Notice2024-25583
Proposed Exemption From Certain Prohibited Transaction Restrictions Involving Boilermakers Western States Apprenticeship Fund Located in Page, Arizona
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 4, 2024
Issuing agencies
Labor DepartmentEmployee Benefits Security Administration
Abstract
This document provides notice of the pendency before the Department of Labor (the Department) of a proposed individual exemption from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA). This proposed exemption would permit the purchase of a parcel of improved real property by the Boilermakers Western States Apprenticeship Fund (the Plan or Applicant) from a local union lodge whose members may be participants in the Plan. The Plan requests the exemption in order to continue to utilize the property to carry out its training program and its administrative duties.
Full Text
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<title>Federal Register, Volume 89 Issue 213 (Monday, November 4, 2024)</title>
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[Federal Register Volume 89, Number 213 (Monday, November 4, 2024)]
[Notices]
[Pages 87600-87608]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25583]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
[Exemption Application No. L-12069]
Proposed Exemption From Certain Prohibited Transaction
Restrictions Involving Boilermakers Western States Apprenticeship Fund
Located in Page, Arizona
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Notice of proposed exemption.
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SUMMARY: This document provides notice of the pendency before the
Department of Labor (the Department) of a proposed individual exemption
from certain of the prohibited transaction restrictions of the Employee
Retirement Income Security Act of 1974 (ERISA). This proposed exemption
would permit the purchase of a parcel of improved real property by the
Boilermakers Western States Apprenticeship Fund (the Plan or Applicant)
from a local union lodge whose members may be participants in the Plan.
The Plan requests the exemption in order to continue to utilize the
property to carry out its training program and its administrative
duties.
DATES:
Exemption date: If granted, the exemption will be effective as of
the date the grant notice is published in the Federal Register.
Comments due: Written comments and requests for a public hearing on
the proposed exemption should be submitted to the Department by
December 19, 2024.
ADDRESSES: All written comments and requests for a hearing should be
submitted to the Employee Benefits Security Administration (EBSA),
Office of Exemption Determinations, Attention: Application No. L-12069,
via email to <a href="/cdn-cgi/l/email-protection#bfda92f0fafbffdbd0d391d8d0c9"><span class="__cf_email__" data-cfemail="73165e3c363733171c1f5d141c05">[email protected]</span></a> or online through <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Any such comments or requests should be sent by
the end of the scheduled comment period. The application for exemption
and the comments received will be available for public inspection in
the Public Disclosure Room of the Employee Benefits Security
Administration, U.S. Department of
[[Page 87601]]
Labor, Room N-1515, 200 Constitution Avenue NW, Washington, DC 20210,
reachable by telephone at (202) 693-8673. See SUPPLEMENTARY INFORMATION
below for additional information regarding comments.
FOR FURTHER INFORMATION CONTACT: Mr. Frank Gonzalez of the Department
at (202) 693-8553. (This is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Comments: Persons are encouraged to submit all comments
electronically and not to follow with paper copies. Comments should
state the nature of the person's interest in the proposed exemption and
how the person would be adversely affected by the exemption, if
granted. Any person who may be adversely affected by an exemption can
request a hearing on the exemption. A request for a hearing must state:
(1) the name, address, telephone number, and email address of the
person making the request; (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; and (3) a statement of the issues to be
addressed and a general description of the evidence to be presented at
the hearing. The Department will grant a request for a hearing made in
accordance with the requirements above where a hearing is necessary to
fully explore material factual issues identified by the requestor, and
a notice of such hearing will be published by the Department in the
Federal Register. The Department may decline to hold a hearing if: (1)
the request for the hearing does not meet the requirements stated
above; (2) the only issues identified for exploration at the hearing
are matters of law; or (3) the factual issues identified in the request
can be fully explored through the submission of evidence in written
(including electronic) form.
Warning: All comments received will be included in the public
record without change and may be made available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided,
unless the comment includes information claimed to be confidential or
information whose disclosure is restricted by statute. If you submit a
comment, EBSA recommends that you include your name and other contact
information in the body of your comment, but DO NOT submit information
that you consider to be confidential, or otherwise protected (such as a
Social Security number or an unlisted phone number) or confidential
business information that you do not want publicly disclosed. If EBSA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EBSA might not be able to consider your
comment.
Additionally, the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website is an
``anonymous access'' system, which means EBSA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email directly to EBSA without going
through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your email address will be
automatically captured and included as part of the comment that is
placed in the public record and made available on the internet.
Proposed Exemption
The Department is considering granting an exemption under the
authority of ERISA Section 408(a) and in accordance with the
Department's exemption procedures regulation.\1\ If the proposed
exemption is granted, the Plan would be permitted to purchase an
improved real estate property parcel (the Property) from the ``Navajo
Nation'' Lodge 4 of the International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmith, Forgers, and Helpers (Lodge 4), provided
that the Plan meets the conditions set forth in section III.
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\1\ 29 CFR part 2570, subpart B (75 FR 66637, 66644, October 27,
2011).
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This proposed exemption would provide relief from certain
restrictions set forth in ERISA sections 406(a)(1)(A) and (D), and
406(b)(1) and (2). However, this proposed exemption would not provide
relief from any other violation of law.
Benefits of the Exemption: As described in more detail below, the
Department is proposing relief based, in part, on the Applicant's
representations that purchase of the property would avoid significant
time and cost of relocating the Plan's training program to an
alternative location (as the property has already been modified at the
Plan's own expense for its particular training purposes).
Summary of Facts and Representations <SUP>2</SUP>
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\2\ The Summary of Facts and Representations is based on the
Applicant's representations provided in its exemption application
and does not reflect factual findings or opinion of the Department,
unless indicated otherwise. The Department notes that availability
of this exemption is subject to the express condition that the
material facts and representations made by the Applicant in
Application L-12069 are true, complete, and accurately describe all
material terms of the transaction(s) 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.
