Submission for OMB Review: Comment Request, 36760-36761 [E9-17676]
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Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices
than the Consent Order to support its
motion, Respondent had an ample and
meaningful opportunity to present
evidence refuting the Government’s
evidence and creating a triable issue
and/or to make argument (were there
any viable ones to be made), regarding
the legal effect of his filing of the State
renewal application. While Respondent
further argues that if the Agency ‘‘was
going to place in issue allegations that
were not named in the Order to Show
Cause, the proper course of action
would have been to move to amend the
Order to Show Cause,’’ he does not
identify how he has been prejudiced by
the Government’s failure to amend the
Order. Exc. at 4; cf. Facet Enterprises,
907 F.2d at 972 (‘‘In determining
whether a respondent can be held liable
for an unfair labor practice not charged
in the complaint, the central inquiry is
fairness: considering the circumstances
of the case, did the respondent know
what conduct was being alleged and
have ‘a fair opportunity to present [its]
defense?’’’) (quoting Soule Glass &
Glazing Co. v. NLRB, 652 F.2d 1055,
1074 (1st Cir. 1985)).2
The rules governing DEA hearings do
not require the formality of amending a
show cause order to comply with the
evidence. The Government’s failure to
file an amended Show Cause Order
alleging that Respondent’s state CDS
license had expired does not render the
proceeding fundamentally unfair.
Respondent also argues that the ALJ’s
ruling on the summary disposition
motion ‘‘should have been stayed
pending disclosure of evidence.’’ Exc. at
5. Respondent analogizes the prehearing
statements to civil discovery and argues
that ‘‘the usual prehearing procedures
for exchanging information was [sic] not
completed.’’ Id. There is, however, no
general right to discovery under either
the APA or DEA regulations, but rather
only a limited right to receive in
advance of the hearing the documentary
evidence and summaries of the
testimony which the Government
intends to rely upon. Nicholas A.
Sychak, d/b/a Medicap Pharmacy, 65
FR 75959, 75961 (2000) (citing
McClelland v. Andrus, 606 F.2d 1278,
1285 (DC Cir. 1979)); see also 21 CFR
1316.54(e) & 1316.57. Nor, given the
narrowness of the issue upon which the
motion for summary disposition was
based—whether Respondent has
authority under state law to dispense a
controlled substance—has Respondent
shown what material evidence he might
have obtained from the Government
which he could not have obtained from
another source such as the State itself.
The contention is therefore without
merit.
Respondent also argues that the ALJ
unlawfully shifted the burden of proof
to him. According to Respondent,
‘‘[t]here is an issue of disputed fact as
to whether there has been [a]
suspension[,] revocation[,] or denial of
[his] state authority to prescribe
controlled substances or merely [a]
delay in processing his renewal
application.’’ Exc. at 6. Respondent
further claims that the ALJ did not
require the DEA to show that the license
was ‘‘pending,’’ and placed on him the
burden of ‘‘show[ing] that he had been
granted the requisite authority.’’ Id. at 7.
Relatedly, Respondent maintains that
the Government cannot revoke his
registration under 21 U.S.C. 824(a)(3)
because it has not shown that his
registration has been suspended,
revoked, or denied by competent
authority. Id.
Respondent ignores, however, that
Congress has made the possession of
state authority a prerequisite for
obtaining a DEA registration. See id.
Section 823(f) (‘‘The Attorney General
shall register practitioners * * * to
dispense * * * controlled substances
* * * if the applicant is authorized to
dispense * * * controlled substances
under the laws of the State in which he
practices.’’). In addition, the CSA
defines the term ‘‘practitioner’’ to
‘‘mean[] a physician * * * or other
person licensed, registered, or otherwise
permitted, by * * * the jurisdiction in
which he practices * * * to dispense
[or] administer * * * a controlled
substance in the course of professional
practice.’’ 21 U.S.C. 802(21). A
physician who no longer holds
authority under State law to dispense a
controlled substance is therefore not a
practitioner within the meaning of the
CSA and cannot lawfully dispense.
DEA has therefore consistently held
that a practitioner may not maintain his
registration if he lacks state authority to
dispense controlled substances. This
rule has been applied to revoke the
registration of a practitioner even when
the practitioner’s loss of state authority
was based on the expiration of a state
license rather than a formal disciplinary
action of a state board. See William D.
Levitt, 64 FR 49822, 49823 (1999); see
also id. at 49822 (collecting cases). As
the Agency explained in Levitt, because
2 Likewise, the Administrative Procedure Act
requires only that ‘‘[p]ersons entitled to notice of an
agency hearing shall be timely informed of * * *
the matters of fact and law asserted.’’ 5 U.S.C.
