19338 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices 

59 In light of the absence of other evidence of 

controlled substance and alcohol abuse, the passage 

of time, and Respondent’s attendance at alcohol 

addiction classes, I give this issue little overall 

weight for purposes of my recommended decision. 

Respondent’s argument that he was 

prescribed all of the controlled 

substances in his system is directly 

contradicted by the credible testimony 

of Dr. Markowitz and DI Lewis. I find no 

evidence of any alcohol or other nonprescribed controlled substance use by 

Respondent after June 2008, which is 

consistent with Dr. Markowitz’s 

testimony and opinion that Respondent 

is not currently suffering from 

depression. 

Agency precedent has ‘‘long held that 

a practitioner’s self-abuse of a controlled 

substance is a relevant consideration 

under factor five and has done so even 

when there is no evidence that the 

registrant abused his prescription 

writing authority.’’ Tony T. Bui, M.D., 

75 Fed. Reg. 49,979, 49,989 (DEA 2010). 

Respondent’s unlawful conduct in June 

2008, which was associated with his use 

of alcohol and non-prescribed 

controlled substances, is clearly an 

‘‘indication of impairment or abuse’’ at 

least in June 2008, and Respondent’s 

argument to the contrary is without 

merit. That said, Respondent’s conduct 

appears to be a relatively isolated event. 

Respondent testified to completing a 

class on alcohol addiction and there is 

no evidence to support a finding of 

alcohol or controlled substance abuse 

after June of 2008. See Azen v. DEA, 

1996 WL 56114 at *2 (9th Cir. Feb. 9, 

1996) (impressive evidence of 

rehabilitation and continued abstinence 

important consideration). Accordingly, I 

find Respondent’s conduct in June 2008 

to be inconsistent with the public 

interest and a relevant consideration 

weighing somewhat against 

registration.59 See David E. Trawick, 

D.D.S., 53 Fed. Reg. 5326, 5326 (DEA 

1988) (holding that ‘‘offences or 

wrongful acts committed by a registrant 

outside of his professional practice, but 

which relate to controlled substances 

may constitute sufficient grounds’’ for 

denying relief favorable to Respondent, 

where Respondent had history of 

alcohol and controlled substances 

abuse). 

Because the Government has made 

out a prima facie case against 

Respondent, a remaining issue in this 

case is whether Respondent has 

adequately accepted responsibility for 

his past misconduct such that his 

registration might nevertheless be 

consistent with the public interest. See 

Patrick W. Stodola, 74 Fed. Reg. 20,727, 

20,734 (DEA 2009). Respondent argues 

generally that the Government has failed 

to demonstrate that granting Respondent 

a new registration would be inconsistent 

with the public interest. But across 

various dimensions, the record reveals 

that Respondent has not sustained his 

burden in this regard. In fact, as 

discussed above, Respondent’s 

testimony in numerous material 

instances was not credible and reflected 

an overall lack of admission of past 

misconduct, let alone acceptance of 

responsibility. The passage of time since 

Respondent’s misconduct is of no 

consequence with regard to the issue of 

acceptance of responsibility. ‘‘DEA has 

long held that ‘[t]he paramount issue is 

not how much time has elapsed since 

[his] unlawful conduct, but rather, 

whether during that time * * * 

Respondent has learned from past 

mistakes and has demonstrated that he 

would handle controlled substances 

properly if entrusted with a’ new 

registration.’’ Robert L. Dougherty, M.D., 

76 Fed. Reg. 16,823, 16,835 (DEA 2011) 

(citing Leonardo V. Lopez, M.D., 54 Fed. 

Reg. 36,915, 36,915 (DEA 1989) and 

Robert A. Leslie, M.D., 68 Fed. Reg. 

15,227, 15,227 (DEA 2003)). 

Respondent’s testimony with regard to 

his June 2008 misconduct, and his 

misconduct pertaining to Factors Two 

and Four, clearly indicate a complete 

lack of acceptance of responsibility. 

