[Federal Register Volume 89, Number 213 (Monday, November 4, 2024)]
[Notices]
[Pages 87600-87608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25583]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Exemption Application No. L-12069]


Proposed Exemption From Certain Prohibited Transaction 
Restrictions Involving Boilermakers Western States Apprenticeship Fund 
Located in Page, Arizona

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of proposed exemption.

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SUMMARY: This document provides notice of the pendency before the 
Department of Labor (the Department) of a proposed individual exemption 
from certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (ERISA). This proposed exemption 
would permit the purchase of a parcel of improved real property by the 
Boilermakers Western States Apprenticeship Fund (the Plan or Applicant) 
from a local union lodge whose members may be participants in the Plan. 
The Plan requests the exemption in order to continue to utilize the 
property to carry out its training program and its administrative 
duties.

DATES: 
    Exemption date: If granted, the exemption will be effective as of 
the date 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 
December 19, 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. L-12069, 
via email to <a href="/cdn-cgi/l/email-protection#bfda92f0fafbffdbd0d391d8d0c9"><span class="__cf_email__" data-cfemail="73165e3c363733171c1f5d141c05">[email protected]</span></a> 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

[[Page 87601]]

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: Mr. Frank Gonzalez of the Department 
at (202) 693-8553. (This is not a toll-free number).

SUPPLEMENTARY INFORMATION: 
    Comments: Persons are encouraged to submit all comments 
electronically and not to follow with paper copies. 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 requestor, and 
a notice of such hearing will be published by the Department in the 
Federal Register. The Department may decline to hold a hearing if: (1) 
the request for the hearing does not meet the requirements stated 
above; (2) the only issues identified for exploration at the hearing 
are matters of law; or (3) the factual issues identified in the request 
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 https://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be confidential or 
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. 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 an exemption under the 
authority of ERISA Section 408(a) and in accordance with the 
Department's exemption procedures regulation.\1\ If the proposed 
exemption is granted, the Plan would be permitted to purchase an 
improved real estate property parcel (the Property) from the ``Navajo 
Nation'' Lodge 4 of the International Brotherhood of Boilermakers, Iron 
Ship Builders, Blacksmith, Forgers, and Helpers (Lodge 4), provided 
that the Plan meets the conditions set forth in section III.
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    \1\ 29 CFR part 2570, subpart B (75 FR 66637, 66644, October 27, 
2011).
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    This proposed exemption would provide relief from certain 
restrictions set forth in ERISA sections 406(a)(1)(A) and (D), and 
406(b)(1) and (2). However, this proposed exemption would not provide 
relief from any other violation of law.
    Benefits of the Exemption: As described in more detail below, the 
Department is proposing relief based, in part, on the Applicant's 
representations that purchase of the property would avoid significant 
time and cost of relocating the Plan's training program to an 
alternative location (as the property has already been modified at the 
Plan's own expense for its particular training purposes).

Summary of Facts and Representations <SUP>2</SUP>
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    \2\ The Summary of Facts and Representations is based on the 
Applicant's representations provided in its exemption application 
and does not reflect factual findings or opinion of the Department, 
unless indicated otherwise. The Department notes that availability 
of this exemption is subject to the express condition that the 
material facts and representations made by the Applicant in 
Application L-12069 are true, complete, and accurately describe all 
material terms of the transaction(s) covered by the exemption. If 
there is any material change in a transaction covered by the 
exemption, or in a material fact or representation described in the 
application, the exemption will cease to apply as of the date of the 
change.
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    1. The Plan is an apprenticeship program trust fund created to 
provide training benefits to individuals engaged in the boilermaker 
construction trade.
    2. The Plan is a multiemployer plan created pursuant to collective 
bargaining agreements (under the Taft-Hartley Act of 1947) \3\ between 
signatory contractors/employers (the Employers) and the International 
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, 
and Helpers (the Boilermakers Union). As of December 31, 2023, the 
approximate aggregate fair market value of the Plan's total assets was 
$12,611,589. As of May 17, 2024, there are 369 apprentices currently 
active in the Plan's apprenticeship program. The program graduated 84 
apprentices in 2022, 65 in 2023, and 51 as of May 17, 2024. The Plan 
admits apprentices on a rolling basis. There have been 1,233 
apprentices participating in the Plan's training from May 13, 2019, 
through May 13, 2024.
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    \3\ The Department notes that the Taft-Hartley Act is commonly 
known as the Labor Management Relations Act of 1947; see 29 U.S.C. 
141.
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    3. The Plan provides training and education to eligible 
participants located in the following states: Alaska, Arizona, 
California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, 
Oregon, Utah, Washington, and Wyoming (the Western States Area).
    4. The Plan is sponsored by the Boilermakers National 
Apprenticeship Program (the BNAP).\4\ The BNAP also is known as the 
National Joint Apprenticeship and Training Program, sponsors 
apprenticeship programs in four different geographical areas, including 
the Western States Area.
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    \4\ ERISA section 3(16)(B) defines the term Plan Sponsor to mean 
in pertinent part . . . (ii) the employee organization in the case 
of a plan established or maintained by an employee organization, 
(iii) in the case of a plan established or maintained by two or more 
employers or jointly by one or more employers and one or more 
employee organizations, the association, committee, joint board of 
trustees, or other similar group of representatives of the parties 
who establish or maintain the plan. . . .''
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    5. A board of trustees--the Boilermakers National Apprenticeship 
Board--administers the Plan (the Board of Trustees). The Board of 
Trustees consists of equal representation from locals of the 
Boilermakers Union (the Union Trustees) and signatory contractors/
employers (the Employer Trustees). The Board of Trustees has discretion 
over the Plan's assets, including over the investment of such assets.
    6. The Plan receives funding through collectively bargained 
contributions from contributing employers and grants,