554(b). He was.
state authorization was clearly intended to be
a prerequisite to DEA registration, Congress
could not have intended for DEA to maintain
a registration if a registrant is no longer
authorized by the state in which he practices
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18:55 Jul 23, 2009
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to handle controlled substances due to the
expiration of his state license. Therefore, it is
reasonable for DEA to interpret that 21 U.S.C.
§ 824(a)(3) would allow for the revocation of
a DEA * * * Registration where, as here, a
registrant’s state authorization has expired.
Id. at 49823. See also Chevron, Inc., v.
NRDC, Inc., 467 U.S. 837, 843 (1984)
(where Congress is silent on a question,
courts defer to an agency’s reasonable
interpretation of the statute it
administers).
Accordingly, in relying on the
undisputed fact that Respondent’s State
CDS license had expired, the ALJ did
not erroneously shift the burden of
proof from the Government to him.
Rather, she correctly applied the
Agency’s settled precedent that because
Respondent clearly lacks authority to
dispense controlled substances in the
State in which he holds his DEA
registration and practices medicine, he
is not entitled to maintain his
registration. Respondent’s registration
will therefore be revoked.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) & 824(a), as well as
by 28 CFR 0.100(b) & 0.104, I hereby
order that DEA Certificate of
Registration, BB0492912, issued to Roy
E. Berkowitz, M.D., be, and it hereby is,
revoked. I further order that any
pending application of Roy E.
Berkowitz, M.D., for renewal or
modification of his registration be, and
it hereby is, denied. This order is
effective immediately.3
Dated: July 17, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9–17714 Filed 7–23–09; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF LABOR
Office of the Secretary
Submission for OMB Review:
Comment Request
July 20, 2009.
The Department of Labor (DOL)
hereby announces the submission of the
following public information collection
request (ICR) to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995
(Pub. L. 104–13, 44 U.S.C. chapter 35).
A copy of this ICR, with applicable
3 Because of the importance of the legal issues
raised by Respondent, I conclude that the public
interest necessitates that this Order be made
effective immediately.
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srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices
supporting documentation; including
among other things a description of the
likely respondents, proposed frequency
of response, and estimated total burden
may be obtained from the RegInfo.gov
Web site at https://www.reginfo.gov/
public/do/PRAMain or by contacting
Darrin King on 202–693–4129 (this is
not a toll-free number)/e-mail:
DOL_PRA_PUBLIC@dol.gov.
Interested parties are encouraged to
send comments to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for the
Department of Labor—ETA, Office of
Management and Budget, Room 10235,
Washington, DC 20503, Telephone:
202–395–7316/Fax: 202–395–5806
(these are not toll-free numbers), E-mail:
OIRA_submission@omb.eop.gov within
30 days from the date of this publication
in the Federal Register. In order to
ensure the appropriate consideration,
comments should reference the OMB
Control Number (see below).
The OMB is particularly interested in
comments which:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Enhance the quality, utility, and
clarity of the information to be
collected; and
• Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Agency: Employment and Training
Administration.
Type of Review: Extension without
change of a currently approved
collection.
Title of Collection: Claims and
Payment Activities.
OMB Control Number: 1205–0010.
Agency Form Number: ETA–5159.
Affected Public: State Governments.
Total Estimated Number of
Respondents: 53.
Total Estimated Annual Burden
Hours: 1,272.
Total Estimated Annual Costs Burden
(does not include hour costs): $0.
Description: The Form ETA–5159
report provides important program
information on claims taking and
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benefit payment activities under State/
Federal unemployment insurance laws.
These data are needed for budget
preparation and control, program
planning and evaluation, personnel
assignment, actuarial and program
research, and for accounting to Congress
and the public. This collection is
authorized under the Social Security
Act, Title III, Section 303(a)(6). For
additional information, see related
notice published at Volume 74 FR
23886 on May 21, 2009.
Darrin A. King,
Departmental Clearance Officer.
[FR Doc. E9–17676 Filed 7–23–09; 8:45 am]
BILLING CODE 4510–FW–P
DEPARTMENT OF LABOR
Employment and Training
Administration
Notice of Availability of Funds and
Solicitation for Grant Applications
(SGA) for Mentoring, Educational, and
Employment Strategies To Improve
Academic, Social, and Career Pathway
Outcomes
AGENCY: Employment and Training
Administration, U.S. Department of
Labor.
Announcement Type: Notice of
Solicitation for Grant Applications.
Funding Opportunity Number: SGA/
DFA PY 08–14.
Catalog Federal Assistance Number:
17.261.
