[Federal Register Volume 82, Number 123 (Wednesday, June 28, 2017)]
[Notices]
[Pages 29334-29344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13509]



[[Page 29334]]

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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Proposed Exemptions From Certain Prohibited Transaction 
Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of proposed exemptions.

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SUMMARY: This document contains notices of pendency before the 
Department of Labor (the Department) of proposed exemptions from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (ERISA or the Act) and/or the 
Internal Revenue Code of 1986 (the Code). This notice includes the 
following proposed exemptions: D-11895, The Grossberg, Yochelson, Fox & 
Beyda LLP Profit Sharing Plan; L-11867, Toledo Electrical Joint 
Apprenticeship & Training Fund; and D-11929 and D-11930, Health 
Management Associates, Inc. Retirement Savings Plan (the HMA Plan) and 
The Mooresville Retirement Savings Plan (the Mooresville Plan).

DATES: All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemptions, unless otherwise 
stated in the Notice of Proposed Exemption, within 45 days from the 
date of publication of this Federal Register Notice.

ADDRESSES: Comments and requests for a hearing should state: (1) The 
name, address, and telephone number of the person making the comment or 
request, and (2) the nature of the person's interest in the exemption 
and the manner in which the person would be adversely affected by the 
exemption. A request for a hearing must also state the issues to be 
addressed and include a general description of the evidence to be 
presented at the hearing. All written comments and requests for a 
hearing (at least three copies) should be sent to the Employee Benefits 
Security Administration (EBSA), Office of Exemption Determinations, 
U.S. Department of Labor, 200 Constitution Avenue NW., Suite 400, 
Washington, DC 20210. Attention: Application No. __, stated in each 
Notice of Proposed Exemption. Interested persons are also invited to 
submit comments and/or hearing requests to EBSA via email or FAX. Any 
such comments or requests should be sent either by email to: 
[email protected], or by FAX to (202) 693-8474 by the end of the 
scheduled comment period. The applications for exemption and the 
comments received will be available for public inspection in the Public 
Documents Room of the Employee Benefits Security Administration, U.S. 
Department of Labor, Room N-1515, 200 Constitution Avenue NW., 
Washington, DC 20210.
    Warning: All comments will be made available to the public. Do not 
include any personally identifiable information (such as Social 
Security number, 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.

SUPPLEMENTARY INFORMATION:

Notice to Interested Persons

    Notice of the proposed exemptions will be provided to all 
interested persons in the manner agreed upon by the applicant and the 
Department within 15 days of the date of publication in the Federal 
Register. Such notice shall include a copy of the notice of proposed 
exemption as published in the Federal Register and shall inform 
interested persons of their right to comment and to request a hearing 
(where appropriate).
    The proposed exemptions were requested in applications filed 
pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the 
Code, and in accordance with procedures set forth in 29 CFR part 2570, 
subpart B (76 FR 66637, 66644, October 27, 2011).\1\ Effective December 
31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. 
App. 1 (1996), transferred the authority of the Secretary of the 
Treasury to issue exemptions of the type requested to the Secretary of 
Labor. Therefore, these notices of proposed exemption are issued solely 
by the Department.
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    \1\ The Department has considered exemption applications 
received prior to December 27, 2011 under the exemption procedures 
set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 
10, 1990).
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    The applications contain representations with regard to the 
proposed exemptions which are summarized below. Interested persons are 
referred to the applications on file with the Department for a complete 
statement of the facts and representations.

The Grossberg, Yochelson, Fox & Beyda LLP Profit Sharing Plan (the Plan 
or Applicant) Located in Washington, DC

[Application D-11895]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR part 
2570, subpart B (76 FR 66637, 66644, October 27, 2011). If the 
exemption is granted, the restrictions of section 406(a)(1)(A) and (D) 
and section 406(b)(1) and (b)(2) of the Act, and the sanctions 
resulting from the application of section 4975 of the Code, by reason 
of section 4975(c)(1)(A), (D) and (E) of the Code,\2\ will not apply to 
the proposed sale (the Sale) by the Plan of a limited liability company 
interest (the LLC Interest) to GYFB-Commons, LLC (GYFB-Commons), an 
entity that will be owned by the current partners of the law firm, 
Grossberg, Yochelson, Fox & Beyda, LLP (the Plan Sponsor).
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    \2\ For purposes of this proposed exemption, references to 
section 406 of Title I of the Act, unless otherwise specified, 
should be read to refer as well to the corresponding provisions of 
section 4975 of the Code.
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Summary of Facts and Representations

The Plan Sponsor

    1. The Plan Sponsor is a commercial real estate law firm located in 
Washington, DC. Founded in 1930, the Plan Sponsor is organized as a 
general partnership. The Plan Sponsor's fourteen attorneys provide 
legal services in commercial real estate law through their focus on the 
acquisition, sale, financing, leasing and taxation of real property. In 
addition, the Plan Sponsor advises its clients on corporate and general 
business law, tax, estate planning and other areas of the law. The 
current Owners of the Plan Sponsor are: C. Richard Beyda, Lawrence A. 
Miller, Gerald P. Grossberg, Linton W. Hengerer, Richard F. Levin, 
Brett D. Orlove, and Michael D. Ravitch.

The Plan

    2. The Plan is a defined contribution plan having 24 participants 
as of December 31, 2016. As of December 31, 2015, the Plan had total 
assets of approximately $13,540,000.
    The Plan is comprised of a salary reduction source (401(k)), a non-
elective source (profit sharing), and a money purchase pension source 
(resulting from a prior plan merger). Messrs. Beyda, Miller, Grossberg, 
Levin, and Orlove are the Plan trustees (the Trustees), and in

[[Page 29335]]

this capacity, they have investment discretion over certain of the 
Plan's assets. The Trustees are also owners of the Plan Sponsor.
    3. Participants direct the investments in the employee-funded, 
salary reduction portion of the Plan into their respective individual 
accounts. TD Ameritrade serves as the custodian of the participant-
directed accounts under a 401(k) platform. As of December 31, 2015, the 
employee-funded portion of the Plan held total assets of $2,502,000.
    4. The Trustees direct the investments in the employer-funded, non-
elective and money purchase portions of the Plan. As of December 31, 
2015, the assets in the employer-funded portion of the profit sharing 
and the former money purchase plan assets) totaled $11,038,000. The 
assets in the employer-funded portion of the Plan consist of 
$10,461,000 in cash, and the LLC Interest described herein, with a book 
value of $577,000. Further, the assets of the employer-funded portion 
of the Plan are allocated $6,207,000 to near-retiring partners of the 
Plan Sponsor, and $4,831,000 to other Plan participants.

The LLC Interest

    5. On October 19, 2000, the Trustees acquired a 2.59067% membership 
interest in the LLC for the employer-funded portion of the Plan. The 
business purpose of the LLC is to own, develop and operate a 30% 
tenants-in-common interest initially in a multifamily residential 
apartment project in McLean, Virginia, known as ``The Commons of 
McLean'' (The Commons). The LLC has a termination date of December 31, 
2090, unless terminated earlier under the terms of the Articles of 
Organization of Common Investors, LLC (the Articles of Organization).
    6. The Plan paid $250,000, in cash, for the LLC Interest. At the 
time of the investment, the Plan was one of approximately fifty 
investors in the LLC (the LLC Members). The remaining 97.40933% LLC 
Interests were held by individuals, non-retirement plans and individual 
retirement accounts. According to the Applicant, none of the other LLC 
Members were or are currently affiliated with or related to the Plan or 
the Plan Sponsor.
    7. Investments from all LLC Members totaled $9,850,000. During 
2000, the LLC used the funds to complete its purchase of The Commons 
from an unrelated party. Also to complete the purchase, the LLC 
borrowed $13,690,500 from an unrelated commercial lender.
    8. During 2001, additional investors (unrelated to the Plan) were 
admitted to the LLC as LLC Members. As a result, the Plan's investment 
became diluted and was re-calculated by the Manager at 1.903553% of the 
LLC.
    9. Since its inception, the LLC has engaged in multiple real estate 
transactions, which have included selling The Commons, and acquiring 
various commercial and residential buildings in Washington, DC and 
Northern Virginia. Through 2016, the LLC has distributed $256,535.08 to 
the Plan.
    10. Pursuant to the LLC's Articles of Organization, a Member ``may 
not transfer, assign or encumber all or any part of his Membership 
Interest in the [LLC] without first obtaining the written consent of 
the Manager.'' The Trustees sought approval from the Manager to sell 
the LLC interest to an unrelated party. In a letter to the Trustees, 
dated December 22, 2015, the Manager refused to allow such sale, and 
also refused to purchase the LLC Interest. According to the Applicant, 
as a compromise, the Manager agreed to allow a sale of the LLC Interest 
by the Plan to an entity comprised of the Plan Sponsor's Owners.

