43082 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

1All references to specific provisions of Title I of 

the Act herein shall refer also to the corresponding 

provisions of the Code. 

for the record. Individuals with 

disabilities who need special 

accommodations should contact the 

Executive Secretary by August 12. 

Signed at Washington, DC this 17th day of 

July, 2014. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration. 

[FR Doc. 2014–17387 Filed 7–23–14; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Application No. D–11777] 

Notice of Proposed Exemption 

Involving Family Dynamics, Inc., 

Pension Plan (the Plan), Located in 

Leesburg, Florida 

AGENCY: Employee Benefits Security 

Administration, U.S. Department of 

Labor. 

ACTION: Notice of proposed individual 

exemption. 

SUMMARY: This document contains a 

notice of pendency (the Notice) before 

the Department of Labor (the 

Department) of a proposed individual 

exemption from certain prohibited 

transaction restrictions of the Employee 

Retirement Income Security Act of 1974, 

as amended, (the Act) and the Internal 

Revenue Code of 1986, as amended, (the 

Code). The proposed exemption, if 

granted, will affect the participants and 

beneficiaries of Plan participating in the 

proposed transactions and the 

fiduciaries with respect to such Plan. 

DATES: Effective Date: This proposed 

exemption, if granted, shall be effective 

with regard to the transactions 

described in Section I below for the 

period beginning on September 15, 

2011, and ending on December 28, 2012. 

This proposed exemption, if granted, 

shall be effective with regard to 

transactions described in Section III 

below beginning on the date of the 

publication in the Federal Register of 

the grant of this proposed exemption 

and ending on the last day any of the 

Subsequent Notes is held in the Plan. 

DATES: Written comments and requests 

for a public hearing on the proposed 

exemption should be submitted 

September 8, 2014. 

ADDRESSES: All written comments and/ 

or requests for a public hearing 

concerning the proposed exemption 

should be sent to the Office of 

Exemptions Determinations, Employee 

Benefits Security Administration, Room 

N–5700, U.S. Department of Labor, 200 

Constitution Avenue NW., Washington, 

DC 20210, Attention: Application No. 

D–11777. Alternatively, interested 

persons are invited to submit comments 

and/or requests for a hearing to the 

Department by email to e-oed@dol.gov 

or by facsimile at (202) 219–0204. 

Warning: Do not include any 

personally identifiable information 

(such as name, address, or other contact 

information) or confidential business 

information that you do not want 

publicly disclosed. All comments may 

be posted on the Internet and can be 

retrieved by most Internet search 

engines. 

FOR FURTHER INFORMATION CONTACT: 

Angelena C. Le Blanc, Office of 

Exemption Determinations, Employee 

Benefits Security Administration, U.S. 

Department of Labor, telephone (202) 

693–8540. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: This 

document contains a notice of proposed 

individual exemption from certain 

prohibitions described in section 406 of 

the Act and section 4975 of the Code.1

The proposed exemption has been 

requested in an application filed with 

the Department by Family Dynamics, 

Inc. (FDI), pursuant to section 408(a) of 

the Act and section 4975(c)(2) of the 

Code and in accordance with the 

procedure set forth in 29 CFR 2570, 

Subpart B (76 FR 66637, 66644, October 

27, 2011). 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. Accordingly, this 

proposed exemption is being issued 

solely by the Department. 

The application pertaining to the 

proposed exemption contains facts and 

representations with regard to the 

proposed exemption which are 

summarized below. Interested persons 

are referred to the application on file 

with the Department for a complete 

statement of the facts and 

representations. The application 

pertaining to the proposed exemption 

and the comments received will be 

available for public inspection in the 

Public Disclosure Room of the 

Employee Benefits Security 

Administration, U.S. Department of 

Labor, Room N–1513, 200 Constitution 

Avenue NW., Washington, DC 20210. 

Summary of Facts and Representations 

The Parties 

1. FDI, a Florida corporation (formerly 

known as Gregg Enterprises, Inc.), is a 

subchapter S corporation formed in 

2000 to retain certain assets and 

liabilities that were excluded from the 

sale of Florida Crushed Stone Holdings, 

Inc. and its subsidiaries (FCSH). FCSH, 

founded and owned by Mr. F. Browne 

Gregg, Sr. (Mr. Gregg, Sr.), produced 

construction aggregates, cement, silica 

sand, lime rock based materials, and 

other construction materials. 

2. In June 2000, FCSH had 

approximately 700 employees when 

FCSH was sold to Rinker Materials 

Corporation (Rinker), an unrelated third 

party. Prior to the sale of FCSH to 

Rinker, all of the stock of FCSH was 

distributed to certain shareholders. 

In connection with the closing of the 

sale transaction with Rinker, certain of 

the assets of FCSH, certain liabilities of 

FCSH, including all of the obligations of 

FCSH with respect to the Plan, as well 

as fewer than twenty (20) employees, 

were transferred to FDI, which at that 

time was established as a newly-formed 

subsidiary of FCSH. 

3. As an employer any of whose 

employees are covered by the Plan, FDI 

is a party in interest with respect to the 

Plan, pursuant to 3(14)(C) of the Act. 

FDI is also a party in interest with 

respect to the Plan, pursuant to 3(14)(A) 

of the Act, as the named fiduciary and 

Plan administrator. The stockholders of 

FDI are members of the Gregg family or 

are trusts for the benefit of certain 

members of the Gregg family. There are 

828.70 shares outstanding of FDI. The 

largest individual shareholders of FDI 

are Mrs. Gail Gregg-Strimenos (Mrs. 

Strimenos) and Mrs. Jeannie GreggEmack (Mrs. Emack), each of whom 

owns a 26.96 percent (26.96%) interest 

in FDI. Mrs. Strimenos and her sister, 

Mrs. Emack are the daughters of Mr. 

Gregg, Sr. Mrs. Strimenos serves as the 

Chairman of FDI. The remaining eight 

(8) shareholders of FDI are Gregg family 

trusts which own, in the aggregate, 

46.08 percent (46.08) of FDI. 

4. Among the assets transferred to 

FDI, and therefore not sold to Rinker in 

2000, is Family Dynamics Land 

Company, LLC (FDLC). FDLC currently 

owns property (the Property) located in 

the City of Mineola, Florida. The 

Property is FDLC’s only asset. FDLC has 

no revenues, operations, or liabilities. 

5. In 2007, FDI sold all of its equity 

interests in FDLC to Minneola AG, LLC 

(Minneola), a real estate holding 

company, in exchange for a single 

promissory note with a principal 

amount of $29,330,000. Minneola’s only 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 43083 

2While there is overlapping ownership of FDI 

and Minneola, it is represented that the ownership 

of the shareholders of FDI and the members of 

Minneola is sufficiently diverse such that the two 

companies, FDI and Minneola, are not members of 

a ‘‘control group,’’ as defined in section 407(d)(7) 

of the Act. Minneola is a party in interest with 

respect to the Plan, pursuant to 3(14)(G) of the Act, 

as 50 percent (50%) or more of the interests in 

Minneola are owned in the aggregate, directly or 

indirectly, by Mrs. Strimenos and Mrs. Emack who 

are each 10 percent (10%) or more shareholders of 

FDI, the employer. 

3For the purpose of constructing an interchange 

(the Interchange), FDLC, as owner of the Property, 

is working on donating a portion of the Property, 

consisting of approximately 50 acres, free and clear 

to the City of Minneola, which acreage will be 

subtracted from the acreage of the Property. 

significant asset is its 100 percent 

(100%) equity ownership in FDLC. 

Mrs. Strimenos and Mrs. Emack 

through separate limited liability 

corporations own, respectively, 40.70 

percent (40.70%) and 36.12 percent 

(36.12%) of the interests in Minneola. 

Five (5) other Gregg family trusts own 

23.18 percent (23.18%) of Minneola.2

6. Other entities owned by members 

of the Gregg family include Yeehaw 

Ranch Land, LLC (Yeehaw); PMCC, LLC 

(PMCC); Bi-Coastal Holdings, LLC (BiCoastal); and Arcadia Holdings, LLC 

(Arcadia). 

The Plan 

7. The Plan is a defined benefit 

pension plan established in 1953 by 

FCSH to provide benefits to its 

employees. As a result of the sale of 

FCSH to Rinker in 2000, FDI became the 

sponsor of the Plan. The Plan covers 

approximately 740 former employees of 

FCSH and current employees of FDI and 

their beneficiaries, including 

beneficiaries of deceased participants 

(based on Form 5500 for plan year 

2011). In 2003, the Plan was ‘‘frozen’’ by 

FDI with the result that there have been 

no additional accruals and no new 

participants to the Plan since that time. 

The trustee of the Plan is Mrs. 

Strimenos. 

The assets of the Plan are currently 

held through annuity contracts issued 

by Massachusetts Mutual Life Insurance 

Company. It is represented that the Plan 

is currently underfunded. In this regard, 

the value of the Plan’s assets, as of 

September 30, 2013, was approximately 

$28.92 million. This represents 

approximately 77 percent (77%) of the 

Plan’s 2013 funding target. 

It is represented that liquidity is not 

an issue for the Plan. According to the 

Plan’s actuary, the projected benefit 

payments are approximately $2.3 

million for the 2013 plan year, gradually 

increasing to approximately $2.7 

million in plan year 2021. As of 

September 30, 2013, the Plan had liquid 

assets of approximately $28.92 million, 

while the present value of the Plan’s 

projected benefit payments through 

2021, (discounted at 6 percent (6%) the 

Plan’s assumed rate of investment 

return) was approximately $17.56 

million, as of December 31, 2012. 

FDI estimates that its annual 

minimum funding obligation will be 

$2.1 million or more for a number of 

years. 

