary duties; (v) independently 

and prudently engage the qualified 

independent appraiser, Cushman & 

Wakefield of Nevada, Inc. (Cushman or 

the QIA), for the Sale; (vi) review and 

approve the methodology used by the 

QIA and ensure that such methodology 

is properly applied in determining the 

Property’s fair market value on the date 

of the Sale; (vii) monitor the Sale 

throughout its duration consistent with 

its duties as a prudent plan fiduciary; 

(viii) ensure that the QIA renders an 

updated fair market valuation of the 

Property as of the date of the Sale; (ix) 

determine whether it is prudent to 

proceed with the Sale; (x) refrain from 

entering into any agreement, 

arrangement or understanding that 

violates ERISA section 410; 12 (xi) 

ensure compliance with the general 

terms of the proposed transaction and 

with the conditions of the proposed 

exemption; (xii) take any appropriate 

actions to safeguard the interests of the 

Plan and its participants and 

beneficiaries; and (xiii) submit a written 

report to the Department not later than 

90 days after the Sale has been 

completed demonstrating that each 

exemption condition has been met. 

The QIA 

18. Shumaker engaged the appraisal 

firm Cushman to conduct an appraisal 

of the Property in connection with the 

application in December of 2022 (the 

2022 Appraisal).13 Shumaker states that 

it selected Cushman after a prudent 

process that considered the appraiser’s 

reputation, expertise, and experience, 

and well as its familiarity with the 

Property and requirements of appraisals 

that would be utilized in connection 

with applications for a prohibited 

transaction exemption. Shumaker also 

evaluated Cushman’s independence 

from the parties in interest involved in 

the proposed transaction and 

determined that Cushman had no 

interest in the proposed Sale of the 

Property or the parties to the transaction 

that could affect its independence.14

19. Cushman’s employee, Petra Latch 

(MAI) conducted the 2022 Appraisal. 

Ms. Latch is a certified general appraiser 

in Nevada. In addition to providing 

appraisal services, Ms. Latch serves in 

various positions on local Appraisal 

Institute and real estate industry boards. 

20. Cushman represents that it has no 

relationship to any parties in interest or 

their affiliates engaging in the proposed 

transaction. Further, Cushman 

represents that it has no interest in the 

Property or the outcome of the 

transaction and certifies that the gross 

revenue from the Plan or any party in 

interest (and any of their affiliates) for 

2022 is less than two (2) percent of its 

annual revenue based upon its income 

for the prior federal income tax year. 

21. The QIA has not entered into, and 

must not at any time enter into, any 

agreement, arrangement, or 

understanding that includes any 

provision that provides for the direct or 

indirect indemnification or 

reimbursement of the QIA by the Plan 

or any other party for any failure by the 

QIA to adhere to its contractual 

obligations or those imposed by state or 

Federal laws applicable to the QIA’s 

work. Additionally, the Plan has not 

waived and will not waive any rights, 

claims or remedies of the Plan or its 

participants and beneficiaries under 

ERISA, the Code, or other Federal and 

state laws against the QIA with respect 

to the subject matter of the exemption. 

The Appraisal 

22. The 2022 Appraisal gave an ‘‘as 

is’’ fair market value of the Property of 

$30,325,000.15 In addition, the 2022 

Appraisal concluded that the Property 

was particularly valuable to the UBC 

because the UBC owned land that was 

adjacent to the Property. The 2022 

Appraisal therefore increased the ‘‘as is’’ 

value of the Property by $3,410,000 (the 

‘‘assemblage increase’’).16 The 2022 

Appraisal also quantified the 

contributory value of costs spent to date 

by the Plan for the proposed redevelopment of the Property, as 

$270,000 (the ‘‘contributory costs’’), and 

further increased the value of the 

Property by that additional amount.17

23. Shumaker reviewed the 2022 

Appraisal and found that the QIA’s 

analysis was reasonable and consistent 

with the type of substantive professional 

report that Shumaker expected when it 

engaged the QIA, which is an appraisal 

firm with a national reputation. 

Shumaker states that it does not have 

any concerns that the report was 

deficient, inaccurate, or not performed 

in accordance with the QIA’s 

professional standards. 

Relevant Sale Terms 

24. The Plan’s counsel negotiated the 

terms of the proposed Purchase and Sale 

Agreement and Joint Escrow 

Instructions (the Sale Agreement), 

which were reviewed and approved by 

the Independent Fiduciary. According 

to the terms of the Sale Agreement, the 

UBC will pay the Plan the greater of: (a) 

$33,930,000, which is the sum of the 

Property’s ‘‘as is’’ price ($30,250,000), 

plus the ‘‘assemblage increase’’ 

($3,410,000), plus the Plan’s 

‘‘contributory costs’’ ($270,000)); or (b) 

the fair market value of the Property as 

established by a qualified independent 

appraiser in an updated appraisal of 

such Property on the date of the Sale.18

Further, the Plan will pay no fees, 

commissions or other expenses 

associated with the Property’s Sale. 