Proposed Sale of the LLC Interest

    11. To improve the Plan's liquidity, the Trustees have decided to 
sell the LLC interest to GYFB-Commons, an entity, that will be formed 
and funded by the Owners as a limited liability company under the laws 
of the District of Columbia, when the exemption is granted. The 
Applicant represents that three Owners of the Plan Sponsor, Messrs. 
Beyda, Miller, Grossberg, anticipate retiring in the near future. 
According to the Applicant, following the payouts to the ``near-
retiring'' Owners, the remaining pooled investments ($4,772,000) will 
consist of $4,254,000 (89%) of cash securities, and the LLC Interest.
    12. The proposed Sale will be a one-time transaction for cash, 
whereby the Plan receive no less than the fair market value of the LLC 
Interest as determined by qualified independent appraiser (the 
Independent Appraiser) in an updated appraisal on the date of the Sale. 
Further, the terms and conditions of the Sale are no less favorable to 
the Plan than the terms the Plan would receive under similar 
circumstances in an arm's-length transaction with an unrelated third 
party. Finally, the Plan will not pay any commissions, fees, or other 
costs or expenses associated with the Sale, including the fees of the 
Independent Appraiser and the costs of obtaining the exemption, if 
granted.

Analysis

    13. Section 406(a)(1)(A) and (D) of the Act states that a fiduciary 
with respect to a plan shall not cause a plan to engage in a 
transaction if he knows or should know that such transaction 
constitutes a direct or indirect sale or exchange of any property 
between the Plan and a party in interest, or a transfer to, or use by 
or for the benefit of, a party in interest, of any assets of the Plan.
    GYFB-Commons is a party in interest with respect to the Plan under 
section 3(14)(G) of the Act because once it is formed, it will be an 
entity that is more than 50% owned by the Owners of the Plan Sponsor. 
In addition, as Trustees of the Plan, Messrs. Beyda, Miller, Grossberg, 
Levin and Orlove are parties in interest with respect to the Plan under 
section 3(14)(A) of the Act because they are fiduciaries. Therefore, in 
the absence of a statutory or an administrative exemption, the Sale by 
the Plan of the LLC Interest to GYFB-Commons would violate section 
406(a)(1)(A) and (D) of the Act.
    Section 406(b)(1) of the Act prohibits a plan fiduciary from 
dealing with the assets of the plan in his own interest or for his own 
account. Moreover, section 406(b)(2) of the Act prohibits a plan 
fiduciary, in his or her individual or in any other capacity, from 
acting in any transaction involving the plan on behalf of a party whose 
interests are adverse to the interests of the plan or the interests of 
its participants or beneficiaries.
    The Sale by the Plan of the LLC Interest to GYFB-Commons, would 
violate section 406(b)(1) of the Act because the Trustees, as 
fiduciaries, would be causing the Plan to sell the LLC Interest to 
themselves. In addition, the Sale would violate section 406(b)(2) of 
the Act because the Trustees, in approving the Sale, would be acting on 
both sides of the transaction.

Appraisal of LLC Interest

    14. In an engagement letter dated August 25, 2015, the Trustees 
retained Berlin, Ramos & Company, P.A. of Rockville, Maryland (the 
Appraiser), to determine the fair market value of the LLC Interest. 
Joseph K. Speicher, a principal and shareholder of the Appraiser, was 
responsible for appraising the LLC Interest, and issuing an appraisal 
report (the Appraisal Report) to the Trustees. Mr. Speicher represents 
that he is a Certified Public Accountant and a Certified Valuation 
Analyst. In addition, Mr. Speicher represents that he, and the 
Appraiser, do not have a relationship with any party in interest 
involved in the proposed transaction that would allow

[[Page 29336]]

those individuals to control or materially influence him or the 
Appraiser, to provide an independent and accurate determination of the 
fair market value of the LLC Interest. In this regard, Mr. Speicher 
states that during 2016, the Appraiser's revenues of $42,787.19 that 
were derived from parties in interest with respect to the Plan 
represented approximately 0.42% of the Appraiser's total gross revenues 
of $10,100,000.
    In an Appraisal Report dated May 25, 2016, Mr. Speicher determined 
the fair market value of LLC Interest as of September 15, 2015. Mr. 
Speicher limited his calculation to the ``Guideline Company Method'' 
under the Market Approach. In accordance with the Guideline Company 
Method, sales and other statistics of similar investments and sales 
transactions are analyzed to determine pricing multiples to be applied 
to the Company. Mr. Speicher represented that the multiple derived from 
the comparable company data is applied to the Net Asset Value of the 
LLC. Because each of the properties associated with the LLC was 
recently acquired, Mr. Speicher also stated that the fair market values 
of the properties and the balance of associated liabilities could be 
readily determined.
    As of September 30, 2015, Mr. Speicher determined that the net 
asset values of the LLC and the LLC Interest were $46,649,682 and 
$888,001, respectively. After applying a Price/Net Asset Value 
percentage of 73% to the net asset value of the LLC Interest, Mr. 
Speicher decided that the value of the Plan's non-controlling, 
marketable interest in the LLC was $648,000. Mr. Speicher next 
concluded that the $648,000 estimated value of the LLC Interest should 
be reduced by 20% (or $129,000) due to lack of marketability, and he 
ultimately placed the fair market value of the LLC Interest at 
$518,400, as of September 30, 2015. Based on Mr. Speicher's valuation, 
the LLC Interest would represent approximately 4% of the Plan's assets.
    In an addendum to the Appraisal Report dated November 30, 2016, Mr. 
Speicher concluded that there had been no material change in the value 
of the LLC Interest since September 30, 2015. He will update the 
Appraisal Report on the date of the Sale, and will provide the updated 
Appraisal Report to the Department, where it will be included in, and 
available, as part of the record developed under D-11895.

Statutory Findings

    14. The Applicant represents that the proposed transaction is 
administratively feasible because it is a one-time, all cash 
transaction. In addition, no borrowing or payment terms are necessary, 
and the Manager of the LLC (who has sole authority to approve or deny 
such a transaction) has approved the proposed purchase.
    The Applicant represents that the proposed transaction is in the 
interests of the Plan and its participants and beneficiaries because 
the Sale will: (a) Reduce the Plan's future administrative costs 
associated with its owning the LLC Interest; (b) allow the Plan to more 
completely diversify its investments, as appropriate; and (c) not 
require the Plan to pay any commissions, costs, or other expenses in 
connection with the proposed transaction. The Applicant also represents 
that the proposed transaction is protective of the rights of the Plan's 
participants and beneficiaries because the Sale will be for no less 
than the current fair market value of the LLC Interest, as determined 
by a qualified independent appraiser.

Summary

    15. Given the conditions described below, the Department has 
tentatively determined that the relief sought by the Applicant 
satisfies the statutory requirements for an exemption under section 
408(a) of the Act.

