[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Notices]
[Pages 49423-49427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23582]
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DEPARTMENT OF LABOR
Pension and Welfare Benefits Administration
[Application No. D-10009, et al.]
Proposed Exemptions; Charleston Area Medical Center Deferred
Profit Sharing Plan, et al.
AGENCY: Pension and Welfare Benefits Administration, Labor.
ACTION: Notice of proposed exemptions.
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SUMMARY: This document contains notices of pendency before the
Department of Labor (the Department) of proposed exemptions from
certain of the prohibited transaction restriction of the Employee
Retirement Income Security Act of 1974 (the Act) and/or the Internal
Revenue Code of 1986 (the Code).
Written Comments and Hearing Requests
All interested persons are invited to submit written comments or
request for a hearing on the pending exemptions, unless otherwise
stated in the Notice of Proposed Exemption, within 45 days from the
date of publication of this Federal Register Notice. Comments and
request for a hearing should state: (1) The name, address, and
telephone number of the person making the comment or request, and (2)
the nature of the person's interest in the exemption and the manner in
which the person would be adversely affected by the exemption. A
request for a hearing must also state the issues to be addressed and
include a general description of the evidence to be presented at the
hearing. A request for a hearing must also state the issues to be
addressed and include a general description of the evidence to be
presented at the hearing.
ADDRESSES: All written comments and request for a hearing (at least
three copies) should be sent to the Pension and Welfare Benefits
Administration, Office of Exemption Determinations, Room N-5649, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. Attention: Application No. stated in each Notice of Proposed
Exemption. The applications for exemption and the comments received
will be available for public inspection in the Public Documents Room of
Pension and Welfare Benefits Administration, U.S. Department of Labor,
Room N-5507, 200 Constitution Avenue, NW., Washington, DC 20210.
Notice to Interested Persons
Notice of the proposed exemptions will be provided to all
interested persons in the manner agreed upon by the applicant and the
Department within 15 days of the date of publication in the Federal
Register. Such notice shall include a copy of the notice of proposed
exemption as published in the Federal Register and shall inform
interested persons of their right to comment and to request a hearing
(where appropriate).
SUPPLEMENTARY INFORMATION: The proposed exemptions were requested in
applications filed pursuant to section 408(a) of the Act and/or section
4975(c)(2) of the Code, and in accordance with procedures set forth in
29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).
Effective December 31, 1978, section 102 of Reorganization Plan No. 4
of 1978 (43 FR 47713, October 17, 1978) transferred the authority of
the Secretary of the Treasury to issue exemptions of the type requested
to the Secretary of Labor. Therefore, these notices of proposed
exemption are issued solely by the Department.
[[Page 49424]]
The applications contain representations with regard to the
proposed exemptions which are summarized below. Interested persons are
referred to the applications on file with the Department for a complete
statement of the facts and representations.
Charleston Area Medical Center Deferred Profit Sharing Plan (the Plan)
Located in Charleston, West Virginia
[Application No. D-10009]
Proposed Exemption
The Department is considering granting an exemption under the
authority of section 408(a) of the Act and section 4975(c)(2) of the
Code and in accordance with the procedures set forth in 29 CFR Part
2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption
is granted, the restrictions of sections 406(a), 406(b)(1) and (b)(2)
of the Act and the sanctions resulting from the application of section
4975 of the Code, by reason of section 4975(c)(1) (A) through (E) of
the Code, shall not apply to the past cash sale by the Plan to the
Camcare & Affiliates Malpractice Self-Insurance Trust (the Malpractice
Trust) of certain publicly-traded securities, provided the following
conditions were satisfied: (a) The sale was a one-time transaction for
cash; (b) the Plan paid no commissions or other fees in connection with
the transaction; (c) the transaction involved publicly-traded
securities, the fair market values of which were determined by an
independent bank by reference to the closing price for the securities
on the New York Stock Exchange.
Effective Date: If the proposed exemption is granted, the exemption
will be effective November 30, 1993.