Clawback for Subsequent Sales by the 

UBC 

25. In determining whether to propose 

the relief requested by the Applicant, 

the Applicant’s representations that the 

UBC was an appropriate purchaser of 

the Property (as opposed to other third 

parties) due to its ownership of adjacent 

property and the UBC’s payment of a 

premium in the form of an assemblage 

increase was an important consideration 

to the Department. In addition, the 

Applicant’s representation that it did 

not plan to resell the Property to a third 

party—instead, it planned to expand its 

International Training Center, located 

adjacent to the Property—was material 

to the Department’s consideration of 

whether to propose relief. 

26. However, due to uncertainties 

about the present and future value of the 

Property, the Department is concerned 

that UBC could subsequently sell the 

Property for an additional profit that 


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19As described above, the Applicant represents 

that it is unlikely other car rental companies would 

enter into a long-term lease due to the high rental 

rate that would be required for that purpose, and 

it was also unlikely that the UBC Pension Fund 

could secure a long-term lease with a tenant in 

another industry without significantly redeveloping 

the Property. 

20The Department expresses no opinion herein 

on whether, under these facts, any build to use 

leasing arrangement between the Plan and UBC 

would meet the requirements of Prohibited 

Transaction Exemption 76–1 (41 FR 12740, March 

26, 1976, as corrected by 41 FR 16620, April 20, 

1976), or any other administrative exemption, to 

qualify for exemptive relief from the prohibited 

transaction provisions of ERISA sections 406(a) and 

407(a). 

could have been captured by the Plan. 

To address this concern, the Department 

has included a ‘‘clawback’’ provision in 

Section III(h) of the proposed exemption 

that would become effective if the UBC 

sells the Property within 10 years after 

the date of the Sale for a price that is 

greater than the proceeds received in the 

Sale by the Plan. In such event, the 

excess of such sale price over the 

amount received by the Plan will be 

contributed in cash by the UBC to the 

Plan as of the end of the Plan year 

following the date of such subsequent 

sale. The clawback provision would 

apply if UBC sells the whole Property or 

subdivides and sells a portion of the 

Property. 

27. The Department is also concerned, 

due to the potential future value of the 

Property and its location in a prime area 

near the Las Vegas airport and the Las 

Vegas Strip, that the UBC may decide in 

the future to monetize the Property, via 

lease or other means, in a manner 

inconsistent with its stated rationale for 

purchasing the Property. As described 

above, this proposed exemption is 

predicated, in part, on the 

representations of the parties that the 

UBC intends to use the Property to 

expand its International Training 

Center, and not as a means of obtaining 

a profit that could otherwise have 

redounded to the benefit of the Plan. 

Therefore, the exemption would require 

the UBC to contribute to the Plan an 

amount in cash equal to 51 percent of 

the gross revenue received from the 

UBC’s use of the Property in a manner 

or for a purpose that is inconsistent with 

the UBC’s stated intention to expand its 

International Training Center and/or 

provide union-related services to 

members of the UBC. This obligation 

would apply to any such revenue 

earned during the 10 years following the 

date of Sale and such amounts must be 

contributed by the UBC to the Plan by 

the end of the Plan year following the 

year in which such revenue is earned. 

Independent Fiduciary Analysis and 

Conclusion 

28. Benefit to the Plan. Shumaker 

states that the proposed Sale to the UBC 

would allow the Plan to realize a 

previously unrealized gain that UBC 

could re-invest without delay. 

Specifically, the Plan would receive 

approximately $33,930,000 for the 

Property, representing a significant gain 

of approximately 407.43% on the 

$6,686,576.50 portion of the original 

$10,387,619.55 acquisition cost 

attributable to the Property. The Plan’s 

investment managers could invest the 

sales proceeds immediately in 

accordance with the Plan’s overall 

investment policy statement and asset 

allocation strategy. 

29. Shumaker also represents that the 

proposed Sale allows the Plan to sell the 

Property at a premium due to the 

assemblage value through the Property’s 

combination with the Adjacent Parcel 

owned by the UBC. This assemblage 

value adds an additional 11.27% 

($3,410,000) to the purchase price. If the 

Plan desired to market the Property to 

third parties, the 2022 Appraisal 

indicates that a resulting purchase price 

of $30,250,000 would be anticipated. 

Further, the Plan would incur a 

commission on a sale to a third party of 

at least 3–4%. Assuming a sale price of 

$30,250,000, the Plan would be 

expected to pay an additional amount of 

$907,500 to $1,210,000 in sales 

commissions. The proposed Sale would 

not require a commission to be paid to 

any listing or commercial real estate 

agent. Therefore, a sale of the Property 

by the Plan to an unrelated third-party 

at ‘‘As Is’’ fair market value would be 

anticipated to result in approximately 

$4,317,500 to $4,620,000 less than the 

proposed Sale (the lost assemblage 

value plus the otherwise avoided 

commissions). 