Proposed Exemption Operative Language

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR part 
2570, subpart B (76 FR 66637, 66644, October 27, 2011). If the 
exemption is granted, the restrictions of section 406(a)(1)(A) and (D) 
and section 406(b)(1) and (b)(2) of the Act, and the sanctions 
resulting from the application of section 4975 of the Code, by reason 
of section 4975(c)(1)(A), (D) and (E) of the Code,\3\ will not apply to 
the proposed sale (the Sale) by the Plan of a limited liability company 
interest (the LLC Interest) to GYFB-Commons, LLC (GYFB-Commons), an 
entity that will be owned by the current partners of the law firm, 
Grossberg, Yochelson, Fox & Beyda, LLP (the Plan Sponsor), if the 
following conditions are met:
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    \3\ For purposes of this proposed exemption, references to 
section 406 of Title I of the Act, unless otherwise specified, 
should be read to refer as well to the corresponding provisions of 
section 4975 of the Code.
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    (a) The Sale of the LLC Interest is a one-time transaction for 
cash;
    (b) The Sale price for the LLC Interest is the greater of: 
$518,400; or the fair market value of the LLC Interest as determined by 
a qualified independent appraiser (the Independent Appraiser) in an 
updated appraisal on the date of the Sale. The updated appraisal must 
be submitted to the Department within 30 days of the Sale and will be 
included as part of the record developed under D-11895;
    (c) The terms and conditions of the Sale are no less favorable to 
the Plan than the terms the Plan would receive under similar 
circumstances in an arm's-length transaction with an unrelated third 
party; and
    (d) The Plan pays no commissions, fees, or other costs or expenses 
associated with the Sale, including the fees of the Independent 
Appraiser and the costs of obtaining the exemption, if granted.

Notice to Interested Persons

    The Applicant will provide notice of the proposed exemption to all 
interested persons by either hand delivery (active participants) or via 
U.S. mail, certified return receipt (inactive participants and/or 
beneficiaries) within 10 days of the date of publication of this notice 
of proposed exemption in the Federal Register. Such notice will include 
a copy of the proposed exemption, as published in the Federal Register, 
and a supplemental statement, as required pursuant to 29 CFR 
2570.43(b)(2). The supplemental statement will inform interested 
persons of their right to comment on and/or to request a hearing with 
respect to the proposed exemption. Comments and requests for a hearing 
are due forty (40) days after publication of this notice in the Federal 
Register.
    All comments will be made available to the public.
    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: Blessed Chuksorji-Keefe of the 
Department, telephone (202) 693-8567. (This is not a toll-free number.)

Toledo Electrical Joint Apprenticeship & Training Fund (the Training 
Plan or the Applicant) Located in Rossford, Ohio

[Application No. L-11867]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA) and in accordance 
with the

[[Page 29337]]

procedures set forth in 29 CFR part 2570, subpart B (76 FR 46637, 
66644, October 27, 2011). If the exemption is granted, the restrictions 
of sections 406(a)(1)(A), 406(a)(1)(D), and 406(b)(1) and 406(b)(2) of 
the Act, shall not apply to the Purchase (the Purchase) by the Training 
Plan of certain unimproved real property (the Property) from the 
International Brotherhood of Electrical Workers Local Union No. 8 
Building Corporation (the Building Corporation), a party in interest 
with respect to the Training Plan.

Summary of Facts and Representations \4\
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    \4\ The Summary of Facts and Representations is based on the 
Applicant's representations and does not reflect the views of the 
Department, unless indicated otherwise.
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The Training Plan

    1. The Training Plan was established in November 1992 pursuant to a 
trust agreement (the Trust Agreement) entered into between the Toledo 
Chapter of the National Electrical Contractors Association, Inc. (the 
Contractors Association) \5\ and Local Union No. 8 of the International 
Brotherhood of Electrical Workers (the Union). The Training Plan was 
established to finance education and training programs sponsored by the 
Joint Apprenticeship Training Committee (the JATC).
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    \5\ The Applicant represents that the Toledo Chapter of the 
National Electrical Contractors Association, Inc. is an association 
of contractors that negotiates with unions to set wages, hours and 
terms of conditions of apprentices and journeymen.
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    The Training Plan provides training programs in electrical, rigging 
and other electrical construction skills to members of the Union. The 
Training Plan currently carries out its training functions in a 32,000 
square foot training facility located at 803 Lime City Road, Rossford, 
Ohio (the Existing Training Facility).
    The Training Plan is jointly administered by a board of trustees 
(the Trustees), consisting of equal representation from Employer 
Trustees that are affiliated with the Contract Association (the 
Employer Trustees) and Union Trustees that are affiliated with the 
Union (the Union Trustees). Pursuant to the Trust Agreement, the 
Trustees have the discretionary authority to manage, control and invest 
the assets of the Training Plan. As of December 31, 2015, the Training 
Plan covered 1,179 participants and had approximately $6,765,000 in 
total assets, which included approximately $3,760,000 in cash and cash 
equivalents and $3,005,000 in other assets, such as property, equipment 
and deposits.

The Building Corporation

    2. The Building Corporation is a non-profit corporation, wholly-
owned by the Union. The Building Corporation was formed to hold title 
to real property and collect and hold income on behalf of the Union. 
The Building Corporation is managed by an eleven member board of 
trustees, which is comprised of officers of the Building Corporation 
and the Union.

The Property

    3. Among the assets of the Building Corporation is a 2.5 acre 
parcel of vacant and unimproved land that is located at 1129 Electrical 
Industrial Court, Rossford, Ohio. The Property is adjacent to the 
Training Plan's Existing Training Facility. The Building Corporation 
acquired the Property on August 26, 2011, from the Labor Management 
Cooperation Committee, Inc. (the LMCC), an entity affiliated with both 
the Union and the Building Corporation for an unknown acquisition 
price. The Building Corporation currently holds title to the Property, 
which is free and clear of any mortgage or other encumbrance.

Exemption Request

    4. The Training Plan seeks to purchase the Property from the 
Building Corporation. In this regard, if this exemption is granted, the 
Training Plan intends to utilize the Property to expand the size of its 
Existing Training Facility from 32,000 square feet to approximately 
40,000 square feet. Pursuant to its stated expansion plans, the 
Training Plan will construct a 7,500 square foot pre-engineered 
building that will include 17 classrooms, 2 shop areas, a multipurpose 
room, and an administrative office area (the New Training Facility). 
The New Training Facility will accommodate training in rigging, cranes, 
forklifts, and other skills that the Existing Training Facility cannot 
provide. Based on preliminary cost estimates from local construction 
companies, the Applicant represents that the New Training Facility will 
cost approximately $240,000.
    The Training Plan also intends to install a solar energy field (the 
Solar Field) on the Property to train Training Plan participants in 
solar panel installation and maintenance. The Applicant represents that 
Solar Field will cost approximately $760,000 to construct. The 
Applicant also represents that the seller of the solar panels will not 
be a party in interest with respect to the Training Plan, and that 
electricity generated by the solar panels will be for the sole use and 
benefit of the Training Plan. Further, the Applicant represents that 
installation work for the Solar Field will be undertaken by electrical 
apprentices and journeypersons, as part of their respective training.

