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[Federal Register Volume 89, Number 228 (Tuesday, November 26, 2024)]
[Notices]
[Pages 93353-93356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27630]

[[Page 93353]]

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2024-04]

Exemption Application No. L-11954; Exemption From Certain 
Prohibited Transaction Restrictions Involving the Fedeli Group, Inc. 
Employee Benefits Plan Located in Cleveland, OH

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of exemption.

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SUMMARY: This document contains a notice of exemption from certain 
prohibited transaction restrictions of the Employee Retirement Income 
Security Act of 1974 (ERISA) issued by the Department of Labor (the 
Department) to the Fedeli Group Employee Benefits Plan.

DATES: Exemption date: This exemption will be in effect on November 26, 
2024.

FOR FURTHER INFORMATION CONTACT: Mrs. Blessed Chuksorji-Keefe of the 
Department at (202) 693-8567. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On November 6, 2023, the Department 
published a notice of proposed exemption in the Federal Register at 88 
FR 76253. The proposed exemption involved the reinsurance of risks and 
the receipt of premiums by Risk Specialists Insurance Company, Inc. 
(Risk Specialists) in connection with insurance contracts sold by THP 
Insurance Company, Inc. (THP) or THP's successor to provide medical and 
hospital coverage to participants in the Fedeli Group Inc. Employee 
Benefits Plan (the Benefit Plan or the Applicant). THP, is unrelated to 
the Fedeli Group, Inc. and any entities related to Fedeli. 
(collectively, Fedeli Group). The Applicant requested an individual 
exemption pursuant to ERISA section 408(a) in accordance with the 
Department's exemption procedures set forth in 29 CFR part 2570, 
subpart B.\1\
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    \1\ 76 FR 66637, 66644, (October 27, 2011).
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    Based on the record, the Department has determined to grant the 
proposed exemption. This exemption provides only the relief specified 
herein. It provides no relief from violations of any law other than the 
prohibited transaction provisions of ERISA, as expressly stated herein.
    The Department makes the requisite findings under ERISA Section 
408(a) based on the Applicant's adherence to all the conditions of the 
exemption. Accordingly, affected parties should be aware that the 
conditions incorporated in this exemption, considered individually and 
as a whole, are necessary for the Department to grant the relief 
requested by the Applicant. Absent these or similar conditions, the 
Department would not have granted this exemption.

Background

    1. As discussed in greater detail below and in the notice of 
proposed exemption, Fedeli Group seeks to use its captive insurance 
company, Risk Specialists, to reinsure participants' benefit claims 
under the Benefit Plan.

Parties to the Transaction

    2. Fedeli Group: Fedeli Group is a corporation based in Cleveland, 
Ohio that provides insurance products and risk management services. The 
Fedeli Group is 51 percent owned by The Umberto P. Fedeli Restated 
Revocable Trust (dated July 16, 2016) 19 percent owned by the Umberto 
P. Fedeli 2012 Discretionary Trust (dated November 28, 2012) and 20% 
owned by the Umberto P. Fedeli 2009 Discretionary Trust (dated December 
23, 2009). The Fedeli Group sponsors and administers the Benefit Plan.
    3. Risk Specialists: Risk Specialists is a property and casualty 
captive insurance company that is licensed and operates under 
applicable Tennessee law. Risk Specialists is 100 percent owned by Risk 
Specialists Captive Holdings, LLC, a limited liability company formed 
in Ohio on the same date as Risk Specialists. Risk Specialists Captive 
Holdings, LLC is 51 percent owned by the Fedeli Revocable Trust, 29% 
owned by the Fedeli 2012 Trust, and 20 percent owned by the Fedeli 2009 
Trust. Risk Specialists serves as the reinsurer with respect to 13 
different lines of insurance coverages provided to Fedeli Group and 
unrelated third parties.
    4. THP. THP Insurance Company, Inc. is a domestic stock insurance 
company domiciled in West Virginia and licensed in both Ohio and West 
Virginia. THP is unrelated to all Fedeli Group-related entities and is 
currently rated ``A+'' by A.M. Best Company.
    5. The Benefit Plan. The Benefit Plan is a self-funded employee 
welfare benefit plan covering medical and hospital expenses for 
eligible Fedeli Group employees that is sponsored and administered by 
the Fedeli Group.

