Federal Register / Vol. 74, No. 243 / Monday, December 21, 2009 / Notices 67925 

Mine: No. 58 Mine, MSHA I.D. No. 

46–08884, located in McDowell County, 

West Virginia. 

Regulation Affected: 30 CFR 75.1101– 

1(b) (Type and quality of firefighting 

equipment). 

Modification Request: The petitioner 

requests a modification of the existing 

standard to permit weekly inspection 

and functional testing of its complete 

deluge-type water spray system and 

removal of blow-off dust cover from the 

nozzles. The petitioner states that the 

results of the examination and 

functional test and any malfunction or 

clogged nozzle detected, will be 

recorded in a book and maintained on 

the surface for that purpose. The 

petitioner states that the record will be 

retained at the mine for one year. The 

petitioner further states that: (1) Blowoff dust covers are currently provided 

for each nozzle; (2) in view of frequent 

inspections and functional testing of the 

system, the dust covers are not 

necessary because nozzles can be 

maintained in an unclogged condition 

through weekly use; and (3) it is 

burdensome to recap the large number 

of covers weekly after each inspection 

and functional test. The petitioner 

asserts that the alternative method will 

at all times guarantee no less than the 

same measure of protection afforded the 

miners employed at the No. 58 Mine by 

the existing standard. 

Dated: December 15, 2009. 

Patricia W. Silvey, 

Director, Office of Standards, Regulations and 

Variances. 

[FR Doc. E9–30159 Filed 12–18–09; 8:45 am] 

BILLING CODE 4510–43–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Prohibited Transaction Exemptions 

and Grant of Individual Exemptions 

Involving: 2009–33, Cotter 

Merchandise Storage Company 

Defined Benefit Pension Plan (the 

Plan), D–11423; and 2009–34, Unaka 

Company Incorporated Employees 

Profit Sharing Plan (the Plan), D–11445 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of individual exemptions. 

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. 

Exemption 

The restrictions of sections 406(a), 

406(b) 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 (1) the 

proposed sale by the Plan to the Cotter 

Merchandise Storage Company (Cotter 

or the Applicant), the Plan sponsor and 

a party in interest with respect to the 

Plan, of certain promissory notes (the 

Notes) which are currently held by the 

Plan; and (2) the assignment, by the 

Plan to Cotter, of a civil judgment (the 

Judgment) against the Plan’s former 

trustee, Robert Geib (Mr. Geib). 

This exemption is subject to the 

following conditions: 

(a) The terms and conditions of the 

proposed sale transaction are at least as 

favorable to the Plan as those that the 

Plan could obtain in an arm’s length 

transaction with an unrelated party; 

(b) As consideration for the Notes, the 

Plan receives either (1) the greater of 

$372,197 or (2) the fair market of the 

Notes (based upon the value of the 

Plan’s proportionate share of Mr. Geib’s 

ownership interest in Cotter common 

stock), as determined by a qualified, 

independent appraiser on the date of the 

sale transaction; 

(c) The proposed sale is a one-time 

transaction for cash; 

(d) The Plan pays no fees, 

commissions, costs or other expenses in 

connection with the proposed sale; 

(e) Cotter pays the Plan all future 

recoveries resulting from the Judgment; 

and 

(f) An independent fiduciary 

(1) determines that the sale is an 

appropriate transaction for the Plan and 

is in the best interests of the Plan and 

its participants and beneficiaries; (2) 

monitors the sale on behalf of the Plan; 

and (3) ensures that the Plan receives all 

future recoveries resulting from the 

Judgment. 

Written Comments 

In the notice of proposed exemption 

(the Notice), the Department invited all 

interested persons to submit written 

comments and requests for a hearing 

within 35 days from the date of 

publication of the Notice in the Federal 

Register. All comments and requests for 

a hearing were due by October 30, 2009. 

During the comment period, the 

Department received no requests for a 

hearing. The Department did, however, 

receive a comment letter from the 

Applicant, dated October 6, 2009, 

concerning Conditions (e) and (f)(3) of 

the Notice. Condition (e) requires that 

Cotter pay the Plan all future recoveries 

resulting from the Judgment. Condition 

(f)(3) requires the independent fiduciary 

to ensure that the Plan receives all 

future recoveries from the Judgment. 

