[Federal Register Volume 62, Number 244 (Friday, December 19, 1997)]
[Notices]
[Pages 66685-66689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33180]
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DEPARTMENT OF LABOR
Pension and Welfare Benefits Administration
[Application Nos. D-10461, D-10462 and D-10463]
Notice of Proposed Amendment to Prohibited Transaction Exemption
(PTE) 93-8 Involving the Fortunoff Pension Plans (the Plans) Located in
Westbury, NY
AGENCY: Pension and Welfare Benefits Administration, U.S. Department of
Labor.
ACTION: Notice of proposed amendment to PTE 93-8.
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SUMMARY: This document contains a notice of pendency before the
Department of Labor (the Department) of a proposed individual exemption
which, if granted, would amend PTE 93-8 (58 FR 7258, February 5, 1993),
a purchase, leaseback and license exemption involving Plans sponsored
by Fortunoff Fine Jewelry and Silverware, Inc. (FFJ) and M. Fortunoff
of Westbury Corporation (M. Fortunoff) and parties in interest. These
transactions are described in a notice of pendency that was published
in the Federal Register on May 8, 1992 at 57 FR 19951. The proposed
exemption, if granted, would affect participants and beneficiaries of,
and fiduciaries with respect to the Plans.
EFFECTIVE DATE: If granted, this proposed exemption would be effective
as of the date the notice granting the exemption is published in the
Federal Register.
DATES: Written comments and requests for a public hearing must be
received by the Department on or before February 2, 1998.
ADDRESSES: All written comments and requests for a public hearing
(preferably, three copies) should be sent to the Office of Exemption
Determinations, Pension and Welfare Benefits Administration, Room N-
5649, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, Attention: Application Nos. D-10461, D-10462 and
D-10463. The application pertaining to the proposed exemption and the
comments received will be available for public inspection in the Public
Documents Room of the Pension and Welfare Benefits Administration, U.S.
Department of Labor, Room N-5507, 200 Constitution Avenue, NW.,
Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT:
Ms. Jan D. Broady, Office of Exemption Determinations, Pension and
Welfare Benefits Administration, U.S. Department of Labor, Washington,
DC 20210, telephone (202) 219-8881. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency
before the Department of proposed exemption that would amend PTE 93-8.
PTE 93-8 provides an exemption from certain prohibited transaction
restrictions of section 406 of the Employee Retirement Income Security
Act of 1974 (the Act) and from the sanctions resulting from the
application of section 4975 of the Internal Revenue Code of 1986 (the
Code), as amended, by reason of section 4975(c)(1) of the Code. The
proposed exemption was requested in an application filed on behalf of
M. Fortunoff and FFJ (collectively), the Applicants) pursuant to
section 408(a) of the Act and section 4975(c)(2) of the Code, and in
accordance with the procedures set forth in 29 CFR part 2570, subpart B
(55 FR 32836, August 10, 1990). Effective December 31, 1978, section
102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17,
1978) transferred the authority of the Secretary of the Treasury to
issue exemptions of the type requested to the Secretary of Labor.
Accordingly, this proposed exemption is being issued solely by the
Department.
I. Background
PTE 93-8 provides prospective exemptive relief from the
restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act and
the sanctions resulting from the application of section 4975 of the
Code, by reason of section 4975(c)(1)(A) through (E) of the Code with
respect to (1) the purchase by the Fortunoff Pension Plan--Employer
Group A Plan (the Employer Group A Plan), the Fortunoff Pension Plan--
Employer Group B Plan (the Employer Group B Plan) and the Fortunoff
Fine Jewelry and Silverware, Inc. Profit Sharing Plan (the Profit
Sharing Plan) of undivided interests in certain improved real property
(the Property), for the total
[[Page 66686]]
cash consideration of $6 million, from M. Fortunoff, the sponsor of the
Group B Plan and a retailer of rugs, furniture and household items; (2)
the leasing of the Property by the Plans, under the provisions of an
amended lease (the Amended Lease), to FFJ, the sponsor of the Group A
Plan and the Profit Sharing Plan as well as retailer of fine jewelry,
silverware, glassware and crystal; and (3) the use of space in the
Property by Fortunoff Information Services (FIS), a partnership
providing data processing services to FFJ and M. Fortunoff pursuant to
the terms of a license agreement (the License) between FFJ and FIS.