The Transaction

    6. Fedeli Group plans to use its captive insurance company, Risk 
Specialists, to reinsure the Benefit Plan's claims. The Plan will enter 
into a Master Group Policy with THP, pursuant to which THP will provide 
group health insurance coverage to eligible participants under the 
Benefit Plan. THP will enter into a reinsurance agreement (the 
Reinsurance Agreement) with Risk Specialists. Under this arrangement, 
Risk Specialists will be responsible for the Benefit Plan's insurance 
claims under the Master Group Policy with THP, and Risk Specialists 
will indirectly receive the Benefit Plan's premium payments to THP. The 
Reinsurance Agreement between THP and Risk Specialists will be 
``indemnity only,'' which means that THP will be responsible for 
Benefit Plan claims under the Master Group Policy to the extent Risk 
Specialists does not satisfy those claims under the Reinsurance 
Agreement.
    7. As described in the notice of proposed exemption, the Applicant 
represents that the only benefits Fedeli Group expects to receive from 
the proposed Captive Approach relative to the Plan's current self-
funding arrangement are the incidental benefits that would result from 
more predictability and better control over its benefit funding 
obligations. The proposed exemption describes that the Captive Approach 
will result in reduced overall plan costs because benefit expenses will 
be paid based on actual experience, as opposed to a third-party 
insurance carrier (the Third-Party Approach) requiring a fixed payment 
at a premium charged by an insurance carrier where the premium amount 
does not change regardless of the amount of claims that are incurred.

ERISA Analysis

    8. The reinsurance arrangement would violate certain prohibited 
transaction provisions of ERISA for the following reasons:
     Fedeli Group is a party in interest with respect to the 
Benefit Plan pursuant to ERISA section 3(14)(C), because it is an 
employer whose employees are covered by the Benefit Plan;
     The Trusts are parties in interest with respect to the 
Benefit Plan under ERISA section 3(14)(E) because they collectively own 
100% of Fedeli Group, the Benefit Plan sponsor.
     Risk Specialists, the captive reinsurer, is a party in 
interest with respect to the Benefit Plan under ERISA section 3(14)(G) 
because it is 100% owned by the Trusts.
    9. ERISA section 406(a) prohibits a wide range of transactions 
between plans and parties in interest with respect to those plans. As 
relevant here,

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ERISA section 406(a)(l)(D) prohibits a plan fiduciary from engaging in 
a transaction if the fiduciary knows or should know the transaction 
constitutes a direct or indirect transfer of any plan assets for the 
use or benefit of a party in interest. The reinsurance arrangement 
would result in an indirect transfer of Benefit Plan premium payments 
to Risk Specialists, which is a party in interest with respect to the 
Benefit Plan.
    10. ERISA section 406(b)(1) of ERISA prohibits a fiduciary from 
dealing with plan assets for the fiduciary's own interest or own 
account. The fiduciaries of the Benefit Plan would violate ERISA 
section 406(b)(1) by causing the Benefit Plan to pay premiums to THP, 
with the knowledge that the premiums will ultimately be directed to 
Risk Specialists, the captive reinsurer.