The Notes 

8. As discussed briefly in 

Representation 5, in 2007, Minneola 

issued to FDI a single promissory note 

(the Single Note) with a face amount of 

$29,330,000 in exchange for a 100 

percent (100%) equity interest in FDLC. 

The Single Note carried interest at 4.53 

percent (4.53%) per year, compounded 

semi-annually, with principal and 

interest payable at maturity on January 

1, 2016. On September 12, 2011, the 

Single Note was re-issued as 29 separate 

promissory notes (collectively, the 

‘‘Notes’’ and individually, ‘‘Note #1 

through Note #29’’), 28 of which have a 

face amount of $1 million, and one (1) 

of which (Note #29) has a face amount 

of $1,330,000. It is represented that the 

Notes were issued with substantially the 

same terms as the Single Note. The 

Notes are closely-held and are not 

traded on a public market. The Notes 

are numbered consecutively with each 

successive higher numbered note being 

subordinate to any note with a lower 

number. Although the Notes initially 

had a maturity date of 2016, effective 

November 5, 2012, FDI and Minneola 

agreed to amend Note #3 through Note 

#29 to extend the maturity date to 

September 1, 2019, and to correct the 

amount of accrued interest stated in 

each such note, and to cap the default 

interest rate at 12 percent (12%) per 

annum. 

All of the Notes are subject to: (a) The 

partial guarantees of certain Gregg 

family trusts, based on the respective 

ownership of such trusts of interests in 

Minneola; and (b) the unconditional 

guarantees of Mrs. Emack and Mrs. 

Strimenos, who have jointly and 

severally guaranteed payment of the 

aggregate amount of such Notes in full. 

It is represented that Mrs. Emack and 

Ms. Strimenos had a combined net 

worth in excess of $112 million, as of 

December 31, 2012. 

The Property 

9. As discussed briefly above, FDLC is 

the present owner of the Property, 

which is located in the City of 

Minneola, Florida. The Property, which 

is irregular in shape, currently consists 

of approximately 1,770 acres of real 

estate, nine (9) parcels of which are 

contiguous mostly wooded lots or 

cleared pasture land.3 The Property is 

fully entitled by the City of Minneola for 

a Planned Unit DevelopmentResidential development and is subject 

to a Development of Regional Impact 

order for the Hills of Minneola 

development that has been approved by 

the City of Minneola and the Florida 

Department of Community Affairs. 

FDI’s Financial Situation 

10. It is represented that FDI’s cash 

flow is quite limited. FDI’s ability to 

liquidate assets to satisfy the minimum 

funding requirement for the Plan has 

also been impacted by the implosion in 

2008 of the Florida real estate market. 

For example, FDI’s assets consist 

primarily of illiquid investment in 

entities controlled by the Gregg family. 

Such investments held by FDI include 

notes receivable from entities controlled 

by members of the Gregg family, in the 

aggregate amount of $9.172 million, 

future royalties from an unrelated 

phosphate mining company, in the 

amount of $5.216 million, a nonrecourse loan in the amount of $5.661 

million to a Gregg family member, the 

Notes, and miscellaneous assets worth 

$0.403 million dollars. It is represented 

that none of these investments pays 

current income to FDI, and none of 

these investments is liquid. 

FDI’s Efforts To Fund the Plan 

11. When FDI realized it would be 

unable to make the required 

contribution in cash to the Plan in 2011 

for the plan year ended December 31, 

2010, FDI sought legal advice from the 

firm of Constangy Brooks & Smith, LLC 

which advised FDI to seek a funding 

waiver for plan year 2010. Accordingly, 

FDI applied for a funding waiver from 

the IRS on March 15, 2011, with respect 

to the 2010 plan year. However, FDI was 

not advised that the funding waiver 

would not be issued in time to prevent 

a funding deficiency for plan year 2010 

and that funding waivers are generally 

not issued in successive years. 

12. On or about May 24, 2011, FDI 

engaged another law firm, Alston & Bird 

LLP (A&B), an Atlanta law firm. FDI 

believes it was prudent in reaching out 

to A&B for assistance regarding the 

matters described above, and it was 

reasonable for FDI to believe that A&B 

would provide it with the guidance that 

it needed in connection with the in-kind 

contribution to the Plan and for FDI to 

rely on that belief. 


emcdonald on DSK67QTVN1PROD with NOTICES
43084 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

4 In Commissioner v. Keystone Consolidated 

Industries, 508 US 152 (1993), the Supreme Court 

held that an employer’s contribution of property in 

satisfaction of the plan’s funding obligation was a 

‘‘sale or exchange’’ for purposes of section 4975 of 

the Code. Moreover, the Department has held that 

an in-kind contribution to a plan constitutes a 

prohibited transaction, if the contribution reduces 

an obligation of a plan sponsor or employer to make 

a cash contribution to the plan. See Interpretive 

Bulletin 94–3. 

Although A&B continued to pursue 

the funding waiver, there was 

uncertainty on whether the waiver 

request would be granted. Therefore, 

A&B advised FDI to seek a prospective 

prohibited transaction exemption from 

the Department, which, if granted, 

would enable FDI to contribute any of 

the Notes in-kind to the Plan, as needed. 

In this connection, it is represented that 

A&B prepared a draft exemption 

application, drafted the trust agreement 

that was required in order to make the 

contribution in-kind to the Plan, 

advised FDI to obtain an independent 

appraisal of the fair market value of the 

Notes, while continuing discussions 

with the Internal Revenue Service (IRS) 

and the Pension Benefit Guaranty 

Corporation (PBGC) regarding the 

funding waiver. 

13. FDI did not make quarterly 

contributions to the Plan for the 2010 

plan year. The failure to make quarterly 

contributions to the Plan is a reportable 

event which was reported to the PBGC, 

as required. FDI states that, on 

September 10, 2011, A&B apprised FDI 

of the following three ‘‘paths,’’ 

summarized as: (a) FDI could assume 

that it would obtain a funding waiver, 

refrain from making contributions to the 

Plan, file for a prohibited transaction 

exemption, and make the in-kind 

contribution after the prohibited 

transaction exemption is granted. If the 

funding waiver were not forthcoming, 

FDI would be subject to tax on the 

unpaid contribution and to excise tax; 

(b) FDI could make the in-kind 

contribution on September 15, 2011, 

and file for a prohibited transaction 

exemption asking for retroactive relief. 

If the requested exemption were not 

granted, FDI would be subject to excise 

tax; or (c) FDI could start the process for 

a distress termination of the Plan in 

which the PBGC would have the right 

to attach assets of FDI in order to satisfy 

the unfunded liabilities. FDI states that 

it had to choose one of these options by 

September 15, 2011. On September 14, 

2011, the PBGC filed a lien on the assets 

of FDI in the amount of $2.7 million. On 

or about September 15, 2011, FDI 

determined to go ahead with option (b) 

described above: The in-kind 

contribution to the Plan of two (2) of the 

Notes (Note #1 and Note #2), followed 

by the filing of an application for 

retroactive exemption with the 

Department. FDI states that, because 

discussions with the IRS and the PBGC 

were unsuccessful and the funding 

waiver was not forthcoming, FDI 

withdrew the waiver request on 

September 15, 2011. FDI states that, on 

October 14, 2011, A&B alerted FDI that 

hiring an independent fiduciary may be 

a component of obtaining the exemptive 

relief described above. 

Appraisal of All the Notes 

14. On September 12, 2011, Robert H. 

Buchannan, J.D., ASA and Victor E. 

Jarosiewicz, ASA, CFA (collectively, the 

PCE Appraisers) of PCE Valuations, LLC 

(PCE), in Winter Park and Tampa, 

Florida, together determined that the 

aggregate fair market value of all 29 of 

the Notes was $35,405,600 (rounded), as 

of September 8, 2011 (the PCE 

Appraisal). 

The PCE Appraisers are qualified as 

Accredited Senior Appraisers of the 

American Society of Appraisers. Both of 

the PCE Appraisers are independent in 

that they have no personal interest or 

bias with respect to the parties involved, 

and their compensation was not 

contingent on the conclusions reached 

in their report. 

Based on the PCE Appraisal and a 

discount rate of 4.09% and 4.10%, 

respectively for Note #1 and Note #2, 

the PCE Appraisers determined that the 

present value of the aggregate face 

amount on Note #1 and Note #2, plus 

accrued interest was $2,511,500, as of 

September 15, 2011. It is represented 

that FDI allocated $2,315,017 of the 

aggregate value of Note #1 and Note #2 

to satisfy the minimum funding 

contribution to the Plan for plan year 

2010. The remainder of $196,483 FDI 

applied to satisfy a portion of its 

minimum funding obligation to the Plan 

for plan year 2011. 

Legal Analysis 

15. Retroactive and prospective relief 

is proposed, herein, from sections 

406(a)(1)(A), 406(a)(1)(D), 406(a)(1)(E), 

406(a)(2), 406(b)(1), 406(b)(2) and 407(a) 

of the Act, and the corresponding 

provisions of the Code for the in-kind 

contribution, holding, and redemption 

of Note #1 and Note #2 in the past, and 

for the prospective in-kind contribution, 

holding, and redemption of certain of 

the Notes (the Subsequent Notes) in the 

future. Retroactive and prospective 

relief is also proposed, herein, from 

section 406(a)(1)(B) for the extensions of 

credit by the Plan to Minneola and to 

FDI in connection with the Plan’s past 

acquisition and holding of Note #1 and 

Note #2 and the Plan’s acquisition and 

holding in the future of any Subsequent 

Notes. 

Section 406(a)(1)(A) of the Act 

prohibits a sale or exchange between a 

party in interest and a plan. As the past 

in-kind contribution of Note #1 and 

Note #2 was made by FDI to the Plan, 

and as future in-kind contributions of 

the Subsequent Notes will be made by 

FDI to the Plan for the purpose of 

satisfying FDI’s minimum funding 

obligations to the Plan, retroactive and 

prospective relief from section 

406(a)(1)(A) of the Act is needed, 

because the Plan will receive the 

contribution in-kind of the Subsequent 

Notes in exchange for receiving a cash 

contribution.4

Section 406(a)(1)(B) of the Act 

prohibits a loan or an extension of credit 

between a plan and a party in interest. 