[[Page 87602]]

among other income sources provided under the Plan's governing 
documents. According to the Plan's governing documents, the Plan's 
assets may be used to provide apprenticeship and training benefits and 
to finance the operation and administration of such apprenticeship and 
training benefits within the Western States Area. The Plan provides 
benefits in two ways: through a regional training center, the JG 
Cooksey Training Center in Salt Lake City, Utah; and through 
subsidizing apprenticeship and training programs maintained by locals 
of the Boilermakers Union within the Western States Area. As further 
explained below with respect to the reimbursement policy, the Plan 
subsidizes apprenticeship and training programs of local Boilermakers 
Union lodges by annually allocating funds to such lodges based on the 
number of apprentices and journeypersons in each lodge and/or 
reimbursing the lodges' training expenses, including equipment and 
supplies, student expenses (tuition/lodging/meals/mileage), instructor 
expenses (wages/benefits/mileage), and tuition costs for apprentices or 
journeypersons to attend regional or national training centers, or 
other approved training facilities.
    7. During a five-year period ending on February 11, 2022, the Plan 
nearly doubled its apprentice numbers, and the participation rate 
continued to increase as of May 17, 2024, as the demand for 
boilermakers in the Western States Area continues to rise. Accordingly, 
the Plan is interested in opening a new regional training center and is 
seeking to purchase an improved real estate property parcel (the 
Property) from Lodge 4, a labor union, located in Page, Arizona, that 
is affiliated with the Boilermakers Union. Lodge 4 is a separate legal 
entity from both the Boilermakers Union and the other lodges of the 
Boilermakers Union. The Board of Trustees does not currently have any 
Union Trustees who were appointed by Lodge 4. Rather, the Union 
Trustees serving on the Plan's Board of Trustees are appointed either 
by the Boilermakers Union or other lodges of the Boilermakers Union 
(e.g., Boilermakers Lodge 502).
    8. The Property. The Property is an improved real estate parcel 
located at 294 Cowboy Ray Road, Page, Arizona. The Property's site is 
1.678 acres, with two office/warehouse buildings. The smaller of the 
two buildings has 1,365 square feet of office area and 975 square feet 
of warehouse area, for a total of 2,340 square feet. The larger of the 
two buildings has 1,626 square feet of office/classroom area and 3,374 
square feet of warehouse area, for a total of 5,000 square feet.
    9. As discussed further below, the Plan's apprentices currently use 
the Property's buildings as training facilities (the Training 
Facility). The Applicant represents that this use of the Training 
Facility is essential for the Plan to fulfill its purpose of providing 
education and training opportunities to its apprentices.
    10. The Applicant represents that the Property has been modified to 
carry out the purposes of the Plan. According to the Applicant, the 
Property is ideally situated to be a regional training facility for 
boilermaker apprentices and journeypersons, and the Facility is ideally 
suited for the Plan's purposes. The Property also has administrative 
space for the Plan's headquarters.\5\
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    \5\ The Plan maintains an administrative office in Page, 
Arizona, three miles away from the Property, that it began leasing 
from Marquis Realty LLC, an unrelated party to the Plan, on July 1, 
2014 (the Leased Office).
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    11. Lodge 4 has decided to move and no longer desires to operate 
the Training Facility. The Union Trustees recused themselves from 
voting with respect to the Plan's decision to enter into the Proposed 
Transaction, and the Plan's Employer Trustees \6\ determined it would 
be in the interest of the Plan to purchase the Property because: (a) 
the Training Facility is already suited for the needs of the Plan; (b) 
the purchase of the Property would allow the Plan to maintain the 
Training Program at the Training Facility notwithstanding Lodge 4's 
decision to terminate operating the Training Facility; (c) using the 
Property to create a regional training facility would meet the 
increasing demand for the training of participants, including 
apprentices within the Western States Area; (d) the purchase of the 
Property from Lodge 4 would allow the Plan to pay the Property's fair 
market value without incurring any commission costs or other expenses 
in connection with the purchase; and (e) the Plan's continued use of 
the Property for training purposes would provide additional benefits to 
participants and provide other financial benefits to the Plan.\7\
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    \6\ The Applicant represents that the Union Trustees recused 
themselves from the vote to enter into the Proposed Transaction with 
Lodge 4 on behalf of the Plan. The recusal is described in more 
detail below.
    \7\ The Department understands that the Plan would financially 
benefit from the Proposed Transaction (and indirectly benefit the 
Plan's participants and beneficiaries), because it (1) would not 
need to pay for the removal of the Plan's specialized air venting 
system from the Training Facility (the venting system is explained 
further below) and (2) could relocate its administrative office 
within the Property instead of paying for the Leased Office. The 
Applicant also stated that participants would benefit by having the 
ability to visit the Plan's administration office and training 
facilities at the same location after the office is moved from the 
Leased Office to the Property.
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    12. On January 20, 2022, the Employer Trustees gave their approval 
for the Plan to proceed with the purchase of the Property (the Proposed 
Transaction), subject to the Department's grant of this proposed 
exemption. The Plan intends to purchase the Property from Lodge 4 
within ninety (90) days following the Department's grant of a final 
exemption, should such an exemption be granted. The Applicant 
represents that the Plan considered other possible locations and 
properties for a regional center, but after consulting with various 
service providers, it ultimately determined that purchasing the 
Property owned by Lodge 4 was the most appropriate given the Plan's 
goals, as explained below.
    13. In connection with the Proposed Transaction, the Plan would pay 
the lesser of: (i) the fair market value of $920,000 identified in the 
appraisal conducted on April 1, 2021; and (ii) the updated appraised 
fair market value of the Property as determined by the qualified 
independent appraiser on the purchase date.
    14. Lodge 4 and the Plan will each pay half of the costs associated 
with the proposed exemption, including but not limited to fees for 
qualified independent fiduciary services, qualified independent 
appraiser services, and legal fees for preparing the Plan's application 
to the Department requesting this proposed exemption.\8\
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    \8\ Matters pertaining to services being provided by the 
independent fiduciary and independent appraiser with respect to the 
Proposed Transaction, including their qualifications and 
independence, are explained further below.
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    15. The Plan intends to make a $460,000 cash down payment to Lodge 
4 (approximately 4.7 percent of the Plan's total assets) and will 
finance the remaining $460,000 of the purchase price through a third-
party bank (as further described below). The Plan's estimates that the 
total cost to purchase the Property will represent approximately 9.4 
percent of the Plan's total assets.
    16. On November 1, 2021, the Plan executed a Term Loan Commitment 
Letter with the Bank of Labor, a bank located in Kansas City, Kansas, 
for $600,000 (approximately 6.1 percent of the Plan's total assets).\9\ 
The Department understands that the Bank of Labor may be partly owned 
by the Boilermakers Union. In order to ensure that the Plan