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1. The Plan is an apprenticeship program trust fund created to
provide training benefits to individuals engaged in the boilermaker
construction trade.
2. The Plan is a multiemployer plan created pursuant to collective
bargaining agreements (under the Taft-Hartley Act of 1947) \3\ between
signatory contractors/employers (the Employers) and the International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers,
and Helpers (the Boilermakers Union). As of December 31, 2023, the
approximate aggregate fair market value of the Plan's total assets was
$12,611,589. As of May 17, 2024, there are 369 apprentices currently
active in the Plan's apprenticeship program. The program graduated 84
apprentices in 2022, 65 in 2023, and 51 as of May 17, 2024. The Plan
admits apprentices on a rolling basis. There have been 1,233
apprentices participating in the Plan's training from May 13, 2019,
through May 13, 2024.
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\3\ The Department notes that the Taft-Hartley Act is commonly
known as the Labor Management Relations Act of 1947; see 29 U.S.C.
141.
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3. The Plan provides training and education to eligible
participants located in the following states: Alaska, Arizona,
California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico,
Oregon, Utah, Washington, and Wyoming (the Western States Area).
4. The Plan is sponsored by the Boilermakers National
Apprenticeship Program (the BNAP).\4\ The BNAP also is known as the
National Joint Apprenticeship and Training Program, sponsors
apprenticeship programs in four different geographical areas, including
the Western States Area.
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\4\ ERISA section 3(16)(B) defines the term Plan Sponsor to mean
in pertinent part . . . (ii) the employee organization in the case
of a plan established or maintained by an employee organization,
(iii) in the case of a plan established or maintained by two or more
employers or jointly by one or more employers and one or more
employee organizations, the association, committee, joint board of
trustees, or other similar group of representatives of the parties
who establish or maintain the plan. . . .''
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5. A board of trustees--the Boilermakers National Apprenticeship
Board--administers the Plan (the Board of Trustees). The Board of
Trustees consists of equal representation from locals of the
Boilermakers Union (the Union Trustees) and signatory contractors/
employers (the Employer Trustees). The Board of Trustees has discretion
over the Plan's assets, including over the investment of such assets.
6. The Plan receives funding through collectively bargained
contributions from contributing employers and grants,
[[Page 87602]]
among other income sources provided under the Plan's governing
documents. According to the Plan's governing documents, the Plan's
assets may be used to provide apprenticeship and training benefits and
to finance the operation and administration of such apprenticeship and
training benefits within the Western States Area. The Plan provides
benefits in two ways: through a regional training center, the JG
Cooksey Training Center in Salt Lake City, Utah; and through
subsidizing apprenticeship and training programs maintained by locals
of the Boilermakers Union within the Western States Area. As further
explained below with respect to the reimbursement policy, the Plan
subsidizes apprenticeship and training programs of local Boilermakers
Union lodges by annually allocating funds to such lodges based on the
number of apprentices and journeypersons in each lodge and/or
reimbursing the lodges' training expenses, including equipment and
supplies, student expenses (tuition/lodging/meals/mileage), instructor
expenses (wages/benefits/mileage), and tuition costs for apprentices or
journeypersons to attend regional or national training centers, or
other approved training facilities.
7. During a five-year period ending on February 11, 2022, the Plan
nearly doubled its apprentice numbers, and the participation rate
continued to increase as of May 17, 2024, as the demand for
boilermakers in the Western States Area continues to rise. Accordingly,
the Plan is interested in opening a new regional training center and is
seeking to purchase an improved real estate property parcel (the
Property) from Lodge 4, a labor union, located in Page, Arizona, that
is affiliated with the Boilermakers Union. Lodge 4 is a separate legal
entity from both the Boilermakers Union and the other lodges of the
Boilermakers Union. The Board of Trustees does not currently have any
Union Trustees who were appointed by Lodge 4. Rather, the Union
Trustees serving on the Plan's Board of Trustees are appointed either
by the Boilermakers Union or other lodges of the Boilermakers Union
(e.g., Boilermakers Lodge 502).
8. The Property. The Property is an improved real estate parcel
located at 294 Cowboy Ray Road, Page, Arizona. The Property's site is
1.678 acres, with two office/warehouse buildings. The smaller of the
two buildings has 1,365 square feet of office area and 975 square feet
of warehouse area, for a total of 2,340 square feet. The larger of the
two buildings has 1,626 square feet of office/classroom area and 3,374
square feet of warehouse area, for a total of 5,000 square feet.
9. As discussed further below, the Plan's apprentices currently use
the Property's buildings as training facilities (the Training
Facility). The Applicant represents that this use of the Training
Facility is essential for the Plan to fulfill its purpose of providing
education and training opportunities to its apprentices.
10. The Applicant represents that the Property has been modified to
carry out the purposes of the Plan. According to the Applicant, the
Property is ideally situated to be a regional training facility for
boilermaker apprentices and journeypersons, and the Facility is ideally
suited for the Plan's purposes. The Property also has administrative
space for the Plan's headquarters.\5\
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\5\ The Plan maintains an administrative office in Page,
Arizona, three miles away from the Property, that it began leasing
from Marquis Realty LLC, an unrelated party to the Plan, on July 1,
2014 (the Leased Office).