As Minneola, the issuer of the Notes, is 

a party in interest with respect to the 

Plan, the acquisition and holding of any 

of the Notes would constitute a 

prohibited loan or extension of credit by 

the Plan to Minneola for which relief 

from 406(a)(1)(B) is needed. 

In addition, the partial guarantees of 

the Notes by certain Gregg family trusts 

that would be considered parties in 

interest with respect to the Plan under 

section 3(14)(E) of the Act as owners of 

the capital or profits interest of 

Minneola. Similarly, the unconditional 

guarantees of the Notes by Mrs. Emack 

and Mrs. Strimenos would violate 

section 406(a)(1)(B) of the Act because 

these individuals would each be 

considered a party in interest with 

respect to the Plan under section 

3(14)(H) of the Act as an officer and/or 

a 10 percent (10%) or more shareholder 

of FDI, an employer any of whose 

employees are covered by the Plan. 

Section 406(a)(1)(E) of the Act 

prohibits a fiduciary from causing a 

plan to engage in a transaction, if he 

knows or should know that such 

transaction constitutes the direct or 

indirect acquisition, on behalf of a plan, 

of any employer security in violation of 

section 407(a) of the Act. Section 

406(a)(2) of the Act prohibits a fiduciary 

who has authority or discretion to 

control or manage the assets of a plan 

to permit a plan to hold any ‘‘employer 

security’’ in violation of section 407(a) 

of the Act. Section 407(a)(1) of the Act 

states that a plan may not acquire or 

hold any ‘‘employer security’’ that is not 

a ‘‘qualifying employer security.’’ 

The Notes may be considered 

‘‘employer securities,’’ as defined in 

section 407(d)(1) of the Act, because 

Mrs. Strimenos and Mrs. Emack own, in 

the aggregate, directly or indirectly, 

more than 50 percent (50%) of both FDI 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 43085 

and Minneola. Section 407(d)(5) of the 

Act defines a ‘‘qualifying employer 

security’’ as an employer security that is 

either stock, a marketable obligation (as 

defined by section 407(e) of the Act), or 

an interest in certain publicly traded 

partnerships. The Notes are not stock or 

interests in a publicly traded 

partnership. Neither are the Notes 

marketable obligations. A ‘‘marketable 

obligation’’ is defined, in part, under 

section 407(e) of the Act as a ‘‘bond, 

debenture, note, or certificate, or other 

evidence of indebtedness’’ if such 

obligation is acquired on the market, 

from an underwriter, or directly from 

the issuer, and immediate following the 

acquisition of such obligation, not more 

than 25% of the aggregate amount of 

obligations issued in such issue and 

outstanding at the time of acquisition is 

held by the plan; at least 50% of the 

aggregate amount of the obligations in 

such issue is held by persons 

independent of the issuer; and 

immediately following such acquisition 

not more than 25 percent (25%) of the 

assets of the plan is invested in 

obligations of the employer or an 

affiliate. As the Notes are closely-held 

and not traded on the market, were not 

acquired by the Plan from the issuer, 

and at least 50% of the aggregate 

amount of such Notes are held by FDI, 

who is not independent of Minneola, 

the issuer, the Notes do not satisfy the 

definition of a ‘‘marketable obligation,’’ 

as defined under section 407(e) of the 

Act. Accordingly, relief from section 

407(a)(1)(E) and 406(a)(2) is needed for 

the acquisition and holding of the Notes 

by the Plan. 

Furthermore, relief from section 

406(a)(1)(A) and 406(a)(1)(D) of the Act 

is needed in the past, because Note #1 

and Note #2 held in the Plan were 

transferred to and redeemed by 

Minneola, a party in interest with 

respect to the Plan, and relief from the 

same sections of the Act will be needed 

in the future in the event that the 

Subsequent Notes are transferred to and 

redeemed by FDI, FDLC, Minneola, or 

any other a party in interest with respect 

to the Plan. 

In addition, both retroactive and 

prospective relief is needed from the 

provisions of section 406(b)(1) of the 

Act in connection with the past decision 

by FDI, a fiduciary with respect to the 

Plan, to contribute Note #1 and Note #2 

in-kind to the Plan and with respect to 

any future decisions by FDI to 

contribute in-kind any of the 

Subsequent Notes to the Plan. Both 

retroactive and prospective relief is 

needed from the prohibitions of section 

406(b)(2) of the Act due to FDI’s 

presence on both sides of the 

transactions, as the sponsor and 

fiduciary of the Plan. 

Property Appraisal 

16. Subsequent to the in-kind 

contribution of Note #1 and Note #2, on 

January 1, 2012, FDI engaged 

Independent Fiduciary Services, Inc. 

(IFS), a Division of GBS Investment 

Consulting, LLC, and a predecessor of 

Gallagher Fiduciary Advisers, LLC 

(GFA), to serve as the independent, 

qualified, fiduciary (the I/F) and the 

investment manager on behalf of the 

Plan. GFA, the successor to IFS, hired 

Integra Realty Resources (Integra) of 

Orlando, Florida, to determine the ‘‘as 

is’’ fair market value of the fee simple 

interest in the Property (the Integra 

Appraisal). The Integra Appraisal was 

prepared by Stephen J. Matonis, MAI, 

MRICS, Director/Partner of Integra, and 

Marti M. Hornell, Senior Analyst of 

Integra (together, the Integra 

Appraisers). The Integra Appraisers 

conducted an on-site inspection of the 

Property, respectively, on April 22, 

2012, and April 25, 2012. 

The Integra Appraisers are qualified 

as State-Certified General Real Estate 

Appraisers. The Integra Appraisers are 

independent in that they have no bias 

with respect to the Property or the 

parties involved and their engagement 

and compensation was not contingent 

upon developing or reporting a 

predetermined value. It is represented 

that the percentage of revenue derived 

from this appraisal engagement was a de 

minimis percentage of Integra’s 2011 

revenues. 

According to the Integra Appraisers, 

the holding of the Property by FDLC for 

future development is the only use that 

meets the four tests of highest and best 

use. Therefore, the Integra Appraisers 

concluded that the highest and best use 

of the Property is as vacant. In this 

regard, the Integra Appraisers 

represented that the most probable 

buyer of the Property would be an 

investor/developer that would continue 

the existing agricultural uses of the 

Property until such time that demand 

for the Property warrants moving 

forward with the development of the 

Property. In the opinion of the Integra 

Appraisers, a reasonable marketing 

period for the Property is estimated at 

18 to 24 months. 

Accordingly, based solely on the Sales 

Comparison Approach to valuation, the 

Integra Appraisers, in a report dated 

May 3, 2012, determined that the ‘‘as is’’ 

fair market value of the fee simple 

interest in the Property, as of April 22, 

2012, was $48,000,000 ($27,405 per 

usable acre), including approximately 

fifty (50) acres of land that would be 

transferred to the City of Minneola for 

construction of the Interchange. 

Re-Appraisal of Note #1 and Note #2 

17. On July 21, 2012, GFA also hired 

Kevin P. Steeley (Mr. Steeley) and Hugh 

H. Woodside (Mr. Woodside), ASA, 

CFA, Managing Director, of Empire 

Valuation Consultants, LLC (Empire), in 

Rochester, NY, (collectively, the Empire 

Appraisers) as a second IQA to establish 

the value of Note #1 and Note #2, 

exclusively. Both the Empire Appraisers 

are qualified, in that Mr. Steeley has 

been associated with Empire since 2006, 

and Mr. Woodside is an Accredited 

Senior Appraiser affiliated with the 

American Society of Appraisers and is 

a Chartered Financial Analyst. Both the 

Empire Appraisers are independent in 

that neither Mr. Steeley nor Mr. 

Woodside has an interest in Note #1 and 

Note #2. Further, it is represented that 

the Empire Appraiser’s fees were not 

contingent upon the determination of 

value of Note #1 and Note #2. 

Discounting the payments for Note #1 

and Note #2 using the discount rates, 

respectively, of 5.9 percent (5.9%) and 

6.2 percent (6.2%), the Empire 

Appraisers determined that looking 

back to September 15, 2011, the 

aggregate fair market value of for Note 

#1 and Note #2 was $2,316,047 (the 

First Empire Appraisal). 

It is represented that the First Empire 

Appraisal valuation though somewhat 

lower than the $2,511,500 aggregate 

value for Note #1 and Note #2, as set 

forth in the PCE Appraisal, was still in 

excess of FDI’s funding obligation for 

the plan year 2010. Accordingly, once 

the First Empire Appraisal was 

obtained, the I/F determined to use the 

lower valuation for the purpose of 

satisfying FDI’s funding obligation to 

the Plan. 

Redemption of Note #1 and Note #2 

18. FDI had Minneola redeem Note #1 

and Note #2 from the Plan. Such 

redemptions required Minneola to pay 

an amount in cash to the Plan equal to 

the $1 million principal amount of each 

note, plus all accrued interest due 

through the date of such redemptions. 

It is also represented that because 

Note #1 and Note #2 had been 

contributed at a discounted value (i.e., 

the First Empire Appraisal established 

the fair market value of such notes in 

the aggregate at $2,316,047, looking 

back to September 15, 2011) (See, 

Representation 17), as compared to the 

outstanding balance of such notes, 

which was approximately $2,468,930, as 

of September 15, 2011, the pre-mature 

redemption of Note #1 and Note #2 for 

$2,616,702.01, well in advance of the 


emcdonald on DSK67QTVN1PROD with NOTICES
43086 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

January 1, 2016 maturity date of such 

notes, resulted in the Plan achieving a 

very favorable return of approximately 

10.39 percent (10.39%) per annum over 

the relatively short period of time (from 

September 15, 2011, to December 28, 

2012) that the Plan held such notes. 