Summary of Facts and Representations
1. Charleston Area Medical Center, Inc. (CAMC), the Plan's sponsor,
is a not-for-profit regional medical center located in Charleston, West
Virginia. It is exempt from federal taxes under section 501(c)(3) of
the Code, as is its parent corporation, Camcare, Inc. (Camcare). The
Plan is a frozen defined contribution plan with approximately 2,469
participants and assets of approximately $31,430,231.
2. In order to protect itself and its affiliates in the event of
medical malpractice claims, Camcare in 1978 established the Malpractice
Trust.1 The trustee of the Malpractice Trust is One Valley
National Bank, N.A., an independent national bank. The purpose of the
Malpractice Trust is to serve as a funding mechanism for malpractice
and comprehensive liability self-insurance programs of Camcare and
those of its affiliates that choose to participate in the Malpractice
Trust. CAMC participates in the Malpractice Trust and from time to time
contributes cash to the Malpractice Trust as required by Camcare.
\1\ The Malpractice Trust is not an employee benefit plan and is
not subject to the provisions of the Act.
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3. The Retirement Committee under the Plan has authority to appoint
and discharge registered investment advisors for the Plan and in
addition, two members of the Retirement Committee serve as trustees of
the Plan with discretionary powers. Although not formally designated,
members of the Retirement Committee also were invested with oversight
in connection with a number of other self-funded benefit and insurance
programs in which CAMC participated, including the Malpractice Trust.
4. Under investment guidelines adopted by CAMC, the Plan's exposure
to equity securities was set at a maximum of 50%. Because no new funds
were being contributed to the Plan, and due to appreciation in the
equity securities, it became clear to the members of the Retirement
Committee in late 1993 that the Plan would need to liquidate
approximately $5.6 million in equities to get within the 50% guideline.
Members of the Retirement Committee were also aware that the
Malpractice Trust was under-invested in equity securities, and that an
increase in such an investment could enhance the Malpractice Trust's
investment performance.
5. At a meeting of the Retirement Committee held on November 5,
1993, it was decided that the equity portion of the Plan which was
being managed by Renaissance Investment Management (Renaissance) would
be sold to the Malpractice Trust at the assets' fair market value as of
November 30, 1993. The Retirement Committee believed that the
transaction would: (a) Increase the liquidity of the Plan; (b) provide
the Plan with cash to continue to pay benefits; and (c) bring the total
percentage of equities in the Plan below the 50% investment guideline
limit. In addition, the transaction would save the Plan brokerage
commissions which would otherwise be incurred if the Plan were to sell
the equities on the open market. The Retirement Committee estimated the
savings on commissions to be approximately $13,000. The applicants
represent that the decision to transfer the portfolio managed by
Renaissance was dictated by the fact that the Renaissance portfolio had
the smallest equity exposure of any of the Plan's investment managers.
Thus, by selling that entire portfolio to the Malpractice Trust for
cash, the Plan could reduce its equity investments to under 50% of its
assets, but could keep the allocation as close to the 50% level as
possible without exceeding it.
6. Pursuant to its normal operating practices, Bank One, a National
Banking Association, which was custodian of the assets invested by
Renaissance, determined the fair market value of the assets on November
30, 1993 by reference to the closing prices for such securities on the
New York Stock Exchange on that date. Prior to this date, the
Retirement Committee had notified Renaissance that effective December
1, 1993, Renaissance would be managing the assets on behalf of the
Malpractice Trust and would no longer be managing the assets on behalf
of the Plan. The Retirement Committee received the valuation of the
assets from Bank One during the second week of December, 1993, and on
December 15, 1993, the Malpractice Trust transferred to the Plan
$5,700,641 in cash,2 the fair market value of the assets managed
by Renaissance determined by their closing prices on November 30, 1993.