The Purchase

    5. In connection with the request for an exemption, the Training 
Plan has submitted a Real Estate Purchase Agreement which will govern 
the terms of the Purchase (the Purchase Agreement). As stated in the 
Purchase Agreement, the Training Plan will pay cash to acquire the 
Property and will not finance any portion of the purchase price. As 
also stated in the Purchase Agreement, the Training Plan will not pay 
any real estate fees, commissions or other expenses in connection with 
the Purchase, with the exception of the fees noted above.
    A qualified independent fiduciary (the Independent Fiduciary) will 
represent the interests of the Training Plan with respect to the 
proposed transaction. The Independent Fiduciary will base the fair 
market value of the Property on an appraisal report (the Appraisal 
Report) that has been prepared of the Property by a qualified 
independent appraiser (the Independent Appraiser) on the date of the 
Purchase. The purchase price for the Property will be reduced by the 
total fees paid by the Training Plan for: (a) Independent Fiduciary 
services; (b) Independent Appraiser services; (c) environmental 
assessments of the Property; (d) feasibility studies of the Property; 
(e) closing costs associated with the Purchase; and (f) attorney's 
fees.\6\
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    \6\ The Applicant represents that as of March 24, 2017, the 
Training Plan has incurred expenses totaling $13,255.75 in 
connection with the proposed Purchase. These expenses include fees 
for the Independent Appraiser, the Independent Fiduciary and for 
legal services rendered in connection with the proposed Purchase.
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    As reflected in meeting minutes, the Union Trustees recused 
themselves from participation in the decision to acquire the Property 
on behalf of the Training Plan. Only the Employer Trustees voted in 
favor of proceeding with the proposed Purchase.
    Finally, the Purchase will not be part of an agreement, 
arrangement, or understanding that is designed to benefit the Union. 
Further, the terms and conditions of the Purchase will be at least as 
favorable to the Training Plan as those obtainable in an arm's-length 
transaction with an unrelated party.

Analysis

    6. The Applicant represents that the proposed Purchase violates 
sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1), and

[[Page 29338]]

406(b)(2) of the Act. Section 406(a)(1)(A) of the Act provides, in 
part, that a fiduciary with respect to a plan shall not cause a plan to 
engage in a transaction if the fiduciary knows or should know that such 
transaction constitutes a direct or indirect sale of any property 
between a plan and a party in interest. Section 406(a)(1)(D) of the Act 
provides that a fiduciary with respect to a plan shall not cause a plan 
to engage in a transaction if the fiduciary knows or should know that 
such transaction constitutes a direct or indirect transfer to, or use 
by or for the benefit of, a party in interest, of any assets of the 
plan.
    In addition, Section 3(14)(A) of the Act defines the term ``party 
in interest'' to include a fiduciary, such as the Trustees. Section 
3(14)(D) of the Act defines the term ``party in interest'' to include 
an employee organization whose members are covered by a plan, such as 
the Union. Section 3(14)(G) of the Act defines the term ``party in 
interest'' to include a corporation of which 50% or more of the 
combined voting power of all classes of stock entitled to vote are 
owned directly or indirectly or held by an employee organization, such 
as the Building Corporation. Thus, in the absence of a statutory or 
administrative exemption, the proposed Purchase would violate section 
406(a)(1)(A) and section 406(a)(1)(D) of the Act.
    Section 406(b)(1) of the Act prohibits a fiduciary from dealing 
with the assets of the plan in such fiduciary's own interest or for 
such fiduciary's personal account. Section 406(b)(2) of the Act 
prohibits a fiduciary from acting in such fiduciary's individual or 
other capacity in any transaction involving the plan on behalf of a 
party (or from representing a party) whose interests are adverse to the 
interests of the Plan, or the interests of the Plan participants and 
beneficiaries.
    Section 406(b)(2) of the Act prohibits a fiduciary from acting in 
such fiduciary's individual or other capacity in any transaction 
involving the plan on behalf of a party (or from representing a party) 
whose interests are adverse to the interests of the Plan, or the 
interests of the Plan participants and beneficiaries. As Trustees to 
the Training Plan and Union officers, the Union Trustees would be 
engaged in a prohibited act of self-dealing by causing the Training 
Plan to purchase the Property from the Union. The Union Trustees would 
also have divided loyalties in representing both the interests of the 
Training Plan and the Union with respect to the transaction. Therefore, 
the proposed Purchase would also violate section 406(b)(1) and section 
406(b)(2) of the Act.

The Independent Fiduciary

    7. The Trustees have retained Bennett Speyer and Reed Hauptman of 
the law firm, Shumaker, Loop and Kendrick, LLP of Toledo, Ohio, to 
serve as the Independent Fiduciary for the Training Plan. The 
Independent Fiduciary represents that it has extensive experience in 
representing sponsors and fiduciaries of employee benefit plans. 
Further, the Independent Fiduciary represents that it has substantial 
knowledge and experience in real estate transactions and the due 
diligence customarily associated with such transactions.
    Mr. Hauptman, who is a member of the Independent Fiduciary's 
management committee, is admitted to practice law in Ohio and Michigan 
and has 16 years of experience in real estate finance and development, 
land use planning, and business law. Mr. Speyer, who is also admitted 
to practice law in Ohio, has 25 years of experience in employee 
benefits law, including ERISA.
    8. Messrs. Hauptman and Speyer represent that they are independent 
of and unrelated to the Union and the Building Corporation, and that 
they will not directly or indirectly receive any compensation or other 
consideration for their own account in connection with the Purchase, 
except for fees received in connection with their Independent Fiduciary 
duties. In addition, Messrs. Hauptman and Speyer represent that the 
annual compensation received by their law firm in connection with the 
Purchase is less than 0.5% of the firm's annual revenues for the year 
2015.
    9. In representing the interests of the Training Plan, the 
Independent Fiduciary will: (a) Determine whether the Purchase is in 
the interests of, and protective of, the Training Plan and the Training 
Plan participants; (b) review, negotiate, and approve the terms and 
conditions of the Purchase; (c) review and approve the methodology used 
by the Independent Appraiser in the Appraisal Report to ensure such 
methodology is consistent with sound principles of valuation, prior to 
the consummation of the Purchase; (d) ensure that the appraisal 
methodology is properly applied by the Independent Appraiser in 
determining the fair market value of the Property on the date of the 
Purchase, and determine whether it is prudent to proceed with such 
transaction; (e) represent the Training Plan's interests for all 
purposes with respect to the Purchase; and (f) not later than 90 days 
after the Purchase is completed, submit a written statement to the 
Department confirming that the purchase price paid by the Training Plan 
for the Property met the requirements of the exemption.

The Independent Fiduciary Report

    10. In the Independent Fiduciary Report, the Independent Fiduciary 
concludes that the proposed Purchase will provide the Training Plan 
with the opportunity to expand and improve its training offerings, 
which will help Training Plan participants remain competitive in the 
electrical construction industry. The Independent Fiduciary also 
concludes that Training Plan participants will benefit from the ease 
and accessibility of a campus arrangement by consolidating a variety of 
training opportunities into a single location.
    11. The Independent Fiduciary represents that an expansion of the 
Existing Training Facility is necessary and in the best interest of 
Training Plan participants because the Training Plan is currently 
limited in its training capacity and offerings due to the limited size 
of the Existing Training Facility. The Independent Fiduciary represents 
that the Purchase will allow the Training Plan to expand the Existing 
Training Facility with minimal difficulty or hardship to the Training 
Plan's participants. The Independent Fiduciary explains that 
characteristics of the Property make it uniquely suited to the Training 
Plan's needs because: (a) The 2.5 acres of land comprising the Property 
are vacant, unimproved, nearly level and unshaded; (b) there are no 
recognized environmental conditions affecting the Property; and (c) 
zoning on the Property permits the construction of a solar field. The 
Independent Fiduciary also notes that a feasibility study of the 
Property concluded that the Property is the most desirable location for 
the Training Plan's construction of the Solar Field.
    12. The Independent Fiduciary represents that the terms and 
conditions of the proposed Purchase are at least as favorable to the 
Training Plan as those obtainable in an arm's-length transaction with 
an unrelated party. In this regard, the Independent Fiduciary notes 
that the Building Corporation will pay all real estate taxes and 
assessments due and payable as of the closing date of the proposed 
Purchase, as well as all applicable transfer taxes and conveyance fees.
    13. The Independent Fiduciary represents that it has reviewed the 
title commitment for the Property and has confirmed ownership of the 
Property by the Building Corporation. The

[[Page 29339]]

Independent Fiduciary also represents that it has verified with the 
City of Rossford Zoning Inspector that the current zoning of the 
Property allows for the construction of the Solar Field and the New 
Training Facility.
    14. The Independent Fiduciary represents that the Training Plan has 
sufficient assets to pay for the acquisition of the Property and the 
planned improvements. In this regard, the Independent Fiduciary states 
that: (a) The Training Plan's operations are adequately funded through 
employer contributions on an ongoing basis; (b) the acquisition cost of 
the Property will involve approximately 1.4% of the Training Plan's 
total assets; and (c) the planned improvements will involve 
approximately 16.2% of the Training Plan's total assets. The 
Independent Fiduciary concludes that these costs will not have a 
material effect on the operation of the Training Plan.