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11. Lodge 4 has decided to move and no longer desires to operate
the Training Facility. The Union Trustees recused themselves from
voting with respect to the Plan's decision to enter into the Proposed
Transaction, and the Plan's Employer Trustees \6\ determined it would
be in the interest of the Plan to purchase the Property because: (a)
the Training Facility is already suited for the needs of the Plan; (b)
the purchase of the Property would allow the Plan to maintain the
Training Program at the Training Facility notwithstanding Lodge 4's
decision to terminate operating the Training Facility; (c) using the
Property to create a regional training facility would meet the
increasing demand for the training of participants, including
apprentices within the Western States Area; (d) the purchase of the
Property from Lodge 4 would allow the Plan to pay the Property's fair
market value without incurring any commission costs or other expenses
in connection with the purchase; and (e) the Plan's continued use of
the Property for training purposes would provide additional benefits to
participants and provide other financial benefits to the Plan.\7\
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\6\ The Applicant represents that the Union Trustees recused
themselves from the vote to enter into the Proposed Transaction with
Lodge 4 on behalf of the Plan. The recusal is described in more
detail below.
\7\ The Department understands that the Plan would financially
benefit from the Proposed Transaction (and indirectly benefit the
Plan's participants and beneficiaries), because it (1) would not
need to pay for the removal of the Plan's specialized air venting
system from the Training Facility (the venting system is explained
further below) and (2) could relocate its administrative office
within the Property instead of paying for the Leased Office. The
Applicant also stated that participants would benefit by having the
ability to visit the Plan's administration office and training
facilities at the same location after the office is moved from the
Leased Office to the Property.
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12. On January 20, 2022, the Employer Trustees gave their approval
for the Plan to proceed with the purchase of the Property (the Proposed
Transaction), subject to the Department's grant of this proposed
exemption. The Plan intends to purchase the Property from Lodge 4
within ninety (90) days following the Department's grant of a final
exemption, should such an exemption be granted. The Applicant
represents that the Plan considered other possible locations and
properties for a regional center, but after consulting with various
service providers, it ultimately determined that purchasing the
Property owned by Lodge 4 was the most appropriate given the Plan's
goals, as explained below.
13. In connection with the Proposed Transaction, the Plan would pay
the lesser of: (i) the fair market value of $920,000 identified in the
appraisal conducted on April 1, 2021; and (ii) the updated appraised
fair market value of the Property as determined by the qualified
independent appraiser on the purchase date.
14. Lodge 4 and the Plan will each pay half of the costs associated
with the proposed exemption, including but not limited to fees for
qualified independent fiduciary services, qualified independent
appraiser services, and legal fees for preparing the Plan's application
to the Department requesting this proposed exemption.\8\
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\8\ Matters pertaining to services being provided by the
independent fiduciary and independent appraiser with respect to the
Proposed Transaction, including their qualifications and
independence, are explained further below.
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15. The Plan intends to make a $460,000 cash down payment to Lodge
4 (approximately 4.7 percent of the Plan's total assets) and will
finance the remaining $460,000 of the purchase price through a third-
party bank (as further described below). The Plan's estimates that the
total cost to purchase the Property will represent approximately 9.4
percent of the Plan's total assets.
16. On November 1, 2021, the Plan executed a Term Loan Commitment
Letter with the Bank of Labor, a bank located in Kansas City, Kansas,
for $600,000 (approximately 6.1 percent of the Plan's total assets).\9\
The Department understands that the Bank of Labor may be partly owned
by the Boilermakers Union. In order to ensure that the Plan
[[Page 87603]]
will obtain financing for the Proposed Transaction, if any, on arms'
length terms, the proposed exemption prohibits the Plan from financing
the acquisition of the Property with any bank that has any pecuniary
interest in, or is owned, managed, or controlled in any manner by a
party in interest with respect to the Plan as defined in ERISA section
3(14).
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\9\ As explained further below, a qualified independent
fiduciary notes that the Plan intends to finance the additional
$460,000 but has received a larger commitment as a precaution.
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17. ERISA Prohibited Transaction Analysis. Lodge 4 is an employee
organization whose members are covered by the Plan; therefore, it is a
party in interest to the Plan pursuant to ERISA section 3(14)(D).\10\
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\10\ ERISA section 3(14)(D) defines, in part, the term party in
interest to an employee benefit plan as ``an employee organization
any of whose members are covered by such plan.''
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18. ERISA section 406(a)(1)(A) prohibits a plan fiduciary from
causing the sale or exchange, or leasing, of property between a plan
and a party in interest. ERISA section 406(a)(1)(D) provides that a
plan fiduciary shall not cause the plan to engage in a transaction if
(1) that fiduciary knows or should know that such transaction
constitutes a direct or indirect transfer of any of the plan's assets
to a party in interest or (2) would result in the plan's assets being
used by or for the benefit of a party in interest.
19. The Plan's purchase of the Property from Lodge 4 in exchange
for the Plan's funds would constitute a prohibited sale and transfer of
Plan assets in violation of ERISA sections 406(a)(1)(A) and (D),
respectively.
20. Additionally, ERISA section 406(b)(1) prohibits a plan
fiduciary from dealing with a plan's assets ``. . . in his own interest
or for his own account.'' ERISA section 406(b)(2) prohibits a plan
fiduciary ``in his individual or in any other capacity [from acting] in
any transaction involving the plan on behalf of a party (or represent a
party) whose interests are adverse to the interests of the plan or the
interests of its participants or beneficiaries.''
21. The Union Trustees may have an interest in benefitting Lodge 4,
a party in interest to the Plan, because Lodge 4 is also a Boilermakers
Union lodge, and as such, it is affiliated with the Boilermakers Union.