30. In addition, Shumaker states that 

the proposed Sale to the UBC offers the 

Plan an opportunity to resolve its issues 

with the Property in an efficient and 

timely manner. Shumaker states that the 

planned expiration of the 2001 Lease 

means that the Plan needs to address its 

future plans for the Property effectively 

at this time to avoid the loss of income 

from the rental payments and the added 

expense of maintenance costs from an 

unproductive piece of property.19

31. Shumaker also states that the 

proposed Sale allows the Plan to avoid 

the expense of redeveloping the 

Property for sale to a third party. As 

determined by the 2022 Appraisal, the 

highest and best use of the Property 

would be achieved through the 

demolition of the buildings following 

the expiration of the 2001 Lease and the 

redevelopment of the Property with 

industrial use, or mixed use that 

includes industrial, office and 

supporting commercial uses. However, 

redevelopment to achieve such highest 

and best use would present risks and 

challenges to transition the Property. In 

the 2022 Appraisal, Cushman warned 

that ‘‘Construction costs are escalating, 

and a redevelopment plan of this size 

might require a three-year time period 

during which time there is risk related 

to costs.’’ 

32. Further, Shumaker states that the 

proposed Sale would relieve the Plan of 

the risks inherent in preparing the 

Property for market or attempting to 

redevelop the Property itself. According 

to Shumaker, the potential lack of 

income or investment gain from the 

Property over a several year 

development period (compared to an 

assumed 7.5% return on Plan 

investments), the up-front cost of any 

development (including risk of 

escalating costs), and the risk of 

selecting the right type of 

redevelopment to increase the value of 

the Property above what would be 

realized by the proposed Sale, all seem 

unnecessary and speculative risks for 

the Plan to take on when compared to 

the availability of a one-time sale. 

Similarly, Shumaker suggests that the 

development of the Property by the Plan 

in accordance with the desires of the 

UBC or a related party for a build-tolease type arrangement would require 

an ongoing business relationship 

between the Plan and the UBC over an 

extended period-of-time and 

compliance with an administrative 

exemption, which involves additional 

ongoing compliance and administrative 

burdens.20

33. Conclusion of the Independent 

Fiduciary. Shumaker concludes that the 

proposed Sale would: provide the Plan 

with the opportunity to sell the Property 

for a significant gain above and beyond 

that which it would receive in a sale 

with an unrelated third party buyer; 

avoid leaving the Plan with an 

unproductive, passive investment asset; 

and eliminate the risk of loss and loss 

of investment opportunity associated 

with the necessary redevelopment of the 

Property and the time associated with 

that process if the Plan opted to lease 

the Property to a new lessee. 

34. Shumaker states that the terms 

and conditions of the proposed Sale 

Agreement are at least as favorable to 

the Plan as those obtainable in an arm’s 

length transaction with an unrelated 

party. Subject to the terms of the 

exemption, if granted by the 

Department, the UBC has borne and will 

continue to bear the costs of the 


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21ERISA section 3(4) provides, in pertinent part, 

that the term ‘‘employee organization’’ means any 

labor union or organization of any kind in which 

employees participate and which exists for the 

purpose, in whole or in part, of dealing with 

employers concerning an employee benefit plan or 

other matters incidental to employment 

relationships; or any employees’ beneficiary 

association organized for the purposes in whole or 

in part, of establishing such a plan. 

22ERISA section 3(21)(A) provides, in pertinent 

part, that a person is a ‘‘fiduciary’’ with respect to 

a plan to the extent (i) he exercises any 

discretionary authority or discretionary control 

respecting management of such plan or exercises 

any authority or control respecting management or 

disposition of its assets, (ii) he renders investment 

advice for a fee or other compensation, direct or 

indirect, with respect to any moneys or other 

property of such plan, or has any authority or 

responsibility to do so, or (iii) or he has any 

discretionary authority or discretionary 

responsibility in the administration of such plan. 

23The Applicant represents above that the UBC 

Councils are not controlled by the UBC, none of the 

Trustees appointed by the UBC Councils are officers 

of the UBC, and no agency relationship exists 

between the UBC and the UBC Councils. 

24The Department cautions that the 

determination as to whether the UBC Trustees’ 

recusal from certain aspects of the proposed Sale 

negates a violation of ERISA section 406(b)(1) or (2) 

is inherently factual in nature and beyond the scope 

of this proposed exemption. 

25The Department notes that ‘‘[the] prohibitions 

[of ERISA section 406(b)] are imposed upon 

fiduciaries to deter them from exercising the 

authority, control, or responsibility which makes 

such persons fiduciaries when they have interests 

which may conflict with the interests of the plans 

for which they act. In such cases, the fiduciaries 

have interests in the transaction which may affect 

the exercise of their best judgment as fiduciaries.’’ 