As noted in the Summary of Facts and Representations underlying PTE
93-8, the subject Property, which is located at One MH Plaza, Axinn
Avenue, Garden City East, Nassau County, New York has the following
legal description:
All that certain plot, piece or parcel of land, situate, lying
and being near Westbury, Town of Hempstead, County of Nassau and
State of New York, being the northerly 367.04 feet more or less of
Lot 44 Block 73 on the Nassau County land and tax map as same
existed on the date hereof.
The Property consists of a one story office and warehouse building
containing approximately 116,000 square feet of gross building area on
a site of approximately 4.0663 acres of land. There is also a parking
area. The Property was originally leased by M. Fortunoff to FFJ for its
warehouse and data processing services under the provisions of a
written, triple net lease (the Lease) that commenced on March 1, 1989.
The annual rental under the Lease was $554,232 and was payable in
monthly installments of $46,186. In addition to the Lease, FFJ granted
its affiliate, FIS, an exclusive right to use, for $3,850 per month,
approximately 8,041 square feet in the building area for FIS's
information systems and data processing operations. The term of the
License coincided with the term of the Lease.
Upon the granting of PTE 93-8, the Plans purchased the Property,
which was unencumbered by a mortgage, from M. Fortunoff for the total
cash consideration of $6 million. The purchase price was less than the
independently appraised value of the Property. The Property was then
allocated among the Plans such that the Group A Plan and the Group B
each acquired 40 percent interests in the Property with each Plan
paying $2.4 million. The Profit Sharing Plan acquired the remaining 20
percent interest in the Property for $1.2 million. At the time of
acquisition, the Property represented approximately 19 percent of the
Group A Plan's assets, 22 percent of the Group B Plan's assets and 13
percent of the assets of the Profit Sharing Plan. With the exception of
mandatory title insurance charges, no Plan paid any real estate fees or
commissions in connection with its acquisition of an interest in the
Property.
Following the purchase transaction, the Lease and License were
assigned to the Plans. As modified by the Lease Assignment and
Assumption Agreement, the Amended Lease between the Plans and FFJ, has
a twelve year term that will expire on February 29, 2004. The annual
rental under the Amended Lease, which is the same as that paid under
the Lease, is $554,232 (the Base Rent). The Base Rent is payable in
monthly installments of $46,186. Commencing on March 1, 1993 and
including the year ending February 29, 2004, FFJ is required to pay, in
addition to the Base Rent, and annual Escalation Amount based upon the
fair market rental value of the Property as determined by a qualified,
independent appraiser. Effective October 1, 1997, FFJ has commenced
paying an annual Escalation Amount of $35,048 on a monthly basis in
equal installments of $2,920.67. Therefore, the total rental amount
being paid is $589,280 annually of $49,107 monthly. In the event that
the fair market rental value of the Property should decline to an
amount which is less than the Base Rent, the Amended Lease provides
that the Plans will be paid the Base Rent. As with the Lease, the
Amended Lease is also a triple net lease.
The License between FFJ and FIS, which was similarly modified by
the Lease Assignment and Assumption Agreement, required FIS to pay its
proportionate share of utilities as well as repair and maintain that
portion of apace that it occupied, also on triple net basis. Although
the License had a term that was commensurate with that of the Amended
Lease and required that FIS pay FFJ a base fee that was proportional to
the amount that FFJ paid the Plans under the Amended Lease, it was
terminated on or about January 1, 1995 after FIS vacated the Property.
Currently, FFJ occupies that space.
To secure its obligations under the Amended Lease, FFJ obtained a
one year, irrevocable letter of credit (the Letter of Credit) in favor
of the Plans. The Letter of Credit, which was in the face amount of
$550,000, provided that Sanford Browde, the independent fiduciary for
the Plans with respect to the transactions, could draw upon amounts
available thereunder the FFJ ever defaulted in its rental payments
under the Amended Lease and the default continued for more than ten
days after notice of the default had been given. On February 25, 1994,
the Letter of Credit expired.