Although the Applicant represents that the Union Trustees ``recused''
themselves from voting on the Plan's decision to enter into the
Proposed Transaction, whether the Union Trustees' recusal from any
aspects of the Proposed Transaction negates a violation of ERISA
section 406(b)(1) or (2), involves an inherently factual determination
that is beyond the scope of this proposed exemption. Therefore, the
Department cannot determine from the record whether the Union Trustees
sufficiently recused themselves from engaging in the deliberations
regarding of the Proposed Transaction or using their positions to
influence the Employer Trustees' decision to approve the Proposed
Transaction in order to determine definitively that there was no
violation of ERISA section 406(b)(1) or (b)(2). To the extent the Union
Trustees exercised any authority, control, or responsibility that make
them a fiduciary to cause the Plan to engage in the Proposed
Transaction, they would have violated ERISA section 406(b)(1) and
(b)(2), because the Proposed Transaction would benefit Lodge 4, an
entity in which the Union Trustees have an interest and involve Union
Trustees acting on behalf of both the Plan and Lodge 4.\11\
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\11\ The Department notes that ``the prohibitions of section
406(b) supplement the other prohibitions of section 406(a) of
[ERISA] by imposing on parties in interest who are fiduciaries a
duty of undivided loyalty to the plans for which they act. These
prohibitions are imposed upon fiduciaries to deter them from
exercising the authority, control, or responsibility which makes
such persons fiduciaries when they have interests which may conflict
with the interests of the plans for which they act. In such cases,
the fiduciaries have interests in the transaction which may affect
the exercise of their best judgment as fiduciaries.'' See 29 CFR
2550.408b-2(e)(1).
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22. Applicant's Representations Regarding the Merits of the
Proposed Exemption. The Applicant represents that the Proposed
Transaction would benefit the Plan because the Training Facility is
currently operated by Lodge 4 to conduct trainings and the Plan would
not have to make any improvements or modifications for the Plan to
continue using it. The Applicant explains that Lodge 4 currently
provides training to Plan participants at the Training Facility in
accordance with a reimbursement policy between the Plan and Lodge 4,
whereby the Plan reimburses Lodge 4 only for the direct costs that
Lodge 4 incurs in conducting training (the Reimbursement Policy).\12\
According to the Applicant, the Plan relies on ERISA Section 408(b)(2)
to operate its Reimbursement Policy. The Plan may terminate this
arrangement with Lodge 4 at any time with no penalty to the Plan and
without notice to Lodge 4.\13\
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\12\ The Applicant notes that the Reimbursement Policy also
covers Lodge 4's expense of sending its affiliated apprentices to
off-site locations for training purposes.
\13\ Whether the Reimbursement Policy complies with the
requirements of ERISA section 408(b)(2) is an inherently factual
inquiry that is beyond the scope of this proposed exemption and with
respect to which the Department offers no opinion.
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23. The Applicant represents that the Plan has also invested nearly
$600,000 in equipment at the Training Facility to equip 24 welding
stations, including installing a $250,000 custom ventilation system
designed to remove noxious fumes that are produced by the welding
machines. The Applicant states that the Plan still owns this equipment,
which is only used in connection with the training of participants by
Lodge 4 in connection with the provision of services to the Plan,
described in more detail below.\14\
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\14\ The costs for these pieces of equipment are not included as
part of the Property's value appraisal.
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24. The Applicant represents that the Proposed Transaction would
benefit the Plan because Lodge 4 intends to terminate its involvement
with the Training Facility. If Lodge 4 no longer runs the Training
Facility, the Plan can longer provide training there. Furthermore, the
Training Facility is currently equipped with Plan-purchased equipment
that is used to provide training for participants. If Lodge 4
terminates its involvement with the Training Facility and/or sells the
Property, the Plan would need to remove and relocate the equipment at
significant time and expense.
25. The Applicant represents that the Proposed Transaction would
benefit the Plan because of the Property's location. The Property is
centrally located in the Southern portion of the Western States Area
with convenient access from New Mexico, Arizona, Southern Nevada, and
Southern California. The Property also is located on the edge of the
Navajo Nation reservation, which has traditionally been a large source
of apprenticeship participants in that area, making the Property a
convenient location to a segment of current and future apprenticeship
participants.
26. The Applicant represents further that the Plan wants to create
a regional training center on the Property due to the transient nature
of the boilermaker trade and industry. The Applicant explains that
journeypersons and apprentices travel based on where the projects are
located, including traveling outside the boundary of their home lodge
of the Boilermakers Union. As such, the location of the Boilermakers
Union lodges and employers are less important than the location of the
projects. Larger projects may involve journeymen and apprentices from
multiple Boilermakers Union lodges. The Training Facility will be
available to all apprentices in the Western States Area, regardless of
their Boilermakers Union lodge affiliation. While there are other
training facilities across the 13-
[[Page 87604]]
state region that the Plan covers, there is a continued need to have
training facilities accessible across the region.
27. The Applicant represents further that the Proposed Transaction
would benefit the Plan, because the Property will become the site for
the Plan's administrative headquarters. If the Plan moves its
administrative headquarters to the Property, it will no longer need the
Leased Office and will avoid incurring the rental cost for that office.
Additionally, combining the Training Facility with the Plan's
administrative offices will provide closer access for the staff to
monitor the Training Facility and for the Plan's apprenticeship and
journeyperson participants to interact with the Plan's administrative
staff.
28. The Applicant represents that the Plan would also benefit from
the Proposed Transaction because the Property provides flexibility for
expansion as the number of Boilermaker apprentices continues to grow
and significant space for: (a) large training sessions where there are
numerous vehicles and recreational vehicles utilized by participants;
(b) outdoor training components such as training involving a rigging
tower; and (c) expansion of training facilities and/or demonstrations.
