Pendency of Request For Exemption From the Bond/Escrow Requirement Relating to the Sale of Assets by An Employer Who Contributes to a Multiemployer Plan; Tuscan Dairy Farms, Inc.

PENSION BENEFIT GUARANTY CORPORATION

Pendency of Request For Exemption From the Bond/Escrow

Requirement Relating to the Sale of Assets by An Employer Who

Contributes to a Multiemployer Plan; Tuscan Dairy Farms, Inc.

Agency: Pension Benefit Guaranty Corporation.

Action: Notice of pendency of request.

-----------------------------------------------------------------------

SUMMARY: This notice advises interested persons that the Pension

Benefit Guaranty Corporation has received a request from Tuscan Dairy

Farms, Inc. (``Tuscan'') for an exemption from the bond/escrow

requirement of section 4204(a)(1)(B) of the Employee Retirement Income

Security Act of 1974, as amended, with respect to the Local 584 Pension

Trust Fund, in connection with Tuscan's purchase of certain assets from

American Farms, Inc., Progressive Milk Co., Ltd. and 339 Milk, Inc.

Section 4204(a)(1) provides that the sale of assets by an employer that

contributes to a multiemployer pension plan will not result in a

complete or partial withdrawal from the plan if certain conditions are

met. One of these conditions is that the purchaser post a bond or

deposit money in escrow for the five-plan-year period beginning after

the sale. The PBGC is authorized to grant individual and class

exemptions from this requirement. Before granting an exemption the PBGC

is required to give interested persons an opportunity to comment on the

exemption request. The purpose of this notice is to advise interested

persons of the exemption request and solicit their views on it.

DATES: Comments must be submitted on or before September 9, 1996.

ADDRESSES: All written comments (at least three copies) should be

addressed to: Pension Benefit Guaranty Corporation, Office of the

General Counsel, 1200 K Street, N.W., Washington, D.C. 20005-4026, or

hand-delivered to Suite 340 at the above address between 9:00 a.m. and

4:00 p.m., Monday through Friday. The non-confidential portions of the

request for an exemption and the comments received will be available

for public inspection at the PBGC Communications and Public Affairs

Department, Suite 240, at the above address, between the hours of 9:00

a.m. and 4:00 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Karen L. Morris, Office of the General

Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, N.W.,

Washington, D.C. 20005-4026; telephone 202-326-4127 (202-326-4179 for

TTY and TDD). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

Background

Section 4204 of the Employee Retirement Income Security Act of

1974, as amended by the Multiemployer Pension Plan Amendments Act of

1980 (``ERISA'' or the ``Act''), provides that a bona fide arm's-length

sale of assets of a contributing employer to an unrelated party will

not be considered a withdrawal if three conditions are met. These

conditions, enumerated in section 4204(a)(1) (A)-(C), are that--

(A) the purchaser has an obligation to contribute to the plan with

respect to the operations for substantially the same number of

contribution base units for which the seller was obligated to

contribute;

(B) the purchaser obtains a bond or places an amount in escrow, for

a period of five plan years after the sale, in an amount equal to the

greater of the seller's average required annual contribution to the

plan for the three plan years preceding the year in which the sale

occurred or the seller's required annual contribution for the plan year

preceding the year in which the sale occurred (the amount of the bond

or escrow is doubled if the plan is in reorganization in the year in

which the sale occurred); and

(C) the contract of sale provides that if the purchaser withdraws

from the plan within the first five plan years beginning after the sale

and fails to pay any of its liability to the plan, the seller shall be

secondarily liable for the liability it (the seller) would have had but

for section 4204.

The bond or escrow described above would be paid to the plan if the

purchaser withdraws from the plan or fails to make any required

contributions to the plan within the first five plan years beginning

after the sale.

Additionally, section 4204(b)(1) provides that if a sale of assets

is covered by section 4204, the purchaser assumes by operation of law

the contribution record of the seller for the plan year in which the

sale occurred and the preceding four plan years.