To further secure FFJ's obligations to the Plans under the Amended
Lease, M. Fortunoff entered into an escrow agreement (the Escrow
Agreement) with the Plans whereby at least one year's rental under the
Amended Lease would be maintained through the sixth anniversary date of
the Property's assignment to the Plans. In this regard, M. Fortunoff
established a $1.65 million special escrow account (the Escrow Account)
over which it would have no withdrawing power or authority. If, at any
time the Escrow Account were depleted, M. Fortunoff would be required
to make up the shortfall.
Funds in the Escrow Account would not be disbursed if there had
been a default under the Amended Lease during the initial six year term
of the Escrow Agreement. Instead, the Escrow Agreement would continue
until the end of the term of the Amended Lease. Assuming there were no
defaults after this period, the balance of the Escrow Account would be
delivered to M. Fortunoff after 1999.
As noted above, the transactions described in PTE 93-8 are being
monitored by Mr. Browde, the independent fiduciary for the Plans.
Further, as additional safeguards, the exemption contains a number of
specific conditions. For example, (1) the terms of the transactions
must be at least as favorable to the Plans as those obtainable in arm's
length transactions with an unrelated party; (2) the independent
fiduciary must (a) determine that the transactions are in the best
interests of the Plans, (b) monitor and enforce compliance with the
terms and the conditions of the transactions and exemption at all
times, and (c) appoint one or more independent fiduciaries to resolve
any conflicts of interest which may develop between the Plans with
respect to the Amended Lease, the Escrow Agreement, the Property, or
each Plan's interest therein; (3) the value of the proportionate
interests in the Property that are acquired by each Plan must not
exceed 25 percent of each Plan's assets; and (4) the Base Rent must be
adjusted annually by the independent fiduciary based upon an
independent appraisal of the Property.
II. Proposed Modification to PTE 93-8
According to the Applicants, the subject Property is irregularly-
shaped and resembles a flagpole or a flag lot. Corporate Property
Investors (CPI), which is not affiliated with either the
[[Page 66687]]
Applicants or Mr. Browde, is the owner of two neighboring lots to the
immediate east and west of the ``pole'' area of the Property which has
been designated by the Applicants for employee parking. The Property
currently separates the two parcels owned by CPI.
By eliminating the pole portion of the Property, the Applicants
represent that the Property will become regular in shape and more
suitable for expansion. If reconfigured, the Property will also provide
additional parking for employees of FFJ and for others using the
warehouse facility.
Therefore, the applicants propose to modify PTE 93-8 by having the
Plans exchange the pole portion of the Property (the Exchange Property)
for nearly equivalent portions of the two lots that are owned by CPI
(the Substitute Property).\1\ The Substitute Property is contiguous
with the existing northern border of the flag portion of the Property
and is subject to a ground lease that is currently held by CPI as
ground lessor. The Substitute Property is used by CPI for parking
purposes and has the following legal description:
\1\ The Substitute Property that will be acquired by the Plans
measures approximately 358 feet by 47 feet and 70 feet by 43 feet
for a total of 19,836 square feet. The approximate dimensions of the
Exchange Property are 50 feet by 367 feet or a total of 18,350
square feet.
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All that certain plot, piece or parcel of land, situate, lying
and being near Westbury, Town of Hempstead, County of Nassau and
State of New York, being the southerly 47.50 feet, more or less, of
Lots 23 and 25 in section 44 Block 73 on the Nassau County Land and
Tax Map as same existed on the date hereof.
The proposed exchange will be conducted on the basis of a tax free
exchange of like-kind property under section 1031 of the Code. The
Substitute Property will be acquired by the Plans in fee simple and
will not be subject to the ground lease. At the time of closing, CPI
will transfer the Substitute Property to the Plans free of the rights
of any person or entity under the ground lease. After the land
exchange, the total area of the Property will be essentially the same
as at present but the land will be more regular in shape. As for CPI,
the proposed exchange will allow it to own one continuous parcel of
land, thus enhancing the utility of its land holdings.