29. The Property's Appraisal. The Plan retained the services of
Accurity Valuation--Morley & McConkie L.C. (AVMM) to appraise the
Property (Qualified Independent Appraiser). Mr. Garrett Hanning
(Hanning) of AVMM authored an appraisal report dated May 17, 2021
(Appraisal Report). Hanning is a licensed Certified General Appraiser
specializing in commercial appraisals in the states of Arizona and
Utah. Hanning represents that the Appraisal Report is being submitted
to the Department as part of the Applicant's request for the proposed
exemption and that he has no bias with respect to the Property, the
Plan, or Lodge 4, which may influence the Property's appraisal. AVMM's
current revenue that is derived from any party in interest involved in
the proposed transaction or its affiliates is 0.04%, and his engagement
letter contains no provisions providing for his reimbursement or
indemnification by any party for violations of applicable law or of his
contractual obligations related to his work, or waivers of rights,
claims or remedies of the Plan or its participants and beneficiaries
under applicable laws against Hanning or AVMM with respect to their
work on the Proposed Transaction, and the terms of the proposed
exemption prohibit any such arrangements, as described in more detail
below.
30. In determining the Property's fair market value, Hanning
utilized two methods: (a) the cost approach; and (b) the sales
comparison approach, and he applied primary weight to the sales
comparison approach given the owner-occupied nature of the Property.
Based on his analysis, Hanning concluded that the Property's fair
market value was $920,000 as of April 1, 2021.
31. During the pendency of the Applicant's request for this
proposed exemption, the Applicant submitted to the Department an
updated report from the Qualified Independent Appraiser, dated July 28,
2022, indicating that no changes to the Property's structures have
taken place that would change the Property's value reflected in the
Appraisal Report dated April 1, 2021.
32. The Applicant states that the fees for the April 1, 2021
Appraisal Report, which are shared equally between the Plan and Lodge
4, totaled $3,750. Furthermore, in the event this proposed exemption is
granted, the conditions for relief require the appraisal to be updated
by the Qualified Independent Appraiser to reflect the fair market value
of the Property on the Transaction's closing date. The Plan does not
expect that the cost to update the appraisal will exceed $3,750.
33. The Independent Fiduciary. The Plan retained the services of
the Wagner Law Group to serve as the Plan's independent fiduciary
(Wagner or the Independent Fiduciary) with respect to the Proposed
Transaction, pursuant to Wagner's engagement letter dated November 3,
2020 (Wagner's Engagement Letter). Wagner represents that it has
significant experience with serving as the appointed independent
fiduciary at the request of the Department, federal courts, bankruptcy
trustees, and ERISA plan fiduciaries.
34. Wagner acknowledged that it understands its duties and
responsibilities under ERISA in acting as the Independent Fiduciary,
and will determine whether, with the assistance of one or more
independent appraisals, the proposed real estate purchase transaction
would be in the interests of the Plan and the Plan's participants and
beneficiaries and protective of their rights. Wagner's Engagement
Letter contains no provisions that indemnify Wagner for any failure to
adhere to its contractual obligations or to state or Federal laws
applicable to its work including ERISA or that waives any of the Plan's
rights, claims, or remedies of the Plan under ERISA, State, or Federal
law against Wagner with respect to the proposed transaction.
35. Wagner represents that the percentage of its current revenue
that is derived from any party in interest involved in the Proposed
Transaction is 0.13%. Furthermore, Wagner represents that it has no
current or future interest in the outcome of the Proposed Transaction.
Its sole financial interest in the transaction is the receipt of its
fees for acting as the Independent Fiduciary.
36. Wagner states that the Proposed Transaction will be implemented
only after the Department grants a final exemption and the relevant
conditions are satisfied, and Wagner determines that the Proposed
Transaction would be in the interests of the Plan and of its
participants and beneficiaries. In this regard, Wagner will prepare a
statement of the reasons on which its ``best interest'' determination
is based and will submit the statement to the Department (the
Statement). Before the closing of the Proposed Transaction, Wagner will
ensure that all of the preconditions to the real estate purchase are
completed and will monitor the transaction until and coincident with
the transaction's closing. The conditions for relief in the proposed
exemption require Wagner to have the authority to take all appropriate
actions to safeguard the Plan's interests and the interests of the
Plan's participants and beneficiaries and to:
(i) Monitor the Proposed Transaction on the Plan's behalf on a
continuing basis until the earlier of the closing or the date that the
Proposed Transaction is terminated;
(ii) Ensure that the Proposed Transaction remains in the interests
of the Plan and of the Plan's participants and their beneficiaries and,
if not, take any appropriate actions available under the particular
circumstances; and
(iii) Ensure compliance with all of the exemption conditions and
obligations imposed on any party dealing with the Plan with respect to
the Proposed Transaction.
37. The Independent Fiduciary's Opinion. On February 10, 2022,
Wagner issued its report to the Plan regarding the Proposed Transaction
(the IF Report). The IF Report provided Wagner's opinion that the
Plan's proposed purchase of the Property for a price of the lesser of
$920,000 or the Property's appraised value on the date of sale, under
the terms and conditions described herein, would be in the best
interest and protective of the rights of the Plan's participants and
beneficiaries.
38. According to the IF Report, the Independent Fiduciary reviewed
all the particulars of the Property and existing Training Facility,
including the Independent Appraisal, the terms of the Real Estate
Purchase and Sale Agreement between the Plan and Lodge
[[Page 87605]]
4 to buy the Property (the Purchase Contract) and determined that the
Property's $920,000 purchase price is appropriate.
39. The Independent Fiduciary determined that the Property's
location is convenient for the Plan's participants as well as the
Plan's staff who will benefit from affordable housing in close
proximity to the Property. As described in the IF Report, the purchase
of the Property will further the Plan's long-term goals to stabilize
the Plan's expenses with a regional center in this area. The IF Report
provides that the Property's overall size appears to present the
opportunity for expansion with minimal difficulty or hardship for the
Plan and its participants as the number of Boilermakers Union members
increase. The IF Report notes further that the Property has existing
buildings with considerable life expectancy that are particularly
suited to the Plan's intended use.
