Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 / Notices 42079

accordance with the amended Plan, the

Rights allocated to their Accounts were

sold, resulting in the sale of 9,956

Rights. Because of an administrative

error in the communications between

the Plan administrator and the Trustee,

27 Rights allocated to the Accounts

were not sold prior to the expiration of

the Rights. The Employer represents

that it shall credit the Accounts of the

participants affected by this

administrative error with an amount

equal to the value these Accounts would

have received if the Rights had been

sold as planned on the last day of the

Offering plus interest thereon through

the date of such crediting at a rate equal

to the average rate of earnings on all

Plan assets during that period.

(d) The Employer represents that all

directions and instructions which were

filed by the Invested Participants with

respect to the Offering were observed

and executed by the Trustee. In

addition, all Invested Participants had

been notified adequately in advance of

the Offering of the procedure for

directing and instructing the Trustee

with respect to their Accounts’ rights

under the Offering. Thus, the Employer

represents that all actions by the Trustee

relating to the Offering, with respect to

the Accounts, were pursuant to the

express participant directions, except

for the Accounts of participants who

failed to file timely and valid

instructions with the Trustee pursuant

to the direction procedure. The

Employer states that the Trustee’s action

on behalf of Accounts whose

participants failed to file instructions

with the Trustee, which was the sale of

the Rights received by such Accounts,

was disclosed in the explanatory

materials for the Offering and in the

direction forms sent to Invested

Participants. The Employer states

further that all actions taken by the

Trustee in connection with the Offering

were consistent with the participantdirected nature of investments under

the Plan.

12. In summary, the applicant

represents that the transactions satisfied

the criteria of section 408(a) of the Act

for the following reasons: (a) The Plan’s

acquisition of the Rights resulted from

an independent act of the Employer; (b)

With respect to all aspects of the

Offering, all holders of the Stock,

including the Accounts of Invested

Participants in the Plan, were treated in

a substantially similar manner; (c) All

decisions with respect to the Plan’s

acquisition, holding and control of the

Rights were made by the individual

Invested Participants with Account

balances invested in the Stock Fund,

except for those who failed to file timely

and valid instruction forms, in which

case the Rights were sold; (d) The

disposition or exercise of the Rights

received by the Invested Participants

was executed by the Trustee in an

orderly manner pursuant to the terms of

the Offering relating to the submission

of valid instruction forms by such

Participants; and (e) The acquisition and

holding of the Rights by the Plan

affected all of the Invested Participants,

and their Accounts held only about

0.65% of the Stock outstanding as of the

Record Date of the Offering.

For Further Information Contact:

Ronald Willett of the Department,

telephone (202) 219–8881 (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 of

disqualified person from certain other

provisions of the Act and/or 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 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) Before an exemption may be

granted under section 408(a) of the Act

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

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 exemptions, if

granted, will be supplemental to, and

not in derogation of, any other

provisions of the Act 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 exemptions, if

granted, will be subject to the express

condition that the material facts and

representations contained in each

application are true and complete, and

that each application accurately

describes all material terms of the

transaction which is the subject of the

exemption.

Signed at Washington, DC, this 31st day of

July 1998.

Ivan Strasfeld,

Director of Exemption Determinations

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 98–21001 Filed 8–5–98; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

[Prohibited Transaction Exemption 98–38;

Exemption Application No. D–10558, et al.]

Grant of Individual Exemptions; Roark

Young, Russell Rice, Mary J. Rice,

Bruce Lamchick, Steven McKean,

David McKean & Burton Young

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.
42080 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 / Notices

1Because each IRA has only one Participant,

there is no jurisdiction under 29 CFR § 2510.3–3(b).

However, there is jurisdiction under Title II of the

Act pursuant to section 4975 of the Code.

2Since Mr. Hitchcock is the sole owner of the

Plan sponsor and the only participant in the Plan,

there is no jurisdiction under Title I of the Act

pursuant to 29 CFR 2510.3–3(b). However, there is

jurisdiction under Title II of the Act pursuant to

section 4975 of the Code.

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.

Individual Retirement Accounts (the

IRAs) for Roark Young, Russell Rice,

Mary J. Rice, Bruce Lamchick, Steven

McKean and David McKean, and

Burton Young (collectively, the

Participants) Located in Miami, Florida

[Prohibited Transaction Exemption 98–38;

Exemption Application Numbers D–10558–

10561, 10565–10566, 10568]

Exemption

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 cash sales (the Sales) of certain

stock (the Stock) by the IRAs 1 to the

Participants, disqualified persons with

respect to the IRAs, provided that the

following conditions were met:

(a) The terms and conditions of the

Sales were at least as favorable to each

IRA as those obtainable in an arm’s

length transaction with an unrelated

party;

(b) The Sale of Stock by each IRA was

a one-time transaction for cash;

(c) Each IRA received the fair market

value of the Stock as established by a

qualified, independent appraiser; and

(d) Each IRA was not required to pay

any commissions, costs or other

expenses in connection with each Sale.

EFFECTIVE DATE: These exemptions will

be effective as of March 30, 1998.

For a more complete statement of the

facts and representations supporting the

Department’s decision to grant this

exemption, refer to the notice of the

proposed exemption published on

Friday, June 19, 1998 at 63 FR 33725.

FOR FURTHER INFORMATION CONTACT: Mr.

James Scott Frazier of the Department,

telephone (202) 219–8881. (This is not

a toll-free number).

William M. Hitchcock SERP (DB) (the

Plan) Located in Houston, Texas

[Prohibited Transaction Exemption 98–39;

Exemption Application No. D–10605]

Exemption

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 by the Plan of

67,466 shares of stock (the Stock) in

Thoratec Laboratories, Inc. to William

M. Hitchcock (Mr. Hitchcock), a

disqualified person with respect to the

Plan, provided the following conditions

are satisfied: (a) the sale is a one-time

transaction for cash; (b) the Plan pays no

sales commissions or other expenses in

connection with the transaction; (c) the

Plan receives the fair market value of

the Stock, as determined by reference to

its most current listed price on the

National Association of Securities

Dealers Automated Quotation National

Market System (NASDAQ) at the time of

the transaction; and (d) Mr. Hitchcock is

the only Plan participant to be affected

by the transaction, and he desires that

the transaction be consummated.2

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 June

29, 1998 at 63 FR 35290.

Tax Consequences of the Transaction

The Department of the Treasury has

determined that if a transaction between

a qualified employee benefit plan and

its sponsoring employer (or affiliate

thereof) results in the plan either paying

less than or receiving more than fair

market value, such excess may be

considered to be a contribution by the

sponsoring employer to the plan, and

therefore must be examined under the

applicable provisions of the Internal

Revenue Code, including sections

401(a)(4), 404 and 415.

FOR FURTHER INFORMATION CONTACT: Gary

H. Lefkowitz of the Department,

telephone (202) 219–8881. (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

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, D.C., this 31st day

of July, 1998.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

Department of Labor.

[FR Doc. 98–21000 Filed 8–5–98; 8:45 am]

BILLING CODE 4510–29–P

NATIONAL CREDIT UNION

ADMINISTRATION

Agency Information Collection

Activities: Submission to OMB for

Review; Comment Request

AGENCY: National Credit Union

Administration (NCUA).

ACTION: Request for comment.

SUMMARY: The NCUA has submitted the

following information collection forms

for reinstatement with no changes to the

Office of Management and Budget

(OMB) for review and clearance under