2748 Federal Register / Vol. 90, No. 7 / Monday, January 13, 2025 / Notices 

1The procedures that govern the Applicant’s 

request for an exemption (the Exemption 

Procedures) are set forth in 29 CFR part 2570, 

subpart B at 76 FR 66637, 66644 (October 27, 2011). 

Although the Applicant’s submission is being 

processed under the Exemption Procedures in effect 

as of December 27, 2011, the Exemption Procedures 

were recently amended at 89 FR 4662, 4691 

(January 24, 2024). Effective December 31, 1978, 

section 102 of the Reorganization Plan No. 4 of 

1978, 5 U.S.C. app. 1 (1996), transferred the 

authority of the Secretary of the Treasury to issue 

administrative exemptions under the Code section 

4975(c)(2) to the Secretary of Labor. Accordingly, 

the Department grants this exemption under its sole 

authority. Furthermore, references herein to 

provisions of Title I of ERISA shall be deemed to 

refer to their applicable corresponding provision in 

Code section 4975, unless specified otherwise. 

2 89 FR 79953. 

3The Applicant states that the Plan elected to 

become a multiemployer plan in accordance with 

ERISA section 3(37)(G) and meets the legislative 

definition of a multiemployer plan under 

3(37)(G)(vi). That section reads, ‘‘(vi) A plan is 

described in this clause if it is a plan sponsored by 

an organization which is described in section 

501(c)(5) of the Internal Revenue Code of 1986 [26 

U.S.C. 501(c)(5)] and exempt from tax under section 

501(a) of such Code 1986 [26 U.S.C. 501(a)] and 

which was established in Chicago, Illinois, on 

August 12, 1881.’’ The United Brotherhood of 

Carpenters Pension Fund is sponsored by the UBC, 

which is a 501(c)(5) organization, tax exempt under 

Code section 501(a), and was established in 

Chicago, Illinois, on August 12, 1881. 

4Employees of the Carpenters International 

Training Fund, The International LaborManagement Committee for the Floor and Wall 

Covering Industry, the UBC National Job Corps 

Training Fund, The United Brotherhood of 

Carpenters Pension Fund, and the Carpenters 

Legislative Improvement Committee may also be 

eligible for participation in the Plan. 

5The Applicant represents that, unlike other 

multiemployer plans, the Plan is not maintained by 

a collective bargaining agreement and, therefore, is 

not a ‘‘Taft-Hartley’’ plan, pursuant to Labor 

Management Relations Act section 305(c)(5). 

Because the Trustees of the Plan are appointed by 

either the UBC or UBC Local Unions and UBC 

Councils, none of the Trustees could be considered 

‘‘employer representatives,’’ which would be 

required for the Plan to constitute a Taft-Hartley 

multiemployer plan. 

Dated: January 7, 2025. 

Darwin Arceo, 

Department Clearance Officer for PRA, U.S. 

Department of Justice. 

[FR Doc. 2025–00449 Filed 1–10–25; 8:45 am] 

BILLING CODE 4410–14–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Prohibited Transaction Exemption 2025– 

01; Exemption Application No. D–12084] 

Exemption From Certain Prohibited 

Transaction Restrictions Involving 

United Brotherhood of Carpenters and 

Joiners of America (UBC or the 

Applicant) Located in Washington, DC 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of exemption. 

SUMMARY: This document gives notice of 

an individual exemption from certain 

prohibited transaction restrictions of the 

Employee Retirement Income Security 

Act of 1974, as amended (ERISA) and 

the Internal Revenue Code of 1986 (the 

Code). This exemption permits the 

Trustees of the United Brotherhood of 

Carpenters Pension Fund (the Plan) to 

sell 19.25 acres of improved real 

property (the Property) on behalf of the 

Plan to the UBC for cash (the Sale). 

DATES: The exemption will be in effect 

on January 13, 2025. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Anna Mpras Vaughan, Office of 

Exemption Determinations, Employee 

Benefits Security Administration, U.S. 

Department of Labor, (202) 693–8565 

(this is not a toll-free number). 

SUPPLEMENTARY INFORMATION: UBC 

requested an exemption pursuant to 

ERISA section 408(a) and Code section 

4975(c)(2) and supplemented the 

request with certain additional 

information (that is collectively, referred 

to as the ‘‘Application’’).1 On October 1, 

2024, the Department published a notice 

of proposed exemption in the Federal 

Register (the Proposed Exemption).2

Based on UBC’s representations in its 

Application and the administrative 

record, the Department has determined 

to grant the Proposed Exemption. This 

exemption provides only the relief 

specified herein and does not provide 

relief from violations of any law other 

than the prohibited transaction 

provisions of ERISA and the Code. 

Benefits of the Exemption: The 

Department is granting relief based, in 

part, on UBC’s representations that the 

Plan will receive approximately 

$4,317,500 to $4,620,000 more in net 

proceeds by selling the property to UBC 

than it would receive in a sale to an 

unrelated third party. Other expected 

benefits to the Plan are described below. 

As discussed below, the Department 

makes the requisite findings under 

ERISA section 408(a) based on the 

Applicant’s adherence to all the 

exemption’s conditions at all times. 

Accordingly, affected parties should be 

aware that the conditions incorporated 

in this exemption are necessary for the 

Department to grant the relief requested 

by the Applicant, and that the 

Department would not have granted this 

exemption without these conditions. 

Background 

1. The UBC is an international labor 

organization with 725 local unions 

(UBC Local Unions) and 37 councils 

(the UBC Councils). The UBC Local 

Unions are chartered by and affiliated 

with the UBC and represent the 

individual members of the UBC in their 

respective geographic area. Each UBC 

Council is affiliated with a UBC Local 

Union and the various UBC Councils are 

affiliated to the UBC by the UBC 

Constitution. According to the 

Applicant, the UBC Councils are 

separate legal entities from the UBC and 

the UBC does not control the UBC 

Councils that are affiliated with it. 

Further, the Applicant states that none 

of the trustees appointed by the UBC 

Councils are officers of the UBC, and no 

agency relationship exists between the 

UBC and the UBC Councils. 

2. The Plan is a multiemployer 

defined benefit pension plan located in 

Las Vegas, Nevada.3 The Plan provides 

pension benefits to full-time officers or 

representatives employed by a UBC 

Local Union, UBC Council, other 

designated representatives of a UBC 

Local Union or UBC Council, or persons 

who are United States residents and are 

determined to be representative of, or 

professional, management, or 

confidential employees of, the UBC.4 As 

of December 31, 2022, the Plan had 

4,627 participants and as of June 30, 

2023, the Plan had approximately 

$931,860,235 in assets. According to the 

Plan’s annual funding notice issued in 

April 2022, the Plan had a funded 

percentage of 99.3% as of January 1, 

2021. 

3. The Plan is sponsored and 

administered by a Board of Trustees (the 

Board) comprised of up of six (6) 

trustees who are current and former 

members of the UBC Executive Board 

(the UBC Trustees) and five (5) trustees 

who are appointed by officers of UBC 

Local Unions or UBC Councils (the 

Council Trustees).5 The UBC Trustees 

and the Council Trustees are referred to 

collectively as the ‘‘Trustees.’’ The 

Applicant represents that the UBC is an 

employee organization whose members 

are covered by the Plan and an 

employer of employees who are covered 

by the Plan; therefore, it is a party in 

interest to the Plan pursuant to ERISA 

section 3(14)(C) and (D). 

The Property 

4. The Plan owns the Property 

through its wholly-owned limited 

liability company, Bermuda Hidden 

Well, LLC (Bermuda LLC), that was 

incorporated by the Plan on April 19, 

2001 in the State of Delaware. Bermuda 

LLC was originally formed to hold real 

property on behalf of the Plan and is 

managed on behalf of the Plan by 

Washington Capital Management, Inc. 