SUMMARY: The Employment and
Training Administration (ETA)
announces the availability of $34
million for grants to serve high schools
that have been designated as
persistently dangerous by State
Educational Agencies for the 2008–2009
school year under section 9532 of the
Elementary and Secondary Education
Act. The goal of these grants is to reduce
violence within these schools through a
combination of mentoring, education,
employment, case management, and
violence prevention strategies. These
grants will be awarded to fund projects
in schools not currently receiving a DOL
grant for these purposes through a
competitive process open both to school
districts which include persistently
dangerous high schools and to
community-based organizations (CBOs)
in partnership with these school
districts. High schools which have been
designated as persistently dangerous
this school year and which are not
currently receiving a Department of
Labor (Department or DOL) grant under
this initiative are located in the school
districts of Baltimore City, Plainfield
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36761
(New Jersey), New York City,
Schenectady (New York), Salem-Keiser
(Oregon), Philadelphia, and Puerto Rico.
These schools are listed in Section VIIIA
below. School districts and CBOs must
submit a separate application for each
high school that they propose serving,
but may submit as many applications as
they have eligible schools. Applications
submitted by school districts must
include plans to have one or more CBOs
as sub-grantees/contractors to operate at
a minimum the mentoring component.
These proposed CBO sub-grantees/
contractors do not need to be listed in
the application, as the Department
strongly encourages the use of
competition in selecting sub-grantees
and contractors either before or after
grant award. Applications submitted by
CBOs must have a school district
identified as a partner, with a signed
memorandum of understanding (MOU)
with the school district included in the
application. To be eligible to apply for
these grants as a CBO, organizations
must be not-for-profit entities and can
operate either nationally or locally.
This solicitation provides background
information and describes the
application submission requirements,
outlines the process that eligible entities
must use to apply for funds covered by
this solicitation, and outlines the
evaluation criteria used as a basis for
selecting the grantees.
DATES: Key Dates: The closing date for
receipt of applications under this
announcement is September 22, 2009.
Application and submission
information is explained in detail in
Part IV of this SGA.
ADDRESSES: Mailed applications must be
addressed to the U.S. Department of
Labor, Employment and Training
Administration, Division of Federal
Assistance, Attention: B. Jai Johnson,
Reference SGA/DFA PY 08–14, 200
Constitution Avenue, NW., Room N–
4716, Washington, DC 20210.
Applications that do not meet the
conditions set forth in this notice will
not be considered. No exceptions to the
submission requirements set forth in
this notice will be granted. For detailed
guidance, please refer to Section IV.C.
SUPPLEMENTARY INFORMATION: This
solicitation consists of eight parts:
Part I provides a description of this funding
opportunity
Part II describes the size and nature of the
anticipated awards
Part III describes eligibility information and
other grant specifications
Part IV provides information on the
application and submission process
Part V describes the criteria against which
applications will be reviewed and explains
the proposal review process
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]]>Agencies
[Federal Register Volume 74, Number 141 (Friday, July 24, 2009)]
[Notices]
[Pages 36760-36761]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17676]
=======================================================================
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DEPARTMENT OF LABOR
Office of the Secretary
Submission for OMB Review: Comment Request
July 20, 2009.
The Department of Labor (DOL) hereby announces the submission of
the following public information collection request (ICR) to the Office
of Management and Budget (OMB) for review and approval in accordance
with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C.
chapter 35). A copy of this ICR, with applicable
[[Page 36761]]
supporting documentation; including among other things a description of
the likely respondents, proposed frequency of response, and estimated
total burden may be obtained from the RegInfo.gov Web site at https://www.reginfo.gov/public/do/PRAMain or by contacting Darrin King on 202-
693-4129 (this is not a toll-free number)/e-mail: DOL_PRA_PUBLIC@dol.gov.
Interested parties are encouraged to send comments to the Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for the
Department of Labor--ETA, Office of Management and Budget, Room 10235,
Washington, DC 20503, Telephone: 202-395-7316/Fax: 202-395-5806 (these
are not toll-free numbers), E-mail: OIRA_submission@omb.eop.gov within
30 days from the date of this publication in the Federal Register. In
order to ensure the appropriate consideration, comments should
reference the OMB Control Number (see below).
The OMB is particularly interested in comments which:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Agency: Employment and Training Administration.
Type of Review: Extension without change of a currently approved
collection.
Title of Collection: Claims and Payment Activities.
OMB Control Number: 1205-0010.
Agency Form Number: ETA-5159.
Affected Public: State Governments.
Total Estimated Number of Respondents: 53.
Total Estimated Annual Burden Hours: 1,272.
Total Estimated Annual Costs Burden (does not include hour costs):
$0.
Description: The Form ETA-5159 report provides important program
information on claims taking and benefit payment activities under
State/Federal unemployment insurance laws. These data are needed for
budget preparation and control, program planning and evaluation,
personnel assignment, actuarial and program research, and for
accounting to Congress and the public. This collection is authorized
under the Social Security Act, Title III, Section 303(a)(6). For
additional information, see related notice published at Volume 74 FR
23886 on May 21, 2009.
Darrin A. King,
Departmental Clearance Officer.
[FR Doc. E9-17676 Filed 7-23-09; 8:45 am]
BILLING CODE 4510-FW-P