The Plans propose to effect the real property exchange with CPI
under the terms of a Real Estate Exchange Agreement. The proposed
exchange is also contingent upon the Department's approval of the
arrangement and requires that the parties warrant or adhere to
environmental laws and regulations affecting the respective Properties.
It is represented that the exchange will not affect the present use of
the Property, the Amended Lease, or M. Fortunoff's obligations under
the Escrow Agreement.
Because of the nature of the modification discussed above, the
Department has determined that the exemptive relief provided under PTE
93-8 is no longer available. Therefore, the Department has decided to
publish a new exemption which, if granted, would amend PTE 93-8 by
allowing the Plans to lease the Substitute Property to FFJ along with
the remaining Property under the provisions of the Amended Lease. In
effect, the new proposed exemption will incorporate by reference many
of the facts, representations and continuing conditions that are
contained in PTE 93-8. However, the proposed exemption will not cover
FIS's use of space in the Property pursuant to the terms of the License
as such arrangement has been terminated.
III. Independent Appraisal
Bernard Goodman, MAI, CRE, and Matthew J. Guzowski, MAI,
independent appraisers (the Appraiser), who are affiliated with the
appraisal firm of Goodman-Marks Associates, Inc., located in Mineola,
New York, have addressed the economic impact of the Exchange Property
and the Substitute Property in an appraisal report dated September 9,
1997. The Appraisers note that the Exchange Property and the Substitute
Property are currently part of larger parcels of real property that are
zoned for industrial use. The Appraisers state that it is rare that
parcels of such size are marketed in industrial-zoned areas and that
their utility can only be realized by the adjoining land users.
Further, because there are no comparable sales of similarly-sized
parcels of real property in the area to formulate the basis for
determining the fair market values of the Substitute Property and the
Exchange Property, as ``standalone parcels,'' the Appraisers state that
neither parcel would have any marketable value and that to determine
such values would be very speculative. However, because both parcels
are of virtually the same size and are located in the same immediate
area, the Appraisers conclude that they are of equal value.
In addition to opining on the respective fair market values of the
Exchange Property and the Substitute Property, the Appraisers have
determined that as of September 6, 1997, the Property would have a fair
market value of $6.2 million. Moreover, as of that date, the Appraisers
have estimated the fair market rental value of the Property at $8.50,
gross, per square foot of building area, or $5.08 net rent per square
foot of building area.
Thus, as a result of the unmarketability of the Substitute Property
as a stand alone strip of real property and its size in relation to the
Property, the Appraisers have determined that the acquisition by the
Plans of the Substitute Property will have a minimal effect on the fair
market value or the fair market rental value of the Property. The
Appraisers note that the benefit to be derived by the Plans from the
exchange will be the availability of additional parking spaces which
will be in closer proximity to the warehouse facility. The squaring off
of the Property will create a more convenient use for those accessing
the warehouse.
IV. Views of the Independent Fiduciary
Mr. Browde represents that he has investigated real estate and
economic considerations relating to the proposed exchange transaction
and has concluded that it will benefit the Plans by enhancing the value
of the Property. In this regard, Mr. Browde notes that the Substitute
Property and the Exchange Property are of nearly the same size. After
the land exchange, the total land area of the Property essentially will
be the same but will result in a net increase of approximately 2,300
square feet of space. By eliminating the pole, the Property will become
regular in shape and more suitable for use.
Mr. Browde also states that a regular-shaped parcel of real estate
has more value than one that is oddly-shaped. In this regard, he states
that the Substitute Property would allow two rows of parking in the
same space which formerly accommodated only one row of parallel
parking, thereby increasing the number of legal parking spaces at the
Property by 26. This additional benefit would be a desirable
consequence of the exchange.
Further, Mr. Browde represents that the warehouse on the Property
could be expanded to a greater extent than at present because the land
exchange would now provide a greater distance between the new property
line and the exterior walls of the building's north side. He also notes
that the land exchange would be without cost to the Plans, other than
transaction costs which are not expected to exceed $3,000.
Finally, Mr. Browde notes that since the granting of PTE 93-8, all
of the terms and conditions of the Amended Lease, the Letter of Credit
and the Escrow Agreement have been complied with by the parties. Mr.