Merits of the Transaction

    11. As described in further detail in the notice of proposed 
exemption, a qualified, independent fiduciary has concluded that the 
reinsurance arrangement will reduce each Benefit Plan participant's 
share of the Benefit Plan premium paid to THP by at least $2,023.20 per 
participant per year for the duration of the exemption relative to the 
contribution the participant would otherwise have made under a 
noncaptive arrangement with a competitive third party insurer receiving 
no more than reasonable compensation within the meaning of ERISA 
section 408(b)(2). Historically, Benefit Plan participants contributed 
approximately 25% towards the cost of the Benefit Plan. Under this 
exemption, all the savings from the reinsurance arrangement will be 
used to reduce Benefit Plan participants' share of the Benefit Plan's 
premiums, and Benefit Plan participants will contribute no more than 
17.38% of the Benefit Plan's costs throughout the duration of the 
exemption.
    12. Therefore, this exemption requires the Fedeli Group to use any 
of the savings it derives from the captive reinsurance arrangement to 
reduce the amount each Benefit Plan participant is required to 
contribute toward the premiums the Benefit Plan pays to THP or another 
fronting insurer. If any Fedeli Group-related entity receives a direct 
or indirect profit, tax benefit, investment gain or other remunerative 
benefit through the reinsurance arrangement, the Fedeli Group must 
further enhance the Benefit Plan in an amount greater than the 
$2,023.20 per participant per year contribution reduction in a manner 
consistent with the terms and conditions of this exemption.
    13. On an on-going basis, the independent fiduciary is required to 
review all relevant financial information of Risk Specialists and any 
other Fedeli-related entity as is necessary to ensure that this and the 
other terms and conditions described in this proposal are met and to 
annually certify in a written report submitted to the Department that 
all requirements of the proposed exemption have been met. Furthermore, 
as described in the notice of proposed exemption, this exemption 
requires a number of protective conditions designed to ensure that the 
rights of the Plan and its participants and beneficiaries are 
protected.

Comments Received Regarding Proposed Exemption

    In the proposed exemption, the Department invited all interested 
persons to submit written comments and/or requests for a public hearing 
with respect to the proposed exemption by December 21, 2023. The 
Department did not receive any written comments or requests for a 
public hearing.\2\
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    \2\ The Department notes that it did not make any changes to the 
operative text of the proposed exemption in this final grant notice 
except for minor editorial revisions.
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    Therefore, on basis of the entirety of the public record for this 
exemption application and the conditions for relief included below, the 
Department finds that the exemption is administratively feasible for 
the Department, in the interests of the Benefit Plan and its 
participants and beneficiaries, and protective of the rights of the 
Benefit Plan's participants and beneficiaries.
    The complete application file (L-11954) is available for public 
inspection in the Public Disclosure Room of the Employee Benefits 
Security Administration, Room N-1515, U.S. Department of Labor, 200 
Constitution Avenue NW, Washington, DC 20210. For a more complete 
statement of the facts and representations supporting the Department's 
decision to grant this exemption, please refer to the notice of 
proposed exemption published on November 6, 2023, at 88 FR 76253.

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) does not relieve a fiduciary or other party 
in interest from certain requirements of other ERISA provisions, 
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 his or her duties respecting the plan solely in the interest 
of the plan's participants and beneficiaries and in a prudent fashion 
in accordance with ERISA section 404(a)(1)(B).
    (2) As required by ERISA section 408(a), the Department hereby 
finds that the exemption is: (a) administratively feasible for the 
Department; (b) in the interests of affected plans and of their 
participants and beneficiaries; and (c) protective of the rights of 
participants and beneficiaries of the Benefit Plan.
    (3) This exemption is supplemental to and not in derogation of any 
other ERISA provisions, including statutory or administrative 
exemptions and transitional rules. Furthermore, the fact that the 
Department is granting an administrative exemption for this transaction 
is not dispositive to determining whether the transaction is in fact a 
prohibited transaction.
    (4) The Department's grant of this exemption is based on the 
express condition that the material facts and representations contained 
in the application accurately describe all material terms of the 
transactions that are the subject of the exemption.
    Accordingly, the Department grants the following exemption under 
the authority of ERISA Section 408(a)in accordance with its exemption 
procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 
66644, October 27, 2011):

Exemption

Section I. Covered Transactions

    The restrictions of ERISA sections 406(a)(1)(D) and 406(b)(1) will 
not apply to the reinsurance of risks and the receipt of premiums 
therefrom by Risk Specialists LLC (Risk Specialists), in connection 
with insurance contracts sold by THP Insurance Company, Inc. (THP) or 
any successor insurance company to THP, which is unrelated to the 
Fedeli Group, Inc. (Fedeli Group or the Applicant), including any 
entity related to Fedeli Group to provide medical and hospital coverage 
to participants in the Fedeli Group, Inc. Employee Benefits Plan (the 
Benefit Plan) (these covered transactions are referred to as the 
Captive Reinsurance Arrangement) provided that the conditions set forth 
in Section II are met.