The applicants represent that because of market fluctuations during
December, 1993, the actual value of the equity securities on December
15 had decreased (based on closing values) by $27,415.62. Thus, the
Plan benefited by virtue of the sales price being determined on the
basis of the November 30, 1993 values versus the December 15, 1993
values (the date of the actual transfer). Renaissance has represented
that the terms and conditions of the transaction were at least as
favorable to the Plan as those obtainable in an arm's-length
transaction with an unrelated party.
\2\ The portfolio transferred by the Plan to the Malpractice
Trust consisted of cash of $146,900, money market funds of $56,860
and equity securities of $5,496,881. The applicants represent that
the $146,900 in cash was transferred to the Malpractice Trust since
the Retirement Committee determined that it would be
administratively preferable to transfer the entire Renaissance
Portfolio to the Malpractice Trust.
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7. The applicants represent that they were not aware at the time of
the transaction that it would constitute a prohibited transaction. The
applicants further represent that CAMC, members of the Retirement
Committee, the trustee and the Malpractice Trust all received no fees
or any other compensation in connection with the sale of the securities
between the Plan and the Malpractice Trust.
[[Page 49425]]
8. The transaction at issue was noticed in August, 1994, by CAMC's
accountants, who were preparing a financial statement for the Plan on
behalf of CAMC. The accountants contacted the Chief Financial Officer
for CAMC who consulted with outside legal counsel. Outside legal
counsel recommended that the applicants file an exemption request for
the subject transaction with the Department.
9. In summary, the applicants represent that the subject
transaction satisfied the criteria contained in section 408(a) of the
Act because: (a) The sale was a one-time transaction for cash; (b) the
Plan paid no commissions or other fees in connection with the
transaction; (c) the securities were sold at fair market value as
determined by the Plan's independent custodian by reference to closing
prices for such securities on the New York Stock Exchange; (d) the
applicants discovered the prohibited nature of the transaction through
internal scrutiny and promptly applied for an exemption; and (e) the
Plan's independent investment manager, Renaissance, has represented
that the terms and conditions of the transaction were at least as
favorable to the Plan as those obtainable in an arm's-length
transaction with an unrelated party.
For Further Information Contact: Gary H. Lefkowitz of the Department,
telephone (202) 219-8881. (This is not a toll-free number.)
The Age-Based Profit Sharing Plan and Trust of Carolina OB-GYN Care,
P.A. (the Plan) Located in Spartanburg, South Carolina
[Application No. D-10061]
Proposed Exemption
The Department is considering granting an exemption under the
authority of section 408(a) of the Act and section 4975(c)(2) of the
Code and in accordance with the procedures set forth in 29 CFR Part
2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption
is granted, the restrictions of section 406(a), 406(b)(1) and (b)(2) of
the Act and the sanctions resulting from the application of section
4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the
Code, shall not apply to the proposed sale by the individual account
(the Account) in the Plan of James C. Montgomery, M.D., of a parcel of
real property (the Property) to Dr. Montgomery, a party in interest
with respect to the Plan, and the assumption by Dr. Montgomery of the
Account's current indebtedness with respect to the Property, provided
that the following conditions are satisfied: (a) The purchase price is
the greater of $120,000 or the fair market value of the Property as of
the date of the sale; (b) the fair market value of the Property is
determined by a qualified, independent appraiser as of the date of the
sale; and (c) the Account pays no commissions or other expenses
relating to the sale.
Summary of Facts and Representations
1. The Plan is a profit sharing plan established by Carolina OB-GYN
Care, P.A. (the Employer) and has 22 participants, including Dr.
Montgomery. Dr. Montgomery is an employee of the Employer and one of
the three trustees of the Plan. The Plan provides for individually
directed accounts. As of December 31, 1994, the Plan had assets of
$1,522,158.33. As of that date, Dr. Montgomery's Account in the Plan
had assets of $30,053.38.
2. The Property, located at 7660 Blue House Lane, Edisto Island,
South Carolina, is a parcel of unimproved real estate. The Property is
a water-oriented site in a small private community near Edisto Beach.