Browde also
[[Page 66688]]
represents that there have been no defaults or delinquencies under the
Amended Lease.
V. Other Modifications
A. Plan Information
In addition to the above, the Applicants have provided updated
information concerning the Plans. In this regard, the Applicants note
that the Group A Plan had 1,328 participants as of December 31, 1996
and total assets having a fair market value of $19,983,124 as of August
31, 1997. In addition, the Applicants represent that the Group B had
1,302 participants as of December 31, 1996 and total assets having a
fair market value of $10,680,155 as of August 31, 1997. Further, the
Applicants state that the Profit Sharing Plan had 1,098 participants as
of January 31, 1997 and total assets having a fair market value of
approximately $10,471,276 as of August 31, 1997.\2\
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\2\ Based upon these valuations, it should be noted that the
property, valued at $6.2 million by the Appraisers as of September
6, 1997, represents 12.41 percent of the assets of the Group A Plan,
23.22 percent of the assets of the Group B Plan and 11.84 percent of
the assets of the Profit Sharing Plan.
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B. Stock Ownership
The Applicants state that subsequent to the granting of PTE 93-8,
FFJ underwent a stock reclassification to create two classes of stock--
Class A voting stock and Class B non-voting stock. On June 24, 1994, a
stock dividend of 408 Class B shares was declared to holders of Class A
shares. Mr. Fortunoff gifted 236 of these shares to the Alan Fortunoff
Grantor Retained Annuity Trust and sold seven shares to each of his six
children. Mrs. Fortunoff gifted 88 Class B shares to the Helene
Fortunoff Grantor Retained Annuity Trust and sold seven shares to each
of the Fortunoff children. The Fortunoff children are beneficiaries
under both trusts.
At present, the Applicants note that all of the Class A voting
shares are owned by Alan and Helene Fortunoff. The FFJ Class B non-
voting shares are distributed as follows: Alan Fortunoff Grantor
Retained Annuity Trust, 236 shares; Helene Fortunoff Grantor Retained
Annuity Trust, 88 shares; and each of the Fortunoff children, 14
shares. Leonard Leibman is the sole trustee of each of the trusts.
Also since PTE 93-8 was granted, the Applicants point out that M.
Fortunoff has had a change in stock ownership. Although Mr. Fortunoff
does not hold any elective offices with M. Fortunoff and does not
directly own any shares of its capital stock, the Applicants explain
that he is one of three co-executors of the Estate of Marjorie Mayrock,
which owns 49.6 percent of M. Fortunoff's capital stock. The Applicants
further explain that both Mr. and Mrs. Fortunoff are co-trustees under
three trusts which each hold 5\2/3\ shares of Mr. Fortunoff's capital
stock for the benefit of the Mayrock children. On July 31, 1996, a
distribution of 4.25 shares was made from the Estate of Marjorie
Mayrock to each of the Mayrock children for a total distribution of
12.75 shares.
Notice to Interested Persons
Notice of the proposed exemption will be sent by first class mail
to each participant in the Plans within 15 days of the publication of
the pending exemption in the Federal Register. The notice will contain
a copy of the proposed exemption as published in the Federal Register
and a supplemental statement, as required pursuant to 29 CFR
2570.43(b)(2). The supplemental statement will inform interested
persons of their right to comment on and/or to request a hearing with
respect to the pending exemption. Comments and hearing requests
regarding the proposed exemption will be due 45 days from the
publication of the notice of proposed exemption in the Federal
Register.