[[Page 87603]]

will obtain financing for the Proposed Transaction, if any, on arms' 
length terms, the proposed exemption prohibits the Plan from financing 
the acquisition of the Property with any bank that has any pecuniary 
interest in, or is owned, managed, or controlled in any manner by a 
party in interest with respect to the Plan as defined in ERISA section 
3(14).
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    \9\ As explained further below, a qualified independent 
fiduciary notes that the Plan intends to finance the additional 
$460,000 but has received a larger commitment as a precaution.
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    17. ERISA Prohibited Transaction Analysis. Lodge 4 is an employee 
organization whose members are covered by the Plan; therefore, it is a 
party in interest to the Plan pursuant to ERISA section 3(14)(D).\10\
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    \10\ ERISA section 3(14)(D) defines, in part, the term party in 
interest to an employee benefit plan as ``an employee organization 
any of whose members are covered by such plan.''
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    18. ERISA section 406(a)(1)(A) prohibits a plan fiduciary from 
causing the sale or exchange, or leasing, of property between a plan 
and a party in interest. ERISA section 406(a)(1)(D) provides that a 
plan fiduciary shall not cause the plan to engage in a transaction if 
(1) that fiduciary knows or should know that such transaction 
constitutes a direct or indirect transfer of any of the plan's assets 
to a party in interest or (2) would result in the plan's assets being 
used by or for the benefit of a party in interest.
    19. The Plan's purchase of the Property from Lodge 4 in exchange 
for the Plan's funds would constitute a prohibited sale and transfer of 
Plan assets in violation of ERISA sections 406(a)(1)(A) and (D), 
respectively.
    20. Additionally, ERISA section 406(b)(1) prohibits a plan 
fiduciary from dealing with a plan's assets ``. . . in his own interest 
or for his own account.'' ERISA section 406(b)(2) prohibits a plan 
fiduciary ``in his individual or in any other capacity [from acting] 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.''
    21. The Union Trustees may have an interest in benefitting Lodge 4, 
a party in interest to the Plan, because Lodge 4 is also a Boilermakers 
Union lodge, and as such, it is affiliated with the Boilermakers Union. 
Although the Applicant represents that the Union Trustees ``recused'' 
themselves from voting on the Plan's decision to enter into the 
Proposed Transaction, whether the Union Trustees' recusal from any 
aspects of the Proposed Transaction negates a violation of ERISA 
section 406(b)(1) or (2), involves an inherently factual determination 
that is beyond the scope of this proposed exemption. Therefore, the 
Department cannot determine from the record whether the Union Trustees 
sufficiently recused themselves from engaging in the deliberations 
regarding of the Proposed Transaction or using their positions to 
influence the Employer Trustees' decision to approve the Proposed 
Transaction in order to determine definitively that there was no 
violation of ERISA section 406(b)(1) or (b)(2). To the extent the Union 
Trustees exercised any authority, control, or responsibility that make 
them a fiduciary to cause the Plan to engage in the Proposed 
Transaction, they would have violated ERISA section 406(b)(1) and 
(b)(2), because the Proposed Transaction would benefit Lodge 4, an 
entity in which the Union Trustees have an interest and involve Union 
Trustees acting on behalf of both the Plan and Lodge 4.\11\
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    \11\ The Department notes that ``the prohibitions of section 
406(b) supplement the other prohibitions of section 406(a) of 
[ERISA] by imposing on parties in interest who are fiduciaries a 
duty of undivided loyalty to the plans for which they act. These 
prohibitions 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 29 CFR 
2550.408b-2(e)(1).
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    22. Applicant's Representations Regarding the Merits of the 
Proposed Exemption. The Applicant represents that the Proposed 
Transaction would benefit the Plan because the Training Facility is 
currently operated by Lodge 4 to conduct trainings and the Plan would 
not have to make any improvements or modifications for the Plan to 
continue using it. The Applicant explains that Lodge 4 currently 
provides training to Plan participants at the Training Facility in 
accordance with a reimbursement policy between the Plan and Lodge 4, 
whereby the Plan reimburses Lodge 4 only for the direct costs that 
Lodge 4 incurs in conducting training (the Reimbursement Policy).\12\ 
According to the Applicant, the Plan relies on ERISA Section 408(b)(2) 
to operate its Reimbursement Policy. The Plan may terminate this 
arrangement with Lodge 4 at any time with no penalty to the Plan and 
without notice to Lodge 4.\13\
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    \12\ The Applicant notes that the Reimbursement Policy also 
covers Lodge 4's expense of sending its affiliated apprentices to 
off-site locations for training purposes.
    \13\ Whether the Reimbursement Policy complies with the 
requirements of ERISA section 408(b)(2) is an inherently factual 
inquiry that is beyond the scope of this proposed exemption and with 
respect to which the Department offers no opinion.
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    23. The Applicant represents that the Plan has also invested nearly 
$600,000 in equipment at the Training Facility to equip 24 welding 
stations, including installing a $250,000 custom ventilation system 
designed to remove noxious fumes that are produced by the welding 
machines. The Applicant states that the Plan still owns this equipment, 
which is only used in connection with the training of participants by 
Lodge 4 in connection with the provision of services to the Plan, 
described in more detail below.\14\
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    \14\ The costs for these pieces of equipment are not included as 
part of the Property's value appraisal.
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    24. The Applicant represents that the Proposed Transaction would 
benefit the Plan because Lodge 4 intends to terminate its involvement 
with the Training Facility. If Lodge 4 no longer runs the Training 
Facility, the Plan can longer provide training there. Furthermore, the 
Training Facility is currently equipped with Plan-purchased equipment 
that is used to provide training for participants. If Lodge 4 
terminates its involvement with the Training Facility and/or sells the 
Property, the Plan would need to remove and relocate the equipment at 
significant time and expense.
    25. The Applicant represents that the Proposed Transaction would 
benefit the Plan because of the Property's location. The Property is 
centrally located in the Southern portion of the Western States Area 
with convenient access from New Mexico, Arizona, Southern Nevada, and 
Southern California. The Property also is located on the edge of the 
Navajo Nation reservation, which has traditionally been a large source 
of apprenticeship participants in that area, making the Property a 
convenient location to a segment of current and future apprenticeship 
participants.
    26. The Applicant represents further that the Plan wants to create 
a regional training center on the Property due to the transient nature 
of the boilermaker trade and industry. The Applicant explains that 
journeypersons and apprentices travel based on where the projects are 
located, including traveling outside the boundary of their home lodge 
of the Boilermakers Union. As such, the location of the Boilermakers 
Union lodges and employers are less important than the location of the 
projects. Larger projects may involve journeymen and apprentices from 
multiple Boilermakers Union lodges. The Training Facility will be 
available to all apprentices in the Western States Area, regardless of 
their Boilermakers Union lodge affiliation. While there are other 
training facilities across the 13-