Current Exemption Request 

19. FDI filed the subject application 

(D–11777) for an individual exemption 

(the Current Application) on May 6, 

2013, seeking both retroactive and 

prospective relief. Specifically, in the 

Current Application, FDI is relying on 

the Department’s retroactive policy, as 

set forth at 29 CFR section 2570.35(a)(8), 

and has requested retroactive relief for 

the in-kind contribution of Note #1 and 

Note #2 to the Plan, for the holding of 

such notes by the Plan, and for the 

redemption of such notes from the Plan 

by Minneola. In this regard, FDI 

explains that it followed and relied on 

the written guidance provided by A&B, 

to file an exemption application with 

the Department, as discussed more fully 

in Representations 12 and 13, above, 

prior to the contribution in-kind of Note 

#1 and Note #2 to the Plan. 

Further, FDI is seeking prospective 

relief for the in-kind contribution, the 

holding, and the redemption of the 

Subsequent Notes. Both prospective and 

retroactive relief is also needed for the 

guarantees and extensions of credit 

between the Plan and certain parties in 

interest. 

With regard to the prospective relief, 

FDI estimates that its mandatory 

minimum funding contribution for each 

of the next several plan years will be 

approximately $2.1 million or more per 

year. In this regard, the proposed 

prospective relief, if granted prior to 

September 15, 2014, would enable FDI, 

subject to obtaining the approval of the 

I/F, to contribute in-kind of certain 

Subsequent Notes to the Plan on 

September 15, 2014, depending on the 

final valuations of such notes, in order 

to satisfy FDI’s minimum funding 

obligation for the 2013 plan year, and 

further to contribute certain Subsequent 

Notes to satisfy its minimum funding 

obligations for future plan years. 

This proposed exemption, if granted, 

shall be effective with regard to 

transactions, involving Note #1 and 

Note #2 for the period beginning on 

September 15, 2011, and ending on 

December 28, 2012. This proposed 

exemption, if granted, shall be effective 

with regard to transactions, involving 

the Subsequent Notes, beginning on the 

date of the publication in the Federal 

Register of the grant of this proposed 

exemption and ending on the last day 

any of the Subsequent Notes is held in 

the Plan. 

Appointment of GFA 

20. FDI, acting in its corporate 

capacity and as named fiduciary for the 

Plan, engaged GFA pursuant to an 

agreement, dated March 21, 2013, (the 

Agreement) to serve as the I/F on behalf 

of the Plan. Under the terms of the 

Agreement, GFA will be retained for as 

long as the Plan holds any of the 

Subsequent Notes. GFA will be 

authorized to make all decisions on 

whether the Plan should accept the inkind contribution of the Subsequent 

Notes in satisfaction of FDI’s minimum 

funding obligations and otherwise to 

manage such notes on behalf of the 

Plan. It is represented that GFA’s fees 

and expenses will be paid by the Plan. 

GFA, a Delaware limited liability 

company, is a registered investment 

adviser. On June 1, 2011, GFA acquired 

substantially all of the assets of IFS. 

GFA represents that it is qualified to 

serve as the I/F through its experience 

and through the experience of its 

predecessor, IFS, in acting as the I/F for 

plans in connection with contributions 

of non-cash assets to satisfy funding 

obligations, and the management of 

such assets, including both private 

securities and real estate. GFA 

represents that it has acted as 

independent fiduciary in connection 

with numerous transactions that have 

been the subject of individual 

prohibited transaction exemptions. In 

addition, GFA serves as an on-going 

investment consultant to plans with 

assets totaling approximately $37.1 

billion. GFA is independent in that 

neither it nor any of its affiliates has any 

relationship with FDI, Minneola, FDLC, 

and the guarantors of the Notes, except 

that: (a) FDI has undertaken to provide 

a limited indemnification to GFA as set 

forth in the Agreement; and (b) FDI is 

secondarily liable (after the Plan) for 

GFA’s fees and expenses, as set forth in 

the Agreement. It is represented that 

GFA’s projected fee revenues during its 

2013 Federal income tax year that may 

be derived from FDI will be less than 

two percent (2%) of GFA’s total 

revenues for the 2013 income tax year. 

To supplement in-house legal 

resources and advice from local counsel 

in Florida, GFA retained the law firm of 

Steptoe & Johnson LLP to provide legal 

advice on the fiduciary and related 

business issues raised by the proposed 

transactions, including the fiduciary 

responsibilities under the Act. In this 

regard, GFA has acknowledged that is 

understands the duties and 

responsibilities under the Act of serving 

as a fiduciary on behalf of the Plan. 

GFA requested, received, and 

reviewed a number of documents 

concerning the Plan, FDI, Minneola, 

FDLC, the guarantors, the Notes, and the 

Property. Further, GFA met in-person 

and by telephone with FDI executives, 

their legal and financial advisors, and 

several of the guarantors to learn about 

the history, ownership, business model, 

and financial performance of FDI, 

Minneola, and FDLC. GFA’s 

professional team also toured the 

Property. 

GFA has evaluated for methodological 

soundness, and mathematical and 

textual accuracy both the Integra 

Appraisal of the Property and a 

preliminary, unsigned, updated 

appraisal of Note#3, Note#4, and 

Note#5, dated September 7, 2012, 

prepared in draft by the Empire 

Appraisers (the Second Empire 

Appraisal). It is represented that the fair 

market value appraisal of the Property 

will be updated by an independent, 

qualified, appraiser (IQA) engaged by 

GFA, prior to GFA’s determination on 

whether to accept on behalf of the Plan 

any of the Subsequent Notes, and prior 

to the contribution in-kind of such notes 

to the Plan. Similarly, the fair market 

value of any of the Subsequent Notes 

that are contributed in-kind to the Plan 

will be determined by the IQA engaged 

by GFA, prior to such in-kind 

contribution. Each such appraisal of the 

Subsequent Notes will reflect the thencurrent terms of such notes, and will 

take into account all factors deemed 

relevant, including the then-current 

value of the Property and the additional 

pledges and covenants GFA has 

negotiated on behalf of the Plan (as 

discussed below in Representation 21). 

The same procedure will be followed by 

GFA for additional contributions inkind of Subsequent Notes to the Plan. 

Pledges and Covenants Negotiated by 

GFA 

21. GFA has negotiated several 

additional protections for the Plan, as 

set forth in the term sheet that was 

attached to the Current Application. As 

a result of these negotiations, FDI has, 

among other things, agreed to the 

following: 

(a) Upon the contribution in-kind of 

any of the Subsequent Notes to the Plan, 

the Plan will receive a security interest 

in the Property (or in a relevant portion 

of such Property) (the Security Interest) 

and will retain such Security Interest, 

until the Plan no longer holds any of the 

Subsequent Notes. The Property (or the 

relevant portion, thereof) in which the 

Plan holds a Security Interest will have 

at least an appraised value equal to a 

minimum of five (5) times the aggregate 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 43087 

outstanding balance, including all 

principal and accrued interest thereon, 

of all the Subsequent Notes held by the 

Plan, where such appraised value is 

determined by an IQA immediately after 

the most recent contribution in-kind of 

such Subsequent Notes and 

immediately after the sale or disposition 

of any portion of the Property; 

(b) FDLC will covenant to refrain from 

mortgaging the Property and will 

covenant to distribute to Minneola the 

net proceeds (after the payment of 

expenses) from the sale of all or a 

portion of the Property by FDLC. If any 

mortgage is placed on the Property, such 

mortgage will create a default under the 

Subsequent Notes held in the Plan that 

will allow the Plan to enforce its rights 

under such a default; 

(c) FDI will cause Minneola, at the 

option of FDI, either to pay the funds 

Minneola receives from FDLC to the 

Plan as payment on the Subsequent 

Notes held in the Plan or will loan such 

funds to FDI for the purpose of FDI 

making a contribution to the Plan 

within thirty (30) days of such loan 

(either as a current contribution or a 

pre-contribution of a future funding 

obligation); 

(d) FDI will apply any funds it 

receives from Yeehaw, PMCC, BiCoastal, and Arcadia for the benefit of 

the Plan, pursuant to written covenants 

and agreements that such entities will 

use the available proceeds from the sale 

of any real property owned by such 

entities, and all net royalties received by 

Arcadia from third parties, to first pay 

off any debts owed to FDI by such 

entities. In this regard, at the option of 

FDI, such available proceeds and such 

royalties either will be contributed to 

the Plan (as a current contribution or a 

pre-contribution of a future funding 

obligation) or will be loaned to 

Minneola with a written direction that 

Minneola pay the proceeds of such loan 

to the Plan as payment on any of the 

Subsequent Notes held by the Plan; 

(e) The covenants and agreements are 

entered into prior to any in-kind 

contribution of any Subsequent Notes to 

the Plan; and such notes will be 

amended to treat a breach of any such 

covenants and agreements as an event of 

default under such notes; 

(f) The Subsequent Notes contributed 

in-kind to the Plan will be contributed 

in the next order of seniority of such 

notes. The aggregate fair market value of 

the Subsequent Notes that may be 

contributed in-kind to the Plan shall not 

exceed 20 percent (20%) of the fair 

market value of the total assets of the 

Plan, in each case determined by GFA 

immediately after the in-kind 

contribution of such notes; 

(g) If, at any time, the fair market 

value of the Property, all or a portion of 

which serves as collateral for the 

Subsequent Notes contributed in-kind to 

the Plan is less than 150 percent (150%) 

of the aggregate outstanding principal 

and accrued interest balance of such 

notes held by the Plan, the Plan will 

have the right, exercisable on 120 days’ 

prior written notice by GFA, to 

accelerate the payment of such notes to 

the extent necessary to cause the fair 

market value of the Property to be at 

least 150 percent (150%) of the 

outstanding principal and accrued 

interest amount of such notes; and 

(h) If at any time, GFA determines 

that the Plan does not have sufficient 

liquidity to meet its projected 12-month 

forward expense obligations (including 

benefit payment obligations), the Plan 

will have a right, exercisable on ninety 

(90) days’ prior written notice to FDI, to 

accelerate the repayment of any of the 

Subsequent Notes held in the Plan; 

provided that such acceleration right 

shall only be to the extent necessary to 

pay down the aggregate outstanding 

principal and accrued interest balance 

of such notes, in an amount as 

determined by GFA to be necessary to 

provide the Plan with sufficient liquid 

assets to meet its twelve (12) month 

forward expense obligation. 