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6As described in the Proposed Exemption, 

Shumaker, as the Plan’s independent fiduciary with 

respect to the Sale, must prudently and loyally: (i) 

represent the interests of the Plan in the Sale; (ii) 

determine that the Sale and the Sale price is in the 

interest and protective of the rights of the Plan and 

its participants and beneficiaries; (iii) review and 

approve the terms and conditions of the Sale and 

further negotiate any conditions they consider to be 

in the interest of the Plan; (iv) independently and 

prudently engage the qualified independent 

appraiser for the Sale; (v) review and approve the 

methodology used by the appraiser and ensure that 

such methodology is properly applied in 

determining the Property’s fair market value on the 

date of the Sale; (vi) monitor the Sale throughout 

its duration consistent with its duties as a prudent 

plan fiduciary; (vii) ensure that Cushman & 

Wakefield of Nevada, Inc. in its role as qualified 

independent appraiser (Cushman or the QIA) 

renders an updated fair market valuation of the 

Property as of the date of the Sale; (viii) determine 

whether it is prudent to proceed with the Sale; (ix) 

refrain from entering into any agreement, 

arrangement or understanding that violates ERISA 

section 410; (x) ensure compliance with the general 

terms of the transaction and with the conditions of 

the exemption; (xi) take any appropriate actions to 

safeguard the interests of the Plan and its 

participants and beneficiaries; and (xii) submit a 

written report to the Department not later than 90 

days after the Sale has been completed 

demonstrating that each exemption condition has 

been met. 

7The 2022 Appraisal contains detailed analysis 

which is available by contacting the Public 

Disclosure Room of the Employee Benefits Security 

Administration, U.S. Department of Labor, Room 

N–1515, 200 Constitution Avenue NW, Washington, 

DC 20210. Please reference D–12084. 

8As described above, the Original Parcel (30.14 

acres previously owned by the Plan in its entirety) 

was subdivided into the Property (19.25 acres 

currently owned by the Plan) and the Adjacent 

Parcel (10.89 acres currently owned by the UBC). 

The 2022 Appraisal increased the $30,325,000 ‘‘as 

is’’ fair market value of the Property by $3,410,000 

(i.e., the Assemblage Increase) to $33,930,000 to 

account for the special value that the Property has 

to the UBC because it is adjacent to the UBC-owned 

Adjacent Parcel. 

9At the request of the Independent Fiduciary, the 

QIA valued the architect, engineer, and 

development studies and other activities paid for by 

the Plan in connection with the potential 

development of the Property, referred to in the 

Proposed Exemption as the ‘‘Contributory Costs.’’ 

The 2022 Appraisal determined these costs to be 

approximately $270,000. The QIA stated in the 

2022 Appraisal that these costs represent the value 

of costs spent by the Plan to date for the benefit of 

the adjacent property to the proposed buyer (i.e., 

the UBC) and not the value to the general market. 

The Contributory Costs further increased the value 

of the Property if purchased by the UBC to a total 

of $34,090,000. 

10The legal analysis regarding the requested 

exemptive relief is provided in the Proposed 

Exemption and can be found in the Federal 

Register at 89 FR 79958 (October 1, 2024). 

11A description of the Independent Fiduciary’s 

analysis and conclusions can be found in the 

Proposed Exemption in paragraphs 28–35 at 89 FR 

79957 through 58. 

12The Department notes that the prohibited 

transaction provisions of ERISA are designed to 

prevent a fiduciary of plan from using the assets of 

Continued 

(WCM), which serves as the Plan’s 

Qualified Professional Asset Manager 

for real estate and ERISA 3(38) fiduciary 

investment manager. 

5. The Property is comprised on 19.25 

acres and located at 6855 Bermuda 

Road, Las Vegas, Clark County, Nevada. 

It was specifically developed for car 

rental operations and includes a 

passenger terminal, car wash, car repair 

facility with a service bay, and covered 

parking. 

6. The Plan currently leases the 

Property to Enterprise Leasing 

Company-West, LLC (Enterprise) 

pursuant to a long-term lease that has 

been extended via several short-term 

extensions since 2021. Most recently, 

the Plan and Enterprise amended the 

lease to extend the expiration date for a 

portion of the Property through March 

31, 2025. UBC represents that the Plan 

has the ability to terminate the amended 

lease early. Enterprise’s footprint of the 

premises (and the rent it owes the Plan) 

has decreased significantly since March 

2023 as Enterprise gradually transitions 

its operational components to other 

locations. 

7. The Property is adjacent to a 10.89- 

acre parcel owned by UBC (the Adjacent 

Property) and both parcels abut the 

Carpenters International Training Center 

(ITC), which also is owned by UBC. The 

ITC is designed to provide 

apprenticeship and training programs to 

the Plan’s participants. The Property, 

Adjacent Property, and ITC all sit upon 

an integrated block of land that also 

houses the UBC offices and several 

hotels that are owned by UBC and used 

to host visitors to the UBC Campus. 

Decision To Sell the Property 

8. As described in the Proposed 

Exemption, the Plan fiduciaries, with 

the assistance of WCM, determined that 

the most prudent course of action for 

the Plan upon the termination of the 

lease is to sell the Property to UBC for 

the following reasons: 

• a new tenant was unlikely to enter 

a long-term lease at the Property’s 

current fair market rental value; 

• the Property had been modified to 

specifications that suited Enterprise’s 

operations; 

• it was unlikely that the Plan could 

secure another long-term lease without 

significantly redeveloping the Property; 

and 

• the highest and best use of the 

Property would be to redevelop it with 

light industrial buildings. 

9. Shumaker, Loop & Kendrick LLP 

(Shumaker, the Independent Fiduciary, 

or QIF) was engaged by the Plan to act 

as its independent fiduciary with 

respect to the Sale, and is required to 

ultimately determine whether the Plan 

proceeds with the Sale.6 Shumaker 

engaged the appraisal firm Cushman 

(the QIA) to conduct an appraisal of the 

Property in December of 2022 (the 2022 

Appraisal).7 The 2022 Appraisal valued 

the Property at $33,930,000, which 

includes an ‘‘assemblage increase’’ (the 

Assemblage Increase) 8 resulting from 

UBC’s ownership of the Adjacent 

Property and certain ‘‘contributory 

costs’’ (the Contributory Costs) spent by 

the Plan for the proposed redevelopment of the Property.9

Exemptive Relief 

10. In the proposal, the Department 

proposed exemptive relief from ERISA 

sections 406(a)(1)(A) and (D) and 

406(b)(1) and (2) for the Sale of the 

Property by the Plan to the UBC in 

exchange for an amount of cash equal to 

the greater of (1) $34,090,000, or (2) the 

fair market value of the Property (which 

includes the Assemblage Increase and 

Contributory Costs) as established in an 

updated appraisal of the Property’s fair 

market value on the date of the Sale (the 

Sale Proceeds).10

Plan Benefits 

11. The Department finds that the 

exemption would be in the Plan’s 

interest, based on the Plan’s receipt of 

additional compensation due to the 

Assemblage Increase and Contribution 

Costs, and the QIF’s representations that 

it would not be prudent for the Plan to 

expend the time and resources that 

would be necessary to prepare the 

Property for sale to a third party. 