Section 4204(c) of ERISA authorizes the Pension Benefit Guaranty

Corporation (``PBGC'') to grant individual or class variances or

exemptions from the purchaser's bond/escrow requirement of section

4204(a)(1)(B) when warranted. The legislative history of section 4204

indicates a Congressional intent that the sales rules be administered

in a manner that assures protection of the plan with the least

practicable intrusion into normal business transactions. Senate

Committee on Labor and Human

[[Page 38482]]

Resources, 96th Cong., 2nd Sess., S.1076, The Multiemployer Pension

Plan Amendments Act of 1980: Summary and Analysis of Considerations 16

(Comm. Print, April 1980); 128 Cong. Rec. S10117 (July 29, 1980). The

granting of an exemption or variance from the bond/escrow requirement

does not constitute a finding by the PBGC that a particular transaction

satisfies the other requirements of section 4204(a)(1). Such questions

are to be decided by the plan sponsor in the first instance, and any

disputes are to be resolved in arbitration. 29 U.S.C. Sections 1382,

1399, 1401.

Under the PBGC's regulation on variances for sales of assets (29

CFR Part 2643), a request for a variance or waiver of the bond/escrow

requirement under any of the tests established in the regulation (29

CFR 2643.12-2643.14) is to be made to the plan in question. The PBGC

will consider waiver requests only when the request is not based on

satisfaction of one of the four regulatory tests or when the parties

assert that the financial information necessary to show satisfaction of

one of the regulatory tests is privileged or confidential financial

information within the meaning of 5 U.S.C. section 552(b)(4) of the

Freedom of Information Act.

Under section 2643.3 of the regulation, the PBGC shall approve a

request for a variance or exemption if it determines that approval of

the request is warranted, in that it--

(1) would more effectively or equitably carry out the purposes of

Title IV of the Act; and

(2) would not significantly increase the risk of financial loss to

the plan.

Section 4204(c) of ERISA and section 2643.3(b) of the regulation

require the PBGC to publish a notice of the pendency of a request for a

variance or exemption in the Federal Register, and to provide

interested parties with an opportunity to comment on the proposed

variance or exemption.

The Request

The PBGC has received a request from Tuscan Dairy Farms, Inc. (the

``Purchaser''), for an exemption from the bond/escrow requirement of

section 4204(a)(1)(B) with respect to its purchase of certain assets of

American Farms, Inc., Progressive Milk Co., Ltd., and 339 Milk, Inc.

(the ``Sellers''). In support of the request, the Purchaser represents

among other things that:

1. On August 18, 1995, the Purchaser acquired certain assets of the

Sellers.

2. The Sellers were obligated to contribute to the Local 584

Pension Trust Fund (the ``Plan'') for certain employees at operations

subject to the sale.

3. The Purchaser is required to contribute to the Plan for

substantially the same number of contribution base units with respect

to employees of the Sellers who work at operations subject to the sale.

4. The Sellers have agreed to be secondarily liable for any

withdrawal liability they would have had with respect to the sold

operations (if not for section 4204) should the Purchaser withdraw from

the Plan within the five plan years following the sale and fail to pay

its withdrawal liability.

5. The Purchaser has agreed to provide a bond to the Fund in

compliance with 4204(a)(1)(B), while reserving the right to seek a

variance.

6. The estimated amount of the unfunded vested benefits allocable

to the Sellers with respect to the operations subject to the sale is

$177,657. The Purchaser does not have an estimate of the unfunded

vested benefits allocable to it for its other operations covered under

the Plan.

7. The amount of the bond/escrow that would be required under

section 4204(a)(1)(B) of ERISA is approximately $123,905.

8. The Purchaser submitted a financial statement showing the amount

of its net tangible assets. The Purchaser asserted that even though it

does not have an estimate of the unfunded vested benefits allocable to

its other operations, even if the total unfunded vested benefits of the

Fund were allocated to those other operations, Purchaser's net tangible

assets exceed the sum of the unfunded vested benefits allocable to the

Sellers and the maximum amount that could be allocable to its other

operations. The Purchaser has requested confidential treatment of its

financial statements on the ground that they are confidential within

the meaning of 5 U.S.C. section 552.

9. The Purchaser has sent by certified mail, return receipt

requested, a complete copy of the request, excluding the agreements

between the Seller and Purchaser, certain exhibits, financial

statements of the Purchaser, and certain financial data recited in the

request, to the Plan, counsel to the Plan, and to the collective

bargaining representative of the Sellers' employees.

Comments

All interested persons are invited to submit written comments on

the pending exemption request to the above address. All comments will

be made a part of the record. Comments received, as well as the

relevant non-confidential information submitted in support of the

request, will be available for public inspection at the address set

forth above.

Issued at Washington, D.C., on this 16th day of July, 1996.

Martin Slate,

Executive Director.

[FR Doc. 96-18653 Filed 7-23-96; 8:45 am]

BILLING CODE 7708-01-P