I find that Respondent’s lack of 

credibility during numerous material 

portions of his testimony weighs heavily 

in favor of denying Respondent’s 

application. See Hoxie v. DEA, 419 F.3d 

477, 483 (6th Cir. 2005) (DEA properly 

considers physician’s candor, 

forthrightness in assisting investigation 

and admitting of fault as important 

factors in determining whether 

registration is consistent with public 

interest). In light of the foregoing, 

Respondent’s evidence as a whole fails 

to sustain his burden to accept 

responsibility for his misconduct and 

demonstrate that he will not engage in 

future misconduct. I find that Factor 

Five weighs heavily in favor of a finding 

that Respondent’s registration would be 

inconsistent with the public interest. 

VI. Conclusion and Recommendation 

After balancing the foregoing public 

interest factors, I find that the 

Government has established by 

substantial evidence a prima facie case 

in support of denying Respondent’s 

application for registration, based on 

Factors Two, Four and Five of 21 U.S.C. 

§ 823(f). Once DEA has made its prima 

facie case for revocation or denial, the 

burden shifts to the respondent to show 

that, given the totality of the facts and 

circumstances in the record, revoking or 

denying the registration would not be 

appropriate. See Morall v. DEA, 412 

F.3d 165, 174 (D.C. Cir. 2005); 

Humphreys v. DEA, 96 F.3d 658, 661 

(3d Cir. 1996); Shatz v. United States 

Dep’t of Justice, 873 F.2d 1089, 1091 

(8th Cir. 1989); Thomas E. Johnston, 45 

Fed. Reg. 72, 311 (DEA 1980). 

Additionally, where a registrant has 

committed acts inconsistent with the 

public interest, he must accept 

responsibility for his actions and 

demonstrate that he will not engage in 

future misconduct. See Patrick W. 

Stodola, 74 Fed. Reg. 20,727, 20,735 

(DEA 2009). Also, ‘‘[c]onsideration of 

the deterrent effect of a potential 

sanction is supported by the CSA’s 

purpose of protecting the public 

interest.’’ Joseph Gaudio, M.D., 74 Fed. 

Reg. 10,083, 10,094 (DEA 2009). An 

agency’s choice of sanction will be 

upheld unless unwarranted in law or 

without justification in fact. A sanction 

must be rationally related to the 

evidence of record and proportionate to 

the error committed. See Morall v. DEA, 

412 F.3d 165, 181 (D.C. Cir. 2005). 

Finally, an ‘‘agency rationally may 

conclude that past performance is the 

best predictor of future performance.’’ 

Alra Laboratories, Inc. v. DEA, 54 F.3d 

450, 452 (7th Cir. 1995). 

I recommend denial of Respondent’s 

application for a COR. I find the 

evidence as a whole demonstrates that 

Respondent has not accepted 

responsibility and his registration 

would be inconsistent with the public 

interest. Respondent’s overall lack of 

candor while testifying at hearing is 

fully consistent with a denial of 

Respondent’s application for a DEA 

COR. 

Dated: April 29, 2011. 

Timothy D. Wing, 

Administrative Law Judge. 

[FR Doc. 2012–7619 Filed 3–29–12; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Application No. D–11679] 

Notice of Amendment to Proposed 

Exemption Sammons Enterprises, Inc. 

Employee Stock Ownership Plan (the 

ESOP); Located in Dallas, TX 

AGENCY: Employee Benefits Security 

Administration, U.S. Department of 

Labor. 

ACTION: Notice of amendment to 

proposed exemption. 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices 19339 

SUMMARY: This document contains a 

notice of pendency before the 

Department of Labor (the Department) of 

an amendment to a proposed individual 

exemption from certain prohibited 

transaction restrictions of the Employee 

Retirement Income Security Act of 1974, 

as amended (ERISA), and the Internal 

Revenue Code of 1986, as amended (the 

Code). The proposed transactions 

involve Sammons Enterprises, Inc. 

(Sammons). The proposed exemption, if 

granted, would affect the ESOP for 

which Sammons is the sponsor, and the 

participants and beneficiaries of the 

ESOP. 