According to the QIF, a sale of the 

Property by the Plan to an unrelated 

third-party at its ‘‘As Is’’ fair market 

value would be anticipated to result in 

approximately $4,317,500 to $4,620,000 

less in net proceeds than the proposed 

Sale to UBC, because the Assemblage 

Increase and Contributory Costs would 

not be recouped, and brokerage fees and 

additional transaction costs would be 

incurred. According to UBC and the 

QIF, selling the property to UBC would 

be in the best interest of the Plan and 

its participants and beneficiaries, 

because it would provide the Plan with 

the opportunity to sell an asset for a 

significant gain due to the Assemblage 

Increase, eliminate the risk of losing an 

investment opportunity associated with 

the redevelopment of the Property (and 

the time associated with that process), 

and diversify the Plan’s investments by 

reinvesting the sale proceeds in 

accordance with the Plan’s investment 

policy statement.11

12. Nevertheless, in its initial review 

of the application, the Department was 

concerned about the possibility that the 

transaction was designed to transfer a 

valuable asset to a party in interest 

(UBC) solely for UBC’s benefit.12 In 


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the plan in a way that is inconsistent with the best 

exercise of that fiduciary’s responsibilities under 

ERISA. For example, the prohibited transaction 

provisions prevent a fiduciary from causing a plan 

to transfer property to a party in interest for the 

purpose of benefitting that party in interest. 

13 In such event, the UBC must contribute an 

amount of cash generally equal to the profit on the 

subsequent sale to the Plan as of the end of the Plan 

year following the date of such subsequent sale. The 

Revenue-Sharing Condition would apply if UBC 

sells the whole Property or subdivides and sells a 

portion of the Property. See 89 FR 79956, 79957 and 

section III(h)(1) of the Proposed Exemption. 

14The condition as proposed required the UBC to 

contribute cash to the Plan equal to 51 percent of 

the gross revenue received from UBC’s use of the 

Property (including the leasing of the Property) for 

a purpose or in a manner inconsistent with what 

was represented to the Department. See 89 FR 

79957. See also section III(h)(2) of the Proposed 

Exemption. 

15Email from Diana Cohn, O’Donoghue & 

O’Donoghue LLP, counsel for Applicant, to the 

Department on July 19, 2024. A copy of this email 

and others can be found in the record for this 

exemption. 

16All information submitted to the Department in 

connection with this exemption, including the 

written comments, is available through the 

Department’s Public Disclosure Room by 

referencing Exemption Application D–12084. 

particular, the Department was 

concerned about the possible sale of the 

Property to UBC on terms that would 

enable UBC to later sell the Property at 

a higher price than its appraised fair 

market value. The Department’s 

concerns were allayed by the 

Applicant’s representations in its 

comment letter that the UBC has no 

intentions of purchasing the property 

and immediately selling it for gain. 

Based on these representations, the 

Department added a condition 

providing that if UBC sold the Property 

during the 10-year period that 

commences immediately following the 

date it purchased the Property from the 

Plan, UBC would have to contribute the 

amount of any profit it receives to the 

Plan (the Sale Proceeds Clawback 

Condition).13

13. The Proposed Exemption also 

included a condition requiring the UBC 

to contribute to the Plan an amount in 

cash equal to 51 percent of any gross 

revenue it earns in any calendar year 

from using the Property, including in 

connection with leasing the Property to 

a third party in a manner or for a 

purpose that is inconsistent with UBC’s 

stated intention articulated in the 

proposal to expand its International 

Training Center and/or the provision of 

union-related services permitted under 

the UBC’s governing documents (the 

Revenue-Sharing Clawback 

Condition).14 The Department proposed 

to include this condition in the 

exemption because it was concerned 

that UBC’s intention might have been to 

purchase the Property to develop it to 

take advantage of its proximity to the 

Las Vegas Strip. 

14. The proposed Revenue-Sharing 

Condition was based on a representation 

the Department received from UBC’s 

representative stating the UBC’s 

development of the Property ‘‘is 

primarily [emphasis added] meant to 

accommodate the Union’s expansion of 

its International Training Center 

(ITC).’’ 15 The requirement, as described 

in the preamble to the proposal, would 

be effective for 10 years from the date 

the revenue was earned by UBC. 

Plan Protections 

15. To ensure that the Plan, and its 

participants and beneficiaries, are 

adequately protected, Shumaker will 

continue to monitor the Sale, enforce 

the final terms, and take whatever 

actions are necessary to protect the 

interests of the Plan’s participants and 

beneficiaries through closing of the Sale. 

Shumaker reviewed and approved the 

terms and conditions of the Sale in 

Shumaker’s sole discretion and will 

further negotiate any conditions 

Shumaker concludes are in the interests 

of the Plan, in accordance with 

Shumaker’s fiduciary duties. Shumaker, 

acting on behalf of the Plan in 

Shumaker’s fiduciary capacity, 

determined that the proposed terms and 

conditions of the Sale Agreement are at 

least as favorable to the Plan as those 

obtainable in an arm’s length 

transaction with an unrelated third 

party, and will make the final 

determination regarding whether to 

proceed with the transaction. Subject to 

the terms of the exemption, UBC has 

borne and will continue to bear the 

costs of the Application, and the Plan 

will bear the costs of the Independent 

Fiduciary and the QIA. 

Comments Received Regarding the 

Proposed Exemption 16

16. In the Proposed Exemption, the 

Department invited all interested 

persons to submit written comments on 

the proposal and/or requests for a public 

hearing by November 15, 2024. 

17. During the comment period, the 

Department received 51 phone calls 

from Plan participants and beneficiaries. 

Forty-nine of the calls were general 

inquiries. The other two calls involved 

substantive comments on the Proposed 

Exemption. One caller stated their 

support for the protections afforded to 

the Plan by the proposed Sales 

‘‘Clawback’’ condition and Revenue 

Sharing ‘‘Clawback’’ condition in 

section III(h)(1) and (2) of the Proposed 

Exemption, because they did not want 

the Plan to sell the Property without 

benefitting from the Sale, based on their 

belief that the Property is valuable and 

will increase in value. The other caller 

stated their support for the Sale if it 

would help the UBC expand the ITC, as 

that would be beneficial to the Plan 

participants who use the ITC. 

18. The Department received four 

written comments. Three of these 

comments were from the UBC and are 

considered together (the Applicant’s 

Comment) and one comment was from 

a Plan participant. UBC’s comment (1) 

requested a clarification of the Summary 

of Facts and Representations (the 

Summary) in the Proposed Exemption 

to better explain the UBC’s motivations 

to purchase the Property; (2) provided 

further justification for the Plan’s sale of 

the Property to the UBC; (3) objected to 

the proposed Revenue-Sharing 

Condition; (4) expressed agreement with 

respect to proposed Sale Proceeds 

Clawback Condition; and (5) requested 

the Department to correct two 

ministerial errors in the preamble of the 

Proposed Exemption with respect to the 

gross revenue percentages received by 

Shumaker from the Plan for the years 

2021 and 2022. 

19. The written comment from the 

Plan participant requested a hearing on 

the issue of selling plan assets to a party 

in interest. The commenter also 

maintained that the Department only 

could approve the Sale if the Property 

were put out for a public request for 

proposal to ensure the Plan maximizes 

its revenue. 

20. The Department responds to the 

material issues and the material 

information provided in the comments 

below. 

The Applicant’s Comments and the 

Department’s Responses 

Comment 1—Clarification of the UBC’s 

Motivations for the Purchase 

21. UBC states that the Department’s 

Summary in the Proposed Exemption 

misstates UBC’s intent in acquiring and 

developing the Property. In this regard, 

representation 11 of the Summary 

provides that ‘‘[T]he UBC plans to 

develop the Property into two light 

industrial buildings to accommodate the 

UBC’s expansion of its International 

Training Center [ITC].’’ 

22. In its comment, the Applicant 

clarifies that the UBC’s intended future 

use of the Property is to combine its 

10.89-acres Adjacent Property with the 

19.25-acre subject Property into a 

consolidated 30.14-acre block (the 

Consolidated Property). In its comment 

letter, UBC states that combining these 

properties would allow the UBC to 

redevelop the Consolidated Property by 

building two industrial warehouses that 


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17The Department notes that section III(n) 

requires that all the material facts and 

representations made by the Applicant that are set 

forth in the Summary are true and accurate at all 

times. The Department views the Applicant’s 

prompt clarification of portions of the Summary as 

satisfying this requirement. 