Section II. Conditions

    (a) All of the savings from the Captive Reinsurance Arrangement 
will be used to reduce the amount that each Benefit Plan participant is 
required to contribute toward the premium the

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Benefit Plan pays to THP or another fronting insurer. The cost savings 
will be determined relative to the reasonable cost the Benefit Plan 
would otherwise have paid for comparable benefits pursuant to a non-
captive arrangement with an unrelated, third-party insurer. In no year 
will the reduction in Benefit Plan participant contributions be less 
than $2,023.20 per participant per year. The premium reduction will 
benefit all Plan participants equally and will be verified by the 
Independent Fiduciary as described below.
    (b) Benefit Plan participant contributions will be further reduced 
by an amount equal to any net benefit (the Extra Benefit) any Fedeli 
Group entity received that is directly or indirectly generated by the 
Captive Reinsurance Arrangement over each five-year period, the first 
of which begins on the grant date this exemption is granted. Extra 
Benefits include, but are not limited to, increased earned income, 
increased savings, a tax reduction or a profit or any benefit arising 
from a further diversification of Risk Specialist's risks in connection 
with adding Plan-related insurance risks to Risk Specialist's other 
risks. The reduction will be received by Benefit Plan participants on a 
pro rata basis in the year following the five-year period to which the 
Extra Benefit relates; plus an additional interest payment on the 
amount of the Extra Benefit at the Internal Revenue Code's federal 
underpayment rate established in Code section 6621(b). The interest on 
the Extra Benefit will be calculated for the period from the end of the 
Benefit Plan year the Extra Benefit was earned through the start of the 
Benefit Plan year in which the Extra Benefit is applied to reduce 
Benefit Plan participants' contributions.
    (c) Benefit Plan participants will contribute no more than 17.38% 
of the premium paid by the Benefit Plan to THP or another fronting 
insurer.
    (d) Risk Specialists:
    (1) Is a party in interest with respect to the Benefit Plan by 
reason of a stock affiliation with Fedeli Group that is described in 
ERISA section 3(14)(E) or (G);
    (2) Is licensed to sell insurance or conduct reinsurance operations 
in the state of Tennessee;
    (3) Has obtained a Certificate of Authority from the insurance 
commissioner of the State of Tennessee to transact the business of a 
captive insurance company, which has neither been revoked nor 
suspended, and has undergone a financial examination (within the 
meaning of the law of its domiciliary State, Tennessee) by the 
Insurance Commissioner of the State of Tennessee within five years 
before the end of the year preceding the year in which the reinsurance 
transaction occurred;
    (4) Has undergone and shall continue to undergo an examination by 
an independent certified public accountant for its last completed 
taxable year immediately prior to the taxable year of the reinsurance 
transaction covered by this exemption; and
    (5) Is licensed to conduct reinsurance transactions by a state 
whose law requires that an actuarial review of reserves be conducted 
annually by an independent firm of actuaries and reported to the 
appropriate regulatory authority.
    (e) The Benefit Plan will pay no more than adequate consideration 
with respect to insurance that is part of the Captive Reinsurance 
Arrangement.
    (f) No commissions will be paid by the Benefit Plan with respect to 
the direct sale of such contracts or the reinsurance thereof.
    (g) In the initial year of any contract involving Risk Specialists 
and THP or any successor insurer, the Benefit Plan's participants and 
beneficiaries will receive an immediate and objectively determined 
benefit in the form of decreased participant contributions, and such 
benefits will continue in all subsequent years of each contract and in 
every renewal of each contract.
    (h) In the initial year and in subsequent years of coverage 
provided by THP or another fronting insurer (either, a Fronting 
Insurer), the formulae used by THP or a Fronting Insurer to calculate 
premiums will be similar to formulae used by other insurers providing 
comparable life insurance coverage under similar programs that are not 
captive reinsured. Furthermore, the premium charges calculated in 
accordance with the formulae will be reasonable and will be comparable 
to the premiums charged by the Fronting Insurer and its competitors 
with the same or a better financial strength rating providing the same 
coverage under comparable programs that are not captive reinsured.
    (i) Fedeli Group will only contract with insurers with a financial 
strength rating of ``A'' or better from A.M. Best Company. The 
reinsurance arrangement between any fronting insurer and Risk 
Specialists will be indemnity insurance only, which means that the 
fronting insurer will not be relieved of any liability to the Benefit 
Plan should Risk Specialists be unable or unwilling to cover any 
liability arising from the reinsurance arrangement.
    (j) Participants and beneficiaries in the Benefit Plan will receive 
no less than the immediate and objectively determined increased 
benefits the participant and beneficiary received in the initial year 
of each such contract involving Risk Specialists and THP in subsequent 
years of every contract of reinsurance involving Risk Specialists and 
THP.
    (k) For each taxable year of Risk Specialists, the gross premiums 
received in that taxable year by Risk Specialists for benefit insurance 
provided to Fedeli Group and its employees with respect to which Risk 
Specialists is a party in interest by reason of the relationship to 
Fedeli Group as described in ERISA section 3(14)(E) or (G), will not 
exceed 50% of the gross premiums received for all lines of insurance 
(i.e., benefit insurance and non-benefit insurance) in that taxable 
year by Risk Specialists.
    (l) The Benefit Plan will retain a qualified independent fiduciary 
(the Independent Fiduciary) to analyze the transactions covered by the 
exemption and render an opinion that the terms and conditions of this 
exemption have been satisfied.
    (m) The Independent Fiduciary will:
    (1) Monitor the transactions described here on behalf of the 
Benefit Plan on a continuing basis to ensure such transactions remain 
in the interest of the Benefit Plan;
    (2) Take all appropriate actions to safeguard the interests of the 
Benefit Plan;
    (3) Enforce compliance with all conditions of this exemption and 
all conditions and obligations imposed on any party dealing with the 
Benefit Plan;
    (4) Review all contracts, and any renewals of such contracts, 
pertaining to the Captive Reinsurance Arrangement, to determine whether 
the requirements of this exemption, and the terms of the increased 
benefits continue to be satisfied; and
    (5) Provide an annual, certified report to the Department, under 
penalty of perjury, indicating whether the terms and conditions of the 
exemption continue to be satisfied. Each report will be completed 
within six months after the end of the twelve-month period to which it 
relates (the first twelve-month period begins on the first day of the 
implementation of the Captive Reinsurance Arrangement), and be 
submitted to the Department within 60 days thereafter. The relevant 
report will include all the objective data necessary to demonstrate 
that the Primary Benefit Test has been met.
    (n) The Benefit Plan, Fedeli Group and its related parties have 
not, and will not, indemnify the Independent Fiduciary, in whole or in 
part, for negligence and/or for any violations of