The Independent Appraiser

    15. The Independent Fiduciary has retained Martin + Wood Appraisal 
Group of Toledo, Ohio to render an opinion of the fair market value of 
the Property. The Independent Appraiser is a professional real estate 
appraisal and consulting firm located in Toledo, Ohio. Hubert L. 
Winegardner and Kenneth Wood have undertaken the specific duties of the 
Independent Appraiser. Mr. Winegardner is a Certified General Real 
Estate Appraiser with approximately 11 years of appraisal experience. 
Mr. Wood, a Review Appraiser and a Certified General Real Estate 
Appraiser with approximately 23 years of appraisal experience, is the 
President/CEO of the Independent Appraiser.
    16. The Independent Appraiser represents that its fee for appraisal 
services provided in connection with the proposed Purchase represents 
less than 0.5% of its annual revenues in 2014 and 2015, which are the 
years it has provided such services.
    17. In valuing the Property, the Independent Appraiser utilized the 
Sales Comparison Approach to valuation. As the Independent Appraiser 
explains in the Appraisal Report, ``the Sales Comparison Approach is 
frequently considered the most reliable indicator of value, as it 
directly reflects prices currently being paid for comparable properties 
within the local market. This approach, according to the Independent 
Appraiser, typically provides a highly supportable estimate of value 
for relatively homogeneous properties where adjustments are few and 
relatively simple to compute.'' After taking four comparable sales and 
one listing into consideration, the Independent Appraiser estimated the 
value of the Property to be $110,000, as of February 9, 2015. The 
Independent Appraiser will update the Appraisal Report on the date of 
the Purchase.

The Environmental Assessment

    18. To further examine the appropriateness of the Property for the 
Training Plan's desired use, the Independent Fiduciary commissioned a 
Phase I Environmental Site Assessment to identify recognized 
environmental conditions on the Property. On September 4, 2013, 
Watterson Environmental & Facilities Management of Sylvania, Ohio, an 
unrelated party, completed a Phase I Environmental Site Assessment of 
the Property (the Environmental Assessment) which revealed no evidence 
of any Recognized Environmental Conditions in connection with the 
Property. The Environmental Assessment also noted that there were no 
visual indications of aboveground or underground storage tanks or any 
indication of historic underground storage tanks on the Property.

Statutory Findings

    19. The Applicant states that the proposed Purchase will involve a 
one-time transaction that will require no financing, as the Training 
Plan will pay for the purchase and subsequent construction of the New 
Training Facility and the Solar Field using available cash. 
Additionally, the Applicant emphasizes that the proposed Purchase will 
be carried out under the supervision and direction of the Independent 
Fiduciary, who will represent the Plan in all aspects of the 
transaction.
    20. The Applicant represents that the proposed Purchase is in the 
interest of the Plan and its participants and beneficiaries and are 
protective of their rights. In this regard, the Applicant states that 
the Training Plan's acquisition of the Property and the subsequent 
construction of the New Training Facility and the Solar Field will 
provide Training Plan participants with an expanded, updated, 
modernized and fully owned training facility which will allow 
participants to train and develop their electrical tradesmen skills and 
to adapt with changes in the electrical construction industry. In 
addition, due to the proximity of the Property to the Training Plan's 
Existing Training Facility, the Applicant represents that Training Plan 
participants will benefit from the ease and accessibility of a campus 
arrangement in which they will have access to a variety of training 
opportunities at a single location.

Summary

    21. Given the conditions described below, the Department has 
tentatively determined that the relief sought by the Applicant 
satisfies the statutory requirements for an exemption under section 
408(a) of the Act.

Proposed Exemption Operative Language

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA) and in accordance 
with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 
46637, 66644, October 27, 2011). If the exemption is granted, the 
restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1) and 
406(b)(2) of the Act, shall not apply to the Purchase by the Training 
Plan of the Property from the Building Corporation, a party in interest 
with respect to the Training Plan, provided that the following 
conditions are satisfied:
    (a) The Purchase is a one-time transaction for cash;
    (b) The purchase price paid by the Training Plan to the Building 
Corporation is equal to the fair market value of the Property, as 
determined by a qualified independent fiduciary (the Independent 
Fiduciary), based upon an appraisal of the Property (the Appraisal 
Report) by a qualified independent appraiser (the Independent 
Appraiser) on the date of the Purchase, less the total fees paid by the 
Training Plan for: (i) Independent Fiduciary services; (ii) Independent 
Appraiser services; (iii) environmental assessments of the Property; 
(iv) feasibility studies of the Property; (v) closing costs associated 
with the Purchase; and (vi) attorney's fees.
    (c) The Training Plan trustees appointed by the Union (the Union 
Trustees) recuse themselves from all aspects relating to the decision 
to purchase the Property on behalf of the Training Plan;
    (d) With respect to the Purchase, the Independent Fiduciary 
undertakes the following duties on behalf of the Training Plan:
    (1) Determines whether the Purchase is in the interests of, and 
protective of the Training Plan and the Training Plan participants;
    (2) Reviews, negotiates, and approves the terms and conditions of 
the Purchase;
    (3) Reviews and approves the methodology used by the Independent 
Appraiser in the Appraisal Report to

[[Page 29340]]

ensure such methodology is consistent with sound principles of 
valuation, prior to the consummation of the Purchase;
    (4) Ensures that the appraisal methodology is properly applied by 
the Independent Appraiser in determining the fair market value of the 
Property on the date of the Purchase, and determines whether it is 
prudent to proceed with such transaction;
    (5) Represents the Training Plan's interests for all purposes with 
respect to the Purchase; and
    (6) Not later than 90 days after the Purchase is completed, submits 
a written statement to the Department demonstrating that the Purchase 
has satisfied the requirements of Condition (b), above;
    (e) The Training Plan does not incur any fees, costs, commissions 
or other charges as a result of the Purchase, with the exception of the 
fees reimbursed by the Building Corporation, as set forth in Condition 
(b);
    (f) The Purchase is not part of an agreement, arrangement, or 
understanding designed to benefit the Union; and
    (g) The terms and conditions of the Purchase are at least as 
favorable to the Training Plan as those obtainable in an arm's-length 
transaction with an unrelated party.

Notice to Interested Persons

    The persons who may be interested in the publication in the Federal 
Register of the Notice of Proposed Exemption (the Notice) include all 
individuals who are participants in the Plan. It is represented that 
such interested persons will be notified of the publication of the 
Notice by first class mail to such interested person's last known 
address within 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(b)(2), 
which will advise all interested persons of their right to comment on 
and/or to request a hearing. All written comments or hearing requests 
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.
    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:  Mr. Joseph Brennan of the Department 
at (202) 693-8456. (This is not a toll-free number.)