Temporary Nature of Exemption: This 

exemption, if granted, will expire at the 

earlier of (i) the first day of the first 

fiscal year of Sammons next following 

the fiscal year in which falls the fifth 

anniversary of the date of grant of the 

exemption; and (ii) the first day upon 

which the ESOP fails to own at least 

99% of the issued and outstanding 

shares of Sammons. 

Written Comments and Hearing 

Requests: All interested persons are 

invited to submit written comments 

and/or requests for a hearing on the 

proposed exemption within forty five 

(45) days from the date of the 

publication of this Federal Register 

Notice. Comments and requests for a 

hearing should state: (1) The name, 

address and telephone number of the 

person making the comment or the 

request for a hearing and (2) the nature 

of the person’s interest in the proposed 

exemption and the manner in which the 

person would be adversely affected by 

the proposed exemption. A request for 

a hearing must also state the issues to 

be addressed at the requested hearing 

and include a general description of the 

evidence to be presented at the 

requested hearing. 

ADDRESSES: All written comments and 

requests for a public hearing concerning 

the proposed exemption should be sent 

to the Office of Exemption 

Determinations, Employee Benefits 

Security Administration, Room N–5700, 

U.S. Department of Labor, 200 

Constitution Avenue NW., Washington, 

DC 202010, Attention: Application No. 

D–11679. Interested persons are also 

invited to submit comments and/or 

hearing requests to the Employee 

Benefits Security Administration by 

email or FAX. Any such comments or 

requests should be sent either to: 

moffitt.betty@dol.gov, or by FAX to 

(202) 219–0204 by the end of the 

scheduled comment period. The 

application for exemption and the 

comments received will be available for 

inspection in the Public Documents 

Room of the Employee Benefits Security 

Administration, U.S. Department of 

Labor, Room N–1513, 200 Constitution 

Avenue NW., Washington, DC 20210. 

Warning: If you submit written 

comments or hearing requests, do not 

include any personally-identifiable or 

confidential business information that 

you do not want to be publiclydisclosed. All comments and hearing 

requests are posted on the Internet 

exactly as they are received, and they 

can be retrieved by most Internet search 

engines. The Department will make no 

deletions, modifications or redactions to 

the comments or hearing requests 

received, as they are public records. 

FOR FURTHER INFORMATION CONTACT: Gary 

H. Lefkowitz, Office of Exemption 

Determinations, Employee Benefits 

Security Administration, U.S. 

Department of Labor, telephone (202) 

693–8546. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: This 

document contains a notice of 

amendment to a proposed individual 

exemption from the restrictions of 

ERISA 406(a)(1)(A) and (D), 406(b)(1), 

and 406(b)(2), 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. 

The proposed exemption has been 

requested by GreatBanc Trust Company 

(GreatBanc), the independent fiduciary 

for the ESOP, pursuant to ERISA section 

408(a) and Code section 4975(c)(2), and 

in accordance with the procedures set 

forth in 29 CFR Part 2570, Subpart B (55 

FR 32836, 32847, August 10, 1990). 

Effective December 31, 1978, section 

102 of the 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. 

On November 14, 2011, the 

Department of Labor (the Department) 

published in the Federal Register (76 

FR 70503) a notice of proposed 

exemption (the Notice) for a transaction 

involving the ESOP. The entity that 

requested the exemption, GreatBanc, the 

independent fiduciary for the ESOP, as 

well as the ESOP’s sponsor, Sammons, 

have now requested a clarification with 

respect to the conditions that appeared 

in the Notice. 

Condition (f) of the Notice reads: ‘‘(f) 

Shares of Sammons stock are held in an 

ESOP suspense account, and are 

allocated each year to each eligible 

ESOP participant at the maximum level 

permitted under the Code;’’ and 

Representation (f) in Paragraph 16 of the 

Summary of Facts and Representations 

of the Notice reads the same way. 