[[Page 87604]]

state region that the Plan covers, there is a continued need to have 
training facilities accessible across the region.
    27. The Applicant represents further that the Proposed Transaction 
would benefit the Plan, because the Property will become the site for 
the Plan's administrative headquarters. If the Plan moves its 
administrative headquarters to the Property, it will no longer need the 
Leased Office and will avoid incurring the rental cost for that office. 
Additionally, combining the Training Facility with the Plan's 
administrative offices will provide closer access for the staff to 
monitor the Training Facility and for the Plan's apprenticeship and 
journeyperson participants to interact with the Plan's administrative 
staff.
    28. The Applicant represents that the Plan would also benefit from 
the Proposed Transaction because the Property provides flexibility for 
expansion as the number of Boilermaker apprentices continues to grow 
and significant space for: (a) large training sessions where there are 
numerous vehicles and recreational vehicles utilized by participants; 
(b) outdoor training components such as training involving a rigging 
tower; and (c) expansion of training facilities and/or demonstrations.
    29. The Property's Appraisal. The Plan retained the services of 
Accurity Valuation--Morley & McConkie L.C. (AVMM) to appraise the 
Property (Qualified Independent Appraiser). Mr. Garrett Hanning 
(Hanning) of AVMM authored an appraisal report dated May 17, 2021 
(Appraisal Report). Hanning is a licensed Certified General Appraiser 
specializing in commercial appraisals in the states of Arizona and 
Utah. Hanning represents that the Appraisal Report is being submitted 
to the Department as part of the Applicant's request for the proposed 
exemption and that he has no bias with respect to the Property, the 
Plan, or Lodge 4, which may influence the Property's appraisal. AVMM's 
current revenue that is derived from any party in interest involved in 
the proposed transaction or its affiliates is 0.04%, and his engagement 
letter contains no provisions providing for his reimbursement or 
indemnification by any party for violations of applicable law or of his 
contractual obligations related to his work, or waivers of rights, 
claims or remedies of the Plan or its participants and beneficiaries 
under applicable laws against Hanning or AVMM with respect to their 
work on the Proposed Transaction, and the terms of the proposed 
exemption prohibit any such arrangements, as described in more detail 
below.
    30. In determining the Property's fair market value, Hanning 
utilized two methods: (a) the cost approach; and (b) the sales 
comparison approach, and he applied primary weight to the sales 
comparison approach given the owner-occupied nature of the Property. 
Based on his analysis, Hanning concluded that the Property's fair 
market value was $920,000 as of April 1, 2021.
    31. During the pendency of the Applicant's request for this 
proposed exemption, the Applicant submitted to the Department an 
updated report from the Qualified Independent Appraiser, dated July 28, 
2022, indicating that no changes to the Property's structures have 
taken place that would change the Property's value reflected in the 
Appraisal Report dated April 1, 2021.
    32. The Applicant states that the fees for the April 1, 2021 
Appraisal Report, which are shared equally between the Plan and Lodge 
4, totaled $3,750. Furthermore, in the event this proposed exemption is 
granted, the conditions for relief require the appraisal to be updated 
by the Qualified Independent Appraiser to reflect the fair market value 
of the Property on the Transaction's closing date. The Plan does not 
expect that the cost to update the appraisal will exceed $3,750.
    33. The Independent Fiduciary. The Plan retained the services of 
the Wagner Law Group to serve as the Plan's independent fiduciary 
(Wagner or the Independent Fiduciary) with respect to the Proposed 
Transaction, pursuant to Wagner's engagement letter dated November 3, 
2020 (Wagner's Engagement Letter). Wagner represents that it has 
significant experience with serving as the appointed independent 
fiduciary at the request of the Department, federal courts, bankruptcy 
trustees, and ERISA plan fiduciaries.
    34. Wagner acknowledged that it understands its duties and 
responsibilities under ERISA in acting as the Independent Fiduciary, 
and will determine whether, with the assistance of one or more 
independent appraisals, the proposed real estate purchase transaction 
would be in the interests of the Plan and the Plan's participants and 
beneficiaries and protective of their rights. Wagner's Engagement 
Letter contains no provisions that indemnify Wagner for any failure to 
adhere to its contractual obligations or to state or Federal laws 
applicable to its work including ERISA or that waives any of the Plan's 
rights, claims, or remedies of the Plan under ERISA, State, or Federal 
law against Wagner with respect to the proposed transaction.
    35. Wagner represents that the percentage of its current revenue 
that is derived from any party in interest involved in the Proposed 
Transaction is 0.13%. Furthermore, Wagner represents that it has no 
current or future interest in the outcome of the Proposed Transaction. 
Its sole financial interest in the transaction is the receipt of its 
fees for acting as the Independent Fiduciary.
    36. Wagner states that the Proposed Transaction will be implemented 
only after the Department grants a final exemption and the relevant 
conditions are satisfied, and Wagner determines that the Proposed 
Transaction would be in the interests of the Plan and of its 
participants and beneficiaries. In this regard, Wagner will prepare a 
statement of the reasons on which its ``best interest'' determination 
is based and will submit the statement to the Department (the 
Statement). Before the closing of the Proposed Transaction, Wagner will 
ensure that all of the preconditions to the real estate purchase are 
completed and will monitor the transaction until and coincident with 
the transaction's closing. The conditions for relief in the proposed 
exemption require Wagner to have the authority to take all appropriate 
actions to safeguard the Plan's interests and the interests of the 
Plan's participants and beneficiaries and to:
    (i) Monitor the Proposed Transaction on the Plan's behalf on a 
continuing basis until the earlier of the closing or the date that the 
Proposed Transaction is terminated;
    (ii) Ensure that the Proposed Transaction remains in the interests 
of the Plan and of the Plan's participants and their beneficiaries and, 
if not, take any appropriate actions available under the particular 
circumstances; and
    (iii) Ensure compliance with all of the exemption conditions and 
obligations imposed on any party dealing with the Plan with respect to 
the Proposed Transaction.
    37. The Independent Fiduciary's Opinion. On February 10, 2022, 
Wagner issued its report to the Plan regarding the Proposed Transaction 
(the IF Report). The IF Report provided Wagner's opinion that the 
Plan's proposed purchase of the Property for a price of the lesser of 
$920,000 or the Property's appraised value on the date of sale, under 
the terms and conditions described herein, would be in the best 
interest and protective of the rights of the Plan's participants and 
beneficiaries.
    38. According to the IF Report, the Independent Fiduciary reviewed 
all the particulars of the Property and existing Training Facility, 
including the Independent Appraisal, the terms of the Real Estate 
Purchase and Sale Agreement between the Plan and Lodge

[[Page 87605]]

