27328 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Notices

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Prohibited Transaction Exemption 98–20;

Exemption Application No. D–10355, et al.]

Grant of Individual Exemptions;

Equitable Life Assurance Society

AGENCY: Pension and Welfare Benefits

Administration, Labor.

ACTION: Grant of individual exemptions.

SUMMARY: This document contains

exemptions issued by the Department of

Labor (the Department) from certain of

the prohibited transaction restrictions of

the Employee Retirement Income

Security Act of 1974 (the Act) and/or

the Internal Revenue Code of 1986 (the

Code).

Notices were published in the Federal

Register of the pendency before the

Department of proposals to grant such

exemptions. The notices set forth a

summary of facts and representations

contained in each application for

exemption and referred interested

persons to the respective applications

for a complete statement of the facts and

representations. The applications have

been available for public inspection at

the Department in Washington, D.C. The

notices also invited interested persons

to submit comments on the requested

exemptions to the Department. In

addition the notices stated that any

interested person might submit a

written request that a public hearing be

held (where appropriate). The

applicants have represented that they

have complied with the requirements of

the notification to interested persons.

No public comments and no requests for

a hearing, unless otherwise stated, were

received by the Department.

The notices of proposed exemption

were issued and the exemptions are

being granted solely by the Department

because, effective December 31, 1978,

section 102 of Reorganization Plan No.

4 of 1978 (43 FR 47713, October 17,

1978) transferred the authority of the

Secretary of the Treasury to issue

exemptions of the type proposed to the

Secretary of Labor.

Statutory Findings

In accordance with section 408(a) of

the Act and/or section 4975(c)(2) of the

Code and the procedures set forth in 29

CFR Part 2570, Subpart B (55 FR 32836,

32847, August 10, 1990) and based upon

the entire record, the Department makes

the following findings:

(a) The exemptions are

administratively feasible;

(b) They are in the interests of the

plans and their participants and

beneficiaries; and

(c) They are protective of the rights of

the participants and beneficiaries of the

plans.

Equitable Life Assurance Society of the

United States (Equitable) Located in

New York, New York; Exemption

[Prohibited Transaction Exemption 98–20;

Exemption Application No. D–10355]

The restrictions of sections 406(a),

406(b)(1), and 406(b)(2) of the Act and

the sanctions resulting from the

application of section 4975 of the Code,

by reason of section 4975(c)(1)(A)

through (E) of the Code shall not apply

to the past and continuing lease (the

Lease) of commercial space in One

Boston Place by Equitable Separate

Account No. 8, also known as the Prime

Property Fund (PPF), to an Equitable

affiliate, Equitable Real Estate

Investment Management, Inc. (ERE),

provided the following conditions are

satisfied:

(1) All terms and conditions of the

Lease are at least as favorable to PPF as

could be obtained in an arm’s length

transaction with an unrelated party;

(2) The interests of PPF for all

purposes under the Lease is represented

by an independent fiduciary, Lawrence

A. Bianchi, a principal of the Codman

Company in Boston, Massachusetts;

(3) The rent paid by ERE at all times

under the Lease is no less than the fair

market rental value of the property; and

(4) The independent fiduciary will

continue to monitor the Lease on behalf

of PPF.

For a more complete statement of the

facts and representations supporting the

Department’s decision to grant this

exemption refer to the Notice of

Proposed Exemption published on

February 6, 1998 at 63 FR 6214.

EFFECTIVE DATE: This exemption has an

effective date of July 24, 1996.

FOR FURTHER INFORMATION CONTACT:

Janet L. Schmidt of the Department,

telephone (202) 219–8883 (This is not a

toll-free number.)