40. The IF Report provides that the Plan already owns the training
equipment currently housed at the Training Facility, and removing and
relocating this equipment to another location would be extremely
costly. The equipment on the site will provide the Plan with
significant start-up costs savings as compared to purchasing a
comparable facility and having to pay to relocate this equipment or
purchase new equipment to furnish the new facility. Wagner opines that
the Property provides a turn-key facility, ready immediate occupancy,
and use for the Plan's intended purposes.
41. The Independent Fiduciary notes that the Plan will save money
by using the Property to house its administrative office instead of
paying rent for the Leased Office and will benefit the Plan by locating
its administrative offices on the Property where administrative staff
will be able to monitor the Training Facility and interact with
participants in connection with administrative matters.
42. The IF Report describes the Independent Fiduciary's review and
approval of the methodology used by the Independent Appraiser. Wagner
opined that, based on the intended use of the Property, it would be
prudent for the Plan to rely on the appraised value as of April 1,
2021, subject to change pending the updated appraisal at date of
purchase.
43. Finally, the Independent Fiduciary examined the Plan's ability
to buy and finance the purchase of the Property, including the percent
of the purchase price to total plan assets, any prospective earnings or
savings from the proposed purchase, including the difference between
the current lease arrangement and the proposed purchase of the
Property, and the Plan's potential liabilities. The Independent
Fiduciary determined that the Plan's use of its assets for the proposed
real estate purchase of the Property will not negatively impact the
overall financial health of the Plan and its programs. In this regard,
the IF Report notes that the Plan receives continual stable funding
through collectively bargained contributions from contributing
employers to provide the benefits of its programs and subsidize
training for the local Boilermaker lodges in the Western Region.
According to the Plan, the monthly mortgage payments on the $460,000
loan will be less than $10,000. The Plan's average monthly income is
above $200,000. Therefore, the Independent Fiduciary determined that
the mortgage for the amount of $460,000 will not negatively affect the
Plan's operating budget. In addition, the Plan will be relieved of
incurring the additional rental expense to maintain its existing office
space.
44. Protective Conditions. In addition to the conditions mentioned
above, the exemption, if granted, requires the parties' adherence to
the protective conditions that are summarized below.\15\
---------------------------------------------------------------------------
\15\ The Department notes that this is a summary of the
conditions intended for the convenience of a reader; however, the
governing conditions for the Proposed Transaction are those
reflected in section III of the proposed exemption.
---------------------------------------------------------------------------
45. The Proposed Transaction is a one-time transaction in which the
Plan would make a $460,000 cash down payment and obtain a loan for the
remaining balance of the purchase price that could not exceed $920,000.
The loan's monthly payments could not exceed $10,000 and its collateral
would be a first mortgage lien and assignment of the lease on the
Property. The Plan must pay the lesser of the Property's fair market
value of $920,000 as appraised on April 1, 2021, and an updated
appraised value to be determined on the date of purchase, subject to
cost sharing allocations regarding the cost for this exemption. The
updated appraisal must be provided to the Department and will be made a
part of the administrative record for this exemption application.
46. The terms and conditions of the Proposed Transaction must be at
least as favorable to the Plan as the terms and conditions the Plan
would have received in an arm's length transaction between unrelated
and independent parties.
47. The Proposed Transaction must not be part of an agreement,
arrangement, or understanding designed to benefit Lodge 4.
48. No later than 30 days after the Transaction is completed, the
Independent Fiduciary must submit to the Department a written
certification that all of the conditions of the final exemption have
been met and must submit the Statement to the Department.
49. The Independent Fiduciary must:
(a) Determine that the Proposed Transaction is in the interest of
and protective of the rights of the Plan and its participants and
beneficiaries;
(b) Determine whether it is prudent for the Plan to proceed with
the Proposed Transaction;
(c) Review, negotiate, and approve the terms and conditions of the
Proposed Transaction;
(d) Represent the Plan's interests in connection with the Proposed
Transaction, including monitoring the parties' compliance with terms of
the contract of sale and the closing contract, enforcing the Plan's
rights under the contract of sale and the closing contract, and
ensuring the satisfaction of all preconditions for the Plan's purchase
of the Property, including the terms of the proposed financing from an
unrelated third-party bank;
(e) Monitoring to ensure that all exemption conditions are met and
take whatever actions are necessary to protect the rights of the Plan
and its participants and beneficiaries in the Proposed Transaction;
(f) Review the Appraisal Report and confirm that the underlying
methodology is reasonable and accurate such that the valuation of the
Property was reasonably derived;
(g) Ensure that the Appraisal Report is based on complete, current,
and accurate information; the appraiser was prudently selected; the
methodology used by the Qualified Independent Appraiser is consistent
with sound valuation principles; and that it is reasonable under the
circumstances to rely upon the Appraisal Report, as updated, to
determine the fair market value of the Property as of the date of the
transaction; and
(h) Not have entered into, or must not enter into, any agreement or
instrument that violates either ERISA Section 410, or the Department's
Regulations codified at 29 CFR 2509.75-4; \16\
---------------------------------------------------------------------------
\16\ ERISA section 410 provides, in part, that ``except as
provided in ERISA Sections 405(b)(1) and 405(d), any provision in an
agreement or instrument which purports to relieve a fiduciary from
responsibility or liability for any responsibility, obligation, or
duty under this part [meaning part 4 of ERISA] shall be void as
against public policy.''
---------------------------------------------------------------------------
50. Furthermore, the Independent Fiduciary must not have entered
into, and must not enter into, any agreement,
[[Page 87606]]
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; or waives any rights,
claims, or remedies of the Plan under ERISA, state, or Federal law
against the Independent Fiduciary with respect to the Proposed
Transaction;
51. The Qualified Independent Appraiser 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 Qualified Independent Appraiser
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
Qualified Independent Appraiser's work. The Plan also must not waive
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 Qualified Independent Appraiser with respect to the
Proposed Transaction.