GFA represents that it will consider at 

the time of each proposed in-kind 

contribution of any of the Subsequent 

Notes whether FDI has sufficient cash or 

other assets to render such an in-kind 

contribution unnecessary to satisfy the 

Plan’s minimum funding requirements, 

or whether such an in-kind contribution 

can be made in addition to rather than 

in lieu of a payment of a cash 

contribution then due. 

22. GFA notes that its ability to 

extend the maturity date on the 

Subsequent Notes will give Minneola 

the necessary time it needs to market 

and sell the Property, which time may 

be more than the 18–24 months 

estimated by Integra Appraisal to sell 

the Property in order to generate 

sufficient cash to pay off the Subsequent 

Notes contributed in-kind to the Plan. 

GFA represents that it will be 

responsible for monitoring and 

managing all of the Subsequent Notes 

contributed in-kind to the Plan and is 

authorized to enforce all of the Plan’s 

rights under the instruments governing 

such notes, including the additional 

covenants, pledges, and agreements 

designed by GFA to serve as security for 

the Plan, which are outlined, above. In 

this regard, GFA is responsible for 

taking prudent action on behalf of the 

Plan in the event of default on any of 

the Subsequent Notes held in the Plan 

and in the event of default on any of the 

terms of the covenants, pledges, and 

agreements designed to provide security 

for the Plan. 

GFA has made a preliminary 

determination in a report (the Report) 

attached to the Current Application, that 

the contribution of the Subsequent 

Notes in satisfaction of FDI’s funding 

obligation will be in the interest of the 

Plan and its participants and protective 

of the rights and interests of such 

participants and beneficiaries. As 

described more fully in the Report, the 

Plan will receive in-kind contributions 

of fairly valued fixed income securities 

that will satisfy the minimum funding 

requirements of the Plan and improve 

the Plan’s funding status, as compared 

to the Plan’s funding status in the 

absence of such in-kind contributions. 

Merits of the Proposed Exemption 

23. The Applicant submits that 

proposed exemption will satisfy the 

requirement that an individual 

exemption must be administratively 

feasible. In this regard, GFA will 

determine, in each instance, whether 

the Plan should accept the Subsequent 

Notes as in-kind contributions to the 

Plan. Moreover, GFA will be authorized 

to manage and make all decisions with 

respect to any of the Subsequent Notes 

contributed in-kind to the Plan for as 

long as any such notes remain in the 

Plan. Hence, FDI maintains that the 

proposed exemption requires no ongoing oversight by the Department and 

is administratively feasible. 

24. FDI maintains that the in-kind 

contribution of Note #1 and Note #2 

was, and the in-kind contribution of 

Subsequent Notes will be, in the interest 

of the Plan because such past and 

prospective in-kind contributions have 

substantially improved and will 

improve the security of benefits for the 

Plan participants without endangering 

the value of the Plan or creating any 

liquidity concerns. Further, FDI 

maintains that the redemptions of Note 

#1 and Note #2 were in the interest of 

the Plan in that the Plan achieved a 

favorable return of approximately 10.39 

percent (10.39%) per annum over the 

relatively short period the Plan held 

such notes. 

FDI represents that it is in the interest 

of the Plan to accept the in-kind 

contribution of the Subsequent Notes, as 

the Plan will receive fairly valued fixed 

income securities. In this regard, FDI 

submitted with the Current Application 

the Second Empire Appraisal, dated 

September 7, 2012, prepared in draft by 

the Empire Appraisers. Prior to the inkind contribution of any of the 

Subsequent Notes to the Plan, the thenVerDate Mar<15>2010 18:03 Jul 23, 2014 Jkt 232001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\24JYN1.SGM 24JYN1

emcdonald on DSK67QTVN1PROD with NOTICES
43088 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

current fair market value of such notes 

will be determined by an IQA, before 

GFA makes a determination on whether 

to accept such notes on behalf of the 

Plan. 

It is represented that many factors 

were incorporated into the Empire 

Appraisers’ analysis. Accordingly, in 

the Second Empire Appraisal, using a 

discount rate of 5.9 percent (5.9%) for 

Note #3, 6.1 percent (6.1%) for Note #4, 

and 6.3 percent (6.3%) for Note #5, the 

Empire Appraisers estimated that the 

aggregate present value of Note #3, Note 

#4, and Note #5 was $3,468,935, as of 

September 7, 2012. 

It is represented that GFA will review 

and approve an updated appraisal 

prepared by an IQA engaged by GFA, of 

any Subsequent Notes to be contributed 

in-kind to the Plan prior to such 

contribution. 

25. Additionally, FDI explains that 

any contribution in-kind of the 

Subsequent Notes to the Plan will be 

protective of the Plan and its 

participants and beneficiaries. In this 

regard, the Notes are ordered as to 

seniority such that each successive 

higher numbered note is subordinate to 

any note with a lower number. For 

example, no amount can be paid on 

Note #8 until all principal and interest 

has been paid on Note #3 through Note 

#7. Given the redemptions of Note #1 

and Note #2, on December 28, 2012, 

Note #3 is now the most senior of the 

Notes. FDI states that the Subsequent 

Notes will be contributed to the Plan in 

the next order of their seniority, starting 

with Note #3, as necessary to satisfy 

FDI’s future funding obligations to the 

Plan, subject to the conditions set forth 

in this proposed exemption. 

Other than the Subsequent Notes that 

are the subject of this proposed 

exemption, FDI will not contribute any 

employer real property or employer 

securities to the Plan for so long as the 

Plan owns any such notes. 

27. If the proposed exemption is 

granted, FDI represents that the Plan 

will continue to exist, will be 

adequately funded, and will eventually 

be terminated in a standard termination. 

However, FDI maintains that if the 

proposed exemption is not granted, it is 

not clear how the Plan will be funded 

over the next several years, nor is it 

clear whether FDI will continue in 

business due to its large minimum 

funding obligations to the Plan and its 

current lack of liquid assets. 

Moreover, if the proposed exemption 

is denied, FDI states that there will be 

hardship and economic loss to the Plan. 

In particular, given FDI’s current lack of 

liquid assets and its anticipated lack of 

liquidity over the next several years, FDI 

explains that it is highly unlikely that it 

can make the required contributions to 

the Plan in cash. Consequently, some or 

all of the required contributions might 

not be made, resulting in economic loss 

to the Plan and its participants and 

beneficiaries. 

26. In summary, FDI represents that 

the subject retroactive transactions 

satisfy the statutory criteria of section 

408(a) of the Act because: 

(a) Prior to the in-kind contribution of 

Note #1 and Note #2, the fair market 

value of such notes was determined to 

be at least $2,316,047, as determined by 

the IQA; 

(b) Prior to the in-kind contribution of 

Note #1 and Note #2, FDI engaged the 

law firm of A&B, and FDI thereafter 

contributed Note #1 and Note #2 in a 

manner consistent with written 

guidance provided by A&B on 

September 10, 2011; 

(c) The Notes were redeemed for 

$2,616,702.01, providing the Plan with 

a 10.39% annual rate of return in 

connection with its holding of Note #1 

and Note #2; 

(d) The terms and conditions of the 

transactions were no less favorable to 

the Plan than the terms and conditions 

negotiated at arm’s length under similar 

circumstances between unrelated 

parties; and 

(e) The Plan did not incur any 

commissions, fees, costs, other charges, 

or expenses in connection with the 

acquisition, the in-kind contribution, 

the holding, and/or the redemption of 

Note #1 and Note #2, except for the fees 

of the I/F, or persons engaged by the I/ 

F to act on behalf of the Plan. 

