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
27330 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Notices

a third party exchange (the Exchange

Property), as well as all remaining real

estate which constitutes the leased

premises (the Property), provided the

following conditions are met:

(a) The terms of the Amended Lease

remain at least as favorable to the Plans

as those obtainable in an arm’s length

transaction with an unrelated party.

(b) The independent fiduciary—

(i) Determines that the acquisition and

subsequent leasing of the Substitute

Property by the Plans under the

Amended Lease are in the best interest

of the Plans and their participants and

beneficiaries;

(ii) Monitors and enforces compliance

with the terms and conditions of the

Amended Lease, the Escrow Agreement

and the new exemption, at all times;

and

(iii) Appoints one or more

independent fiduciaries to resolve any

conflicts of interest which may develop

among the Plans with respect to the

Amended Lease, the Escrow Agreement,

the Property, or the Plans’ respective

interests therein.

(c) The fair market value of the

proportionate interests held by each

Plan in the Property as a whole

following the exchange transaction does

not exceed 25 percent of each Plan’s

assets.

(d) The Property, the Exchange

Property and the Substitute Property are

all appraised by qualified, independent

appraisers prior to the consummation of

the exchange transaction.

(e) The base rent for the Property is

adjusted annually by the independent

fiduciary based upon an independent

appraisal of such Property.

(f) FFJ incurs all real estate taxes and

other costs which are incident to the

Amended Lease.

(g) The Escrow Agreement is

maintained by M. Fortunoff of Westbury

Corporation (M. Fortunoff), in favor of

the Plans, as security for FFJ’s rental

obligations under the Amended Lease.

The availability of this exemption is

subject to the express condition that the

material facts and representations

contained in the application for

exemption are true and complete and

accurately describe all material terms of

the transactions. In the case of

continuing transactions, if any of the

material facts or representations

described in the application change, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, an application for a new

exemption must be made to the

Department.

For a more complete statement of the

facts and representations supporting the

Department’s decision to grant PTE

93–8, refer to the proposed exemption,

grant notice and technical correction

notice which are cited above.

Signed at Washington, D.C., this 13th day

of May, 1998.

Ivan L. Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 98–13144 Filed 5–15–98; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Application No. D–10583, et al.]

Proposed Exemptions; McClain’s R.V.,

Inc. 401(k)

AGENCY: Pension and Welfare Benefits

Administration, Labor.

ACTION: Notice of Proposed Exemptions.

SUMMARY: This document contains

notices of pendency before the

Department of Labor (the Department) of

proposed exemptions 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).

Written Comments and Hearing

Requests

All interested persons are invited to

submit written comments or request for

a hearing on the pending exemptions,

unless otherwise stated in the Notice of

Proposed Exemption, within 45 days

from the date of publication of this

Federal Register Notice. Comments and

requests for a hearing should state: (1)

the name, address, and telephone

number of the person making the

comment or request, and (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. A request for a hearing must

also state the issues to be addressed and

include a general description of the

evidence to be presented at the hearing.

ADDRESSES: All written comments and

request for a hearing (at least three

copies) should be sent to the Pension

and Welfare Benefits Administration,

Office of Exemption Determinations,

Room N–5649, U.S. Department of

Labor, 200 Constitution Avenue, NW,

Washington, DC 20210. Attention:

Application No. lll, stated in each

Notice of Proposed Exemption. The

applications for exemption and the

comments received will be available for

public inspection in the Public

Documents Room of Pension and

Welfare Benefits Administration, U.S.

Department of Labor, Room N–5507,

200 Constitution Avenue, NW,

Washington, DC 20210.

Notice to Interested Persons

Notice of the proposed exemptions

will be provided to all interested

persons in the manner agreed upon by

the applicant and the Department

within 15 days of the date of publication

in the Federal Register. Such notice

shall include a copy of the notice of

proposed exemption as published in the

Federal Register and shall inform

interested persons of their right to

comment and to request a hearing

(where appropriate).

SUPPLEMENTARY INFORMATION: The

proposed exemptions were requested in

applications filed pursuant to section

408(a) of the Act and/or section

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

accordance with procedures set forth in

29 CFR Part 2570, Subpart B (55 FR

32836, 32847, August 10, 1990).

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. Therefore, these notices of

proposed exemption are issued solely

by the Department.

The applications contain

representations with regard to the

proposed exemptions which are

summarized below. Interested persons

are referred to the applications on file

with the Department for a complete

statement of the facts and

representations.

McClain’s R.V., Inc. 401(k) Profit

Sharing Plan (the Plan) Located in Lake

Dallas, Texas

[Application No. D–10583]

Proposed Exemption

The Department is considering

granting an 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 set

forth in 29 CFR part 2570, subpart B (55

FR 32836, 32847, August 10, 1990). If

the exemption is granted, 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 proposed sale of

certain unimproved real property (the

Land) by the Plan to Larry McClain (Mr.

McClain), the sole shareholder of

McClain’s R.V. Inc., the sponsor of the

Plan, and a party in interest with respect