See DOL Reg 2550.408b–2(e)(1). 

26The Department is not taking a view whether 

a violation of ERISA section 406 has occurred or 

will occur due to the actions of the Council 

Trustees or the UBC Trustees, as such conclusions 

are inherently factual in nature and are outside the 

scope of this proposed exemption. Exemptive relief 

is being provided only in the event that the actions 

of the Trustees constituted a violation of ERISA 

section 406(b). 

exemption application, and the Plan 

will bear costs for the Independent 

Fiduciary and the QIA. The proposed 

Sale would be a one-time cash 

transaction and would not require any 

additional continued oversight by the 

Department. 

35. Lastly, to further ensure the 

protection of the Plan and its members, 

Shumaker states it will continue to 

monitor the Sale, enforce the final 

terms, and take whatever actions are 

necessary to protect the interests of the 

Plan’s participants and beneficiaries 

through closing. Finally, as described 

above, Shumaker has reviewed and 

approved the terms and conditions of 

the Sale in its sole discretion and will 

further negotiate any conditions 

Shumaker concludes are in the interest 

of the Plan in accordance with 

Shumaker’s fiduciary duties. 

Legal Analysis of the Exemptive Relief 

Requested 

36. The Applicant has requested an 

administrative exemption from the 

Department because the proposed Sale 

would violate several ERISA provisions. 

ERISA section 406(a)(1)(A) provides that 

a plan fiduciary shall not cause a plan 

to engage in a transaction if the 

fiduciary knows or should know that 

the transaction constitutes a direct or 

indirect sale or exchange, or leasing, of 

any property between a plan and a party 

in interest. Further, ERISA section 

406(a)(1)(D) prohibits a plan fiduciary 

from causing a plan to engage in a 

transaction if the fiduciary knows or 

should know that such transaction 

constitutes a direct or indirect transfer 

to or use of any plan assets for the 

benefit of a party in interest. ERISA 

section 3(14)(D) defines the term ‘‘party 

in interest’’ to include an employee 

organization any of whose members are 

covered by such plan.21 ERISA section 

3(14)(A) defines the term ‘‘party in 

interest’’ to include any fiduciary of 

such plan.22 Thus, the Trustees, as 

fiduciaries to the Plan and the UBC as 

an employee organization whose 

members are covered by the Plan are 

parties in interest with respect to the 

Plan, pursuant to ERISA sections 

3(14)(A) and 3(14)(D), respectively. 

Accordingly, the proposed Sale would 

constitute a violation of ERISA Section 

406(a)(1)(A) and (D). 

37. ERISA section 406(b)(1) provides 

that a fiduciary with respect to a plan 

shall not deal with the assets of the plan 

in his own interest or for his own 

account. Further, ERISA section 

406(b)(2) provides that a fiduciary with 

respect to a plan shall not in his 

individual or in any other capacity act 

in any transaction involving the plan on 

behalf of a party (or represent a party) 

whose interests are adverse to the 

interests of the plan or the interests of 

its participants or beneficiaries. 

38. The Applicant states that the 

decisions regarding the Sale and the 

Independent Fiduciary were made by 

Trustees that were appointed by the 

UBC Councils, because the UBC 

Trustees recused themselves from any 

such decisions.23 The Applicant 

suggests that the recusal of the UBC 

Trustees from any decisions with 

respect to the proposed Sale or the 

hiring of the Independent Fiduciary 

obviates any violation for fiduciary selfdealing under ERISA section 406(b)(1) 

or (2), because such decisions were 

made by the Council Trustees.24

However, the Department does not agree 

that the Council Trustees’ decision 

making regarding the Sale and the 

Independent Fiduciary did not involve 

a violation of ERISA section 406(b)(1) or 

(2). In this regard, the record does not 

demonstrate that the Council Trustees 

are independent of the UBC or that the 

Council Trustees do not have an interest 

in the UBC that would affect the 

exercise of their best fiduciaries.25 As 

described above, each UBC Council is 

affiliated with a UBC Local Union and 

the various UBC Councils are affiliated 

to the UBC by the UBC Constitution. 

Further, the Council Trustees are 

members of the UBC and represent other 

members of the UBC. Accordingly, 

exemptive relief from ERISA sections 

406(b)(1) and 406(b)(2) is being 

proposed because the Council Trustees’ 

actions on behalf of the Plan in 

connection with the Sale, including by 

selecting the Independent Fiduciary, 

may constitute prohibited transactions, 

and because whether the UBC Trustees 

effectively recused themselves from all 

decision-making regarding the Sale is a 

factual matter outside the scope of this 

exemption.26

39. In accordance with the above, the 

Department is proposing an exemption 

from ERISA sections 406(a)(1)(A), 

406(a)(1)(D), 406(b)(1), and 406(b)(2), for 

the Sale by the Trustees on behalf of the 

Plan to the UBC, only if the 

Independent Fiduciary is responsible 

for the ultimate decision to complete the 

Sale on behalf of the Plan, reviews and 

approves the terms and conditions of 

the Sale, and represents the interests of 

the Plan for all purposes in connection 

with the Sale; and the parties adhere to 

all the conditions for the exemption. 