4 to buy the Property (the Purchase Contract) and determined that the 
Property's $920,000 purchase price is appropriate.
    39. The Independent Fiduciary determined that the Property's 
location is convenient for the Plan's participants as well as the 
Plan's staff who will benefit from affordable housing in close 
proximity to the Property. As described in the IF Report, the purchase 
of the Property will further the Plan's long-term goals to stabilize 
the Plan's expenses with a regional center in this area. The IF Report 
provides that the Property's overall size appears to present the 
opportunity for expansion with minimal difficulty or hardship for the 
Plan and its participants as the number of Boilermakers Union members 
increase. The IF Report notes further that the Property has existing 
buildings with considerable life expectancy that are particularly 
suited to the Plan's intended use.
    40. The IF Report provides that the Plan already owns the training 
equipment currently housed at the Training Facility, and removing and 
relocating this equipment to another location would be extremely 
costly. The equipment on the site will provide the Plan with 
significant start-up costs savings as compared to purchasing a 
comparable facility and having to pay to relocate this equipment or 
purchase new equipment to furnish the new facility. Wagner opines that 
the Property provides a turn-key facility, ready immediate occupancy, 
and use for the Plan's intended purposes.
    41. The Independent Fiduciary notes that the Plan will save money 
by using the Property to house its administrative office instead of 
paying rent for the Leased Office and will benefit the Plan by locating 
its administrative offices on the Property where administrative staff 
will be able to monitor the Training Facility and interact with 
participants in connection with administrative matters.
    42. The IF Report describes the Independent Fiduciary's review and 
approval of the methodology used by the Independent Appraiser. Wagner 
opined that, based on the intended use of the Property, it would be 
prudent for the Plan to rely on the appraised value as of April 1, 
2021, subject to change pending the updated appraisal at date of 
purchase.
    43. Finally, the Independent Fiduciary examined the Plan's ability 
to buy and finance the purchase of the Property, including the percent 
of the purchase price to total plan assets, any prospective earnings or 
savings from the proposed purchase, including the difference between 
the current lease arrangement and the proposed purchase of the 
Property, and the Plan's potential liabilities. The Independent 
Fiduciary determined that the Plan's use of its assets for the proposed 
real estate purchase of the Property will not negatively impact the 
overall financial health of the Plan and its programs. In this regard, 
the IF Report notes that the Plan receives continual stable funding 
through collectively bargained contributions from contributing 
employers to provide the benefits of its programs and subsidize 
training for the local Boilermaker lodges in the Western Region. 
According to the Plan, the monthly mortgage payments on the $460,000 
loan will be less than $10,000. The Plan's average monthly income is 
above $200,000. Therefore, the Independent Fiduciary determined that 
the mortgage for the amount of $460,000 will not negatively affect the 
Plan's operating budget. In addition, the Plan will be relieved of 
incurring the additional rental expense to maintain its existing office 
space.
    44. Protective Conditions. In addition to the conditions mentioned 
above, the exemption, if granted, requires the parties' adherence to 
the protective conditions that are summarized below.\15\
---------------------------------------------------------------------------

    \15\ The Department notes that this is a summary of the 
conditions intended for the convenience of a reader; however, the 
governing conditions for the Proposed Transaction are those 
reflected in section III of the proposed exemption.
---------------------------------------------------------------------------

    45. The Proposed Transaction is a one-time transaction in which the 
Plan would make a $460,000 cash down payment and obtain a loan for the 
remaining balance of the purchase price that could not exceed $920,000. 
The loan's monthly payments could not exceed $10,000 and its collateral 
would be a first mortgage lien and assignment of the lease on the 