Tyson Foods, Incorporated Employee

Profit Sharing Plan and Trust (the Plan)

Located in Springdale, Arkansas

Exemption

[Prohibited Transaction Exemption 98–21;

Exemption Application No. D–10421]

The restrictions of sections 406(a),

406(b)(1), and 406(b)(2) of the Act and

the sanctions resulting from the

application of section 4975 of the Code,

by reason of section 4975(c)(1) (A)

through (E) of the Code shall not apply

to the past sale by the Plan of certain

hatcheries, a freezer facility and an

office complex (collectively, the

Properties), all located in Arkansas, to

Tyson Foods, Incorporated (the

Company), a party in interest with

respect to the Plan, provided that the

following conditions were satisfied:

(A) All terms of the transactions were

at least as favorable to the Plan as those

which the Plan could obtain in an

arm’s-length transaction with an

unrelated party;

(B) The sale was a one-time

transaction for cash;

(C) The Plan paid no commissions nor

other expenses relating to the sale;

(D) The purchase price was the greater

of: (1) the fair market value of each of

the Properties as determined by a

qualified, independent appraiser; or (2)

the Plan’s original acquisition cost; and

(E) Prior to the sale, an independent

fiduciary reviewed the transactions and

determined that the transactions

described herein, were appropriate and

in the best interests of the Plan and its

participants and beneficiaries.

For a more complete statement of the

facts and representations supporting the

Department’s decision to grant this

exemption refer to the Notice of

Proposed Exemption published on

March 20, 1998 at 63 FR 13693.

EFFECTIVE DATE: This Exemption has an

effective date of May 23, 1997.

FOR FURTHER INFORMATION CONTACT:

Janet L. Schmidt of the Department,

telephone (202) 219–8883 (This is not a

toll-free number.)

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and/or section

4975(c)(2) of the Code does not relieve

a fiduciary or other party in interest or

disqualified person from certain other

provisions to which the exemptions

does not apply and the general fiduciary

responsibility provisions of section 404

of the Act, which among other things

require a fiduciary to discharge his

duties respecting the plan solely in the

interest of the participants and

beneficiaries of the plan and in a

prudent fashion in accordance with

section 404(a)(1)(B) of the Act; nor does

it affect the requirement of section

401(a) of the Code that the plan must

operate for the exclusive benefit of the

employees of the employer maintaining

the plan and their beneficiaries;

(2) These exemptions are

supplemental to and not in derogation

of, any other provisions of the Act

and/or the Code, including statutory or
Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Notices 27329

administrative exemptions and

transactional rules. Furthermore, the

fact that a transaction is subject to an

administrative or statutory exemption is

not dispositive of whether the

transaction is in fact a prohibited

transaction; and

(3) The availability of these

exemptions is subject to the express

condition that the material facts and

representations contained in each

application accurately describes all

material terms of the transaction which

is the subject of the exemption.

Signed at Washington, DC, this 13th day of

May 1998.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 98–13146 Filed 5–15–98; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Prohibited Transaction Exemption 98–22;

Exemption Application Nos. D–10461, D–

10462 and D–10463]

Grant of Amendment to Prohibited

Transaction Exemption (PTE) 93–8

Involving the Fortunoff Pension Plans

(the Plans) Located in Westbury, NY

AGENCY: Pension and Welfare Benefits

Administration, U.S. Department of

Labor.

ACTION: Grant of Amendment to PTE

93–8.

SUMMARY: This document contains a

final exemption which amends PTE 93–

8 (58 FR 7258, February 5, 1993), a

purchase, leaseback and license

exemption involving Plans sponsored

by Fortunoff Fine Jewelry and

Silverware, Inc. (FFJ) and M. Fortunoff

of Westbury Corporation (M. Fortunoff)

and parties in interest. These

transactions are described in a notice of

pendency that was published in the

Federal Register on May 8, 1992 at 57

FR 19951.

EFFECTIVE DATE: This exemption is

effective as of May 18, 1998.

FOR FURTHER INFORMATION CONTACT: Ms.

Jan D. Broady, Office of Exemption

Determinations, Pension and Welfare

Benefits Administration, U.S.

Department of Labor, Washington, D.C.

20210, telephone (202) 219–8881. (This

is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On

December 19, 1997, the Department of

Labor (the Department) published a

notice of proposed exemption (the

Notice) in the Federal Register (62 FR

66685) that would amend PTE 93–8.