18The Applicant provided the July 19, 2024 

representation in response to a request by the 

Department that the Applicant clarify the UBC’s 

intended use of the Property. 

19According to the UBC, the Property was 

modified to specifications that suited Enterprise’s 

operations (rental car business with attached 

storage and maintenance facilities). Furthermore, 

the high fair market value rental rate made a lease 

for use by a different car rental agency unlikely. See 

Proposed Exemption at 89 FR 79955. 

20See the Proposed Exemption at 89 FR 79957 

through 58 for an extended discussion of the 

Independent Fiduciary’s analysis and 

determinations. 

will be leased to third-party tenants. 

UBC represents that its intended use of 

the Property is consistent with the QIA’s 

determination that the ‘‘highest and best 

use’’ of the Property is for it to be 

redeveloped for industrial or mixed use 

that includes industrial, office and 

supporting commercial uses. According 

to UBC’s comment, its intended use of 

the Property is also consistent with the 

current zoning restrictions on the 

Property. Referring to the Qualified 

Independent Appraiser’s Report, UBC 

represents that the Property is zoned 

‘‘M–1, Light Manufacturing,’’ which 

may be used for ‘‘office, distribution 

centers, warehouse/flex space, 

technology and light industry.’’ The 

UBC also maintains that its intention to 

use the Consolidated Property conforms 

with the QIA’s determination of the 

Property’s highest and best use and 

applicable land use laws. 

23. Moreover, UBC states that, in the 

event the ITC should need additional 

training space in the future, the UBC 

would be in a position to convert the 

Property for such purposes at that time. 

In its comment letter, UBC reports that, 

over the past 24 years, the ITC has 

added approximately 189,000 square 

feet of industrial-type space on its 

campus, and that the ITC’s 25-acre 

campus is now fully built out except for 

one vacant lot reserved for a hotel to 

accommodate an overflow of attendees 

at the ITC campus. Thus, the Applicant 

represents that it is quite possible that 

the ITC will require further expansion 

in the future. The Applicant states that, 

although the ITC does not have an 

immediate need for expansion, it is 

prudent for UBC to purchase the 

Property while it is available, because 

there is no guarantee UBC would be able 

to purchase or lease the Property if the 

Plan sold it to an unrelated third party. 

24. The Department notes the UBC’s 

requested clarifications to the Summary 

regarding UBC’s intended use of the 

property.17 The Department notes 

further, however, that as stated 

previously in this preamble, the 

Summary was based on representations 

made by UBC’s legal counsel (the 

Representative) in a July 19, 2024 email 

sent to the Department. In the email, the 

Representative stated that, ‘‘[a]s further 

explained in its December 28, 2022 

exemption application and throughout 

its responses to the [Department’s] 

information requests, the [UBC] will 

develop the [P]roperty into two light 

industrial buildings, each spanning 

300,000 square feet across the two lots. 

The development is primarily meant to 

accommodate the [UBC’s] expansion of 

its International Training Center (ITC) 

[emphasis added]. Apart from the 

subject property, which is adjacent to 

the ITC, the [UBC] has no other land to 

expand its campus further.’’ 18

Department’s Response: The 

Department accepts UBC’s clarifications 

as described above. 

Comment 2. Justification for the Plan’s 

Sale of the Property to the UBC 

25. UBC’s second comment addresses 

why it is in the Plan’s interest to sell the 

Property, rather than to redevelop and 

lease it. The Department solicited this 

explanation from UBC, in order to 

address the Department’s concern that 

the Sale may be designed to transfer a 

valuable development opportunity from 

the Plan to its party in interest. 

26. According to the UBC, the Plan’s 

only source of income from the Property 

is the rental income it generates, and no 

other potential tenants have expressed 

interest in leasing the Property once 

Enterprise’s lease expires. Moreover, 

UBC points out that it is highly unlikely 

the Plan will secure a long-term lease 

with another tenant without significant 

redevelopment of the Property.19 Thus, 

according to UBC, once Enterprise left 

the Property, the Plan would be left 

owning an illiquid, unprofitable 

investment with no potential new 

tenants on the horizon. 

27. UBC maintains that the Plan is not 

seeking to devote the significant time 

and plan assets it would take to 

redevelop the Property itself because of 

the high cost and time required for 

redevelopment, the associated risks, and 

the Plan’s significant real estate 

portfolio. In this regard, the Plan’s 

Independent Fiduciary stated, among 

other things, that the potential lack of 

income or investment gain from the 

Property over a several year 

development period (compared to an 

assumed 7.5 percent return on Fund 

investments), the up-front cost of any 

development (including risk of 

escalating costs), and the risk of 

selecting the right type of 

redevelopment to increase the value of 

the Property above what would be 

realized by the Proposed Transaction, 

all seem unnecessary and speculative 

risks for the Plan to take on when 

compared to the availability of a onetime Sale to a willing buyer. In addition 

to avoiding the above costs and risks, 

according to UBC, the Sale allows the 

Plan to secure significant profits and 

diversify its plan assets into more liquid 

investments.20 UBC notes again that if 

its Application is granted, UBC will pay 

the Plan at least $34,090,000, which 

includes $3,410,000 in additional 

proceeds due to the Assemblage 

Increase, which would not be received 

by the Plan in a third-party sale. 

28. UBC’s comment provides further 

that the Plan does not have sufficient 

resources to purchase the Adjacent 

Property from UBC and develop and 

manage the entirety of the Consolidated 

Property (which is the UBC’s intended 

use of the Property), which would be 

costly, risky, and result in an 

overweighting of real estate for the 

Plan’s investment allocations. Noting 

the Appraisal Report, the UBC states in 

its comment that the estimated cost to 

redevelop the 19.25-acre Property with 

just one building alone could exceed 

$60 million. The UBC currently 

estimates that the cost of purchasing the 

Property and building two warehouses 

on the Consolidated Property will 

exceed $120 million and could take 

more than three years. According to the 

UBC, if the Plan attempted to redevelop 

the Consolidated Property, these high 

redevelopment costs would impose a 

tremendous amount of risk on the Plan’s 

ability to maintain a sufficient amount 

of liquid investments for the payment of 

benefits to its participants and 

beneficiaries. 

29. The UBC also states that the Plan 

would lose the opportunity to reinvest 

sales proceeds into more liquid and 

diversified investments, which may 

have negative consequences for its 

participants and beneficiaries. In short, 

if the Plan were to purchase the UBC’s 

parcel and develop the Consolidated 

Block, it would face an 

overconcentration of more than $120 

million in a single real estate asset, 

along with the associated construction 

risks and lengthy development period. 

For all of these reasons, the Plan has 

decided not to redevelop and market the 

Property itself in the hopes of finding 

another buyer, or purchase the Adjacent 

Property and redevelop it, when there is 


ddrumheller on DSK120RN23PROD with NOTICES1
2752 Federal Register / Vol. 90, No. 7 / Monday, January 13, 2025 / Notices 

21 29 CFR 2570.31(h)(1). The procedures that 

govern the Applicant’s request for an exemption 

(the Exemption Procedures) are set forth in 29 CFR 

part 2570, subpart B at 76 FR 66637, 66644 (October 

27, 2011). 

a motivated, ready and willing buyer for 

the Property: the UBC. 

Department’s Response: The 

Department notes the Plan’s rationale 

for its decision to sell the Property to 

the UBC. 

