Grant of Individual Exemptions; Hanson Operating Company, et al.

DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Prohibited Transaction Exemption 99-26; Exemption Application No. D-

10702, et al.]

Grant of Individual Exemptions; Hanson Operating Company, et al.

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Grant of Individual Exemptions.

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SUMMARY: This document contains exemptions issued by the Department of

Labor (the Department) from certain of the prohibited transaction

restrictions of the Employee Retirement Income Security Act of 1974

(the Act) and/or the Internal Revenue Code of 1986 (the Code).

Notices were published in the Federal Register of the pendency

before the Department of proposals to grant such exemptions. The

notices set forth a summary of facts and representations contained in

each application for exemption and referred interested persons to the

respective applications for a complete statement of the facts and

representations. The applications have been available for public

inspection at the Department in Washington, DC. The notices also

invited interested persons to submit comments on the requested

exemptions to the Department. In addition the notices stated that any

interested person might submit a written request that a public hearing

be held (where appropriate). The applicants have represented that they

have complied with the requirements of the notification to interested

persons. No public comments and no requests for a hearing, unless

otherwise stated, were received by the Department.

The notices of proposed exemption were issued and the exemptions

are being granted solely by the Department because, 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 proposed to the Secretary

of Labor.

Statutory Findings

In accordance with section 408(a) of the Act and/or section

4975(c)(2) of the Code and the procedures set forth in 29 CFR Part

2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon

the entire record, the Department makes the following findings:

(a) The exemptions are administratively feasible;

(b) They are in the interests of the plans and their participants

and beneficiaries; and

(c) They are protective of the rights of the participants and

beneficiaries of the plans.

Hanson Operating Company, Inc., Defined Benefit Pension Plan (the

Plan), Located in Roswell, New Mexico

[Prohibited Transaction Exemption 99-26; Exemption Application No. D-

10702]

Exemption

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 Plan of certain closely-

held stock (the Stock) to Douglas L. McBride and Basil R. Willis,

parties in interest with respect to the Plan, provided that the

following conditions are satisfied: (a) The sale is a one-time

transaction for cash; (b) the Plan pays no commissions nor other

expenses relating to the sale; and (c) the Plan receives an amount that

is no less than the fair market value of the Stock as of

[[Page 38481]]

the date of the sale, as determined by a qualified, independent

appraiser.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on April 22, 1999 at 64 FR

19815.

Written Comments

The Department received no written comments or requests for a

public hearing with respect to the notice of proposed exemption (the

Notice). However, the applicants informed the Department that they

inadvertently failed to inform interested persons of the deadline for

making written comments or requests for a public hearing with respect

to the Notice, which was provided by personal delivery. The applicants

state that, therefore, an additional memorandum extending the comment

period to June 20, 1999 was circulated by personal delivery to all

interested persons.

The Department believes that the required procedure for notifying

interested persons was satisfied. Accordingly, based upon the

information contained in the entire record, the Department has

determined to grant the exemption as proposed.

FOR FURTHER INFORMATION CONTACT: Ms. Karin Weng of the Department,

telephone (202) 219-8881. (This is not a toll-free number.)

Western Petroleum Company Profit Sharing Plan (the Plan), Located

in Eden Prairie, Minnesota

[Prohibited Transaction Exemption 99-27; Exemption Application No. D-

10743]

Exemption

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 individual account (the

Account) of James W. Emison in the Plan of certain closely-held stock

(the Stock) to Mr. Emison, a party in interest with respect to the

Plan, provided that the following conditions are satisfied: (a) the

sale is a one-time transaction for cash; (b) the Account pays no

commissions nor other expenses relating to the sale; and (c) the

Account receives an amount that is no less than the fair market value

of the Stock as of the date of the sale, as determined by a qualified,

independent appraiser.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on May 27, 1999 at 64 FR

28836.

FOR FURTHER INFORMATION CONTACT: Ms. Karin Weng of the Department,

telephone (202) 219-8881. (This is not a toll-free number.)

Gaetano Lombardo Individual Retirement Account (the IRA), Located

in St. Louis, Missouri

[Prohibited Transaction Exemption 99-28; Exemption Application No. D-

10749]

Exemption

The sanctions resulting from the application of section 4975 of the

Code, by reason of section 4975(c)(1)(A) through (E) of the the Code,

shall not apply to the proposed sale by the IRA of 26,306 shares of

stock (the Stock) of Courtesy Manufacturing Company (Courtsey) to

Courtesy, a disqualified person with respect to the IRA, provided that

the following conditions are satisfied: (1) The sale of Stock by the

IRA is a one-time transaction for cash; (2) no commissions or other

expenses are paid by the IRA in connection with the sale; and (3) the

IRA receives the greater of: (a) The fair market value of the Stock as

determined by a qualified independent appraiser as of October 31, 1998,

or (b) the fair market value of the Stock as of the time of the sale.

\1\

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\1\ Pursuant to 29 CFR 2510.3-2(d), the IRA is not within the

jurisdiction of Title I of the Act. However, there is jurisdiction

under Title II of the Act pursuant to section 4975 of the Code.

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For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption refer to

the notice of proposed exemption published on June 3, 1999.

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 or disqualified

person from certain other provisions to which the exemptions 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) These exemptions are supplemental to and not in derogation of,

any other provisions of the Act and/or the Code, including statutory or

administrative exemptions and transactional 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

(3) The availability of these exemptions is subject to the express

condition that the material facts and representations contained in each

application are true and complete and accurately describe all material

terms of the transaction which is the subject of the exemption. In the

case of continuing exemption transactions, if any of the material facts

or representations described in the application change after the

exemption is granted, the exemption will cease to apply as of the date

of such change. In the event of any such change, application for a new

exemption may be made to the Department.

Signed at Washington, DC, this 12th day of July, 1999.

Ivan Strasfeld,

Director of Exemption Determinations, Pension and Welfare Benefits,

Administration, Department of Labor.

[FR Doc. 99-18122 Filed 7-15-99; 8:45 am]

BILLING CODE 4510-29-M