[Federal Register: February 25, 2009 (Volume 74, Number 36)]
[Notices]               
[Page 8570-8571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe09-92]                         

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

 
Prohibited Transaction Exemptions and Grant of Individual 
Exemptions involving: D-11428, Heico Holding Inc. Pension Plan (the 
Plan), 2009-04; D-11450, Brewster Dairy, Inc. 401(k) Profit Sharing 
Plan (the Plan)

AGENCY: Employee Benefits Security 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 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
    A notice was published in the Federal Register of the pendency 
before the Department of a proposal to grant such exemption. The notice 
set forth a summary of facts and representations contained in the 
application for exemption and referred interested persons to the 
application for a complete statement of the facts and representations. 
The application has been available for public inspection at the 
Department in Washington, DC. The notice also invited interested 
persons to submit comments on the requested exemption to the 
Department. In addition the notice stated that any interested person 
might submit a written request that a public hearing be held (where 
appropriate). The applicant has represented that it has complied with 
the requirements of the notification to interested persons. No requests 
for a hearing were received by the Department. Public comments were 
received by the Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), 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 exemption is administratively feasible;
    (b) The exemption is in the interests of the plan and its 
participants and beneficiaries; and
    (c) The exemption is protective of the rights of the participants 
and beneficiaries of the plan.

Heico Holding Inc. Pension Plan (the Plan), Located in Downers Grove, 
IL

[Prohibited Transaction Exemption 2009-04; Exemption Application 
Number: D-11428]

Exemption

    The restrictions of section 406(a)(1)(A) and (D), and section 
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), (D), and (E) of the Code, shall not apply to the sale by 
the Plan of a non-marketable limited partnership interest (the 
Interest) in Trident Equity Fund, II, L.P. (the Partnership) to Heico 
Holding Inc. (the Applicant), 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 Plan pays no commissions, fees or other expenses in 
connection with the sale;
    (c) The terms and conditions of the sale are at least as favorable 
as those obtainable in an arm's length transaction with an unrelated 
third party;
    (d) As a result of the sale, the Plan receives the greater of: (i) 
$1,050,000; (ii) The value of the Interest as determined by the General 
Partner of the Partnership and reported on the most recent quarterly 
account statements of the Partnership available at the time of the 
sale; (iii) The fair market value of the Interest as determined on the 
date of the sale by a qualified, independent appraiser; or (iv) The 
total amount of the Plan's contributions to the Partnership made on or 
after January 21, 2005 (i.e., the Plan's investment cost basis in the 
Interest); and
    (e) Upon Plan termination, it is determined that the Plan is 
overfunded.
    For a complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the Notice of

[[Page 8571]]

Proposed Exemption published on November 20, 2008 at 73 FR 70372.
    For Further Information Contact: Mr. Mark Judge of the Department, 
telephone (202) 693-8339. (This is not a toll-free number.)

Brewster Dairy, Inc. 401(k) Profit Sharing Plan (the Plan), Located in 
Brewster, OH

[Prohibited Transaction Exemption 2009-05; Exemption Application No. D-
11450]

Exemption

    The restrictions of sections 406(a)(1)(A) and (D), 406(b)(1) and 
(b)(2) of the Act, and the sanctions resulting from the application of 
section 4975(a) and (b) of the Code, by reason of section 
4975(c)(1)(A), (D) and (E) of the Code, shall not apply to the November 
18, 2008 sale (the Sale) by the Plan of 2.5 limited partnership units 
(the Units) in the Heartland California Clayton Limited Partnership 
(the Partnership) to Brewster Dairy, Inc. (Brewster), the Plan's 
sponsor and a party in interest with respect to the Plan, for the 
greater of: (1) $57,000; (2) the net proceeds for the Units in the 
event the Partnership sells its real estate (the Property) to a third 
party; or (3) the net proceeds from foreclosure for the Units in the 
event the Property is foreclosed to pay back real estate taxes, 
provided the following conditions are satisfied:
    (a) The Sale of the Units was a one-time transaction for cash;
    (b) The Plan paid no commissions, fees or other expenses in 
connection with the Sale;
    (c) The terms of the transaction were at least as favorable to the 
Plan as those the Plan could obtain in a similar transaction with an 
unrelated party;
    (d) The fair market value of the Units on the date of the Sale was 
determined by a qualified independent appraiser;
    (e) The Plan fiduciaries determined whether it was in the best 
interest of the Plan to go forward with the Sale, reviewed and approved 
the methodology used in the appraisal that was relied upon, and ensured 
that the methodology was applied by a qualified, independent appraiser 
in determining the fair market value of the Units as of the date of the 
Sale; and
    (f) The proceeds from the Sale of the Units to Brewster will be 
allocated only to the participants who are defined in the Consent Order 
and Judgment (File No. 5:98CV744, July 1, 1999) entered by the United 
States District Court for the Northern District of Ohio Eastern 
Division (the Court).
    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 (the Notice) published on November 20, 
2008 at 73 FR 70375.
    Effective Date: This exemption is effective November 18, 2008.
    Written Comments and Hearing Requests: The Department received one 
written comment and no hearing requests with respect to the Notice. The 
one comment letter was submitted by Brewster. In its letter, Brewster 
informed the Department that the subject Sale of the 2.5 Units was 
consummated on November 18, 2008, and Brewster requested that the 
exemption be made retroactive to that date. The Sale price was $57,000. 
Brewster represented that the transaction had to be completed prior to 
the granting of the exemption by the Department to facilitate the sale 
of the Property by the Partnership's General Partners prior to the 
county filing a foreclosure action for real estate taxes unpaid by the 
Partnership. Brewster further represented that it will follow the terms 
of the Notice in all matters including allocation and adjustment of the 
purchase price if the Units previously owned by the Plan are sold by 
Brewster for more than $57,000 (or bring more than $57,000 in proceeds 
from foreclosure).
    The Department has considered, the entire record, including the 
comment letter submitted by Brewster and has determined that the 
subject transaction satisfied the criteria of section 408(a) of the Act 
on the date of the transaction. Accordingly, the Department herein 
grants the exemption, effective November 18, 2008.
    For Further Information Contact: Gary H. Lefkowitz of the 
Department, telephone (202) 693-8546. (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 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) This exemption is 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 this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 19th day of February, 2009.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
 [FR Doc. E9-3998 Filed 2-24-09; 8:45 am]

BILLING CODE 4510-29-P