GreatBanc represents that this 

statement was likely the product of the 

following representation made in the 

original application submitted to the 

Department and repeated in Paragraph 5 

of the Notice: ‘‘Although the ESOP is 

not leveraged, under a special structure 

established pursuant to Section 664(g) 

of the Code, the shares acquired from 

the [Sammons] charitable remainder 

trust are held in an ESOP suspense 

account, and are currently allocated 

each year to each eligible ESOP 

participant at the maximum level 

permitted under Code Section 664(g)(7), 

i.e., 25% of compensation (up to a 

maximum allocation of $45,000).’’ 

GreatBanc confirms that the 

representations in the exemption 

application concerning the level of 

current allocations to ESOP participants 

are entirely accurate. Participants 

received the maximum allocations 

permitted under the Code for the 2010 

Plan year (the first Plan year for which 

Code Section 664(g)(7) applied to the 

ESOP), and will receive the maximum 

level of allocations for the 2011 Plan 

year as well. It was not, however, the 

intention of GreatBanc nor Sammons to 

represent to the Department, nor to offer 

as a condition for the granting of an 

exemption, that the ESOP would 

provide the maximum permitted 

allocations to ESOP participants during 

each Plan year for which the exemption 

proposed herein would be in effect, but 

rather to represent that the allocations 

made to ESOP participants would at all 

times be made in accordance with the 

applicable provisions of Code Section 

664(g). 

The Department has accepted this 

request for clarification by GreatBanc 

and Sammons and has accordingly 

amended the Notice so that condition (f) 

now reads: ‘‘(f) Shares of Sammons 

stock are held in an ESOP suspense 

account, and are allocated each year to 

each eligible ESOP participant in 

accordance with the applicable 

provisions of the Code;’’ and the 

Department notes that Representation 

16, subsection (f) of the Notice is 

similarly amended. 

Notice of Amendment to Proposed 

Exemption 

The Department of Labor (the 

Department) is considering granting an 

exemption under the authority of 

section 408(a) of the Act in accordance 

with procedures set forth in 29 CFR Part 

2570, Subpart B (55 FR 32836, 32847, 

August 10, 1990). If the proposed 

exemption is granted, the restrictions of 

mstockstill on DSK4VPTVN1PROD with NOTICES

19340 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices 

1The 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). 

sections 406(a)(1)(A) and (D), 406(b)(1), 

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

sanctions resulting from the application 

of section 4975 of the Code, by reason 

of section 4975(c)(1)(A), (D) and (E) of 

the Code, shall not apply to the personal 

holding company consent dividend 

election (the Consent) with respect to 

Sammons Enterprises, Inc. (Sammons), 

by the trustee of the ESOP, provided 

that the following conditions are 

satisfied: 

(a) The trustee of the ESOP is an 

independent, qualified fiduciary (the 

I/F), acting on behalf of the ESOP, 

which determines prior to entering into 

the transaction that the transaction is 

feasible, in the interest of, and 

protective of the ESOP and the 

participants and beneficiaries of the 

ESOP; 

(b) Before the ESOP enters into the 

proposed transaction, the I/F reviews 

the transaction, and determines whether 

or not to approve the transaction, in 

accordance with the fiduciary 

provisions of the Act; 

(c) The I/F monitors compliance with 

the terms and conditions of this 

proposed exemption, as described 

herein, and ensures that such terms and 

conditions are at all times satisfied; 

(d) Sammons provides to the I/F, in a 

timely fashion, all information 

reasonably requested by the I/F to assist 

it in making its decision whether or not 

to approve the transaction; 

(e) The consent dividend will 

represent no more than two percent 

(2%) of the ESOP’s assets in any taxable 

year within the timeframe of the 

exemption proposed herein; 

(f) Shares of Sammons stock are held 

in an ESOP suspense account, and are 

allocated each year to each eligible 

ESOP participant in accordance with 

the applicable provisions of the Code; 

(g) All of the requirements of section 

565 of the Code are met with respect to 

the Consent; and 

(h) All shareholders of Sammons are 

requested to consent to the dividend in 

the manner prescribed under section 

565 of the Code. 