Comment 3—Removal of the RevenueSharing Condition in Section III(h)(2) of 

the Proposed Exemption 

30. As previously discussed in this 

preamble, section III(h)(2) of the 

Proposed Exemption states that ‘‘[i]f 

UBC earns revenue from its use of the 

Property in any calendar year, including 

in connection with the lease of the 

Property to a third party, in a manner 

or for a purpose that is inconsistent with 

the UBC’s stated intention to expand its 

International Training Center and/or the 

provision of union-related services 

permitted under the UBC’s governing 

documents, then the UBC must 

contribute to the Plan an amount in cash 

equal to 51 percent of such gross 

revenue earned in each such calendar 

year. Such amounts must be contributed 

by the UBC to the Plan by the end of the 

Plan year following the year in which 

such revenue is earned.’’ In its 

Comment, the UBC asserts that the 

Revenue-Sharing Condition would 

render the exemption useless to the 

Applicant for the following reasons: 

(I) The condition misapprehends the 

UBC’s immediate intended use of the 

Property, inasmuch as there is no 

intention or need to immediately 

expand the ITC. 

(II) The condition would create a 

‘‘perpetual entanglement’’ between the 

Plan and the UBC, because it would 

require revenue sharing in any calendar 

year in which the Property is not used 

to expand the ITC; the Sale would no 

longer be a one-time sale for cash 

(contrary to the condition in section 

III(a)); the exemption would require 

continuous monitoring by the 

Independent Fiduciary and expenditure 

of additional resources by the Plan; and 

the exemption would require 

continuous oversight by the 

Department. The Applicant also notes 

that while the preamble to the Proposed 

Exemption states that the revenue 

sharing obligation would only apply to 

revenue earned during the 10 years 

following the date of the sale, the 10- 

year limit is not in the condition itself. 

(III) The valuation of the Property 

already considers the revenue that the 

UBC might generate from redeveloping 

the Consolidated Property into light 

industrial facilities and then leasing the 

facilities to third-party tenants. The 

Applicant states that requiring the UBC 

to pay the purchase price and share 

revenue as part of the Revenue-Sharing 

Condition, is illogical and inconsistent 

with prior exemptions the Department 

has granted for similar transactions. In 

addition, the Applicant notes that the 

UBC estimates it will need to invest at 

least $120 million to develop the 

Consolidated Property into industrial 

warehouses that it wishes to build. The 

Applicant states that requiring the UBC 

to share 51 percent of gross rental 

revenues after such an investment, in 

addition to the foregoing reasons, 

renders the transaction untenable. 

Department’s Response: In response 

to the UBC’s comment, the Department 

has removed the Revenue-Sharing 

Condition. The Department notes that, 

based on the representations of the 

Independent Fiduciary, the Sale will 

provide the Plan with a significantly 

greater amount of proceeds than a sale 

to an unrelated third party, providing a 

substantial benefit to the Plan’s 

participants and beneficiaries. Based on 

this factor and the points raised by the 

UBC in its comment, the Department 

finds that the exemption is in the 

interest of the Plan without including 

the Revenue Sharing Condition. 

Comment 4—Agreement to the Sale 

Proceeds Clawback Condition at Section 

III(h)(1) of the Proposed Exemption 

31. As previously discussed in this 

preamble, section III(h)(1) of the 

proposed exemption states that ‘‘[i]f 

UBC sells the Property within 10 years 

after the date of the Sale, for a sale price 

that is greater than the Sale Proceeds, 

then the amount of the subsequent sale 

price received by UBC that exceeds the 

Sale Proceeds (the Excess Amount) must 

be contributed by the UBC to the Plan 

in cash before the end of the Plan year 

following the date of such subsequent 

sale. If UBC subdivides the Property and 

a portion of the Property is subsequently 

sold by UBC, then the Excess Amount 

would be determined by subtracting 

from the subsequent sale price the 

amount of Sale Proceeds attributable to 

the portion of the Property that was sold 

in such subsequent sale as determined 

by an independent appraiser. The 

records applicable to any subsequent 

sale by UBC covered by this provision, 

including any appraisals, must be 

provided to the Office of Exemption 

Determinations at e-OED@dol.gov 

within 90 days after the date of such 

sale.’’ 

32. UBC states its agreement with this 

condition in its comment letter, because 

it has no intention of selling the 

Property within the next 10 years. 

Therefore, the Department has finalized 

this provision as proposed, and 

renumbered section III(h)(1) as section 

III(h), in order to reflect the 

Department’s removal of section 

III(h)(2). 

Comment 5—Correction of Ministerial 

Errors 

33. Representation 15 of the Proposed 

Exemption states, in pertinent part, that 

‘‘Shumaker represents that the revenue 

received from its engagement as 

Independent Fiduciary for the Plan is 

less than two percent of its gross 

revenue for the 2021 federal income tax 

year, and less than 3.3 percent of its 

gross revenue for the 2022 federal 

income tax year.’’ 

34. UBC states that the foregoing 

figures are erroneous, and UBC 

represents that Shumaker received less 

than 0.02 percent of its gross revenue for 

federal income tax year 2021 from its 

engagement as the Plan’s independent 

fiduciary with respect to the proposed 

Sale (and the Independent Fiduciary has 

not received any additional 

compensation since). The Applicant 

asserts that this percentage represents 

the sole amount of revenue received by 

the Independent Fiduciary from any 

party in interest with respect to its 

Application. 

Department’s Response: The 

Department acknowledges this update 

to the Proposed Exemption. Consistent 

with the Applicant’s comment, the 

Independent Fiduciary’s statement, 

dated December 27, 2022, provides that 

‘‘revenue received from our engagement 

as independent fiduciary for United 

Brotherhood of Carpenters Pension 

Fund is less than 0.02 percent of the 

gross revenue of Shumaker, Loop and 

Kendrick, LLP for the prior federal 

income tax year.’’ The Department notes 

that the Independent Fiduciary would 

have met the compensation threshold 

set forth in the Department’s exemption 

procedure regulation notwithstanding 

the Department’s erroneous reference to 

3.3 percent.21

Comment From the General Public 

35. The Department received a written 

comment from a Plan participant who 

requested a hearing on the issue of 

selling Plan assets to a party in interest. 

The commenter stated that they would 

only approve the sale if the Property 

were put out for a public ‘‘RFP’’ (request 

for proposal) and the UBC were 

provided a ‘‘right of first refusal’’ at 

above the appraised price and above any 

other RFPs. The commenter stated that 

this would be the only sure way for the 

Plan to maximize its revenue and return 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 90, No. 7 / Monday, January 13, 2025 / Notices 2753 

22See 29 CFR 2570.46(a), found at 76 FR 66653 

of the Department’s Exemption Procedures 

Regulation. 

23 29 CFR 2570.46(b), found at 76 FR 66653 of the 

Exemption Procedures. 

on investment and to continue on a 

sound basis. The commenter further 

noted that the fiduciary responsibility of 

the trustees is to the Plan and not to 

their employer. 

Department’s Response: The 

Department agrees with the commenter 

that any sale of the Property by the Plan 

should maximize the Plan’s revenue and 

return on investment. To achieve this 

result, the Department reviewed 

multiple appraisals submitted by a QIA, 

a report and additional information 

submitted by a QIF, and performed a 

robust analysis of the Plan’s rationale 

for the Sale and the reasons that the 

UBC wanted to purchase the Property. 

Based on this review, the Department 

expects that the Plan will receive 

approximately $4,317,500 to $4,620,000 

more in net proceeds by selling the 

property to UBC than it would receive 

in a sale to an unrelated third party. 

Further strengthening the Department’s 

expectation, the Department developed 

a novel condition, the Sale Proceeds 

Clawback Condition, which protects the 

Plan in the event UBC sells the Property 

during the 10-year period that 

commences immediately following the 

date it purchased the Property from the 

Plan. After careful review of the record 

attributable to this exemption, including 

the commenter’s comment, and the 

exemption’s protective conditions, the 

Department believes that the exemption 

for the Sale provides the Plan with a 

meaningful benefit that the Plan may 

not otherwise receive from a third-party 

sale, and is protective of the rights of 

participants and beneficiaries of the 

Plan. For clarity, the Department notes 

that the fair market value and Sale price, 

as determined by the Independent 

Fiduciary and QIA, must reflect the fair 

market value of the Property free and 

clear of any encumbrances, and without 

any reduction based on the existence of 

the Clawback Condition. 