Property. The Plan must pay the lesser of the Property's fair market 
value of $920,000 as appraised on April 1, 2021, and an updated 
appraised value to be determined on the date of purchase, subject to 
cost sharing allocations regarding the cost for this exemption. The 
updated appraisal must be provided to the Department and will be made a 
part of the administrative record for this exemption application.
    46. The terms and conditions of the Proposed Transaction must be at 
least as favorable to the Plan as the terms and conditions the Plan 
would have received in an arm's length transaction between unrelated 
and independent parties.
    47. The Proposed Transaction must not be part of an agreement, 
arrangement, or understanding designed to benefit Lodge 4.
    48. No later than 30 days after the Transaction is completed, the 
Independent Fiduciary must submit to the Department a written 
certification that all of the conditions of the final exemption have 
been met and must submit the Statement to the Department.
    49. The Independent Fiduciary must:
    (a) Determine that the Proposed Transaction is in the interest of 
and protective of the rights of the Plan and its participants and 
beneficiaries;
    (b) Determine whether it is prudent for the Plan to proceed with 
the Proposed Transaction;
    (c) Review, negotiate, and approve the terms and conditions of the 
Proposed Transaction;
    (d) Represent the Plan's interests in connection with the Proposed 
Transaction, including monitoring the parties' compliance with terms of 
the contract of sale and the closing contract, enforcing the Plan's 
rights under the contract of sale and the closing contract, and 
ensuring the satisfaction of all preconditions for the Plan's purchase 
of the Property, including the terms of the proposed financing from an 
unrelated third-party bank;
    (e) Monitoring to ensure that all exemption conditions are met and 
take whatever actions are necessary to protect the rights of the Plan 
and its participants and beneficiaries in the Proposed Transaction;
    (f) Review the Appraisal Report and confirm that the underlying 
methodology is reasonable and accurate such that the valuation of the 
Property was reasonably derived;
    (g) Ensure that the Appraisal Report is based on complete, current, 
and accurate information; the appraiser was prudently selected; the 
methodology used by the Qualified Independent Appraiser is consistent 
with sound valuation principles; and that it is reasonable under the 
circumstances to rely upon the Appraisal Report, as updated, to 
determine the fair market value of the Property as of the date of the 
transaction; and
    (h) Not have entered into, or must not enter into, any agreement or 
instrument that violates either ERISA Section 410, or the Department's 
Regulations codified at 29 CFR 2509.75-4; \16\
---------------------------------------------------------------------------

    \16\ ERISA section 410 provides, in part, that ``except as 
provided in ERISA Sections 405(b)(1) and 405(d), any provision in an 
agreement or instrument which purports to relieve a fiduciary from 
responsibility or liability for any responsibility, obligation, or 
duty under this part [meaning part 4 of ERISA] shall be void as 
against public policy.''
---------------------------------------------------------------------------

    50. Furthermore, the Independent Fiduciary must not have entered 
into, and must not enter into, any agreement,

[[Page 87606]]

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; or waives any rights, 
claims, or remedies of the Plan under ERISA, state, or Federal law 
against the Independent Fiduciary with respect to the Proposed 
Transaction;
    51. The Qualified Independent Appraiser 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 Qualified Independent Appraiser 
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 
Qualified Independent Appraiser's work. The Plan also must 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 Qualified Independent Appraiser with respect to the 
Proposed Transaction.
    52. The Employer Trustees but not the Union Trustees must determine 
that the Proposed Transaction is prudent and in the Plan's interest to 
proceed with the Transaction; the Union Trustees cannot participate or 
in any way influence the Employer Trustees' determination. Lastly, all 
the material facts and representations set forth in the Summary of 
Facts and Representations must be true and accurate at all times.