The applicant represents that the Property is not adjacent to, nor
close to, any other real property owned by Dr. Montgomery. The Property
was acquired by the Account from C.C. Hice, an unrelated third party,
on September 9, 1994 for a purchase price of $116,000.3 The
purchase was financed one-hundred percent by a loan from Spartanburg
National Bank of Spartanburg, South Carolina, an unrelated third party.
Neither Dr. Montgomery, nor the Employer, nor anyone else, including
other parties in interest with respect to the Plan, provided any
guaranty or separate security with respect to the loan. The applicant
represents that all expenses relating to the Property since its
acquisition have been paid by the Account, including taxes, insurance,
and fees, a total of $4,256. The applicant represents that the Property
has not been used by anyone, including parties in interest with respect
to the Plan, at any time since its acquisition and that the Property
has produced no income for the Account.
3 The Department expresses no opinion herein on whether
the acquisition and holding of the Property by Dr. Montgomery's
Account in the Plan violated any of the provisions of Part 4 of
Title I in the Act.
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3. The Property was appraised by Judith A. Wallis and Barnard R.
Jackson SRA of Appraisal Consultants, Inc., who are qualified
independent appraisers certified in the State of South Carolina.
Relying on the market data approach, Ms. Wallis and Mr. Jackson
estimated that the fair market value of the Property as of September
21, 1994 was $120,000. The appraisal states that the Property is one of
a very limited number of sites on Edisto Island having access to deep
water, that water-oriented sites have historically experienced
increases in property values, and that a review of sales occurring in
the subject community over the past several years in fact indicates
appreciating property values.
4. Dr. Montgomery proposes to purchase the Property from his own
Account for an amount which is the greater of $120,000, or the fair
market value of the Property as of the date of the sale, based on an
updated independent appraisal. The applicant represents that the
Property was originally purchased by the Account solely for investment
purposes in light of the Property's significant appreciation potential
and that personal motives were not involved. Due to a distinct and
abrupt change in his career plans, which consists of plans to slow down
and move to the Carolina coast, Dr. Montgomery now desires to purchase
the Property himself in order to build a personal residence for use in
his retirement. In addition, the applicant represents that the
exemption will be in the interests of the Account because it will
convert a currently non-income producing, illiquid asset into liquid
assets which could then be subject to professional management and will
also allow for greater diversification of the assets of the Account.
Under the terms of the proposed purchase agreement, Dr. Montgomery
will assume the Account's current indebtedness to Spartanburg National
Bank (approximately $116,000 as of June 16, 1995) and make a cash
payment to the Account for the balance of the purchase price. The
Account will pay no commissions or other expenses relating to the sale.
5. In summary, the applicant represents that the proposed
transaction satisfies the statutory criteria for an exemption under
section 408(a) of the Act for the following reasons:
(a) The price paid by the applicant will be the greater of
$120,000, or the fair market value of the Property as of the date of
the sale as determined by a qualified, independent appraiser; (b) the
Account will pay no commissions or other expenses relating to the sale;
(c) the sale will enhance the liquidity and diversification of the
assets of the Account; and (d) Dr. Montgomery is the only participant
of the Plan that would be affected by the proposed transaction.
Notice to Interested Persons
Because the only Plan assets involved in the proposed transaction
are those in
[[Page 49426]]
Dr. Montgomery's Account, and he is the only participant affected by
the proposed transaction, it has been determined that there is no need
to distribute the notice of proposed exemption to interested persons.
Comments and requests for a hearing on the proposed exemption are due
30 days after the date of publication of this notice in the Federal
Register.
For Further Information Contact: Karin Weng of the Department,
telephone (202) 219-8881. (This is not a toll-free number.)