Regarding the commenter’s request for 

a hearing, the Department notes that its 

regulations provide that the Department 

may decline to hold a hearing where, 

among other things, the only issues 

identified for exploration at the hearing 

are matters of law; or the factual issues 

identified can be fully explored through 

the submission of evidence in written 

(including electronic) form.’’ 22 The 

commenter has not provided a general 

description of the evidence to be 

presented at a hearing as required by the 

Department’s Exemption Procedure 

Regulation. Furthermore, the 

commenter has not identified any 

factual issues that have not been fully 

explored through the submission of 

written evidence provided to the 

Department by UBC. Accordingly, the 

Department declines the commenter’s 

request for a hearing.23

Other Revisions 

36. On its own motion, the 

Department made the following 

revisions to the operative language of 

the Proposed Exemption. 

(i) In order to clarify the elements that 

comprise the Sale price of the Property, 

i.e., at the time of the Sale, the UBC 

must pay the greater of: $34,090,000; or 

the fair market value of the Property, 

plus the Assemblage Increase and 

Contributory Costs, as established on 

the date of the Sale, the Department is 

modifying section III(b) to read, ‘‘At the 

time of the Sale, the Plan receives the 

greater of (1) $34,090,000; or (2) the fair 

market value of the Property plus the 

Property’s Assemblage Increase, as 

established by the QIA in an updated 

appraisal of such Property on the date 

of the Sale, plus the Plan’s Contributory 

Costs (together, the Sale Proceeds). The 

Sale Proceeds, as determined by the 

Independent Fiduciary and QIA, must 

reflect the fair market value of the 

Property free and clear of any 

encumbrances, and without any 

reduction based on the existence of the 

Subsequent Sale Proceeds Subject to 

Clawback Condition.’’ 

(ii) The term ‘‘Assemblage Increase’’ 

is now defined in section I(b) to mean 

an increase to the Property’s ‘‘as is’’ fair 

market value to account for the special 

value that the Property has to the UBC 

because it is adjacent to a 10.89-acre 

parcel of property owned by the UBC 

that is adjacent to the Property, as 

determined by a QIA. 

(iii) The term ‘‘Contributory Costs’’ is 

now defined in section I(f) to mean 

certain costs attributed to architect, 

engineer, and development studies and 

other activities paid for by the Plan to 

date for the benefit of the UBC and are 

not reflective of the value to the general 

market. These costs are valued in the 

2022 Appraisal at approximately 

$270,000. 

(iv) In order to provide more 

flexibility in the event the Plan needs to 

substitute the Independent Fiduciary, 

the Department is modifying section 

III(c) defining the term ‘‘Independent 

Fiduciary’’ to read, ‘‘The term 

‘Independent Fiduciary’ means 

Shumaker, Loop & Kendrick LLP, or any 

successor thereto, engaged by the Plan 

and that conforms to the qualified 

independent fiduciary requirements 

described in the Department’s 

procedures for requesting an exemption 

at 29 CFR 2570.34(e) and (f), found at 

89 FR 4695 (January 24, 2024). The Plan 

fiduciaries must provide the 

information required by the procedures 

to the Department within 30 days after 

such successor is hired.’’ 

(v) In order to provide more flexibility 

in the event the Plan needs to substitute 

the QIA, the Department is modifying 

section I(f) defining the term ‘‘QIA’’ to 

read, ‘‘The term ‘QIA’ means Cushman 

& Wakefield of Nevada, Inc., or any 

successor thereto, engaged by the 

Independent Fiduciary and that 

conforms to the qualified independent 

appraiser requirements described in the 

Department’s procedures for requesting 

an exemption at 29 CFR 2570.34(c), and 

(d) found at 89 FR 4694 (January 24, 

2024). The Plan fiduciaries must 

provide the information required by the 

procedures to the Department within 30 

days after such successor is hired.’’ 

(vi) The Department is modifying 

section II to refer as well to certain 

corresponding provisions of Code 

section 4975. Specifically, section II of 

the grant notice reads as follows: ‘‘The 

restrictions of ERISA sections 

406(a)(1)(A) and 406(a)(1)(D), and 

406(b)(1) and (b)(2), and the sanctions 

resulting from the application of Code 

section 4975, by reason of Code sections 

4975(c)(1)(A), (D), and (E), shall not 

apply to the Sale, effective as of the date 

a final exemption is published in the 

Federal Register, provided that the 

parties adhere to the conditions in 

Section III, below.’’ 

(vii) The Department is modifying 

section III(d) to read, ‘‘The Plan 

fiduciaries prudently determined that 

the Sale is in the Plan’s best interest and 

for no less than the fair market value of 

the Property, free and clear of any 

encumbrances.’’ 

(viii) The Department is modifying 

section III(g)(2) to read, ‘‘The 

Independent Fiduciary has not and will 

not enter into any agreement, 

arrangement or understanding that 

violates either ERISA section 410 or the 

Department’s Regulations codified at 29 

CFR 2509.75–4.’’ 

The Department also made several 

minor, non-substantive revisions that 

are intended to clarify the exemption 

and/or correct scrivener’s errors. 

Conclusion 

37. The Department has carefully 

considered the issues expressed by the 

commenters. After giving full 

consideration to the entire record, 

including the comments and the hearing 

request, the Department has determined 


ddrumheller on DSK120RN23PROD with NOTICES1
2754 Federal Register / Vol. 90, No. 7 / Monday, January 13, 2025 / Notices 

24The Representations stated herein are based on 

UBC’s representations provided in its exemption 

application, comments, and supporting 

submissions, including those of the Independent 

Fiduciary, and do not reflect factual findings or 

opinions of the Department unless indicated 

otherwise. The Department notes that the 

availability of this exemption is subject to the 

express condition that the material facts and 

representations contained in application D–12084 

are true and complete at all times, and accurately 

describe all material terms of the transactions 

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. 

to grant the exemption subject to the 

modifications and clarifications 

described herein. In granting this 

exemption, the Department has relied 

on the representations of the Applicant. 

If any material statement in the 

Application, final exemption or the 

Applicant’s Comment is not, or may no 

longer be, completely and factually 

accurate, the Applicant and recipient of 

the exemptive relief provided herein 

must immediately alert the 

Department.24

38. For further information regarding 

the comments and other matters 

discussed herein, interested persons are 

encouraged to obtain copies of the 

Application (Exemption Application 

No. D–12084) the Department is 

maintaining in this case from EBSA’s 

Public Disclosure Room (U.S. 

Department of Labor, Room N–1515, 

200 Constitution Avenue NW, 

Washington DC 20210 (202.693.8673)). 

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 

participants and beneficiaries of the 

plan and in a prudent fashion 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) As required by ERISA section 

408(a) and/or Code section 4975(c)(2), 

the Department hereby finds that the 

exemption is (1) administratively 

feasible, (2) in the interests of the plan 

and of its participants and beneficiaries, 

and (3) protective of the rights of the 

participants and beneficiaries of the 

plan; 

(3) The exemption is supplemental to 

and not in derogation of any other 

ERISA provisions 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 availability of this exemption 

is 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 transaction which 

is the subject of the exemption. 

Accordingly, the following exemption 

is granted under the authority of ERISA 

section 408(a) and/or Code section 

4975(c)(2) and in accordance with the 

procedures set forth in 29 CFR part 

2570, subpart B at 76 FR 66637, 66644 

(October 27, 2011). 