52. The Employer Trustees but not the Union Trustees must determine
that the Proposed Transaction is prudent and in the Plan's interest to
proceed with the Transaction; the Union Trustees cannot participate or
in any way influence the Employer Trustees' determination. Lastly, all
the material facts and representations set forth in the Summary of
Facts and Representations must be true and accurate at all times.
Statutory Findings
53. ``Administratively Feasible.'' The Department has tentatively
determined that the proposed exemption is administratively feasible for
the Department because it is a one-time transaction requiring strict
adherence to fiduciary conduct that is subject to conditions designed
to safeguard the Plan, as overseen by an Independent Fiduciary
responsible for ensuring that all of the conditions of the exemption
have been met.
54. ``In the interests of.'' The Department has tentatively
determined that the proposed exemption is in the Plan's and
participants' and beneficiaries' interest because Lodge 4 intends to
terminate operating the Training Facility and doing so would require
the Plan to move its training programs and equipment at great expense,
and the Plan would need to find new suitable property to conduct its
apprenticeship training goals. The Proposed Transaction, however, would
permit the Plan to acquire the Property, thereby continuing utilizing
the Training Facility to provide adequate training, and avoid moving
its specialized training equipment and air filtration system. The
Proposed Transaction would also permit the Plan to terminate its Leased
Office space, thereby saving additional expenses and use the Property
to expand its Training Program to create a regional training center.
55. ``Protective of.'' The Department has tentatively determined
that the proposed exemption is protective of the Plan's participants
and beneficiaries because the Independent Fiduciary has reviewed the
terms of the Proposed Transaction and determined that the purchase of
the Property under the given terms and conditions is prudent and in the
best interest of the Plan and its participants and beneficiaries. Among
other things, the Independent Fiduciary will monitor the Proposed
Transaction to ensure that the Plan will acquire the Property at a
price that will not be greater than the fair market value as determined
by the Qualified Independent Appraiser. Additionally, the Independent
Fiduciary will continue to oversee the Proposed Transaction, including
the services to be provided by the Qualified Independent Appraiser, and
the Proposed Transaction will be subject to specific conditions aimed
at protecting the rights of Plan participants and beneficiaries.
Notice to Interested Persons
Those persons who may be interested in the publication in the
Federal Register of the notice of proposed exemption (the Notice)
include participants and beneficiaries of the Plan and participants and
beneficiaries of the Plan. The Applicants will provide notification to
interested persons by electronic mail, and first-class mail within
fifteen (15) calendar days of the date of the publication of the Notice
in the Federal Register. The mailing will contain a copy of the Notice,
as it appears in the Federal Register on the date of publication, plus
a copy of the Supplemental Statement, as required, pursuant to 29 CFR
2570.43(a)(2), which will advise the interested persons of their right
to comment and to request a hearing.
The Department must receive all written comments and requests for a
hearing no later than forty-five (45) days from the date of the
publication of the Notice in the Federal Register.
All comments will be made available to the public.
Warning: Do not include any personally identifiable information
(such as name, address, or other contact information) or confidential
business information that you do not want publicly disclosed. All
comments may be posted on the internet and can be retrieved by most
internet search engines.
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 plan and its
participants and beneficiaries and in a prudent manner 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) Before an exemption may be granted under ERISA section 408(a)
and/or Code section 4975(c)(2), 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 exemption, if granted, would be supplemental to,
and not in derogation of, any other provisions of ERISA 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 exemption, if granted, would be 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 transactions
which are the subject of the exemption.
Proposed Exemption
Section I. Definitions
(a) The term ``Qualified Independent Fiduciary'' means the Wagner
Law
[[Page 87607]]
Group, and any of its employees that provide any fiduciary service to
the Plan in respect to this proposed exemption; or such other
``qualified independent fiduciary'' as defined under 29 CFR part 2570,
subpart B, as updated from time to time.
(b) The term ``Qualified Independent Appraiser'' means Accurity
Morley & McConkie, LC, and any of its employees that provide any
appraisal related service to the Plan in connection with this proposed
exemption.
(c) The term ``Mortgage Loan'' means a mortgage loan from an
independent, third-party bank consisting of a five-year term with
payments based on 20-year amortization, ballooning at maturity, or such
other mortgage loan prudently entered into by the Independent Fiduciary
on behalf of the Plan.
Section II. Transactions
The restrictions of ERISA Sections 406(a)(1)(A), (D), and 406(b)(1)
and (2) shall not apply to the purchase of the improved real property
located at 294 Cowboy Ray Road, Page, Arizona (the Property), by the
Boilermakers Western States Apprenticeship Fund's (the Plan) from the
``Navajo Nation'' Lodge 4 of the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmith, Forgers, and Helpers
(Lodge 4), a party in interest with respect to the Plan (the Purchase);
provided that the conditions in Section III are satisfied.