Statutory Findings

    53. ``Administratively Feasible.'' The Department has tentatively 
determined that the proposed exemption is administratively feasible for 
the Department because it is a one-time transaction requiring strict 
adherence to fiduciary conduct that is subject to conditions designed 
to safeguard the Plan, as overseen by an Independent Fiduciary 
responsible for ensuring that all of the conditions of the exemption 
have been met.
    54. ``In the interests of.'' The Department has tentatively 
determined that the proposed exemption is in the Plan's and 
participants' and beneficiaries' interest because Lodge 4 intends to 
terminate operating the Training Facility and doing so would require 
the Plan to move its training programs and equipment at great expense, 
and the Plan would need to find new suitable property to conduct its 
apprenticeship training goals. The Proposed Transaction, however, would 
permit the Plan to acquire the Property, thereby continuing utilizing 
the Training Facility to provide adequate training, and avoid moving 
its specialized training equipment and air filtration system. The 
Proposed Transaction would also permit the Plan to terminate its Leased 
Office space, thereby saving additional expenses and use the Property 
to expand its Training Program to create a regional training center.
    55. ``Protective of.'' The Department has tentatively determined 
that the proposed exemption is protective of the Plan's participants 
and beneficiaries because the Independent Fiduciary has reviewed the 
terms of the Proposed Transaction and determined that the purchase of 
the Property under the given terms and conditions is prudent and in the 
best interest of the Plan and its participants and beneficiaries. Among 
other things, the Independent Fiduciary will monitor the Proposed 
Transaction to ensure that the Plan will acquire the Property at a 
price that will not be greater than the fair market value as determined 
by the Qualified Independent Appraiser. Additionally, the Independent 
Fiduciary will continue to oversee the Proposed Transaction, including 
the services to be provided by the Qualified Independent Appraiser, and 
the Proposed Transaction will be subject to specific conditions aimed 
at protecting the rights of Plan participants and beneficiaries.

Notice to Interested Persons

    Those persons who may be interested in the publication in the 
Federal Register of the notice of proposed exemption (the Notice) 
include participants and beneficiaries of the Plan and participants and 
beneficiaries of the Plan. The Applicants will provide notification to 
interested persons by electronic mail, and first-class mail within 
fifteen (15) calendar days of the date of the publication of the Notice 
in the Federal Register. The mailing will contain a copy of the Notice, 
as it appears in the Federal Register on the date of publication, plus 
a copy of the Supplemental Statement, as required, pursuant to 29 CFR 
2570.43(a)(2), which will advise the interested persons of their right 
to comment and to request a hearing.
    The Department must receive all written comments and requests for a 
hearing no later than forty-five (45) days from the date of the 
publication of the Notice in the Federal Register.
    All comments will be made available to the public.
    Warning: Do not include any personally identifiable information 
(such as name, address, or other contact information) 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

Section I. Definitions

    (a) The term ``Qualified Independent Fiduciary'' means the Wagner 
Law

[[Page 87607]]

Group, and any of its employees that provide any fiduciary service to 
the Plan in respect to this proposed exemption; or such other 
``qualified independent fiduciary'' as defined under 29 CFR part 2570, 
subpart B, as updated from time to time.
    (b) The term ``Qualified Independent Appraiser'' means Accurity 
Morley & McConkie, LC, and any of its employees that provide any 
appraisal related service to the Plan in connection with this proposed 
exemption.
    (c) The term ``Mortgage Loan'' means a mortgage loan from an 
independent, third-party bank consisting of a five-year term with 
payments based on 20-year amortization, ballooning at maturity, or such 
other mortgage loan prudently entered into by the Independent Fiduciary 
on behalf of the Plan.

Section II. Transactions

    The restrictions of ERISA Sections 406(a)(1)(A), (D), and 406(b)(1) 
and (2) shall not apply to the purchase of the improved real property 
located at 294 Cowboy Ray Road, Page, Arizona (the Property), by the 
Boilermakers Western States Apprenticeship Fund's (the Plan) from the 
``Navajo Nation'' Lodge 4 of the International Brotherhood of 
Boilermakers, Iron Ship Builders, Blacksmith, Forgers, and Helpers 
(Lodge 4), a party in interest with respect to the Plan (the Purchase); 
provided that the conditions in Section III are satisfied.