Statutory Findings 

40. The proposed exemption is 

‘‘Administratively Feasible.’’ The 

Department has tentatively determined 

that the proposed exemption is 

administratively feasible for the 

Department because, among other 

things, the Sale would be a one-time 

cash transaction. Furthermore, the 

conditions for the exemption require the 

Independent Fiduciary to monitor the 

parties’ adherence to the terms of the 

Sale and the conditions of the 

exemption throughout the transaction 

and submit a report to the Department 

Plan not later than 90 days after the Sale 

has been completed demonstrating that 

each exemption condition has been met. 

41. The proposed exemption is ‘‘In 

the Interests of the Plan.’’ The 

Department has tentatively determined 

that the proposed exemption is in the 

interests of the Plan because the 

proposed Sale would: (i) provide the 

Plan with a Sale price that significantly 

exceeds the Property’s fair market value 

compared to what the Plan would 


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receive in a transaction with an 

unrelated third party buyer due to the 

assemblage value; (ii) avoid the Plan’s 

holding of an unproductive passive 

investment asset, and the time and 

expense the Plan would incur to make 

the Property suitable to lease or sell to 

a new, third party buyer or lessee that 

is not in the rental car business. In 

addition, the Plan would not pay any 

commissions, expenses or fees in 

connection with the proposed Sale nor 

bear the costs associated with the 

exemption application or notifying 

interested persons. 

42. The proposed exemption is 

‘‘Protective of the Plan.’’ The 

Department has tentatively determined 

that the proposed exemption is 

protective of the rights of the Plan’s 

participants and beneficiaries because, 

among other things, an Independent 

Fiduciary has reviewed the proposed 

Sale, the financial status of the Plan, the 

appraised value of the Property, and the 

terms of the Sale, and determined that 

the terms and conditions are protective 

of the rights of the Plan and its 

participants and beneficiaries. Further, 

among other things, the Independent 

Fiduciary would be required to provide 

a written report to the Department 

demonstrating that all of the 

exemption’s conditions have been met 

within 90 days after of the proposed 

Sale. To further protect the rights of the 

participants and beneficiaries of the 

Plan, the exemption includes a 

‘‘clawback’’ provision the Department 

designed to ensure that the Plan would 

recapture any profit on a subsequent 

sale of the Property or use of the 

Property by the UBC within 10 years of 

the date of the Sale. 

Summary 

43. Based on the conditions that are 

included in this proposed exemption, 

the Department has tentatively 

determined that the relief sought by the 

Applicant would satisfy the statutory 

requirements for an individual 

exemption under ERISA section 408(a). 

Notice to Interested Persons 

Notice of the proposed exemption 

will be provided to all interested 

persons within fifteen (15) days of the 

publication of the notice of proposed 

exemption in the Federal Register. The 

notice will be provided to all interested 

persons in the manner approved by the 

Department and will contain the 

documents described therein and a 

supplemental statement required by 29 

CFR 2570.43(a)(2). The supplemental 

statement will inform interested persons 

of their right to comment on and to 

request a hearing with respect to the 

pending exemption. All written 

comments and/or requests for a hearing 

must be received by the Department 

within forty-five (45) days of the date of 

publication of this proposed exemption 

in the Federal Register. All comments 

will be made available to the public. 

Warning: If you submit a comment, 

EBSA recommends that you include 

your name and other contact 

information in the body of your 

comment, but DO NOT submit 

information that you consider to be 

confidential, or otherwise protected 

(such as Social Security number or an 

unlisted phone number) or confidential 

business information that you do not 

want publicly disclosed. All comments 

may be posted on the internet and can 

be retrieved by most internet search 

engines. 

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 ERISA 

section 408(a) and/or Code section 

4975(c)(2) does not relieve a fiduciary or 

other party in interest or disqualified 

person from certain other provisions of 

ERISA and/or the Code, including any 

prohibited transaction provisions to 

which the exemption does not apply 

and the general fiduciary responsibility 

provisions of ERISA section 404, which, 

among other things, require a fiduciary 

to discharge their duties respecting the 

plan solely in the interest of the plan 

and its participants and beneficiaries 

and in a prudent manner in accordance 

with ERISA section 404(a)(1)(B); nor 

does it affect the requirement of Code 

section 401(a) that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) Before an exemption may be 

granted under ERISA section 408(a) 

and/or Code section 4975(c)(2), the 

Department must find that the 

exemption is administratively feasible, 

in the interests of the plan and of its 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The proposed exemption, if 

granted, would be supplemental to, and 

not in derogation of, any other 

provisions of ERISA and/or the Code, 

including statutory or administrative 

exemptions and transitional 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 

(4) The proposed exemption, if 

granted, would be subject to the express 

condition that the material facts and 

representations contained in the 

application are true and complete at all 

times and that the application 

accurately describes all material terms 

of the transactions which are the subject 

of the exemption. 