PTE 93–8 provides an exemption from

certain prohibited transaction

restrictions of section 406 of the

Employee Retirement Income Security

Act of 1974 (the Act) and from the

sanctions resulting from the application

of section 4975 of the Internal Revenue

Code of 1986 (the Code), as amended, by

reason of section 4975(c)(1) of the Code.

The Notice was requested in an

application filed on behalf of M.

Fortunoff and FFJ (collectively, the

Applicants) pursuant to section 408(a)

of the Act and section 4975(c)(2) of the

Code, and in accordance with the

procedures set forth in 29 CFR Part

2570, Subpart B (55 FR 32836, August

10, 1990) (the Procedures). Effective

December 31, 1978, section 102 of

Reorganization Plan No. 4 of 1978 (43

FR 47713, October 17, 1978) transferred

the authority of the Secretary of the

Treasury to issue exemptions of the type

requested to the Secretary of Labor.

Accordingly, this exemption is being

issued solely by the Department.

The Notice gave interested persons

the opportunity to comment and to

request a public hearing on the matters

described therein. Although the Notice

and supplemental statement were to be

posted and distributed to interested

persons during the month of December

1997, the Applicants stated that this

action was not taken but inadvertently

overlooked. Therefore, the Applicants

represented that they posted copies of

the Notice and supplemental statement

on employee bulletin boards in

company stores and executive offices

and also mailed this documentation to

all other participants in the Plans who

were not current employees, on or about

March 9, 1998. The Department

received no comments or hearing

requests from interested persons

following the dissemination of the

Notice and supplemental statement and,

therefore, has determined to grant the

amendment to PTE 93–8.

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and section 4975(c)(2)

of the Code does not relieve a fiduciary

or other party in interest or disqualified

person from certain other provisions of

the Act and the Code, including any

prohibited transaction provisions to

which the exemption does not apply

and the general fiduciary responsibility

provisions of section 404 of the Act,

which require, among other things, a

fiduciary to discharge his or her duties

respecting the plan solely in the interest

of the participants and beneficiaries of

the plan and in a prudent fashion in

accordance with section 404(a)(1)(B) of

the Act; nor does it affect the

requirements of section 401(a) of the

Code that the plan operate for the

exclusive benefit of the employees of

the employer maintaining the plan and

their beneficiaries;

(2) The exemption will not extend to

transactions prohibited under section

406(b)(3) of the Act and section

4975(c)(1)(F) of the Code;

(3) Before an exemption can be

granted under section 408(a) of the Act

and section 4975(c)(2) of the Code, the

Department must find that the

exemption is administratively feasible,

in the interest of the plan and of its

participants and beneficiaries and

protective of the rights of participants

and beneficiaries of the plan;

(4) This exemption will be

supplemental to, and not in derogation

of, any other provisions of the Act and

the Code, including statutory or

administrative exemptions.

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

(5) This exemption is subject to the

express condition that the Summary of

Facts and Representations set forth in

the proposed exemption relating to PTE

93–8, as amended by this grant notice,

accurately describe, where relevant, the

material terms of the transactions

consummated pursuant to that

exemption.

Exemption

Under the authority of section 408(a)

of the Act and section 4975(c)(2) of the

Code and in accordance with the

Procedures cited above, the Department

hereby amends PTE 93–8. Accordingly,

the restrictions of sections 406(a),

406(b)(1) and (b)(2) of the Act and the

sanctions resulting from the application

of section 4975 of the Code, by reason

of section 4975(c)(1)(A) through (E) of

the Code, shall not apply to the leasing

by the Fortunoff Pension Plan—

Employer Group A Plan, the Fortunoff

Pension Plan—Employer Group B Plan

and the Fortunoff Fine Jewelry and

Silverware, Inc. Profit Sharing Plan

(collectively, the Plans) to Fortunoff

Fine Jewelry and Silverware, Inc. (FFJ),

under the provisions of an amended

lease (the Amended Lease) described in

Prohibited Transaction Exemption (PTE)

93–8 (58 FR 7258, February 5, 1993), of

certain real property (the Substitute

Property), acquired by the Plans through