27. In summary, FDI represents that 

the subject prospective transactions 

satisfy the statutory criteria of section 

408(a) of the Act because, among other 

things: 

(a) The terms and conditions of the 

transactions will be no less favorable to 

the Plan than the terms and conditions 

negotiated at arm’s length under similar 

circumstances between unrelated 

parties; 

(b) The terms of the transactions will 

be determined in advance by the I/F, 

acting on behalf of the Plan, to be 

administratively feasible, in the interest 

of, and protective of the Plan and its 

participants and beneficiaries; 

(c) The I/F is engaged with full 

discretionary authority to act on behalf 

of the Plan with respect to each of the 

Subsequent Notes contributed in-kind of 

the Plan, including the exercise of any 

of the rights of the Plan under such 

notes, and the responsibility to monitor 

such notes, and to ensure compliance by 

FDI, Minneola, FDLC, and any affiliates 

thereof, with the terms and conditions 

of such notes, and with the terms and 

conditions of this proposed exemption; 

(d) The Subsequent Notes will be 

contributed in-kind to the Plan in the 

next order of seniority of such notes 

(i.e., Note #3, Note #4, Note #5, etc.); 

(e) Prior to the in-kind contribution of 

any of the Subsequent Notes, the fair 

market value of such notes will be 

determined by an IQA, engaged by the 

I/F; 

(f) Upon the contribution in-kind of 

any Subsequent Notes to the Plan, 

(1) The Plan will receive a recorded, 

perfected Security Interest in the 

Property (or in a relevant portion of 

such Property) and will retain such 

Security Interest until the Plan no 

longer holds any Subsequent Notes; and 

(2) The Property in which the Plan 

holds the Security Interest will have, at 

all times throughout the duration of the 

contributed Subsequent Notes, an 

appraised value equal to a minimum of 

five (5) times the aggregate outstanding 

balance, including all principal and 

accrued interest thereon, of all of the 

Subsequent Notes held by the Plan; 

(g) The aggregate fair market value of 

the Subsequent Notes proposed to be 

contributed in-kind to the Plan shall not 

exceed 20% of the fair market value of 

the total assets of such Plan, in each 

case determined by the I/F immediately 

after the in-kind contribution of such 

notes; 

(h) The Plan will not incur any 

commissions, fees, costs, other charges, 

or expenses in connection with the 

acquisition, the in-kind contribution, 

the holding, and/or the redemption of 

any of the Subsequent Notes, including 

the fees and expenses of the I/F, and the 

fees and expenses of an IQA, counsel, or 

other persons engaged by the I/F; 

(i) If, at any time, the fair market value 

of the Property, all or a portion of which 

serves as collateral for the Subsequent 

Notes contributed in-kind to the Plan, is 

less than 150 percent (150%) of the 

aggregate outstanding principal balance 

and accrued interest of such notes held 

by the Plan, the Plan has the right, 

exercisable on 120 days’ prior written 

notice by the I/F to FDI, to accelerate the 

payment of such notes in order to cause 

the fair market value of the Property to 

be at least 150 percent (150%) of the 

aggregate outstanding principal and 

accrued interest amount of such 

Subsequent Notes; 

(j) If, at any time, the I/F determines 

that the Plan does not have sufficient 

liquidity to meet its projected 12-month 

forward expense obligations (including 

benefit payment obligations), the Plan 

will have a right, exercisable, by the 

I/F, on ninety (90) days’ prior written 

notice to FDI, to accelerate the 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 43089 

5For purposes of this proposed exemption, 

references to specific provisions of Title I of the 

Act, unless otherwise specified, refer also to the 

corresponding provisions of the Code. 

repayment of the Subsequent Notes held 

by the Plan; 

(k) Any extension of the maturity date 

of the Subsequent Notes is subject to the 

approval of the I/F; and 

(l) The Notes will be partially 

guaranteed by certain family trusts, 

based on the respective ownership of 

such trusts of interests in Minneola; and 

unconditionally guaranteed by Mrs. 

Emack and Mrs. Strimenos, who jointly 

and severally will guarantee payment of 

the aggregate amount of such notes in 

full. 

Proposed Exemption 

The Department is considering 

granting an exemption under the 

authority of section 408(a) of the 

Employee Retirement Income Security 

Act of 1974 (the Act) and section 

4975(c)(2) of the Internal Revenue Code 

of 1986, as amended (the Code), and in 

accordance with the procedures set 

forth in 29 CFR part 2570, subpart B (76 

FR 66637, 66644, October 27, 2011). 

Section I: Retroactive Transactions 

If the proposed exemption is granted, 

the restrictions of sections 406(a)(1)(A), 

406(a)(1)(B), 406(a)(1)(E), 406(a)(2), 

406(b)(1), 406(b)(2), and 407 of the Act 

and the sanctions resulting from the 

application of section 4975 of the Code, 

by reason of section 4975(c)(1)(A), 

4975(c)(1)(B), and 4975(c)(1)(E) of the 

Code,5 shall not apply, effective 

September 15, 2011, through December 

28, 2012, to the following transactions, 

provided that the conditions, as set forth 

in Section II and Section V of this 

proposed exemption, are satisfied; 

(a) The contribution in-kind to the 

Plan of two (2) promissory notes (Note 

#1 and Note #2), of a series of twentynine (29) numbered promissory notes 

(collectively, the ‘‘Notes’’ and 

individually, ‘‘Note #1 through Note 

#29’’), as defined below in Section 

VI(d), by Family Dynamics, Inc. (FDI), 

the sponsor of the Plan, for the purpose 

of satisfying the minimum funding 

obligation of FDI to the Plan for the plan 

year ending December 31, 2010; 

(b) The holding by the Plan of Note 

#1 and Note #2 until December 28, 

2012; 

(c) The extension of credit by the Plan 

to Minneola AG, LLC (Minneola), the 

issuer of the Notes and a party in 

interest with respect to the Plan, 

resulting from the holding of Note #1 

and Note #2 by the Plan; 

(d) The extension of credit to the Plan: 

(1) by certain stockholders of FDI; and 

(2) by the members of Minneola, by 

reason of each such stockholder’s and/ 

or each such member’s personal 

guaranty of all or a portion of the face 

amounts, plus accrued interest thereon, 

of Note #1 and Note #2; and 

(e) The redemption of Note #1 and 

Note #2 on December 28, 2012, by 

Minneola for a cash payment that 

equaled the fair market value of such 

notes, including principal and all 

accrued interest thereon through the 

date of redemption. 

Section II: Conditions for Retroactive 

Transactions 

(a) Prior to the in-kind contribution of 

Note #1 and Note #2, the fair market 

value of such notes was determined to 

be at least $2,316,047, as determined by 

an independent, qualified appraiser (the 

IQA); 

(b) Prior to the in-kind contribution of 

Note #1 and Note #2, FDI engaged the 

law firm of Alston and Bird, LLP (A&B), 

and FDI thereafter contributed Note #1 

and Note #2 in a manner consistent with 

written guidance provided by A&B on 

September 10, 2011; 

(c) The Notes were redeemed for 

$2,616,702.01, providing the Plan with 

a 10.39 percent (10.39%) annual rate of 

return in connection with its holding of 

Note #1 and Note #2; 

(d) The terms and conditions of the 

transactions, as described in Section I, 

were no less favorable to the Plan than 

the terms and conditions negotiated at 

arm’s length under similar 

circumstances between unrelated 

parties; 

(e) The Plan did not incur any 

commissions, fees, costs, other charges, 

or expenses in connection with the 

acquisition, the in-kind contribution, 

the holding, and/or the redemption of 

Note #1 and Note #2, except for the fees 

of a qualified, independent fiduciary 

acting on behalf of the Plan (the I/F), as 

defined below in Section VI(c), or 

persons engaged by the I/F on behalf of 

the Plan. 

Section III: Prospective Transactions 

If the proposed exemption is granted, 

the restrictions of sections 406(a)(1)(A), 

406(a)(1)(B), 406(a)(1)(E), 406(a)(2), 

406(b)(1), 406(b)(2), and 407 of the Act 

and the sanctions resulting from the 

application of section 4975 of the Code, 

by reason of section 4975(c)(1)(A), 

4975(c)(1)(B), and 4975(c)(1)(E) of the 

Code, shall not apply as of the date the 

final exemption is published in the 

Federal Register and ending on the last 

day certain of the Notes (the Subsequent 

Notes), as defined below in Section 

VI(m), are held by the Plan, to the 

following transactions, provided that 

the conditions as set forth in Section IV 

and Section V of this proposed 

exemption are satisfied: 

(a) The contribution in-kind to the 

Plan of the Subsequent Notes for the 

purpose of satisfying FDI’s minimum 

funding obligations to the Plan; 

(b) The holding of the Subsequent 

Notes until the maturity date of such 

notes; 

(c) The extension of credit by the Plan 

to Minneola resulting from the holding 

of the Subsequent Notes by the Plan; 

(d) The extension of credit to the Plan 

by: (1) Certain major stockholders of 

FDI; and (2) the members of Minneola 

that are family trusts, by reason of each 

such stockholder’s and/or each such 

member’s personal guaranty of all or a 

portion of the face amount, plus accrued 

interest thereon, of any of the 

Subsequent Notes; and 

(e) The redemption by FDI, Family 

Dynamics Land Company, LLC (FDLC), 

Minneola, or any affiliate thereof, as 

affiliate is defined below in Section 

VI(a), of any of the Subsequent Notes on 

or before the maturity date of such notes 

for the greater of: (1) The aggregate 

principal plus accrued interest thereon 

of such notes, as of the date of 

redemption; or (2) the fair market value 

of such notes, as determined by an IQA, 

as of the date of redemption. 

Section IV: Conditions for Prospective 

Transactions 

(a) The terms and conditions of the 

transactions will be no less favorable to 

the Plan than the terms and conditions 

negotiated at arm’s length under similar 

circumstances between unrelated 

parties; 

(b) The terms of the transactions, as 

described in Section III, are determined 

in advance by the I/F, acting on behalf 

of the Plan, to be administratively 

feasible, in the interest of, and 

protective of the Plan and its 

participants and beneficiaries; 

(c) The I/F is engaged with full 

discretionary authority to act on behalf 

of the Plan with respect to each of the 

Subsequent Notes contributed in-kind of 

the Plan, including the exercise of any 

of the rights of the Plan under such 

notes, and the responsibility to monitor 

such notes, and to ensure compliance by 

FDI, Minneola, FDLC, and any affiliates 

thereof, with the terms and conditions 

of such notes, and with the terms and 

conditions of this proposed exemption; 

(d) The Subsequent Notes will be 

contributed in-kind to the Plan in the 

next order of seniority of such notes 

(i.e., Note #3, Note #4, Note #5, etc.); 

(e) Prior to the in-kind contribution of 

any of the Subsequent Notes, the fair 

market value of such notes will be 


emcdonald on DSK67QTVN1PROD with NOTICES
43090 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

determined by an IQA, engaged by the 

I/F. The fair market value must reflect 

the then-current terms of such 

Subsequent Notes, and take into account 

all factors deemed relevant, including 

the then-current value of a certain 

parcel of real property (the Property), as 

defined below in Section VI(f), all or a 

portion of which secures such notes, as 

well as the additional pledges and 

covenants the I/F has negotiated on 

behalf of the Plan; 