Section III. Conditions
(a) The Purchase is a one-time transaction for the lesser of
$920,000 in cash or an updated appraised value to be determined by the
Qualified Independent Appraiser as of the Purchase's closing date (the
Price). The updated report from the Qualified Independent Appraiser
must be submitted to the Department within 30 days before the date the
Purchase is completed for inclusion in the record for this exemption
application;
(b) Approval of the Purchase must be made solely by Plan trustees
that are not, and were not, appointed by a labor union that is
affiliated with the International Brotherhood of Boilermakers, and such
Plan trustees must prudently determine in a writing that the Purchase
is in the Plan's best interest. Such non-union appointed Plan trustees
must have considered other possible locations and properties that were
unrelated to Lodge 4 prior to determining that the Purchase is the most
appropriate given the Plan's goals. Any trustee appointed by a labor
union that is affiliated with the International Brotherhood of
Boilermakers cannot participate or in any way influence a non-union
appointed Plan trustee;
(c) The Plan must retain the services of a Qualified Independent
Fiduciary and the Qualified Independent Fiduciary must prudently:
(1) Determine that the Purchase is in the interest of, and
protective of, the Plan and the Plan's participants;
(2) Determine whether it is prudent for the Plan to proceed with
the Purchase;
(3) Review, negotiate, and approve the terms and conditions of the
Purchase;
(4) Represent the Plan's interests in connection with the Purchase,
including monitoring the parties' compliance with terms of the sales
contract and the closing contract, enforcing the Plan's rights under
the sale contract and closing contract, and ensuring the satisfaction
of all conditions precedent to complete the Purchase, including the
terms of the Mortgage Loan;
(5) Monitor to ensure that all of the exemption conditions are met
and take whatever actions are necessary to protect the rights of the
Plan and its participants and beneficiaries with respect to the
Purchase;
(6) Review the Qualified Independent Appraisal Report and confirm
that the underlying methodology is reasonable and accurate and that the
valuation of the Property was reasonably derived;
(7) Ensure that the Qualified Independent Appraisal Report is based
on complete, current, and accurate information; the Qualified
Independent Appraiser was prudently selected; the methodology used by
the Qualified Independent Appraiser is consistent with sound valuation
principles; and that it is reasonable under the circumstances to rely
upon the Qualified Independent Appraisal's report to determine the fair
market value of the Property as of the date of the Purchase; and
(8) Not have entered into, and must not enter into, any agreement
or instrument that violates either ERISA section 410, or the
Department's Regulations codified at 29 CFR 2509.75-4;
(d) The terms and conditions of the Purchase must be at least as
favorable to the Plan as the terms and conditions the Plan would have
received in an arm's length transaction with an unrelated and
independent party, each of which had full knowledge of the relevant
facts, and neither of which were under any compulsion to buy or sell;
(e) The Purchase must not be part of an agreement, arrangement, or
understanding designed to benefit Lodge 4 or the International
Brotherhood of Boilermakers;
(f) In the event the Purchase is financed with a Mortgage Loan,
then the Mortgage Loan must be approved by the Qualified Independent
Fiduciary, and its monthly payments must not exceed $10,000;
(g) The Mortgage Loan collateral is limited to a first mortgage
lien and assignment of lease and rents on the Property. The Plan may
not obtain a Mortgage Loan from a bank that has any pecuniary interest
in, or is owned, managed, or controlled in any degree by any party in
interest with respect to the Plan as defined in ERISA section 3(14);
(h) The Plan must not pay any commissions, costs, or other expenses
in connection with the Purchase subject to the cost sharing allocations
regarding the cost for this exemption as provided below in paragraph
(i);
(i) Lodge 4 and the Plan must each pay half of the costs associated
with the proposed exemption including but not limited to fees for
Qualified Independent Fiduciary services, fees for Qualified
Independent Appraiser services, and fees for preparing the Plan's
application to the Department requesting this proposed exemption, but
not including the Price;
(j) The Qualified 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 Qualified 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 Qualified
Independent Fiduciary's work; or that waives any rights, claims, or
remedies of the Plan under ERISA, state, or Federal law against the
Qualified Independent Fiduciary with respect to the Purchase;
(k) The Qualified Independent Appraiser 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 Qualified Independent Appraiser
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
Qualified Independent Appraiser's work; or that waives 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
Qualified Independent Appraiser with respect to the Purchase;
(l) The Plan's trustees and the Qualified Independent Fiduciary
maintain for a period of six (6) years
[[Page 87608]]
from the date of any transaction related to the Purchase, in a manner
that is convenient and accessible for audit and examination, the
records necessary to enable the persons described in paragraph (m)(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 Plan's
trustees and/or the Qualified Independent Fiduciary, the records are
lost or destroyed prior to the end of the six-year period, and (ii) no
party in interest other than the Plan's trustees or the Qualified
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 (n)
below; and
(m)(1) Except as provided in section (2) of this paragraph and not
withstanding any provisions of subsections (a)(2) and (b) of ERISA
Section 504, the records referred to in paragraph (l) 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 Plan's trustees or any duly authorized representative of
the Plan's trustees;
(iii) the Qualified Independent Fiduciary or any duly authorized
representative of the Qualified Independent Fiduciary;
(iv) any participant or beneficiary of the Plan, or any duly
authorized representative of such participant or beneficiary;
(2) Should Lodge 4 or any party refuse to disclose information to a
person on the basis that such information is exempt from disclosure,
such party shall provide a written notice advising that person of the
reasons for the refusal and that the Department may request such
information by the close of the thirtieth (30th) day following the
request;
(n) Within 30 calendar days after the Property is purchased, the
Qualified Independent Fiduciary must provide to the Department a
written certification that all of the exemption conditions have been
met and must provide to the Department the Statement documenting its
conclusion that the Proposed Transaction is in the Plan's best
interest; and
(o) All the material facts and representations set forth in the
Summary of Facts and Representations are true and accurate at all
times.
Exemption Date: If granted, the exemption will be in effect as of
the date the grant notice is published in the Federal Register.
Signed at Washington, DC, this 30th day of October 2024.
George Christopher Cosby,
Director, Office of Exemption Determinations, Employee Benefits
Security Administration, U.S. Department of Labor.
[FR Doc. 2024-25583 Filed 11-1-24; 8:45 am]
BILLING CODE 4510-29-P
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</html>Indexed from Federal Register on November 4, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.