17214 Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices

6The Department notes the applicant’s

representation that the Plan’s lost opportunity costs

with respect to the $771,715 will be calculated

based upon an assumed rate of return equal to the

interest rate paid on the Plan’s money market

investments for the period from February 29, 1996

to December 31, 1996, and thereafter, the interest

rate paid on money market funds offered by the

Plan to participants. (Effective as of January 1, 1997,

the Plan permitted participants to direct the

investment of their respective individual accounts).

appears to have been a commingled

account whose assets were used by

Bennett in an, as yet, unascertained

fashion.

The result of these alleged fraudulent

activities, finally, was a build-up of cash

obligations which Bennett could no

longer pay through the sale of new

Notes. Bennett’s liabilities exceed a

billion dollars, and amounts due to

unsecured creditors, among which Note

holders are currently included, exceed

$800 million. The Employer has filed

claims with the insurers whose

certificates of insurance were issued to

investors in the Notes. However, these

insurers have taken the position that

such certificates were bogus and that no

insurance existed. The bankruptcy

trustee has sued the insurers, alleging,

among other things, complicity in

Bennett’s fraudulent scheme.

4. Whatever amount, if any, that the

Plan is able to recover with respect to

the Notes in litigation or otherwise, it is

likely to suffer enormous losses. The

Employer proposes, therefore, to make

the Plan whole with a Restoration

Payment covering the face amount of

the Notes and accrued interest as of

February 29, 1996, the end of the last

month for which interest was credited

in respect of the Notes ($771,715), plus

an amount for lost opportunity costs

attributable to the Notes (approximately

$21,473, as of September 30, 1996) for

the period from February 29, 1996 to the

date immediately prior to the date that

the Restoration Payment is deposited in

the Plan.6 The Plan will refund the

Restoration Payment to the Employer

only to the extent of any amount that

the Plan is able to recover from Bennett.

The Employer is bearing all expenses of

prosecuting the Plan’s claims in respect

of the Notes, including those relating to

Bennett’s bankruptcy proceedings, as

well as the costs of this exemption

application.

Effective as of January 1, 1997, the

Plan was converted to a self-directed,

individual account plan, administered

by The Chase Manhattan Bank.

Therefore, the Restoration Payment will

be allocated to each participant account

in proportion to its allocated share of

the net asset value of the entire Plan

portfolio. The Employer has requested a

ruling from the Internal Revenue

Service that the Restoration Payment

does not constitute a ‘‘contribution’’ or

other payment that will disqualify the

Plan.

5. In summary, the applicant

represents that the proposed

transactions satisfy the statutory criteria

for an exemption under section 408(a) of

the Act for the following reasons:

(1) The Restoration Payment will

enable the Plan to immediately recover

the face amount of the Notes and

accrued interest as of the date of default,

plus lost opportunity costs attributable

to the Notes since that date; (2) any

Recapture Payments will be restricted

solely to the amounts, if any, recovered

by the Plan with respect to the Notes in

litigation or otherwise; and (3) the

Employer must receive a favorable

ruling from the Internal Revenue

Service that the Restoration Payment

does not constitute a ‘‘contribution’’ or

other payment that will disqualify the

Plan.

Notice to Interested Persons

Notice of the proposed exemption

shall be given to all interested persons

by personal delivery or by first-class

mail within 15 days of the date of

publication of this notice of pendency

in the Federal Register. Such notice

shall include a copy of this notice of

pendency as published in the Federal

Register and shall inform interested

persons of their right to comment and/

or request a hearing with respect to the

proposed exemption. Comments and

requests for a hearing are due within 45

days of the date of publication of this

notice in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Ms.

Karin Weng of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

General Information

The attention of interested persons is

directed to the following:

(1) The fact that a transaction is the

subject of an exemption under section

408(a) of the Act and/or section

4975(c)(2) of the Code does not relieve

a fiduciary or other party in interest of

disqualified person from certain other

provisions of the Act and/or the Code,

including any prohibited transaction

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) Before an exemption may be

granted under section 408(a) of the Act

and/or section 4975(c)(2) of the Code,

the Department must find that the

exemption is administratively feasible,

in the interests of the plan and of its

participants and beneficiaries and

protective of the rights of participants

and beneficiaries of the plan;

(3) The proposed exemptions, if

granted, will be supplemental to, and

not in derogation of, any other

provisions of the Act and/or the Code,

including statutory or administrative

exemptions and transitional 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

(4) The proposed exemptions, if

granted, will be subject to the express

condition that the material facts and

representations contained in each

application are true and complete and

accurately describe all material terms of

the transaction which is the subject of

the exemption. In the case of continuing

exemption transactions, if any of the

material facts or representations

described in the application change

after the exemption is granted, the

exemption will cease to apply as of the

date of such change. In the event of any

such change, application for a new

exemption may be made to the

Department.

Signed at Washington, DC, this 3rd day of

April, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

Department of Labor.

[FR Doc. 97–8973 Filed 4–8–97; 8:45 am]

BILLING CODE 4510–29–P

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

Sunshine Act Meeting

April 3, 1997.

PREVIOUSLY ANNOUNCED TIME AND DATE:

10:00 a.m., Thursday, March 20, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

CHANGES IN THE MEETING: The

Commission postponed until April 23,

1997, oral argument on the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 94–74.
Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices 17215

PREVIOUSLY ANNOUNCED TIME AND DATE:

11:15 a.m., Thursday, March 20, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Closed [Pursuant to 5 U.S.C.