Section III. Conditions

    (a) The Purchase is a one-time transaction for the lesser of 
$920,000 in cash or an updated appraised value to be determined by the 
Qualified Independent Appraiser as of the Purchase's closing date (the 
Price). The updated report from the Qualified Independent Appraiser 
must be submitted to the Department within 30 days before the date the 
Purchase is completed for inclusion in the record for this exemption 
application;
    (b) Approval of the Purchase must be made solely by Plan trustees 
that are not, and were not, appointed by a labor union that is 
affiliated with the International Brotherhood of Boilermakers, and such 
Plan trustees must prudently determine in a writing that the Purchase 
is in the Plan's best interest. Such non-union appointed Plan trustees 
must have considered other possible locations and properties that were 
unrelated to Lodge 4 prior to determining that the Purchase is the most 
appropriate given the Plan's goals. Any trustee appointed by a labor 
union that is affiliated with the International Brotherhood of 
Boilermakers cannot participate or in any way influence a non-union 
appointed Plan trustee;
    (c) The Plan must retain the services of a Qualified Independent 
Fiduciary and the Qualified Independent Fiduciary must prudently:
    (1) Determine that the Purchase is in the interest of, and 
protective of, the Plan and the Plan's participants;
    (2) Determine whether it is prudent for the Plan to proceed with 
the Purchase;
    (3) Review, negotiate, and approve the terms and conditions of the 
Purchase;
    (4) Represent the Plan's interests in connection with the Purchase, 
including monitoring the parties' compliance with terms of the sales 
contract and the closing contract, enforcing the Plan's rights under 
the sale contract and closing contract, and ensuring the satisfaction 
of all conditions precedent to complete the Purchase, including the 
terms of the Mortgage Loan;
    (5) Monitor to ensure that all of the exemption conditions are met 
and take whatever actions are necessary to protect the rights of the 
Plan and its participants and beneficiaries with respect to the 
Purchase;
    (6) Review the Qualified Independent Appraisal Report and confirm 
that the underlying methodology is reasonable and accurate and that the 
valuation of the Property was reasonably derived;
    (7) Ensure that the Qualified Independent Appraisal Report is based 
on complete, current, and accurate information; the Qualified 
Independent Appraiser was prudently selected; the methodology used by 
the Qualified Independent Appraiser is consistent with sound valuation 
principles; and that it is reasonable under the circumstances to rely 
upon the Qualified Independent Appraisal's report to determine the fair 
market value of the Property as of the date of the Purchase; and
    (8) Not have entered into, and must not enter into, any agreement 
or instrument that violates either ERISA section 410, or the 
Department's Regulations codified at 29 CFR 2509.75-4;
    (d) The terms and conditions of the Purchase must be at least as 
favorable to the Plan as the terms and conditions the Plan would have 
received in an arm's length transaction with an unrelated and 
independent party, each of which had full knowledge of the relevant 
facts, and neither of which were under any compulsion to buy or sell;
    (e) The Purchase must not be part of an agreement, arrangement, or 
understanding designed to benefit Lodge 4 or the International 
Brotherhood of Boilermakers;
    (f) In the event the Purchase is financed with a Mortgage Loan, 
then the Mortgage Loan must be approved by the Qualified Independent 
Fiduciary, and its monthly payments must not exceed $10,000;
    (g) The Mortgage Loan collateral is limited to a first mortgage 
lien and assignment of lease and rents on the Property. The Plan may 
not obtain a Mortgage Loan from a bank that has any pecuniary interest 
in, or is owned, managed, or controlled in any degree by any party in 
interest with respect to the Plan as defined in ERISA section 3(14);
    (h) The Plan must not pay any commissions, costs, or other expenses 
in connection with the Purchase subject to the cost sharing allocations 
regarding the cost for this exemption as provided below in paragraph 
(i);
    (i) Lodge 4 and the Plan must each pay half of the costs associated 
with the proposed exemption including but not limited to fees for 
Qualified Independent Fiduciary services, fees for Qualified 
Independent Appraiser services, and fees for preparing the Plan's 
application to the Department requesting this proposed exemption, but 
not including the Price;
    (j) The Qualified 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 Qualified 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 Qualified 
Independent Fiduciary's work; or that waives any rights, claims, or 
remedies of the Plan under ERISA, state, or Federal law against the 
Qualified Independent Fiduciary with respect to the Purchase;
    (k) The Qualified Independent Appraiser 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 Qualified Independent Appraiser 
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 
Qualified Independent Appraiser's work; or that waives 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 
Qualified Independent Appraiser with respect to the Purchase;
    (l) The Plan's trustees and the Qualified Independent Fiduciary 
maintain for a period of six (6) years

[[Page 87608]]

from the date of any transaction related to the Purchase, in a manner 
that is convenient and accessible for audit and examination, the 
records necessary to enable the persons described in paragraph (m)(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 Plan's 
trustees and/or the Qualified Independent Fiduciary, the records are 
lost or destroyed prior to the end of the six-year period, and (ii) no 
party in interest other than the Plan's trustees or the Qualified 
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 (n) 
below; and
    (m)(1) Except as provided in section (2) of this paragraph and not 
withstanding any provisions of subsections (a)(2) and (b) of ERISA 
Section 504, the records referred to in paragraph (l) 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 Plan's trustees or any duly authorized representative of 
the Plan's trustees;
    (iii) the Qualified Independent Fiduciary or any duly authorized 
representative of the Qualified Independent Fiduciary;
    (iv) any participant or beneficiary of the Plan, or any duly 
authorized representative of such participant or beneficiary;
    (2) Should Lodge 4 or any party refuse to disclose information to a 
person on the basis that such information is exempt from disclosure, 
such party shall provide a written notice advising that person of the 
reasons for the refusal and that the Department may request such 
information by the close of the thirtieth (30th) day following the 
request;
    (n) Within 30 calendar days after the Property is purchased, the 
Qualified Independent Fiduciary must provide to the Department a 
written certification that all of the exemption conditions have been 
met and must provide to the Department the Statement documenting its 
conclusion that the Proposed Transaction is in the Plan's best 
interest; and
    (o) All the material facts and representations set forth in the 
Summary of Facts and Representations are true and accurate at all 
times.
    Exemption Date: If granted, the exemption will be in effect as of 
the date the grant notice is published in the Federal Register.

    Signed at Washington, DC, this 30th day of October 2024.
George Christopher Cosby,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2024-25583 Filed 11-1-24; 8:45 am]
BILLING CODE 4510-29-P


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