(f) Upon the contribution in-kind of 

any Subsequent Notes to the Plan, 

(1) The Plan receives a recorded, 

perfected security interest in the 

Property (or in a relevant portion of 

such Property) (the Security Interest) 

and retains such Security Interest until 

the Plan no longer holds any 

Subsequent Notes; and 

(2) The Property in which the Plan 

holds the Security Interest has, at all 

times throughout the duration of the 

contributed Subsequent Notes, an 

appraised value equal to a minimum of 

five (5) times the aggregate outstanding 

balance, including all principal and 

accrued interest thereon, of all of the 

Subsequent Notes held by the Plan, 

where such appraised value is 

determined by an IQA, 

(A) Immediately after the most recent 

contribution in-kind of such Subsequent 

Notes; and 

(B) Immediately after the sale or 

disposition of any portion of the 

Property; 

(g) The aggregate fair market value, as 

determined pursuant to Section IV(e) 

above, of the Subsequent Notes 

proposed to be contributed in-kind to 

the Plan shall not exceed 20% of the fair 

market value of the total assets of such 

Plan, in each case determined by the I/ 

F immediately after the in-kind 

contribution of such notes; 

(h) The Plan will not incur any 

commissions, fees, costs, other charges, 

or expenses in connection with the 

acquisition, the in-kind contribution, 

the holding, and/or the redemption of 

any of the Subsequent Notes, including 

the fees and expenses of the I/F, and the 

fees and expenses of an IQA, counsel, or 

other persons engaged by the I/F; 

(i) If, at any time, the fair market value 

of the Property, all or a portion of which 

serves as collateral for the Subsequent 

Notes contributed in-kind to the Plan, is 

less than 150 percent (150%) of the 

aggregate outstanding principal balance 

and accrued interest of such notes held 

by the Plan, the Plan has the right, 

exercisable on 120 days’ prior written 

notice by the I/F to FDI, to accelerate the 

payment of such notes in order to cause 

the fair market value of the Property to 

be at least 150 percent (150%) of the 

aggregate outstanding principal and 

accrued interest amount of such 

Subsequent Notes; 

(j) If, at any time, the I/F determines 

that the Plan does not have sufficient 

liquidity to meet its projected 12-month 

forward expense obligations (including 

benefit payment obligations), the Plan 

has a right, exercisable, by the I/F, on 

ninety (90) days’ prior written notice to 

FDI, to accelerate the repayment of the 

Subsequent Notes held by the Plan; 

(k)(1) FDI provides to the I/F a report 

from the custodian of the Plan no later 

than ten (10) days after the end of each 

calendar quarter detailing the assets of 

the Plan (excluding the Subsequent 

Notes held by the Plan) as of the last day 

of the calendar quarter just ended so 

long as the Plan owns any Subsequent 

Notes; and 

(2) FDI provides to the I/F, not later 

than thirty (30) days after the written 

request of the I/F, a report from the 

actuary of the Plan projecting the Plan’s 

forward expense obligations for the 

following twelve (12) months; 

(l) The following FDI-related entities: 

Yeehaw Ranch Land, LLC (Yeehaw), 

PMCC, LLC (PMCC), Bi-Coastal 

Holdings, LLC (Bi-Coastal), and Arcadia 

Holdings, LLC (Arcadia): Will covenant 

with FDI to use the ‘‘available 

proceeds,’’ as defined in Section VI(1), 

from the sale of any real property owned 

by such entities, and all net royalties 

received by Arcadia from third parties, 

to pay off any debts owned by such 

entities to FDI. At the option of FDI, 

such available proceeds and such 

royalties either will be contributed to 

the Plan (as a current contribution or a 

pre-contribution of a future funding 

obligation) or will be loaned to 

Minneola with a written direction that 

Minneola pay the proceeds of such loan 

to the Plan as payment on any of the 

Subsequent Notes held by the Plan; 

(m) The covenants and agreements 

described in Section IV(m) above of this 

proposed exemption are entered into 

prior to any in-kind contribution of any 

Subsequent Notes to the Plan; and such 

notes will be amended to treat a breach 

of any such covenants and agreements 

as an event of default under such notes; 

(n) FDLC enters into a covenant 

agreement with the Plan, pursuant to 

which FDLC covenants to: (1) Refrain 

from mortgaging the Property; and (2) 

distribute to Minneola the net proceeds 

(after the payment of expenses) from the 

sale of all or a portion of the Property 

by FDLC. If any mortgage is placed on 

the Property, such mortgage will create 

a default under the Subsequent Notes 

held in the Plan that will allow the Plan 

to enforce its rights under such a 

default; 

(o) FDI enters into an agreement with 

the Plan, whereby FDI shall apply all 

the funds that FDI receives during the 

Prospective Exemption Period, as 

defined below in Section VI(e), with 

respect to certain of FDI’s illiquid assets, 

as defined below in Section VI(k), either 

to the repayment of the principal and 

accrued interest on the Subsequent 

Notes then held in the Plan, or to the 

use of such funds to satisfy FDI’s 

current and future funding obligations 

to the Plan; 

(p) FDI will cause Minneola, at the 

option of FDI, either to pay to the Plan 

any funds Minneola receives from FDLC 

to the Plan, as payment on the 

Subsequent Notes held in the Plan, or to 

loan such funds to FDI for the purpose 

of FDI making a contribution to the Plan 

within thirty (30) days of such loan 

(either as a current contribution or a 

pre-contribution of a future funding 

obligation); 

(q) Any extension of the maturity date 

of the Subsequent Notes is subject to the 

approval of the I/F; and 

(r) The Notes are partially guaranteed 

by certain family trusts, based on the 

respective ownership of such trusts of 

interests in Minneola; and 

unconditionally guaranteed by Mrs. Gail 

Gregg-Strimenos and Mrs. Jeannie 

Gregg-Emack, who jointly and severally 

guarantee payment of the aggregate 

amount of such notes in full. 

Section V: General Conditions 

(a) FDI, Minneola, FDLC, and any 

affiliates thereof, as applicable, maintain 

or causes to be maintained within the 

United States, starting on September 15, 

2011, and ending on the date which is 

six (6) years after the last day any of the 

Subsequent Notes is held by the Plan, 

the records necessary to enable the 

persons, described below in Section 

V(b)(1)(A)–(C), to determine whether the 

conditions of this proposed exemption 

have been met, except that: 

(1) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of FDI, Minneola, 

FDLC, or their affiliates, as applicable, 

such records are lost or destroyed prior 

to the end of the six (6) year period, 

described in Section V(a) above, and 

(2) No party in interest with respect 

to the Plan, other than FDI, Minneola, 

FDLC, and their affiliates, as applicable, 

shall be subject to the civil penalty that 

may be assessed under section 502(i) of 

the Act, or to the taxes imposed by 

section 4975(a) and (b) of the Code, if 

the records are not maintained, or are 

not available for examination, as 

required, below, by Section V(b)(1). 


emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 43091 

(b)(1) Except as provided in Section 

V(b)(2), and notwithstanding any 

provisions of subsections (a)(2) and (b) 

of section 504 of the Act, the records 

referred to, above, in Section V(a) are 

unconditionally available for 

examination at their customary location 

during normal business hours by: 

(A) Any duly authorized employee or 

representative of the Department, or the 

Internal Revenue Service; and 

(B) Any fiduciary of the Plan, and any 

duly authorized representative of such 

fiduciary; and 

(C) Any participant or beneficiary of 

the Plan, and any duly authorized 

representative of such participant or 

beneficiary; 

(2) None of the persons, described 

above in Section V(b)(1)(B) through (C), 

shall be authorized to examine trade 

secrets of FDI, Minneola, FDLC, or their 

affiliates or commercial or financial 

information which is privileged or 

confidential. 

Section VI: Definitions 

(a) An ‘‘affiliate’’ of a person includes: 

(1) Any person directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with the person; 

(2) Any officer, director, employee, 

relative, or partner in any such person; 

and 

(3) Any corporation or partnership of 

which such person is an officer, 

director, partner, or employee. 

(b) The term ‘‘control’’ means the 

power to exercise a controlling 

influence over the management or 

policies of a person other than an 

individual. 

(c) The term ‘‘I/F’’ means Gallagher 

Fiduciary Advisers, LLC or any 

successor that has satisfied all of the 

criteria for a ‘‘qualified independent 

fiduciary’’ within the meaning of 29 

CFR 2570.31(j). 

(d) The term ‘‘Notes’’ means a series 

of twenty-nine (29) promissory notes 

(declining in seniority from Note#1 to 

Note#29), issued by Minneola and 

acquired by FDI from Minneola as a 

result of the sale of FDLC which owns 

the Property by FDI to Minneola. Each 

of the Notes has a face value of 

$1,000,000, except for Note#29, which 

has a face value of $1,330,000. Each of 

the Notes has an interest rate of 4.53 

percent (4.53%) per annum 

compounded semi-annually. 

(e) The term ‘‘Prospective Exemption 

Period’’ means the period beginning on 

the date of publication in the Federal 

Register of the grant of this proposed 

exemption and ending on the last day 

any of the Subsequent Notes is held by 

the Plan. 

(f) The term ‘‘Property’’ means a 

certain tract of approximately 1,770 

acres of real estate which is located in 

the City of Minneola, Florida. 

(g) The term ‘‘Minneola’’ means 

Minneola AG, LLC, a Florida limited 

liability company. 

(h) The term ‘‘FDI’’ means Family 

Dynamics, Inc., a Florida corporation. 

(i) The term ‘‘FDLC’’ means Family 

Dynamics Land Company, LLC, a 

Florida limited liability company. 

(j) The term ‘‘Plan’’ means the Family 

Dynamics, Inc. Pension Plan. 