Health Management Associates, Inc. Retirement Savings Plan (the HMA 
Plan) and The Mooresville Retirement Savings Plan (the Mooresville 
Plan) (together, the Plans or the Applicants) Located in Naples, FL

[Application Nos. D-11929 and D-11930, respectively]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act (or ERISA) and section 
4975(c)(2) of the Code, and in accordance with the procedures set forth 
in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(E), 406(a)(2) and 407(a)(1)(A) of the Act, shall not apply, 
effective January 27, 2014 (the Effective Date), to: (1) The 
acquisition by the Plans of contingent value rights (CVRs) received by 
the Plans in connection with the merger (the Merger Transaction) of 
FWCT-2 Acquisition Corporation (Merger Sub), a wholly-owned subsidiary 
of Community Health Systems, Inc. (CHS), with and into Health 
Management Associates, Inc. (HMA), with HMA surviving as a wholly owned 
subsidiary of CHS; and (2) the holding of the CVRs by the Plans.

Summary of Facts and Representations 7
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    \7\ The Summary of Facts and Representations is based on the 
Applicants' representations and does not reflect the views of the 
Department, unless indicated otherwise.
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HMA

    1. HMA, a Delaware corporation, operates general acute care 
hospitals and other health care facilities in 15 states. As of December 
31, 2013, HMA had total assets of approximately $6,384,651 and total 
stockholders' equity of approximately $776,281. As of the same date, 
there were approximately 264,495,000 shares of common stock of HMA (HMA 
Common Stock) issued and outstanding.

The Plans

    2. HMA sponsors the HMA Plan and the Mooresville Plan. The Plans 
are individual account plans that are intended to qualify under section 
401(a) of the Internal Revenue Code of 1986, as amended (the Code), and 
include a qualified cash or deferred arrangement described in section 
401(k) of the Code. The Plans allow participants to direct the 
investment of their accounts under such Plans in various available 
investment alternatives that included, prior to the Merger Transaction, 
HMA Common Stock.
    As of January 27, 2014, the date of the Merger Transaction, the HMA 
Plan had approximately 45,160 participants and beneficiaries and total 
assets of $824,529,117.14. As of the same date, the Mooresville Plan 
had 742 participants and total assets of $17,135,730.98.
    As of January 24, 2014, the last trading day of the Shares prior to 
the closing of the Merger Transaction, 4,622,384.871 Shares of HMA 
Common Stock were held by the HMA Plan in accounts maintained for 
15,824 participants, representing approximately 35% of the participants 
in such Plan. These Shares had an aggregate fair market value of 
$61,523,577.97, or approximately 7.46% of the aggregate fair market 
value of the HMA Plan's total assets, and represented approximately 
1.75% of the 264,136,278.34 Shares that were issued and outstanding as 
of that date.
    Similarly, as of January 24, 2014, 144,854.422 Shares of HMA Common 
Stock were held by the Mooresville Plan in accounts maintained for 288 
participants, representing approximately 39% of the participants in 
such Plan. These Shares had an aggregate fair market value of 
$1,927,964.29, or approximately 11.25% of the aggregate fair market 
value of the Mooresville Plan's total assets, and represented 
approximately 0.05% of the 264,136,278.34 Shares that were issued and 
outstanding as of that date.
    Prior to the closing of the Merger Transaction, Prudential Bank and 
Trust, FSB, served as the Plans' trustee, and the Plans were 
administered by the HMA Retirement Committee. Following the Merger 
Transaction, Delaware Charter Guarantee and Trust Company (d/b/a 
``Principal Trust Company'') began serving as the Plan's directed 
trustee, and the CHS Committee administers the Plans.

CHS

    3. CHS, a Delaware corporation, provides healthcare services in 
non-urban and selected urban markets throughout the United States. 
CHS's common stock is listed on the NYSE under the symbol ``CYH.'' As 
of the end of the most recent accounting period prior to the Merger 
Transaction, CHS

[[Page 29341]]

had total assets of $17,117,295,000 and total stockholders' equity of 
$3,067,827,000.

The Merger Agreement

    4. On July 29, 2013, the Boards of Directors of HMA and CHS each 
approved the Merger Agreement, which was entered into on the same date 
by HMA, CHS and Merger Sub.\8\ The Merger Agreement, as amended on 
September 24, 2013, provided for Merger Sub to merge with and into HMA, 
with HMA surviving as an indirect, wholly owned subsidiary of CHS. In 
addition, the Merger Agreement provided that upon the closing of the 
Merger Transaction, each Share outstanding of HMA Common Stock, 
immediately prior to the effective time of the Merger Transaction, 
would be cancelled and converted into an HMA shareholder's right to 
receive: (a) $10.50 in cash, without interest; (b) 0.06942 shares of 
CHS Common Stock; and (c) one CVR (together, the Merger Consideration).
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    \8\ FWCT-2 Acquisition Corporation (i.e., Merger Sub), a 
Delaware corporation, was created as an indirect, wholly-owned 
subsidiary of CHS. Merger Sub existed solely for the purpose of 
engaging in the Merger Transaction.
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    The terms of the Merger Transaction were negotiated at arm's-length 
and approved by the HMA and CHS Boards.

HMA's Pre-Merger Steps

    5. HMA took certain steps prior to the Merger Transaction in 
preparation for the acquisition of CVRs by the Plans. In this regard, 
certain provisions of the Plans and the Trust Agreements relating to 
the employer securities were amended to accommodate the acquisition and 
holding of the CVRs. In addition, notice of the Merger (the Notice), 
dated November 22, 2014, was provided to HMA shareholders (HMA 
Shareholders) who held HMA Common Stock as of the close of business on 
November 22, 2013 (the Record Date), including participants of the 
Plans.\9\
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    \9\ The Applicants have confirmed that the Plan participants 
with HMA Common Stock allocated to Plan accounts were allowed to 
vote on the Merger Transaction, just as were all of the other 
holders of HMA Common Stock.
---------------------------------------------------------------------------

    In addition to the Notice, a separate notice (the Supplemental 
Notice) was sent to participants and beneficiaries of the Plans on 
January 10, 2014. The Supplemental Notice explained that participants 
in the Plans had the opportunity until 2:00 p.m. (Eastern time) on the 
business day immediately preceding the time of the Merger Transaction, 
to elect to move any portion of their accounts in the Plans that was 
invested in HMA Common Stock from that investment into other investment 
alternatives under the applicable Plan if the participants did not wish 
to receive the Merger Consideration.

The Merger Transaction

    6. A special meeting to vote on the Merger Transaction was held on 
January 8, 2014. As of the Record Date (i.e., November 22, 2013), there 
were 264,495,187 Shares of HMA Common Stock outstanding and entitled to 
vote on the proposed Merger Transaction. The Plans' trustee, which held 
5,198,842 Shares of HMA Common Stock on behalf of 15,824 participants 
in the HMA Plan, and 159,854 Shares of HMA Common Stock on behalf of 
288 participants in the Mooresville Plan. The HMA Common Stock held by 
the HMA Plan represented 1.95% of the outstanding Shares. The HMA 
Common Stock held by the Mooresville Plan represented 0.06% of the 
outstanding Shares.
    More than 99% of the votes, or 216,027,614 votes cast, were in 
favor of the Merger Transaction, and on January 27, 2014, HMA became a 
wholly-owned subsidiary of CHS. The acquisition of the CVRs by the 
Plans occurred on the same terms, and in the same manner, as the 
acquisition of CVRs by all other shareholders of HMA Common Stock who 
acquired CVRs. Shares held by participants in the HMA Plan were 
converted into the HMA Plan participants' right to receive 
collectively: (a) $48,535,041.15 in cash; (b) 320,885.958 shares of CHS 
common stock (valued at $40.48 per Share, or an aggregate value of 
$12,989,463.57, as of the close of trading on January 27, 2014); and 
(c) 4,622,384.871 CVRs (with a value of $0.05 per Share, or an 
aggregate value of $231,119.24, as of the close of trading on January 
27, 2014).
    Shares held by Mooresville Plan participants were converted into 
the right by such participants to receive collectively: (a) 
$1,520,971.43 in cash; (b) 10,055.794 shares of CHS common stock 
(valued at $40.48 per Share, or an aggregate value of $407,058.54, as 
of the close of trading on January 27, 2014); and (c) 144,854.422 CVRs 
(with a value of $0.05 per Share, or an aggregate value of $7,242.72, 
as of the close of trading on January 27, 2014).