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under section 408(a) of the Act and section 4975(c)(2) of the Code does
not relieve a fiduciary or other party in interest or disqualified
person from certain other provisions of the Act and the Code, including
any prohibited transaction provisions to which the exemption does not
apply and the general fiduciary responsibility provisions of section
404 of the Act, which require, among other things, a fiduciary to
discharge his or her duties respecting the plan solely in the interest
of the participants and beneficiaries of the plan and in a prudent
fashion in accordance with section 404(a)(1)(B) of the Act; nor does it
affect the requirements of section 401(a) of the Code that the plan
operate for the exclusive benefit of the employees of the employer
maintaining the plan and their beneficiaries;
(2) The proposed exemption, if granted, will not extend to
transactions prohibited under section 406(b)(3) of the Act and section
4975(c)(1)(F) of the Code;
(3) Before an exemption can be granted under section 408(a) of the
Act and section 4975(c)(2) of the Code, the Department must find that
the exemption is administratively feasible, in the interest of the plan
and of its participants and beneficiaries and protective of the rights
of participants and beneficiaries of the plan;
(4) This proposed exemption, if granted, will be supplemental to,
and not in derogation of, any other provisions of the Act and the Code,
including statutory or administrative exemptions. Furthermore, the fact
that a transaction is subject to an administrative or statutory
exemption is not dispositive of whether the transaction is in fact a
prohibited transaction; and
(5) This proposed exemption, if granted, is subject to the express
condition that the Summary of Facts and Representations set forth in
the notice of proposed exemption relating to PTE 93-8, as amended by
this notice, accurately describe, where relevant, the material terms of
the transactions consummated pursuant to that exemption.
Written Comments and Hearing Requests
All interested persons are invited to submit written comments or
requests for a hearing on the pending exemption to the address above,
within 15 days after the publication of this proposed exemption in the
Federal Register. All comments will be made a part of the record.
Comments received will be available for public inspection with the
referenced applications at the address set forth above.
Proposed Exemption
Based on the facts and representations set forth in the
application, the Department is considering granting the requested
exemption under the authority of section 408(a) of the Act and section
4975(c)(2) of the Code and in accordance with the procedures set forth
in 29 CFR Part 2570, Subpart B (55 FR 32836, August 19, 1990).
If the proposed exemption is granted, restrictions of sections
406(a), 406 (b)(1) and (b)(2) of the Act and the sanctions resulting
from the application of section 4975 of the Code, by reason of section
4975(c)(1) (A) through (E) of the Code, shall not apply to the leasing
by the Plans to FFJ, under the provisions of the Amended Lease
described in PTE 93-8, of certain Substitute Property, acquired by the
Plans through a third party exchange, as well as all remaining real
estate which constitutes the Property, provided the following
conditions are met:
(a) The terms of the Amended Lease remain at least as favorable to
the Plans
[[Page 66689]]
as those obtainable in an arm's length transaction with an unrelated
party.
(b) The independent fiduciary--
(i) Determines that the acquisition and subsequent leasing of the
Substitute Property by the Plans under the Amended Lease are in the
best interest of the Plans and their participants and beneficiaries;
(ii) Monitors and enforces compliance with the terms and conditions
of the Amended Lease, the Escrow Agreement and the new exemption, at
all times; and
(iii) Appoints one or more independent fiduciaries to resolve any
conflicts of interest which may develop among the Plans with respect to
the Amended Lease, the Escrow Agreement, the Property, or the Plans'
respective interests therein.
(c) The fair market value of the proportionate interests held by
each Plan in the Property as a whole following the exchange transaction
does not exceed 25 percent of each Plan's assets.
(d) The Property, the Exchange Property and the Substitute Property
are all appraised by qualified, independent appraisers prior to the
consummation of the exchange transaction.
(e) The Base Rent for the Property is adjusted annually by the
independent fiduciary based upon an independent appraisal of such
Property.
(f) FFJ incurs all real estate taxes and other costs which are
incident to the Amended Lease.
(g) The Escrow Agreement is maintained by M. Fortunoff, in favor of
the Plans, as security for FFJ's rental obligations under the Amended
Lease.
The availability of this proposed exemption is subject to the
express condition that the material facts and representations contained
in the application for exemption are true and complete and accurately
describe all material terms of the transactions. In the case of
continuing transactions, if any of the material facts or
representations described in the application change, the exemption will
cease to apply as of the date of such change. In the event of any such
change, an application for a new exemption must be made to the
Department.
For a more complete statement of the facts and representations
supporting the Department's decision to grant PTE 93-8, refer to the
proposed exemption, grant notice and technical correction notice which
are cited above.
Signed at Washington, D.C., this 16th day of December 1997.
Ivan L. Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits
Administration, U.S. Department of Labor.
[FR Doc. 97-33180 Filed 12-18-97; 8:45 am]
BILLING CODE 4510-29-M