§ 552b(c)(10)].

CHANGES IN THE MEETING: The

Commission postponed until April 23,

1997, oral argument on the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 94–74.

PREVIOUSLY ANNOUNCED TIME AND DATE:

2:00 p.m., Thursday, March 20, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

CHANGES IN THE MEETING: The

Commission postponed until April 23,

1997, oral argument on the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 95–267.

PREVIOUSLY ANNOUNCED TIME AND DATE:

3:15 p.m., Thursday, March 20, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Closed [Pursuant to 5 U.S.C.

§ 552b(c)(10)].

CHANGES IN THE MEETING: The

Commission postponed until April 23,

1997, oral argument on the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 94–267.

TIME AND DATE: 10:00 a.m., Thursday,

April 10, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will consider and act upon

the following:

1. Secretary of Labor v. Alpha Mining

Co. et al, Docket Nos. KENT 94–1194,

etc. (Issues include whether the judge

properly vacated citations against

individual respondents because the

Secretary failed to allege that their

possession of smoking items was

circumstantial evidence of smoking and

whether the judge erred in concluding

that an empty cigarette package and a

cigarette butt are not ‘‘smoking

materials’’ within the meaning of 30

U.S.C. § 877(c).).

TIME AND DATE: 2:00 p.m., Thursday,

April 10, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Closed [Pursuant to 5 U.S.C.

§ 552b(c)10)].

MATTERS TO BE CONSIDERED: It was

determined by a unanimous vote of the

Commissioners that the Commission

consider and act upon the following in

closed session:

1. Contractors Sand & Gravel Supply,

Inc. v. Secretary of Labor, Docket No.

EAJ 96–3 (Issues include whether the

Commission has jurisdiction to review

the decision of the administrative law

judge issued pursuant to the Equal

Access to Justice Act and whether the

position of the Secretary was

substantially justified in the underlying

proceeding.).

TIME AND DATE: 10:00 a.m., Thursday,

April 17, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will consider and act upon

the following:

1. Secretary of Labor v. Bluestone

Coal Corp., Docket Nos. WEVA 93–165–

R and 94–117 (Issues include whether

the judge correctly determined that the

operator did not violate 30 C.F.R.

§ 77.1600(b) by failing to standardize

and post traffic signs warning of a steep

downgrade in its haulage road, that the

operator violated 30 C.F.R. § 77.1607(c)

by failing to ensure that a coal haulage

truck was operated at a speed that is

prudent and consistent with the

conditions of the haulage road and

equipment, and that the violation was

significant and substantial.).

TIME AND DATE: 2:00 p.m., Thursday,

April 17, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will consider and act upon

the following:

1. Secretary of Labor v. Harold

Moody, employed by Grand River

Quarry, Inc., Docket No. CENT 95–214–

M (Issues include whether substantial

evidence supports the judge’s

determination that the individual

respondent was not liable for his

employer’s violation of 30 C.F.R.

§ 56.9300(b).)

TIME AND DATE: 10:00 a.m., Wednesday,

April 23, 1997 (Previously scheduled for

March 20, 1997).

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will hear oral argument on

the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 94–74 (Issues

include whether the judge’s conclusion

that the operator’s violation of 30 C.F.R.

§ 75.400’s prohibition against

accumulations of combustible materials

was significant and substantial is legally

correct and supported by substantial

evidence and whether the judge’s

conclusion that the violation was due to

the operator’s unwarrantable failure is

supported by substantial evidence).

TIME AND DATE: 11:15 a.m., Wednesday,

April 23, 1997 (Previously scheduled for

March 20, 1997).

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Closed [Pursuant to 5 U.S.C.

§ 552b(c)(10)].

MATTERS TO BE CONSIDERED: It was

determined by a unanimous vote of the

Commissioners that the Commission

consider and act upon the following in

closed session:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 94–74 (See oral

argument listing, supra, for issues).

TIME AND DATE: 2:00 p.m., Wednesday,

April 23, 1997 (Previously scheduled for

March 20, 1997).

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Open.

MATTERS TO BE CONSIDERED: The

Commission will hear oral argument on

the following:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 95–267 (Issues

include whether the judge was correct

in determining that the operator’s

failure to extend a line curtain within 40

feet of a working face, as required by its

ventilation plan, was the result of the

operator’s unwarrantable failure).

TIME AND DATE: 3:15 p.m., Wednesday,

April 23, 1997.

PLACE: Room 6005, 6th Floor, 1730 K

Street, N.W., Washington, D.C.

STATUS: Closed [Pursuant to 5 U.S.C.

§ 552b(c)(10)].

MATTERS TO BE CONSIDERED: It was

determined by a unanimous vote of the

Commissioners that the Commission

consider and act upon the following in

closed session:

1. Secretary of Labor v. Amax Coal

Co., Docket No. LAKE 95–267 (See oral

argument listing, supra, for issues).

Any person attending oral argument

or an open meeting who requires special

accessibility features and/or auxiliary

aids, such as sign language interpreters

must inform the Commission in advance

of those needs. Subject to 29 C.F.R.

§ 2706.150(a)(3) and § 2706.160(d).

CONTACT PERSON FOR MORE INFORMATION:

Jean Ellen, (202) 653–5629/(202) 708–

9300 for TDD Relay/1–800–877–8339

for toll free.

Jean H. Ellen,

Chief Docket Clerk.

[FR Doc. 97–9223 Filed 4–7–97; 12:52 pm]

BILLING CODE 6735–01–M