The CVRs

    7. The CVRs are unsecured, contingent payment obligations of CHS 
that are subordinated in right of payment to the prior payment in full 
of all senior obligations of CHS. They were issued by CHS pursuant to a 
CVR Agreement that was executed on January 27, 2014 by and between CHS 
and American Stock Transfer & Trust Company, LLC (the CVR Trustee), an 
unrelated party, and filed with the Securities Exchange Commission by 
CHS on January 28, 2014.
    CHS is obligated under the CVR Agreement to use reasonable best 
efforts to ensure that the CVRs are traded on a national securities 
exchange, and they are currently listed on the NASDAQ Stock Market 
under the symbol ``CYHHZ.'' The issuance of the CVRs was registered 
under the Securities Act of 1933 and the Securities Exchange Act of 
1934, as amended.
    8. Under the CVR Agreement, CHS is required to pay to the CVR 
Trustee, and the CVR Trustee is required to pay to the CVR holders, 
$1.00 per CVR (the CVR Payment Amount) promptly upon the final 
resolution (Final Resolution) \10\ of certain existing litigation (the 
Existing Litigation),\11\ subject to certain reductions. CHS will keep 
the CVR Trustee and the CVR holders informed with respect to the status 
of the Existing Litigation, which may be accomplished

[[Page 29342]]

through its public reporting requirements.
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    \10\ According to the CVR Agreement, the term ``Final 
Resolution'' refers to CHS's: (a) Receipt of written confirmation 
from a court, or a governmental or regulatory entity that such 
entity has closed its investigation into HMA with respect to certain 
Existing Litigation, as discussed in the footnote below; or (b) 
resolution of the Existing Litigation through a written settlement 
agreement, consent decree or other final non-appealable court 
judgment.
    \11\ According to the CVR Agreement, the term ``Existing 
Litigation'' refers to any litigation, investigation, or other 
action involving the U.S. Department of Health and Human Services 
Office of Inspector General, the U.S. Department of Justice, the SEC 
or any other domestic (federal or state) or foreign court, 
commission, governmental body, regulatory or administrative agency 
or other political subdivision thereof, relating to whether HMA or 
any of its affiliates (other than, for the avoidance of doubt, CHS 
and its subsidiaries) violated any law, and any civil litigation or 
other action, arising out of or relating to the foregoing, in each 
case existing on or prior to the date of the Merger Agreement. 
However, the Existing Litigation does not include any litigation, 
investigation or other action or proceeding involving only 
individuals or entities other than HMA, unless HMA is required to 
indemnify losses (Losses) incurred by those individuals or entities.
    In addition, the CVR Agreement defines the term ``Losses'' to 
mean the amount of all losses, damages costs, fees and expenses, 
fines, penalties, settlement amounts, or indemnification obligations 
and other liabilities arising out of or relating to the Existing 
Litigation that are paid by CHS or any of its affiliates (including 
HMA) prior to the date of the CVR Payment Amount. However, Losses do 
not include: (a) The costs associated with any change to HMA's 
policies, procedures or practices; or (b) the loss of any (1) 
licenses or (2) rights and privileges to participate in government 
sponsored programs, even if required under a settlement agreement, 
consent decree, or other final non-appealable court judgment. The 
amount of any Losses will be net of any amounts actually recovered 
by CHS or any of its wholly-owned subsidiaries under insurance 
policies.
---------------------------------------------------------------------------

    On a date established by CHS that is not later than thirty (30) 
days after the date on which Final Resolution of the Existing 
Litigation occurs, CHS will deliver the CVR Payment Amount to the CVR 
Trustee and provide notice of the calculation made to determine the CVR 
Payment Amount to the CVR holders.\12\ The CVR Trustee, acting as the 
paying agent, will then pay to each CVR holder the amount in cash equal 
to the CVR Payment Amount multiplied by the number of CVRs held by such 
holder.
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    \12\ The Applicants state that, pursuant to Section 3.1(e) of 
the CVR Agreement, if the CVR Payment Amount is greater than zero, 
CHS will deliver cash to the paying agent within sixty (60) days of 
the date on which Final Resolution occurs.
---------------------------------------------------------------------------

    According to the Applicants, there is no set date for when the 
Final Resolution of the Existing Litigation must occur, and thus there 
is no termination date for payment of the CVRs. In the event CHS fails 
to make timely payment, the CVR Trustee may, by written notice to CHS, 
or upon the written request by thirty percent (30%) or more of the CVR 
holders to CHS and to the CVR Trustee, bring suit to obtain payment for 
any amounts due and payable. Interest will accrue on unpaid amounts at 
a rate equal to the prime rate plus three percent.
    In addition, the CVR Trustee will certify to the Department that 
the CVR Payment Amount has been properly calculated for each affected 
participant in the Plans. The CVR Trustee will also certify to the 
Department that no excess portion of the CVR Payment Amount reverts to 
CHS, its successors, or their affiliates.
    9. The CVR Agreement also provides that each CVR holder has the 
right to sell his or her CVRs at any time. The rights of a CVR holder 
will remain in effect until all payment obligations under the CVR 
Agreement are satisfied or have terminated. Such rights will not lapse 
by reason of a failure on the part of the CVR holder to take timely 
action.
    10. The Applicants state that holders of CVRs, including 
participants in the Plans, have exercised their rights under the CVR 
Agreement to sell CVRs. The Applicants state that of the approximately 
4,767,239 CVRs received by the Plans, approximately 2,763,642 CVRs were 
still held by the Plans as of May 15, 2017. As such, the Applicants 
state that approximately 2,003,597 of the CVRs had been sold as of the 
same date.\13\ The Applicants state that all such sales of CVRs have 
been exclusively on the open market and initiated by the Participants 
in such Plans, rather than by CHS. The Applicants state that CVRs are 
routinely traded in open market transactions through the NASDAQ Stock 
Market under the symbol ``CYHHZ.''
---------------------------------------------------------------------------

    \13\ The Applicants state that a breakdown of the sale of CVRs 
sold by each Plan is not readily available.
---------------------------------------------------------------------------

Fairness Opinions

    11. In a letter dated July 29, 2013, Morgan Stanley & Co. LLC 
(Morgan Stanley), a global financial services firm engaged in the 
securities, investment management and individual wealth management 
businesses, advised HMA that the Merger Consideration to be received by 
HMA Shareholders pursuant to the Merger Agreement was ``fair,'' from a 
financial point of view. Also, in letters dated November 12, 2013, 
Lazard Fr[egrave]res & Co. LLC (Lazard), an independent financial 
advisory and asset management firm, and UBS Securities LLC (UBS), a 
global investment bank, advised HMA that the Merger consideration to be 
received by the holders of HMA common stock in the Merger Transaction 
was ``fair,'' from a financial point of view, to such holders.
    Morgan Stanley, Lazard, and UBS (together, the Fairness Advisers), 
among other things, (a) reviewed certain publicly available business 
and financial information of HMA and CHS, respectively; (b) reviewed 
certain financial projections prepared by the managements of HMA and 
CHS, respectively; (c) reviewed the projected synergies anticipated by 
the management of CHS from the Merger Transaction; (d) held discussions 
with senior executives of HMA and CHS with respect to the businesses 
and prospects of HMA and CHS, respectively; (e) reviewed the reported 
prices and trading activity for HMA Common Stock and CHS Common Stock; 
(f) reviewed the potential pro forma financial impact of the Merger 
Transaction on CHS based on certain financial studies; and (g) 
performed such other review and analyses and considered such other 
factors as deemed appropriate. The Fairness Advisers issued their 
opinions to the HMA Board, and made no recommendations as to how the 
HMA Shareholders should vote with respect to the Merger Transaction.