Proposed Exemption 

Based on the facts and representations 

set forth in the application, the 

Department is proposing to grant an 

exemption under the authority of ERISA 

section 408(a) and Code section 

4975(c)(2) in accordance with the 

procedures set forth in 29 CFR part 

2570, subpart B (76 FR 66637, 66644, 

October 27, 2011). 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 requested to the 

Secretary of Labor. Therefore, this 

notice of proposed exemption is issued 

solely by the Department. 

Section I. Definitions 

(a) The term ‘‘Bermuda LLC’’ means 

Bermuda Hidden Well, LLC. 

(b) The term ‘‘Board’’ means a board 

of trustees made pursuant to the Plan’s 

Declaration of Trust, consisting of six (6) 

trustees who are current and former 

members of the UBC Executive Board 

and five (5) trustees who are appointed 

from officers of UBC local unions or 

UBC councils. 

(c) The term ‘‘Independent Fiduciary’’ 

means Shumaker, Loop & Kendrick LLP; 

(d) The term ‘‘Plan’’ means United 

Brotherhood of Carpenters Pension 

Fund; 

(e) The term ‘‘Property’’ means the 

19.25-acre parcel of improved real 

property owned by the Plan and located 

at 6855 Bermuda Road, Las Vegas, Clark 

County, Nevada; 

(f) The term ‘‘QIA’’ means Cushman & 

Wakefield of Nevada, Inc.; 

(g) The ‘‘Sale’’ means the one-time 

sale for cash of the Property by the 

Trustees on behalf of the Plan through 

its subsidiary entity, Bermuda LLC, to 

the UBC; and 

(h) The term ‘‘UBC’’ means United 

Brotherhood of Carpenters and Joiners 

of America. 

(i) The term ‘‘Trustees’’ means the six 

(6) trustees on the Plan’s Board of 

Trustees who are current and former 

members of the UBC Executive Board 

and five (5) trustees who are appointed 

by officers of UBC Local Unions or UBC 

Councils. 

Section II. Covered Transactions 

If the proposed exemption is granted, 

the restrictions of ERISA sections 


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406(a)(1)(A) and 406(a)(1)(D), and 

406(b)(1) and (b)(2), shall not apply to 

the Sale, effective as of the date a final 

exemption is published in the Federal 

Register, provided that the parties 

adhere to the conditions in Section III, 

below. 

Section III. Conditions 

(a) The Sale is a one-time transaction 

for cash that must be completed within 

90 days of the effective date of the 

exemption; 

(b) At the time of the Sale, the Plan 

receives the greater of (1) $34,090,000; 

or (2) the fair market value of the 

Property as established by the QIA in an 

updated appraisal of such Property on 

the date of the Sale (the Sale Proceeds); 

(c) The Plan pays no commissions, 

expenses, or fees associated with the 

Sale, and the Plan does not bear the 

costs of: (1) the exemption application; 

nor (2) notifying interested persons; 

(d) The Plan fiduciaries prudently 

determined that the Sale of the Property 

is in the Plan’s best interest and for no 

less than fair market value. 

(e) The terms and conditions of the 

Sale are at least as favorable to the Plan 

as those obtainable in an arm’s length 

transactions with an unrelated third 

party; 

(f) The Independent Fiduciary, in 

accordance with ERISA sections 

404(a)(1)(A) and (B), must prudently 

and loyally: 

(1) represent the Plan’s interests with 

respect to the Sale; 

(2) determine that the Sale is in the 

interests of, and protective of, the Plan 

and its participants and beneficiaries; 

(3) determine that the Sale price for 

the Property is in the interests of, and 

protective of, the Plan; 

(4) review and approve the terms and 

conditions of the Sale in their sole 

discretion and further negotiate any 

conditions they consider to be in the 

best interest of the Plan; 

(5) independently engage the QIA for 

the Sale; 

(6) ensure that the appraisal is based 

on complete, current and accurate 

information; review and approve the 

methodology used by the QIA that such 

methodology is properly applied in 

determining the Property’s fair market 

value on the date of the Sale; and that 

it is appropriate to rely upon the 

appraisal as accurately reflecting the fair 

market value of the Property; 

(7) monitor the Sale throughout its 

duration consistent with its duties as a 

prudent plan fiduciary; 

(8) ensure that the QIA renders an 

updated fair market valuation of the 

Property as of the date of the Sale in 

accordance with paragraph (f)(6) of this 

Section; 

(9) determine whether it is prudent 

for the Plan to proceed with the Sale 

and has the ultimate decision-making 

authority to approve the Sale on behalf 

of the Plan; 

(10) ensures compliance with the 

general terms of the Sale and with the 

conditions of the exemption; 