Exemption 

Section I. Definitions 

(a) The term ‘‘Applicant’’ or ‘‘UBC’’ 

means United Brotherhood of 

Carpenters and Joiners of America. 

(b) The term ‘‘Assemblage Increase’’ 

means an increase to the Property’s ‘‘as 

is’’ fair market value, as determined by 

a QIA, to account for the special value 

that the Property has to the UBC 

because it owns a 10.89-acre real estate 

parcel that is adjacent to the Property. 

(c) The term ‘‘Bermuda LLC’’ means 

Bermuda Hidden Well, LLC. 

(d) The term ‘‘Board’’ means a board 

of trustees made pursuant to the Plan’s 

Declaration of Trust, consisting of six (6) 

trustees who are current and former 

members of the UBC Executive Board 

and five (5) trustees who are appointed 

from officers of UBC Local Unions or 

UBC Councils. 

(e) The term ‘‘Consolidated Property’’ 

means a 30.14-acre combined block of 

property composed of the Property and 

a 10.89-acre parcel of property owned 

by the UBC that is adjacent to the 

Property. 

(f) The term ‘‘Contributory Costs’’ 

means certain costs attributed to 

architect, engineer, and development 

studies and other activities paid for by 

the Plan to date for the benefit of the 

UBC and are not reflective of the value 

to the general market. These costs are 

valued in the 2022 Appraisal at 

approximately $270,000. 

(g) The term ‘‘Independent Fiduciary’’ 

means Shumaker, Loop & Kendrick LLP, 

or any successor thereto, engaged by the 

Plan and that conforms to the qualified 

independent fiduciary requirements 

described in the Department’s 

procedures for requesting an exemption 

at 29 CFR 2570.34(e) and (f), found at 

89 FR 4695 (January 24, 2024). The Plan 

fiduciaries must provide the 

information required by the procedures 

to the Department within 30 days after 

such successor is hired. 

(h) The term ‘‘Plan’’ means United 

Brotherhood of Carpenters Pension 

Fund. 

(i) The term ‘‘Property’’ means the 

19.25-acre parcel of improved real 

property owned by the Plan and located 

at 6855 Bermuda Road, Las Vegas, Clark 

County, Nevada. 

(j) The term ‘‘QIA’’ means Cushman & 

Wakefield of Nevada, Inc., or any 

successor thereto, engaged by the 

Independent Fiduciary and that 

conforms to the qualified independent 

appraiser requirements described in the 

Department’s procedures for requesting 

an exemption at 29 CFR 2570.34(c) and 

(d), found at 89 FR 4694 through 95 

(January 24, 2024). The Plan fiduciaries 

must provide the information required 

by the procedures to the Department 

within 30 days after such successor is 

hired. 

(k) The term ‘‘Sale’’ means the onetime sale for cash of the Property by the 

Trustees on behalf of the Plan through 

its subsidiary entity, Bermuda LLC, to 

the UBC. 

(l) The term ‘‘Trustees’’ means the six 

(6) trustees on the Plan’s Board who are 

current and former members of the UBC 

Executive Board and five (5) trustees 

who are appointed by officers of UBC 

Local Unions or UBC Councils. 

Section II. Covered Transactions 

The restrictions of ERISA sections 

406(a)(1)(A) and 406(a)(1)(D), and 

406(b)(1) and (b)(2), and the sanctions 

resulting from the application of Code 

section 4975, by reason of Code sections 

4975(c)(1)(A), (D), and (E), shall not 

apply to the Sale, effective as of the date 

a final exemption is published in the 

Federal Register, provided that the 

parties adhere to the conditions in 

section III, below. 

Section III. Conditions 

(a) The Sale is a one-time transaction 

for cash that must be completed within 

90 days of the effective date of the 

exemption; 

(b) At the time of the Sale, the Plan 

receives the greater of (1) $34,090,000; 

or (2) the fair market value of the 

Property plus the Property’s Assemblage 


ddrumheller on DSK120RN23PROD with NOTICES1
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Increase, as established by the QIA in an 

updated appraisal of such Property on 

the date of the Sale, plus the Plan’s 

Contributory Costs (together, the Sale 

Proceeds). The Sale Proceeds, as 

determined by the Independent 

Fiduciary and QIA, must reflect the fair 

market value of the Property free and 

clear of any encumbrances, and without 

any reduction based on the existence of 

the Subsequent Sale Proceeds Subject to 

Clawback Condition; 

(c) The Plan pays no commissions, 

expenses, or fees associated with the 

Sale, and the Plan does not bear the 

costs of: (1) the exemption application; 

nor (2) notifying interested persons; 

(d) The Plan fiduciaries prudently 

determined that the Sale is in the Plan’s 

best interest and for no less than the fair 

market value of the Property, free and 

clear of any encumbrances. 

(e) The terms and conditions of the 

Sale are at least as favorable to the Plan 

as those obtainable in arm’s length 

transactions with an unrelated third 

party; 

(f) The Independent Fiduciary, in 

accordance with ERISA sections 

404(a)(1)(A) and (B), must prudently 

and loyally: 

(1) represent the Plan’s interests with 

respect to the Sale; 

(2) determine that the Sale is in the 

interests of, and protective of, the Plan 

and its participants and beneficiaries; 

(3) determine that the Sale price for 

the Property is in the interests of, and 

protective of, the Plan; 

(4) review and approve the terms and 

conditions of the Sale in their sole 

discretion and further negotiate any 

conditions they consider to be in the 

best interest of the Plan; 

(5) independently engage the QIA for 

the Sale; 

(6) ensure that the appraisal is based 

on complete, current and accurate 

information; review and approve the 

methodology used by the QIA that such 

methodology is properly applied in 

determining the Property’s fair market 

value on the date of the Sale; and that 

it is appropriate to rely upon the 

appraisal as accurately reflecting the fair 

market value of the Property; 

(7) monitor the Sale throughout its 

duration consistent with its duties as a 

prudent plan fiduciary; 

(8) ensure that the QIA renders an 

updated fair market valuation of the 

Property as of the date of the Sale in 

accordance with paragraph (f)(6) of this 

section; 

(9) determine whether it is prudent 

for the Plan to proceed with the Sale 

and has the ultimate decision-making 

authority to approve the Sale on behalf 

of the Plan; 

(10) ensure compliance with the 

general terms of the Sale and with the 

conditions of the exemption; 

(11) take any appropriate actions to 

safeguard the interests of the Plan and 

its participants and beneficiaries; and 

(12) submit a written report to the 

Department not later than 90 days after 

the Sale has been completed 

demonstrating that each exemption 

condition has been met; 

(g)(1) The 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 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; the Independent 

Fiduciary may not seek or receive any 

waiver of any rights, claims, or remedies 

of the Plan under ERISA, state, or 

Federal law against the Independent 

Fiduciary with respect to the subject 

matter of the exemption; and 

(2) The Independent Fiduciary has 

not and will not enter into any 

agreement, arrangement or 

understanding that violates either 

ERISA section 410, or the Department’s 

Regulations codified at 29 CFR 2509.75– 

4; 

(h) Subsequent Sale Proceeds Subject 

to Clawback Condition. If UBC sells the 

Property within 10 years after the date 

of the Sale, for a sale price that is greater 

than the Sale Proceeds, then the amount 

of the subsequent sale price received by 

UBC that exceeds the Sale Proceeds (the 

Excess Amount) must be contributed by 

the UBC to the Plan in cash before the 

end of the Plan year following the date 

of such subsequent sale. If UBC 

subdivides the Property and a portion of 

the Property is subsequently sold by 

UBC, then the Excess Amount would be 

determined by subtracting from the 

subsequent sale price the amount of 

Sale Proceeds attributable to the portion 

of the Property that was sold in such 

subsequent sale as determined by an 

independent appraiser. The 

Independent Fiduciary and QIA may 

not reduce the sale price paid to the 

Plan or the fair market value of the 

Property based on the Clawback 

Condition. The records applicable to 

any subsequent sale by UBC covered by 

this provision, including any appraisals, 

must be provided to the Office of 

Exemption Determinations at e-OED@

dol.gov within 90 days after the date of 

such sale. 