(k) The phrase ‘‘FDI’s illiquid assets’’ 

means the following assets: 

(1) A $6.730 million dollar note from 

Yeehaw; 

(2) A $2.872 million dollar note from 

PMCC; 

(3) A $5.463 million dollar note from 

Bi-Coastal the sole owner of Arcadia; 

(4) A non-recourse loan to a Gregg 

family member in the amount of $5.661 

million dollars; 

(5) The Notes with an aggregate value 

of $35.757 million dollars issued by 

Minneola and held by FDI which are the 

subject of this proposed exemption; and 

(6) Miscellaneous assets worth $0.403 

million dollars. 

(l) The term ‘‘available proceeds’’ 

means the proceeds from the sale of 

property less: (1) All reasonable 

expenses, including any brokerage 

commissions, payable to parties 

unrelated to FDI or its principals/

beneficial owners; and (2) all debt 

required to be paid as a condition to 

closing on such sale to obtain a release 

of any mortgage on such property. 

(m) The term ‘‘Subsequent Notes’’ 

means Note#3 through Note#29. 

Notice To Interested Persons 

The persons who may be interested in 

the publication in the Federal Register 

of the Notice of Proposed Exemption 

include all the participants and the 

beneficiaries of deceased participants in 

the Plan at the time the proposed 

exemption is issued. 

It is represented that all such 

interested persons will be notified of the 

publication of the Notice by first class 

mail, to each such interested person’s 

last known address within fifteen (15) 

days of publication of the Notice in the 

Federal Register. Such mailing will 

contain a copy of the Notice, as it 

appears in the Federal Register on the 

date of publication, plus a copy of the 

Supplemental Statement, as required, 

pursuant to 29 CFR 2570.43(a)(2), which 

will advise all interested persons of 

their right to comment and to request a 

hearing. All written comments and/or 

requests for a hearing must be received 

by the Department from interested 

persons within 45 days of the 

publication of this proposed exemption 

in the Federal Register. 

All comments will be made available 

to the public. 

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 section 4975(c)(2) 

of the Code does not relieve a fiduciary 

or other party in interest or disqualified 

person from certain other provisions of 

the Act and the Code, including any 

prohibited transaction provisions to 

which the proposed exemption does not 

apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which require, among other 

things, a fiduciary to discharge his or 

her duties respecting a plan solely in the 

interest of the participants and 

beneficiaries of a plan and in a prudent 

fashion in accordance with section 

404(a)(1)(B) of the Act; nor does it affect 

the requirements of section 404(a) of the 

Code that a plan operate for the 

exclusive benefit of the employees of 

the employer maintaining a plan and 

their beneficiaries; 

(2) Before a proposed exemption can 

be granted under section 408(a) of the 

Act and section 4975(c)(2) of the Code, 

the Department must find that the 

exemption is administratively feasible, 

in the interest of a plan and of its 

participants and beneficiaries and 

protective of the rights of participants 

and beneficiaries of a plan; 

(3) This proposed exemption, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and the Code, 

including statutory or administrative 

exemptions. 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) This proposed exemption, if 

granted, is subject to the express 

condition that the facts and 

representations set forth in this notice, 

accurately describe, where relevant, the 

material terms of the transactions to be 

consummated pursuant to this proposed 

exemption. 

Written Comments and Hearing 

Requests 

All interested person are invited to 

submit written comments and/or 

requests for a public hearing on the 

proposed exemption to the address, as 

set forth above, within the time frame, 

as set forth above. All comments and 


emcdonald on DSK67QTVN1PROD with NOTICES
43092 Federal Register / Vol. 79, No. 142 / Thursday, July 24, 2014 / Notices 

requests for a public hearing will be 

made a part of the record. Comments 

and hearing requests should state the 

reasons for the writer’s interest in the 

proposed exemption. A request for a 

public hearing must also state the issues 

to be addressed and include a general 

description of the evidence to be 

presented at the hearing. Comments and 

hearing requests received will also be 

available for public inspection with the 

referenced application at the address, as 

set forth above. 

Signed at Washington, DC, this 11th day of 

July, 2014. 

Lyssa E. Hall, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2014–17425 Filed 7–23–14; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–85,104] 

Fisher and Ludlow, a Nucor Company, 

Saegertown, Pennsylvania; Notice of 

Revised Determination on 

Reconsideration 

On May 28, 2014, the Department 

issued an Affirmative Determination 

Regarding Application for 

Reconsideration of the negative 

determination regarding workers’ 

eligibility to apply for Alternative Trade 

Adjustment Assistance (ATAA) 

applicable to workers and former 

workers of Fisher and Ludlow, a Nucor 

Company, Saegertown, Pennsylvania 

(subject firm). The Department’s Notice 

was published in the Federal Register 

on June 13, 2014 (79 FR 33955). 

The group eligibility requirements for 

workers of a firm under Section 

246(a)(3)(A)(ii) of the Trade Act are 

satisfied if the following criteria are met: 

(I) Whether a significant number of 

workers in the workers’ firm are 50 years of 

age or older; 

(II) Whether the workers in the workers’ 

firm possess skills that are not easily 

transferable; and 

(III) The competitive conditions within the 

workers’ industry (i.e., conditions within the 

industry are adverse). 

The negative determination for ATAA 

was based on the findings that Section 

246(a)(3)(A)(ii)(II) was not met because 

the workers in the workers’ firm possess 

skills that are easily transferrable and 

Section 246(a)(3)(A)(ii)(III) was not met 

because conditions within the workers’ 

industry were not found to be adverse. 

During the reconsideration 

investigation, the Department collected 

information from the subject firm which 

revealed that the group eligibility 

requirements under Section 

246(a)(3)(A)(ii) of the Trade Act was 

satisfied. 

Conclusion 

After careful review of the additional 

facts obtained on reconsideration, I 

determine that workers of the subject 

firm meet the worker group certification 

criteria under Section 222(a) of the Act, 

19 U.S.C. § 2272(a). In accordance with 

Section 223 of the Act, 19 U.S.C. § 2273, 

I make the following certification: 

All workers of Fisher and Ludlow, a Nucor 

Company, Saegertown, Pennsylvania, who 

became totally or partially separated from 

employment on or after February 27, 2013, 

through April 8, 2016, are eligible to apply 

for adjustment assistance under Chapter 2 of 

Title II of the Trade Act of 1974, as amended, 

and are also eligible to apply for alternative 

trade adjustment assistance under Section 

246 of the Trade Act of 1974, as amended. 

Signed in Washington, DC, this 7th day of 

July, 2014. 

Del Min Amy Chen, 

Certifying Officer, Office of Trade Adjustment 

Assistance. 

[FR Doc. 2014–17435 Filed 7–23–14; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–82,838] 

Apria Healthcare, LLC, Billing 

Department, Overland Park, Kansas; 

Notice of Revised Determination on 

Remand 

On February 28, 2014, the U.S. Court 

of International Trade (USCIT) granted 

the U.S. Department of Labor’s 

(Department’s) motion for voluntary 

remand for further investigation in 

Former Employees of Apria Healthcare, 

LLC, Billing Department, Overland Park, 

Kansas v. U.S. Secretary of Labor, Case 

No. 13–00409. 

On June 24, 2013, the state workforce 

office filed a petition for Trade 

Adjustment Assistance (TAA) on behalf 

of workers of Apria Healthcare, LLC 

(hereafter referred to as ‘‘the subject 

firm’’), Billing Department, Overland 

Park Kansas (TA–W–82,838; hereafter 

referred to as ‘‘the Billing Department’’), 

and Apria Healthcare, LLC, Document 

Imaging Department, Overland Park, 

Kansas (TA–W–82,838A; hereafter 

referred to as ‘‘the Document Imaging 

Department’’). 

The initial investigation revealed that 

workers within the Billing Department 

were engaged in employment related to 

the supply of medical billing services; 

workers within the Document Imaging 

Department were engaged in 

employment related to the supply of 

patient record management services; 

workers within the two different 

departments were separately 

identifiable by services performed and, 

therefore, were treated as separate 

subject worker groups; and a significant 

number or proportion of workers within 

each subject worker group were totally 

or partially separated from employment. 

Although certification was granted for 

the Document Imaging Department 

under TA–W–82,838A, a negative 

determination was initially made 

regarding the Billing Department under 

TA–W–82,838. The Department 

determined that the subject firm 

acquired from a foreign country the 

supply of services like or directly 

competitive with those services 

provided by the workers within the 

Document Imaging Department. 

Consequently, workers within the 

Document Imaging Department were 

determined to be a group eligible to 

apply for TAA. The workers in the 

billing number, however, were not 

determined to be an eligible worker 

group. The negative determination 

issued under TA–W–82,838 was based 

on the Department’s findings that the 

subject firm did not shift to, or acquire 

from, a foreign country the supply of 

services like or directly competitive 

with those supplied by the workers 

within the Billing Department and that 

the subject firm did not import services 

like or directly competitive services 

with those supplied by the workers 

within the Billing Department. 

The negative determination regarding 

workers’ eligibility to apply for TAA 

under TA–W–82,838 was issued on 

September 5, 2013. The Department’s 

Notice of determinations was published 

in the Federal Register on October 3, 

2013 (78 FR 61392). 

By application dated September 19, 

2013, a worker in the Billing 

Department requested administrative 

reconsideration of the Department’s 

negative determination regarding TA– 

W–82,838. The request for 

reconsideration alleged that the 

separated worker ‘‘did the N and K 

report which was electronic rejections 

from India and my job was to tell them 

how to get the claim to go through. Lots 

of times the claims had to be dropped 

onshore (meaning United States) . . . I 

do have documentation and emails . . . 

to support my facts.’’ Following the 

receipt of the request for 


emcdonald on DSK67QTVN1PROD with NOTICES