Notice of Amendment to Proposed Exemption Sammons Enterprises, Inc. Employee Stock Ownership Plan (the ESOP); Located in Dallas, TX, 19338-19340 [2012-7703]
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19338
Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices
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
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.
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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
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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
Employee Benefits Security
Administration, U.S. Department of
Labor.
ACTION: Notice of amendment to
proposed exemption.
AGENCY:
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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices
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
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SUMMARY:
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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
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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
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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.
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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
Statutory Findings
Employee Benefits Security
Administration
Exemptions From Certain Prohibited
Transaction Restrictions
Employee Benefits Security
Administration, Labor.
ACTION: Grant of Individual Exemptions.
AGENCY:
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.
SUMMARY:
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Fmt 4703
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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.
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
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).
E:\FR\FM\30MRN1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Notices]
[Pages 19338-19340]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7703]
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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.
-----------------------------------------------------------------------
[[Page 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 publicly-disclosed. 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
[[Page 19340]]
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