The Applicant explains that once it 

obtains the Notes from the Plan, it will 

seize the underlying common stock 

collateralizing the Notes that is 

currently owned by Mr. Geib. The 

Applicant represents that the seized 

Cotter stock will be retired as Treasury 

stock. As a result, the retirement of the 

seized Cotter stock will not give rise to 

any cash recoveries. 


erowe on DSK5CLS3C1PROD with NOTICES
67926 Federal Register / Vol. 74, No. 243 / Monday, December 21, 2009 / Notices 

1Unless otherwise noted herein, reference to 

specific provisions of the Act refer also to the 

corresponding provisions of the Code. 

The Applicant believes that the 

aforementioned conditions of the Notice 

should be amended to clarify that it will 

apply only to future cash recoveries that 

may arise from the Judgment. Therefore, 

the Applicant has revised Conditions (e) 

and (f)(3) of the final exemption to read 

as follows: 

(e) Cotter pays the Plan future cash 

recoveries, if any, resulting from the 

Judgment; and * * * 

(f)(3) [The independent fiduciary] ensures 

that the Plan receives all future cash 

recoveries, if any, resulting from the 

Judgment. 

The Department does not concur with 

the Applicant’s comment. Therefore, it 

has not revised Conditions (e) and (f)(3) 

of the operative language. Although the 

Department is aware of Mr. Geib’s 

financial circumstances, it wishes to 

emphasize that to the extent Cotter 

recovers any consideration (either in 

cash or in kind) resulting from the 

Judgment, that such consideration 

should be paid to the Plan. 

After giving full consideration to the 

entire record, the Department has 

decided to grant the exemption. The 

complete application file is made 

available for public inspection in the 

Public Disclosure Room of the 

Employee Benefits Security 

Administration, Room N–1513, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

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 

September 25, 2009 at 74 FR 49025. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Anh-Viet Ly of the Department at (202) 

693–8648. (This is not a toll-free 

number.) 

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,1 by reason 

of section 4975(c)(1)(A) through (E) of 

the Code, shall not apply to the 

proposed sale by the Plan (the Sale) to 

Unaka Company Incorporated (Unaka), 

a party in interest with respect to the 

Plan, of two promissory notes (the 

Notes) that are secured by deeds of trust 

on certain parcels of real property. 

This exemption is subject to the 

following conditions: 

(a) The Sale is a one-time transaction 

for cash; 

(b) As consideration, the Plan receives 

the greater of the current outstanding 

balance of the Notes, plus all accrued 

but unpaid interest to the date of the 

Sale (Sale Date), or the fair market value 

of the Notes as determined by qualified, 

independent appraisers in updated 

appraisals on the Sale Date. 

(c) The Plan pays no commissions, 

costs, fees, or other expenses with 

respect to the Sale; and 

(d) As soon as it is feasible following 

the Sale, the Plan releases the deeds of 

trust securing the Notes. 

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 

September 25, 2009 at 74 FR 49029. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Anh-Viet Ly of the Department at (202) 

693–8648. (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 15th day of 

December 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–30263 Filed 12–18–09; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–70,295] 

Ultimizers, Inc., Boring, OR; Notice of 

Revised Determination on 

Reconsideration 

By application dated September 21, 

2009, a company official requested 

administrative reconsideration of the 

Department’s negative determination 

regarding eligibility for workers and 

former workers of Ultimizers, Inc., 

Boring, Oregon (subject firm) to apply 

for Trade Adjustment Assistance (TAA). 

The Department’s Notice of Affirmative 

Determination Regarding Application 

for Reconsideration was signed on 

October 15, 2009, and published in the 

Federal Register on October 27, 2009 

(74 FR 55261). 

The initial investigation resulted in a 

negative determination issued on 

September 9, 2009, was based on the 

finding that imports of optimizing 

lumber cut-off saws, feeders, sorters and 

scanners did not contribute importantly 

to worker separations at the subject firm 

and no shift in production to a foreign 

source occurred. 

To support the request for 

reconsideration, the petitioner supplied 

additional information regarding lost 

bids by the subject firm during the 

relevant period. The Department of 

Labor conducted a bid survey of the 

domestic firms to which the subject 

facility was the lowest domestic bidder. 

The results of the survey revealed that 

the bids were awarded to foreign 

producers. The loss of these contracts 

contributed importantly to the declines 

in sales and employment at the subject 

firm. The investigation further revealed 

that sales, production and employment 

at the subject firm declined during the 

relevant period. 

Conclusion 

After careful review of the additional 

facts obtained on reconsideration, I 

determine that workers of Ultimizers, 

Inc., Boring, Oregon, who are engaged in 

activities related to the production of 

parts feeding and assembly equipment 

meet the worker group certification 


erowe on DSK5CLS3C1PROD with NOTICES