Requested Relief/Analysis

    12. The Applicants have requested an administrative exemption from 
the Department for: (a) The acquisition by the Plans of CVRs in 
connection with the Merger Transaction; and (b) the holding of the CVRs 
by the Plans. If granted, the exemption would be effective as of 
January 27, 2014, and it would also apply to successor plans to the 
current Plans.
    Section 406(a)(1)(E) of the Act prohibits the acquisition on behalf 
of a plan of any ``employer security'' in violation of section 407(a). 
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 such 
plan to hold any ``employer security'' if he knows or should know that 
the holding of such security violates section 407(a) of the Act. 
Section 407(a) of the Act prohibits a plan from acquiring or holding 
employer securities that are not ``qualifying employer securities.'' 
Section 407(d)(5) defines the term ``qualifying employer securities,'' 
in relevant part, as an employer security which is stock or a 
marketable obligation.
    The Applicants represent that, as registered securities issued by 
CHS, the CVRs constitute ``employer securities'' under section 
407(d)(1) \14\ of the Act. However, the CVRs are not stock and may not 
constitute ``marketable obligations'' within the meaning of section 
407(e) \15\ of the Act. Accordingly, the Plans' acquisition of the CVRs 
from CHS and their holding of the CVRs may constitute an acquisition 
and holding by the Plans of employer securities that are not qualifying 
employer securities, in violation of sections 406(a)(1)(E), 406(a)(2), 
and 407(a)(1)(A) of the Act.
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    \14\ Section 407(d)(1) of the Act defines the term ``employer 
security'' to mean, in relevant part, a security issued by an 
employer of employees covered by the plan, or by an affiliate of 
such employer.
    \15\ Section 407(e) of the Act defines the term ``marketable 
obligation'' to mean, in relevant part, a bond, note, or 
certificate, or other evidence of indebtedness.
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Rationale for the Transactions

    13. In light of the foregoing prohibitions, the Applicants 
represent that HMA considered whether it would better serve the 
interests of participants and beneficiaries in the Plans to remove HMA 
Common Stock from the Plans prior to the Merger Transaction or to 
retain HMA Common Stock in the Plans and apply for exemptive relief 
covering the CVRs received by the Plans in the Merger. According to the 
Applicants, HMA determined that a decision to eliminate HMA Common 
Stock from the Plans would deprive participants and beneficiaries with 
interests in HMA Common Stock of the ability to realize the full value 
of the consideration that would be paid to other shareholders, by 
forcing a pre-closing sale and effectively depriving participants of 
investment

[[Page 29343]]

discretion, including the discretion to retain an investment in CVRs.

Statutory Findings

    14. The Applicants represent that the proposed exemption is 
administratively feasible because the acquisition of the CVRs by the 
Plans was a one-time transaction. The Applicants represent that the 
proposed exemption is in the interest of the Plans' participants and 
beneficiaries because it maximizes their ability to realize the full 
value of the consideration offered in exchange for their interests in 
HMA Common Stock by continuing to give them the discretionary ability 
to hold or sell the employer securities allocated to their accounts. 
The Applicants represent that a pre-closing sale of HMA Common Stock by 
the Plans would preclude the Plans' participants from choosing to hold 
CVRs within the Plans and thereby retain the possibility of substantial 
future payouts, and would instead force them to settle for the current 
implied market value of the CVRs.
    Finally, the Applicants represent that the proposed exemption is 
protective of the rights of the Plans' participants and beneficiaries 
because it permits them to realize the same benefits as other 
shareholders in connection with the Merger Transaction. The Applicants 
state that the conditions of the exemption ensure that participants 
have the same rights with respect to CVRs allocated to their accounts 
under the Plans as other holders of CVRs.

Summary

    15. Given the conditions described below, the Department has 
tentatively determined that the relief sought by the Applicants 
satisfies the statutory requirements for an exemption under section 
408(a) of the Act.

Proposed Exemption Operative Language

Section I. The Transactions

    If the proposed exemption is granted, the restrictions of sections 
406(a)(1)(E), 406(a)(2) and 407(a)(1)(A) of the Act, shall not apply, 
effective January 27, 2014, to:
    (1) The acquisition by the Plans of contingent value rights (CVRs) 
received by the Plans in connection with the merger (the Merger 
Transaction) of FWCT-2 Acquisition Corporation (the Merger Sub), a 
wholly-owned subsidiary of Community Health Systems, Inc. (CHS), with 
and into Health Management Associates, Inc. (HMA), with HMA surviving 
as a wholly owned subsidiary of CHS; and
    (2) The holding of the CVRs by the Plans.

Section II. General Conditions

    (a) The receipt of the CVRs by the Plans occurred in connection 
with the Merger Transaction, which was approved by ninety-nine percent 
(99%) of the shareholders of common stock of HMA (HMA Common Stock);
    (b) For purposes of the Merger Transaction, all HMA Common Stock 
shareholders, including the Plans, were treated in the same manner;
    (c) The acquisition of the CVRs by the Plans occurred on the same 
terms, and in the same manner, as the acquisition of CVRs by all other 
shareholders of HMA Common Stock who acquired CVRs;
    (d) The terms of the Merger Transaction were negotiated at arm's-
length;
    (e) No fees, commissions or other charges are paid by the Plans 
with respect to the acquisition and holding of the CVRs by the Plans;
    (f) Morgan Stanley & Co. LLC (Morgan Stanley), Lazard Fr[egrave]res 
& Co. LLC (Lazard) and UBS Securities LLC (UBS) advised HMA that the 
consideration received by HMA shareholders (HMA Shareholders), 
including participants of the Plans, in exchange for their Shares was 
``fair,'' from a financial point of view;
    (g) The Plans have not and will not acquire or hold CVRs other than 
those acquired in connection with the Merger Transaction;
    (h) Participants in the Plans may direct the Plans' trustee to sell 
CVRs allocated to their respective participant accounts in the Plans, 
at any time;
    (i) The Plans do not sell a CVR to CHS or any of its subsidiaries 
or affiliates, including HMA, in a non-``blind'' transaction;
    (j) For so long as the CVRs remain a permissible investment for 
each Plan, the retention or disposition of CVRs allocated to a 
participant's account has been and will be administered in accordance 
with the provisions of each Plan that are in effect for individually-
directed investments of participant accounts;
    (k) The CVR Trustee will certify to the Department that the CVR 
Payment Amount has been properly calculated for each affected 
participant in the Plans; and
    (l) The CVR Trustee will certify to the Department that no excess 
portion of the CVR Payment Amount reverts to CHS, its successors, or 
their affiliates.
    Effective Date: If granted, this proposed exemption will be 
effective as of January 27, 2014.

Notice to Interested Persons

    Within thirty (30) days of the date of publication of the proposed 
exemption in the Federal Register, the Applicants will provide notice 
of the proposed exemption (consisting of a copy of the proposed 
exemption, as published in the Federal Register, and the supplemental 
statement required by 29 CFR 2570.43(b)(2), (together, the Notice)) to 
all current participants and beneficiaries of the Plans. The Applicants 
will provide interested persons with a copy of the Notice, as well as 
an explanatory cover letter, by first class mail, at their own expense. 
The Notice will specify that the Department must receive all written 
comments and requests for a hearing no later than thirty (30) days from 
the last date of the mailing of such Notice. Therefore, interested 
persons will have sixty (60) days to provide their written comments 
and/or hearing requests to the Department.
    All comments will be made available to the public.
    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: Anna Mpras Vaughan of the Department, 
telephone (202) 693-8565. (This is not a toll-free number.)

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions 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;

[[Page 29344]]

    (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 that each application 
accurately describes all material terms of the transaction which is the 
subject of the exemption.

    Signed at Washington, DC, this 21st day of June, 2017.
Lyssa E. Hall,
Director, Office of Exemption Determinations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2017-13509 Filed 6-27-17; 8:45 am]
 BILLING CODE 4510-29-P