(11) takes any appropriate actions to 

safeguard the interests of the Plan and 

its participants and beneficiaries; and 

(12) submits a written report to the 

Department not later than 90 days after 

the Sale has been completed 

demonstrating that each exemption 

condition has been met; 

(g) (1) The Independent Fiduciary 

must not have entered into, and must 

not enter into, any agreement, 

arrangement, or understanding that 

includes any provision that provides for 

the direct or indirect indemnification or 

reimbursement of the Independent 

Fiduciary by the Plan or other party for 

any failure to adhere to its contractual 

obligations or to state or Federal laws 

applicable to the Independent 

Fiduciary’s work: the Independent 

Fiduciary may not seek or receive any 

waiver of any rights, claims, or remedies 

of the Plan under ERISA, state, or 

Federal law against the Independent 

Fiduciary with respect to the subject 

matter of the exemption; and 

(2) The Independent Fiduciary has 

not and will not enter into any 

agreement, arrangement or 

understanding that violates ; 

(h) (1) Subsequent Sale Proceeds 

Subject to Clawback Provision. If UBC 

sells the Property within 10 years after 

the date of the Sale, for a sale price that 

is greater than the Sale Proceeds, then 

the amount of the subsequent sale price 

received by UBC that exceeds the Sale 

Proceeds (the Excess Amount) must be 

contributed by the UBC to the Plan in 

cash before the end of the Plan year 

following the date of such subsequent 

sale. If UBC subdivides the Property and 

a portion of the Property is subsequently 

sold by UBC, then the Excess Amount 

would be determined by subtracting 

from the subsequent sale price the 

amount of Sale Proceeds attributable to 

the portion of the Property that was sold 

in such subsequent sale as determined 

by an independent appraiser. The 

records applicable to any subsequent 

sale by UBC covered by this provision, 

including any appraisals, must be 

provided to the Office of Exemption 

Determinations at e-OED@dol.gov 

within 90 days after the date of such 

sale. 

(2) Revenue Share from Use of 

Property. If UBC earns revenue from its 

use of the Property in any calendar year, 

including in connection with the lease 

of the Property to a third party, in a 

manner or for a purpose that is 

inconsistent with the UBC’s stated 

intention to expand its International 

Training Center and/or the provision of 

union-related services permitted under 

the UBC’s governing documents, then 

the UBC must contribute to the Plan an 

amount in cash equal to 51 percent of 

such gross revenue earned in each such 

calendar year. Such amounts must be 

contributed by the UBC to the Plan by 

the end of the Plan year following the 

year in which such revenue is earned. 

The records necessary to demonstrate 

that this paragraph (h)(2) has been met 

must be provided to the Office of 

Exemption Determinations at e-OED@

dol.gov within 90 days after the end of 

the calendar year in which the revenue 

was received. 

(i) Any QIA selected by the 

Independent Fiduciary must not have 

entered into, and must not enter into, 

any agreement, arrangement, or 

understanding that includes any 

provision that provides for the direct or 

indirect indemnification or 

reimbursement of the QIA by the Plan 

or any other party for any failure to 

adhere to its contractual obligations or 

to state or Federal laws applicable to the 

QIA’s work; the QIA may not seek or 

obtain any waiver of any rights, claims 

or remedies of the Plan or its 

participants and beneficiaries under 

ERISA, the Code, or other Federal and 

state laws against the QIA with respect 

to the subject matter of the exemption; 

and 

(j) The Board and the Independent 

Fiduciary maintain for a period of six 

(6) years from the date of Sale, in a 

manner that is convenient and 

accessible for audit and examination, 

the records necessary to enable the 

persons described in paragraph (k)(1) 

below to determine whether conditions 

of this exemption have been met, except 

that (i) a prohibited transaction will not 

be considered to have occurred if, due 

to circumstances beyond the control of 

the Board and/or the Independent 

Fiduciary, the records are lost or 

destroyed prior to the end of the sixyear period, and (ii) no party in interest 

other than the Board or the Independent 

Fiduciary shall be subject to the civil 

penalty that may be assessed under 

ERISA section 502(i) if the records are 

not maintained, or are not available for 

examination as required by paragraph 

(k) below; and 

(k)(1) Except as provided in Section 

(2) of this paragraph and 

notwithstanding any provisions of 

subsections (a)(2) and (b) of ERISA 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Notices 79961 

section 504, the records referred to in 

paragraph (j) above shall be 

unconditionally available at their 

customary location during normal 

business hours to: 

(i) any duly authorized employee or 

representative of the Department or the 

Internal Revenue Service; 

(ii) the Board or any duly authorized 

representative of the Board; 

(iii) the Independent Fiduciary or any 

duly authorized representative of the 

Independent Fiduciary; 

(iv) any participant or beneficiary of 

the Plan, or any duly authorized 

representative of such participant or 

beneficiary; 