Rea Magnet Wire Company, Inc. Employees' Retirement Savings Plan (the
Savings Plan) and Rea Magnet Wire Company, Inc. Union Employees'
Retirement Savings Plan (the Union Plan; together, the Plans) Located
in Fort Wayne, Indiana
[Application Nos. D-10075 and D-10076]
Proposed Exemption
The Department is considering granting an exemption under the
authority of section 408(a) of the Act and section 4975(c)(2) of the
Code and in accordance with the procedures set forth in 29 CFR Part
2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption
is granted, the restrictions of sections 406(a), 406(b)(1) and (b)(2)
of the Act and the sanctions resulting from the application of section
4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the
Code, shall not apply to the proposed sale by the Plans of two
guaranteed investment contracts (the GICs) of Confederation Life
Insurance Company (CL) to Rea Magnet Wire Company, Inc. (Rea), a party
in interest with respect to the Plans, provided the following
conditions are satisfied: (a) The sale is a one-time transaction for
cash; (b) the Plans will receive no less than the fair market value of
the GICs as of the date of the sale; and (c) the purchase price will be
not less than the GICs' accumulated book values at their maturity date
(defined as total deposits plus interest accrued but unpaid at the
GICs' stated rates of interest through the date of maturity, less
withdrawals) plus interest from the date of maturity through the date
of the sale at the rate then being earned under the Plans' ``GIC/Stable
Value Fund''.
Summary of Facts and Representations
1. Rea is a corporation organized and existing under the laws of
the State of Delaware which is in the business of manufacturing wire in
various diameters. Rea established the Plans effective May 1, 1986.
Both Plans are employee pension plans that are intended to be qualified
under section 401(a) of the Code. The Savings Plan currently has
approximately 388 participants and beneficiaries and has assets with an
approximate aggregate fair market value of $17,386,332. The Union Plan
currently has approximately 136 participants and beneficiaries and has
assets with an approximate fair market value of $2,453,598.
2. Rea established a Master Trust effective May 1, 1986, with
Summit Bank, now called NBD Bank, N.A., as trustee to hold the assets
of the Plans. Effective July 1, 1994, Invesco Trust Company (Invesco)
succeeded NBD Bank, N.A. as trustee of the Master Trust.
3. Investments of funds contributed to the Plans are made by
Invesco as directed by participants in accordance with the Plans'
provisions. Since July 1, 1994, the Plans have provided five investment
options: (a) A ``GIC/Stable Value Fund'' which invests primarily in
pooled GIC Funds, and also purchases individual GICs, seeking to
provide a consistent level of income growth; (b) A ``Select Income
Fund'' which invests at least 50% of fund assets in corporate bonds,
generally rated BBB or better, with long-term capital growth being its
primary objective; (c) A ``Total Return Fund'' which invests at least
30% of fund assets in common stock and 30% in fixed and variable income
securities, with the remaining 40% allocated between stocks and bonds
with income and long-term capital growth being its primary objective;
(d) An ``Industrial Income Fund'' which invests primarily in the common
stock of U.S. companies, convertible bonds and preferred stocks with
its primary objective being long-term capital growth; and (e) A
``Dynamics Fund'' which invests primarily in the stock of rapidly
growing companies that are traded on national and over-the-counter
exchanges with an emphasis on long-term capital growth.
4. Under the terms of each of the Plans, the participants have
withdrawal and transfer rights with respect to their accounts
(Withdrawal Events). Circumstances triggering Withdrawal Events
include: severance from service, disability, retirement, death,
hardship and the transfer of funds to other investment options
available under the Plans.
5. On February 2, 1990, CL issued the GICs to the Plans. CL GIC
#62050 was acquired for an initial deposit amount of $750,000, and CL
GIC #62051 was acquired for an initial deposit of $250,000. As the
Investment Manager of the Plans, Summit Bank researched, selected and
purchased the CL GICs which at the time of purchase had a Standard &
Poors rating of AA.4 Both GICs had an expiration date of February
1, 1995, and had a guaranteed rate of interest of 9.18%. Both GICs
provided for the payment of interest annually on the anniversary of the
GIC's effective date, February 2, 1990. All interest payments due under
the GICs were received by the Plans through February, 1994.