Notice to Interested Persons: The 

applicant represents that notice to 

interested persons will be provided by 

first class mail within 15 days of the 

publication of this Notice of 

Amendment to Proposed Exemption in 

the Federal Register. This notification 

to interested persons will include both 

a copy of the November 14, 2011 Notice 

and a copy of this Notice of Amendment 

to Proposed Exemption. 

Signed at Washington, DC, this 27th day of 

March 2012. 

Lyssa E. Hall, 

Acting Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2012–7703 Filed 3–29–12; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Exemptions From Certain Prohibited 

Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of Individual Exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). This notice includes 

the following Grants: D–11628, Aztec 

Well Servicing Company & Related 

Companies Medical Plan Trust Fund 

(the Plan), 2012–04; D–11637, HSBC– 

North America (U.S.) Tax Reduction 

Investment Plan (the Plan), 2012–05; D– 

11662, Retirement Program for 

Employees of EnPro Industries (the 

Plan), 2012–06; D–11669, Genzyme 

Corporation 401(k) Plan and Its 

Successor Plans (together, the Plan or 

the Applicant), 2012–07; and D–11680, 

Citigroup Inc. (Citigroup or the 

Applicant), 2012–08. 

SUPPLEMENTARY INFORMATION: A notice 

was published in the Federal Register of 

the pendency before the Department of 

a proposal to grant such exemptions. 

The notice set forth summaries of facts 

and representations contained in the 

applications for exemption and referred 

interested persons to the applications 

for a complete statement of the facts and 

representations. The applications have 

been available for public inspection at 

the Department in Washington, DC The 

notice also invited interested persons to 

submit comments on the requested 

exemptions to the Department. In 

addition the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The 

applicants have represented that they 

have complied with the requirements of 

the notification to interested persons. 

No requests for a hearing were received 

by the Department. Public comments 

were received by the Department as 

described in the granted exemptions. 

The notice of proposed exemption 

was issued and the exemptions are 

being granted solely by the Department 

because, effective December 31, 1978, 

section 102 of Reorganization Plan No. 

4 of 1978, 5 U.S.C. App. 1 (1996), 

transferred the authority of the Secretary 

of the Treasury to issue exemptions of 

the type proposed to the Secretary of 

Labor. 

Statutory Findings 

In accordance with section 408(a) of 

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

Code and the procedures set forth in 29 

CFR part 2570, subpart B (76 FR 66637, 

66644, October 27, 2011) 1 and based 

upon the entire record, the Department 

makes the following findings: 

(a) The exemption is administratively 

feasible; 

(b) The exemption is in the interests 

of the plan and 

its participants and beneficiaries; and 

(c) The exemption is protective of the 

rights of the participants and 

beneficiaries of the plan. 

Aztec Well Servicing Company & 

Related Companies Medical Plan Trust 

Fund (the Plan) Located in Aztec, New 

Mexico 

[Prohibited Transaction Exemption 2012–04; 

Exemption Application No. D–11628] 

Exemption 

Section I 

The restrictions of sections 

406(a)(1)(A), (C) and (D), 406(b)(1), and 

406(b)(2) of the Act shall not apply to 

the payment by the Plan to Basin 

Occupational & Urgent Care, LLC 

(BOUC), a party in interest with respect 

to the Plan, for the on-site provision to 

the Plan of urgent medical care and 

wellness services by a nurse-practitioner 

and a wellness coordinator employed by 

BOUC, provided that the following 

conditions are satisfied: 

(a) An independent, qualified 

fiduciary (I/F), with expertise in plans 

providing health and welfare benefits 

under the Act and the fiduciary 

obligations thereunder, acting on behalf 

of the Plan, determines prior to entering 

into the transaction that the transaction 

is feasible, in the interest of, and 

protective of the Plan and the 

participants and beneficiaries of the 

Plan; 

(b) Before the Plan enters into the 

proposed transaction, the I/F reviews 

the transaction, ensures that the terms of 

mstockstill on DSK4VPTVN1PROD with NOTICES