(2) If any party refuses to disclose 

information to a person on the basis that 

such information is exempt from 

disclosure, such party must provide a 

written notice to that person advising 

them of the reasons for the refusal and 

that the Department may request such 

information on their behalf by the close 

of the thirtieth (30th) day following the 

request; 

(l) The Sale is not part of an 

agreement, arrangement or 

understanding designed to benefit UBC 

or any of its affiliates; 

(m) The Board, the UBC, and/or the 

Independent Fiduciary must provide to 

the Department the records necessary to 

demonstrate that the conditions of this 

exemption, as amended, have been met, 

within 30 days from the date the 

Department requests such records; and 

(n) All the material facts and 

representations made by the Applicant 

that are set forth in the Summary of 

Facts and Representations are true and 

accurate at all times. 

Exemption Date: If granted, this 

proposed exemption will be in effect on 

the date that the grant notice is 

published in the Federal Register. 

Signed at Washington, DC. 

George Christopher Cosby, 

Director, Office of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2024–22468 Filed 9–30–24; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; Employee 

Retirement Income Security Act of 

1974 Technical Release 1991–1 

ACTION: Notice of availability; request 

for comments. 

SUMMARY: The Department of Labor 

(DOL) is submitting this Employee 

Benefits Security Administration 

(EBSA)-sponsored information 

collection request (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(PRA). Public comments on the ICR are 

invited. 

DATES: The OMB will consider all 

written comments that the agency 

receives on or before October 31, 2024. 

ADDRESSES: Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to www.reginfo.gov/public/do/ 

PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under 30-day Review—Open 

for Public Comments’’ or by using the 

search function. 

FOR FURTHER INFORMATION CONTACT: 

Michael Howell by telephone at 202– 

693–6782, or by email at DOL_PRA_

PUBLIC@dol.gov. 

SUPPLEMENTARY INFORMATION: Section 

101(e) of ERISA establishes notice 

requirements that must be satisfied 

before an employer may transfer excess 

assets from a defined benefit pension 

plan to a retiree health benefit account, 

as permitted under the conditions set 

forth in section 420 of the Internal 

Revenue Code of 1986, as amended (the 

Code). 

The notice requirements of ERISA 

section 101(e) are two-fold. First, 

subsection (e)(1) requires plan 

administrators to provide advance 

written notification of such transfers to 

participants and beneficiaries. Second, 

subsection (e)(2)(A) requires employers 

to provide advance written notification 

of such transfers to the Secretaries of 

Labor and the Treasury, the plan 

administrator, and each employee 

organization representing participants 

in the plan. Both notices must be given 

at least 60 days before the transfer date. 

The two subsections prescribe the 

information to be included in each type 

of notice and further give the Secretary 

of Labor the authority to prescribe how 

notice to participants and beneficiaries 

must be given, and how any additional 

reporting requirements are deemed 

necessary. 

On May 8, 1991, the Department 

published ERISA Technical Release 91– 

1, to provide guidance on how to satisfy 

the notice requirements prescribed by 

ERISA section 101(e). The Technical 

Release made two changes in the 

statutory requirements for the second 

type of notice. First, it required the 

notice to include a filing date and the 

intended asset transfer date. Second, it 

simplified the statutory filing 

requirements by providing that filing 

with the Department of Labor would be 

deemed sufficient notice to both the 

Department and the Department of the 

Treasury as required under the statute. 

For additional substantive information 

about this ICR, see the related notice 

published in the Federal Register on 

February 5, 2024 (89 FR 7732). 

Comments are invited on: (1) whether 

the collection of information is 

necessary for the proper performance of 

the functions of the Department, 

including whether the information will 

have practical utility; (2) the accuracy of 

the agency’s estimates of the burden and 

cost of the collection of information, 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility and 

clarity of the information collection; and 

(4) ways to minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

automated collection techniques or 

other forms of information technology. 

This information collection is subject 

to the PRA. A Federal agency generally 

cannot conduct or sponsor a collection 

of information, and the public is 

generally not required to respond to an 

information collection, unless the OMB 

approves it and 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 that does not 

display a valid OMB Control Number. 

See 5 CFR 1320.5(a) and 1320.6. 

DOL seeks PRA authorization for this 

information collection for three (3) 

years. OMB authorization for an ICR 

cannot be for more than three (3) years 

without renewal. The DOL notes that 

information collection requirements 

submitted to the OMB for existing ICRs 

receive a month-to-month extension 

while they undergo review. 

Agency: DOL–EBSA. 

Title of Collection: Employee 

Retirement Income Security Act of 1974 

Technical Release 1991–1. 

OMB Control Number: 1210–0084. 

Affected Public: Private sector, 

Business or other for profits. 

Total Estimated Number of 

Respondents: 14. 

Total Estimated Number of 

Responses: 119,718. 

Total Estimated Annual Time Burden: 

4,011 hours. 

Total Estimated Annual Other Costs 

Burden: $3,744. 


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