4 The Department notes that the decisions to acquire and
hold the GICs are governed by the fiduciary responsibility
requirements of Part 4, Subtitle B, Title I of the Act. In this
regard, the Department is not proposing relief for any violations of
Part 4 which may have arisen as a result of the acquisition and
holding of the GICs issued by CL.
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6. On August 12, 1994, the Ingham County Circuit Court, Lansing,
Michigan placed CL in conservatorship and rehabilitation, causing CL to
suspend all payments on its contracts, including the GICs. Rea
represents that it is not known whether, when, or under what
circumstances CL will resume interest payments under the terms of the
GICs or whether it will be able to pay the full amounts which were due
under the GICs upon their maturity.
7. In order to eliminate the risk associated with continued
investment in the GICs and to allow the Plans to distribute or
otherwise invest the assets of the Plan in more stable investments that
produce a return to the Plans, Rea proposes to purchase the GICs from
the Plans. While section 3.04 of each of the GICs provides that the
GICs may not be assigned, Rea represents that it is negotiating with CL
to obtain a waiver of this assignment restriction. Rea represents that
the sale would be in the best interest of the Plans and their
participants and beneficiaries. Invesco has also represented that the
proposed sale is appropriate for the Plans, in the best interest of the
participants and beneficiaries of the Plans, and protective of their
rights.
8. Rea represents that the sale would be a one-time transaction for
cash and the Plans would not incur any expenses from the sale, nor
experience any loss. Rea also states that the Plans would receive as
consideration for the sale the greater of either the fair market value
of the GICs as determined by Invesco on the date of the sale, or the
accumulated book values of the GICs as of February 1, 1995, their
maturity dates, plus interest through the date of sale at the rate then
being earned under the Plans' ``GIC/Stable Value Fund''.
9. In summary, the applicant represents that the proposed
transaction satisfies the criteria of section 408(a) of the Act
because: (a) The sale is a one-
[[Page 49427]]
time transaction for cash; (b) the proposed transaction will enable the
Plans and their participants and beneficiaries to avoid any risks
associated with the continued holding of the GICs; (c) each Plan will
receive the greater of the fair market value of its GIC as determined
on the date of sale by Invesco, the Plans' independent trustee, or the
accumulated book value of the GIC on the date of maturity, plus
interest through the date of sale at the rate then being earned under
the Plans' ``GIC/Stable Value Fund''; and (d) Invesco has determined
that the proposed transaction is in the best interest of the
participants and beneficiaries of the Plans and protective of their
rights.
For Further Information Contact: Gary H. Lefkowitz of the Department,
telephone (202) 219-8881. (This is not a toll-free number.)
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under section 408(a) of the Act and/or section 4975(c)(2) of the Code
does not relieve a fiduciary or other party in interest of disqualified
person from certain other provisions of the Act and/or the Code,
including any prohibited transaction provisions to which the exemption
does not apply and the general fiduciary responsibility provisions of
section 404 of the Act, which among other things require a fiduciary to
discharge his duties respecting the plan solely in the interest of the
participants and beneficiaries of the plan and in a prudent fashion in
accordance with section 404(a)(1)(b) of the act; nor does it affect the
requirement of section 401(a) of the Code that the plan must operate
for the exclusive benefit of the employees of the employer maintaining
the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the
Act and/or section 4975(c)(2) of the Code, the Department must find
that the exemption is administratively feasible, in the interests of
the plan and of its participants and beneficiaries and protective of
the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to,
and not in derogation of, any other provisions of the Act and/or the
Code, including statutory or administrative exemptions and transitional
rules. Furthermore, the fact that a transaction is subject to an
administrative or statutory exemption is not dispositive of whether the
transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the
express condition that the material facts and representations contained
in each application are true and complete, and that each application
accurately describes all material terms of the transaction which is the
subject of the exemption.
Signed at Washington, DC, this 19th day of September 1995.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits
Administration, U.S. Department of Labor.
[FR Doc. 95-23582 Filed 9-22-95; 8:45 am]
BILLING CODE 4510-29-P