(i) Any QIA selected by the 

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 QIA 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 

QIA’s work; the QIA may not seek or 

obtain any waiver of 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 QIA with respect 

to the subject matter of the exemption; 

and 

(j) The Board and the Independent 

Fiduciary maintain for a period of six 

(6) years from the date of Sale, in a 

manner that is convenient and 

accessible for audit and examination, 

the records necessary to enable the 

persons described in paragraph (k)(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 Board and/or the Independent 

Fiduciary, the records are lost or 

destroyed prior to the end of the sixyear period, and (ii) no party in interest 

other than the Board or the 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 

(k) below; and 

(k)(1) Except as provided in section 

(2) of this paragraph and 

notwithstanding any provisions of 

subsections (a)(2) and (b) of ERISA 

section 504, the records referred to in 

paragraph (j) 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 Board or any duly authorized 

representative of the Board; 

(iii) the Independent Fiduciary or any 

duly authorized representative of the 

Independent Fiduciary; 

(iv) any participant or beneficiary of 

the Plan, or any duly authorized 

representative of such participant or 

beneficiary; 

(2) If any party refuses to disclose 

information to a person on the basis that 

such information is exempt from 

disclosure, such party must provide a 

written notice to that person advising 

them of the reasons for the refusal and 

that the Department may request such 

information on their behalf by the close 


ddrumheller on DSK120RN23PROD with NOTICES1
2756 Federal Register / Vol. 90, No. 7 / Monday, January 13, 2025 / Notices 

of the thirtieth (30th) day following the 

request; 

(l) The Sale is not part of an 

agreement, arrangement or 

understanding designed to benefit UBC 

or any of its affiliates; 

(m) The Board, the UBC, and/or the 

Independent Fiduciary must provide to 

the Department the records necessary to 

demonstrate that the conditions of this 

exemption, as amended, have been met, 

within 30 days from the date the 

Department requests such records; and 

(n) All the material facts and 

representations made by the Applicant 

that are set forth in the Summary of 

Facts and Representations are true and 

accurate at all times. 

Exemption Date: The exemption will 

be in effect on January 13, 2025. 

Signed at Washington, DC. 

George Christopher Cosby, 

Director, Office of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2025–00405 Filed 1–10–25; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

[Docket No. OSHA–2021–0013] 

Pilot Study and Prospective Analyses 

of the Draft Revised Form 33, Safety 

and Health Program Assessment 

Worksheet; Extension of the Office of 

Management and Budget’s (OMB) 

Approval of Information Collection 

(Paperwork) Requirements 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Request for public comments. 

SUMMARY: OSHA solicits public 

comments concerning its request to 

extend OMB’s approval of information 

collection requirements for OMB 1218– 

0280, Expiration Date: June 30, 2025, 

regarding the Pilot Study for 3 years 

(i.e., to June 30, 2028). 

DATES: Comments must be submitted 

(postmarked, sent, or received) by 

March 14, 2025. 

ADDRESSES: 

Electronically: You may submit 

comments and attachments 

electronically at https://

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. 

Docket: To read or download 

comments or other material in the 

docket, go to https://

www.regulations.gov. Documents in the 

docket are listed in the https://

www.regulations.gov index; however, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through the websites. 

All submissions, including copyrighted 

material, are available for inspection 

through the OSHA Docket Office. 

Contact the OSHA Docket Office at (202) 

693–2350 (TTY (877) 889–5627) for 

assistance in locating docket 

submissions. 

Instructions: All submissions must 

include the agency name and OSHA 

docket number (OSHA–2021–0013) for 

the Information Collection Request 

(ICR). OSHA will place all comments, 

including any personal information, in 

the public docket, which may be made 

available online. Therefore, OSHA 

cautions interested parties about 

submitting personal information such as 

social security numbers and birthdates. 

For further information on submitting 

comments, see the ‘‘Public 

Participation’’ heading in the section of 

this notice titled SUPPLEMENTARY

INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Seleda Perryman, Directorate of 

Standards and Guidance, OSHA, U.S. 

Department of Labor; telephone (202) 

693–2222. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Department of Labor, as part of 

the continuing effort to reduce 

paperwork and respondent (i.e., 

employer) burden, conducts a 

preclearance process to provide the 

public with an opportunity to comment 

on proposed and continuing 

information collection requirements in 

accordance with the Paperwork 

Reduction Act of 1995 (PRA) (44 U.S.C. 

3506(c)(2)(A)). This program ensures 

that information is in the desired 

format, reporting burden (time and 

costs) is minimal, collection 

instruments are clearly understood, and 

OSHA’s estimate of the information 

collection burden is accurate. The 

Occupational Safety and Health Act of 

1970 (OSH Act) (29 U.S.C. 651 et seq.) 

authorizes information collection by 

employers as necessary or appropriate 

for enforcement of the OSH Act or for 

developing information regarding the 

causes and prevention of occupational 

injuries, illnesses, and accidents (29 

U.S.C. 657). The OSH Act also requires 

OSHA to obtain such information with 

minimum burden upon employers, 

especially those operating small 

businesses, and to reduce to the 

maximum extent feasible unnecessary 

duplication of efforts in obtaining 

information (29 U.S.C. 657). 

Section 7(c)(1) of the OSH Act 

authorizes the Secretary of Labor 

(Secretary) to, ‘‘with the consent of any 

State or political subdivision thereof, 

accept and use the services, facilities, 

and personnel of any agency of such 

State or subdivision with 

reimbursement.’’ Section 21(c) of the 

OSH Act authorizes the Secretary to 

‘‘consult with and advise employers and 

employees . . . as to effective means of 

preventing occupational illnesses and 

injuries.’’ 

Additionally, Section 21(d) of the 

OSH Act instructs the Secretary to 

‘‘establish and support cooperative 

agreements with the States under which 

employers subject to the Act may 

consult with State personnel with 

respect to the application of 

occupational safety and health 

requirements under the Act or under 

State plans approved under section 18 

of the Act.’’ This gives the Secretary 

authority to enter into agreements with 

the States to provide On-Site 

Consultation services and establish 

rules under which employers may 

qualify for a programmed inspection 

deferral. To satisfy the intent of these 

and other sections of the OSH Act, 

OSHA codified the terms that govern 

cooperative agreements between OSHA 

and State governments whereby State 

agencies provide On-Site Consultation 

services to private sector employers to 

assist them in complying with the 

requirements of the OSH Act. The terms 

were codified as the Consultation 

Agreement regulations (29 CFR part 

1908). 

The Occupational Safety and Health 

Administration (OSHA) is requesting 

approval from the Office of Management 

and Budget (OMB), pursuant to the 

Paperwork Reduction Act (PRA), for a 3 

year extension of the information 

collection requirements for OMB 

Number 1218–0280, Expiration Date: 

June 30, 2025; to conduct validity and 

reliability analyses of a safety and 

health program (SHP) assessment 

worksheet, the Draft Revised Form 33 

(DRF33), that will replace the current 

SHP Assessment Worksheet, OSHA 

Form 33, used by the OSHA On-Site 

Consultation Program (OMB Number 

1218–0110; Expiration Date: February 

28, 2025. Completion of the studies on 

the DRF33 will enable OSHA to ensure 

that a valid, reliable, and efficient tool 

is provided to On-Site Consultation 

programs in the fifty (50) states, the 

District of Columbia, and several United 

States territories to replace the current 

OSHA Form 33, thereby, enhancing the 

quality of consultative services. 


ddrumheller on DSK120RN23PROD with NOTICES1