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state or federal law that may be attributable to the Independent 
Fiduciary in performing its duties under the Captive Reinsurance 
Arrangement. In addition, no contract or instrument will purport to 
waive any liability under state or federal law for any such violations. 
In the event a successor Independent Fiduciary is appointed to 
represent the interests of the Plan with respect to the subject 
transaction, no time shall elapse between the resignation or 
termination of the former Independent Fiduciary and the appointment of 
the successor Independent Fiduciary.
    (o) No Fedeli Group entity or related entity will use participant-
related data or information generated by or derived from the proposed 
arrangement in a manner that benefits the Fedeli Group or related 
entity.
    (p) No amount of THP's reserves that are attributable to the Plan 
participants' contributions will be transferred to Fedeli Group or a 
related party.
    (q) Fedeli Group will not evade the conditions in this exemption by 
offsetting or reducing any benefits provided to Fedeli Group employees 
to defray the costs, expenses, or obligations of complying with this 
exemption.
    (r) All expenses associated with the exemption and the exemption 
application, including any payment to the Independent Fiduciary, will 
be paid by Fedeli Group and not the Plan.
    (s) All the material facts and representations set forth in the 
Summary of Facts and Representation are and will be true and accurate 
at all times.
    Exemption date: This exemption will be in effect on November 26, 
2024.

    Signed at Washington, DC.
George Christopher Cosby,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2024-27630 Filed 11-25-24; 8:45 am]
BILLING CODE 4510-29-P
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